State v. Ferron

579 N.W.2d 654, 219 Wis. 2d 481, 1998 Wisc. LEXIS 94

• Court: Wisconsin Supreme Court
• Decided: June 26, 1998
• Docket: 96-3425-CR
• Status: Published

Opinions

JON P. WILCOX, J.

¶ 1. This is a review of a published decision of the court of appeals, State v. Ferron, 214 Wis. 2d 268, 570 N.W.2d 883 (Ct. App. 1997), which reversed a judgment of the Circuit Court for Brown County, Peter J. Naze, Judge. The circuit court denied the defendant Vance Ferron's (Ferron) request to strike a juror for cause after the challenged juror said he "would certainly try" and "probably" could set aside his opinion that a criminally accused defendant who was truly innocent would take the stand and testify on his or her own behalf.

¶ 2. There are three issues before us on review. First, we consider the standard of review which appellate courts should employ upon review of a circuit court determination that a prospective juror can be impartial. Second, we apply that standard to the facts of this case to determine whether the circuit court committed an error of law by failing to strike the challenged juror for cause. Finally, we reply to the State's invitation to overrule our recent decision in State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997).

¶- 3. Contrary to the court of appeals' decision, we hold that the appellate courts should overturn a circuit court's determination that a prospective juror can be impartial only where the juror's bias is manifest. A juror's bias can appropriately be labeled as "manifest" whenever: (1) the record does not support a finding that the prospective juror is a reasonable person who is sincerely willing to put aside an opinion or prior knowledge; or (2) the record does not support a finding that a reasonable person in the juror's position could set aside the opinion or prior knowledge.

¶ 4. Applying this standard to the facts of this case, we conclude that the record does not support a finding that the prospective juror at issue was a reasonable person who was sincerely willing to put aside his opinion or bias. Accordingly, we hold that Ferron was deprived of his statutorily defined right to due process of law when he was compelled to use one of his peremptory challenges, as provided by Wis. Stat. § 972.03 (1993-94),¹ to correct the circuit court's error.

¶ 5. Because we discern no sound reason either in law or public policy to do so, we also decline the State's invitation to overrule our decision in Ramos. Therefore, we modify the decision of the court of appeals and, as modified, we affirm that decision.

¶ 6. The relevant facts are not in dispute. On November 21,1995, the State of Wisconsin (State) filed a criminal complaint charging Ferron and a codefendant, Timothy Nelson (Nelson), with party to the crime of burglary, in violation of Wis. Stat. §§ 943.10(l)(a) and 939.05. The case was later set for jury trial, where Ferron and Nelson were to be tried as codefendants. On March 26,1996, the voir dire examination began.

¶ 7. The circuit court posed the first questions to the jury panel. Following these preliminary queries, Christopher Froelich (Froelich), counsel for Ferron, asked a series of questions to determine whether the prospective jurors could serve impartially. Attorney Froelich's questions were followed by the remarks and inquiries of codefendant Nelson's counsel, William Fitzgerald (Fitzgerald). The voir dire examination by Fitzgerald produced the following exchange between the court, Fitzgerald, and prospective jurors James Metzler (Metzler) and M.C. Clark (Clark):²

MR. FITZGERALD: .. .I'm going to argue that the State hasn't provided proof beyond a reasonable doubt that Mr. Nelson is guilty of anything.

Now, keeping that in mind, I may instruct Mr. Nelson that I don't think that he has to take the witness stand. And what I wonder is would any of you think to yourself, well, you're saying the State's case is lousy, but you didn't even have your guy testify so what does that make your case? Yes, Mr. Metzler.

JUROR JAMES METZLER: Well, if your client is innocent, why wouldn't he take the stand?

MR. FITZGERALD: Becauses [sic] the constitution doesn't say he has to.

JUROR JAMES METZLER: Well, if he's innocent, why wouldn't he go up there and tell us he's innocent?

MR. FITZGERALD: Well, without getting into a long exchange about the constitutional rights that we all have, I can only tell you that the Court will instruct you that a defendant has the absolute right to decline to talk to the jury, to talk to the police, to talk to people investigating the crime, and that it might be my advice to him he need not take the stand. And is your questioning an indication that you would hold that against him?

JUROR JAMES METZLER: I think I may.

MR. FITZGERALD: You think you may.

THE COURT: Ladies and gentlemen, here's the instruction. A defendant in a criminal case has the absolute constitutional right not to testify. The defendant's decision not to testify must not be considered by you in any way and must not influence your verdict in any manner. Is there anyone here who cannot follow or would not follow that instruction?

JUROR M.C. CLARK: I would wonder, like he said, why, you know, if he had nothing to hide?

THE COURT: I understand.

JUROR M.C. CLARK: Why he would do that? ...

THE COURT: All right. Let's get back to the question of the defendant not testifying. I'll read it again. A defendant in a criminal case has the absolute constitutional right not to testify. A defendant's decision not to testify must not be considered by you in any way and must not influence your verdict in any manner.

And I think Mr. Metzler's reaction is a common reaction. You can't deny that but that's not the law. That may be the reaction you come into the courtroom [with], but as I said before, we have to set aside those personal beliefs or opinions that we have that conflict with the law that I'm going to give you. The question is, is there any one of you who cannot follow the law that I've just read to you?

JUROR JAMES METZLER: Well, I would have a hard time believing that he was innocent if he didn't take the stand and tell me he wasn't [sic] innocent. That's just my own belief.

THE COURT: Well, I understand that, sir. And I said you're certainly entitled to that belief, and you're not the only person with that belief. But the United States Constitution and the Constitution of the State of Wisconsin give every person the right not to testify and the right that [sic] cannot be held against them if they choose not to do so. That's a right that you have, that I have, everybody has, including the defendants. So we have to honor that right.

The question is your opinion so strong or your belief so strong you're not willing to set those aside for the purpose of this case and follow the law that I've given you?

JUROR JAMES METZLER: Well, I would certainly try to set it aside.

THE COURT: Miss Clark?

JUROR M.C. CLARK: I would try to set it aside, but I'm not sure I could completely set that aside if that would be in the back of my mind that they didn't take the stand. That would be kind of back there knowing that, you know—

THE COURT: Well, obviously, if you're in there and the person hasn't taken the stand, we can't make you draw a blank.

JUROR M.C. CLARK: Right.

THE COURT: The thing you have to do is not use that against the defendant. You have to decide the case on the evidence as it comes out in the courtroom, not things that didn't happen. That's the point. Can you do did [sic] that?

JUROR M.C. CLARK: I'm not so sure I could.

THE COURT: Mr. Metzler, can you?

JUROR JAMES METZLER: Probably.

THE COURT: You don't think you could, Miss Clark?

JUROR M.C. CLARK: I certainly would try, but it would be, you know, I guess still it would always be there. I would try.

THE COURT: Counsel?

MR. FITZGERALD: Well, I guess I feel we're getting low on jurors, but I would move to relieve Mr. Metzler and Miss Clark.

THE COURT: I'm not removing Mr. Metzler. He said he could do this. I'm concerned about Miss Clark.

¶ 8. The circuit court continued to question Clark to determine if she could set aside her feelings. When Clark ultimately stated that she "would have a hard time that they didn't testify," the court excused her and proceeded with the voir dire examination accordingly. Following the examination, Ferron used one of his two peremptory strikes to remove Metzler from the jury panel. See Wis. Stat. § 972.03 (limiting Ferron's challenges to 2 in this case).

¶ 9. On March 27, 1996, Ferron was convicted of party to the crime of burglary. On appeal, Ferron argued that the circuit court committed reversible error when it refused to strike Metzler for cause, because Metzler exhibited a bias against defendants who decline to testify. According to Ferron, the circuit court's action compelled him to exercise one of his statutorily granted peremptory challenges to correct the court's error, thereby depriving him of his right to due process under state law. The State asserted that Metzler did not exhibit a manifest bias, and that the circuit court's determination should therefore be upheld.

¶ 10. The court of appeals held that the circuit court erroneously exercised its discretion by failing to strike Metzler for cause because his answers revealed that he was not indifferent as required by Wis. Stat. § 805.08(1).³ See Ferron, 214 Wis. 2d at 276. The court of appeals also held that the circuit court failed to follow the directive in Nyberg v. State, 75 Wis. 2d 400, 249 N.W.2d 524 (1977), that a motion to strike a juror for cause must be granted whenever the court reasonably suspects that circumstances outside the evidence will influence the juror. See id. Because these errors compelled Ferron to use one of his peremptory strikes to correct the circuit court's error, the court of appeals held that Ferron's right to due process had been violated, reversed the circuit court's judgment, and remanded for a new trial in accordance with Ramos, 211 Wis. 2d 12.

¶ 11. On December 16, 1997, this court granted the State's petition for review. With substantial modifications to its reasoning, we now affirm the court of appeals' decision.

I.

¶ 12. We first consider the standard of review which appellate courts should employ upon review of a circuit court determination that a prospective juror can be impartial. The parties agree that "[t]he question of whether a prospective juror is biased and should be dismissed from the jury panel for cause is a matter of the circuit court's discretion." Ramos, 211 Wis. 2d at 15 (quoting State v. Gesch, 167 Wis. 2d 660, 666, 482 N.W.2d 99 (1992)). They disagree, however, as to the appropriate standard to be employed upon review of the circuit court's discretionary decision. A determination of the appropriate standard of review is a question of law. Therefore we review this question independently and without deference to the decision of the court of appeals. See Wyss v. Albee, 193 Wis. 2d 101, 109, 532 N.W.2d 444 (1995).

¶ 13. As mentioned, the court of appeals concluded that the circuit court's failure to strike Metzler for cause constituted reversible error for two reasons. First, the court concluded that "[t]he trial court erroneously exercised its discretion by failing to follow the directive in § 805.08(1), Stats., to excuse a juror who is not indifferent. . . ." Ferron, 214 Wis. 2d at 276. Although the parties disagree as to the court of appeals' ultimate conclusion on this matter, they do not disagree over the court of appeals' use of Wis. Stat. § 805.08(1) to reach that result.

¶ 14. The court of appeals also held that the circuit court's failure to follow "the Nyberg requirement that a motion to remove for cause be granted when the court reasonably suspects that circumstances outside the evidence will influence the juror," id., constituted reversible error. It is the court of appeals' reliance upon Nyberg, 75 Wis. 2d 400, which serves as the primary catalyst to the parties' arguments before this court.

¶ 15. According to the State, the "reasonable suspicion" language set forth in Nyberg, 75 Wis. 2d at 404, is dictum. The appropriate standard of review is set forth in State v. Louis, 156 Wis. 2d 470, 457 N.W.2d 484 (1990), which indicates that an appellate court may overturn the circuit court's denial of such motions only when the juror's bias is "manifest."

¶ 16. Ferron disagrees, and concludes that appellate courts must undertake a two-step analysis upon review of determinations of juror impartiality. According to Ferron, the party seeking to overturn the circuit court's determination must establish: (1) that the challenged juror exhibited a manifest bias in accordance with Louis', and (2) that the record evidences grounds to reasonably suspect that the juror could not set the bias aside in accordance with Nyberg. Ferron contends that this case involves only the second issue: whether Metzler could set aside his admitted bias against defendants who choose not to testify. Therefore, Ferron asserts that the court of appeals applied the proper standard of review — one of "reasonable suspicion."

¶ 17. For the reasons set forth below, we agree with the State and therefore reject Ferron's interpretation of the case law. We begin by examining the "reasonable suspicion" language upon which Ferron relies.

A.

¶ 18. In Nyberg, the defendant argued on appeal from his conviction of delivery of a controlled substance that the circuit court erroneously exercised its discretion by not striking three jurors for cause because of bias shown at the voir dire examination. See Nyberg, 75 Wis. 2d at 402-403. The court noted first that to require dismissal of a prospective juror for cause, there must be more than a suggestion of partiality — the appropriate question for a panel member is whether the prospective juror believes that he or she can decide the case fairly on the evidence. See id. at 404 (citations omitted).

¶ 19. The Nyberg court went on to state that "[a] trial court must honor challenges for cause whenever it may reasonably suspect that circumstances outside the evidence may create bias or appearance of bias." Id. at 404 (emphasis added) (citing Nolan v. Venus Motors, Inc., 64 Wis. 2d 215, 223, 218 N.W.2d 507 (1974)). Because the "[p]anel members were dismissed. . .because they believed they could not decide the case fairly on the evidence," the Nyberg court upheld the circuit court's discretionary act. See id. at 405.

¶ 20. The "reasonable suspicion" language upon which Ferron relies finds its roots in Kanzenbach v. S.C. Johnson & Son, Inc., 273 Wis. 621, 79 N.W.2d 249 (1956).⁴ In Kanzenbach, we stated:

The trial judge has a wide discretion in determining the qualifications of the jurors. He was satisfied that these jurors were competent and fair. We cannot hold that in these instances his rulings abused a sound discretion nor does the verdict lead us to a suspicion that prejudice towards the defendants on the part of any juror actually existed. However, because it preserves the appearance as well as the reality of an impartial trial, it is a good rule for the trial judge to honor challenges for cause whenever he may reasonably suspect that circumstances outside the evidence may create bias or an appearance of bias on the part of the challenged juror.

Id. at 626-27 (emphasis added).

¶ 21. Thus, a review of our case law reveals that the Nyberg language upon which Ferron relies underwent the following metamorphosis: it began as "a good rule" for circuit court judges to follow, see id., evolved into a principle which "should" be followed, see Nolan, 64 Wis. 2d at 223, and ultimately took the shape of an affirmative and mandatory command to circuit court judges in this state. See Nyberg, 75 Wis. 2d at 404.⁵

¶ 22. Today we send the "reasonable suspicion" language back to its place of origin. In so doing, we are mindful that this is not the first time that the Nyberg language has been employed by litigants seeking to overturn determinations of juror impartiality. See, e.g., Booker v. Israel, 566 F. Supp. 868, 869 (E.D. Wis. 1983); State v. Gesch, 163 Wis. 2d 993, 996-97, 473 N.W.2d 152 (Ct. App. 1991), rev'd 167 Wis. 2d 660, 482 N.W.2d 99 (1992).

¶ 23. As we have done in the past, see, e.g., Kanzenbach, 273 Wis. at 627, we caution and encourage the circuit courts to strike prospective jurors for cause when the circuit courts "reasonably suspect" that juror bias exists. Our recommendation does not require, however, that an appellate court overturn the circuit court's assessment of a prospective juror's impartiality whenever the appellate record presents a reasonable suspicion that circumstances outside the evidence will influence the juror. See, e.g., Gesch, 163 Wis. 2d at 997 ("Nyberg does not compel the creation of broad, general rules."). To demand compliance with such a rigid standard would be to undermine the circuit court's discretion during voir dire examinations.

¶ 24. Because the Nyberg court inappropriately expanded our prior jurisprudence, that portion of the opinion which states that "[a] trial court must honor challenges for cause whenever it may reasonably suspect that circumstances outside the evidence may create bias or appearance of bias," see Nyberg, 75 Wis. 2d at 404, is hereby overruled.⁶ We now proceed to elucidate the proper standard of review.

B.

¶ 25. It is a well-settled principle of law in this state that a determination by a circuit court that a prospective juror can be impartial should be overturned only where the prospective juror's bias is "manifest.” See, e.g., State v. Messelt, 185 Wis. 2d 254, 269, 518 N.W.2d 232 (1994); Louis, 156 Wis. 2d at 478-79; Hammill v. State, 89 Wis. 2d 404, 416, 278 N.W.2d 821 (1979); State v. Delgado, 215 Wis. 2d 16, 25, 572 N.W.2d 479 (Ct. App. 1997).

¶ 26. The United States Supreme Court has frequently ruled to the same effect. See, e.g., Patton v. Yount, 467 U.S. 1025, 1031-32 (1984); Irvin v. Dowd, 366 U.S. 717, 723-24 (1961); Holt v. United States, 218 U.S. 245, 248 (1910); Ex Parte Spies, 123 U.S. 131, 179-80 (1887); Reynolds v. United States, 98 U.S. 145, 155-57 (1878).

¶ 27. We see no reason to depart from this accepted standard of review.⁷ The requirement that juror bias or circuit court error be "manifest" before it is overturned is appropriate because the circuit court has the opportunity to observe the prospective juror's attitude and disposition during the voir dire examination. To the contrary, the appellate courts which attempt to make their own assessments of a prospective juror's impartiality must do so from the cold, typewritten words of an appellate record. See Reynolds, 98 U.S. at 156-57 ("[T]he manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words. That is seen below, but cannot always be spread upon the record."). As we have stated, adoption of the "reasonable suspicion" standard advocated by Ferron would do away with the circuit court's broad discretion in this area of law.

c.

¶ 28. We acknowledge that "[impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula." United States v. Wood, 299 U.S. 123, 145-46 (1936). Nevertheless, we are persuaded to further clarify the manifest bias standard because we recognize that our recent decision in Ramos compels the circuit courts to more carefully scrutinize challenges for cause. See generally Ramos, 211 Wis. 2d 12 (holding that the use of a peremptory challenge to correct a circuit court's error of law for failure to strike a juror for cause is adequate grounds for reversal).

¶ 29. Accordingly, we hold that a prospective juror's bias is "manifest" whenever a review of the record: (1) does not support a finding that the prospective juror is a reasonable person who is sincerely willing to put aside an opinion or prior knowledge; or (2) does not support a finding that a reasonable person in the juror's position could set aside the opinion or prior knowledge.

¶ 30. Adopting this approach serves two purposes. With a focus on prospective jurors' subjective willingness to set aside their biases, the first prong of this approach accounts for the circuit court's superior position to assess the demeanor and disposition of prospective jurors. The second prong allows the appellate courts to determine whether under the particular circumstances surrounding the voir dire examination, no reasonable juror could put aside the bias or opinion which is revealed by the record. See, e.g., Gesch, 167 (concluding that prospective jurors who are related to a state witness by blood or marriage to the third degree must be struck from the jury panel on the basis of implied bias).

II.

¶ 31. Having clarified the appropriate standard to be employed upon review of a circuit court's determination that a prospective juror can be impartial, we apply that standard to the facts of this case. As we have stated, "[t]he question of whether a prospective juror is biased and should be dismissed from the jury panel for cause is a matter of the circuit court's discretion." Ramos, 211 Wis. 2d at 15 (citation omitted). "This court will find an erroneous exercise of discretion if a circuit court's discretionary decision is based on an error of law." Id. at 16.

¶ 32. In Wisconsin, a juror who "has expressed or formed any opinion, or is aware of any bias or prejudice in the case" must be struck from the panel for cause. Wis. Stat. § 805.08(1). "If a juror is not indifferent in the case, the juror shall be excused." Id. We have previously stated that "[e]ven the appearance of bias should be avoided." Louis, 156 Wis. 2d at 478.

¶ 33. In this case, a review of the relevant dialogue between the court, counsel for the defendants, and the prospective jurors will illustrate that the circuit court committed an error of law by failing to strike Metzler for cause.

¶ 34. The relevant voir dire examination in this case began with Attorney Fitzgerald's questions regarding possible bias based on the defendant's choice not to testify. Metzler responded, "Well, if your client is innocent, why wouldn't he take the stand?" In reply, Fitzgerald informed Metzler of a criminal defendant's constitutional right to elect not to testify.

¶ 35. Apparently unpersuaded, Metzler again asked, "Well, if he's innocent, why wouldn't he go up there and tell us he's innocent?" This answer led Fitzgerald to offer a more detailed explanation of a criminal defendant's right to decline to testify on his own behalf. When asked again whether Metzler would hold his bias against Ferron, Metzler responded, "I think I may."

¶ 36. At this point, the court stepped in to inform the prospective jurors of a criminal defendant's "absolute constitutional right not to testify" which "must not be considered by you in any way and must not influence your verdict in any manner." Following a brief exchange with prospective juror M.C. Clark, the court instructed the jury panel on the law a second time.

¶ 37. Despite the court's detailed instructions, Metzler continued to express his belief that criminal defendants who elect not to testify on their own behalf are guilty of wrongdoing. He added, "Well, I would have a hard time believing that he was innocent if he didn't take the stand and tell me he wasn't [sic] innocent. That's just my own belief."

¶ 38. Although Metzler later stated that he "would certainly try to set [his bias] aside," the record indicates that the circuit court was not satisfied with this answer, and continued to question Metzler regarding his ability to serve as an impartial juror. Metzler's final response indicated that he "[p]robably" could set his bias aside.

¶ 39. In all, the discussion regarding Ferron's Fifth Amendment right to be free from self-incrimination produced four pages of dialogue in the record, which included two instructions on the law from defense counsel and four instructions from the court. Yet in the end, the most the circuit court was able to ascertain as to Metzler's willingness to set aside his obvious bias against defendants who choose not to testify on their own behalf was "[p]robably."

¶ 40. We emphasize that questions as to a prospective juror's sincere willingness to set aside bias should be largely left to the circuit court's discretion. There are no magical words that need be spoken by the prospective juror, and the juror need not affirmatively state that he or she can "definitely" set the bias aside. Suffice it to say that without the appropriate follow-up questions by the circuit court, a juror's final word of "probably" is insufficient to indicate a sincere willingness to set aside his or her bias against parties who choose to exercise their constitutional rights.⁸

¶ 41. Indeed, that Metzler's explicit bias was hinged upon Ferron's Fifth Amendment right to be free from self-incrimination is of considerable importance in this case. As the United States Supreme Court has stated, the Fifth Amendment privilege against compulsory self-incrimination:

reflects a complex of our fundamental values and aspirations, and marks an important advance in the development of our liberty. It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory, and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. This Court has been zealous to safeguard the values which underlie the privilege.

Kastigar v. United States, 406 U.S. 441, 444-45 (1972) (footnotes omitted). Although we do not decide the issue, our decision in this case may have been different — given the same record — had Metzler exhibited a bias which did not conflict with such an essential constitutional right.⁹

¶ 42. During voir dire examinations, the circuit courts are advised to establish a thorough record which sets forth the court's rationale for denying a motion to strike a juror for cause. The circuit courts are also advised to err on the side of striking prospective jurors who appear to be biased, even if the appellate court would not reverse their determinations of impartiality. See, e.g., Kanzenbach, 273 Wis. at 627. Such action will avoid the appearance of bias, and may save judicial time and resources in the long run.

¶ 43. We pause to note the inherent difficulties with voir dire examinations. In attempting to ascertain the sincerity of a prospective juror's willingness to set aside an opinion, bias or prior knowledge, circuit courts should refrain from badgering the prospective juror, or from giving the appearance that it is doing so.¹⁰ Even the appearance of such assertiveness by the court is likely to alter the demeanor, inflection and answers which that particular panel member, and others around him or her, may give to voir dire questions.

¶ 44. Because Metzler's lack of sincere willingness to set aside his bias illustrates that he was not "indifferent in the case" as required by Wis. Stat. § 805.08(1), we conclude that the circuit court committed an error of law, and thereby erroneously exercised its discretion, in denying the motion to strike Metzler for cause. See, e.g., State v. Zurfluh, 134 Wis. 2d 436, 439, 397 N.W.2d 154 (Ct. App. 1986) (holding that the circuit court's failure to follow statutory direction constitutes an error of law, and an erroneous exercise of discretion). Before determining the appropriate remedy for such an error of law, we first address the State's request to overrule our recent decision in Ramos.

III.

¶ 45. In Ramos, we held that the use of a peremptory challenge to correct a circuit court error for failure to strike a juror for cause is adequate grounds for reversal because it arbitrarily deprives the defendant of a statutorily granted right. See Ramos, 211 Wis. 2d at 24-25. For various reasons which we need not examine in detail, the State asks this court to "reconsider" that decision. We decline to do so.

¶ 46. Put simply, the ink has yet to dry on our decision in Ramos. Were we to overrule Ramos, we find it no great leap of faith to suggest that public confidence in the judiciary would be diminished. Moreover, both parties in this case appear to agree that bench and bar alike have attempted to familiarize themselves with Ramos, and have taken steps to comply with its holding. In a society which depends upon the rule of law, reliance upon judicial decisionmaking forms the centerpiece of our legal culture.

¶ 47. As the United States Supreme Court has stated, "[sitare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Payne v. Tennessee, 501 U.S. 808, 827 (1991).

¶ '48. "[A]ny departure from the doctrine of stare decisis demands special justification." Arizona v. Rumsey, 467 U.S. 203, 212 (1984). The State provides no "special" or compelling justification to overturn our decision. Instead, it repeats much of the argument it presented in Ramos, and even asks the court to reconsider the rationale set forth in the Ramos dissent.

¶ 49. The path upon which the State would have us travel is uncertain and precarious. By adhering to our decision in Ramos, we choose a path which may not always lead to infallible results, but which certainly provides more stable and predictable footing for the future.

IV.

¶ 50. Because Ferron was compelled to use one of his statutorily granted peremptory challenges to correct the circuit court's error of law, his conviction must be reversed, and the cause remanded for a new trial in accordance with our decision in Ramos, 211 Wis. 2d 12. Therefore, the decision of the court of appeals is modified as to its use of an inappropriate standard of review, and as modified, the decision is affirmed.

By the Court. — The decision of the court of appeals is modified, and as modified, affirmed.

1 All future statutory references are to the 1993-94 version unless otherwise noted.

Wisconsin Stat. § 972.03 provides in pertinent part:

972.03 Peremptory challenges. Each side is entitled to only 4 peremptory challenges except as otherwise provided in this section. . . .If there is more than one defendant, the court shall divide the challenges as equally as practicable among them; and if their defenses are adverse and the court is satisfied that the protection of their rights so requires, the court may allow the defendants additional challenges....

2 These exchanges during the voir dire examination appear in the transcript of proceedings dated March 26, 1996. See Record on Appeal 39 (Jury Trial March 26-27,1996).

3 Wisconsin Stat. § 805.08(1) provides in pertinent part:

805.08 Jurors. (1) Qualifications, examination. The court shall examine on oath each person who is called as a juror to discover whether the juror is related by blood or marriage to any party or to any attorney appearing in the case, or has any financial interest in the case, or has expressed or formed any opinion, or is aware of any bias or prejudice in the case. If a juror is not indifferent in the case, the juror shall be excused....

4 As mentioned, the Nyberg court actually cited Nolan for the proposition that courts must honor challenges for cause when they have a reasonable suspicion of juror bias. In turn, however, Nolan cited Kanzenbach as the source of the language and stated the language itself somewhat differently. See Nolan v. Venus Motors, Inc., 64 Wis. 2d 215, 223, 218 N.W.2d 507 (1974) (stating that the circuit court "should" honor challenges for cause upon a reasonable suspicion of juror bias).

It is also worth noting that Nolan explicitly rejected the argument that a party's reasonable suspicion that a juror is or may be partial compels a circuit court to strike that juror for cause. See id. at 221-22. Although this conclusion weakens Ferron's position in this case, it admittedly does not address Ferron's precise argument: that a court's reasonable suspicion of juror bias compels the court to strike that juror for cause.

5 Even this final interpretation of Nyberg's language may be unwarranted. We note that the sentence following the disputed Nyberg language referred to the language as a "guideline." See Nyberg v. State, 75 Wis. 2d 400, 405, 249 N.W.2d 524 (1977).

6 Because Nolan merely suggested that circuit courts "should" follow the reasonable suspicion guideline, we adhere to that decision. See Nolan, 64 Wis. 2d at 223.

Ferron also argues that State v. Traylor, 170 Wis. 2d 393, 489 N.W.2d 626 (Ct. App. 1992) involved the specific issue in this case — whether an admittedly biased juror can set aside that bias — and employed the "reasonable suspicion" standard in doing so. We disagree. Traylor involved assertions of ineffective assistance of counsel for failing to move to strike certain jurors for cause. See id. at 397-401. It fails to mention, much less apply, a "reasonable suspicion" standard.

7 Contrary to Ferron's assertions, the determination of juror impartiality does not require a two-step approach. A juror's ability to set aside his or her bias is, as the State contends, "part and parcel" of the manifest bias inquiry.

8 For example, an appropriate follow-up question in these instances would be, "Will you follow the law?" If the juror gives an answer which indicates a less-than sincere willingness to put aside all biases and apply the law in that particular case, that juror must be struck from the panel for cause.

9 The dissents by Justice Geske and Justice Bradley both stress the importance of this case and forcefully contend that we have removed the discretion of the trial judges in this state. See generally Justice Geske's dissent; Justice Bradley's dissent. We disagree, and emphasize that the circuit courts retain wide discretion in this area of law. The prospective juror's responses in this case were simply insufficient to indicate a sincere willingness to abide by the United States Constitution in deciding Ferron's fate.

To this same end, both dissents argue that we give the circuit courts no guidance as to what will be deemed sufficient responses by prospective jurors during voir dire examinations. See Justice Geske's dissent at 508 ("The majority gives no guidance to trial judges as to where their discretion ends."); Justice Bradley's dissent at 512 ("The majority opinion leaves circuit courts and appellate courts with no guidance as they venture to guess what this majority will deem sufficient in future cases."). In doing so, the dissents are internally inconsistent.

Adopting a standard in this case, or giving extensive "guidance" to the circuit courts would do away with their discretion — a result which the dissents emphatically disavow. We decline to set forth a definitive test which draws the fine between those answers which are acceptable and those which are not because, quite frankly, there is no such test.

10 We emphasize that there is no evidence in this record to suggest that the circuit court engaged in such conduct.