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.

Affirmed. 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 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.

Hansford, 219 Wis. 2d 226 (1998), applies retroactively only to those cases in which the issue of a six-person jury was raised before trial. State v. Zivcic, 229 Wis. 2d 119, 598 N.W.2d 565 (Ct. App. 1999), 98-0909.

Stipulating to an element of a crime did not deny the constitutional right to a jury trial when the jury was instructed on the element and the court did not resolve the issue on its own. State v. Benoit, 229 Wis. 2d 630, 600 N.W.2d 193 (Ct. App. 1999), 98-1531. See also Walworth County Department of Health & Human Services v. Andrea L.O., 2008 WI 46, 309 Wis. 2d 161, 749 N.W.2d 168, 07-0008.

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.

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.

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.

Inconvenience and inability to work during regular working hours cannot result in bias sufficient to strike a juror for cause. State v. Guzman, 2001 WI App 54, 241 Wis. 2d 310, 624 N.W.2d 717, 99-2249.

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.