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. A stipulation is a matter of convenience and litigation strategy entered into to avoid the time, expense, and potential prejudice of introducing unnecessary and possibly prejudicial evidence. It is a far different thing for a defendant to stipulate to a fact than it is to waive the constitutional right to a jury determination of that fact. However, harmless error analysis applies when a court erroneously takes judicial notice of a fact that should have been submitted to the jury. State v. Smith, 2012 WI 91, 342 Wis. 2d 710, 817 N.W.2d 410, 10-1192.