This is what Trump’s defence team is looking for in hush money jurors

‘The profile of attitudes that each side is looking for is very different than it would be in virtually any other kind of criminal trial,’ trial jury consultant tells Gustaf Kilander

Tuesday 16 April 2024 22:53 BST
The Trump defence team will be looking to strike anyone with negative views of the president
The Trump defence team will be looking to strike anyone with negative views of the president (Getty Images)

About 6,000 jurors have been sent subpoenas and about 1,500 were called to appear on Monday by the Manhattan Criminal Courts for former President Donald Trump’s hush money trial.

They will be whittled down to just 12 individuals to make up the jury in the case.

Mr Trump is facing 34 class E felony counts of falsifying business records following accusations that he filed hush money paid to adult actor Stormy Daniels to cover up an affair as legal expenses after reimbursing then-fixer and now-witness for the prosecution Michael Cohen.

Both the defence and the prosecution are working to strike prospective jurors that they see as biased against them. It’s a process of elimination. The defence will be looking to remove those with negative views of Mr Trump and the opposite is true for the prosecution – they will be trying to remove anyone who may be a Trump supporter.

Trump admonished by judge on day two of criminal case

‘Opposite day’

“What you’re focused on is getting rid of people because that’s all you can do,” Steve Duffy at Trial Behavior Consulting tells The Independent. “When we work with attorneys on jury selection, I often refer to it as opposite day.”

“You’re actually trying to find the people who hate you so that you can get rid of them,” he adds.

What the attorneys are focusing on is finding the problematic jurors for their side and getting rid of them via for-cause challenges by establishing their bias or using peremptory strikes.

Mr Trump’s team would undoubtedly want 12 Maga supporters in the jury box and the prosecution may want those who despise the former president to be seated. But because of how the system is set up, that’s unlikely to take place.

Both parties can use for-cause challenges – which means that they may argue for the removal of a juror, usually because they’re biased. It’s then up to the judge to side with the prosecution or the defence on what to do with that particular juror.

Peremptory strikes are when you move to strike a person without having to state a reason. It could be because of their clothes, or body language, but you cannot move to strike someone because of their race, gender, religion, or national origin.

‘The mantra is identify strikes, hide keeps’

Some younger attorneys may look for the “good jurors,” Mr Duffy notes, but that simply puts a “bullseye sign” on their back for the other side to aim at.

“The mantra is identify strikes, hide keeps,” he says.

“In any given trial, pre-judgment is what you should be focused on – who already believes the other side’s case …  it’s very difficult to convince someone of something that they started out disagreeing with,” Mr Duffy adds, noting that there’s already a hefty amount of pre-judgement regarding the former president, considering his widespread fame and notoriety, not only as a president and person but also in relation to if he’s guilty in this case.

“From a prosecution point of view, they are undoubtedly seeking out people who already believe Trump did nothing wrong, or should not be convicted. Whether or not that’s for legal reasons, or just for political reasons, or philosophical reasons,” Mr Duffy says.

Former President Donald Trump returns to the courtroom after a recess during the second day of jury selection at Manhattan criminal court
Former President Donald Trump returns to the courtroom after a recess during the second day of jury selection at Manhattan criminal court (AP)

Jurors who raised their hand during the jury selection for the hush money trial to say that they didn’t believe they could be impartial were dismissed immediately by the judge.

Mr Trump’s legal team will focus on removing those who didn’t initially raise their hand but still believe that the former president is guilty.

This group of people will be much larger than in any other case, simply because of who the defendant is.

The three tiers

“Cut one is anybody who already believes he’s guilty,” Mr Duffy says, adding that beyond the jurors who simply admit they’re biased, there are three tiers of pre-judgement, with the first tier being the “jurors who say ‘I’m not a big fan, but I can be fair and impartial and follow the law’”.

Similarly, “the prosecution will be targeting people who, say … ‘I’m a big fan, but I can be fair and impartial,’” he adds.

Dismissed Trump juror reveals why she could not take part in trial

Both sides will be looking to remove so-called “stealth-jurors,” meaning those who “fully have an opinion and potential prejudgment, but [are] trying to get on the jury,” Mr Duffy says.

“I have no doubt that there are jurors in the pool on both sides, who really want to be on the jury [but] have a very strong opinion, either for or against him, and are deliberately not saying anything to try to get on,” Mr Duffy argues. “The way you figure out who those people are is with background research, which … both sides are undoubtedly doing.”

Mr Duffy says rooting out stealth jurors will be a big priority on both sides, specifically for the prosecution because a unanimous verdict is needed to avoid a mistrial. All the Trump team needs is a single juror who refuses to convict.

“The third sort of juror is the one who has a bias that will impact them, but it’s subconscious, or they’re not willing to admit that,” Mr Duffy says. “That’s who the parties are likely focusing on with their peremptory strikes.”

Eighteen prospective jurors are put in the box at a time, with for-cause challenges able to be raised for the first 12. Peremptory challenges can subsequently also be raised for the first 12, with each side allowed 10 peremptory challenges in a case with a class E felony.

“Normally, there’s not that many jurors that fall into the outright bias or the pre-judgment camp, but here … that’s going to be such a big percentage of the pool,” he adds. “Once you get past that, it’s going to be more complicated.”

Not just about base demographics

“This is where lots of people, including lawyers, will just think it’s about base demographics – are they white or Black? Are they rich or poor? Are they educated or not? Are they a man or a woman? Are they Republican or Democrat?” he says. “It’s more nuanced than that – if it was that simple, I wouldn’t have a job.”

Mr Duffy notes that there’s a “weird tension” between who the prosecution would normally try to get rid of and the facts of the Trump case. “Law and order types” may usually be a prosecutor’s dream, but those who identify that way are often Trump supporters.

“There’s a decent chunk of those people who are Trump voters, and in this case, do their feelings about Trump override how they might feel about someone who was charged with illegal possession of a firearm, or battery or theft,” Mr Duffy says. “I am sure that both sides, particularly the defence, have done a lot of pretrial research on figuring out how these things interact, and what the characteristics are that they really need to get rid of. But it’s more nuanced than I think it would normally be in a garden variety criminal case.”

On the other side of things, those who are “sceptical about the criminal justice system,” which could normally help a defendant, may also be very sceptical of Mr Trump.

“My guess is the profile of attitudes that each side is looking for is very different than it would be in virtually any other kind of criminal trial,” Mr Duffy says.

New York as a trial venue will be tougher on Mr Trump when it comes to the jury pool compared to the area of South Florida where his classified documents case is being handled, “because, in Manhattan, Trump’s supporters stick out like a sore thumb,” he adds.

“The prosecution certainly has [fewer] problems than Trump does,” Mr Duffy notes, but he adds that Mr Trump “doesn’t need to get acquitted”. He just needs for it to be a mistrial.

“Delay is often the defendant’s best friend,” Mr Duffy says. “The percentage of jurors who are outwardly pro-Trump is going to be very low. But he only needs one.”

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