0:00

My anecdotal experience as a prosecutor is

0:03

that people do enjoy it and that

0:05

they feel kind of empowered

0:07

and they feel better about the jury

0:09

system once they've served. You mean

0:11

despite Tina Fey dressing up like Princess Leia

0:13

and pretending that she can read people's minds

0:15

therefore making it unfair for her to serve

0:18

on a jury? Despite all those

0:20

people trying to get out of it, the people who actually do

0:22

it like it? Hello

0:32

and welcome to the FiveThirtyEightPolitics podcast.

0:34

I'm Galen Druck. As

0:37

of Tuesday evening, seven jurors had

0:39

been selected in former President Trump's

0:41

Manhattan criminal trial. But

0:44

as of Thursday morning, as we tape this

0:46

podcast, it seems like at least one has

0:48

dropped out. The

0:51

selection process is again getting underway today,

0:53

so we'll see how many jurors we

0:55

have by the end of Thursday. Judge

0:57

Juan Marchand has said that he hopes to have

1:00

a full jury, so 12 jurors

1:02

and six alternates selected by the end of

1:04

the week. It seems at this

1:06

point like that may be a little

1:08

overly hopeful, but we'll see. The

1:11

jury is going to remain anonymous, but

1:13

some details about them have been made

1:15

public. So, for example, the foreman is

1:17

originally from Ireland, lives in Harlem and

1:20

works in sales. There

1:22

are two lawyers in the group. There's

1:24

a lifelong New Yorker and teacher who

1:26

was apparently unaware that Trump is facing

1:29

three other potential trials, and there are

1:31

many others. In order to

1:33

get on the jury, these Manhattanites responded

1:35

to a questionnaire with 12 questions, ranging

1:38

from whether they belong to QAnon or

1:40

Antifa to what podcasts they listen to.

1:44

We don't know. I haven't been able to figure out if anyone

1:46

listens to this podcast. But the

1:48

attorneys on both sides scrutinized their social

1:50

media posts, asked them questions about their

1:53

opinions of Trump, and had the opportunity

1:55

to ask that they be removed from

1:57

consideration. This is all with a big thank

1:59

you. goal of empanelling an unbiased jury

2:02

capable of rendering opinion in accordance

2:04

with the law and the facts.

2:06

It's one of the most important parts

2:08

of the process as anything but a

2:10

unanimous decision will result in a mistrial.

2:13

It's also a process that gets at the heart

2:15

of a lot of what we talk about on

2:18

this podcast. Based on a

2:20

person's own biography or demography, how

2:22

do they feel about the former

2:24

president and his criminal prosecution? So

2:27

that is what we're going to talk about today

2:30

as well as some of the broader legal questions

2:32

and joining me to do that is Jessica Roth,

2:34

professor at the Cardozo School of Law and

2:36

former federal prosecutor. Welcome back to the podcast,

2:39

Jessica. It's a pleasure to be here. And

2:42

also with us today is Valerie

2:44

Hans, professor at Cornell Law School,

2:46

whose research focuses on the jury

2:48

system. Welcome to the podcast. Thank

2:50

you. All right. So we're

2:52

going to dive right into the polling here

2:54

in the New York Times-Siena College poll that

2:56

came out last weekend. Forty six percent of

2:59

registered voters said Trump should be found guilty

3:01

in, quote, the New York state trial of

3:03

Donald Trump related to hush money payments made

3:05

to the porn star Stormy Daniels. Thirty

3:08

six percent said he should be found

3:10

not guilty and eighteen percent said they

3:13

did not know or refused the question.

3:15

Now, the numbers in Manhattan specifically probably

3:17

look quite different from that. But

3:20

to start off, Valerie, should the jury

3:22

be made up only of that

3:24

18 percent of folks who say

3:26

that they don't know the answer to this

3:28

question in this moment? Oh,

3:31

that's a really great question. It's

3:33

such a challenge in a case like this

3:35

that has saturated the news to pick a

3:37

fair and impartial jury. But we've got the

3:39

tools to not only include

3:42

those 18 percent, but also some

3:44

of the people who believe they

3:46

have prejudged but actually could be

3:48

open to new evidence in the

3:50

case. And one of the things

3:52

I thought was fascinating is

3:54

the prosecutor in questioning the

3:57

prospective jurors earlier this week.

4:00

them whether or not they would be

4:02

open to evidence as opposed to relying

4:04

only on the things they had seen

4:06

in the media. So I

4:08

think we can include the entire

4:10

group. Interesting. Jessica?

4:14

I was smiling when you were talking about that poll

4:16

because there's part of me that thought, well, that's sort

4:18

of a ridiculous poll. It's only in the sense that,

4:21

you know, what are people basing their answer on? They

4:23

don't know what the evidence is that's going

4:26

to be presented at the trial. They probably

4:28

don't even know exactly what the charges are

4:30

and what the elements are of those charges.

4:32

So, you know, it's interesting as a political

4:34

poll, but as a question of how actually

4:36

would people render a verdict if they were

4:38

chosen as jurors, there's a sense in which,

4:40

you know, it's really sort of to the

4:42

side of the inquiry. What I would want

4:44

to know of the people who didn't fall into

4:46

that 18 percent, who basically said they didn't know,

4:49

is, okay, so you may have given

4:51

this answer to this previous poll, but

4:53

now you're actually being considered to be

4:55

a juror in this case. Can

4:58

you put aside whatever view you had before

5:00

that may have informed the answer you gave

5:02

to that poll and listen to the evidence

5:04

presented in this case and base your verdict

5:07

solely on that evidence and the instructions on

5:09

the law that the judge gives to you?

5:11

And let's see how they answered that question.

5:14

Incredible numbers of people are self-declaring themselves

5:17

unable to be fair and impartial. One

5:19

of that first group of 96, close

5:22

to 50, right, said their attitudes and

5:24

views were such that they did not think

5:27

they could be fair and impartial in this

5:29

case. Now, some of them might not have

5:31

wanted to be on this jury and knew

5:33

that that was the answer to give, but

5:36

I think quite a few of them actually

5:38

thought, yeah, deciding this particular case would

5:41

be difficult for me. I don't think

5:43

I could really keep an open

5:45

mind as I look at the evidence for

5:47

and against Donald Trump. Is

5:49

that unusual? Is there usually a 50 percent

5:52

sale rate in terms of people saying they

5:54

couldn't serve as an impartial juror? Jessica,

5:57

I don't know about your experience, but

5:59

it's unusual. unusual from the cases that

6:01

I know about? Yes. And it's

6:03

also unusual that the judge would just

6:05

excuse people at that point, right? So

6:07

that was one of the decisions that

6:09

the judge made here at the outset

6:11

of this process was that he was

6:13

going to just excuse without further questioning

6:15

all of those who self-identified as being

6:18

unable to be fair and impartial in

6:20

this case as a matter of just

6:22

expediency. He said that when he was

6:24

choosing the jurors for the criminal trial

6:26

against the Trump Organization in 2022, he

6:28

asked people this initial question, if there's anything about

6:30

this case that made them think they couldn't be

6:32

fair and impartial, and if people

6:35

said yes, they thought there was something,

6:37

he would ask follow-up questions, and that

6:39

it usually led to those people being

6:41

excused for cause. And he said, given

6:43

that that was its experience in that

6:45

other closely related case involving Donald Trump,

6:47

that he thought it would just be

6:49

more efficient to dispense with that further

6:51

questioning for people who gave this initial

6:53

answer. He was also concerned about

6:55

the logistics of doing individual questioning of those

6:58

many people at the outset, given that we

7:00

had Secret Service agents who were sort of

7:02

part of this process. So you have a

7:04

lot more bodies sort of involved in the

7:07

courtroom than in the normal run

7:09

of the mill of war deer. So it's

7:11

unusual for people to self-identify at

7:13

that rate as being unable to

7:15

be fair and impartial. And it's

7:17

also unusual that a judge would

7:19

essentially just take that as the

7:21

final word on the subject without

7:24

probing further. But you've

7:26

got to say, it is more efficient. That

7:29

was a huge number of individuals that we

7:31

were able to eliminate right off the bat.

7:34

This gets us very quickly to a fundamental

7:37

question about jury trials, which is,

7:39

for the folks who said

7:41

they could be fair and impartial, should we expect

7:44

that some of those folks are

7:46

lying? Well, the fact

7:48

of the matter is, it's pretty hard

7:50

to estimate ourselves whether we can be

7:52

fair and impartial. And I saw this

7:55

in some of the back and forth

7:57

between the attorneys and prospective jurors. where

8:00

jurors would say, whatever my

8:02

political views are, that has no bearing

8:04

on whether I could be fair and

8:06

impartial. And in fact, political

8:08

views might help shape how

8:11

you interpret evidence in a case. So

8:13

it's reasonable for the attorneys to want

8:15

to know more about what those particular

8:17

views are. Yeah. And

8:19

what we saw is the lawyers looking at

8:22

the social media postings of some of these

8:24

potential jurors, and in some cases, you know,

8:26

sort of confronting the potential jurors. They will,

8:28

you posted this. Something about, you

8:30

know, how Trump's travel ban was struck

8:32

down or something, you know, and

8:35

then you wrote, yay. And then you followed it up

8:37

with, and lock him up. But

8:39

you're saying you could be fair and impartial. So how can that

8:42

be? And so I think it

8:44

is reasonable to ask the jurors at the outset, do

8:46

you think you can be fair and impartial? Then to

8:48

do a little bit of digging and to see what

8:50

they say when asked about something

8:52

specific that they've said in the past. I

8:54

think for that particular juror, the judge

8:57

actually did excuse that juror for

8:59

cause, right? And the judge

9:01

said if the person had stopped with the comment

9:03

about the travel ban case, the judge wouldn't strike

9:05

the juror for cause, but followed up with something

9:07

like lock him up about Donald Trump, that that

9:10

betrayed a bias that the court thought. It just

9:12

wasn't reasonable to think this person would

9:14

necessarily be able to be fair and

9:16

impartial, notwithstanding their protestations to the contrary.

9:19

Yeah. I think we're already getting at

9:21

some very interesting questions that we address

9:24

in polling, which you mentioned, you know,

9:26

that's a political poll, a snapshot in

9:28

time when I talked about the New

9:30

York Times, Siena College poll, there will

9:33

be more polling after this trial is

9:35

conducted. And maybe some of those numbers

9:37

will shift. And perhaps that's in some

9:39

ways the whole point of this process,

9:41

or at least part of the rationale

9:44

for making sure this gets done before

9:46

the election. And then to

9:48

your point, Valerie, about, you know, sometimes people

9:51

aren't the best at estimating their own

9:53

ability to be unbiased. You know, this

9:55

questionnaire, just like a poll, we can

9:57

only go off of what folks tell

9:59

us in polling. we try to

10:01

sometimes marry the responses to revealed preferences.

10:03

Like, you know, you say that you

10:05

prefer this policy, but when we look

10:07

at data about who's doing X or

10:09

Y, we see that the data doesn't

10:11

exactly line up. So it's a really

10:13

interesting question. Speaking

10:15

of data, I want to ask this

10:17

question. According to census data, New York

10:19

County or Manhattan is roughly 46% white,

10:21

26% Hispanic or Latino, 19%

10:26

black, and 13% Asian. And

10:28

in 2020, 86% of New York County voters supported

10:32

President Biden, while 12% supported former

10:35

President Trump. Should we

10:37

expect this jury to look like

10:39

New York County? Should it

10:41

look like the wider country or

10:43

should it look like something else? Well,

10:46

it should look like a group

10:49

of individuals drawn from that community

10:51

who say they can be very

10:54

impartial. And often that produces radically

10:56

different demographic profiles. I

10:58

am not necessarily anticipating this will

11:00

look like a typical Manhattan jury. You

11:03

know, you're entitled to a jury of your

11:05

peers in the venue where the

11:08

alleged crime occurred, right?

11:10

So it should be reflective of

11:12

Manhattan, of New York County. Legally

11:15

speaking, there's no obligation, right, or requirement that

11:17

it be reflective of the country as a

11:19

whole. The jury pool

11:22

needs to be reflective of the county

11:25

as a whole. The actual

11:27

jurors who are ultimately qualified

11:29

and seated don't necessarily have

11:32

to be reflective. They can't

11:34

be struck during the peremptory round on

11:36

the basis of race. But

11:39

if they are struck for permissible

11:41

reasons and they wind up not,

11:43

you know, in some way representing

11:45

a cross-section of the

11:48

country, I mean, legally speaking, that's

11:50

not a problem. So

11:52

legally speaking, it's not a problem.

11:55

But of course, the consequences of

11:57

this trial don't begin and end at just

11:59

legal questions. This is so political. It's

12:01

the first criminal prosecution of a former

12:03

president, perhaps more importantly,

12:05

a current presumptive nominee for one

12:08

of the major parties. So

12:10

what can be done in this

12:13

process, if anything, to try to

12:15

engender trust in an outcome one

12:18

way or another, to ensure that at

12:20

the end of all of this, people

12:22

feel like justice has been sort of

12:24

regardless of the outcome? One

12:26

thing that I think is so interesting is that it's

12:29

described as jury selection, but in

12:31

a sense, it's really more about

12:33

jury deselection. So it's hard

12:35

to construct the jury that

12:37

you'd like to see for whatever reasons, whether

12:39

you have some preconceived ideas of who would

12:41

be the best jurors for you to

12:44

win the trial, or you

12:46

have a preconceived idea of politically to have it

12:48

look sort of most and to be accepted as

12:51

the most legitimate verdict possible to the country

12:53

as a whole. What would that jury look like?

12:55

It would be very diverse and representative of

12:57

the country, perhaps. Or maybe you would ideally

12:59

like it to be all people who seem

13:02

to be Republican. Then if there's a conviction,

13:04

it would be accepted as legitimate. But the

13:06

reality is, I don't think the lawyers actually

13:09

have the capacity, given the constraints on them

13:11

in this process, to select that jury of

13:13

their dreams, whether it's for legal reasons or

13:15

political reasons. What they have the limited tools

13:18

to do is to strike people for cause

13:20

as to whom there's a real question as

13:22

to if they can be fair and impartial.

13:25

And then they have 10 peremptories for

13:27

each side to strike the people who,

13:29

for whatever reason they really think, are

13:31

not going to be fair or good

13:33

for them on their case. They can't

13:35

essentially sort of pull in additional people

13:37

who they select, who they think are

13:39

sort of the best possible jury for

13:41

them. They have this limited ability to

13:43

strike the people who they think are

13:46

bad or not fair. We

13:49

have lots of experience in

13:51

doing high profile trials, maybe

13:53

especially in Manhattan, trials with

13:55

notorious defendants and where there's

13:57

lots of pretrial publicity. One

14:00

of the things that I think you are able

14:02

to see in the public is able to see

14:04

in action are some of the tools that the

14:07

court has available to try to pick a fair

14:09

and impartial jury. So one of

14:11

them is calling a huge number of people

14:13

so that you're sure not to run out

14:15

and you can select a jury. The

14:18

extensive questionnaire with 42 questions,

14:21

individual questioning of each

14:23

prospective juror and the

14:25

opportunity, although I think it's limited, for

14:28

both sides to follow up when jurors

14:30

answer questions from that questionnaire

14:33

and the anonymity of the

14:35

jury, partial anonymity of the

14:37

jury. So I think all

14:40

of those are things that the court

14:42

has and is using to do its

14:44

best to try to pick an impartial

14:46

jury. Let's

14:49

sort of get into that sensitive question, which is

14:51

what does the ideal jury look like

14:55

for, we'll start with the defense in

14:57

this situation, given that it's

14:59

a real uphill battle in politically

15:01

unfavorable terrain? Well, I think

15:04

if they had their druthers, they would choose people who

15:06

had voted for Trump. Can they ask

15:08

straight up who they voted for? No. The

15:10

judge has been very clear. They cannot ask

15:12

their political affiliation and they cannot ask for

15:15

whom they voted. But some

15:17

of that information will be available to

15:19

the lawyers through open source

15:21

material like party registration and

15:24

political donations. So because the parties have

15:26

access and the lawyers have access to

15:28

the names and addresses of the jurors,

15:31

they are able to do this research

15:33

on the jurors, not only for their

15:35

social media postings, but also any information

15:37

that would shed light on their political

15:40

affiliation or political donations they

15:42

may have made. If you

15:44

look at the questions, it seems to me if

15:46

people answered all 42 questions and subparts

15:50

of the questions, they would

15:52

have a pretty good idea about

15:54

whether or not they were registered

15:56

Democrat or registered Republican or voted

15:58

for Trump or for Biden in

16:00

the last election. Yeah, because some of them is

16:02

about media. What media do you watch? Yeah,

16:05

that question alone. You know,

16:07

we know from doing the work that

16:09

we do on the podcast that there's

16:11

a lot of demographic information that you

16:14

can collect on somebody that will help

16:16

you understand how they might vote. So

16:18

we know that white

16:20

folks without a four year college

16:22

degree or, you know, people who

16:24

work in blue collar jobs may

16:27

be more inclined towards Trump. Men

16:29

also more inclined towards Trump. We

16:31

know that, for example, black

16:33

voters have the highest rate of Democratic

16:35

voting in the country. We know that

16:38

folks with postgraduate degrees are in

16:40

terms of the education spectrum the

16:42

likeliest to be Democratic. We also

16:45

know that, for example, single women

16:47

very likely to be Democratic. So

16:50

to what extent can the attorneys

16:52

use this information to craft a

16:54

jury? And

16:56

you said mainly deselect a jury

16:59

that will be amenable to them.

17:02

Well, the lawyers can go in as

17:04

they probably are with some conception of

17:06

who they think are their best jurors based

17:08

on, as we were discussing, their ideas

17:10

about people's political affiliation, where they

17:12

get their media, but also some

17:15

of these additional characteristics like their

17:17

education level, what they do

17:19

for a living and how those match up with

17:21

what they know about people who've tended to be

17:23

supportive of Trump. They're also going

17:25

to be asking about prior contacts with

17:27

law enforcement and people's views of law

17:30

enforcement. I think the Trump

17:32

team is probably looking for people who

17:34

they think have a negative view of

17:36

law enforcement, who've had sort of negative

17:39

experiences with law enforcement on the

17:41

view that those people would be

17:43

more critical of the prosecution. But

17:45

my experience as a prosecutor was

17:47

that this is really guesstimating, right?

17:49

And there were always people who

17:51

surprised you. You thought you had

17:54

some read on them based on

17:56

their biographical characteristics or even based

17:58

on their body language. in

18:00

court, and then you might be wildly

18:02

wrong about them and how

18:04

they viewed the case. So these are

18:06

estimates that are based on sort of

18:08

rough characteristics, but in the individual case,

18:11

they can be called off. And

18:13

the data really bear that out. The

18:16

trial consultants usually in the

18:18

biggest cases conduct community surveys

18:20

where they not only ask

18:22

demographic information, but ask questions

18:24

specifically about the particular trial

18:26

and try to get a

18:29

sense with constellations

18:31

of demographic characteristics like we've

18:33

talked about, about who would

18:35

have the most favorable, let's

18:37

say pro-Trump or anti-Trump perspective.

18:39

But I agree, it's a

18:41

probabilistic judgment and people

18:44

are not simply their demographic characteristics

18:46

and there can be variation even

18:49

within similar groupings of

18:51

individuals. The other thing

18:54

is the trial is also not

18:56

completely predictable. And here's

18:58

a case where you have for

19:01

the prosecution, what looks like a

19:03

strong case documentary wise, but you

19:05

also have testimony coming from people

19:08

with questions about their credibility. And

19:10

so we'll have to see how

19:12

all that plays out. Today's

19:16

podcast is brought to you by Factor

19:18

Meals. Eat stress-free this spring with Factor's

19:20

delicious, ready to eat meals. Every fresh,

19:22

never frozen meal is chef crafted, dietician

19:24

approved and ready to eat in just

19:26

two minutes. Choose from a weekly menu

19:29

of 35 options, including

19:31

popular options like calorie smart, keto,

19:33

protein plus, or vegan and veggie.

19:35

Also discover more than 60 add-ons

19:38

every week, like breakfast, on the go

19:40

lunch, snacks and beverages to help you

19:42

stay fueled and feel good all day

19:45

long. What are you waiting

19:47

for? Get started today and fuel up

19:49

for your springtime goals. Factor is celebrating

19:51

Earth Day all month long. So look

19:53

out for the Earth Month Eats badge

19:55

on the menu for Factor's lowest carbon

19:58

footprint meals. Head to Factor Meals. dot

20:00

com slash five thirty eight fifty and

20:02

use code five thirty eight fifty to

20:04

get fifty percent off your first box

20:06

plus 20% off your

20:09

next box. That's code Five thirty

20:11

eight fifty so it's five thirty

20:13

eight all spelled out and then

20:15

just the numbers five zero So

20:17

that's five thirty eight fifty at

20:19

factor meals.com/five thirty eight fifty you

20:21

get fifty percent off your first

20:23

box plus Twenty percent off your

20:25

next box while your subscription is

20:27

active Hey, I'm

20:29

Andy Mitchell a New York Times

20:31

best-selling author and I'm Sabrina Kohlberg

20:34

a morning television producer We're moms

20:36

of toddlers and best friends of

20:38

20 years and we both love

20:40

to talk about being parents Yes,

20:42

but also pop culture So we're

20:45

combining our two interests by talking

20:47

to celebrities writers and fellows scholars

20:49

of TV and movies Cinema really

20:51

about what we all can learn from the

20:54

fictional moms who love to watch From

20:56

ABC audio and good morning America pop

20:59

culture moms is out now wherever you

21:01

listen to podcast You

21:05

get it a really important tension in the

21:08

work that we do which is the tension

21:10

between the group and the individual You know

21:12

you can make conclusions about Which

21:15

group is most likely acts are most likely

21:17

why or majority acts are majority why but

21:19

when you're talking about just 12 people You

21:22

don't have a representative sample and so

21:24

you're going to find individuals that do

21:26

not match whatsoever with the

21:28

kinds of assumptions you might make I

21:30

mean what's actually simply illegal to consider

21:33

in this process? Well

21:35

race and gender can't be

21:37

used as a basis for a peremptory

21:39

challenge That is the challenges that the

21:41

attorneys on both sides have to excuse

21:43

the juror to remove a juror without

21:45

having to give any reason But

21:47

how do you know if they don't have to give any

21:49

reason? Well if there's what's called a

21:52

bats in challenge based on the US Supreme Court

21:54

cases are set forth this rule that you can't

21:56

Strike on those bases if the other side

21:58

makes what's called a bat for challenge, and

22:00

basically says, I think you're challenging this juror

22:02

based on race, then you have to come

22:05

back with a race-neutral reason for striking them.

22:07

Like, you know, they were reading a book

22:09

that was, you know, how to get rid

22:11

of Trump or something like that, right? Something

22:13

you can point to that has nothing to

22:16

do with an impermissible reason, but that is

22:18

your reason for striking them. And then

22:20

the judge evaluates it. The

22:22

experience with Batson has shown

22:24

it not to be the

22:26

most effective method for removing

22:28

these impermissible influences and the

22:30

exercise of peremptory challenges. In

22:32

fact, it led one state,

22:35

Arizona, to abandon peremptory challenges

22:37

completely. I think we're

22:39

starting to get more of a

22:41

philosophical question about how justice

22:43

should work or theoretical questions

22:45

about how justice should work

22:47

in that in many

22:49

ways the system, the results are only as good

22:52

as the system. And there's a lot of different

22:54

ways to do this. You can have the peremptory

22:56

challenges. You cannot have them. You can have trial

22:58

by jury. You can have not trial by jury.

23:00

You can have DAs and prosecutors who are elected

23:03

by a partisan public, or you can have them

23:05

be appointed. And in

23:07

some ways, how much the

23:09

public ultimately trusts the outcome of

23:12

a trial depends

23:14

on the system. It depends

23:16

on how people talk about the system. But do

23:19

you all feel like this

23:21

is the best system we

23:23

have for rendering justice? Is there

23:26

a better way? Because I

23:28

think a lot of people, no matter what the

23:30

outcome is, are going to say, it's all rigged.

23:32

It's all a bunch of BS. Yeah. Kind

23:35

of like democracy, the worst possible system except for

23:37

all the others, right? Yeah. I

23:39

have seen jury trials

23:42

send real messages that a

23:44

person is exonerated, a person

23:46

is guilty, and

23:48

that seems to hit home more

23:51

than judicial decision making many times.

23:53

I think knowing that

23:55

a group from the community

23:57

was vetted for bias and...

24:00

that listened to evidence over

24:02

time, deliberated and reached a

24:04

verdict, has some more punch,

24:06

I think. And so I would

24:08

expect that it would

24:10

be seen as more credible than a

24:12

decision solely by a judge. I

24:16

want to say really quickly here that

24:18

we're reaching you while you are in

24:20

Latin America. You've been doing work in

24:22

Argentina and Chile and specifically transitioning provinces

24:24

in Argentina into

24:26

a trial by jury system. And you've

24:28

been collecting a lot of data on

24:31

how the public feels about this new

24:33

system. And because we love data here

24:35

at FiveThirtyEight, what are these surveys telling

24:37

you about how folks

24:39

feel about a trial by jury system

24:41

versus a rendering by a judge? It's

24:45

been fascinating research. We're actually surveying

24:47

the jurors who participate for the first

24:49

time in their lives as

24:52

jurors. When at the beginning, when they

24:54

got their summons they didn't even know

24:56

their province had a jury system. They're

24:58

surprised by it. But they

25:00

do a pretty good job. They

25:02

look a lot in terms of

25:04

data like U.S. juries, who, of

25:06

course, have lots more experience and

25:08

information about trial by jury. And

25:11

I think most important, after

25:13

they serve as jurors, they come

25:16

away with more confidence and

25:18

more positive views about the

25:20

court. Do we have that

25:23

effect in the United States too? Do people who serve

25:25

on juries have more faith in the law? Both

25:28

in the United States and

25:30

here in Latin America, we

25:32

see some democracy-enhancing features of

25:34

participating on juries. The data

25:36

really back up that people

25:38

emerge from the experience of

25:40

serving, of participating actively and

25:42

reaching decisions that are binding

25:44

with much more positive views

25:46

about the courts more generally.

25:49

And in some really fascinating

25:51

work, there is evidence that

25:53

serving on a jury actually

25:55

increases the likelihood of people

25:58

voting in the next election. especially

26:01

for people who were very low

26:04

likelihood voters to start with. Actually

26:06

participating in a civic activity apparently

26:09

increases the likelihood of

26:11

another civic activity participation.

26:15

You know, once this jury is impaneled and

26:17

hopefully we get 18 totally

26:20

unbiased jurors who are ready to

26:22

listen to the evidence and weigh

26:25

things accordingly, what's the process like? What are their

26:27

lives going to be like for the next six

26:29

weeks or however long it may take? They

26:32

are the focus right now of

26:34

this process. Once they are selected

26:36

and sworn in, they become this

26:38

passive feature of the court proceeding

26:41

for as long as the trial goes

26:43

on. They don't get to ask

26:45

questions during the trial, at least

26:47

not in New York. So they are

26:49

just these passive recipients of the evidence

26:51

as it comes in and

26:53

then they will be instructed on

26:55

the law by the judge. They'll

26:57

hear the closing arguments by the

26:59

lawyers and then they go to

27:01

the jury room and they deliberate

27:04

isolated from any other inputs, right?

27:06

They can only deliberate when all

27:08

of them are present, the 12

27:10

who are going to be deliberate.

27:12

And that is an incredibly

27:14

intense experience where they are

27:17

talking amongst themselves about the evidence and

27:19

if they have any questions about, for example,

27:21

what a witness said, they can ask to

27:23

hear that portion of the testimony read back

27:26

to them. If they want to see a

27:28

document, they can ask to see that document

27:30

again. If they have a question about a

27:33

jury instruction, they can ask to have the judge

27:36

explain further what that instruction

27:38

means. That's when they become really active, it's

27:40

at that end point of the trial. But

27:42

for now, probably once they are selected, it's

27:44

probably going to be at least six weeks

27:47

of fairly passive activity where they may

27:49

find it challenging to stay awake at

27:51

times and to be attentive. What

27:54

are their lives like on

27:56

a personal level? For folks

27:58

who saw Amazon Prime. jury

28:00

duty where you know it's of course of

28:02

course I'm sure I'm curious

28:04

we'll do a whole other podcast reviewing it

28:06

and seeing what you all thought but of

28:09

course it's all a joke right they play

28:11

a prank on this guy who is the

28:13

only unwitting participant in a jury trial everyone

28:15

else is an actor and they just throw

28:18

all kinds of crap at him from all different directions and

28:20

he has a sweetheart and he just goes with it and

28:23

it's incredible to watch but like he

28:25

they end up staying in a hotel

28:27

to try to prevent outside influence is

28:30

there a world in which things like

28:32

that happen I don't think this jury

28:34

is being sequestered is that right Jessica

28:37

not yet but it could

28:39

happen it could I think if

28:41

the judge becomes concerned about people contacting

28:43

the prospective jurors I mean we lost

28:45

a juror this week because she

28:47

said that friends and family had been contacting

28:50

her and asking whether or not she was

28:52

on the Trump jury one

28:54

thing that the judge did I think in

28:56

the Eugene Carroll case which was an anonymous

28:58

jury in federal court is I think the

29:00

judge had the jurors meet at a particular

29:02

location and then they were driven together to

29:04

the courthouse so to diminish the risk

29:07

that anybody any reporter or anybody would

29:09

be following them to their home so

29:11

there's different ways sort of sequestering the jury

29:13

where they'd actually be put up at a

29:16

hotel that a judge can do to protect

29:18

them in addition to their identities not being

29:20

disclosed and actually on that issue of the

29:22

jury safety I think that

29:25

they've been this morning that the

29:27

judge told the press not to

29:29

report some biographical information including

29:31

where the jurors work as we

29:33

go forward because where the jurors

29:36

work was being reported and

29:38

of course you know it's not that hard to

29:40

identify where who someone is if you know

29:42

a certain amount of information about them including

29:44

where they work and so I think be

29:46

now going forward the parties will have access

29:48

to that but it's I think it's not

29:50

to be reported the final part and of

29:52

course we're focusing on the jury which is

29:55

fascinating in its own right and we're gonna have

29:57

a lot of time to talk about the

30:00

actual trial and how the evidence

30:02

is laid out and

30:04

how the witnesses testify. But

30:07

what are the questions that these jurors

30:09

are going to ultimately have to answer?

30:12

Because it's not just, you know, we've been treating it

30:14

so far as if it's like, do you like Trump or

30:16

do you not like Trump? But that's not the question that

30:18

they actually have to come to a conclusion on. Well,

30:21

the judge is going to instruct them on

30:23

the law, right? And so for the 34

30:25

counts, falsification of business records, charges

30:27

a felony, which means the falsification of business

30:30

records, which would ordinarily just be a misdemeanor if

30:32

that was sort of the sum total of what had been

30:34

done. But the falsification is

30:36

charged to have been done in order

30:38

to conceal another crime, right? That's what

30:40

makes it a felony. And

30:43

so the jurors are going to have to find, first

30:45

of all, that there was falsification of the records of

30:47

the Trump Organization, right, in the ledgers and

30:49

the other documents that were kept

30:51

that reflected the payments to Michael

30:53

Cohen as legal expenses, and

30:55

that that was false, and that it was done with

30:57

the intent that it be false so that if the

30:59

records were ever looked at by some authority,

31:02

let's say, they would see these payments

31:04

recorded as legal expenses when in fact

31:06

they weren't. They were reimbursements, allegedly, to

31:09

Michael Cohen to reimburse him for payments to Stormy

31:11

Daniels to keep her quiet in the lead up

31:13

to the November 2016 election. And

31:16

so the jurors are going to have to find

31:19

that these were false business records, that Trump was

31:21

part of the falsification, that he either

31:23

directly falsified them or he caused

31:25

others to falsify the records with

31:28

the intent that they be kept as

31:30

a false set of books and deceive

31:32

anyone who might sometime in the future

31:34

come looking in order to conceal

31:36

this other crime. And then there's this question, well, what's

31:38

the other crime? And the

31:40

DA has three theories for what that other

31:42

crime is. The one they seem to be

31:44

leading with is it was essentially a violation

31:46

of campaign finance laws, federal campaign finance

31:49

laws, for Cohen to make these

31:51

payments to Stormy Daniels because they

31:53

were essentially payments to further the

31:55

Trump campaign. That's what makes

31:57

them campaign donations. It wouldn't have been made but for the first time.

32:00

for the campaign, and they

32:02

exceeded the permissible limits that an individual

32:04

can contribute to a campaign, and they

32:06

weren't disclosed as such. So the jurors

32:09

are gonna have to find essentially the

32:11

elements of the crimes as it is

32:13

explained to them, and that Trump was

32:16

personally involved in

32:18

these crimes and acted with the intent to

32:20

commit them. Yeah, and

32:22

that intent is part of the

32:24

reason why juries exist, right? To

32:26

make a human judgment about another

32:29

human being's intention in

32:31

engaging in particular actions

32:33

or directing people to engage in

32:36

particular actions. And there, I

32:38

don't know that we have a really

32:40

good substitute. Being able to make a

32:42

judgment about another human being and what

32:44

they thought, what they intended, that's

32:47

a distinctly human judgment. And here's

32:49

where a community of individuals formed

32:51

as a jury is really in

32:54

probably the best position to make

32:56

that determination. All

32:58

right, so final question here, and hopefully

33:00

you all join me again because we

33:02

are just at the beginning of this

33:04

process, and I love talking to you

33:06

both. What does the data

33:09

say or your experience say about how

33:11

liable we are to get a conclusion

33:13

one way or another, which

33:15

is to say not a mistrial?

33:18

How common are mistrials? So

33:21

they are not common, maybe

33:23

5% of cases, and

33:26

then a hung jury, which leads to

33:28

a mistrial, along with people from the

33:31

National Center for State Courts. I

33:34

analyzed cases in a

33:36

number of different states around the US

33:38

some time ago, and we took

33:40

a look at what were the factors that

33:43

led people to be unable

33:45

to arrive at a verdict. Number

33:47

one was the ambiguity of

33:49

the evidence. So not in cases where

33:52

the evidence is crystal clear one way

33:54

or the other. In that case, in

33:56

instances where you've got a really

33:58

clear record, either. for guilt or

34:00

for innocence, no matter

34:03

what, people seem to be able to

34:05

go along and arrive at a verdict

34:07

in the case. It's the ambiguous cases

34:10

where either verdict could really be justified,

34:13

that you find the most likelihood of

34:15

a Hungary. The other thing though,

34:17

and here's where I am wondering

34:19

about the Trump trial, is we

34:22

also found a relationship with

34:25

views about the fairness of the law

34:27

in the case. So when there

34:29

were at least some people on the jury

34:31

who really had some serious doubts about the

34:33

fairness of the law that was being applied

34:36

to a particular defendant, there was

34:38

an increase in

34:40

Hungary's. You know, my

34:42

experience was that it is

34:45

really mostly about the quality of the

34:47

evidence that determines the outcome of a

34:49

case. And as important as the

34:51

jurors are, and we've been focused in this

34:53

discussion on jury selection, and I do think

34:55

the jury selection is important, I

34:57

think at the end of the day, it is subsidiary to

34:59

the quality of the evidence in terms of determining what

35:02

the outcome is of a case. I'm

35:04

gonna be looking at the quality of the

35:07

evidence as it comes in, how these witnesses

35:09

do on the stand and to the extent

35:11

to which they corroborate one another, and how

35:13

compelling is the story that the prosecution ultimately

35:16

tells of this case? Do they have a

35:18

coherent narrative? And is it supported by evidence

35:20

that is corroborated by other evidence? We

35:23

need to wait and see before we can

35:25

make a prediction of how this

35:27

case comes out, including whether there will

35:29

be a hug jury. All

35:32

right, well, we'll just have to wait and see, but

35:35

thank you so much, Valerie and Jessica, for joining me

35:37

today. My pleasure, good to be with you. My

35:40

name is Galen Druck, our producers are Shane

35:42

McKeon and Cameron Tritavian, and our intern is

35:44

Jayla Everett. Jesse DiMartino is on video editing.

35:46

You can get in touch by emailing us

35:49

at podcastat548.com. You can also, of

35:51

course, tweet at us with any questions or comments. If

35:53

you're a fan of the show, leave us a rating

35:55

or review in the Apple Podcast Store or tell someone

35:57

about us. Thanks for listening and we will

35:59

see you soon. I

36:02

will see you then.