Op-ed by Elad Hakim | Photo: Alamy
One of the most important aspects of a civil trial is jury selection. During that time, lawyers for the different parties get to question the prospective jurors (referred to as voir dire) about their thoughts and opinions on different issues relating to the case, their potential biases, and/or their ability to judge the evidence objectively and to remain impartial.
Jury Selection is Crucial
The importance of this process cannot be overstated. Lawyers must be able to thoroughly question and vet those who will ultimately end up on the jury because these people will ultimately be deciding the outcome of a particular case.
In a perfect world, every potential juror would answer all questions by the judge and lawyers honestly. Each juror would disclose any potential biases against one of the parties involved in a case, identify any social media posts where he or she discussed opinions about one of the parties or issues involved in a case, and/or disclose any other relevant information that could present grounds to challenge or dismiss the juror.
Jurors are Not Always Forthright
Those who litigate know that this is wishful thinking. Sadly, jurors lie. Sometimes, they do so intentionally, while other times they do so inadvertently. Additionally, the mere fact that a juror lied does not necessarily mean that a defendant is entitled to a new trial or other remedy. No matter the reason, a lawyer must be able to investigate the juror and their background, potential biases, and other factors that could undermine or question their ability to remain impartial.
The Seventh Amendment affords the right to a jury trial and states:
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
Since this right is guaranteed under the Seventh Amendment, it would seem to be simple verbiage if the identities of the jurors were hidden or not disclosed to the attorneys. After all, what good is the right to a jury trial if a party is unable to determine whether any of the jurors are unable to remain impartial? How can a lawyer adequately conduct voir dire if the lawyer does not know the names of the people who will be deciding his/her client’s case? How can the lawyer determine if one or more of the jurors lied about something that is highly relevant or material to the case? How can the lawyer determine whether one or more jurors are impartial?
The NY Defamation Case
In the recent defamation case in New York involving Donald Trump, Trump’s attorney(s) did not know the names of the jurors. This was apparently done to prevent undue influence and to protect the jurors in what the presiding judge called a “unique case.” As reported by Reuters, “U.S. District Judge Lewis Kaplan in Manhattan said the names, addresses and places of employment of prospective jurors for the former Elle magazine columnist’s April 25 trial against Trump will be kept secret.”
Legal scholar and attorney Alan Dershowitz was surprised by this decision, noting that he could not remember a case where nobody other than the judge knew the names of the jurors.
In essence, it appears that Trump’s lawyers were forced to conduct voir dire without the benefit of thoroughly looking into the jurors’ backgrounds. This presents potential problems. For example, what if one or more of the jurors previously made posts on social media that could establish an inability to objectively consider the evidence? What if one or more jurors previously described Trump as guilty, or expressed a desire to find him guilty?
Challenging to Find Impartial Jury in Manhattan
While there is no indication that such evidence currently exists, Trump’s team should have been allowed to investigate each juror. Unfortunately, Trump’s lawyers were seemingly unable to do so because the names of the jurors were withheld and/or remained anonymous. Trump was, for all intents and purposes, forced to trust that jurors in Manhattan would do the right thing and decide his case fairly and impartially.
Sadly, in Manhattan, Trump is viewed unfavorably. As reported by CBC, Manhattan might be the worse place for Trump to face trial. Mark Bederow, a criminal defense attorney and former New York City prosecutor, stated, “Ask people in Manhattan today is he guilty of anything … I’d assume, 95 percent of the people would say, well, of course he’s guilty.”
Matthew J. Galluzzo, a former prosecutor in the Manhattan district attorney’s office, echoed this sentiment, stating:
“In Manhattan, there’s been so much publicity about this indictment, about this case, and there is so much vitriol toward him. He is not a popular person in Manhattan. You could imagine people wanting to convict him just because he is who he is, regardless of what the evidence is that comes down.”
“I think it’s going to be extremely difficult to find 12 jurors willing to acquit.”
Trump is expected to appeal the ruling on one or more grounds.
Mr. Hakim is an attorney and columnist. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, American Thinker, and other online publications. He is also a regular guest on OANN’s Tipping Point, and has appeared on Newsmax, The Jenna Ellis Show, Steadfast and Loyal Podcast with Allen West, The Dave Weinbaum Show, and Real America’s Voice. The views expressed herein are the author’s own and do not constitute legal advice.
