Wisconsin Supreme Court divided on correct test to apply in juror bias
Criminal defense attorneys and prosecutors that face objective and
subjective juror bias issues must contend with State v.
Funk to make the case.
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
July 21, 2011
– A jury convicted David Funk for sexually assaulting a child.
After trial, he learned one of the jurors was sexually assaulted as a
child, and moved for a new trial. But the Wisconsin Supreme Court, in a
4-3 decision, ruled that Funk won’t get one.
The record did not support a conclusion that one juror was objectively
and subjectively biased, the majority ruled in State
v. Funk, 2011 WI 62 (July 8, 2011), which reversed the appeals
court. Thus, Funk’s constitutional right to an impartial jury was
not violated, the majority ruled.
But Justice David Prosser, who joined Chief Justice Shirley Abrahamson and Justice Anne Walsh Bradley in
dissent, stated simply: “This case presents a classic example of
Questioning at voir dire
One juror (Tanya G.) had been sexually assaulted by her bus driver at
the age of 10. Her sisters were also sexually assaulted by the bus
driver around the same age. At the age of 17, she was sexually assaulted
and testified in a preliminary hearing against the offender. Funk was
charged with sexually assaulting a 10-year old girl, his
Tanya G. did not disclose these occurrences during voir dire, although certain questions led other
jurors to disclose that they, or someone they knew, had previously been
sexually assaulted. Neither side asked directly whether any juror was a
victim of sexual assault.
But the jurors were asked if they ever testified in a criminal
proceeding. To this, Tanya G. remained silent. At a post-conviction
hearing, Tanya G. consistently denied that her prior sexual assault
experiences created a bias against Funk. But no party asked why Tanya G.
did not respond when asked if any juror had ever testified in a court
Incorrect response to a material question
In determining whether Tanya G. was biased against Funk, the supreme
court majority employed the two-step test developed in State v.
Wyss, 124 Wis. 2d 681, 370 N.W.2d 745 (1985),
noting that a litigant must prove, “that the juror incorrectly or
incompletely responded to a material question on voir dire” and if so, “that it
is more probable than not that under the facts and circumstances [of
the] case, the juror was biased against the moving party.”
The circuit court concluded that Tanya G. did not respond to a material
question at voir dire – whether she had previously
testified at a criminal proceeding – implying an incorrect
In an opinion by Justice Patience Roggensack, the supreme court
majority ruled that Tanya G. did indeed respond incorrectly (by
remaining silent) to a material question, but the record was
insufficient to conclude that she was subjectively or objectively biased
Tanya G’s incorrect response was material, the court explained,
because a correct answer “may have led to further questioning that
would have provided a valid basis to challenge for cause.” The majority then examined
whether Tanya G. was subjectively or objectively biased.
Both the circuit and appeals courts concluded that Tanya G. was
subjectively biased against Funk, which violated his right to an
impartial jury. But the supreme court majority reversed those
conclusions, countering the trial court’s subjective bias
Under State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), the majority explained,
“[t]he inquiry into whether a juror is subjectively biased is
focused on the juror’s specific state of mind,” and a juror
“may reveal his or her subjective bias through words, namely his
or her explicit assertion of bias or partiality, through demeanor, or
through a combination of the two.”
The circuit court found it “exceptionally difficult” to
conclude that someone in Tanya G.’s position
could not be subjectively biased, the majority noted, but that was the
wrong basis on which to make that conclusion.
“Assessing what someone in Tanya G.’s position
could or could not have done is not the correct standard on which to
decide whether a juror is subjectively biased,” Justice Roggensack
The majority noted that subjective bias “must be based on factual
findings that show the specific juror’s state of mind,” that
is, through words or demeanor, and the circuit court’s conclusion
was not supported by facts on the record.
The majority explained that Tanya G. consistently asserted that her
prior experiences as a victim of sexual assault did not interfere with
her ability to be impartial towards Funk.
The majority also noted that the circuit court did not explain how
Tanya G.’s demeanor demonstrated subjective
bias, and no one asked her (at the post-conviction hearing) why she
remained silent when asked if ever a witness in a criminal proceeding at
The supreme court majority also rejected conclusions by the circuit and
appeals courts that Tanya G. was objectively biased, which led the
leading dissent by Justice Bradley.
The majority explained that under Faucher, objective bias
“exists when a reasonable person in the juror’s position
could not be impartial.”
It then examined the circuit court’s conclusions under a
three-factor test first adopted by the Wisconsin Supreme Court in
Wyss. Under the Wyss test, courts consider the
(1) Did the question asked sufficiently inquire into the subject matter
to be disclosed by the juror; (2) were the responses of other jurors to
the same question sufficient to put a reasonable person on notice that
an answer was required; (3) did the juror become aware of his or her
false or misleading answers at anytime during the trial and fail to
notify the trial court?
First, the majority concluded that since no party asked directly
whether any juror was a victim of sexual assault, there was not a
sufficient inquiry into the subject matter to be disclosed. Here, the
majority explained, Tanya G.’s
“position” cannot be determined. Thus, it would be
impossible to weigh whether a reasonable person could be impartial if in
And nobody asked Tanya G. why, at the post-conviction hearing, she
remained silent when asked if she ever testified at a criminal
proceeding. Again, the majority explained, absent an answer to the
question, Tanya G.’s “position” cannot be
ascertained from the record.
“In other words, we are unable to place a ‘reasonable
person’ in Tanya G.’s
‘position’ because we do not know the relevant factors that
relate to her ‘position,’” Justice Roggensack
Considering the second factor of Wyss, the majority concluded
that other juror responses to the question about whether anyone had
previously testified in a criminal proceeding “would have put a
reasonable person in Tanya G.’s position on
notice that she should have disclosed her prior testimony.” But neither party asked why
she did not respond, and “[s]imply failing to answer a question
during voir dire is insufficient to prove juror bias.”
Finally, the majority concluded that nothing in the record indicated
that Tanya G. became aware that her failure to answer was false or
misleading any time during Funk’s trial.
Thus, the majority concluded that “the facts necessary to ground
a circuit court’s reasonable legal conclusion that Tanya G. was
objectively biased were not developed in this case.”
The majority also noted that State v. Delgado, 223 Wis. 2d
270, 558 N.W.2d 1 (1999), a similar case, forbids a
court from finding per se bias based solely on the victim status of the
Justice Ann Walsh Bradley (joined by Chief Justice Abrahamson), in a dissenting opinion, argued
that the majority applied the wrong test when it applied Wyss.
Under Faucher, Justice Bradley explained, an appellate court
determining objective bias must ask: “Is this a conclusion that a
reasonable judge could reach?”
“When applying this test, we give deference to the decision of
the circuit court because it has special competence in making objective
bias determinations,” Justice Bradley explained.
Justice Bradley asserted that the three-factor Wyss test
applied by the majority “was discarded over ten years ago”
when Faucher was decided, and application of it “leaves
“Not only did Faucher discard the Wyss test, it
also indicated that the three-factor test was never intended to apply to
an analysis of objective bias at all,” Justice Bradley wrote.
“By not adhering to Faucher and its test for determining
objective bias, the majority opinion will leave the bench and bar
wondering what is the test for determining objective bias and what
deference is due to the circuit court’s determination.”
In part II of her dissent, Justice Bradley applied the Faucher
test and concluded that the circuit court’s determination that
Tanya G. was objectively biased was correct. Based on all the
circumstances, “I determine that the circuit court’s
conclusion is one that a reasonable judge could reach,” Justice
Justice David Prosser joined part II of Bradley’s dissent,
stating simply that “[t]his case presents a classic example of
objective bias.” Chief Justice Abrahamson wrote a separate opinion, supporting
the circuit court’s conclusion that Tanya G. was subjectively
Assistant Marguerite M. Moeller represented the state. Michele Anne
Tjader, of Tjader Law Inc., Madison, represented David Funk.