In Trump Trial, Jury Selection Is Part Politics
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My anecdotal experience as a prosecutor is that people do enjoy it and that they feel kind of empowered and they feel better about the jury system once they've served. You mean despite Tina Fey dressing up like Princess Leia and pretending that she can read people's minds, therefore making it unfair for her to serve on a jury? Despite all those people trying to get out of it, the people who actually do it like it? Yeah.

Hello and welcome to the FiveThirtyEight Politics Podcast. I'm Galen Druk. As of Tuesday evening, seven jurors had been selected in former President Trump's Manhattan criminal trial. But as of Thursday morning, as we tape this podcast, it seems like at least one has dropped out. The selection process is again getting underway today, so we'll see how many jurors we have by the end of Thursday.

Judge Juan Marchand has said that he hopes to have a full jury, so 12 jurors and six alternates, selected by the end of the week. It seems at this point like that may be a little overly hopeful, but we'll see. The jury is going to remain unvoted.

anonymous, but some details about them have been made public. So, for example, the foreman is originally from Ireland, lives in Harlem and works in sales. There are two lawyers in the group. There's a lifelong New Yorker and teacher who was apparently unaware that Trump is facing three other potential trials. And there are many others.

In order to get on the jury, these Manhattanites responded to a questionnaire with 12 questions ranging from whether they belong to QAnon or Antifa to what podcast they listen to. We don't know. I haven't been able to figure out if anyone listens to this podcast. But the attorneys on both sides scrutinized their social media posts, asked them questions about their opinions of Trump, and had the opportunity to ask that they be removed from consideration.

This is all with the goal of impaneling an unbiased jury capable of rendering opinion in accordance with the law and the facts. It's one of the most important parts of the process, as anything but a unanimous decision will result in a mistrial. It's also a process that gets at the heart of a lot of what we talk about on this podcast. Based on a person's own biography or demography, how do they feel about the former president and his criminal prosecution?

So that is what we're going to talk about today, as well as some of the broader legal questions. And joining me to do that is Jessica Roth, professor at the Cardozo School of Law and former federal prosecutor. Welcome back to the podcast, Jessica. It's a pleasure to be here. And also with us today is Valerie Hans, professor at Cornell Law School, whose research focuses on the jury system. Welcome to the podcast. Thank you.

All right, so we're going to dive right into the polling here. In the New York Times' Siena College poll that came out last weekend, 46% of registered voters said Trump should be found guilty in, quote, the New York state trial of Donald Trump related to hush money payments made to the porn star Stormy Daniels. 36% said he should be found not guilty, and 18% said they did not know or refused the question. Now, the numbers in Manhattan specifically probably look quite different from that,

But to start off, Valerie, should the jury be made up only of that 18% of folks who say that they don't know the answer to this question in this moment? That's a really great question. It's such a challenge in a case like this that has saturated the news to pick a fair and impartial jury. But we've got the tools to not only include those 18%, but also some of the people who believe they have prejudged

but actually could be open to new evidence in the case. And one of the things I thought was fascinating is the prosecutor in questioning the prospective jurors earlier this week asked them whether or not they would be open to evidence as opposed to relying only on the things they had seen in the media. So I think we can include the entire group. Interesting. Jessica?

I was smiling when you were talking about that poll because there's part of me that thought, well, that's sort of a ridiculous poll. It's only in the sense that, you know, what are people basing their answer on? They don't know what the evidence is that's going to be presented at the trial. They probably don't even know exactly what the charges are.

and what the elements are of those charges. So, you know, it's interesting as a political poll, but as a question of how actually would people render a verdict if they were chosen as jurors, there's a sense in which, you know, it's really sort of to the side of the inquiry. What I would want to know of the people who didn't fall into that 18%, who basically said they didn't know, is, okay...

So you may have given this answer to this previous poll, but now you're actually being considered to be a juror in this case. Can you put aside whatever view you had before that may have informed the answer you gave to that poll and listen to the evidence presented in this case and base your verdict solely on that evidence and the instructions on the law that the judge gives to you? And let's see how they answered that question.

Incredible numbers of people are self-declaring themselves unable to be fair and impartial. Of that first group of 96, what, close to 50, right, said they

their attitudes and views were such that they did not think they could be fair and impartial in this case. Now, some of them might not have wanted to be on this jury and knew that that was the answer to give. But I think quite a few of them actually thought, yeah, deciding this particular case would be difficult for me. I don't think I could really keep an open mind as I look at the evidence for and against Donald Trump.

Is that unusual? Is there usually a 50% fail rate in terms of people saying they couldn't serve as an impartial juror? Jessica, I don't know about your experience, but it's unusual from the cases that I know about. Yes, and it's also unusual that the judge would just excuse people at that point.

Right. So that was one of the decisions that the judge made here at the outset of this process was that he was going to just excuse without further questioning all of those who self-identified as being unable to be fair and impartial in this case as a matter of just expediency. He said that when he was choosing the jurors for the criminal trial against the Trump organization in 2022,

He asked people this initial question, if there was anything about this case that made them think they couldn't be fair and impartial. And if people said yes, they thought there was something, he would ask follow-up questions, and that it usually led to those people being excused for cause. And he said given that that was his experience in the case,

that other closely related case involving Donald Trump, that he thought it would just be more efficient to dispense with that further questioning for people who gave this initial answer. He was also concerned about the logistics of doing individual questioning of those many people at the outset, given that we had Secret Service agents who were sort of

part of this process. So you have a lot more bodies sort of involved in the courtroom than in the normal run-of-the-mill voir dire. So it's unusual for people to self-identify at that rate as being unable to be fair and impartial. And it's also unusual that a judge would essentially just take that as the final word on the subject without probing further.

But you've got to say it is more efficient. That was a huge number of individuals that we were able to eliminate right off the bat. This gets us very quickly to a fundamental question about jury trials, which is for the folks who said they could be fair and impartial, should we expect that some of those folks are lying?

Well, the fact of the matter is it's pretty hard to estimate ourselves whether we can be fair and impartial. And I saw this in some of the back and forth between the attorneys and prospective jurors where jurors would say, whatever my political views are, that has no bearing on whether I could be fair and impartial. And in fact, political views might help shape our

how you interpret evidence in a case. So it's reasonable for the attorneys to want to know more about what those particular views are. Yeah, and, you know, what we saw is the lawyers looking at the social media postings of some of these potential jurors, and in some cases, you know, sort of confronting the potential jurors, say, well, you posted this, something about, you know, how Trump's travel ban was struck down or something, you know, and then you wrote, yay, and then you followed it up with, and lock him up. Yeah.

but you're saying you could be fair and impartial. So how can that be? And so I think it is reasonable to ask the jurors at the outset, do you think you can be fair and impartial? Then to do a little bit of digging and to see what they say when asked about something specific that they've said in the past. I think for that particular juror, the judge actually did excuse that juror for cause, right? And the judge said if

If the person had stopped with the comment about the travel ban case, the judge wouldn't strike the juror for cause, but followed up with something like lock him up about Donald Trump, that that betrayed a bias that the court thought. It just wasn't reasonable to think this person would necessarily be able to be fair and impartial, notwithstanding their protestations to the contrary.

Yeah, I think we're already getting at some very interesting questions that we address in polling, which you mentioned, you know, that's a political poll, a snapshot in time. When I talked about the New York Times-Siena College poll, there will be more polling after this trial is conducted, and maybe some of those numbers will shift. And perhaps that's, in some ways, the whole point of this process, or at least part of the rationale for making sure this gets done before the election.

And then to your point, Valerie, about, you know, sometimes people aren't the best at estimating their own ability to be unbiased. You know, this questionnaire, just like a poll, we can only go off of what folks tell us. In polling, we try to sometimes marry the responses to revealed preferences. Like, you know, you say that you prefer this policy, but when we look at data about who's doing X or Y, we see that the data doesn't exactly line up. So it's a really interesting question, especially

Speaking of data, I want to ask this question. According to census data, New York County or Manhattan is roughly 46% white, 26% Hispanic or Latino, 19% Black, and 13% Asian. And in 2020, 86% of New York County voters supported President Biden, while 12% supported former President Trump.

Should we expect this jury to look like New York County? Should it look like the wider country? Or should it look like something else? Well, it should look like a group of individuals drawn from that community who say they can be fair and impartial. And often that produces radically different demographic profiles. I am not necessarily anticipating this will look like a typical Manhattan jury.

You know, you're entitled to a jury of your peers in the venue where the crime, the alleged crime occurred, right? So it should be reflective of Manhattan, of New York County. Legally speaking, there's no obligation, right, or requirement that it be reflective of the country as a whole. The jury pool needs to be reflective of the county as a whole.

the actual jurors who are ultimately qualified and seated don't necessarily have to be reflective. They can't be struck during the peremptory round on the basis of race. But if they are struck for permissible reasons and they wind up not, you know, in some way sort of representing a cross-section of the country, I mean, legally speaking, that's not a problem.

So legally speaking, it's not a problem. But of course, the consequences of this trial don't begin and end at just legal questions. This is so political. It's the first criminal prosecution of a former president, perhaps more importantly, a current presumptive nominee for one of the major parties.

So what can be done in this process, if anything, to try to engender trust in an outcome one way or another, to ensure that at the end of all of this, people feel like justice has been served regardless of the outcome? One thing that I think is so interesting is that it's described as jury selection, but in a sense, it's really more about jury deselection. So it's hard to construct the

The jury that you'd like to see for whatever reasons, whether you have some preconceived ideas of who would be the best jurors for you to win the trial, or you have a preconceived idea of politically to have look sort of most and to be accepted as the most legitimate verdict possible to the country as a whole, what would that jury look like, right? It would be very diverse and representative of the country, perhaps.

or maybe you would ideally like it to be all people who seem to be Republican, right? Then if there's a conviction, it would be accepted as legitimate. But the reality is, I don't think the lawyers actually have the capacity, given the constraints on them in this process, to select that jury of their dreams, whether it's for legal reasons or political reasons. What they have the limited tools to do is to strike people for cause,

as to whom there's a real question as to they can be fair and impartial. And then they have 10 peremptories for each side to strike the people who, for whatever reason, they really think are not going to be fair or good for them on their case. They can't essentially sort of pull in additional people who they select, who they think are sort of the best possible jury for them. They have this limited ability to strike the people who they think are bad or not fair.

We have lots of experience in doing high profile trials, maybe especially in Manhattan, trials with notorious defendants and where there's lots of pretrial publicity. One of the things that I think you are able to see in the public is able to see in action are some of the tools that the court has available to try to pick a fair and impartial jury. So one of them is calling a huge number of people so that you're sure not to run out and you can select a jury.

The extensive questionnaire with 42 questions, individual questioning of each prospective juror, and the opportunity, although I think it's limited, for both sides to follow up when jurors answer questions from that questionnaire.

and the anonymity of the jury, partial anonymity of the jury. So I think all of those are things that the court has and is using to do its best to try to pick an impartial jury.

Let's sort of get into that sensitive question, which is what does the ideal jury look like for, we'll start with the defense in this situation, given that it's a real uphill battle in politically unfavorable terrain? Well, I think if they had their druthers, they would choose people who had voted for Trump. Can they ask straight up who they voted for? No. The judge has been very clear. They cannot ask their political affiliation and they cannot ask for whom they voted. But

But some of that information will be available to the lawyers through open source material like party registration and political donations. So because the parties have access and the lawyers have access to the names and addresses of the jurors, they're able to do this research on the jurors, not only for their social media postings, but also any information that would shed light on their political affiliation or political donations they may have made.

If you look at the questions, it seems to me if people answered all 42 questions and subparts of the questions, they would have a pretty good idea about whether or not they were registered Democrat or registered Republican or voted for Trump or for Biden in the last election. Yeah, because some of them is about media. What media do you watch? Yeah, that question alone.

You know, we know from doing the work that we do on the podcast that there's a lot of demographic information that you can collect on somebody that will help you understand how they might vote. So we know that white folks without a four-year college degree or, you know, people who work in blue-collar jobs may be more inclined towards Trump. Men also more inclined towards Trump. We know that...

For example, Black voters have the highest rate of Democratic voting in the country. We know that folks with postgraduate degrees are, in terms of the education spectrum, the likeliest to be Democratic. We also know that, for example, single women are very likely to be Democratic. So to what extent can the attorneys use this information to craft a jury, and you said mainly deselect a jury, that will be amenable to them?

Well, the lawyers can go in, as they probably are, with some conception of who they think are their best jurors based on, as we were discussing, their ideas about people's political affiliation, where they get their media, but also some of these additional characteristics like their education level, their

they do for a living, you know, and how those match up with what they know about people who've tended to be supportive of Trump. They're also going to be asking about prior contacts with law enforcement and people's views of law enforcement. I think the Trump team is probably looking for people who they think have a negative view of law enforcement, who've had sort of negative experiences with law enforcement on the view that those people would be more critical of the prosecution. But

my experience as a prosecutor was that this is really guesstimating, right? And there were always people who surprised you. You thought you had some read on them based on their biographical characteristics or even based on their body language in court. And then you might be wildly wrong about them and how they viewed the case. So these are estimates that are based on sort of rough characteristics, but in the individual case, they can be quite off.

And the data really bear that out. The trial consultants usually, in the biggest cases, conduct community surveys where they not only ask demographic information, but ask questions specifically about the particular trial and try to get a sense –

with constellations of demographic characteristics like we've talked about, that who would have the most favorable, let's say, pro-Trump or anti-Trump perspective. But I agree it's a probabilistic judgment. And people are not simply their demographic characteristics, and there can be variation even within similar groupings of individuals.

The other thing is the trial is also not completely predictable. And here's a case where you have for the prosecution what looks like a strong case documentary-wise, but you also have testimony coming from people with questions about their credibility. And so we'll have to see how all that plays out.

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You get at a really important tension in the work that we do, which is the tension between the group and the individual. You know, you can make conclusions about which group is most likely X or most likely Y or majority X or majority Y, but when you're talking about just 12 people, you don't have a representative sample, and so you're going to find individuals that do not match whatsoever with the kinds of assumptions you might make. I mean, what's actually simply illegal to consider in this process?

Well, race and gender can't be used as a basis for a peremptory challenge. That is, the challenges that the attorneys on both sides have to excuse a juror, to remove a juror without having to give any reason. But how do you know if they don't have to give any reason?

Well, if there's what's called a Batson challenge based on the U.S. Supreme Court case that sort of set forth this rule that you can't strike on those bases, if the other side makes what's called the Batson challenge, basically says, I think you're challenging this juror based on race, then you have to come back with a race-neutral reason for striking them. Like, you know, they were reading a book that was, you know, how to get rid of Trump or something like that, right? Something you can point to that has nothing to do with an impermissible reason, but that is your reason for striking them.

them. And then the judge evaluates it. The experience with Batson has shown it not to be the most effective method for removing these impermissible influences and the exercise of peremptory challenges. In fact, it led one state, Arizona, to abandon peremptory challenges completely. I think we're starting to get more of a philosophical question about how justice should work or theoretical questions about how justice should work in that

In many ways, the system, the results are only as good as the system. And there's a lot of different ways to do this. You can have the peremptory challenges. You cannot have them. You can have trial by jury. You can have not trial by jury. You can have DAs and prosecutors who are elected by a partisan public, or you can have them be appointed. And in some ways, how much the public ultimately trusts the outcome of a trial is

Depends on the system. It depends on how people talk about the system. But do you all feel like this is the best system we have for rendering justice? Is there a better way? Because I think a lot of people, no matter what the outcome is, are going to say, oh, it's all rigged. It's all a bunch of BS. Yeah. Kind of like democracy, the worst possible system except for all the others, right? Yeah. I have seen...

Jury trials send real messages that a person is exonerated, a person is guilty, and that seems to hit home more than judicial decision-making many times. I think knowing that a group from the community was vetted for bias and sat, listened to evidence over time, deliberated and reached a verdict has some more punch, I think. And so I would expect that

It would be seen as more credible than a decision solely by a judge. I want to say really quickly here that we're reaching you while you are in Latin America. You've been doing work in Argentina and Chile and specifically transitioning provinces in Argentina into a trial-by-jury system. And you've been collecting a lot of data on how the public feels about this new system. And because we love data here at FiveThirtyEight, what are these surveys telling you about how

folks feel about a trial by jury system versus a rendering by a judge? It's been fascinating research. We're actually surveying the jurors who participate for the first time in their lives as jurors. When at the beginning, when they got their summons, they didn't even know their province had a jury system. They're surprised by it, but they do a

pretty good job. They look a lot in terms of data like U.S. juries who, of course, have lots more experience and information about trial by jury. And I think most important, after they serve as jurors, they come away with more confidence and more positive views about the courts.

Do we have that effect in the United States, too? Do people who serve on juries have more faith in the law? Both in the United States and here in Latin America, we see some democracy-enhancing features of participating on juries.

The data really back up that people emerge from the experience of serving, of participating actively and reaching decisions that are binding with much more positive views about the courts more generally. And in some really fascinating work, there is evidence that serving on a jury actually increases the likelihood of people voting in the next election.

especially for people who were very low likelihood voters to start with. Actually participating in a civic activity apparently increases the likelihood of another civic activity participation.

You know, once this jury is in panel, then hopefully we get 18 totally unbiased jurors who are ready to listen to the evidence and weigh things accordingly. What's the process like? What are their lives going to be like for the next six weeks or however long it may take?

They are the focus right now of this process. Once they are selected and sworn in, they become this passive feature of the court proceeding for as long as the trial goes on. They don't get to ask questions during the trial, at least not in New York. So they are just these passive recipients of the evidence as it comes in, and then they will be instructed on the law by the judge. They'll hear the closing arguments by the lawyers.

And then they go to the jury room and they deliberate, isolated from any other inputs, right? They can only deliberate when all of them are present, the 12 who are going to be deliberating. And that is an incredibly intense

experience where they are talking amongst themselves about the evidence. And if they have any questions about, for example, what a witness said, they can ask to hear that portion of the testimony read back to them. If they want to see a document, they can ask to see that document again. If they have a question about a jury instruction, they can ask to have the judge explain further what that instruction means. That's when they become really active is at the

end point of the trial. But for now, probably once they're selected, it's probably going to be at least six weeks of fairly passive activity where they may find it challenging to stay awake at times and to be attentive. What are their lives like on a personal level? For folks who saw...

Amazon Prime's jury duty where, you know, it's of course, of course, I'm sure. I'm curious. We'll do a whole other podcast reviewing it and seeing what you all thought. But of course, it's all a joke, right? They play a prank on this guy who is the only unwitting participant in a jury trial. Everyone else is an actor and they just throw all kinds of crap at him from all different directions. And he is a sweetheart and he just goes with it.

And it's incredible to watch. But like, they end up staying in a hotel to try to prevent outside influence. Is there a world in which things like that happen? I don't think this jury is being sequestered. Is that right, Jessica? Not yet, as far as I know. But it could happen. Yeah.

It could. I think if the judge becomes concerned about people contacting the prospective jurors. I mean, we lost a juror this week because she said that friends and family had been contacting her and asking whether or not she was on the Trump jury.

One thing that the judge did, I think, in the E. Jean Carroll case, which was an anonymous jury in federal court, is I think the judge had the jurors meet at a particular location and then they were driven together to the courthouse. So to diminish the risk that anybody, any reporter or anybody would be following them to their home. So there's different ways sort of sequestering the jury where they'd actually be put up at a hotel that a judge can do to protect them in addition to their identities not being disclosed.

And actually, on that issue of sort of the juror's safety, I think that it may have been this morning that the judge told the press not to report some biographical information, including where the jurors work as we go forward, because where the jurors work was being reported. And of course, you know, it's not that hard to identify who someone is if you know a certain amount of information about them, including where they work.

And so I think now going forward, the parties will have access to that, but I think it's not to be reported. The final part here, and of course we're focusing on the jury, which is fascinating in its own right, and we're going to have a lot of time to talk about the actual trial and how the evidence is laid out and how the witnesses testify. But what are the questions that these jurors are going to ultimately have to answer in

Because it's not just, you know, we've been treating it so far as if it's like, do you like Trump or do you not like Trump? But that's not the question that they actually have to come to a conclusion on. Well, the judge is going to instruct them on the law, right? And so for the 34 counts, falsification of business records, charges of felony, which means the falsification of business records, which would ordinarily just be a misdemeanor if that was sort of the sum total of what had been done. But the falsification is charged to have been done in order to conceal another crime.

That's what makes it a felony. And so the jurors are going to have to find, first of all, that there was falsification of the records of the Trump organization in the ledgers and the other documents that were kept that reflected the payments to Michael Cohen as legal expenses.

And that that was false and that it was done with the intent that it'd be false so that if the records were ever looked at by some authority, let's say, they would see these payments recorded as legal expenses when in fact they weren't. They were reimbursements, allegedly, to Michael Cohen to reimburse him for payments to Stormy Daniels to keep her quiet in the lead up to the November 2016 elections.

And so the jurors are going to have to find that these were false business records, that Trump was part of the falsification, that he either directly falsified them or he caused others to falsify the records with the intent that they be kept as a false set of books and deceive anyone who might sometime in the future come looking.

in order to conceal this other crime. And then there's this question, well, what's the other crime? And the DA has three theories for what that other crime is. The one they seem to be leading with is it was essentially a violation of campaign finance laws, federal campaign finance laws, for Cohen to make these payments to Stormy Daniels because they were essentially payments to further the Trump campaign. That's what makes them campaign donations. It wouldn't have been made but for the campaign.

And they exceeded the permissible limits that an individual can contribute to a campaign, and they weren't disclosed as such. So the jurors are going to have to find essentially the elements of the crimes as it is explained to them, and that Trump was personally involved in these crimes and acted with the intent to commit them.

Yeah, and that intent is part of the reason why juries exist, right? To make a human judgment about another human being's intention in engaging in particular actions or directing people to engage in particular actions. And there, I don't know that we have a really good substitute.

Being able to make a judgment about another human being and what they thought, what they intended, that's a distinctly human judgment. And here's where a community of individuals formed as a jury is really in probably the best position to make that determination.

All right, so final question here, and hopefully you'll all join me again because we are just at the beginning of this process, and I love talking to you both. What does the data say or your experience say about how liable we are to get a conclusion one way or another, which is to say not a mistrial? How common are mistrials?

So they are not common. Maybe 5% of cases end in a hung jury, which leads to a mistrial. Along with people from the National Center for State Courts,

I analyzed cases in a number of different states around the U.S. some time ago, and we took a look at what were the factors that led people to be unable to arrive at a verdict. Number one was the ambiguity of the evidence. So not in cases where the evidence is crystal clear one way or the other. In that case, in instances where you've got a really clear record either for guilt or for innocence, you're

No matter what, people seem to be able to go along and arrive at a verdict in the case. It's the ambiguous cases where either verdict could really be justified that you find the most likelihood of a hung jury.

The other thing, though, and here's where I am wondering about the Trump trial, is we also found a relationship with views about the fairness of the law in the case. So when there were at least some people on the jury who really had some serious doubts about the fairness of the law that was being applied to a particular defendant, there was an increase in hung juries. You know, my experience was that

It is really mostly about the quality of the evidence that determines the outcome of a case. And as important as the jurors are, and we've been focused in this discussion on jury selection, and I do think that jury selection is important, I think at the end of the day, it is subsidiary to the quality of the evidence in terms of determining what the outcome is of a case.

I'm going to be looking at the quality of the evidence as it comes in and how these witnesses do on the stand and to the extent to which they corroborate one another and how compelling is the story that the prosecution ultimately tells of this case. Do they have a coherent narrative and is it supported by evidence that is corroborated by other evidence? We need to wait and see before we can make a prediction of how this case comes out, including whether there will be a hung jury.

All right. Well, we'll just have to wait and see. But thank you so much, Valerie and Jessica, for joining me today. My pleasure. It's good to be with you. My name is Galen Druk. Our producers are Shane McKeon and Cameron Chertavian. And our intern is Jayla Everett. Jesse DiMartino is on video editing. You can get in touch by emailing us at podcasts at 538.com. You can also, of course, tweet at us with any questions or comments. If you're a fan of the show, leave us a rating or review in the Apple Podcast Store or tell someone about us. Thanks for listening, and we will see you soon.

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