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Jury – Selection – Bias / Disqualification – Exercise of Discretion

State v. Mark H. Tody, 2009 WI 31, reversing unpublished opinion
For Tody: Byron C. Lichstein, UW Law School


¶32      … The correct principle of law that should have guided the circuit court judge is that a circuit court judge should err on the side of dismissing a challenged juror when the challenged juror’s presence may create bias or an appearance of bias. [15] The reason for this principle of law is that a circuit court’s striking a prospective juror who raises issues of bias saves judicial time and resources in the long run. [16]¶33      This court has acknowledged that cases concerning juror bias present difficult legal questions for this court and the court of appeals.[17] The circuit court’s best course of action is to obviate the need for appellate review of these questions by erring on the side of caution in the first instance by striking the juror.

 [16]  Lindell, 245 Wis. 2d 689, ¶49 (stating that by “err[ing] on the side of striking prospective jurors who appear to be biased,” the circuit courts may “avoid the appearance of bias, and may save judicial time and resources in the long run” (quoting State v. Ferron, 219 Wis. 2d 481, 503, 579 N.W.2d 654 (1998) (internal quotation marks omitted))). [17]  Lindell, 245 Wis.  2d 689, ¶31.


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