dissenting:
T1 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.
T2 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.
T3 Here, Plaintiffs seek a new trial, in accordance with 12 0.8. § 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.
T4 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 *584Something 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).
T5 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:
"Q. You did not put in your affidavit that Mr. Fendrych was prejudiced against blacks, did you?
"A. Well, what I said was as close as I could recall. He did not use-he did not use any expletives with regard-I mean, he-he expressed a dislike for African Americans. That is the most suceinet way I can-and accurate way I can say it.
"Q. Is that a quote?
"A. It's not a quote. It's my words saying he expressed a dislike.
"Q. Can you quote what he said that led you to that belief?
"A. It was a number of things. He-it's a-it's a tone of voice we recognize when someone says "that black lady," or "that black juror." I formed an impression based on tone of voice and conduct.
"Q. But your impression didn't rise to the level where you put in the affidavit that you felt he was prejudiced against or biased against blacks, did it?
"A. That's correct."
The trial judge also interrogated the witness:
"The Court: How can you separate out that he was not expressing some dissatisfaction with that person, as opposed to the plaintiff, who was African American?
"The Witness: I can't, Judge. I mean, I'm just trying-I had that impression. And I got it only by tone of voice and there were no, you know, racial slurs.
"The Court But you don't-IL mean, you're not saying that he said that he disliked the plaintiff African American? I mean, we have different African Americans here, and you have one that you've expressed several times that he was exasperated perhaps with that juror.
"The Witness: But with regard to-he spoke of two African Americans, the plaintiff and what I believe he said was another woman juror. And he talked about them at separate times, and he used the same words and the same inflection and I-I was left with an impression that he disliked African Americans.
"The Court: But you can't recall the specific words?
"The Witness: No. But I can tell you, I mean-I can tell you in-absolutely no expletives were used."
And finally:
"Q. Other than the tone of voice and using the word "black," there's no other basis for your judgment that Mr. Fendrych disliked African Americans; is that a true statement?
"A. That is a true statement."
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 *585presumed 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").
T6 In this case, the trial court erred on the side of caution and opted to hold an evi-dentiary 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 re-fleet 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.
T7 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.
T8 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:
It is not only against public policy, but it would be opening the doors of the courts to the practice of fraud and perjury. Litigants against whom verdicts had been rendered would be continually importuning jurors and attempting to obtain from them statements and affidavits upon which such verdicts could be assailed. There would be no end to litigation. It would destroy the very purpose of trial by jury ...
Keller v. State, 1982 OK CR 159, ¶ 19, 651 P.2d 1339, 1343.
T9 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 Cireuit 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 *586which 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";
If a jury does not follow the jury instructions, or ignores relevant evidence, or flips a coin, or falls asleep, then surely that defendant's right to a fair trial would be aggrieved, just as Mr. Benally's was. How could we deny that defendant a chance to use juror testimony to seek a new trial, simply because the jury misconduct did not involve racial prejudice? But if every claim that, if factually supported, would be sufficient to demand a new trial warrants an exception to Rule 606(b), there would be nothing left of the Rule, and the great benefit of protecting jury decision-making from judicial review would be lost.
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.
. See, e.g., Rice v. Emerson, 1937 OK 568, ¶ 8, 181 Okla. 51, 72 P.2d 498, 500; Parrish v. Lilly, 1993 OK 80, ¶ 9, 883 P.2d 158, 160; and Capshaw v. Gulf Ins. Co., 2005 OK 5, ¶ 7, 107 P.3d 595. In Capshaw, we held that an "appellate court's standard of review is not mere ritualistic legal liturgy. It defines the permissible sweep of critical testing to be undertaken by a reviewing court. - Its recitation must be correct and serve more significantly than as an empty gesture." Capshaw v. Gulf Ins. Co., 2005 OK 5, ¶ 7, 107 P.3d 595.
. In fact, the witness, a member of the Oklahoma Bar Association, also happens to be an admitted friend of Plaintiff's counsel, maintaining his contact information in his cell phone and to whom he referred another friend for the job of paralegal with Plaintiff's counsel's firm. Moreover, instead of contacting the court regarding his conversation with the juror, as he is required to do, the witness called Plaintiff's counsel to discuss the matter with him.
. See Rice v. Emerson, 1937 OK 568, ¶ 8, 181 Okla. 51, 72 P.2d 498, 500 ("A very large discretion is vested in the court in determining the competency and qualifications of jurors, and its action should never be disturbed by an appellate court, unless an abuse of such discretion is clearly apparent.")(quoting Bradford v. Territory of Okla. ex rel. J.H. Woods, 2 Okla. 228, 37 P. 1061 (1894)); Parrish v. Lilly, 1993 OK 80, ¶ 9, 883 P.2d 158, 160 (abuse of discretion standard applied in reviewing denial of new trial based on juror racial bias). See also, McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 559, 104 S.Ct. 845, 851, 78 L.Ed.2d 663 (1984)(Jus-tice Brennan, with whom Justice Marshall joins, concurring in the judgment)("Motions for new trial on the basis of juror bias are left to the sound discretion of the trial court, and its deter*584mination should not be lightly disturbed by an appellate court. This is especially true when decision on the motion turns, as it does here, on the particular facts and circumstances involved.").
. The "[clredibility of witnesses and effect and weight to be given to conflicting or inconsistent testimony are questions of fact to be determined by trier of facts, whether court or jury, and not questions of law for the Supreme Court on appeal." Central Plastics Co. v. Goodson, 1975 OK 71, ¶ 29, 537 P.2d 330, 335. See also Video Independent Theatres, Inc. v. Cooper, 1966 OK 219, 421 P.2d 833.
. This Court has looked to federal case law guidance interpreting Fed.R.Evid. 606(b) as it is substantially similar to § 2606(B). Willoughby v. City of Oklahoma City, 1985 OK 64, ¶ 12, 706 P.2d 883, 887.
. See, e.g., Tanner v. U.S., 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987)("evidentiary hearing including jury testimony on drug and alcohol use was not required under Sixth Amendment right to trial by competent and unimpaired juries").