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Jury selection is one of the most crucial components of a civil trial. The voir dire process allows attorneys for the various parties to examine potential jurors about their views and opinions on various case-related subjects, any prejudices they may have, and/or their capacity to evaluate the evidence dispassionately and impartially.

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Critical is Jury Selection

It is impossible to exaggerate the significance of this procedure. Because the jury will ultimately decide the outcome of a case, lawyers must be able to thoroughly interrogate and screen potential jury members.

Every prospective juror would truthfully respond to all inquiries from the court and attorneys in an ideal world. Each juror would be required to disclose any potential biases against a particular party, identify any social media posts in which he or she expressed views on a particular party or issue, and/or disclose any other pertinent information that might give rise to the challenge or dismissal of the juror.

Jurors Don’t Usually Speak Out

This is wishful thinking, as those who litigate are aware. Regrettably, jurors lie. Sometimes they intentionally do it, and other times they unintentionally do it. Furthermore, a defendant is not automatically entitled to a new trial or any other remedy just because a juror is misled. Whatever the cause, a lawyer must be able to research the possible juror’s background, any potential prejudices, and any other circumstances that can call into question or jeopardize their capacity to stay 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.

The Seventh Amendment guarantees this privilege, thus concealing or withholding the identity of the jurors from the lawyers would seem to be straightforward language. What use is a party’s right to a jury trial, after all, if they cannot tell which jurors are unable to be impartial? If a lawyer doesn’t know the identities of the persons who will be hearing his or her client’s case, how can he or she perform voir dire effectively? How can the attorney tell whether one or more of the jurors misled about a fact that was crucial to the case? How can the lawyer tell if one or more of the jurors are fair?

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Defamation Case in New York

The name(s) of the jurors in Donald Trump’s recent defamation case in New York were unknown to Trump’s attorney(s). This appears to have been done in what the presiding judge described as a “special circumstance” to guard against undue influence and to safeguard the jurors. The names, residences, and places of employment of potential jurors for the former Elle magazine columnist’s trial against Trump on April 25 will be kept private, according to Reuters. U.S. District Judge Lewis Kaplan in Manhattan.

The judgment astonished legal expert and lawyer Alan Dershowitz, who noted that he could not recall a case in which only the judge knew the names of the jurors.

In essence, it appears that voir dire was conducted without the benefit of thoroughly vetting the jurors’ backgrounds at the request of Trump’s attorneys. This could lead to issues. What if, for instance, one or more of the jury members had previously made social media remarks that suggested they were unable to assess the evidence fairly? What if one or more jurors had previously indicted Trump or said they wanted to convict him?

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Finding an impartial jury in Manhattan is difficult.

Although there is currently no indication that such material exists, Trump’s team ought to have been permitted to interview each juror. Regrettably, given that the jurors’ names were withheld and/or remained secret, Trump’s attorneys appeared to be powerless to do so. Trump was essentially obliged to have faith that the Manhattan jury will make the proper decision and decide his case in a fair and impartial manner.

Regrettably, Trump has a bad reputation in Manhattan. According to CBC, Trump’s trial location could hardly be worse than Manhattan. Ask folks in Manhattan today if he is guilty of anything, said Mark Bederow, a criminal defense lawyer and former New York City prosecutor. I estimate that 95% of people

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.  

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