(dissenting). The court of appeals reversed the judgment of conviction in the interest of justice, exercising its discretion pursuant to sec. 752.35, Stats. 1983-84.1 I would affirm the decision of the court of appeals.
*745Violating the precepts of State v. McConnohie, 113 Wis. 2d 362, 334 N.W.2d 903 (1983), the majority substitutes its view of the interest of justice in the present case for that of the court of appeals. The majority reaches the result it desires by a strained reading of our prior cases and of the decision of the court of appeals and by a declaration that the court of appeals improperly interpreted our cases and committed an error of law.
Sec. 752.35 applies to the court of appeals, and sec. 751.06 applies to this court.2 They use the same language and they are often referred to as the statutes authorizing “reversal in the interest of justice,” although the phrase “interest of justice” does not appear in the language. Thus the court of appeals and the majority properly turn to cases interpreting this court’s practice and powers under sec. 751.06 as applicable in interpreting the court of appeals’ practice and powers under sec. 752.35.
This court has often expressed its reluctance to grant a new trial in the interest of justice and has stated that it exercises its discretionary power only in exceptional cases. State v. Cuyler, 110 Wis. 2d 133, 141, 327 N.W.2d 662 (1983). Sec. 752.35, like sec. 751.06, appears to establish two categories under which a reviewing court *746may order a new trial: (1) whenever the real controversy has not been fully tried; and (2) whenever it is probable that justice for any reason has miscarried. Our cases have established within the statutory framework three classes of cases in which a reviewing court may order a new trial.
(1) The first class of cases falls squarely in the statutory “fully tried” category: There may be a discretionary reversal whenever the real controversy has not been fully tried. The real controversy is not fully tried generally because the fact finder did not hear all the relevant evidence. When a case falls within this class, the court may reverse even though the court can not conclude that a probability exists that the defendant would not be found guilty in a new trial. State v. Cuyler, 110 Wis. 2d 133, 142, 327 N.W.2d 662 (1983) (evidence erroneously excluded); Logan v. State, 43 Wis. 2d 128, 137, 168 N.W.2d 171 (1969) (counsel’s failure to place highly relevant testimony into evidence).
(2) The second class of cases falls squarely within the statutory miscarriage of justice category: There may be a discretionary reversal whenever it is probable that justice for any reason has miscarried. For such a probability to exist in this class of cases, it must appear that the defendant would be found not guilty in a new trial and that justice demands the defendant be given another trial. In other words, “a new trial in the interest of justice will be granted only if there has been an apparent miscarriage of justice and it appears that a retrial under optimum circumstances will produce a different result.” Jones v. State, 70 Wis. 2d 41, 56, 233 N.W.2d 430 (1975). See also State v. Ruiz, 118 Wis. 2d 177, 200, 347 N.W.2d 352 (1984); Haskins v. State, 97 Wis. 2d 408, 425, 294 N.W.2d 25 (1980); Frankovis v. State, 94 Wis. 2d 141, 152, 287 N.W.2d 791 (1980); Rogers v. State, 93 Wis. 2d 682, 694, 287 *747N.W.2d 774 (1980); Boyer v. State, 91 Wis. 2d 647, 674, 284 N.W.2d 30 (1979); Hoppe v. State, 74 Wis. 2d 107, 122, 246 N.W.2d 122 (1976); Lock v. State, 31 Wis. 2d 110, 118, 142 N.W.2d 183 (1966).
(3) A third class of cases sometimes discusses discretionary reserval in “miscarriage of justice” language and other times in “real controversy not fully tried” language, and other times uses the statutory language of both categories as well as the phrase “in the interest of justice.” In cases falling in this class, the circumstances of the case justify the court’s exercising its discretionary power to reverse even when the court cannot conclude that the outcome would be different on a retrial.3
There are numerous cases in which the court reversed “in the interest of justice” or on the basis of “miscarriage of justice” without concluding that a new trial *748would produce a different result;4 but the key case illustrative of this class of cases is Lorenz v. Wolff, 45 Wis. 2d 407, 173 N.W.2d 129 (1970). The Lorenz court said that “for the determination of whether justice has miscarried” the court “is not necessarily confined” to the “mechanistic formula” that the result of the second trial will be different. Lorenz, supra, 45 Wis. 2d at 414. In Lorenz, in which evidence and statements of counsel were erroneously admitted (in contrast to class 1 cases where evidence was erroneously excluded), the court was concerned that “the evidence may not have been fairly weighed.” Id. at 415. Upon review of the record, the Lorenz court concluded that as a result of the erroneously admitted evidence and statements of counsel, the defendant did not get a “fair trial,” id. at 425, and that “there was a probable miscarriage of justice,” id. at 426. The Lorenz court never spoke in terms of the real controversy not having been fully tried. The conviction was reversed “in the interest of justice,” id. at 426, even though the court could not “say, using the mechanistic rule . . , , that on a retrial the plaintiff would probably win.” Id. at 415.
In Air Wisconsin, Inc. v. North Central Airlines, Inc., 98 Wis. 2d 301, 296 N.W.2d 749 (1980), the court concluded that the defendant did not get “a full, fair trial of the issues of the case,” id. at 318, when an erroneous instruction was given on a significant issue, and “that there was a probable miscarriage of justice because the issue of liability had not been fully or properly tried.” Id. The court would not declare that it believed the outcome would be different on retrial. Id. See also *749In the Interest of C.E.W., 124 Wis. 2d 47, 368 N.W.2d 47 (1985).
While these cases are civil cases, I agree with the state’s position in oral argument that “Lorenz and what Lorenz has to say about discretionary reversal is fully applicable to criminal cases.” I agree with the state’s position at oral argument that if there is a difference in the application of secs. 751.06 and 752.35 to civil and criminal cases, the court, because of the liberty interests involved in a criminal case, should be more willing to reverse a criminal than a civil case in the interest of justice.
These three classes of cases reflect the objectives of our criminal justice system: only the guilty shall be convicted and only by a fair trial in which guilt is demonstrated beyond a reasonable doubt.
The majority opinion apparently retains the three classes of cases but places the “non-mechanistic formula” (what I call class 3 cases) only within the first statutory category, i.e., that “the real controversy has not been fully tried.” In its discussion of the Lorenz case the majority ignores the Lorenz court’s reference to miscarriage of justice and equates the words “fairly tried,” which are used in Lorenz, with the statutory words “fully tried.” Thus the majority states that the Lorenz court “concluded that the real controversy was not fully tried because ‘the circumstances of the trial prevented a fair trial of the factual issues of the case.’ ” Page 738. (Emphasis added.) The majority concludes that, if a case has not been “fairly tried,” the appellate court need not state its belief that there is “a substantial degree of probability that a new trial would produce a different result” (at p. 734) but may reverse the conviction — if and only if the court says that the unfairness involved resulted in the case not having been “fully tried.”
*750The majority’s test that the court must conclude that “there is a substantial degree of probability that a new trial would produce a different result” is set forth without any citation to authority. Through a Lexis search I could find only two Wisconsin Supreme Court cases using this test. See State v. Boyce, 75 Wis. 2d 452, 463, 249 N.W.2d 758 (1977), and Roe v. State, 95 Wis. 2d 226, 243, 290 N.W.2d 291 (1980) (quoting Boyce). Although the language in our cases has some variation, the other cases speak of a probability that a new trial would produce a different result, not substantial degree of probability.
The court of appeals obviously concluded, although it never used these terms, that in its opinion the defects in the trial rendered the trial fundamentally unfair. The court of appeals inferred from the jury foreman’s misbehavior an “attitude . . . inconsistent with his [the juror’s] duties” (Ct. App. slip opinion at page 30). This concern, combined with “the closeness of the case,” undermined the court of appeals’ confidence in the trial.
The majority concludes that the court of appeals, in exercising its discretion to reverse the conviction, committed an error of law. According to the reasoning of the majority opinion, the court of appeals erred as follows: the court of appeals concluded that “the record contains no suggestion that the real controversy has not been fully tried” (Ct. App. slip opinion, page 26) but rather that there had been a miscarriage of justice; the court of appeals did not state a belief regarding “a substantial degree of probability that a new trial would produce a different result”; reversal under the statutory miscarriage of justice category — unlike reversal under the statutory fully tried category — requires, according to the majority opinion, that the court state a belief that there is “a substantial degree of probability that a new trial would produce a different result”; *751therefore, says the majority, the court of appeals erred as a matter of law in reversing the conviction when it concluded that there was a miscarriage of justice but not that there was “a substantial degree of probability that a new trial would produce a different result.” Put another way, according to the majority, the court of appeals made an error of law when it reversed the conviction, explained its decision to reverse in terms of a miscarriage of justice rather than in terms of a failure to fully try the real controversy, and then failed to state a belief regarding the substantial degree of probability as to the outcome of a new trial.
As I see it, the majority is engaging in a semantic shell game. According to the majority’s analysis, had the court of appeals put its discussion under the “real controversy not fully tried” shell, instead of under the “miscarriage of justice” shell, there would have been no error of law, and this court would not have reviewed the court of appeals’ exercise of discretion. To avoid the result here, the court of appeals should have said: no relevant evidence was erroneously excluded; no relevant evidence was erroneously admitted; no erroneous instructions were given; the record thus contains no suggestion that the real controversy has not been fully tried; circumstances outside the trial record and the closeness of the case show, however, that the case may not have been fairly tried, and therefore the real controversy was not fully tried. It was omission of this last statement that results in the majority’s declaration of error of law.
I do not think it can be said the court of appeals committed an error of law because it treated the “not fairly tried” ground for discretionary reversal (the class 3 case) as a subcategory of “miscarriage of justice” or as a separate, independent category rather than *752as a subcategory of “the real controversy was not fully tried.”
I can find no error of law in the court of appeals' discussion of discretionary reversal, and I would not review its discretionary determination. I might reach a different result were I to exercise my own discretion, but that is not the issue. As this court said in State v. McConnohie, 113 Wis. 2d 362, 368, 334 N.W.2d 903 (1983), “there is no assumption by this court that its determinations are necessarily more just than those of a court of appeals.”
I would hold that the court of appeals applied the correct law when it exercised its discretion to reverse a conviction after it concluded “that justice probably has miscarried and [it] should order a new trial.” Ct. App., slip opinion at page 28.
The court of appeals concluded that although the errors would not justify a reversal and the evidence was sufficient to support a conviction, the presence of a juror whose “attitude was inconsistent with his duties” (Ct. App. slip opinion at page 30) and the closeness of the case justified a new trial. The court of appeals’ reasoning in reversing the conviction is similar to the reasoning this court has used in several cases. This court has previously concluded that the court’s uneasiness with the way a case was tried plus the closeness of the evidence justified a new trial. In Paladino v. State, 187 Wis. 605, 606, 205 N.W. 320 (1925), where numerous evidentiary errors were alleged, this court said:
“While there appear to be no errors sufficient to work a reversal of the judgment, the court is of the opinion that a new trial should be ordered in this case for the reason that it appears probable that justice has miscarried. Sec. 2405m, Stats. It is not held that there is not sufficient evidence to sustain a verdict. But upon the whole record this court is of the opinion that in the *753interests and in furtherance of justice there should be a new trial, and in view of that fact we purposely refrain from any comment upon the evidence. While the errors complained of are not sufficient to work a reversal under the rule, this being a very close and doubtful case, we are of the opinion that the defendant should have an opportunity of presenting the matter to another jury.”
In State v. Hintz, 200 Wis. 636, 642, 229 N.W. 54 (1930), this court, citing Paladino, expressed doubts about the case because of the closeness of the case. The Hintz court did not expressly state a belief regarding a result.5
*754The court of appeals relied on Maahs v. Schultz, 207 Wis. 624, 638, 242 N.W. 195 (1932), which in turn cited Paladino and Hintz, as authority for reversing in the interest of justice. In the Maahs case, a juror did not reveal his relationship with a party or his knowledge of the case. Although the court recognized that had the juror revealed the information he would not have been disqualified for cause, the court still had grave doubts whether a verdict subject to the juror’s influence should be permitted to stand. The court said that “there is nothing so essential in the administration of justice as the avoidance of seeming partiality.” Id. at 637. Because the Maahs court concluded that the circumstances raised a serious question as to the impartiality of the juror and therefore the “justice of the verdict,” the Maahs court exercised its discretion to reverse the judgment.
The majority opinion is unpersuasive in its attempt to distinguish Paladino, Hintz and Maahs from the case at bar. The majority declares that those courts’ “determination was the functional equivalent of stating trial would produce a different result.” Page 740. I disagree. The court in each case was simply saying, as the court of appeals says in this case, that the circumstances of the case raise doubt about the proceedings sufficient in the court’s view to justify a trial before a new jury.
Because I would affirm the discretionary reversal, I need not reach the other issues decided by the majority opinion.6 Nevertheless, I comment on the jury voir *755dire issue because of its importance in the law. Even were I to join the majority mandate, I would not join its opinion on the voir dire issue.
This court’s emphasis on the lawyer’s responsibility to conduct a full and adequate voir dire to protect the client is well established. See After Hour Welding Inc. v. Laneil Management Co., 108 Wis. 2d 734, 744, 324 N.W.2d 686 (1982); State v. Shilcutt, 119 Wis. 2d 788, 812, 350 N.W.2d 686 (1984) (Heffernan, C.J. concurring). Yet, as the present case illustrates, voir dire may become a relatively useless exercise unless the court affords a party an adequate remedy when a juror misstates material information or fails to make full disclosure of material information.
Unfortunately, the majority opinion does not clearly articulate its test for determining when a new trial should be ordered if a juror misstates material information or fails to make full disclosure. The majority opin*756ion rejects the test set forth by the United States Supreme Court in McDonough Power Co., Inc. v. Greenwood, 464 U.S. 548, 104 S. Ct. 845 (1984).7 Pages 727-730. The majority then states its own test somewhat differently in different parts of the opinion. At one point, the majority opinion states that the “rule is that in order to be awarded a new trial, a litigant must demonstrate: (1) that the juror incorrectly or incompletely responded to a material question on voir dire; and if so, (2) that it is more probable than not that under the facts and circumstances surrounding the particular case, the juror was biased against the moving party.” Page 726. This apparently is the test the majority applies. At another point in the opinion, however, the majority says that “the proper focus of inquiry ... is whether the juror was biased and whether the litigant was prejudiced as a result.” Page 725. The majority also says that the test of bias is whether it is more probable than not that the juror was biased against the litigant. Pages 730-731. The word “biased” is not defined. The majority opinion refuses to limit “bias” to a statutory or common law “challenge for cause” test,8 p. 728, or to expand “bias” to “a peremptory *757challenge” test, page 723 (i.e., a test of whether a party was deprived of the effective exercise of the peremptory challenge).
The varying statements of the test and the majority’s application of its test raise several questions. If juror bias is found, is prejudice to the litigant assumed? On what basis does the majority conclude that the questions, which the juror in this case incorrectly and incompletely answered, were material ? Page 731. Since the juror here failed to answer material questions correctly (p. 731), why is prejudice to the litigant not presumed? Inasmuch as the court for the first time sets out factors to be considered by the circuit court in determining whether a juror is biased (page 731), why is this court affirming the circuit court’s exercise of discretion here rather than remanding the matter for the circuit court’s consideration of these factors? How will this court review a circuit court’s application of the test? The majority apparently applies the “clearly erroneous” standard to the circuit court’s determination of whether the juror was prejudiced (biased), page 732, as if prejudice (bias) is a fact question, and also talks about abuse of discretion in terms of the circuit court’s decision to deny the motion for retrial.
Because the majority’s discussion leaves open too many questions, I cannot join the majority on the voir dire issue. Because I conclude that the court of appeals *758did not commit an error of law, thereby abusing its discretion, I would affirm the decision of the court of appeals.
Sec. 762.35, Stats. 1983-84, provides as follows:
“752.35 Discretionary reversal. In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes for rules, as are necessary to accomplish the ends of justice.”
Sec. 751.06, Stats. 1983-84, provides as follows:
“751.06 Discretionary reversal. In an appeal in the supreme court, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record, and may direct the entry of the proper judgment or remit the case to the trial court for the entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.”
Sec. 751.06 is substantially the same as sec. 2405m, Stats. 1913.
The state acknowledges in its brief and in oral argument in this case and in its brief in State v. D’Acquisto, 124 Wis. 2d 758, 370 N.W.2d 781 (1985) (see n. 1 of the brief) that there is a class of cases — albeit small, limited, and unusual — in which the court may reverse a conviction when the court’s reading of the record convinces the court, for whatever reason, that in the interest of justice another jury ought to hear the case. The state urges, however, that the court apply the Strickland v. Washington “prejudicial error” test to reversals in this class of cases. State’s brief in this case at p. 20. The Strickland v. Washington test is not an outcome-determinative test as the majority appears to adopt here. Strickland v. Washington would require only that there be a reasonable probability that the result would be different without the alleged error, with reasonable probability defined as “a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, - U.S. -, 109 S. Ct 2052, 2068 (1984). A probability sufficient to undermine confidence in the outcome does not seem to be the same, however, as the majority’s requirement that the court state that “there is a substantial degree of probability that a new trial would produce a different result.” See also State v. Dyess, 124 Wis. 2d 525, 370 N.W.2d 222 (1985); State v. Pitsch, 124 Wis. 2d 628, 369 N.W.2d 711 (1985); State v. Ludwig, 124 Wis. 2d 600, 369 N.W.2d 722 (1985).
See, e.g., Paladino v. State, 187 Wis. 605, 205 N.W. 320 (1925); Koss v. A. Geo. Schulz Co., 196 Wis. 243, 218 N.W. 175 (1928); State v. Hintz, 200 Wis. 636, 229 N.W. 64 (1930); Jacobsen v. State, 205 Wis. 304, 237 N.W. 142 (1931); Volk v. Flatz, 206 Wis. 270, 239 N.W. 424 (1931); Maahs v. Schultz, 207 Wis. 624, 242 N.W. 195 (1932).
In State v. Hintz, 200 Wis. 636, 641-42, 229 N.W.2d 54 (1930), the court wrote: “Manifestly the situation presents an ordinary conflict of evidence, the weight of which is for the determination of the jury. The power of the court to disturb the finding of the jury ends with the discovery of evidence to sustain the verdict. In the interest of exactness it should perhaps be stated that this rule is subject to two qualifications: one is where the finding of the jury is contrary to established physical facts, and the other is where it is contrary to all of the reasonable probabilities. There is no room here, however, for the operation of either of these qualifications. There are no physical facts involved, and the reasonable probabilities depend upon the inferences to be drawn from the established facts in the case. . . . No rule is more thoroughly established by the decisions of this court than that where conflicting inferences may be drawn from the facts probed the question is one for the jury. . . . Viewing the case from any angle, and in the light of all established principles, the question of defendant’s intent presented a plain jury question. Whatever doubts we may entertain concerning the justice of this verdict, our power to disturb it is limited by established rules of jurisprudence designed to protect the sanctity of findings of fact, a function which constituted society has committed to the jury.
“As we contemplate this conclusion, we cannot escape the reflection that at times one’s liberties are shielded by a curtain of the merest gauze. This evidence leaves the question of defendant’s intent to defraud in the greatest doubt. While it is the function of the jury to resolve thia doubt, it seems probable to us that justice has miscarried by the verdict rendered. Under such cir*754cumstances it is within our power to order a new trial. Sec. 251.09, Stats.; Paladino v. State, 187 Wis. 605, 205 N.W. 320. Because we think the question of defendant’s guilt should be passed upon by another jury, the . . . [j]udgment [is] reversed.”
This case and State v. D’Acquisto, 124 Wis. 2d 758, 370 N.W.2d 281 (1985), of even date, lead me to question the wisdom of *755State v. McConnohie, 113 Wis. 2d 362, 334 N.W.2d 903 (1983). Perhaps it would be more consistent with this court’s supervisory power and with principles of appellate review if, when we grant review of a court of appeals’ decision as we did in this case, we would not review the court of appeals’ discretionary reversal. Perhaps we should do what the majority of the court ultimately does here, that is, this court exercises its own discretion regarding reversal.
Deference to the court of appeals’ discretionary reversal, unlike deference to the circuit court’s discretionary reversal, is not warranted because the court of appeals has no more information than this court to determine whether a new trial should be granted. The court of appeals reads the same record as this court and— like this court — has not observed the trial and the witnesses. Consequently, we should treat the court of appeals’ discretionary reversal decision as we generally treat rulings of the circuit court in which this court and the circuit court examine the same written materials and have the same expertise to rule on the issue. In such cases this court makes the decision ab initio without deference to the circuit court.
McDonough Power Co., Inc. v. Greenwood, - U.S. -, 104 S. Ct. 845 (1984), is a case which originated in federal district court. It is not entirely clear whether the Supreme Court’s holding is a matter of federal procedure or federal constitutional law. This court’s majority opinion does not state whether its test is an interpretation of a state statute, the state constitution, or the federal Constitution.
Sec. 805.08(1), Stats. 1983-84, relating to challenge for cause provides as follows:
“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, *757or is aware of any bias or prejudice in the case. If a juror is not indifferent in the case, the juror shall be excused. Any party objecting for cause to a juror may introduce evidence in support of the objection. This section shall not be construed as abridging in any manner the right of either party to supplement the court’s examination of any person as to qualifications, but such examination shall not be repetitious or based upon hypothetical questions.”