(dissenting). There are relationships between prospective jurors and those who must ensure a criminal defendant a fair trial so close that it is contrary to human nature to expect that the juror can serve impartially. Such a relationship is present in this case. The juror Gesch challenged for cause is the brother of the arresting officer who was the state's only police witness.
I am sure that juror Wineke honestly believed that he could serve without partiality. The trial court conducted an extensive voir dire of the juror to determine whether he was actually biased. But actual bias is not the only test. "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." Nyberg v. State, 75 Wis. 2d 400, 404, 249 N.W.2d 524, 526 (1977) (emphasis added). Perhaps the circumstance is better described as implied bias, a term adopted by other courts. See United States v. Haynes, 398 F.2d 980, 984 (2d Cir. 1968), cert. denied, 393 U.S. 1120 (1969).
In determining whether a prospective juror should be excluded on this ground [implied bias] his statements upon voir dire are totally irrelevant; a person 'may declare that he feels no prejudice in the case; and yet the law cautiously incapacitates him from serving on the jury because it suspects prejudice, because in general persons in a similar situation would feel prejudice.'
*1001Id. at 984 (quoting United States v. Burr, 25 F. Cas. 49, 50 (C.C. Va. 1807) (No. 14692g)).
Here, the trial court suspected prejudice because of the close relationship between the prospective juror and the state's witness. The court said: "Certainly I was suspicious . . " The juror's responses to the court's questions satisfied the court that the juror was not actually biased. The juror's responses were, however, totally irrelevant. No matter how honest the juror's responses, the law cautiously incapacitated him from serving on the jury because in general, persons in a similar situation would feel prejudice. As Lord Coke put it: "[T]he law presumeth that one kinsman doth favour another before a stranger." 1 Coke's Commentary Upon Littleton (Butler & Hargrave's Notes) Note 157.a on Book 2, ch. 12 sec. 234 (1853).
Voir dire occurs at the beginning of criminal trials. The jurors are usually unfamiliar with criminal trials and may honestly believe that they can serve impartially. The conduct of the trial may educate the juror with too close a relationship to a witness, that he or she cannot make credibility determinations as impartially as he or she may have expected. By then, however, it is too late, as a practical matter, for the juror to withdraw. Hence the law's caution.
Further, the presence of a close relative of an important witness in the jury room may deter other jurors from making impartial credibility determinations, even if the juror/relative in fact remains impartial. A criminal defendant may not be made to bear this risk.
I do not, however, suggest a "class" or per se rule when a prospective juror is challenged because of a blood relationship with a witness. There may be no issue of credibility with respect to the witness. Where, however, as here, the witness's credibility is critical to the state's *1002case, a challenge to a prospective juror who has a close blood relationship to the witness must be honored to avoid the appearance of bias. "In any sound judicial system it is essential not only that justice be done but also that it appear to be done." State v. Jackson, 203 A.2d 1, 11 A.L.R.3d 841, 852 (N.J. 1964), cert. denied, Ravenell v. New Jersey, 379 U.S. 982 (1965).
I conclude that the trial court applied an incorrect standard to Gesch's motion to excuse juror Wineke. The court sought only to determine the juror's actual bias and did not consider the juror's appearance of bias. I therefore dissent.