Section 805.08. Jurors.

 

(1)   Qualifications, examination. The court shall examine on oath each person who is called as a juror to discover whether the juror is related by blood, marriage or adoption to any party or to any attorney appearing in the case, or has any financial interest in the case, or has expressed or formed any opinion, or is aware of any bias or prejudice in the case. If a juror is not indifferent in the case, the juror shall be excused. Any party objecting for cause to a juror may introduce evidence in support of the objection. This section shall not be construed as abridging in any manner the right of either party to supplement the court's examination of any person as to qualifications, but such examination shall not be repetitious or based upon hypothetical questions.

(2)   Number of jurors. A sufficient number of jurors shall be summoned in the action so that the number applicable under s. 756.06 remains after the exercise of all peremptory challenges to which the parties are entitled under sub. (3) . The court may order that additional jurors be selected. In that case, if the number of jurors remains more than required at the time of the final submission of the cause, the court shall determine by lot which jurors shall not initially participate in deliberations. The court may hold the additional jurors until the verdict is rendered or discharge them at any time.

(3)   Peremptory challenges. Each party shall be entitled to 3 peremptory challenges which shall be exercised alternately, the plaintiff beginning; and when any party declines to challenge in turn, the challenge shall be made by the clerk by lot. The parties to the action shall be deemed 2, all plaintiffs being one party and all defendants being the other party, except that in a case where 2 or more defendants have adverse interests, the court, if satisfied that the due protection of their interests so requires, in its discretion, may allow peremptory challenges to the defendant or defendants on each side of the adverse interests, not to exceed 3. Each side shall be entitled to one peremptory challenge in addition to those otherwise allowed by law if additional jurors are to be selected under sub. (2) .

(4)   Jury view. On motion of any party, the jury may be taken to view any property, matter or thing relating to the controversy between the parties when it appears to the court that the view is necessary to a just decision. The moving party shall pay the expenses of the view. The expenses shall afterwards be taxed like other legal costs if the party who incurred them prevails in the action.

Sup. Ct. Order, 67 Wis. 2d 585, 698 (1975); 1975 c. 218 ; 1977 c. 318 ; 1977 c. 447 s. 210 ; 1983 a. 226 ; Sup. Ct. Order No. 96-08 , 207 Wis. 2d xv (1997); 1999 a. 162 . Judicial Council Note, 1983: Sub. (2) is amended by replacing the concept of “alternate" jurors with a provision allowing the court to order the impaneling of additional jurors. The panel is then reduced to the proper size by lot immediately prior to final submission of the cause. These changes are intended to promote an attentive attitude and a collegial relationship among the members of the jury. The first sentence of prior sub. (3) is moved to sub. (2) for more logical placement in the statutes. The reference to “alternate" jurors in the final sentence is changed to “additional" jurors to reflect the modification of sub. (2). [Bill 320S] Judicial Council Note, 1996: ?This proposal changes ``impaneled" to ``selected" whenever a statute refers to choosing jurors or prospective jurors, for statutory uniformity. Adding the last sentence [to (2)] is intended to allow courts to keep additional jurors to replace any juror who might not be able to complete deliberations. Deliberations would begin anew with the additional juror in place [Re SCO No. 96-08 eff. 7-1-97]. The mere expression of a predetermined opinion of guilt during voir dire does not disqualify the juror per se. Hammill v. State, 89 Wis. 2d 404 , 278 N.W.2d 821 (1979). The disproportionate representation of a group in one array is insufficient to establish systematic exclusion. State v. Pruitt, 95 Wis. 2d 69 , 289 N.W.2d 343 (Ct. App. 1980). Unless the defendant consents, it is reversible error for the trial court to substitute an alternate juror for a regular juror after jury deliberations have begun. State v. Lehman, 108 Wis. 2d 291 , 321 N.W.2d 212 (1982). The trial court's deliberate, though well-intended, removal of a class or group for cause without examination of individuals in the group was improper. State v. Chosa, 108 Wis. 2d 392 , 321 N.W.2d 280 (1982). The trial court, sitting as the trier of fact, committed an error of law in making and relying on an unrequested, unannounced, unaccompanied, and unrecorded view of an accident scene in assessing evidence produced at trial. American Family Mut. Ins. Co. v. Shannon, 120 Wis. 2d 560 , 356 N.W.2d 175 (1984). When a juror incompletely responds to material questions on voir dire, a new trial is warranted if it is shown that it is more likely than not that the juror was biased against the moving party. State v. Wyss, 124 Wis. 2d 681 , 370 N.W.2d 745 (1985). But see State v. Faucher, 227 Wis. 2d 700 , 596 N.W.2d 770 (1999), 97-2702 , for a review of this case to apply new terminology regarding juror bias. Law enforcement officers should not be automatically excused for cause from venire on grounds of implied bias. State v. Louis, 156 Wis. 2d 470 , 457 N.W.2d 484 (1990). But see State v. Faucher, 227 Wis. 2d 700 , 596 N.W.2d 770 (1999), 97-2702 , for a review of this case to apply new terminology regarding juror bias. Prospective jurors related to a state witness by blood or marriage to the third degree must be struck from the jury panel. State v. Gesch, 167 Wis. 2d 660 , 482 N.W.2d 99 (1992). But see State v. Faucher, 227 Wis. 2d 700 , 596 N.W.2d 770 (1999), 97-2702 , for a review of this case to apply new terminology regarding juror bias. The verdict of a 13-member jury panel agreed to by the defense and prosecution was valid. State v. Ledger, 175 Wis. 2d 116 , 499 N.W.2d 199 (Ct. App. 1993). An appellate court should overturn a circuit court's determination that a prospective juror can be impartial only if the juror's bias is manifest, and not when there is a reasonable suspicion of bias. The test for manifest bias is stated. State v. Ferron, 219 Wis. 2d 481 , 579 N.W.2d 654 (1998), 96-3425 . But see State v. Faucher, 227 Wis. 2d 700 , 596 N.W.2d 770 (1999), 97-2702 , for a review of this case to apply new terminology regarding juror bias. Juror bias may be actual, implied, or inferred. Inferred bias is a factual finding requiring evaluation of the facts and circumstances including those surrounding the juror's incomplete or incorrect response to questions during voir dire. Truthful responses do not prevent finding inferred bias. State v. Delgado, 223 Wis. 2d 270 , 588 N.W.2d 1 (1999), 96-2194 . But see State v. Faucher, 227 Wis. 2d 700 , 596 N.W.2d 770 (1999), 97-2702 , for a review of this case to apply new terminology regarding juror bias. The terms “statutory bias," “subjective bias," and “objective bias" are adopted as the proper terms for referring to types of jury bias, replacing the terms “implied bias," “subjective bias," and “objective bias." State v. Faucher, 227 Wis. 2d 700 , 596 N.W.2d 770 (1999), 97-2702 . Statutory bias refers to those situations described in sub. (1); a person falling within one of the sub. (1) descriptions may not serve regardless of the ability to be impartial. State v. Faucher, 227 Wis. 2d 700 , 596 N.W.2d 770 (1999), 97-2702 . Subjective bias is revealed through the words and demeanor of the prospective juror as revealed on voir dire ; it refers to the juror's state of mind. State v. Faucher, 227 Wis. 2d 700 , 596 N.W.2d 770 (1999), 97-2702 . Objective bias focuses on whether a reasonable person in the individual prospective juror's position could be impartial; the circuit court is particularly well positioned to determine objective bias. State v. Faucher, 227 Wis. 2d 700 , 596 N.W.2d 770 (1999), 97-2702 . Wyss , Louis, Gescch , State v. Messelt, 185 Wis. 2d 254 , Ferron, Delgado, and State v. Broomfield, 223 Wis. 2d 465 , are cases through which jury bias jurisprudence has evolved; where each would fall given the new bias terminology adopted in this case is considered. State v. Faucher, 227 Wis. 2d 700 , 596 N.W.2d 770 (1999), 97-2702 . There is no automatic disqualification of potential jurors who have been convicted of crimes. State v. Mendoza, 227 Wis. 2d 838 , 596 N.W.2d 736 (Ct. App. 1998), 97-0952 . A prospective juror who is the brother-in-law of a state witness is a relative by marriage to the 3rd degree under Gesch and must be struck for cause as the relationship constitutes statutory bias . Failure to do so is grounds for reversal and a new trial. State v. Czarnecki, 231 Wis. 2d 1 , 604 N.W.2d 891 (Ct. App. 1999), 98-2406 . In deciding subjective bias, the particular words of the juror are not the focus. A prospective juror need not respond in voir dire with unequivocal declarations of impartiality. State v. Oswald, 2000 WI App 3 , 232 Wis. 2d 103 , 606 N.W.2d 238 , 97-1219 . But see also Oswald v. Bertrand, 374 F.3d 475 (2003). Objective bias requires a direct, critical, personal connection between the individual juror and crucial evidence or a dispositive issue in the case, or the juror's intractable negative attitude to the justice system in general. A reasonable person can be impartial despite a relationship to a police officer or past experience as an officer. State v. Oswald, 2000 WI App 3 , 232 Wis. 2d 103 , 606 N.W.2d 238 , 97-1219 . But see also Oswald v. Bertrand, 249 F. Supp 2d 1078 (2003). Peremptory challenges may not be exercised, and therefore not changed, after the parties have accepted the jury, even if the jury has not yet been sworn. State v. Nantelle, 2000 WI App 110 , 235 Wis. 2d 91 , 612 N.W.2d 356 , 99-2159 . A party who during voir dire neither requests further questioning nor objects to the seating of a juror may not later allege error in the trial court's failure to act sua sponte in regard to a juror who may not be impartial. State v. Williams, 2000 WI App 123 , 237 Wis. 2d 591 , 614 N.W.2d 11 , 99-0812 . The court's finding that a murder trial juror was not objectively biased was reasonable. Although the juror had a business and social relationship with the victim, the juror did not have a personal connection to crucial evidence or a dispositive issue in the case, a negative attitude toward the justice system, or such a close relationship with the victim that no reasonable person in her position could not be impartial. State v. Lindell, 2000 WI App 180 , 238 Wis. 2d 422 , 617 N.W.2d 500 , 99-2704 . A prospective juror who openly admits bias and is never questioned about his or her partiality is subjectively biased as a matter of law. State v. Carter, 2002 WI App 55 , 250 Wis. 2d 851 , 641 N.W.2d 517 , 01-2303 . An administrative assistant employed by the county district attorney's office was not objectively biased because she worked for the same entity as the prosecuting attorney. The court declines to create a per se rule that excludes potential jurors for the sole reason that they are employed by the district attorney's office. State v. Smith, 2006 WI 74 , 291 Wis. 2d 569 , 716 N.W.2d 482 , 04-2035 . A demonstration of a juror's specific bias is not needed to remove a juror from deliberations when there are 12 other jurors whose impartiality is not in question. The trial court properly exercised its discretion when it designated a juror as an alternate based on its concern regarding her potential impartiality. The trial court has a duty to ensure that the impaneled jury is impartial; that is free of bias or prejudice. While the trial court in this case did not determine by lot which jurors would not participate in deliberations, this was appropriate, notwithstanding sub. (2), as the trial court has the discretion to remove a juror for cause during a trial proceeding. State v. Gonzalez, 2008 WI App 142 , 314 Wis. 2d 129 , 758 N.W.2d 153 , 07-2160 . As a matter of law, a reasonable presiding judge could not reach any other conclusion than to excuse his mother from sitting on the jury. State v. Tody, 2009 WI 31 , 316 Wis. 2d 689 , 764 N.W.2d 737 , 07-0400 . The defendant was not entitled to a new trial even though she used a peremptory challenge to remove the judge's daughter-in-law from the jury. Because the defendant did not claim the jury was unfair or partial, a new trial was not required under the circumstances of the case. The defendant did not show that the presence of the challenged juror in the pool of potential jurors affected the defendant's substantial rights. State v. Sellhausen 2012 WI 5 , 338 Wis. 2d 286 , 809 N.W.2d 14 , 10-0445 . An appellate court should not give deference to a postconviction court's finding of subjective bias because the postconviction court did not preside over the trial, and thus could not have observed the demeanor and disposition of a juror as the trial court did. Findings of fact regarding a trial, made at a hearing by a postconviction court that did not preside over the trial, are reviewed de novo. State v. Tobatto, 2016 WI App 28 , ___ Wis. 2d ___, ___ N.W.2d ___, 15-0254 . Prospective jurors need not respond to voir dire questions with unequivocal declarations of impartiality. A juror's honest answers at times can be expected to be less than unequivocal. State v. Tobatto, 2016 WI App 28 , ___ Wis. 2d ___, ___ N.W.2d ___, 15-0254 . Guarantees of open public proceedings in criminal trials includes voir dire examination of potential jurors. Press-Enterprise Co. v. Superior Court of Cal. 464 U.S. 501 (1984). No new trial was required when a juror's failure to disclose during voir dire was harmless. Mc Donough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984). The use of peremptory challenges by a private litigant in a civil action to exclude potential jurors solely because of race violates the equal protection clause. Edmonson v. Leesville Concrete Co., 500 U.S. 614 , 114 L. Ed. 2d 660 (1991). If the issue of jury bias surfaces during or before trial, it is the trial judge's responsibility to conduct an adequate investigation, given the unsatisfactory character of an inquiry into jury bias after the trial is over and the defendant convicted. The question is whether, given the indications of jury bias, the judge's inquiry was adequate. Adequacy is a function of the probability of bias; the greater that probability, the more searching the inquiry needed to make reasonably sure that an unbiased jury is impaneled. Oswald v. Bertrand, 374 F.3d 475 (2004). Analyzing Juror Bias Exhibited During Voir Dire in Wisconsin: How to Lessen the Confusion. Raissi. 84 MLR 517 (2000). State v. Louis: A Missed Opportunity to Clarify when Law Enforcement Officials May Serve as Petit Jurors in Criminal Cases. 1992 WLR 757.

Note

See also notes to Article I, section 7. Microsoft Windows NT 6.1.7601 Service Pack 1