A general question for lawyers: can attorneys get a decent feel for juror's reactions to testimony as it's being presented?

The defense team may feel pretty confident in their strategy with how this cross of Cohen has gone.

Edit: If I was on this jury, I think I would have a hard time keeping the shock off of my face during the cross about the phone call.

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can attorneys get a decent feel for juror's reactions to testimony as it's being presented?

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yes, but any person that tries cases will tell you the "feel" is usually nothing more than a guess or wishful thinking. we always watch the jury to see how they react to things, but its far from a science.

had one juror that both side thought was not listening to anything. turned out he was most tuned in the entire time.

Every morning I have to sit through the first half hour of the Today show because it's my wife's preferred morning show. It gives me a good overview of the MSM spin on the news of the day, so I find it useful.

Notes from this morning:

1. Trump trial was the 4th story, after floods in Houston, a full weather segment, and a story about the blow-up in the house hearing between MTG and a couple of Dems.
2. The theme of the Trial story was that Cohen held his composure through "attempts" by the defense to undermine his credibility.

The Today gang is still rooting for a conviction, and they're willing to avoid salient facts to insure that happens.

This is nowhere near done. Listening to their spin, I'm at 35-65 in favor of conviction. Relying on the low information voter/juror of course.

ETA: It's interesting to see the spread between the CNN analysis in real time as they streamed the trial, vs. the NBC spin after 16 hours and the ability to summarize and avoid the actual testimony.

Didn't the Casey Anthony defense team actively monitor social media in real time to gauge/predict how the jury was reacting to their defense/questioning of witnesses and adjust their defense strategy based on the public reaction?

Foreverconservative said:

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Chatting with an attorney this morning over coffee he said what he's witnessed thus far is possibly the biggest train wreck

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And sometimes you will hear a lawyer argue both sides a matter. Or take the other side just because. It can be absolutely maddening.

Foreverconservative said:

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Chatting with an attorney this morning over coffee he said what he's witnessed thus far is possibly the biggest train wreck and possibly the worst case brought before any judge in a high profile proceeding in history. He thinks Bragg should be defrocked on his multiple Brady violations alone. And this judge is so far out on the limb he's amazed that his supervising Justice hasn't intervened. He said It is within a judge's authority to declare a witness so inherently unreliable that no reasonable juror could accept as true beyond a reasonable doubt any testimony offered by that witness.

If that witness is the only source of evidence on one or more elements of the offense, such a finding would lead to a directed verdict of acquittal. He thinks Merchan is painted into a corner and if he lets this go to the jury at this point he's going to end up on the talk show circuit as the judge who flushed his career to try and get Trump.

I find it amazing that hear we are with the prosecution's last witness and the lynchpin to the case and he's been destroyed under cross yet we still don't know the underlying charge used to enhance these misdemeanors case years past the SoL to felonies and it's not even in the indictment and is basically just left at TBD status throughout this entire trial

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All of that is what should happen but....
1. In NY Merchan will not have his career damaged by this
2. Even if he did he'd likely make tremendous money moving forward as you said on the liberal tv circuit as their hero and writing a book as well.

Foreverconservative said:

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Chatting with an attorney this morning over coffee he said what he's witnessed thus far is possibly the biggest train wreck and possibly the worst case brought before any judge in a high profile proceeding in history. He thinks Bragg should be defrocked on his multiple Brady violations alone. And this judge is so far out on the limb he's amazed that his supervising Justice hasn't intervened. He said It is within a judge's authority to declare a witness so inherently unreliable that no reasonable juror could accept as true beyond a reasonable doubt any testimony offered by that witness.

If that witness is the only source of evidence on one or more elements of the offense, such a finding would lead to a directed verdict of acquittal. He thinks Merchan is painted into a corner and if he lets this go to the jury at this point he's going to end up on the talk show circuit as the judge who flushed his career to try and get Trump.

I find it amazing that hear we are with the prosecution's last witness and the lynchpin to the case and he's been destroyed under cross yet we still don't know the underlying charge used to enhance these misdemeanors case years past the SoL to felonies and it's not even in the indictment and is basically just left at TBD status throughout this entire trial

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This is only true if we have fair and rational people sitting in the jury box. I'm not convinced we do.

BMX Bandit said:

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can attorneys get a decent feel for juror's reactions to testimony as it's being presented?

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yes, but any person that tries cases will tell you the "feel" is usually nothing more than a guess or wishful thinking. we always watch the jury to see how they react to things, but its far from a science.

had one juror that both side thought was not listening to anything. turned out he was most tuned in the entire time.

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and you also never know a juror's will power to stand up to pressure. You could have one that thinks this all is completely absurd and gets in a room where the others are all orange man bad must convict mindset. How well can they stand on their position or crumble to the majority.

Anyone hoping for a directed verdict will be sorely disappointed imo. Judges are human too and outside Merchan's apparent personal biases there will be TREMENDOUS social and professional pressure on him (and maybe electoral NY Supreme Court (not like USSC) has elections but I'm unsure of when he ever ran).

This goes double or triple for the jurors.

As a judge giving a directed verdict you could at least point at the prosecution and say I gave them every advantage and they still bungled it. You might get some (or a lot) of blowback but it's recoverable. He's also in his early 60s and may be closing on retirement and might still be able to get some appointments or legal work to round out whatever happens in this case.

As a juror, holy God, a) due to the length and days of the trial, everyone in your life knows you're a juror. b) the consequences in NYC for not convicting Trump on a social level or by personal interactions could be substantial. c) I guarantee you that there is pressure being exerted.

I just don't expect that this was or could have been a fair trial.

aezmvp said:

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Anyone hoping for a directed verdict will be sorely disappointed imo. Judges are human too and outside Merchan's apparent personal biases there will be TREMENDOUS social and professional pressure on him (and maybe electoral NY Supreme Court (not like USSC) has elections but I'm unsure of when he ever ran).

This goes double or triple for the jurors.

As a judge giving a directed verdict you could at least point at the prosecution and say I gave them every advantage and they still bungled it. You might get some (or a lot) of blowback but it's recoverable. He's also in his early 60s and may be closing on retirement and might still be able to get some appointments or legal work to round out whatever happens in this case.

As a juror, holy God, a) due to the length and days of the trial, everyone in your life knows you're a juror. b) the consequences in NYC for not convicting Trump on a social level or by personal interactions could be substantial. c) I guarantee you that there is pressure being exerted.

I just don't expect that this was or could have been a fair trial.

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I worry less about the people they actually know and more about some facist lib media personality doxing them to the world bringing actual real threats to their lives by the crazies out there.

Momma turnt 11 jurors TWICE. On one trial the dude walked away after being railroaded by IRS. The other was a gas company easement issue and the problem for homeowner just went away.

Where is Keith Schiller? Will the state subpoena him for rebuttal? Or have they given up by now? That October 24, 2016 call is pivotal. Prosecution knows they have a credibility problem with Cohen, so on this phone call, why wouldn't they want Schiller's testimony to corroborate the call and whether Trump was present and on the call?

That should have been the follow up witness after Cohen, if Cohen was telling the truth, correct?

From a defense standpoint, their calling Schiller to rebut Cohen about that call would be risky give that Schiller was also directly involved when Trump met Stormy in Lake Tahoe. He also was likely present during meetings with McDougal since he was Trump's bodyguard for so long. The state's case is so weak, that's probably not an option for the defense. Too many extraneous matters the prosecution could delve into on cross.

My thinking is still conviction. Aside from the 2 lawyers, these are average joes on the jury. The people in the room that want to convict will be telling them how much their life will be turned upside down living in NY if they are a hold out on a guilty verdict. There will likely be very few if any that could withstand that pressure for their families.

And this to me was Bragg's and Colangelo's (and Biden's) thinking all along. They know their case is a sham. But they need to have Trump be a convicted felon before the election. They don't care what happens on appeal. They just need the initial conviction.

4stringAg said:

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My thinking is still conviction. Aside from the 2 lawyers, these are average joes on the jury. The people in the room that want to convict will be telling them how much their life will be turned upside down living in NY if they are a hold out on a guilty verdict. There will likely be very few if any that could withstand that pressure for their families.

And this to me was Bragg's and Colangelo's (and Biden's) thinking all along. They know their case is a sham. But they need to have Trump be a convicted felon before the election. They don't care what happens on appeal. They just need the initial conviction.

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Conviction of what? I still don't know what charge they are going for here.

4stringAg said:

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My thinking is still conviction. Aside from the 2 lawyers, these are average joes on the jury. The people in the room that want to convict will be telling them how much their life will be turned upside down living in NY if they are a hold out on a guilty verdict. There will likely be very few if any that could withstand that pressure for their families.

And this to me was Bragg's and Colangelo's (and Biden's) thinking all along. They know their case is a sham. But they need to have Trump be a convicted felon before the election. They don't care what happens on appeal. They just need the initial conviction.

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Would that be juror misconduct for a juror to be arguing for or against a conviction based on facts or issues outside of the case presented in the courtroom? If a juror came to the judge or bailiff and said "juror #6 is trying to argue that we should convict because the raging mob will make our lives hell if we don't", what can the judge do about that situation?

WestTexAg12 said:

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4stringAg said:

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My thinking is still conviction. Aside from the 2 lawyers, these are average joes on the jury. The people in the room that want to convict will be telling them how much their life will be turned upside down living in NY if they are a hold out on a guilty verdict. There will likely be very few if any that could withstand that pressure for their families.

And this to me was Bragg's and Colangelo's (and Biden's) thinking all along. They know their case is a sham. But they need to have Trump be a convicted felon before the election. They don't care what happens on appeal. They just need the initial conviction.

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Conviction of what? I still don't know what charge they are going for here.

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I am not sure the prosecution does either. They just know he is guilty and hope that the jury sees it the same way.

txags92 said:

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WestTexAg12 said:

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4stringAg said:

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My thinking is still conviction. Aside from the 2 lawyers, these are average joes on the jury. The people in the room that want to convict will be telling them how much their life will be turned upside down living in NY if they are a hold out on a guilty verdict. There will likely be very few if any that could withstand that pressure for their families.

And this to me was Bragg's and Colangelo's (and Biden's) thinking all along. They know their case is a sham. But they need to have Trump be a convicted felon before the election. They don't care what happens on appeal. They just need the initial conviction.

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Conviction of what? I still don't know what charge they are going for here.

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I am not sure the prosecution does either. They just know he is guilty and hope that the jury sees it the same way.

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"It is beyond any reasonable doubt that Trump intended to cover up this crime. And If it wasn't that crime, then it is beyond any reasonable doubt it was meant to cover up this other crime. We are not quite sure what crime he intended to cover up, but we know that it is beyond a reasonable doubt that he did. There is simply no other reason that someone would pay their lawyer and log it as legal expenses. None"

Count One:Michael Cohen sends an invoice on February 12, 2017 to McConney, Controller, per McConney's request in order to be able to cut a check. Trump not involved.

Count Two: A General Ledger (Trump Revocable Trust) entry based on the Cohen emailed invoice is made by McConney with no direction by anyone else. Voucher number 842457. Trump not involved.

Count Three: Another General Ledger (Trump Revocable Trust) entry, Voucher number 842460.

It should be noted that in February, Cohen was sent a check for both January and February 2017, totalling 70,000 dollars.

Count Four: Check and checkstub numbered 000138 Trump Revocable Trust account on February 14, 2017

Now take those four acts, none done by Trump nor at his direction and continue on for each month remaining in 2017. Cohen creates and sends an invoice, a ledger entries are made, check and check stub from a checking account either from the Revocable Trust orTrump's personal account as maintained by the Trump Org.

Trump did not sign the checks from the Trust since that authority had devolved onto Don, Jr, Eric and Weisselberg. Trump did sign the checks on his own personal account as those were FedExed to the White House, signed en masse as presented to him and then sent back to the Trump Org. for distribution.

Indictment here

Now Cohen says he was Trump's personal attorney, not with the WH Counsel's office in 2017 and sends invoices requesting payment of $35,000 per month to "Michael Cohen, Esquire." The use of esquire indicates a solo practitioner.

A pre-existing attorney-client relationship (personal attorney) invoice from an attorney's office created by that attorney, booked as a legal expense. That happens millions of times a day.

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Would that be juror misconduct for a juror to be arguing for or against a conviction based on facts or issues outside of the case presented in the courtroom? If a juror came to the judge or bailiff and said "juror #6 is trying to argue that we should convict because the raging mob will make our lives hell if we don't", what can the judge do about that situation?

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Call Juror #6 to speak with him to get further details if there has actually been a threat or other communication with that juror. He can then excuse that juror and elevate one of the alternates to take their place.

Reminder: Jurors can be replaced during trial up to the time deliberations have started with little consequence. If a juror needs to be replaced after deliberations have begun, deliberations have to start over.

I have appreciated all the insights, especially from the lawyers and especially from aggiehawg.

I have a subscription to the NYT for its games, but I recently took advantage of a low rate and subscribed, though I have cancelled in the past because of the obvious leftist bias. I hate to give them my money, but I wanted to see how the NYT understands this trial.

The NYT is operating in a completely different universe of Orange Man Bad. According to its reporters and opinion writers, nothing good for Trump has happened during the entire trial.

Sadly, that is what I expected from the beginning.

This case was open and shut from the moment it began with a jury called from Manhattan.

It's like the Tom Robinson trial in To Kill a Mockingbird: the facts won't matter to this jury.

It's disgusting and sickening, but they are going to convict him.

Some wishful thinking from Trump here. These wacko libs are "all in" on this witch hunt.

Bragg isn't dropping anything.

People are thinking that Soros backed D.A., Alvin Bragg, who never wanted to bring the Witch Hunt against me in the first place, is going to drop this ridiculous and very unpatriotic “CASE” in order to save lots of money, and also the self respect of his once revered Office. He…

— Donald J. Trump Posts From His Truth Social (@TrumpDailyPosts) May 17, 2024

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It's like the Tom Robinson trial in To Kill a Mockingbird: the facts won't matter to this jury.

It's disgusting and sickening, but they are going to convict him.

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Jury instructions will go a long way in how the jury frames their deliberations.

I am surprised by two things the state has done: no witness after Cohen and apparently no plans for a rebuttal case, nor an extended redirect of Cohen.

Trying to read the tea leaves from the jumbled discussions yesterday and Merchan stating his requirement of limted down time between summation, jury charge conference and deliberations has me confused. Merchan seems to be of the opinion that cross of Cohen on Monday and redirect won't take more than half the day? State rests, jury is sent out for the usual defense motions at the close of prosecution's case in chief. Jury is brought back in irrespective of whether the defense puts on their case in chief. If defense opts not to present a defense, jury still needs to hear that they will rest their case.

Merchan will have a jury charge conference immediately thereafter with closing arguments on Tuesday, followed by charging the jury and sending them off to begin deliberations Tuesday but then court is dark again for Wednesday?

These timing issues are complicated on how next week will go.

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Merchan stating his requirement of limted down time between summation, jury charge conference and deliberations

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From reading inner city twitter, this seemed very standard. That's how most judges handle it.

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but then court is dark again for Wednesday?

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I thought I read they are having court this Wednesday. Is that not the case?

fredfredunderscorefred said:

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"It is beyond any reasonable doubt that Trump intended to cover up this crime. And If it wasn't that crime, then it is beyond any reasonable doubt it was meant to cover up this other crime. We are not quite sure what crime he intended to cover up, but we know that it is beyond a reasonable doubt that he did. There is simply no other reason that someone would pay their lawyer and log it as legal expenses. None"

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I knew this was a farce going in, but with no law background I didn't realize how unbelievably weak the case was on pure substance. BUT, I agree with this that you have a completely stacked jury that will have an incredibly complex jury instruction with maybe one sane individual arguing some of the blatant evidence of Cohen lying and all the other evidence presented being inconsequential. Sprinkle in the thought that each of them will be known as a juror in the future and they don't want to be the ones to "acquit" and have to face NY's full wrath and fury so they go the easy route. Same as St. George's jury.

91.7% chance he will be found guilty even in the face of the sham trial and compliant judge.


ETA after posting the three requirements, 99% guilty. Enough murkiness in there for them to say close enough.

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From reading inner city twitter, this seemed very standard. That's how most judges handle it.

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Standard? Yes. However the jury charge conference in this case will be far from standard because of the as yet unknown predicate crime. There will be a protracted fight over the jury instructions. I supposed Merchan can just issue his set and tell them they are the final instructions and reject all arguments to the contrary.

Any judge who cares about being reversed would never do that, of course. The number of criminal cases that get reversed on jury instructions is pretty dang high and most judges take pains to get them right. They would at the very least ask for briefing materials when there is a logjam. And with this amorphous "other crime" hanging out there, there will be a logjam wherein the state and defense will vehemently disagree.

The jury has said they can't work on Wednesday or a few of them have said so, I gather. But then Merchan also said something about releasing the alternates on Thursday so maybe that's when he'll charge the jury and send them to deliberations on Thursday morning?

ImGipper has posted the model jury instructions several times in this thread and they don't require defining the object crime.

That'll presumably mostly be handled through the Prosecution's closing argument as they lay out their theory of the case.

They had the 3 object crimes which the judge allowed them to move forward with as theories. As is typical, you often come to trial with different theories in mind and they'll no doubt be discussing what they think will have stuck during the evidentiary portion.

This seems to be a well litigated law with a good amount of caselaw. They'll no doubt bicker about a few aspects of the instructions but I'm not sure it's safe to assume it'll be an overly complicated process

Is it true that the prosecution does not have to prove the other crime? Just that Trump was intending to cover up something?

I had not heard that about jury. Just that they might be working. All it takes is one!

If seems the evidence is tending to conclude on Monday, they will do charge conference that day unless Merchan has a pickleball game or something to get to. That means closing on Tuesday most likely.

Merchan said they can only go until 1:00 on Thursday.

Casual Cynic said:

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Is it true that the prosecution does not have to prove the other crime? Just that Trump was intending to cover up something?

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There is no requirement to prove Trump committed the object crime. In fact, the defendant can be found not guilty of the other crimes by the jury and still be guilty of the charge Trump is charged with.

Multiple New York appellate court cases that say that, I posted links to two of them earlier in the thread.


And I believe the jury does not have to agree on a single object crime. They could be split as to what he covered up and he'd still be guilty

Casual Cynic said:

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Is it true that the prosecution does not have to prove the other crime? Just that Trump was intending to cover up something?

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Depends on if the 6th Amendment to the US Constitution carries any weight in Merchan's court.

Casual Cynic said:

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Is it true that the prosecution does not have to prove the other crime? Just that Trump was intending to cover up something?

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The statute he's accused of violating does not require commission of another crime. It's "intent" to commit OR aid in concealing the commission of a crime.

I believe state likely to argue the latter. Aid in concealing Cohen's campaign finance violations. Thats a guess.

Im Gipper said:

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Casual Cynic said:

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Is it true that the prosecution does not have to prove the other crime? Just that Trump was intending to cover up something?

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The statute he's accused of violating does not require commission of another crime. It's "intent" to commit OR aid in concealing the commission of a crime.

I believe state likely to argue the latter. Aid in concealing Cohen's campaign finance violations. Thats a guess.

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I agree seems the most likely based on testimony so far.

A corollary would then be a failure to report campaign expenditures.

I'm still struggling to understand how it's permissible that they haven't stated what the other crime is. That feels like due-process issues to me, but IANAL.