I have often told the story of my first trial and embarrassing voir dire examination.  It was a $1,500 lien foreclosure case, and I was the plaintiff attorney who had never seen or conducted a voir dire. Judge Purcell turned to me and said:

“Mr. Priest, you may inquire.”

Me: “About what, your honor?”

Judge Purcell: “You may ask the jurors questions.”

Me: “Oh, ok.” I then turned to the jury. “How are you all doing?”

After stumbling through my off-the-cuff questions, the worthy defense lawyer did an admirable job questioning the array, after which the judge invited us to the bench.

Judge Purcell: “Mr. Priest, your first strike?”

Me: “I’m sorry, your honor, what?”

Judge Purcell: “Your first strike.”

Me: “I’m sorry, your honor, I have no idea what you're asking me.”

Judge Purcell: “Who do you want to knock off the jury?”

Me, turning back to look at the panel: “They all look ok to me, Judge.”

Judge Purcell: “Mr. Priest, if you don't knock three off for some reason, I will knock three off for no reason.”

Me, thinking to myself, better me than him: “Ok, Judge. Let's start with juror number four.” (That juror was looking at me funny.)

And so it went.

Surprisingly, I won the trial. I have always thought that perhaps the jury had mercy on my client for having such an inept lawyer. In the months and years that followed, I became much more adept at jury selection from observation, practice and listening to Irving Younger’s Trial Techniques lectures.

All that history to say this: If I eventually became good at jury selection, so can you. Voir dire is largely about getting the jury to talk, connecting with the jury and showing you are trustworthy. If a lawyer gets jurors to talk and communicates trustworthiness to the jury, that lawyer will usually win.

WHAT IS VOIR DIRE?

Voir dire is a Latin term that roughly translates to “speak the truth.” But every trial lawyer worth their salt knows that's only aspirational. Most jurors will mostly tell the truth most of the time. But if you assume you're getting all the truth from all the people all the time, you'll be sadly disappointed. Therefore, when selecting a jury, be humbly skeptical about the answers you receive, and never underestimate a juror's misunderstanding or avoidance of what you're asking.

I encountered this years ago when defending a workers’ compensation retaliatory discharge case in Carter County. This was back when these cases were tried in district court. The judge had questioned the jury thoroughly about prior comp claims and employment terminations they had experienced. No one spoke up. The plaintiff's counsel and I had gone deeper on those same issues. Not a hand was raised. I was about to sit down after conducting my voir dire when I had a Columbo moment and asked the question slightly differently: Did anyone feel that they had ever been treated unfairly in the workplace for any reason? One juror, who had been through the entire process, raised his hand. "I felt like I was fired once 'cause I had an injury on the job." Duh! The judge and two lawyers thought they'd asked that question numerous times before, but this was the first time the juror really heard it. Needless to say, he was stricken from the jury.

CHALLENGES

One of the most important lessons I learned about jury selection came from Mr. Younger:[1] You don't pick a jury. You unpick a jury. You should not focus on how many preemptory challenges you have; instead, you should focus on how many you have remaining. Mr. Younger, in his lectures, would shout, “Focus on the remainder! Because once your challenges are gone, you have almost no control over who goes in the box.” That is why you must look not simply at the 18 jurors in the box but also at those sitting in the audience who might be called to fill vacant seats.

Mr. Younger's lecture series on trial techniques was, for me, the most important source of information and inspiration. In his lectures, Mr. Younger identified various "challenges" that can help you in unpicking the jury.

1) Challenge to the Array

This is a challenge the lawyer makes to the entire panel because of some objectionable way the entire array was arrayed. This challenge is so seldom used that it is hardly worth mentioning other than to be aware it exists.

A challenge to the array is defined as a challenge that seeks to disqualify an entire jury panel assembled up until that current point. Generally, the reason given is that the selection of the jury panel violated some rule designed to produce impartial juries drawn from a fair cross section of the community. For instance, a challenge to the array may be made on the grounds that jurors were not "publicly drawn" as required by statute.[2]

2) Challenge for Cause

A challenge for cause exists where the facts require the judge to excuse the juror. Again, this

does not happen often, but if, for instance, the defendant's brother made it on the panel, the judge would be required to excuse the brother. This would happen regardless of the brother’s protests; he could be fair and impartial. Often, these issues are sorted out in the jury assembly room by the judge presiding in that arena.

3) Challenge to the Favor

This elegant, antiquated terminology is not much used and refers to challenges where the judge is asked to exercise their discretion in excusing a juror. A juror reveals he went to high school with the defendant. He hasn't seen the defendant in many years, other than one time at a reunion where they spoke briefly. He claims he can be fair and impartial, but the relationship is there. Must the judge excuse him? No. Can the judge excuse him? Certainly.

I ran into a juror I thought should be challenged for cause, but the judge decided it was a challenge to the favor. I was representing a plaintiff in a case seeking punitive damages. During voir dire, I told the jury I knew some people had strong feelings about punitive damages and asked if there was anyone on the panel who felt they could not award punitive damages even if the facts merited it. One grizzled juror in the front row raised his hand and growled, “I would never award punitive damages. Ever.” I turned to the judge and raised my eyebrows, and the judge responded, “You'll need to take care of that yourself, Mr. Priest.” I turned back to the juror, who asked me, “What does that mean?” and I replied, “It means you're going to stay on the jury but only for a little while longer.” I used one of my preemptory challenges to knock him off.

4) Preemptory Challenge

Challenges or “strikes” to individual jurors that can be exercised by each side without stating a reason are called preemptory challenges. Sometimes it is said these are challenges for "no reason," but every trial lawyer knows this is false. Mr. Younger says there is always a reason a juror is excused, even if it is that the juror gives you the creeps. Sometimes you can articulate the reason. Sometimes it's as simple as a gut feeling, or your client, sitting at counsel table, doesn't want a particular person on the jury.

Mr. Younger explains that a zealous advocate in jury selection does not want a "fair and impartial jury." The zealous advocate wants a jury made up of people who are biased in favor of their side. If you are defending former Attorney General John Mitchell in his 1974 criminal conspiracy case, you want a jury made up of people who think, look and act like Mr. Mitchell. Opposing counsel also wants a biased jury but in the opposite direction. In the clash of the opposing forces, truth (or, in this case, impartiality) is thought to emerge. The prepared trial lawyer will have an ideal juror profile and will strike those jurors who depart most significantly from that profile. But while wide discretion is allowed in exercising preemptories, there are limits imposed by the Batson challenge.

5) Batson Challenge

A thorough review of Batson challenges is beyond the scope of this article, but there is a plethora of information to satisfy one’s curiosity. Succinctly stated, the U.S. Supreme Court in Batson v. Kentucky[3] prohibited the use of peremptory challenges to exclude jurors for racially discriminatory reasons. Over the years, other types of discriminatory challenges have also been outlawed, e.g., excusing jurors based on gender. Again, the prepared trial lawyer should be alert to Batson and its progeny and be prepared for this challenge in the event one suspects an inappropriate exclusion of jurors is taking place.

I only had one occasion where my selection of jurors received a Batson challenge. It was a Title VII gender discrimination case in federal court, and I was challenged in my excusal of three female jurors, with the plaintiff's counsel arguing that I dismissed them simply because they were women. At a sidebar, the judge asked me to articulate my reasons for the challenges, and I explained, in brief, my reasoning. The judge overruled the Batson challenge, and the ruling was not raised on appeal.[4] One could argue that it is improper to invade trial counsel's reasons for exercising preemptories, but a Batson challenge overcomes that argument.

HOW TO UNPICK A JURY

There are three goals in jury selection: 1) acquire information about the juror, 2) communicate information to the juror and 3) establish your trustworthiness.

Acquiring information comes in a variety of ways. In cases where the stakes are consequential, a mock jury, a jury consultant and a background investigator might be used. In routine cases, all counties provide a list of the names of people called for jury duty. In large counties, this information is too vast to be helpful. But in smaller counties, the names are fewer, and you can run the names by a local lawyer or your own client if they reside in the county. You won't get information on all the names, but you'll get at least a sampling, depending on your source's scope of knowledge.

In most cases, you'll find out about the jurors inside the courtroom. Watch them from the moment they walk into the courtroom. What are they wearing (both clothing and jewelry)? Are they carrying reading material and, if so, what kind? The Wall Street Journal or the National Enquirer or an Agatha Christie murder mystery? Do they walk with a limp? Do they talk to other panel members? Watch them like Sherlock Holmes, and remember, at all times, some (or all) of them are watching you.

Judges do not want you arguing to the jury in voir dire. I remember my senior partner, Ken Webster, was interrupted during his voir dire by the judge who sardonically asked, "Mr. Webster. Do you have any questions you wish to ask the jury rather than statements you wish to make to the jury?" But Mr. Webster had it right, although perhaps he could have been more subtle. You are always communicating information to the jury – both about yourself and about your case.

One of the most important things you are communicating to the jury is your own trustworthiness. You are, in essence, saying, “You can trust me. I won't try to fool you.” Many jurors don’t trust lawyers, so you have your work cut out for you. So be sincere and authentic. In the final analysis, trustworthy lawyers win more cases than untrustworthy ones, and a panel of jurors will usually – eventually – sniff out a phony.

How do you communicate trustworthiness? By being genuine – down to earth but not condescending. By using plain language such as “car” instead of “motor vehicle,” “before” rather than “prior to,” “after” instead of “subsequent.” By looking them in the eye and admitting, up front, some weakness in your case. By viewing yourself not so much as a “persuader” as a “teacher” in an instructional partnership rather than in a Socratic lecture.

RULES ABOUT JURY SELECTION

In Oklahoma state courts, there is scant statutory guidance on jury selection:

12 O.S. §6 (RULE 6) – Voir Dire Examination

The judge shall initiate the voir dire examination of jurors by identifying the parties and their respective counsel. He may outline the nature of the case, the issues of fact and law to be tried, and may then put to the jurors any questions regarding their qualifications to serve as jurors in the cause on trial. The parties or their attorneys shall be allowed a reasonable opportunity to supplement such examination. Counsel shall scrupulously guard against injecting any argument in their voir dire examination and shall refrain from asking a juror how he would decide hypothetical questions involving law or facts. Counsel shall avoid repetition, shall not call jurors by their first names or indulge in other familiarities with individual jurors, and shall be fair to the court and opposing counsel.

Note that the rule does not say the lawyer cannot call jurors by their last name, and indeed, they should. I don't know if memorizing juror names would be considered “indulging in other familiarities with individual jurors,” but I was never called on it. In questioning jurors, you want to individualize. Ask each juror at least a few questions, and let them talk about themselves. It almost doesn't matter what the subject is, so long as you get the juror talking, enabling you to gain insight into how they think and who they are. Questions posed to the whole panel are seldom illuminating. “Can all of you be fair and impartial?” is a net that doesn't catch fish.

12 O.S. §12-575.1. Selection of Jury in Discretion of Court – Manner

Notwithstanding other methods authorized by law, the trial judge may direct in his discretion that a jury in a civil case be selected in the following manner:

(a) if the case be triable to a twelve-man jury, eighteen prospective jurors shall be called and seated in the box and then examined on voir dire; when eighteen such prospective jurors have been passed for cause, each side of the lawsuit shall exercise its peremptory challenges out of the hearing of the jury by alternately striking three names from the list of those so passed for cause, and the remaining twelve persons shall be sworn to try the case;

(b) if the case be triable to a six-man jury, twelve prospective jurors shall be called and seated in the box and then examined on voir dire; when twelve such prospective jurors have been passed for cause, each side of the lawsuit shall exercise its peremptory challenges out of the hearing of the jury by alternately striking three names from the list of those so passed for cause, and the remaining six persons shall be sworn to try the case.

If there be more than one defendant in the case, and the trial judge determines on motion that there is a serious conflict of interest between them, he may, in his discretion, allow each defendant to strike three names from the list of jurors seated and passed for cause. In such case he shall appropriately increase the number of jurors initially called and seated in the box for voir dire examination.

A more comprehensive array of statutes on jury selection appears in Title 22 of the Oklahoma Statutes, Criminal Procedure, beginning at Section 591. Challenges to the panel and challenges to individual jurors are explained in detail, including definitions of challenges for cause and preemptory challenges. Attorneys trying criminal cases must familiarize themselves with these statutes, since they may be consequential, as they were in Warner v. State, discussed later.

Much of the jury selection process is left up to the judge, which means you should become familiar with the judge's protocol before entering the courtroom. Find out when the judge is trying a case, and be in the audience observing jury selection ahead of time. Make a mental note of any peculiar ways things are done, and adjust your technique. Some judges allow you to walk up to the jury box. Some require you to stay at the podium. Do whatever you can to connect with the jury, but observe any unwritten judicial constraints.

I tried a case in Oklahoma County District Court in front of Judge (now Justice) Noma Gurich. My friend, Wild Bill Wilkinson, was on the other side for the plaintiff. Judge Gurich's courtroom had an exceptionally large jury box with an extra-wide entrance to the box, and during voir dire, Mr. Wilkinson got into the box with the jurors, attempting to establish a connection through physical proximity. I stood to object, but as I did so, I couldn't think of any rule that was being violated, so I simply said, “Objection, your honor, Mr. Wilkinson is in the jury box!” Judge Gurich said, “Mr. Wilkinson, get out of there.” But five minutes later, Mr. Wilkinson was right back in the box, so I had to object again, which, of course, was sustained by the court. Mr. Wilkinson was trying to be a zealous advocate, and that spirit (if not his technique) is what voir dire is about: connecting with the jurors.

In federal court, lawyers do not typically have the opportunity to voir dire the jurors. The judge asks the questions, and lawyers are most often invited to submit additional questions in writing or to approach the bench and offer suggestions in a sidebar. I tried a case in the Western District before Judge Luther Bohanon, who conducted the voir dire and then turned to the plaintiff's counsel and inquired, "Do you have any questions you'd like asked?" The plaintiff's attorney said no. Judge Bohanon then turned to me and said, "Mr. Priest, any questions for the jury?" I saw an opening and immediately jumped up, said thank you to the court and approached the jury box to conduct my one and only federal court voir dire. Neither the judge nor the plaintiff's counsel stopped me, and I thought I gained a better connection with the jury. Learn to be alert to opportunities wherever you find them. But don't get in the jury box.

LOOKING FOR TROUBLE-MAKERS

Attorney Rachel Farrar wrote an outstanding article in the Oklahoma Bar Journal in 2018 about spotting "authoritarian" personalities, and I commend it to your reading: “Authoritarian Jurors and How to Spot Them.”[5] In the article, Ms. Farrar writes:

Psychologists, jury consultants and other social and legal experts have done a lot of research attempting to determine which, if any, individual juror traits are most likely to predict how that juror will vote at the end of the trial. Repeatedly, results of these studies have shown that the personality trait of authoritarianism frequently and consistently predicts juror verdict preferences in a broad range of case types more so than any other trait, characteristic or demographic

 ...

People who are highly authoritarian typically hold traditional values (such as family values, personal accomplishments, family and national security and conservative religious organization), conform with conventional societal norms and idealize an orderly and powerful society. Because of this, they typically identify with mainstream society, submit to authority, faithfully follow leaders they perceive to be strong and expect everyone else to do the same.

Identifying a juror with these tendencies does not tell you whether or not you want them on your jury. But you need to think ahead to the jury deliberation room because this personality type is likely to lead the discussion and be the jury foreperson.

I tried a case in Noble County for four days, after which the jury deliberated for 12 hours from 10 a.m. until 10 p.m. I didn't think the case was all that complicated and was concerned about the length of deliberations because I was representing the defendant, and long deliberations are typically not good for civil defendants. The jury finally emerged at 10 p.m. with a 9-3 defense verdict. A few days later, I ran into one of the jurors and asked the reason for the lengthy deliberation.

She told me they first selected a foreman and immediately took a straw vote to see where they were: The vote was 9-3 for the defendant. They marked the verdict form and prepared to hand it in, but as the foreperson rose to hail the bailiff, he said, "You know, they took four days to try the case; we should spend more than five minutes deliberating." So the jury deliberated further, going from the initial 9-3 vote to 8-4 and then 7-5. After hours of wrangling, the vote eventually trended back to 8-4, and finally, at 9:45 p.m., one juror who had been voting for the plaintiff said, "I’m tired and want to go home. I’m voting for the defendant,” resulting in the same 9-3 verdict they'd reached after the first five minutes. The authoritarian jury foreman was responsible for the extended deliberations and my extended anxiety.

ERRORS IN JURY SELECTION

Most of the time, you do not get a "do-over" in jury selection. Once the jury is selected, you're stuck with it unless something extraordinary happens. Thus, there are not many appellate cases parsing out errors in jury selection. One case that takes up the cause is In the Matter of AH.[6] The opinion focused on the voir dire in a parental rights termination case. In questioning the jury, the prosecutor talked about "clear and convincing evidence" as the standard of proof. But when an attempt was made to define that standard during the defense counsel's voir dire, the trial court shut it down. This was despite the fact that one of the prospective jurors asked the prosecutor what she meant by that phrase. In reversing the state's verdict, the court stated:

Even if the trial court does not address the burden of proof in its voir dire, allowing counsel to examine potential jurors on this aspect of the case does not usurp the court's duty to instruct the jury. It allows counsel to advise the potential jurors that counsel anticipates the court will instruct them that State's burden before parental rights may be terminated is clear and convincing evidence as defined by OUJI-Juvenile No. 2.5. Allowing such inquiry enables counsel to uncover actual or implied bias and to intelligently exercise peremptory challenges on this crucial issue in the case. If either State or Mother (Defendant) misstates or deviates from OUJI – Juvenile No. 2.5's substance and meaning in discussing State's burden of proof in voir dire and in questioning prospective jurors about it, opposing counsel will certainly object and the court may always intercede to correct the error, so jurors are not misled or confused. Under the circumstances of this case, where State informed the voir dire panel of the burden of proof but the trial court disallowed Mother the opportunity to define the burden of proof, we conclude the trial court abused its discretion.

A different result was reached in Warner v. State,[7] where a juror did not reveal her connection with a second-stage witness even though the names of the witnesses had been announced during voir dire. The Court of Criminal Appeals discussed the importance of voir dire before deciding the juror's mistake was not consequential:

The purpose of voir dire examination is to ascertain whether there are grounds to challenge prospective jurors for either actual or implied bias and to facilitate the intelligent exercise of peremptory challenges. Depriving defense counsel of information that could lead to the intelligent exercise of a peremptory challenge is a denial of an appellant's right to a fair and impartial jury.

…

Upon a review of the record properly before this Court, we find there is no indication Juror Scales deliberately withheld information that she knew a defense witness. The attenuated nature of any relationship between Juror Scales and witness Andrews was such that Ms. Scales could not have been expected to volunteer such information in response to the court's question. ... Further, the record reflects no additional questions were asked by defense counsel regarding Ms. Scales' knowledge of any witnesses. It is the duty of defense counsel to investigate those matters on voir dire, which affect a venireman's qualifications to sit as a juror. That which would have been disclosed by reasonable diligence during voir dire cannot later be made grounds with which to attack the verdict. This case is distinguishable from those requiring reversal when a venireman fails to disclose pertinent information when inquiry is made. Under the facts of this case, if the alleged relationship between Juror Scales and witness Andrews had been known, no basis for a challenge for cause under 22 O.S.2001, § 660, would have been presented. It is well established that all doubts regarding juror impartiality must be resolved in favor of the accused. However, when an appellant requests a new trial based on juror misconduct, the appellant bears the burden of showing both juror prejudice and harm as a result of the juror's service. Defense counsel's mere speculation and surmise is insufficient upon which to cause reversal. [citations omitted]

In a case I defended before the late Judge David Cook in Oklahoma County, I had something similar happen during the plaintiff's case in chief. After cross-examination of the plaintiff's medical expert, the court called a recess. As the witness exited the stand alongside the jurors taking a break, one juror shook the witness's hand, and the two engaged in friendly conversation. I watched it happen and then turned to the bench where Judge Cook had also seen it happen. I requested to go back on the record and approach the bench, and Judge Cook intoned, “Yes, I wish you would.” Eventually, it was decided that the juror would be examined by the court, in camera, with counsel present, and the juror admitted she had been a patient of the provider but had not remembered it during voir dire. The court granted my motion for mistrial based on the juror's faulty memory, resulting in a failure to disclose.

THE IMPORTANCE OF JURY SELECTION

How important is jury selection to success in trial? I agree with this observation from a jury analyst:

Trial lawyers all have different ideas as to what wins cases. Some say the key to winning trials is the opening statement, others will tell you it’s closing argument or the cross examination of the expert or the direct examination of your client or the cross examination of opposing party. While these are important, I'm here to tell you that the number one most important part of the trial and what is absolutely critical to getting a verdict in your favor, without exception, is jury selection.[8]

Voir dire is your first opportunity to interact with the jury and begin the process of leading them to the verdict you desire. There is hot debate about the stage at which jurors begin making up their minds, but at least one scholar believes it's during voir dire. Margaret Roberts states in her book Trial Psychology: Communication and Persuasion in the Courtroom, "Approximately seventy percent of the jurors have reached a verdict by the conclusion of the voir dire [in those states that allow a full voir dire examination] and only rarely change this opinion."[9]

Read that again: 70% of jurors have reached a verdict by the conclusion of voir dire. Even if that quote is only half true, the trial lawyer owes it to their client and themselves to be extremely well prepared and conduct a thoroughly professional and effective voir dire. The moment you step into the courthouse, potential jurors are watching you. Effective advocacy requires thoughtful and insightful jury interaction at all times but especially during voir dire.

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ABOUT THE AUTHOR

Jim T. Priest is a trial lawyer and nonprofit leader who volunteers for the Oklahoma Innocence Project and serves as a mediator/arbitrator for Dispute Resolution Consultants. He can be reached at jim@sage-counsel.com.

 

 

 

 

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ENDNOTES

[1] Irving Younger, Trial Techniques, tape 1 (jury selection), available on YouTube, https://bit.ly/3J324qq.

[2] “Challenge to the Array,” Cornell Law School website. Last reviewed July 2022. https://bit.ly/4nK9tKE.

[3] 476 U.S. 79 (1986).

[4] York v. AT&T, 95 F.3d 948 (10th Cir. 1996).

[5] Originally published in the OBJ, 89 pg. 13 (May 2018).

[6] 2021 OK CIV APP 39.

[7] 2006 OK CR 40, 144 P.3d 838.

[8] “Why Jury Selection is CRUCIAL to Winning a Case?” Jury Analyst website. Published June 18, 2014. http://bit.ly/48nX4ah.

[9] Margaret C. Roberts, Trial Psychology: Communication and Persuasion in the Courtroom. 41 (1987).