“No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.” – Magna Carta

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” – Sixth Amendment, U.S. Constitution

The idea of a juror in the Western world traces as far back as dicastes in ancient Greece, who resembled a judge to the modern eye more than a juror selected today.[1] The format for a juror you would recognize took shape with the Magna Carta in England in 1215, where the aristocracy could be tried by members of the aristocracy and not the king.[2] This filtered its way through English society and influenced our founding fathers through the Sixth Amendment of the U.S. Constitution phrase “impartial jury of the State and district wherein the crime shall have been committed.”[3] Oklahoma took it to heart and placed it within the core document of the state constitution: “Trial by an impartial jury of the county in which the crime shall have been committed.”[4] In Oklahoma, attorneys shall be allowed to “supplement” the judge’s questions when selecting a jury by asking their own questions.[5]

Why the history lesson for the average trial lawyer? It is important to understand that the idea of a juror and a jury is deeply ingrained in our culture from before our culture was our culture. It has seeped into our books, movies and TV shows, from To Kill a Mockingbird to My Cousin Vinny. Every Oklahoman who will potentially serve on your jury walks into the courtroom with a preconceived notion of what their job is going to be if selected. I submit to the members of the bar three roles a successful trial attorney must fill for a successful, potentially favorable jury selection (also known as voir dire) process for your client: 1) the educator, 2) the confidant and 3) the storyteller.

THE EDUCATOR

“The great enemy of the truth is very often not the lie – deliberate, contrived and dishonest, but the myth – persistent, persuasive, unrealistic.” – John F. Kennedy

Many jurors will be new to this process and not know the rules of the game. Your first role as a successful trial attorney is that of an educator. Introduce the potential juror to the process. Explain to them about opening statements, case in chief, jury instructions and closing arguments. Tell them about bathroom breaks. It is important that you teach the jury about concepts of the law by asking questions to understand what they think they know.

Remember, jurors have a lifetime full of experiences and have learned, correctly or incorrectly, concepts of law and the jury trial process. Previous research has highlighted that bias may be introduced by many factors, such as 1) pretrial beliefs and attitudes, 2) cognitive biases and 3) biased interpretations of evidence by expert witnesses.[6] Ask them what they know about some legal precepts that will come up in the trial. Those questions are best open-ended. Make sure they are right. If they are, congratulate them, and spread the information throughout the panel. If they are wrong, gently correct them, and see if others feel that way. No one enjoys being dictated to or preached at. Your role as an educator should come as a friend bearing knowledge from study and experience, not as a disciplinarian calling out the student for a poor response. The jury has to trust that the information you are giving them is for their benefit and not to show how smart you are.

Failure to educate the jury in a positive way risks having misconceptions about the law make it back to the deliberation room. Cases are not won in jury selection, but they certainly can be lost. A misinformed jury can possess all the right facts and arguments from counsel but come to an incorrect and devastating result for your client. All of which could be averted by bringing it up in jury selection.

THE CONFIDANT

“First of all, if you learn a simple trick, Scout, you’ll get along a lot better with all kinds of folks. You never really understand a person until you consider things from his point of view ... until you climb into his skin and walk around in it.” – Atticus Finch, To Kill a Mockingbird

A jury panel that does not trust you will never offer up personal histories that may reveal bias, impartiality or unfairness. “People who trust each other ... are also more willing to share intimate information.”[7] Offer information about yourself. Reveal to the jury some of your personal stories or beliefs. Provide the jury with privacy, and if someone does not feel comfortable, ask for a sidebar with the judge and opposing counsel, where the potential juror won’t have to air their embarrassing or upsetting story in front of the whole panel.

While some jurors are expressive and outgoing, many will not volunteer information about their personal lives. If you ask a closed-ended question, they will take it. Avoid these at all costs. Get the jury talking. The only way to figure out if they possess any biases is for the juror to talk, not you. Open the line of communication, but get them to tell you their secrets, their stories, their opinions. Ask about the news they watch. Ask about funny stories about their kids, including discipline, credibility and perception.

This information only comes from a juror who feels comfortable with you. Make that juror you are talking to the most important person in the room. Give them your eye contact, attention, sympathy and understanding. Laugh when they say something funny. A juror who gets these cues from you will tell you what you want to know.

THE STORYTELLER

 “One thing I have learned from this experience is that it is hard to keep an audience attentive and involved with a ‘speech,’ but it’s easy if you tell a story that involves your listeners and inspires them with a memorable moral.” – Jim M. Perdue

People are people. From Genesis to Star Wars, human beings crave a story that connects them to the best and worst aspects of the human experience. Our friends and neighbors need something to aspire to, move on from, pity or avenge. While a well-informed, honest and open jury goes a long way, if the jury can’t connect with you on an emotional level, for many, it falls flat. Your client’s story won’t ring true.

It is more than the law and facts that the public desires – it’s the story of why we are here. Juror research indicates that the presentation of evidence in story form is more persuasive than listing facts and witness order recitations.[8] Prosecutors who have presented solidly investigated cases consistent with the law have fallen to a not guilty verdict due to a lack of a compelling story. Defense attorneys have felt the sting of guilt for a client the attorney believed was innocent, with no relatable tales told. Personal injury cases that are well laid out evaporate for want of how it has affected the plaintiff.

Speeches based solely on logic come up short, with many jurors expecting to hear a tale of revenge or infidelity. Love lost or riches gained can fill in the holes of logic when a lawyer is missing scientific evidence. Juries want the reasons, emotions and actions to come together in a story they can understand. It is your job to present it to them. Fail to do so at your own peril and the peril of your client.

BRINGING IT ALL TOGETHER

Example Voir Dire Segment

Attorney: Juror #8, have you ever heard of innocent until proven guilty?

Juror #8: Yeah, I’ve heard of it from movies and TV.

Attorney: Is innocent until proven guilty a good idea?

Juror #8: Of course.

Attorney: Why?

Juror #8: We shouldn’t assume people did it just because someone said so.

Attorney: I would agree with you. Does everyone believe that if given a jury instruction on innocent until proven guilty, they would follow it?

(Everyone in the jury panel says yes, nods and raises their hands.)

Attorney: I remember you telling the judge you have kids. All within a few years of each other, right?

Juror #8: Yessir.

Attorney: I’ve got kids, and whenever someone breaks the lamp, I round up the usual suspects. Juror #8, have you ever rounded them up and asked them questions about the lamp?

Juror #8: Many times.

Attorney: So let’s paint the scene. The lamp is broken, and the kids are standing around pointing at each other. How do you tell how the lamp was broken?

Juror #8: I look at body language and ask them questions and see if the stories match up.

AT THE END OF THE DAY

While we have come a long way from the Magna Carta to Matlock, people are people. An Oklahoma practitioner who introduces their prospective jury panel during voir dire to the three roles of educator, confidant and storyteller, as shown in this article, may not prevail every time. However, tapping the vein of the human experience through knowledge, trust and drama will assist in effectively delivering your message to the jury and increasing your chances for success for those you represent.

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ABOUT THE AUTHOR

Matthew R. Price is an attorney in Muskogee and a founding partner at Hammons Hamby & Price. He represents clients in criminal defense. He also serves as a criminal public defender for the Oklahoma Indigent Defense System in Muskogee, McIntosh and Sequoyah counties. Mr. Price is the involuntary commitment counsel and public guardian counsel in Muskogee County.

 

 

 

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ENDNOTES

[1] http://bit.ly/4ocN34A.

[2] “The 1215 Magna Carta: Clause 39,” The Magna Carta Project, trans. H. Summerson et al. http://bit.ly/4306ghw (last accessed May 5, 2025).

[3] U.S. Const. amend. VI.

[4] Okla. Const. art. II, §20.

[5] Okla. Dist. Ct. R. 6.

[6] Lee J. Curley, James Munro and Itiel E. Dror, “Cognitive and human factors in legal layperson decision making: Sources of bias in juror decision making,” Medicine, Science and the Law (July 2022).

[7] www.psychologytoday.com/us/basics/trust.

[8] Nancy Pennington and Reid Hastie, “Cognitive Theory of Juror Decision Making: The Story Model,” Cardozo Law Review, Vol. 13, (1991) p. 542-543.