A defendant has the right to a jury determination on each element of a charged offense. The right can be waived only by the defendant personally on the record. State v. Villarreal, 153 Wis. 2d 323, 450 N.W.2d 519 (Ct. App. 1989). Once a defendant makes a prima facie showing that the prosecutor used peremptory challenges in a purposefully discriminatory manner, the burden shifts to the prosecution to provide a neutral explanation for challenging the jurors. Discussing Batson, 476 U.S. 79 (1986). State v. Walker, 154 Wis. 2d 158, 453 N.W.2d 127 (1990). Waiver of a jury trial must be made by the affirmative action of the defendant. Neither counsel nor the court may waive it on the defendant’s behalf. If the defendant has not personally waived the right, the proper remedy is a new trial, not a postconviction hearing. State v. Livingston, 159 Wis. 2d 561, 464 N.W.2d 839 (1991). Under rare circumstances, a jury instruction creating a conclusive presumption regarding an element of a crime may be harmless error. State v. Kuntz, 160 Wis. 2d 722, 467 N.W.2d 531 (1991). Kinship to a person who has been criminally charged or convicted may constitute a legitimate racially-neutral reason for striking a member of the jury panel. State v. Davidson, 166 Wis. 2d 35, 479 N.W.2d 181 (Ct. App. 1991). Discussing unanimity requirements when multiple occurrences of multiple acts are charged. State v. Marcum, 166 Wis. 2d 908, 480 N.W.2d 545 (Ct. App. 1992). A defendant cannot show jury prejudice unless the exhaustion of peremptory challenges left a jury that included an objectionable or incompetent member. State v. Traylor, 170 Wis. 2d 393, 489 N.W.2d 626 (Ct. App. 1992). When the jury is sworn during the trial but prior to deliberations, a mistrial is not warranted in the absence of prejudice. State v. Block, 170 Wis. 2d 676, 489 N.W.2d 715 (Ct. App. 1992). A defendant has the right to have jurors individually polled on their verdict. Reassembling and polling the jury 51 days after the verdict was rendered was harmless error. State v. Coulthard, 171 Wis. 2d 573, 492 N.W.2d 329 (Ct. App. 1992). When the jury is presented with evidence of more than one crime, the verdict must be unanimous as to each crime. State v. Chambers, 173 Wis. 2d 237, 496 N.W.2d 191 (Ct. App. 1992). The “clearly erroneous” standard applies to all steps under the Batson, 476 U.S. 79 (1986), analysis made by a trial court in determining whether a peremptory challenge is discriminatory. State v. Lopez, 173 Wis. 2d 724, 496 N.W.2d 617 (Ct. App. 1992). The verdict of a 13 member jury panel agreed to by the defense and prosecution was not invalid. State v. Ledger, 175 Wis. 2d 116, 499 N.W.2d 198 (Ct. App. 1993). A trial court’s comments to a deliberating jury without the presence of the defendant and the defendant’s counsel violated the constitutional right to be present at trial. The trial court should not inquire of a deliberating jury the numerical division of the jury. State v. McMahon, 186 Wis. 2d 68, 519 N.W.2d 621 (Ct. App. 1994). A criminal defendant may not be tried by a juror who cannot comprehend testimony. Once it is determined that a juror has missed testimony that bears on guilt or innocence, prejudice must be assumed. State v. Turner, 186 Wis. 2d 277, 521 N.W.2d 148 (Ct. App. 1994). When polling the jury showed a unanimous verdict, no constitutional error occurred due to a failure to instruct the jury that a unanimous verdict was required. State v. Kircher, 189 Wis. 2d 392, 525 N.W.2d 788 (Ct. App. 1994). Whether a defendant is required to be shackled at trial should be determined based on the particular risk of violence or escape. When the shackles cannot be viewed by the jury, no prejudicial harm may occur. State v. Grinder, 190 Wis. 2d 541, 527 N.W.2d 326 (1995). A defendant’s presence is required during all proceedings when the jury is being selected, including in camera voir dire. However, failure to allow the defendant’s presence may be harmless error. State v. David J.K., 190 Wis. 2d 726, 528 N.W.2d 434 (Ct. App. 1994). When it was conceded that a juror was sleeping, summarily foreclosing inquiry into the juror’s inattentiveness was an erroneous exercise of discretion. The court must examine the length of the inattentiveness, the importance of the testimony missed, and whether the inattention prejudiced the defendant to the point that there was not a fair trial. State v. Hampton, 201 Wis. 2d 662, 549 N.W.2d 756 (Ct. App. 1996), 95-0152. A prosecutor’s motive of protecting a defendant cannot justify a peremptory challenge based solely on a juror’s race. Excluding a prospective juror because of race can never be “neutral” regardless of the prosecutor’s good faith. State v. Guerra-Reyna, 201 Wis. 2d 751, 549 N.W.2d 779 (Ct. App. 1996), 93-3464. When there are grounds to believe the jury in a criminal case needs protection, a trial court may take reasonable steps to protect the identity of potential jurors. Preventing references on the record to juror’s names, employment, and addresses while providing the defense with copies of the juror questionnaires during voir dire was within the court’s discretion. State v. Britt, 203 Wis. 2d 25, 553 N.W.2d 528 (Ct. App. 1996), 95-0891. Whether the interplay of legally correct instructions impermissibly misled a jury is to be determined based on whether there is a reasonable likelihood that a juror was misled. State v. Lohmeier, 205 Wis. 2d 183, 556 N.W.2d 90 (1996), 94-2187. A party defending against an allegation that peremptory strikes were used for discriminatory reasons must offer something more than a statement that nonprohibited factors were considered. There must be a showing of a nexus between legitimate factors and the juror who was struck. State v. Jagodinsky, 209 Wis. 2d 577, 563 N.W.2d 188 (Ct. App. 1997), 96-2927. A potential juror who stated he doubted the innocence of someone who would not testify and then said he could probably set that feeling aside should have been removed for cause under s. 805.08 (1). Failure to remove the juror forced the defendant to strike the potential juror, which violated the defendant’s right to due process. State v. Ferron, 214 Wis. 2d 268, 570 N.W.2d 883 (Ct. App. 1997), 96-3425. But see State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702. A party is prohibited from striking a potential juror based on a prohibited characteristic, even if other non-prohibited characteristics are also considered. State v. King, 215 Wis. 2d 295, 572 N.W.2d 530 (Ct. App. 1997), 97-1509. A defendant waives an objection to juror bias if no motion is made to the trial court for removal for cause. The ultimate decision whether to make the motion is for counsel and not the defendant to make. State v. Brunette, 220 Wis. 2d 431, 583 N.W.2d 174 (Ct. App. 1998), 97-2111. Failure to bring the incompleteness of an individual polling of the jury to the attention of the trial court constitutes waiver of any claim based on the deficiency. State v. Brunette, 220 Wis. 2d 431, 583 N.W.2d 174 (Ct. App. 1998), 97-2111. Failure to respond truthfully to voir dire questions is sufficient grounds to discharge a juror during trial. Specific proof of bias is not required. State v. Williams, 220 Wis. 2d 458, 583 N.W.2d 845 (Ct. App. 1998), 97-1276. A juror who unequivocally announced his belief that a witness would not lie, but also said he could remain impartial showed manifest bias that could not be obviated. Following denial of a motion for mistrial, the defendant’s agreement to proceed with 11 jurors did not waive the right to further address the mistrial issue. State v. Faucher, 220 Wis. 2d 689, 584 N.W.2d 157 (Ct. App. 1998), 97-2702. 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 responses 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. 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 s. 805.08 (1); a person falling within one of the descriptions there may not serve regardless of the ability to be impartial. Although s. 805.08 (1) refers to jurors who have expressed or formed an opinion, that situation more properly qualifies as subjective bias. 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 a 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, 124 Wis. 2d 681 (1985), Louis, 156 Wis. 2d 470 (1990), Gesch, 167 Wis. 2d 660 (1992), Messelt, 185 Wis. 2d 254 (1994), Ferron, 219 Wis. 2d 481 (1998), Delgado, 223 Wis. 2d 270 (1999), and Broomfield, 223 Wis. 2d 465 (1999), 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. Veteran jurors cannot be removed solely on the basis of having served as jurors in a similar case, but must be shown to have exhibited bias in the case they are called to hear. It was error for the trial court not to strike five potential jurors who had served on a prior case in which the same defense was used when the jurors expressed that they would not give serious consideration to the defense. State v. Kiernan, 227 Wis. 2d 736, 596 N.W.2d 760 (1999), 97-2449. A defendant is not entitled to a new trial when both the prosecution and defense are given an equal number of peremptory strikes, even if the number is less than provided for by statute. State v. Erickson, 227 Wis. 2d 758, 596 N.W.2d 749 (1999), 98-0273. There is no automatic disqualification of potential jurors who have been convicted of crimes. The erroneous dismissal of a prospective juror for cause does not constitute an additional peremptory challenge for the moving party; it is an error subject to harmless error analysis. State v. Mendoza, 227 Wis. 2d 838, 596 N.W.2d 736 (1999), 97-0952. Deprivation of the right to be present and to have counsel present at jury selection is subject to a harmless error analysis; there is a thin line between when reversal is warranted and when it is not. That a juror’s subjective bias is generally ascertained by that person’s responses at voir dire and that the interplay between potential jurors and a defendant is both immediate and continuous are factors that weigh against finding harmless error. State v. Harris, 229 Wis. 2d 832, 601 N.W.2d 682 (Ct. App. 1999), 98-1091. The defendant was not automatically entitled to a new trial when, in waiving the right to a jury trial, the trial court did not advise that a jury verdict must be unanimous. The appropriate remedy is through a postconviction motion that, as a threshold requirement, must contain an allegation that the defendant did not know or understand the rights at issue. State v. Grant, 230 Wis. 2d 90, 601 N.W.2d 8 (Ct. App. 1999), 98-2206. A prospective juror who is the brother-in-law of a state witness is a relative by marriage to the third degree under Gesch, 167 Wis. 2d 660 (1992), 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. The right to a jury trial guaranteed by this section and section 5 includes the right to a unanimous verdict with respect to the ultimate issue of guilt or innocence. State v. Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, 98-0642. 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. A challenge under Batson, 476 U.S. 79 (1986), that a peremptory strike was solely because of race does not require a post-verdict evidentiary hearing and must be decided based on what the prosecutor believed at the time the strike was made. A defendant must show that the prosecutor intentionally misrepresented the facts that were relied on or that the prosecutor had been told those facts but knew they were erroneous. State v. Gregory, 2001 WI App 107, 244 Wis. 2d 65, 630 N.W.2d 711, 00-0961. The trial court’s failure to remove a potential juror who was objectively biased, forcing the defendant to strike the potential juror with one of the peremptory strikes guaranteed under s. 972.03, did not require a new trial when the defendant received a fair trial. The harmless error test was applicable. Ramos, 211 Wis. 2d 12 (1997), is overruled. State v. Lindell, 2001 WI 108, 245 Wis. 2d 689, 629 N.W.2d 223, 99-2704. Excusing and deferring prospective jurors under s. 756.03 is one component of a circuit judge’s obligation to administer the jury system. The judge may delegate the authority to the clerk of circuit court under s. 756.03 (3). The task need not be performed by a judge in court or with the prospective juror present in person and may take place in advance of a particular trial. A defendant’s presence cannot be required when the judge or clerk is acting in an administrative capacity under s. 756.03. State v. Gribble, 2001 WI App 227, 248 Wis. 2d 409, 636 N.W.2d 488, 00-1821. Although it was error for the court to interview potential jurors outside of the presence of the prosecution, defendant, and defense counsel, the error was harmless when there was no showing that it contributed to the defendant’s conviction. State v. Tulley, 2001 WI App 236, 248 Wis. 2d 505, 635 N.W.2d 807, 00-3084. When the jury returned a verdict finding the defendant guilty of both a greater and a lesser included offense, although the jury had been instructed that it could only find one or the other, it was not error for the court to enter judgment on the greater offense after polling the jury to confirm the result. State v. Hughes, 2001 WI App 239, 248 Wis. 2d 133, 635 N.W.2d 661, 00-3176. Absent waiver, a trial court’s communication with a deliberating jury in the absence of the defendant and defense counsel violates the right to be present at trial and to have counsel at every stage that the defendant may need aid with legal problems. A violation is subject to harmless error analysis. State v. Koller, 2001 WI App 253, 248 Wis. 2d 259, 635 N.W.2d 838, 99-3084. To prove a valid jury trial waiver, the circuit court must conduct a colloquy designed to ensure that the defendant: 1) made a deliberate choice, absent threats or promises, to proceed without a jury trial; 2) was aware of the nature of a jury trial, such that it consists of a panel of 12 people who must agree on all elements of the crime charged; 3) was aware of the nature of a court trial, such that the judge will decide the defendant’s guilt; and 4) had enough time to discuss the decision with counsel. State v. Anderson, 2002 WI 7, 249 Wis. 2d 586, 638 N.W.2d 301, 00-1563. If a trial court fails to conduct a colloquy with a defendant regarding the waiver of the right to a jury trial, a reviewing court may not find, based on the record, that there was a valid waiver. As a remedy, the circuit court must hold an evidentiary hearing on whether the waiver was knowing, intelligent, and voluntary. If the state is unable to show by clear and convincing evidence that the defendant knowingly, intelligently, and voluntarily waived the right, the defendant is entitled to a new trial. State v. Anderson, 2002 WI 7, 249 Wis. 2d 586, 638 N.W.2d 301, 00-1563. A jury instruction directing the jury to accept a judicially-noticed fact as true when applied to an element of a criminal offense eliminates the jury’s opportunity to reach an independent, beyond-a-reasonable-doubt decision on that element and is constitutional error, although it is subject to harmless error analysis. State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189, 00-0541. Whether a defendant waived the right to have a jury determine all the elements of a crime or only some of them and whether a defendant gave up a jury trial in lieu of a determination by the circuit court or stipulated to the elements, the waiver analysis is the same. Any waiver must be made personally on the record by the defendant. State v. Hauk, 2002 WI App 226, 257 Wis. 2d 579, 652 N.W.2d 393, 01-1668. If a court withholds any juror information in open court, it must both: 1) find that the jury needs protection; and 2) take reasonable precautions to avoid prejudicing the defendant. When jurors’ names are withheld, the court, at a minimum, must make a precautionary statement to the jury that the use of numbers instead of names should in no way be interpreted as a reflection of the defendant’s guilt or innocence. State v. Tucker, 2003 WI 12, 259 Wis. 2d 484, 657 N.W.2d 374, 00-3354. An ability to understand the English language is necessary in order to satisfy the statutory requirements of ss. 756.02 and 756.04. If a juror cannot meet the statutory requirements, the entire trial process may be nothing more than an exercise in futility. A defendant was prejudiced when a juror was allowed to serve as a juror who was not qualified under the statutes and did not have a sufficient understanding of English so that the juror could meaningfully participate in the trial process. State v. Carlson, 2003 WI 40, 261 Wis. 2d 97, 661 N.W.2d 51, 01-1136. While a limited class of errors is deemed structural, requiring automatic reversal regardless of any effect on the outcome, most errors, including constitutional ones, are reviewed for harmlessness. Harmless error analysis applies to an erroneous jury instruction that operates as a mandatory conclusive presumption on an element of a penalty enhancer. State v. Gordon, 2003 WI 69, 262 Wis. 2d 380, 663 N.W.2d 765, 01-1679. An accused’s right to a unanimous verdict is not violated every time a judge instructs a jury on a statute that presents multiple modes of commission and does not select one among the many modes of commission. An argument that an instruction leads to a constitutionally infirm verdict must address the legislature’s intent in enacting the statute and, if multiple modes of commission are found, whether the choice provided is constitutionally unacceptable. State v. Norman, 2003 WI 72, 262 Wis. 2d 506, 664 N.W.2d 97, 01-3303. A prosecutor’s knowledge that a challenged juror possessed the same name as known criminals in the area, the location of a venire person’s residence when a residential location has some relationship to the facts of the case, failure to disclose during voir dire any police contacts at his or her residence when research revealed such contacts, and employment, or unemployment status, all may be race-neutral explanations for a peremptory strike. Individual follow-up questions on voir dire are not required in order to strike a potential juror. State v. Lamon, 2003 WI 78, 262 Wis. 2d 747, 664 N.W.2d 607, 00-3403. Whether a prosecutor’s conduct during closing argument affects the fairness of a trial is determined by viewing the statements in the context of the total trial. A line of demarcation is drawn where the prosecutor goes beyond reasoning from the evidence to a conclusion of guilt and suggests the jury arrive at a verdict by considering factors other than the evidence. Argument on matters not in evidence is improper. State v. Smith, 2003 WI App 234, 268 Wis. 2d 138, 671 N.W.2d 854, 02-3404. There is no constitutional right to waive a jury and be tried by a judge. A prosecutor’s decision to withhold consent to a defendant’s requested waiver of the defendant’s right to a jury trial, as required by statute, is not reviewable. A trial court need not justify its refusal to approve the waiver. State v. Burks, 2004 WI App 14, 268 Wis. 2d 747, 674 N.W.2d 640, 03-0472. Reinstruction that presents for the first time choices for lesser included offenses not presented in the initial instructions, if proper at all, would be a rare event, only done in exceptional circumstances. State v. Thurmond, 2004 WI App 49, 270 Wis. 2d 477, 677 N.W.2d 655, 03-0191. When counsel fails to object under Batson, 476 U.S. 79 (1986), to peremptory strikes on the grounds they were improperly based on race or gender, the defendant claiming harm must establish that had trial counsel made the Batson objection there is a reasonable probability that it would have been sustained and the trial court would have taken the appropriate curative action. Discriminatory intent is a question of historical fact. The essential inquiry is whether the prosecutor had viable neutral explanations for the peremptory challenges. State v. Taylor, 2004 WI App 81, 272 Wis. 2d 642, 679 N.W.2d 893, 03-1509. The verdict of a jury must be arrived at freely and fairly. The validity of a unanimous verdict is not dependent on what the jurors agree to in the jury room, but rather upon what is unanimously reported in open court. The right to poll the jury is an absolute right, if not waived, and its denial requires reversal. Defendants may waive the right by failing to ask for a poll in the first instance, or by failing to ask for additional polling when given the opportunity to request it. State v. Raye, 2005 WI 68, 281 Wis. 2d 339, 697 N.W.2d 407, 04-0770. A court has two options if a juror dissents during jury polling or assents merely an accommodation against the juror’s conscience: return the jury for continued deliberations or determine that further deliberations would be fruitless and grant a mistrial. If a juror gives an ambiguous or ambivalent assent, the court may question the juror further. When initially asked by the court, “Is this your verdict?” and the juror first replied, “Can I ask a question?” and then with an unambiguous “no,” the court could only have granted a mistrial or returned the jury for further deliberations. State v. Raye, 2005 WI 68, 281 Wis. 2d 339, 697 N.W.2d 407, 04-0770. An administrative assistant employed by a 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 a district attorney’s office. State v. Smith, 2006 WI 74, 291 Wis. 2d 569, 716 N.W.2d 482, 04-2035. A judge’s interruptions of a juror’s answers to questions regarding the juror’s agreement with the verdict and the judge’s insistence that the form showed a unanimous verdict strongly suggested that the juror may have felt pressure and intimidation, and that the juror may have misunderstood the verdict reached in the jury room. Although the juror expressed agreement with subsequent statements, because the juror was cut off when attempting to answer whether the juror found the defendant guilty or not guilty, and never actually gave an answer, the juror could not be said to have found the defendant guilty on count one. Consequently, the verdict was not unanimous. State v. Dukes, 2007 WI App 175, 303 Wis. 2d 208, 736 N.W.2d 515, 06-2127. The trial court has an affirmative, sua sponte duty to inquire into the necessity for a defendant to wear a visible electronic security device during trial once the court becomes aware of the situation. A trial court maintains the discretion to decide whether a defendant should be restrained during a trial as long as the reasons justifying the restraints have been set forth in the record. It is an erroneous exercise of discretion to rely primarily upon law enforcement department procedures instead of considering the risk a particular defendant poses for violence or escape. State v. Champlain, 2008 WI App 5, 307 Wis. 2d 232, 744 N.W.2d 889, 06-2435. Whenever a defendant wears a restraint in the presence of jurors trying the case, the court should instruct that the restraint is not to be considered in assessing the proof and determining guilt. Counsel’s failure to object to the device constituted ineffective assistance of counsel. State v. Champlain, 2008 WI App 5, 307 Wis. 2d 232, 744 N.W.2d 889, 06-2435. A trial court judge, rather than a jury, is allowed to determine the applicability of a defendant’s prior conviction for sentence enhancement purposes when the necessary information concerning the prior conviction can be readily determined from an existing judicial record. State v. LaCount, 2008 WI 59, 310 Wis. 2d 85, 750 N.W.2d 780, 06-0672. While the prosecutor may strike hard blows during closing argument, the prosecutor’s duty is to refrain from using improper methods. Prosecutors may not ask jurors to draw inferences that they know or should know are not true. State v. Weiss, 2008 WI App 72, 312 Wis. 2d 382, 752 N.W.2d 372, 07-0778. A demonstration of the specific bias of a juror is not needed to remove a juror from deliberations when there are 12 other jurors whose impartiality the trial court does not have a concern about. The trial court properly exercised its discretion when it designated a juror as an alternate based on its concern regarding potential impartiality. The trial court has a duty to ensure that the impaneled jury is an impartial one, one that is free of bias or prejudice. State v. Gonzalez, 2008 WI App 142, 314 Wis. 2d 129, 758 N.W.2d 153, 07-2160. A circuit court need not consider the necessity of a restraint that is not visible to the jury and has no sua sponte duty to inquire into the necessity of hidden restraints. Limiting a court’s sua sponte duty to visible restraints is consistent with the rationale for the general rule against restraining defendants at trial. The no-restraint rule is designed to prevent the jury from forming an opinion about the defendant’s guilt based solely on the fact that the defendant is restrained. There is little risk of prejudice if the jury cannot see the restraint. State v. Miller, 2011 WI App 34, 331 Wis. 2d 732, 797 N.W.2d 528, 09-3175. When the court properly instructed the jury, the failure to provide the jury with a not guilty form for one of the five charged offenses did not constitute structural error, but rather was trial error subject to a harmless error analysis. State v. Hansbrough, 2011 WI App 79, 334 Wis. 2d 237, 799 N.W.2d 887, 10-0369. Jurors are presumed impartial, and the defendant has the burden of rebutting this presumption and proving bias. That a juror has been a victim of sexual assault does not make the juror per se biased against the defendant in a sexual assault case. State v. Funk, 2011 WI 62, 335 Wis. 2d 369, 799 N.W.2d 421, 08-2765. The fundamental inquiry is the same regarding a sleeping juror and a hearing-impaired juror: are the defendant’s constitutional rights to an impartial jury and due process violated when the juror does not hear particular testimony? When it is feasible to determine what testimony the juror did not hear, the proper inquiry is whether, given the length of time the juror did not hear testimony and the significance of the testimony not heard in the context of the trial as a whole, the defendant was prejudiced to the extent the defendant did not receive a fair trial—that is, a trial comporting with the constitutional guarantees of an impartial jury and due process. State v. Kettner, 2011 WI App 142, 337 Wis. 2d 461, 805 N.W.2d 132, 11-0085. Any party or counsel who notices that a juror has fallen asleep at trial must bring the issue to the trial court’s attention during trial as soon as practicable after the person notices the sleeping juror so that the problem can immediately be resolved. Because the defendant waited until after trial to bring the issue to the trial court’s attention, it was impossible for the trial court to determine the extent of the problem, if any; thus, the defendant forfeited the defendant’s right to appeal the trial court’s refusal to conduct a post-trial hearing on that issue. State v. Saunders, 2011 WI App 156, 338 Wis. 2d 160, 807 N.W.2d 679, 10-2393. The defendant was not entitled to a new trial even though the defendant 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.
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wisconsinconstitution
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section
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