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Donald Trump’s path to winning at trial begins and ends with jury selection | Opinion

From Miami Herald, Jun. 12, 2023 by Jon May

If the United States actually possesses credible evidence that supports the allegations in the indictment against Donald Trump, the government should not have difficulty obtaining a conviction. But there is one circumstance that could make it impossible for the government to prevail: a rogue juror.

In order for Trump to be convicted in federal court, a jury of 12 people must unanimously decide that the prosecutors have proven their case beyond a reasonable doubt. Only by requiring that guilt or innocence be determined by a group of citizens unconnected to the government, is the presumption of innocence guaranteed.

But this also means that it only takes one juror to prevent the accused from being convicted. That juror may sincerely believe that the defendant is not guilty or that the defendant might be guilty but that prosecutors have not presented sufficient evidence to convince them beyond a reasonable doubt. Or the juror may have intended from the beginning to vote not guilty, believing that the entire case was a political prosecution. Whatever the case, any verdict is unimpeachable.

Prosecutors will spend considerable effort trying to determine which members of the “venire” — the pool from which jurors are selected — would never vote to convict Trump. His lawyers will try to make that task more difficult if not impossible.


In state court, in New York or Georgia or Florida, for instance, lawyers can learn a great deal about potential juror’s biases during jury selection. Counsel can ask almost anything about a juror’s background, work experience, associates, family, views of the police, views of criminal defendants, whether they have been a crime victim, whether they can be fair. And, of course, what counsel cannot learn directly from the juror, counsel’s paralegal can find out from social media.

The situation is very different in federal court. Most of the questioning is conducted by the court and intended only to determine if a prospective juror can be fair. That determination is usually based upon what the person says. Jury selection rarely takes more than a few hours.

Normally, in instances where a federal judge permits lawyers to participate in voir dire, the court will severely limit the subjects for inquiry, usually to specific issues that are raised in the prosecution. Given the unique nature of this case, the court may expand the range of questions counsel can ask. The court may even permit counsel to submit a jury questionnaire to the venire in advance of jury selection. But counsel will not be able to probe jurors on the kinds of telltale signs that reveal a person’s biases.

But, most significant, Trump’s lawyers will be able to ask for an anonymous jury. An anonymous jury is just what it sounds like: jurors whose identities are not known to the lawyers, the judge or the public. Such juries are used in cases involved in organized crime where the government is concerned with the jurors’ safety. Trump’s lawyers will argue that there are violent forces in the country who might seek to intimidate some jurors into voting for a conviction. If the argument is successful and the government is forced to pick jurors without having any ability to vet them through questioning or social media, the chances of Trump being found not guilty are greatly increased.

If Trump unlawfully and recklessly mishandled some of our nation’s most vital secrets, then the former president deserves to be convicted of the crimes alleged. And any juror who is selected to serve on the jury, who swears to follow the law and determine if the evidence presented establishes guilt beyond a reasonable doubt, must vote to convict.

Nevertheless, if the government is unable to identify and strike those jurors who refuse to follow the law and the evidence, the defense will prevail.

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