2008AP2765 State v. Funk

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Criminal Procedure
Juror bias

Even though a juror had been sexually assaulted and did not disclose it during voir dire, it was error for the district court to find her biased and order a new trial.

“[J]urors are presumed impartial, and Funk had the burden of rebutting this presumption and proving Tanya G.’s bias in this case. Louis, 156 Wis. 2d at 478. We agree with Judge Lundsten that the questions asked of Tanya G. were ‘so inartfully posed that Tanya G.’s non-answers cannot reasonably be used to support a finding of objective bias.’ Funk, No. 2008AP2765-CR, unpublished order, at 11. As such, Funk has not met his burden because there is no proof that a reasonable juror in Tanya G.’s position could not be impartial. Without such proof, the only basis on which we could conclude that she was objectively biased is to conclude she was per se biased against Funk. Delgado forbids such a per se bias rule based solely on having been the victim of sexual assault. Delgado, 223 Wis. 2d at 285. Consequently, we hold that Funk has not met his burden to prove that Tanya G. was objectively biased. Stated otherwise, the facts necessary to ground a circuit court’s reasonable legal conclusion that Tanya G. was objectively biased were not developed in this case. Therefore, the circuit court erred as a matter of law in concluding that a reasonable person in Tanya G.’s position could not be impartial.”

Reversed.

2008AP2765 State v. Funk

Roggensack, J.

Attorneys: For Appellant: Moeller, Marguerite M., Madison; Southworth, Scott Harold, Mauston; For Respondent: Tjader, Michele Anne, Madison

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