How Should I Start Jury Selection? The Court of Appeals Just Told Me.
by: Henry Oostrom-Shah • August 17, 2025 • no comments
How should I start jury selection? The Court of Appeals just told me—and maybe you, too. Yes, you heard that right. As a new guy who graduated law school in 2023, I’ve often struggled with breaking the ice during jury selection—and doing so in a way that advances my trial theory.
Thankfully, the Court of Appeals (O’Connor, J.) just released an opinion that tells trial lawyers how to pick a jury. Specifically, the opinion in State v. Pugh suggests how we can set up voir dire to ensure the trial judge strikes unfriendly jurors. 341 Or. App. 435, 439–40 (2025). And, if the trial judge denies our for-cause challenges, how we can get the appellate court to reverse a guilty verdict.
Pugh reminds us to sprint to bias as soon as we stand up in front of the panel. Pugh reiterates that trial judges must prioritize an “initial, unprompted statement of bias” when ruling on for-cause challenges. Id. at 436 (incorporating standard from State v. Villeda, 372 Or. 108, 115–16 (2024)). To be clear, “unprompted” doesn’t mean that we waive voir dire or avoid difficult issues. “Unprompted” just means that neither judge nor prosecutor yet tried to rehabilitate the biased juror.
We should seek “initial reactions” that our charges and our clients call forth. Id. at 435 (quoting Villeda, 372 Or. at 115). Don’t insert “undue debate” that pits our client’s innocence against the prosecutor’s position, or the actual panel against some hypothetical jury. Id. For example, some prosecutors are fond of asking “who—even if I proved the case beyond a reasonable doubt—would still vote not guilty?” Don’t do that. Similarly, don’t create “confinement of issues” that calls jurors’ attention too quickly to the facts of your particular case. Id. For example, some defense attorneys provide elaborate hypotheticals that turn out to map closely onto the prosecution’s case, and then ask for responses.
Be curious. Empower jurors to wear their biases on their sleeves. I’ll borrow, perhaps paradoxically, on two terms that have become loaded from opposite ends of our shared political life. We want to make a “safe space” that is not “politically correct.”
Here’s how I tried to put Pugh into practice during a few trials this summer. I walked up in front of the panel, and slowly reiterated the most alarming terms from the indictment the Court had read twenty minutes prior. “Burglary.” Heavy pause. “Strangulation.” Heavy pause. “Assault witnessed by a child.” Heavy pause. The pauses hopefully prompt the same initial responses jurors felt when first hearing the charges. I then raise my hand high and proud. “Raise your hand and keep it in the air if any of those words gave you an immediate gut feeling.” Many jurors raised their hands.
That is, potential jurors had immediately outed themselves as potentially biased jurors. I then followed up with each hand-raiser to find out what their reaction was. None of these terms inspire fellow-feeling towards our clients. And, helpfully if unfortunately, the negative gut feelings tend to come from personal experience. Those biases is harder to shake because they grow from deep roots. If I sensed bias, I asked increasingly closed-off questions to lock jurors into their bias.
The judges in front of whom I practice like to “persuade jurors that they could be fair despite their expressed biases.” Villeda, 372 Or. at 116. Villeda and Pugh are clear. This practice “interferes” with the need to “assess whether the prospective juror’s probability of bias is sufficient to excuse the juror for cause.” Id. at 116-17 (cleaned up). Judges should discount their attempts to retain jurors. But they’ll do it anyway.
Get out ahead of this intervention. It can be awkward to object contemporaneously. Potential jurors might wonder why the judge sees the need to “rehabilitate them,” and why we might want to get in the way. Rehabilitation also chills the forthrightness you’ve hopefully cultivated. That’s because potential jurors will think they’ve given the wrong answers. After all, the shared authority figure (the judge) has put them in the hot seat and punished them by asking increasingly personal questions. Further, you as lawyer are responsible for this torture. Consider moving in limine to prevent this conundrum. I number my motions, and then word my contemporaneous objection to rumblings of rehabilitation as “objection, pre-trial motion number X.”
Flash forward past my questioning and the prosecutor’s to the actual “selection.” Pugh sets the bar quite low for us. We should remind the trial judge that they must be “convinced that a probability of bias of the juror does not exist.” State v. Peckron, 330 Or. App. 284, 292, rev. den., 372 Or. 437 (2024) (citing Lambert v. Srs. of St. Joseph, 277 Or. 223, 230 (1977)). Don’t be afraid to move to strike for cause every single initial hand-raiser. The judge won’t go along with that, to be sure, but you want to insist on the favorable standard. Get specific in tying the juror’s hand-raise to their personal experience and then to bias. Use the juror’s own language if you can. Remind the judge that the initial hand-raise was in response to the very first thing the judge did: read the charges.
Pugh primes us to pick juries systematically, bravely, and with an eye towards the end goal—acquittal. These are thoughts from a guy trying cases. I want to know how things are playing out in courtrooms elsewhere. If you’ve taken Pugh and run with it, I’d love to hear from you. If my response to Pugh reads wrong, I’d love to hear about that, too. I’m an email away: hshah@mpdlaw.com.
