REIF, J.:

¶ 1 This case presents important issues regarding the right to jury trial guaranteed by Article 2, Section 19 of the Oklahoma Constitution. The primary issue is whether this right has been violated by a juror who concealed bias against one of the parties during voir dire, and revealed such bias of his own accord after a verdict has been rendered. The second but equally important issue is the standard of review to be employed in deciding a claim of error of this nature. One of the well settled tenets of the right to jury trial is that jurors must be impartial, and bias or prejudice in a case disqualifies one as a juror thereon. Parrish v. Lilly, 1993 OK 80, ¶ 10, 883 P.2d 158, 160. Considering this fundamental tenet with the specific constitutional command that justice shall be administered without prejudice, Article 2, Section 6,1 as well as the general constitutional mandate of due process of law, Article 2, Section 7,2 this Court must conclude that participation by a juror under such circumstances presents a claim of error of constitutional dimension. Error of this nature calls for independent, non-deferential de novo review.3

¶ 2 In the case at hand, a jury returned verdicts in favor of the defendants on plaintiffs' medical malpractice claims. Plaintiffs raised the issue of juror bias for the first time in their motion for new trial. The record of the evidentiary hearing on the motion for new trial reveals that plaintiffs did not learn of the bias on the part of a particular juror until after the verdicts were rendered and the jury discharged. The record reflects that the juror in question went to an Oklahoma City bar later in the day after the trial was concluded. It is undisputed that the juror talked to another individual at the bar about his service on the jury in this case. The other individual was an attorney and a member of the Oklahoma Bar Association. This attorney was employed as a deputy general counsel for an agency of the State of Oklahoma and had no connection to the case or the attorneys for the parties.

¶ 3 According to this attorney, the juror related, inter alia, that (1) the plaintiffs would have never won the case with him (the juror) serving in the case, (2) he (the juror) was not impartial despite stating in voir dire he could be, and (3) he (the juror) wanted to "play the judicial system" and believed plaintiffs had the burden to prove the defendants intended harm beyond a reasonable doubt before they could recover. The attorney also related that the juror expressed his dislike for African Americans. The plaintiffs in this case are African Americans.4

¶ 4 In addition to the statements related by the attorney, it is undisputed that the juror provided inaccurate and incomplete information about his criminal convictions on the juror questionnaire used in voir dire. The juror reported that he had misdemeanor convictions from Linn County, Oregon, and Ventura County, California, but omitted another misdemeanor conviction for theft in the Kirkland Municipal Court, King County, Washington. As concerns the Linn County, Oregon conviction, the juror reported his sentence was three days, when he served 168 hours (seven days) and was placed on thirty-six months of supervised probation. The juror failed to disclose that he was serving the probationary portion of his sentence at the time of trial.

¶ 5 The juror acknowledged that he did talk about his jury service at the place and time as related by the attorney. He denied, however, making any of the statements regarding bias against plaintiffs' right to recover or their race. He acknowledged that his answers on the questionnaire may have been incomplete, but explained that he gave answers in the space allotted on the questionnaire. He stated that he had no bias against the plaintiffs.

¶ 6 Upon de novo review of the record,5 this Court finds that the juror in question entertained bias against the plaintiffs' race and their right to recover under the appropriate burden of proof. In reaching this conclusion, we first note that this is not a case where dissenting or minority jurors are attempting to impeach a verdict with which they do not agree by breaching the sanctity of the jury deliberations. This is a case where a juror voluntarily revealed, after verdicts were returned, that (1) the juror entertained disqualifying bias against one party's race and right to recover under the appropriate burden of proof, and (2) deliberately concealed such bias upon voir dire in order to participate in rendering verdicts consistent with such bias.

¶ 7 In rejecting the juror's denials that he entertained such bias or made statements that revealed the bias, we first observe that jurors' assurances that they are unbiased are not dispositive or the sole test. Bickell v. State, 1928 OK CR 285, 41 Okla. Crim. 35, 270 P. at 89. As the court in Bickell pointed out: "Prejudice is a subtle thing [that] exist[s] in the mind of an individual [and often] cannot be discovered, except by the conduct of some expression of the person entertaining it." Bickell, 1928 OK CR 285, 41 Okla.Crim. 35, 270 P. at 89. The Bickell court went on to say that "the circumstances surrounding the juror should be considered in determining his competency." Id. We find that the juror's misleading answers on the voir dire questionnaire and his revelation of bias to the attorney are sufficient circumstances or expressions upon which to conclude the juror entertained disqualifying bias.

¶ 8 We also think it important to explain why we have given great weight to the testimony of the attorney to whom the juror revealed his bias. This attorney is a member of the bar of the State of Oklahoma who has sworn to reform falsehoods done in court when the attorney has knowledge of such falsehoods. 5 O.S.2011, § 2. The juror's concealment of his bias and admission that he deliberately did so to participate in returning verdicts consistent with his bias constituted a "falsehood done in court" that the attorney was duty bound to bring to the attention of court.

¶ 9 Oklahoma jurisprudence has long recognized the general rule that "[i]f the objection [to a juror] relates to the moral capacity or impartiality of the juror [even] if not discovered until after the verdict, it would no doubt be as good a ground for new trial as a cause of challenge before." Carr v. State, 1938 OK CR 106, 65 Okla.Crim. 201, 84 P.2d 42, 46. The syllabus of the case indicates this rule applies to the discovery of a ground to disqualify a juror after verdict when the juror falsely qualifies on voir dire, knowing of the disqualifying ground.

¶ 10 It is well settled that "Courts have a duty to enforce strict observance of the constitutional and statutory provisions designed to preserve inviolate [the] right to, and purity of jury trial." Jackson v. General Finance Corp., 1953 OK 22, ¶ 7, 208 Okla. 44, 253 P.2d 166, 168. As the appellate courts of this State have previously observed, every citizen is "entitled to jurors who [are] unbiased and qualified and `not only of one such juror, nor eleven but twelve of such class.'" State v. Smith, 1958 OK CR 6, ¶ 12, 320 P.2d 719, 724 (cited approvingly in Parrish, 1993 OK 80, at ¶ ¶ 11, 14 n. 3, 883 P.2d at 161).

¶ 11 In the Parrish case, this Court squarely held that "[e]ach and every person who sits on a jury, regardless of the number of jurors required to render a verdict, must satisfy the constitutional and statutory requirements of impartiality." Parrish, 1993 OK 80 at ¶ 15, 883 P.2d at 162. This Court also said that when an individual with disqualifying bias has served on a jury, "this Court will not engage in speculation regarding the influence such juror may or may not have had on the other members of the jury." Id. at ¶ 16, 883 P.2d at 162.

¶ 12 "Subjecting a party to anything less than twelve impartial jurors, where twelve jurors are guaranteed, will not survive judicial scrutiny." Id. at ¶ 15, 883 P.2d at 162. The error in such cases cannot be considered harmless and will result in reversal. Id. at ¶ 16, 883 P.2d at 162.6

¶ 13 In reaching this conclusion, we think it is important to stress that this is a fact specific case of juror bias and not a case of a juror impeaching a verdict. In the case of bias, prejudice is presumed, and the impact of the bias on the verdict need not be proven. Parrish, ¶ 16. Such bias presents a fundamental constitutional issue involving violation of the absolute right to a fair trial and an impartial jury. Such an issue is reviewable de novo.

¶ 14 One of the significant facts in this case is that the disqualifying bias was disclosed by the juror himself, and not by other jurors repeating statements made by the juror during deliberations. Another significant fact is that the juror spontaneously disclosed the bias to a person unconnected to the parties and their counsel, and not in response to prying questions by the parties or their counsel. We stress these points to limit our holding in this case to cases with comparable circumstances.

¶ 15 We also stress these points to make it clear that this Court does not condone jurors impeaching verdicts, or disclosing statements made by other jurors during deliberations. Neither do we endorse efforts by the parties or their counsel to discover a juror's thoughts or personal decision-making process. In a few words, the shocking circumstances of this rogue juror are an absolute factual anomaly that we hope is never to be seen again in Oklahoma jurisprudence. We caution that we will not permit the holding in this case to be used to manufacture a ground for new trial, but we are likewise not hesitant to afford the remedy of new trial free from bias, if such circumstances are ever repeated.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; JUDGMENT OF THE TRIAL COURT REVERSED AND REMANDED.7

¶ 16 TAYLOR, C.J., COLBERT, V.C.J., EDMONDSON, REIF, and COMBS, JJ., concur.

¶ 17 WINCHESTER, J., dissent.

¶ 18 KAUGER, J., not participating.

¶ 19 WATT, J., disqualified.

¶ 20 GURICH, J., recused.

COMBS, J., with whom COLBERT, V.C.J., Joins, Concurring:

¶ 1 I fully concur in the majority opinion. I write separately to convey my opinion as to the scope of today's pronouncement. The facts in this case present a balancing test as to an individual's right to jury trial before an unbiased and impartial jury guaranteed by Okla. Const., art. II, § 6, and the provisions of 12 O.S., § 2606(B), that limit the inquiry of a juror for post-verdict testimony, thereby preserving finality of judgments, and protecting jurors from inquiry by unhappy non-prevailing litigants. I must fall on the side of our fundamental right to a jury of our peers, unbiased, unprejudiced, and impartial.

¶ 2 This opinion, however, must not be viewed as opening the floodgates to challenge, post trial, each and every jury verdict, by reason of disappointment in the results of a fairly-tried dispute, to an impartial and unbiased trier of fact.

¶ 3 The limitation on the authority of courts to inquire into the reasons underlying a jury verdict does not mean a juror should disregard the courts' instructions. We do not prohibit racial bias in jury selection only to encourage racial bias in jury deliberations. See, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Once seated a juror should not have autonomy as to racial bias. A juror who allows racial bias to influence or dictate an assessment of the case violates their oath as a juror. 12 O.S.1991, § 72, OUJI Instruction 1.3, OUJI Instruction 1.5:

See also, Coddington v. State, 2006 OK CR 34, ¶¶ 10-17, 142 P.3d 437, 443-445, and Grant v. State, 2009 OK CR 11, ¶¶ 20-28, 205 P.3d 1, 14-15.

¶ 4 The facts of this case, must be viewed very narrowly. The juror openly volunteered to a total stranger his predilection to deny the litigants a fair trial. The stranger happened to be a member of the Oklahoma Bar Association whose very oath as an attorney includes the support and defense of the Oklahoma Constitution. If we allow the open, intentional destruction of the justice system, by jurors whose agenda is to deny to others the basic principles of equality and justice by reason of personal bias or prejudice concerning a party, we erode the pillars of our constitution.

WINCHESTER, J., dissenting:

¶ 1 Prior to today, litigants in Oklahoma have always been subject to an abuse of discretion standard for review of cases involving the denial of a motion for new trial.1 Today's majority opinion eviscerates this long-standing precedent and substitutes the more stringent, de novo standard of review in its place. In doing so, the majority has created a vague, two-tiered approach in which to review a trial court's decision on whether to grant a motion for new trial and opens the door to discovery of the mental impressions of jurors on post-verdict attacks. The consequence is that trial judges, litigants, and citizens still do not know what level of trust we will place in the determinations made by the trial court in post-trial juror challenges of this type.

¶ 2 I dissent to today's majority opinion because I would affirm the jury verdicts in the underlying matter and accept the judgment of the trial court, which was reached after a comprehensive evidentiary hearing on the matter, that this juror was able to evaluate the evidence on its own merit and decide the case fairly. To hold otherwise will invite the arbitrary and unnecessary removal of jurors and initiation of costly retrials. Moreover, such holding will also undermine the purpose of § 2606(B). The trial judge is well aware of the necessity of fairness and justice, and occupies a much-advantaged position for evaluating juror bias on a case-by-case basis, having tried this case for over a week.

¶ 3 Here, Plaintiffs seek a new trial, in accordance with 12 O.S. § 651(2), claiming that the misconduct of a juror caused them to receive an unfair trial. My colleagues presume racial bias on the part of the juror based on nothing more than another bar patron's impressions as to a post-trial conversation he had with the juror while at a bar.2 In doing so, the majority wholly disregards the juror's denial of the alleged racial statements as well as the trial judge's evaluation of the credibility of all testimony presented. This Court did not observe firsthand the testimony of the bar patron like the trial court did.

¶ 4 We have always held that the trial court has great responsibility and wide discretion in dealing with a motion for new trial based on allegations of juror misconduct.3 Something more than unverified conjecture is necessary to justify the grant of a new trial where only potentially suspicious circumstances are shown. United States v. Barber, 668 F.2d 778, 787 (4th Cir.1982). Further, even when juror bias is actually shown, not every incident requires a new trial. Misconduct must be clearly shown and there must be a reasonable suspicion that the misconduct improperly influenced the verdict. Mullinix Construction Co. v. Myers, 1960 OK 241, ¶ 31, 358 P.2d 187, 192 (alleged juror perjury during voir dire without clear showing of bias or prejudice is insufficient for new trial on grounds of juror misconduct).

¶ 5 Although I find it reprehensible for anyone, let alone a juror, to utter deprecatory racist remarks, Plaintiffs in this case have failed to show that any juror conduct denied them a fair trial. Plaintiffs' allegations of racial bias are comprised of the following testimony from the Plaintiffs' witness regarding an alleged, post-verdict conversation he had with the juror at a bar:

The trial judge also interrogated the witness:

And finally:

Here, the district court had the opportunity to observe the entire trial proceedings, and the court instructed the jury to decide the case based on evidence received during trial and not from any other source. The court also instructed the jury it must be fair and impartial, it must treat everyone equal under the law, it should not be prejudiced against or biased for a person for such reasons as race, and its decision must not be influenced by sympathy or emotion. A jury is generally presumed to follow instructions. See Sides v. John Cordes, Inc., 1999 OK 36, ¶ 17, 981 P.2d 301, 307-308 (constitutional right to trial by jury "imposes upon the appellate courts the obligation to accord on review the greatest deference to the determination by the trier of fact," and prohibits an appellate court from substituting its subjective view for that of the jury unless the latter's decision is "manifestly wrong").

¶ 6 In this case, the trial court erred on the side of caution and opted to hold an evidentiary hearing on the matter of the juror's alleged bias. At such hearing, testimony was taken from the juror and the witness, based on an alleged conversation the two had while drinking in a bar, and the trial court directly observed the tone of voices, mannerisms and other characteristics that could reflect upon a person's credibility but that are beyond the inherently limited review capabilities of an appellate court. The trial court evaluated the credibility of Plaintiffs' bias claims and rejected the suggestion that Plaintiffs did not receive a fair trial only after weighing all of the evidence.4 This is the exact constitutional due process required to ensure a fair trial and it is completely unnecessary for an appellate court to engage in a full-scale, non-deferential review to substitute its view for that of the trial court. On this record, we cannot conclude that the trial court's decision about the effect of the alleged juror misconduct was arbitrary, capricious, or unreasonable, or a misapplication of the law. Certainly, there was no abuse of discretion. Accordingly, I dissent.

¶ 7 Additionally, the majority claims that because the juror's alleged statements occurred outside the jury deliberation room, the anti-impeachment rule of § 2606(B) is not implicated. Although I would not delve into the admissibility of the juror's testimony as I believe there is no evidence to overturn the trial court's ruling under an abuse of discretion standard, I disagree that the juror's statements do not fall within the ambit of § 2606(B). The majority relies on the alleged statements solely to challenge the validity of the verdict and, therein, the mental processes utilized by the juror in reaching his vote for the verdict. Clearly, this is the very purpose for the existence of § 2606(B). The fact that the alleged statements were uttered outside the jury deliberation room has no bearing on whether they strike at the core of the juror's thought process.

¶ 8 As the Court of Criminal Appeals recognized in Keller v. State, 1982 OK CR 159, ¶ 18, 651 P.2d 1339, 1343, "public policy dictates that jurors will not be permitted to impeach their verdict after they have been discharged and have mingled with the public." The Keller court further found:

Keller v. State, 1982 OK CR 159, ¶ 19, 651 P.2d 1339, 1343.

¶ 9 Here, the majority attempts to distinguish between types of juror misconduct and argues that a heavier burden should exist in cases where there is even a hint of racial bias. The Tenth Circuit addressed this very topic in U.S. v. Benally, 546 F.3d 1230 (10th Cir.2008), and rejected the defendant's attempt to characterize racial bias as a more serious and fundamental danger to the justice system than other types of juror misconduct.5 In Benally, the court recognized that while racial bias may be especially odious, it would be difficult to fashion a distinction which would allow juror impeachment testimony, contra to Rule 606(b), in only the "most serious" cases of alleged juror misconduct. U.S. v. Benally, 546 F.3d 1230, 1241 (10th Cir.2008). The Benally court reasoned that no principled reason exists "to limit the exception only to claims of bias, when other types of jury misconduct undermine a fair trial as well":

U.S. v. Benally, 546 F.3d 1230, 1241 (10th Cir.2008).

¶ 10 The majority claims that the injection of alleged racial bias in this case requires a heightened standard of review because of the constitutional right to a fair and impartial trial. However, the determination of whether a juror is biased in favor of one of the parties, and whether such bias renders a fair and impartial trial impossible, has always been a matter this Court has left to the sound discretion of the trial court. Only in cases where the trial court has been shown to abuse that discretion have we overturned its ruling. If a juror engages in misconduct, whether such misconduct consists of race, gender, or age discrimination, or just plain incompetence,6 the end result is the same and that is the suggestion that a fair and constitutional trial cannot be had due to such misconduct. Regardless, our standard of review has steadfastly remained abuse of discretion. Because I believe today's decision will allow arbitrary and open-ended post-verdict inquiries to jeopardize the important policies underlying § 2606(B) and will impose additional costs on the parties, jurors and the judiciary, I respectfully dissent.