The Trial Begins

Dear Readers, We have a jury in New York’s campaign fraud trial of Donald Trump. Exploring how we got one is a useful exercise.

The jury selection process is called “Voir Dire,” French for to see and to speak or interpret as to speak the truth. Citizens are randomly selected from the “array” to be questioned by the attorneys. Jury arrays are curated from lists of data – registered voters, recipients of government aid, unemployment compensation recipients and/or motor vehicle lists. The luck of the draw generates the array for a particular trial.

A defendant can challenge the array as not being a representative group of citizens. The sample might be too restrictive or discriminatory. This is an almost impossible task to successfully challenge today, but we are not that far removed from the Civil Rights Era in which discrimination was rampant. And “fixing” the jury arrays to over-sample (or under-sample) certain ethnicities or genders was one mechanism of systematic discrimination.

The array is a much larger gathering than is needed for a trial. The size of the array is determined by how difficult it might be to find fair and impartial jurors. Where 50 to 75 juror arrays might be all that is needed for a typical jury, if the case is highly charged, sensitive, or has large publicity, the array expands. In this trial, something like 500 New York citizens were in the original array.

Of those summoned, you are probably going to lose 10% or so right off the bat. Unfortunately, some are going to be too infirm or even deceased to come to court. Another slice will have valid reasons to be excused even before coming to the courthouse. Let’s say 450 potential jurors actually arrive and are put in a “jury assembly room.”  

From there, we have to cull this unwieldy group down to what is called the “jury venire,” this is the group of potential jurors called into the courtroom for actual jury selection. First, you take excuses from jurors who approach the judge and plead what emergency prevents them from serving. This problem knocks off at least 50 to 100 prospective jurors. In this case, the jurors left over from the original array were brought into the courtroom for individual questioning while their identities remained anonymous.

We went straight to individual questioning because of the use of an extensive jury questionnaire. These are neither unique or common; they are used in larger and sensitive cases (and extensively in Federal Court). Just from the questionnaire answers, potential jurors can be knocked off the array for “cause” either by the court, the parties agreeing, or attorney pleas to the court.  

“Cause” is when a potential juror cannot be fair and impartial. Sometimes, this is learned from the juror himself or herself. This actually happened with a juror selected, who was “outed” by a Fox News Commentator and expressed concern for her personal safety. She came back into court the day after her selection and asked to be removed because she was not sure she could be fair – she was excused for cause after being seated on the jury.

In this case, each side had ten (10) peremptory strikes to excuse a juror for any reason, just not a discriminatory one. The parties were playing poker in exercising these strikes. They did not really know who the next juror was after exercising a strike. And, once they exhausted their strikes, that’s it; the only way to remove a questionable juror is to convince the judge there is cause to remove the juror. 

Donald Trump’s attorneys were using the voir dire process to rehash a trope that his case needed to be transferred to another jurisdiction as he could not receive a fair trial in Manhattan. This was done even after using all strikes. Certainly, he’d find a more favorable jury pool in Tulsa, Oklahoma, or Forsyth County, Georgia. But, crimes get tried where they occurred and this one occurred in New York City.  

The jury selection process is where the work occurs to eliminate biased jurors; it weeds out those jurors who could not be fair. Are there some left who do not necessarily have a favorable view of Donald Trump? Yes, but that does not mean they will be unfair.

This week, we watch the unprecedented event of a trial of a former President unfold. We have a jury, now onto the presentation of evidence.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County and a former Assistant State Attorney in Miami. Owner of Rockefeller Law Center, Jim has been in private practice since 2000. E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.