EXAMINATION BY THE COURT
I will now ask you a number of questions to determine your qualifications to serve as jurors in this case. To determine your qualifications I will need to obtain information from each of you, including some personal information. The purpose of these questions is to obtain a fair jury and it is not to embarrass you. If any of my questions should touch on sensitive subjects that you do not want to have heard by everyone present, you should tell me, and you can then come forward so that we can discuss those matters privately.
1. Do you reside in [Name of County] County?
Okla. Const. art. 2, § 20 requires "trial by an impartial jury of the county in which the crime shall have been committed." Not every juror who reports for service on the jury panel is necessarily a resident of the county, and so the judge should make sure that all non-residents are removed from the jury.
2. The attorney(s) for the State is/are [Name the Attorney(s)]. Do any of you know the attorney(s) for the State? Has the District Attorney's office handled any matter for any of you?
3. The attorney(s) for the defendant(s) is/are [Name the Attorney(s)]. Do any of you know the attorney(s) for the defendant(s)? Has/Have the attorney(s) for the defendant(s) [or his/her law firm] represented you on any legal matter?
4. The defendant(s) in this case is/are is [Name the Defendant(s)]. Do any of you know the defendant(s)?
5. Do/Did any of you know [Name the Alleged Victim(s)], or any member of his/her/their family?
6. The witnesses who may be called in this case are [Name the Witness(es)]: Do any of you know any of the witnesses, or any member of their families?
7. Have any of you read or heard the alleged facts of this case? Have you expressed or formed an opinion concerning this case? Would any information you have read or heard concerning this case influence your ability to hear or decide this case impartially? Have you discussed this case with anyone prior to today?
8. Have any of you had any experience that you feel might affect your consideration of this case?
9. Are you or any of your friends or relatives employed or involved with a law enforcement agency or organization? Have you or any of your friends or relatives been connected with law enforcement in the past? Do you hold or have you held a "Reserve Deputy Commission," a "Special Deputy Commission," or an "Honorary Deputy Commission"?
Under 38 O.S. 2001, § 28 , sheriffs or deputy sheriffs are disqualified from serving as jurors. The Court of Criminal Appeals has held that a person who holds a "reserve deputy commission," a "special deputy commission," or an "honorary deputy commission" is similarly disqualified from serving as a juror, even though the person holding this commission has no legal authority or legal duty to act as a deputy sheriff. State v. Smith, 1958 OK CR 6, 320 P.2d 719 ; Henderson v. State, 95 Okl. Cr. 342, 246 P.2d 393 (1952); Allen v. State, 70 Okl. Cr. 143, 105 P.2d 450 (1940); Carr v. State, 63 Okl. Cr. 201, 84 P.2d 42 (1938); Tripp v. State, 63 Okl. Cr. 41, 72 P.2d 529 (1937).
10. Have any of you ever been charged with or accused of a crime? Have any of your friends or relatives ever been charged with or accused of a crime?
11. Have any of you ever been victims of a crime? Have any of your friends or relatives ever been victims of a crime?
12. I will instruct you on the law and the rules by which the jury reaches a verdict. Your duty as jurors is to accept and follow the law as included in the instructions and rules given to you by me. If selected as a juror, will each of you accept and follow the law as included in the instructions and rules that I will give to you?
One instruction I will give is that the/each defendant is presumed innocent of the crime charged, and the presumption continues unless after consideration of all the evidence you are convinced of his/her/(each defendant's) guilt beyond a reasonable doubt. The State has the burden of presenting the evidence that establishes the guilt of the/each defendant beyond a reasonable doubt. The/Each defendant must be found not guilty unless the State produces evidence which convinces you beyond a reasonable doubt of each element of the crime. If selected as a juror, will each of you presume the/each defendant innocent unless proven guilty beyond a reasonable doubt?
[Select either Alternate 1 (No Death Penalty) or Alternate 2 (Death Penalty)].
Alternate 1 (No Death Penalty)
Another instruction I will give is that as jurors, if you find the defendant(s) guilty, you will have the duty to assess punishment. The punishment for the crime of [Name the Crime Charged] is a possible maximum punishment of (a term in the State Penitentiary for [possible maximum years in Penitentiary])/(a term in the County Jail for [possible maximum jail term]) and/or [a fine of (possible maximum fine)].
If selected as a juror and you find the defendant(s) guilty, will each of you assess punishment in accordance with the law?
Notes on Use
Alternate 1 shall be given except when the crime charged is murder in the first degree and the death penalty is sought. It should be repeated for each crime charged.
If the charge involves an "after former conviction" charge, Question 11, Alternate 1, should not be given at voir dire. See 22 O.S. 2001, § 860.1. No discussion of the possible punishment in an "after former conviction" case should be given to the jury until the second stage of the trial.
Alternate 2 (Death Penalty)
The defendant is charged with murder in the first degree. It will be the duty of the jury to determine whether the defendant is guilty or not guilty after considering the evidence and instructions of law presented in court.
If the jury finds beyond a reasonable doubt that the defendant is guilty of murder in the first degree, the jury will then have the duty to assess punishment. The punishment for murder in the first degree is death, imprisonment for life without parole or imprisonment for life.
You may not consider imposing the death penalty unless you find that one or more aggravating circumstances exist beyond a reasonable doubt. Aggravating circumstances are those which increase the defendant’s guilt or enormity of the offense. You also may not consider imposing the death penalty unless you unanimously find that the aggravating circumstance or circumstances outweigh any mitigating circumstances which may be present. Mitigating circumstances are 1) circumstances that may extenuate or reduce the degree of moral culpability or blame, or 2) circumstances which in fairness, sympathy or mercy may lead you as jurors individually or collectively to decide against imposing the death penalty. Even if you find that the aggravating circumstance(s) outweigh(s) the mitigating circumstance(s), you may impose a sentence of imprisonment for life with the possibility of parole or imprisonment for life without the possibility of parole.
If you find the defendant guilty of murder in the first degree, can you consider all three of these legal punishments--death, imprisonment for life without parole or imprisonment for life--and weigh the aggravating circumstance(s) against the mitigating circumstances to impose the punishment warranted by the law and evidence?
[If the answer to the preceding question is negative]
If you found beyond a reasonable doubt that the defendant was guilty of murder in the first degree and if under the evidence, facts and circumstances of the case the law would permit you to consider a sentence of death/(imprisonment for life without parole)/(imprisonment for life), are your reservations about the penalty of death/(imprisonment for life without parole)/ (imprisonment for life) so strong that regardless of the law, the facts and circumstances of the case, you would not consider the imposition of the penalty of death/(imprisonment for life without parole)/(imprisonment for life)?
[Required To Be Asked In All Death Penalty Cases] - If you find beyond a reasonable doubt that the defendant is guilty of murder in the first degree, will you automatically impose the penalty of death?
Notes on Use
Alternate 2 shall be given when the crime charged is murder in the first degree and the death penalty is sought. The Oklahoma Court of Criminal Appeals emphasized in Hanson v. State, 2003 OK CR 12, ¶ 6, 72 P.3d 40, 46-47 , that "[t]his Court has repeatedly held that, if a defendant so requests, either he or the trial court must ask prospective jurors whether they would automatically impose a sentence of death." While the Committee acknowledges that Morgan v. Illinois , 504 U.S. 719 (1992) does not require the last question to be asked absent the request of defense counsel, the Committee believes that the interests of justice and judicial economy will be best served if the trial court asks this question in all death penalty cases.
The punishments authorized in 21 O.S. 2001 § 701.9 are death, imprisonment of life without parole, and imprisonment for life.
The United States Supreme Court held in Witherspoon v. Illinois, 391 U.S. 510, 521-22 (1968), that the death penalty could not be carried out if it was imposed by a jury from which jurors had been excluded because they voiced general objection to the death penalty or conscientious or religious scruple to it. A juror may be challenged for cause, however, if that jurors's views on capital punishment would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424 (1985), quoting Adams v. Texas, 448 U.S. 38, 45 (1980). See also Trice v. State, 1993 OK CR 19 , ¶ 8, 853 P.2d 203 , 209 (applying this standard). A juror should not be excused for cause because he or she disagrees with the death penalty or even if imposing it would do violence to the juror's conscience. Banks v. State, 1985 OK CR 60 , ¶ 10, 701 P.2d 418 , 422 ("Violence done to one's conscience is not the point of the Witherspoon voir dire examination."). Instead, the trial court's concern should be "whether each jury member will consider the imposition of the death sentence, as one of the alternatives provided by state law, should the case be appropriate for that punishment." Duvall v. State, 1991 OK CR 64 , ¶ 24, 825 P.2d 621 , 630.
In addition to being willing to consider imposition of a death sentence, if warranted, a juror must also be willing to consider the alternative sentences of imprisonment for life without parole and imprisonment for life. The United States Supreme Court held in Morgan v. Illinois, 504 U.S. 719, 735 (1992), that a trial court's refusal to inquire into whether a potential juror would automatically impose the death penalty upon conviction of a defendant was a violation of due process of law. See also Ross v. Oklahoma, 487 U.S. 81, 85 (1988) (juror who stated that he would vote to impose death automatically if the jury decided that the defendant was guilty should have been removed for cause). In Hanson v. State, 2003 OK CR 12 , ¶¶ 6-8, 72 P.3d 40, 46-47, the Oklahoma Court of Criminal Appeals remanded for capital resentencing because the trial court did not allow defense counsel to ask whether any juror would automatically impose death.
Although Alternate 2 does not conform exactly to the language that the Court of Criminal Appeals recommended in Duvall v. State, supra, Alternate 2 is consistent with Duvall's holding. It also incorporates the requirement in Morgan v. Illinois, supra, that the trial judge should question the jurors about whether they would give appropriate consideration to life imprisonment as well as the death penalty. Cf. Hammon v. State, 1995 OK CR 33 , ¶ 54, 898 P.2d 1287 , 1300 ("A defendant on trial for his life must be permitted on voir dire to ascertain whether his prospective jurors function under the belief that upon conviction the death penalty should automatically be imposed.").
The Court of Criminal Appeals stated in Eizember v. State, 2007 OK CR 29 , ¶ 64, n.10, --- P.3d ----, 2007 WL 2142304, that the trial judge should inform the jury of the process to be followed for determining the punishment and elicit a response to whether the jurors would be able to follow that process.
13. Having been asked these questions, do any of you know at this time any reason why you could not be a fair and impartial juror? If so please raise your hand.
14. The court now requests that each of you give your name, your spouse's name if you are married, your occupation, your spouse's occupation, and the number of children you have. Please speak slowly and clearly. Let us begin with [Note: Indicate the juror who is to begin.]
The Commission urges that the trial court prepare and distribute to the attorneys a sheet with a facsimile of the jury box providing spaces for the attorneys to copy the information requested by the court in question 13.
Jurors should not be asked to give their addresses during voir dire. 38 O.S. 2001 § 36 ("Persons serving as jurors during a trial shall not be asked or required to give their complete residence addresses or telephone number in the presence of the defendant.").