White Collar Criminal Defense Group

What Will the Art of Jury Selection Look Like During Trump’s Second Presidency?

For those of us who select juries in state and federal courts throughout the United States, we wonder out loud how this process will evolve after President Trump’s trials and appeals are all concluded or terminated.  Many of us hire jury consultants and conduct expensive focus groups hoping to gain insight into the current mindsets of juries. I have been told by some jury consultants, with whom I have worked, that the “Trump Factor” has had little impact, in their opinion, on juries.  Other consultants disagree wildly with this assessment. They argue that the Trump era has caused jurors to become more assertive and even aggressive in courtrooms, at times pushing back on the lawyers and even the trial judge.

For better or worse, President Trump has created a definitive brand that many people claim to understand or embrace. This is not a political statement, but a fact. Some jury consultants argue that so-called “MAGA” jurors are allegedly easy to spot, more rural, less educated, and more blue collar.  Personally, I have not found all of these conclusions to be very accurate.  Many wealthy, highly educated professionals also connect with certain MAGA touchstones. I remain concerned, but not yet convinced, of what the lasting Trump “dynamic” will be moving forward.  To some degree it seemed to be unfolding weekly.  It may go on for much longer than we all think. The issue is how does it impact a client participating in the bedrock of our constitutional protection which is trial by a jury of your peers.

A twenty-four-hour news cycle fueled by an energetic former and now second term President amid a seemingly endless and brutal Presidential campaign has taken its toll, in my opinion, on selecting a jury of one’s peers.  The frontal assault on our justice and jury system is apparent and palpable. When President Trump was on trial, to some degree so is the American rule of law. That conclusion does not just come from President Trump’s words and actions but from the media, members of his new cabinet, vocal surrogates, members of congress and outspoken state legislators. For better or worse the motivations of judges, juries, prosecutors, law enforcement, and even the Supreme Court are now being called into question.

The critical question from a practitioner’s point of view is how one adequately defends a client in this new and dynamic legal and media environment.  The facts and the law used to be fundamental guideposts to our adversarial system of justice. As an officer of the Court for over forty years, I respect the judicial system and personally strive to do all I can to instill confidence in a judicial system I still believe in. I have generally been blessed to have practiced before honest, hardworking, and dedicated jurists whom I respect whether they rule in my factor or not

While facts are subject to debate, alternative facts can now replace what once were considered immutable facts. The law is not universally respected. I’m not so sure these are the only factors at play but the same disquiet that has impacted the American electorate must invade the private confines of jury deliberations.  Any defense attorney, selecting a jury must factor in these issues when representing a client charged with a serious civil or criminal offense.

Jury selection in federal court generally, but not always, moves far too swiftly for many practitioners. After years of practice, I have never fully understood why that is the case. Federal judges throughout the country advise counsel with pride about how swiftly they can seat a federal jury. As a former state prosecutor, it has been my experience that state jury selection is usually more lawyer friendly, and, therefore, more client friendly. It is generally far less rushed.  Whether the jury selection process moves swiftly or more slowly trial counsel must be vigilant to monitor and detect a new set of still evolving prejudices, preconceptions or far worse.  While some of these prejudices may be helpful to one’s client if properly harnessed, the converse also may be true.

A Trial Lawyer’s Toolbox Must Be Fully Utilized

What are the tools trial lawyers can utilize in 2025 to protect their clients’ interests? Many are well known, but some may have to be embraced and tweaked with more vigor moving forward. In federal court, defense counsel must do everything possible to slow down the selection process. Speed can lead to bad results for either side. Well before the day of jury selection, one should consider petitioning the court for a larger venire panel if you are litigating a case that may be newsworthy or controversial. The size of the jury venire will always impact the latitude the court gives the selecting lawyers. The larger the panel the more opportunity for either side to strike potential problematic jurors and still seat a jury in a reasonable timeframe. Always consider asking for more preemptory strikes if the case warrants it. Trial teams must perform social media checks, as quickly as possible, on their jury pool. This exercise can be done “in house” but if the resources are available, this task can be outsourced to one of many outside vendors who specialize in swift juror background checks.

Media, particularly film, sound, and audio, in the courtroom is slowly expanding throughout the United States.  It is replacing artists sketches of court proceedings. Someday soon the federal courts may also embrace this practice as many state courts have done. I have never spoken to a juror or potential juror after a trial who thought that media attention assisted their job. Of course, reporters with whom I interact feel differently. I certainly respect both points of view. However, there are competing reasons why such publicity has been allowed by some courts.

Some of the reasons involving more judicial transparency are sound and prudent. I find the human drama played out in a well-tried case compelling. As a lawyer and a member of the public, I enjoy watching trials for professional and transparency reasons. As any practitioner can tell you, not only are you doing your best to manage the demands and often tight time frames placed on jury selection, but well-heeled clients bring their own list of increasing demands to a stressful but important process.  Their life, livelihood, or future is on the line. No matter what side of the case you are on, a strictly enforced gag order may keep the parties and the process more pristine.  Unfortunately, even gag orders are eroding and being routinely challenged in the current legal environment. Moreover, surrogates find many ways to routinely circumvent judicially mandated gag orders.

Jury questionnaires and/or supplemental jury questions are a must in any case but particularly one that grabs any significant media or public attention.  Most judges are open to this process and, to one degree or another, embrace it. Avoid questions like “What are your favorite TV shows?” in lieu of a more meaningful quest for more substantive information about a potential juror. The thimbleful of incomplete information counsel receives sometimes minutes before jury selection begins is simply not enough to make life changing decisions. It is inadequate. A request for more information earlier should always be made.

What Are The Client’s Expectations?

Clients come to the process with their own set of increasing expectations and anxieties forged by the current legal and media environment. They read the papers or more likely watch online cable news shows that fuel their particular predilections. Clients have to be managed with the reality of what actually goes on in the courtroom, as well as the personality, integrity, and customs of the trial judges before whom we practice, which many practitioners are finding to be an increasingly more difficult task.

Murder, Misogyny, and The Due Process Clause: U.S. Supreme Court Grapples With The Effect Of Unduly Prejudicial Evidence

In 2004, Appellant, Brenda Andrew was convicted in Oklahoma of first-degree murder and conspiracy to commit first-degree murder for participating in the homicide of her husband to collect his life insurance policy. Andrew was subsequently convicted and sentenced to death and is the only woman currently on death row in Oklahoma. At trial, the Government introduced evidence of Andrew’s alleged promiscuity and her “failings” as a mother and wife, which she argued was irrelevant and highly prejudicial. For example, the Government elicited testimony about Andrew’s prior sexual partners, made various derogatory comments, calling her names like “slut puppy” and “hoochie” due to her clothing choices and hairstyle, and questioned her style of grieving because she hadn’t broken down in tears during her trial.  In closing argument, the Government displayed for the jury a pair of Andrew’s thong underwear and asked, rhetorically, “whether a ‘grieving widow’ would wear ‘this.” In response to a subsequent habeas petition, the Government conceded that much of this evidence was irrelevant.

Upon granting certiorari, The U.S. Supreme Court confirmed that its prior rulings, including Payne v. Tennessee (501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991)) established that “the due process clause forbids the introduction of evidence so unduly prejudicial as to render a criminal trial fundamentally unfair.” The Court overruled The U.S. Court of Appeals for the Tenth Circuit which had erroneously found that no federal law prohibited the introduction of irrelevant and prejudicial evidence about a defendant’s sexual history and behavior.

Justice Samuel Alito concurred in the judgment “because our case law establishes that a defendant’s due-process rights can be violated when the properly admitted evidence at trial is overwhelmed by a flood of irrelevant and highly prejudicial evidence that renders the trial fundamentally unfair.” He emphasized that he left open the question, to be determined on remand, of whether the high standard for such a conclusion had been met here.

Of note, Justice Clarence Thomas was joined in dissent by Justice Neil Gorsuch, opining that some of the evidence presented against Andrew was relevant to the case. For instance, “the prosecution’s reference to the underwear Andrew brought to Mexico . . . bore on her ‘intentions in fleeing to Mexico,’ a key issue in the case,” Justice Thomas went on to state that “contrary to the majority’s insinuations, the State presented ‘overwhelming evidence’ that Andrew participated in the murder of her husband.”

The Supreme Court continues to focus on issues in criminal law. While the matter has been remanded, it is significant that The Supreme Court has weighed in on the detrimental effects of the Government utilizing stereotypes, gender or otherwise, in its pursuit of a conviction.