Harmless Error and Jury Selection

As jury selection began for the trial of Sharon Sellhausen, it turned out that one of the prospective jurors was the daughter-in-law of the trial judge.  Although the judge could have, and should have, excused such a close relative from service on the jury, he did not do so.  Nor did the prosecution or defense seek the daughter-in-law’s removal for cause.  Perhaps that seemed a perilous course of action after the judge had gone to some effort to create a record that the daughter-in-law would be impartial.  In any event, defense counsel chose to remove the daughter-in-law through the less confrontational method of the peremptory strike, which saved the judge from having to rule on the suitability of his daughter-in-law serving on the jury.

But, of course, the defendant was thereby out a peremptory.  Thus, she could with some reason complain on appeal about the trial judge’s failure to remove the daughter-in-law sua sponte.

Earlier this month, the Wisconsin Supreme Court agreed in State v. Sellhausen, 2012 WI 5, that sua sponte removal would have been preferable, but declined nonetheless to grant the defendant a new trial.  Since the daughter-in-law was eventually struck and did not serve on the jury, the court held that any error was harmless.

The case seems to embrace the broad principle that erroneous failures to excuse a prospective juror for cause will always be regarded as harmless where the prospective juror is later struck.


The case thus contrasts markedly with cases like State v. Carlson, 261 Wis.2d 97 (2003), in which the questionable juror actually served on the trial jury and in which the Wisconsin Supreme Court employed what seems in practical effect to be a rule of automatic reversal.

I’m not sure either approach seems quite right for jury-selection errors.

The Sellhausen approach seems to give trial judges a free pass when they fail to do their part to keep biased individuals and other improper prospective jurors off of trial juries.  Particularly when the trial judge makes an egregious error, it doesn’t seem fair to place the burden on the defendant to fix the error through the expenditure of a peremptory strike.

On the other hand, an automatic-reversal rule for jury-selection errors will give a windfall to some defendants whose guilt was clearly established at the first trial; it seems wasteful at best to conduct a second trial in such cases.

For these cases of jury-selection error — at least where there is no reason to think that someone who actually served on the jury was biased — perhaps a plain-error sort of approach would best balance the competing the interests.  Here’s what I envision: a two-part test in which the reviewing court would consider (1) how obvious the trial court’s error was (i.e., was this a matter over which reasonable jurists might differ), and (2) whether the evidence was so overwhelmingly in the state’s favor that the composition of the jury did not likely affect the outcome (or, to put the question in more familiar terms, whether the evidence was such that the state would be entitled to a directed verdict if directed verdicts for the state were permissible at trial).  These seem to me the key considerations, although I’m not sure where the burdens should lie, nor what the result should be if one of the considerations cuts in favor of the state and the other in favor of the defendant.