The Case In Full

'Nuclear moment': Trump lawyer says often dry stage of trial will radically sway verdict https://t.co/eGweFwU54S

— Raw Story (@RawStory) May 4, 2024

He stressed: "So the instructions the jury gets at the end of the case is absolutely a nuclear moment as to guilt or innocence."

Jury instructions are the case in full.

The American practice is for jury instructions to be negotiated with the judge by the attorneys, according to case law and local practice. (The law firm I worked for before law school had a partner who compiled a monthly publication of jury instructions in Travis County, so lawyers knew what was being agreed to by the judges.)

I mention this because the British practice, as I’ve gleaned mostly from “ Rumpole,” is for the judge to “sum up” the case before giving it to the jury. This can result in the judge summing up “for” or “against” the criminal defendant. You want the same thing in American courts: for the judge to put a thumb on the scale in your client’s favor. Jim Trusty says Merchan may put a thumb on the scales for Bragg, but that’s the system. The judge favors some proposed instructions over others, and one party can always feel disfavored. 

So it goes.

I don’t know if the British jury gets specific questions to answer, but American juries do. It’s not “12 Angry Men,” where the jury votes on guilt. The jury has to answer specific questions which don’t ask “Did he do it? Yes or No.” The questions don’t favor the narrative, either, that the attorneys put on to make sense of the weeks of testimony; that the press creates to try to predict the outcome. (The same press that wants to know the outcome in November a year ahead, wants to know the outcome of trials of ex-Presidents especially.) The outcome is not determined by the narrative, but by the jury instructions: by answers to questions the press isn’t even aware the jury will be asked. And those questions won’t include: “Did you believe David Pecker?” “Did you believe Michael Cohen?” “Did you believe Hope Hicks?”

The narrative will guide their answers, but the questions will not be “Which story do you believe?”

The defense is aiming at one unknown juror who will find reasonable doubt. But there won’t be a Henry Fonda in that room. More likely, there will be a juror, if there is one, who doesn’t vote with the majority on the answers to those questions.

It’s a lot less dramatic than the movies. But also, a lot more consequential.