NOVEMBER 2025 | 15 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. 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. Kentucky3 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:
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