By Dr. Ken Broda-Bahm:
In just over a month, barring any unforeseen delays, New York prosecutors and attorneys for criminal defendant Donald J. Trump will be picking a jury in what’s become known as the “hush money” case. The March 25th trial focuses on the payments the defendant made to former porn star Stormy Daniels on the eve of the 2016 Presidential election. This is, of course, just one of the pending trial dates in a chain of legal entanglements that have dogged the former President and the presumptive GOP nominee to be the next President.
The jury selection stage raises a practical question of fairness. PBS asked the obvious, “Do unbiased jurors exist” to serve on Trump’s trials? Trump and his legal team have an answer, and are on record saying that Trump cannot get a fair jury in many of the relevant venues, including New York and Washington DC. My colleague, Richard Gabriel, who selected juries for OJ Simpson, Casey Anthony, and many other high profile defendants noted in a recent piece in Law 360 that, “Selecting an impartial jury in any of the Trump cases will be extraordinarily challenging.” At the same time, many previous juries have been selected and served in trials of Trump associates Weisselberg and Stone, and for Trump himself in civil cases. In addition, every jury selection faces fairness challenges and it can be useful to look at the extreme cases in order to improve our practice in more common cases.
On these pages, I have previously weighed in with the argument that fair jury selection is possible, but future Trump courts should look into a number of special procedures. In this follow-up, I will share a more specific recommendation on what a voir dire should sound like.
A Sample Trump-Case Individual Voir Dire Script:
The following is my view of a reasonable sequence of questions that could be asked by the court during jury selection in any of the pending cases against the former President. The goal is to represent a version of a questioning strategy that could be adapted to any very high-profile jury selection.
The assumption is that these questions would be initiated by the judge during individual voir dire, with follow-up questions allowed by counsel. The premise would also be that potential jurors are being pulled from a very large panel so there is no real concern with running out of potential jurors. In addition, the standard for an accepted cause challenge should be relatively low, and that determination should be based on a reasonable understanding of the potential juror’s full communications, and not just on their professed willingness to “be fair.”
The objective of the questioning should be to create an atmosphere conducive to juror candor, and to encourage the potential juror to honestly share their knowledge and feelings while allowing counsel to pursue cause issues. In all cases, the court should want to have a reasonably in-depth conversation before jumping to that “can you be fair” criterion question. The goal is not to run through a list of questions in order to clear the juror. Rather the goal would be to have a conversation in order to develop a reliable judgment on whether the individual is suited to be a juror in this case or not.
Knowing that there are many approaches, here is how I would advise approaching the voir dire.
Introduction:
1. This case is very important: to the prosecution, the defendant, and in many ways to the nation as a whole.
2. Our need is for a fair process. That challenge is present in every case, but is clearly heightened in this case. Because these charges have a very high profile, because so many people already have knowledge and opinions about the case, and because both sides deserve fairness, we are taking some extra steps to make sure that our system works.
3. What we need to ask from you is absolute honesty. In this case, admitting to difficulty or discomfort in sitting as a jury, or admitting to some knowledge or opinions that may make it harder for you to serve as a fair juror is perfectly appropriate. Admitting to a problem in being fair is not a failure on your part. Indeed, it is what this process is designed for. There are no “right” or “wrong” answers to the questions I will be asking, only honest answers. We need to ask you to be thoughtful, complete, and candid.
4. I also want to remind you that you are under oath, and that oath is important. You have promised under the law to give complete and honest answers, and there are legal consequences to violating such an oath.
5. As I move through these questions, you may be tempted to say that you can set aside a view because in this context, that seems like the right thing to say. That is something called “social desirability bias,” which refers to the well-documented tendency to want to give what seems like the “right” answer in social situations. In this situation, you may think that I want you to say that you can be fair, but the only thing I want is for you to give a thoughtful and honest answer. So, for all the questions that I or counsel ask, don’t respond automatically, give it some thought.
Knowledge:
6. What have you heard or read about the current legal cases against Donald j. Trump? Take a moment and share what you know or believe about these cases.
7. What have you heard or read about this case in particular?
8. What opinions, if any, have you formed?
9. We will ask you not to start with that opinion or that knowledge, but to instead attempt a mental reset in order to start with an open mind, and focus on only the evidence you hear in this courtroom. How much of a challenge would that be for you?
Politics:
10. In this country, you have a right to your own political views and your own partisan choices. No one will ask you to abandon those views. You probably wouldn’t be able to even if we did ask you to.
11. We do need to ask, however: Do you have any political views that lead you to believe this case is either legitimate or illegitimate? If yes, what are those views?
12. We will ask you to decide this case based on the facts and the law you hear in court, and not on your political views. How difficult would that be for you?
13. Do you think you would view this case differently than a [member of the other party] would? If so, how?
Public Communication:
14. Have you made any publicly-available statements — including statements on Facebook, X/Twitter, LinkedIn, Instagram, TikTok or other social media — that relate to the legal cases against Donald Trump?
15. In this case, the two sides have conducted research on the communications shared by members of this panel. That includes anything you’ve published personally, and it also includes any of your social media communications that are available to the public. I understand that this can feel like an invasion of your privacy, but I can assure you that the lawyers for both sides are bound by law to stick to what is already public information, and to not go behind any privacy walls in order to access any of your personal communication, or anything else that you have protected from public view.
16. With that in mind, we want to ask you about a few examples of information that you have shared…
Protection:
17. In this case, we will be taking some measures that would not be taken in a typical case. Ultimately, we need a jury focused on the facts and law shared in courtroom, and not a jury worried about the public’s perception or response.
18. For that reason, we are protecting the names and personally-identifying information for members of the jury. Neither the public nor the media will have access to that information. Only after the case is over, and only if the individual former juror chooses to make that information public will it be unsealed. Otherwise, the identifying information for jurors will be protected by the full force of the law.
19. Knowing that, how would you feel about being a juror in this case?
20. Would you be nervous or not nervous to serve?
21. Would you think about any public reaction to your decision?
22. If you made a decision that your immediate social circle disagreed with, how would you feel about that?
23. Would you be concerned about an invasion of your privacy?
24. Would you be uncomfortable in serving for any other reason?
Process Trust:
25. In this country, the judicial system is designed to be based on facts and evidence. That means the targeting of legal cases is not based on the political or partisan goals of those in power. If you were a juror in this case, we would ask for a verdict based on the facts and the law, and not based on any other motivation or goal.
26. That said, there has been criticism of the process, including by the defendant in this case.
27. Do you believe that the court system can meet that goal of focusing on facts and evidence and staying out of politics?
28. Some have spoken of the legal process being “weaponized,” meaning that it is being used as a tool against those perceived as enemies of those in power. What are your thoughts on that?
29. Do you believe that this case is being pursued for political reasons?
Conclusion:
30. We have been talking for awhile at this point. As the time has passed, have you reconsidered any of your previous answers? Has anything come to mind that would supplement or revise those answers?
31. Is there anything we have not asked that would bear on your ability to be a fair and impartial juror in this case?
32. Is there anything else that is important for us to know?
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Other Posts on High Profile Voir Dire:
- The Trump Juries: Adapt Your Procedures for Higher Profile Jury Selections
- Ask the Court to Help You Look for Stealth Jurors
- Don’t Dox Your Jurors
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