THE OKLAHOMA BAR JOURNAL 18 | NOVEMBER 2025 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 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. Voir dire is your first opportunity to interact with the jury and begin the process of leading them to the verdict you desire.
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