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Trials can be won or lost in jury selection. Donald Trump’s hush money case is no different.
It’s no surprise, then, that so much argument and work went into what questions will be asked of prospective jurors in Manhattan. We saw the 42-question list that Judge Juan Merchan released, and it runs the gamut from routine biographical queries to more specific ones about extremist group membership and feelings about this unique criminal defendant.
To be sure, potential jurors’ answers to these questions will be helpful. But ultimately, the task of jury selection is almost an impossible one. It requires snap judgments of strangers based on limited information in a limited time frame.
Ultimately, the task of jury selection is almost an impossible one. It requires snap judgments of strangers based on limited information in a limited time frame.
It’s a strategic task. Any number of jurors can be dismissed “for cause,” meaning they’re unqualified or simply can’t be fair. Beyond that, each side gets what are called “peremptory” challenges. With those, each side can eliminate potential jurors without having to give reasons (though the other side can object to a challenge that seems based on race, for example, with the judge deciding whether it is).
And though Trump’s 34 counts of falsifying business records are felonies, they’re the lowest class of felonies. That’s relevant for jury selection because the law in this situation gives each side only 10 strikes for the regular jurors (and two for each alternate juror who would sub in if needed). For comparison, the most serious felonies give each side 20 peremptory strikes. (Trump has pleaded not guilty to the charges.)
The limited number of challenges means that lawyers may be in situations where they might not like a particular potential juror, but if they strike them, then a worse one could be lurking around the corner. So it’s a tactical endeavor based at least partly on instinct. With crucial consequences.
That all raises the question of what each side is looking for. The ostensible goal of jury selection is to pick a group that will be fair. But in this case, perhaps more than any other, the two sides likely have far different conceptions of what that means. On that note, The New York Times reported this about Trump’s strategy:
Mr. Trump’s legal team sees the case as winnable, although some believe a full acquittal is less likely than the prospect of finding jurors willing to cause a mistrial by holding out against a unanimous guilty verdict, according to two people with direct knowledge of the discussions.
Of course, mistrials happen, as do acquittals. But any verdict should be based on the evidence and whether the prosecution has proved its case beyond a reasonable doubt. Nonetheless, this reinforces the reality that the case can be won or lost before the first witness is called to the stand. Prosecutors, on the other hand, will seek to avoid such holdout jurors. But there’s no foolproof way of doing so.
And there’s another underrated but important feature of jury selection. Though it’s technically not a setting to argue their cases yet, it’s when each side can make a first impression on the people they’ll hope to convince weeks later at closing arguments. Just as the lawyers are sussing out the potential jurors, those potential jurors are taking stock of the lawyers — as well as the defendant.
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