Exploring Impartiality in Jurors for Trump Cases

Jeffrey Abramson, emeritus professor of government at the University of Texas at Austin and author of "We, The Jury: The Jury System and the Ideal of Democracy," shares his personal views in this commentary. For more opinions, visit CNN.

The first-ever criminal trial of a former US president kicks off in Manhattan on Monday with jury selection. Former President Donald Trump, previously found liable in civil trials, now faces charges that could result in prison time.

Jeffrey Abramson

Jeffrey Abramson

Trump is facing accusations of falsifying business records in connection with a hush money payment made by his former lawyer, Michael Cohen, to adult-film actress Stephanie Clifford, also known as Stormy Daniels, to keep quiet about an alleged affair before the 2016 election. Trump has pleaded not guilty to the 34 counts.

The outcome of the trial may hinge on whether the 12 jurors grasp the seriousness of the situation. This is not just about sex or minor deceit; it revolves around Trump's alleged efforts to secure victory in the 2016 presidential race by suppressing a damaging story that could have swayed votes. It is crucial for the jurors to concentrate on the specific charges and not get sidetracked by the scandalous details surrounding the case.

Maintaining impartiality is essential for a fair trial by jury, but it is unrealistic to expect jurors to approach the case completely unbiased towards Trump. It would be concerning to select jurors solely based on their lack of knowledge about current events.

Fortunately, having an open mind doesn't mean having to have an empty mind. It is possible to find impartial jurors who can distinguish between law and politics. Just like Judge Juan Merchan did in the 2022 trial of the Trump Organization, he can do the same here by following the standard practice in New York and other places. This involves excusing individuals for hardship and then examining the remaining jurors for any biases during the voir dire process.

While the process of selecting a jury may take longer than usual and involve a larger pool of individuals being questioned, the overall procedure will be quite familiar. In the selection of 18 individuals - 12 jurors and six alternates - each side has the opportunity to challenge an unlimited number of jurors for bias. Additionally, even if the judge deems a potential juror to be impartial, both Trump and the prosecution in a felony trial like this one are entitled to 10 peremptory strikes each. This means they can excuse a person for any reason, as long as the challenge is not based on racial or other discriminatory prejudices.

Photo Illustration by Alberto Mier/CNN/Getty Images

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Merchan has shared the questionnaire he will use to screen individuals for bias. The questionnaire includes 42 questions, carefully balancing what is allowed and what is not. For example, jurors will not be asked about their voting habits or political party affiliation. However, they may be asked about their support for groups like the Proud Boys or Antifa.

Potential jurors may also be questioned about their attendance at pro- or anti-Trump events, as well as their engagement with social media posts or podcasts by figures like Cohen. These questions aim to identify individuals with strong beliefs that could influence their judgment during the trial.

There will be differences from normal New York practice in this trial. The names of jurors will be kept private from the public, although the parties involved will know them. Additionally, Merchan plans to trust jurors who admit bias and will excuse them without the usual individual interview. He believes that conducting individual questioning would be time-consuming and mostly a formality that would not change the need to excuse biased individuals.

In a Manhattan trial venue, the government is favored, as the borough overwhelmingly supported Biden over Trump in the 2020 election by a margin of 86% to 12%. Trump's claim of facing challenges in jury selection does hold some truth.

For months now, Trump has been trying to influence the outcome by creating negative publicity before the trial even begins. Typically, it is the defendant who argues that media coverage has unfairly influenced potential jurors. In this case, Trump claimed that media bias would prevent a fair trial in Manhattan.

However, in this situation, both the defendant and the government had equal access to the media. Trump took to social media to label Merchan as a "certified Trump hater" and even accused the judge's daughter of conspiring against him, referencing her work for a Democratic digital campaign firm. According to District Attorney Alvin Bragg, Trump attempted to taint the jury pool by making unfounded and provocative claims about witnesses, prosecutors, and the Court itself.

Trump's ability to generate widespread media attention in his favor is evident in the juror questionnaire for his case. Potential jurors are asked if they have ever followed Donald Trump on social media or have any opinions on how he is being treated in the case.

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It's likely that during Trump's trial in Manhattan, the prosecution will claim that those who regularly read his social media posts have already formed biased opinions. On the other hand, Trump is expected to target individuals who rely heavily on The New York Times for their news. Both sides are banking on predicting what type of jurors would lean towards their favor.

Jury selection may become complicated due to the expected presentation of scandalous details about Trump's alleged affair with Daniels, which he denies. The prosecution plans to strengthen their case by revealing Trump's alleged history of paying hush money to conceal sexual indiscretions, including with a former Playboy model.

Normally, a defendant, especially a married man running for president, would want to avoid the embarrassment of having personal matters exposed in public. However, Trump might take a different approach by downplaying the significance of the accusations and seeking jurors who see the case as just another sensationalized sex scandal. Trump has weathered previous scandals of a similar nature, and he may prefer jurors who focus on the case as a private matter rather than a public concern.

Another New York jury recently found Trump liable for defaming and sexually abusing E. Jean Carroll, with evidence suggesting that the sex was coerced. This trial, starting today, focuses on payments made to Daniels to keep quiet about an alleged consensual affair.

During jury selection, both sides will also consider how prospective jurors may react to the testimony of key witness Cohen, a former Trump loyalist who pleaded guilty to charges related to concealing hush money payments made to Daniels on Trump's behalf.

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Trump and Cohen are in a heated feud. This is why Question 35 on the questionnaire is about their conflict. It asks jurors if they know about their feud, like if they have read Cohen's books or listened to his podcasts.

Some jurors may struggle more than others to believe the testimony of a convicted felon. Negative reactions may arise towards individuals who have betrayed a former boss. This is why it is important for each side to create a personality profile for every potential juror. For example, a person who values loyalty above all else, possibly due to military training, may lean towards supporting Trump. On the other hand, the government may prefer individuals who admire whistleblowers and are wary of blind loyalty.

There is a well-known saying of unknown origin that states: “In England, the trial begins after jury selection. In the US, it is already finished.” Only time will tell if this holds true in a trial that is unprecedented.

Editor's P/S:

The upcoming jury trial of former President Donald Trump presents a complex and unprecedented challenge. The outcome hinges on the ability of jurors to remain impartial despite the highly publicized nature of the case and the potential for scandalous details to emerge.

While it is unrealistic to expect complete impartiality, the jury selection process aims to identify biases and ensure a fair trial. However, the unique circumstances of this case, including Trump's public statements and the involvement of key witnesses like Michael Cohen, add layers of complexity to the process. Both the prosecution and the defense will carefully consider the potential biases of prospective jurors in order to build a jury that is both fair and representative of the community.