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Jury – Bias / Disqualification — Inaccurate / Incomplete Response During Voir Dire

State v. Edron D. Broomfield, 223 Wis.2d 465, 589 N.W.2d 225 (1999), affirming unpublished decision
For Broomfield: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding: One prospective juror heard, before trial, other prospective jurors describe Broomfield as a “gangster” who beat up kids and was involved in “drive-bys.” The juror was chosen for the petit jury; he didn’t convey this information to the others, nor was it brought up during deliberations — The juror’s failure to reveal during voir dire what he’d heard did not establish juror bias:

¶14 The proper time to determine whether a juror is impartial is on voir dire examination. Messelt, 185 Wis. 2d at 267. The voir dire, with its peremptory strikes and strikes for cause, is the prime instrument of the common law designed to assure an impartial jury and a fair trial. State v. Shillcutt, 119 Wis. 2d 788, 812, 350 N.W.2d 686 (1984) (Heffernan, C.J., concurring). The effectiveness of voir dire, however, is dependent upon the responses provided by prospective jurors and there are no guarantees that a juror will respond honestly, accurately or completely. Messelt, 185 Wis. 2d at 268.

¶15 In State v. Wyss, 124 Wis. 2d 681, 370 N.W.2d 745 (1985), this court set forth a two-step test to follow when bias is alleged to have resulted from a juror’s failure to reveal information on voir dire. In Wyss, we held that in order to be awarded a new trial in such instances, a litigant must demonstrate:

(1) that the juror incorrectly or incompletely responded to a material question on voir dire; and if so, (2) that it is more probable than not that under the facts and circumstances surrounding the particular case, the juror was biased against the moving party.

Wyss, 124 Wis. 2d at 726.

¶17 The record reveals that neither the circuit judge nor the attorneys asked the jury panel if they knew the defendant or if they knew anything, other than what was explained during voir dire, about the defendant. Because juror McCann was never specifically asked, his responses could not have been incorrect or incomplete. We find that the defendant has failed to satisfy the first prong of the test in Wyss; accordingly, we will not address the second prong.

Nonetheless, the information McCann had overheard was extraneous and potentially prejudicial, and he was competent to testify under §. 906.06(2). ¶¶25-26. But, because this information “would not have had a prejudicial effect upon a hypothetical average juror, the conviction is affirmed. ¶¶29-32.

For additional authority to the effect that the purpose of voir dire is “to allow for intelligent exercise of peremptory challenges,” see Butler v. City of Camden, 3rd Cir. No. 02-2903, 12/18/03 (further holding that, on facts of case, trial court committed reversible error by foreclosing voir dire inquiry into potential bias in favor of law enforcement).

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