The Importance of Jury Selection in Trump’s Criminal Cases

Episode Notes

Transcript

Betty L. Dunkum:

You don’t know a lot about who’s walking in the door and so to the extent you can verify what they are saying to make sure that they are telling the truth and not just trying to get on the jury, that can be helpful.

Speaker 2:

Welcome to the award-winning podcast, lawyer to lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

J. Craig Williams:

Welcome to Lawyer, lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a blog named May It please the court and have two books out titled How to Get Sued and The Sled, my blog. May it please, the court is up and running, so please check it out at may it please the court.com. And speaking of books, I have a new book Releasing mid-May titled, how Would You Decide 10 Famous Trials That Changed History And that book is going to be a new podcast called In Dispute 10 Famous Trials that Changed History. We’ll be sharing more about that here in the coming weeks and you’ll be able to find that in May, which will soon be featured here on the Legal Talk Network. Well for today’s show, one of former President Trump’s criminal cases, the Hush Money trial is currently underway in a New York City.

Courtroom jury selection for this case was lengthy and controversial, which included Trump’s lawyers scrutinizing potential jurors, social media judge merchant giving Trump a warning for reacting to a potential juror in court and the dismissal of one seated juror Due to their concerns over intense media coverage of the trial After 12 jurors and six alternates were selected, former President Trump was asked, do you believe that the jury, the juror seated today can be fair? Trump replied, I’ll let you know after the trial depending on what happens. Well today on Lawyer to Lawyer, we’ll be discussing the jury selection process strategy and what attorneys should be looking for when selecting jurors for this high profile criminal case and several others on the horizon. And to help us better understand today’s topic, we’re joined by Betty L. Dunham. She is the founder and chief Executive Officer of Victory Trial Consulting. Betty is an attorney and has 25 years of experience in complex litigation and has been the lead trial consultant on a number of cases of regional and national significance as a lead trial consultant on her cases, her clients have had over 1 billion in jury verdicts and settlements during trial. Welcome to the show Betty.

Betty L. Dunkum:

Thank you.

J. Craig Williams:

Well, Betty, tell us about your role at Victory Trial Consulting and how you became interested in trial consulting.

Betty L. Dunkum:

I’m the Chief Executive Officer of Victory Trial Consulting. We are a full service national trial consulting firm. We assist our clients with all aspects of case development. We work on mock trials, focus groups, community attitude surveys. We provide assistance with witness preparation, case consultation, jury selection, shadow juries and other services. And we like to work with our clients to help them better understand and improve their case presentations and enhance their chances for success. I got into consulting work because I wanted more Courtroom experience and I like the fact that as a consultant I get to work on an tremendous variety of cases, both civil ranging from personal injury to business litigation to I’ve done imminent domain constitutional issues on the criminal side, obviously the different aspects of that as well. And so I get into trial a lot. I am learning all the ins and outs of trial. I also get to merge work in multiple disciplines in the consulting work. It’s a joy for me.

J. Craig Williams:

So what’s your role when it comes to jury consulting?

Betty L. Dunkum:

When I am doing the actual jury consulting work, our involvement can be at different stages. I’ve got clients say maybe the case is not that big for say a jury research project, they just want to have me come in and assist with jury selection. When I’m hired to just assist with jury selection, I will typically write the voir dire outline. We will rely on just our decades of experience doing work in your case, develop an outline, develop a profile based on just our general experience, and then I will assist in court with evaluating the jurors. I can help take notes for developing cause strikes and assisting with feeding the attorney the information that is needed to make those cause strike arguments and then recommending how peremptory strikes should be exercised. We can also do the jury background research in trial into the social media. When we have the benefit of a jury research project ahead of a mock trial, we can actually develop a profile of a juror that is favorable to your case in terms of what VO dire questions would statistically correlate and what answers would correlate with a verdict in your favor and so we can develop that profile if we have the benefit of that research.

J. Craig Williams:

Well, most of our listeners are going to know what a mock jury is, but you mentioned the terms shadow jury. What is that?

Betty L. Dunkum:

A shadow jury is when a group of people who would mimic the actual people sitting on the jury in terms of their background would be listening to the case as it proceeds. They can listen to it on a live video feed or prerecorded that goes into a separate location if cameras are allowed in the Courtroom. Otherwise the shadow jury can actually sit in the Courtroom during the trial and then provide feedback moment by moment as to how the shadow jurors feel the case is going.

J. Craig Williams:

Now what kind of benefit is that to a trial attorney and I try cases myself and when I’m in trial I’m working 16 hours a day or so. How do you have time for that?

Betty L. Dunkum:

Well, again, the consultant would be working with the shadow jury and then providing key findings from the shadow jury as to, for example, things the jurors are not understanding or are reacting too strongly and it gives the attorney an opportunity to pivot or to explain things better or to have that dialogue with actual jurors because obviously the attorney’s not allowed to communicate. The consultant can communicate with the shadow jurors because no one is allowed to talk to the actual jury. So it just provides some moment by moment feedback that hopefully the attorney can use to make adjustments as needed.

J. Craig Williams:

Well, we’ve had a pretty prominent case right now it’s in the middle of a jury trial. Former President Trump, his defense attorneys hired a jury consultant for their trial and there’s been a lot of mention about social media is a big issue in jury selection. How does that play a role in your mind?

Betty L. Dunkum:

The benefit of doing social media research can be helpful and it has been helpful even and has been used extensively in the Trump case. For example, one of the issues in the Trump case is the fact that because this is the former president of the United States, it is an extremely high profile matter that you’re going to have jurors who want to get on the jury so that maybe they can make some money off of it later or develop some notoriety. There’s many reasons why jurors sometimes want to serve, and so when you have a situation where you might have people want to serve, the issue becomes whether or not they might not be fully truthful with their answers to questions because they are trying to say what they think the judge and the attorneys want them to say. When that happens, you have to kind of go behind the juror and get a feel for how truthful this person is and the social media can provide that.

You can check social media to the extent possible for consistency or inconsistency between what a person is saying in court versus what they’re posting on social media. And the social media research was used last week in the Trump case last week about seven jurors were preliminarily seated and then the next court day, two of those jurors were removed. One of those jurors was removed because background research uncovered between the seating and the next day that a juror had likely made a false statement about their background and research into that particular juror’s criminal background showed that they had, I believe, been charged or arrested with removing signs or other campaign materials that were favorable for Trump. And so because there was that inconsistency between what was said in court and what the background research showed, the judge s struck that juror and I believe there have even been some, the judge has in the Trump case granted some cause strikes because of inconsistencies between jurors maybe saying they wouldn’t be biased in court.

But then you see on social media that they are making statements that do show that they have pre-judged the case or had bias and because again, this is Donald Trump who is, everybody knows and people know about this case, the likelihood of seeing that is very helpful because you don’t know a lot about who’s walking in the door and so to the extent you can verify what they are saying to make sure that they are telling the truth and not just trying to get on the jury, that can be helpful. And even in run of the mill case, say a criminal case or a personal injury case, you can still learn some things from the social media research, for example in a medical malpractice case if a juror is saying things that are very positive about doctors and nurses on the internet, but they seem very unopinionated about the issue in court. So again, you’re looking for consistencies or inconsistencies and because we ultimately want jurors who are going to be honest, we don’t want jurors who are trying to falsify things about their background just to get on a jury.

J. Craig Williams:

Well, Betty, at this time we’re going to take a quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer to lawyer. I’m joined by Betty L. Duncan Esquire. She’s the founder and chief executive officer of Victory Trial Consulting and we’ve been talking a little bit about the Trump trial before the break. It occurs to me that I’ve never really wanted a lawyer on one of my juries, but apparently there are several on this jury on former President Trump’s jury. What’s your thought about that?

Betty L. Dunkum:

It is extremely unusual to have lawyers on juries. Generally attorneys don’t want someone with a sophistication of a lawyer to be on a jury. I typically would not want a lawyer on a jury because they’re such strong leaders. When I’m looking at juries, I’m evaluating who is going to be a leader and who’s going to be a follower because leaders lead juries and when you have a lawyer, everyone on the jury is going to be looking to that lawyer for their interpretation of the legal issues in the case. And a lot of times attorneys in some ways a lawyer can even be almost like a jury of one because of their experience and knowledge. They can persuade the other jurors very effectively and a lot of times I’m wanting a jury with all six or 12 of the participants depending on what state you’re in, the size of the jury involved in the deliberations and contributing.

And so if you have such a strong leader that can sway that, I think in the Trump case they were intentional about using the lawyers because of some of the unique issues in the case, and lawyers are often more dispassionate about things and they can look past exciting and salacious facts because the prosecution in the Trump case has the exciting and salacious facts to their advantage. You’ve got their prosecution is focusing on these clandestine meetings with members of the media where they’re talking about catch and kill schemes to shut down bad press about Donald Trump and the jury is going to hear testimony from Playboy centerfolds and testimony about marital infidelity and all of these things that emotion and all of that can play into the prosecution for jurors who are going to be swayed by that, whereas lawyers and other sophisticated people might be able to look past that at some of the more technical arguments that we already see the Trump team raising that go more into the jury instructions and the technical issues in the case, more technical issues such as one of the things that Trump team is raising is whether or not the business records in this case were doctored in order to promote Donald Trump’s candidacy in violation of a New York state law.

And so that is a much more technical view. And so I think the Trump team is hoping that these attorneys are willing to be open to those defense arguments as to whether or not these statutes were violated and look past a lot of the excitement that the prosecution in this case has in their favor.

J. Craig Williams:

Well, let’s put you on the prosecution side for a moment. What kind of jury do you want to see

Betty L. Dunkum:

When you’re looking at the prosecution? You’re going to want jurors who are going to emotionally be disgusted by what has happened and maybe they already come in with this negative attitude toward Donald Trump as being, I think one of the jurors in jury selection last week said sleazy. And so they’re already going to have an idea that Donald Trump is not on the up and up. They may even be aware of all these other criminal prosecutions against him and have this feeling that already in them that they, they’re not happy about him or concerned about just who he is and what he’s trying to do. And then they’re going to have this set of facts that, again, talking about clandestine meetings to kill negative press and marital affairs and doctoring records and how much did Donald Trump know? And you’re going to want people who are going to be appalled by that evidence and stomach churning and prosecute the president and convict him of these charges because of all of this that they have going on and the story that they’re telling.

J. Craig Williams:

Do you think we’re going to see an OJ effect, meaning the situation where OJ was acquitted in his criminal trial, but then in his civil trial the jury or the criminal trial, the later criminal trial in Las Vegas put him away and may not have been guilty of that particular crime. Do you think that there’s a chance here that the jury is just going to convict former President Trump as vindication of their particular opinions?

Betty L. Dunkum:

Hopefully the jury is going to listen to the evidence and not be ruled by passion, but I definitely think the prosecution has a lot of passion and strong in their favor. And so again, I think that’s one of the reasons why Trump was looking for a more sophisticated jury to hopefully stem the tide with the emotions that the prosecution has in its case and in its favor. It’ll be interesting to see how the jury works out those issues if the prosecution is able to get the conviction or if maybe the lawyers or the other more technical people can be swayed by some of the more technical jury instruction arguments that I believe the Trump team is going to be making.

J. Craig Williams:

Is it really possible for former President Trump to get a fair trial given how polarizing his personality is?

Betty L. Dunkum:

I think it is extremely difficult because when you are looking at brain science, we often talk about and judges say, oh, if the juror is saying I can be fair, then of course they are going to be able to keep their mind open through the entire case and decide the case only they’re in the jury room. But there is a lot of research and studies that show that that’s not what jurors do. Jurors are often coming into court with preexisting attitudes then they are influenced by what they are seeing and hearing throughout trial and sometimes even opening statements can begin to sway them one way or the other. But most of the time jurors will form opinions during the evidentiary proceedings and during the witnesses, but by the time of closing arguments, most of the time the jury has made its mind up. And so it is difficult because jurors are humans and they’re trying to process two conflicting stories presented by the two cases and that holding that both sides of the case in constant tension is very difficult. There’s a psychological thing known as cognitive dissonance, and so that fairness scale is going to be tipped before closing arguments and may already have been tipped even before some of these people walk into the room. So it is very difficult and I think the idea that everybody’s going to keep their mind open from the get go is contradicted by so much in the research field on brain science and how people form opinions. So it’s very challenging.

J. Craig Williams:

What aspect of the trial do you think is most important? Would you put the largest set of importance on jury selection on the evidence that’s presented on the way that the judge handles the case or the way that the attorneys handle the case or the witnesses? Where do you place the importance level of all of these components?

Betty L. Dunkum:

I think it is all important because you can lose your case if a witness tanks on the stand or craters on cross-examination. If you are not telling a story that with the evidence, using the evidence that you have to tell a story that is persuasive, you can lose a jury. The attorney needs to be able to put the facts into a story that has a theme and a beginning and a middle and the end and shows why what is going on in a frame that is going to be beneficial to their client. But jury selection is extremely important in terms of evaluating jurors and ways they come into the court with preexisting attitudes, what those preexisting attitudes are and trying to get rid of jurors who may have preexisting attitudes that would be unfavorable to the case. And so it all is imported. It works together cohesively.

I have seen cases where the facts are overwhelming, they’re going to be able to sway a jury almost no matter what, but if an attorney makes mistakes in jury selection and leaves someone on that harbors some preexisting case related bias or maybe they didn’t get a chance to or weren’t allowed to do jury background research, and so a juror was saying things in court that wasn’t truthful, those jurors can kill a case. And so it all works synergistically and when as trial consultants, we work with attorneys both on the jury selection aspect of it and on the thematic development and on the witness development so that attorneys can put their best foot forward at all aspects of trial.

J. Craig Williams:

Well, Betty, it’s time for us to take another quick break. We’ll be right back and welcome back to lawyer to lawyer. I’m back with Betty L. Duncan Esquire. She’s the founder and chief executive officer of Victory Trial Consulting. We’ve been talking about jury selection and the issues of former presidents Trump’s jury. What role do you think that the trial occurring in Manhattan is going to have as opposed to perhaps what former President Trump wanted a change of venue to another location?

Betty L. Dunkum:

We all know from polling that Manhattan is a very hostile territory for Donald Trump. I think the Manhattan overall, the people voted I think 80% democratically. And so we know from the get-go that there is a lot of anti-Trump bias and people who have already voted against him in Manhattan. And I think that was one of the reasons, and obviously there’s a lot of news about Donald Trump because he’s just sat through the fraud trial in Manhattan and the business fraud, and that was a multi-week trial. And so you’re coming now in with a criminal trial right after that civil trial. And so there’s a lot of vibe there specifically that Donald Trump is someone who’s not on the up and up being charged with all these criminal charges. And so it’s a very challenging venue for him, and I think it’s one of the reasons why the team has made some of the decisions that they’re making in jury selection to try to see if they can find some of these dispassionate jurors who might be able to get above the passions of the community and the very emotionally charged case that the prosecution has in that situation.

J. Craig Williams:

From what you said, it makes sense that the defense former President Trump wants the two lawyers on the jury to look at all the technical issues. So then why would the prosecution let those two attorneys sit on the jury?

Betty L. Dunkum:

I did find it unusual. I don’t know if maybe they didn’t anticipate some of the more technical aspects of the Trump defense. Maybe they knew something, thought that they might be more inclined liberally. So it is hard to know. I personally think that the lawyers have at least a chance to be more Trump oriented, but obviously they chose made that decision as well, and maybe they thought that they could sway them, so who knows? But I definitely think that at least the Trump team has a shot with the two lawyers on the panel as opposed to laypeople being able to look toward some of the technical issues that the team is looking at.

J. Craig Williams:

Knowing that Michael Cohen, former attorney Michael Cohen is going to be one of the star witnesses in the case, do you think that that’s one of the reasons the prosecutors might have left the attorneys on it because they may understand Cohen’s testimony a little bit better than the average juror?

Betty L. Dunkum:

Well, I think the lawyers are going to understand the entire case better than the average juror, but then the question comes is what type of person is going to process the emotions of the case and how are they going to process it? Because are the jurors, obviously Cohen is going to be blasted by the Trump team for being a liar. Is the jury going to look at Cohen as someone who is truthful in what he is saying or are they going to react to the impeachment that the Trump team is going to have of Cohen? And so maybe the prosecution was thinking the lawyers might be open to what Cohen has to say. It’s hard to know, but I think laypeople are going to be able to evaluate Cohen as well. So it’ll be interesting to see how the jury takes a look at Cohen. Are they going to believe him? Is the impeachment that the Trump team has anticipated to bring going to be too strong? It’ll be a wait and see game.

J. Craig Williams:

We’ve just about reached the end of our program, but it’s time to kind of wrap up. But I’d like to ask a particular question to kind of guide your conclusion. When you have a high profile case like former President Trump or OJ or some of the very high profile cases that have gone on through history, how would you advise lawyers to pick jurors in those cases?

Betty L. Dunkum:

When you have a case with media exposure, and it doesn’t need to be something as big as a Donald Trump or an oj, but any type of local media exposure, the first thing that needs to be done is an assessment of which potential jurors have seen the media exposure. Have preexisting attitudes about your client either from say, being a well-known person or a well-known company or being influenced by the media exposure and doing some one-on-one discussions with them because you don’t want a juror who discussing in open court meet their, what they saw in the media and what opinions they formed. And so that takes up a lot of time in the case, cannot be brushed over and needs to be done very carefully because you don’t want jurors coming in with preexisting negative attitudes about your client or your case from the get go. And regardless of the immediate coverage in the case or how well-known a client is, it could even be a well-known company in the community. Those issues need to be assessed and again, working with someone like a trial consultant, we can work with you on those issues and we can help you spin your client in a favorable way so that the jury can focus on the case and not necessarily lean toward preexisting attitudes about your client or the media coverage.

J. Craig Williams:

Well, Betty, it’s been wonderful having you on our program today. As we wrap up, let’s get your contact information and point our listeners to your website.

Betty L. Dunkum:

Absolutely. Our website is www.victorytrial.com. You’re also welcome to call us toll free at (877) 530-1077 or email at [email protected].

J. Craig Williams:

Great. Betty, thank you very much for being on the show today.

Betty L. Dunkum:

It’s been a pleasure. Thank you for inviting me.

J. Craig Williams:

Well, this is what I think about today’s topic. I’ve been in situations with mock juries and shadow juries. It’s quite an expensive process, and frankly, the amount of money and issue for the client needs to be able to justify that expensive process. You’re asking up to 12 people and several consultants to spend perhaps weeks as a shadow jury advising you about what’s going on in the trial, and it is certainly a big benefit, but it’s also a big cost. So in high profile cases, yes, you’re going to see jury consultants, and in some very expensive cases you’ll see jury consultants. But generally speaking, what Betty said today is exactly correct. You need to develop a theme, you need to tell a story, and that story needs to resonate with the jury and everything that you say in your opening statement and your closing argument, as well as how your witnesses react to cross-examination and your direct examination or your cross, depending on which side you’re on, is going to affect the case.

It’s all a big set of moving parts and everyone in the Courtroom, the bailiff, the clerk, the judge, the people in the gallery, even the attorneys and the people that walk in and out of the Courtroom will have an effect on the outcome. So trial attorney has all of those moving components, and when you add a shadow jury to it and a trial consultant, you add more moving parts and complicate the process even more. So big money, big cases, jury consultants. That’s it for Craig’s Ran on today’s topic. Let me know what you think, and if you like what you heard today, please rate us on Apple Podcasts to your favorite podcasting app. You can also visit [email protected], where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal think lawyer to lawyer.

Speaker 2:

Thanks for listening to Lawyer To Lawyer produced by the broadcast professionals at Legal Talk Network. Subscribe to the RSS feed on legal talk network.com or on iTunes. The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.