Why jury selection in Trump’s hush money trial will be a daunting task

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The first criminal trial of a former US president will begin with jury selection on Monday.

The hush money case surrounds 34 charges of business fraud following allegations that Donald Trump instructed staff that hush money payments be logged as legal expenses.

Steve Duffy at Trial Behavior Consulting tells The Independent that because of the demographics of Manhattan, where the trial is taking place, the jury is likely to be left of centre as well as fairly well off and more educated than the country at large.

“One thing to understand, and this is true about a lot of things about the jury system, is that it’s different everywhere,” he says, noting that judges have a lot of discretion on how to conduct the process. “Every state, really every county has different specific procedures for just about everything.”

Prospective jurors receive summons

The process begins with prospective jurors receiving a summons in the mail saying they have been selected to appear, initially either in person or by phone, depending on the area and the size of the venue.

Mr Duffy says that because of the high-profile nature of the case, several hundred jurors may be called, “because there’s going to be tons of potential bias issues”.

When the jurors come to the courthouse, they will head to the jury room, where you wait until you’re called.

Once the jurors are brought into the courtroom, the judge will tell them the rules of the trial.

Hardship and bias

The prospective jurors will then be asked about one of the two main reasons for being excused from the trial – hardship – which surrounds any reasons an individual may not be able to serve for the duration of the trial.

Jurors will be informed of the estimated length of the trial and asked if they have a compelling reason for not being able to serve for that time.

“Judges handle this differently and have different standards” for why a juror may be excused, Mr Duffy says. Most judges will let students and caregivers go. If you have young children or an elderly parent who needs care and no one to cover for you, a judge is likely to allow you to step aside.

People who may face economic hardship if they’re absent from work for the duration of the trial, such as people who work on tips or on commission, may also be excused depending on their circumstances.

“Most judges will let jurors who have pre-planned vacation that’s already booked go,” Mr Duffy says.

Judges also ask about bias – any reason why a potential juror may not be able to be fair and impartial.

“Judges have very different interpretations of that … but anybody who the judge deems to have expressed the belief where the judge believes that they cannot be fair and impartial will be excused,” Mr Duffy adds. “In this case, you would anticipate there are going to be lots of people, if they’re being honest, that fall into that camp, either because they’re pro-Trump or because they’re anti-Trump.”

Jury questionnaire

The prospective jurors who remain at this point will fill out a questionnaire covering basic biographic information and questions related to the case.

In the hush money case, the questionnaire includes 42 questions, as well as several sub-questions, such as if a prospective juror is a Democrat or a Republican, or if they’re a member of the Proud Boys, the QAnon movement, or Antifa.

Both sides agreed on the questions, with a final edit done by the judge. Jury questionnaires usually cover a number of experiences and then examine attitudes connected to the case at hand.

A judge will usually give the parties overnight to review the responses, sending the prospective jurors home for the day, while others will decide to continue the selection process immediately after the questionnaire.

The questioning of jurors usually happens in one of two ways – either in the juror’s box with some chairs added to allow for more possible jurors to be questioned at once, or with all the jurors seated in the gallery where spectators and press sit during trials – a process known as Texas-style, which is less controlled but more efficient.

As jurors are removed during questioning, they’re replaced with a new person.

The process here also varies from judge to judge, with some preferring to do a lot of questioning while others do less.

Then the defence and prosecution question the jurors, with some judges imposing tight time limits on this process while others have no limits at all.

Both parties can then push for-cause challenges – meaning 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.

“Once you get through that process, and you have enough jurors to select a jury, then you [have] what’s called peremptory strikes,” Mr Duffy says.

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. 

“Jury selection is a misnomer, you don’t actually select jurors. So it’s not like the NFL Draft,” Mr Duffy says.

Instead, it’s a process of elimination.

“You get rid of people, you strike people. Sometimes that can be done in open court, which is very awkward,” he adds.

Each side will move to strike people from the jury at this time.

“There can be an argument over, ‘What’s your reason for striking this person? Do you have a legitimate reason for striking this person or are you just doing it because they’re Black or a woman or gay? So there can be some legal manoeuvring there,” Mr Duffy says.

“Generally, anybody who’s struck with the peremptory strike is excused. And then, the sides go back and forth until they both accept the panel. And then the panel is sworn in,” he adds.

Alternates are also selected if a juror gets sick or is prevented from serving during the course of the trial for another reason.

Social media research

Speaking about the jury pool for the hush money case, Mr Duffy notes that “Manhattan is one of the most educated venues in the country now … and Manhattan as a whole is also extremely affluent”

As such, most jurors will likely have heard specifics about the case, meaning that the judge is unlikely to use that as a reason to dismiss a prospective juror.

“It’s really going to be whether or not the judge believes that you can be fair and impartial,” Mr Duffy says. “It’s very subjective, and very much at the discretion of the judge.”

The prosecution will be looking to strike any Trump supporters, and the defence will try to remove any left-leaning people, which will be difficult considering that President Joe Biden got 84.5 per cent of the vote in Manhattan in 2020. 

“People who are on the extremes will likely be excused either for cause or by the peremptory challenges,” Mr Duffy says.

“The parties do background research on jurors. So, generally, that means looking at people’s social media, and you can also look at any publicly available information, it’s fair game,” he adds. “And, frankly, everybody involved in any sort of legal proceeding does it with jurors these days, because if you don’t, you’re putting yourself in a huge competitive disadvantage. So they will know who’s Democrat, who’s Republican, if people have made really strong statements on social media.”

‘They will go through a ton of jurors’

“What you are largely going to be left with is a left-of-centre, relatively well-off group of jurors, relative to the rest of the country because that’s Manhattan,” Mr Duffy says, adding that he expects the selection process to be lengthy “given the publicity” and “given how strong people’s feelings are”.

“They will go through a ton of jurors,” he says, noting that selection processes can take days or even weeks depending on how fast a judge wants to move.

Speaking to reporters on Thursday, Norm Eisen, former special counsel to the House Judiciary Committee majority during Mr Trump’s first impeachment, said the processes could take up to two weeks.

Also on Thursday, MSNBC host Katie Phang noted on X that as the hush money trial begins on Monday, “18 prospective jurors will be put in the jury box at a time and each one will read aloud their answers to the 42 questions in the jury questionnaire”.

Prosecutors will then ask questions of those 18 prospective jurors before the defence does the same, 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.

The remaining jurors are then seated for the trial. The process then moved to the next group of six jurors – a cycle which is repeated until 12 jurors have been chosen.