NOVEMBER 2025 | 19 THE OKLAHOMA BAR JOURNAL 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. 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. 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). 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.
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