Harvey Weinstein is about to go to trial, and 12 men and women in New York will be responsible for determining whether he is guilty.
The selection of the jury is currently underway, with the former Hollywood producer charged with five charges, including rape and predatory sexual assault in relation to two alleged victims.
But finding impartial jurors for such a high profile case, one that galvanized the #MeToo movement worldwide, could be difficult.
The court has summoned 2,000 potential jurors for the case, approximately five times more than normal, only to find 12 appropriate regular jurors and six alternate jurors.
And on the first day of the selection of the jury, a third of the possible jurors present were dismissed completely, after telling the judge that they did not believe they could be impartial.
“The first days of jury selection have already underlined how difficult it will be,” says Valerie Hans, a law professor and jurist at Cornell University.
“When there are a large number of people who say they cannot be impartial, it is a wake-up call, because most people think of themselves as generally fair.”
Why is jury selection particularly difficult this time?
Jury selection often takes no more than a few hours, or one or two days.
But the process can be much longer, particularly in high profile trials. In the O.J. Trial for murder in Simpson, it took almost 11 weeks to select a jury.
The judge at the Harvey Weinstein trial has allocated two weeks for the selection of the jury, while the entire trial is expected to last up to two months, which means that many potential jurors will be postponed for the required time.
And in this case, “Weinstein claims have been made by people of very high profile and high visibility,” there has been “wide publicity” and a large number of claims against him, which could make the selection of the jury even more difficult, said Professor Hans.
Xorje Olivares, who attended court on January 8 as a possible juror, was one of the dozens of people who were discarded.
He told the BBC his support for the #MeToo movement, and the fact that he knew several people who were survivors of sexual assault meant that he felt he could not be impartial.
“Personally I felt nothing but disgust … even being in the same room as him, I felt very disgusting,” said Olivares, who presents a radio show. “I knew I had these biased views, and would bring them to the case.”
How is the jury selected and what kind of jurors will Weinstein’s lawyers want?
Although it is known as jury selection, it is actually a process of elimination.
Many possible jurors are being fired from the beginning, either because they say they cannot be impartial or because they have scheduling conflicts.
The rest are asked to complete a questionnaire, where they are asked about their education, prior jury service, if they know people who work in the entertainment industry and if they have been victims of physical physical abuse.
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Then, the lawyers of both parties can interrogate them in court and have potential jurors be dismissed if the judge accepts that they are not impartial, this is known as a challenge for cause.
In the USA In the US, lawyers are also allowed to remove several potential jurors without giving a reason (known as a peremptory challenge), as long as it is not for ethnicity or gender.
The peremptory challenges are controversial for some, the United Kingdom abolished them in 1988, because critics believe lawyers can try to bias jurors in a particular way and that a randomly selected jury is fairer.
However, in the United States, they are considered an important part of the constitutional right to trial by an impartial jury.
At Mr. Weinstein’s trial, lawyers on each side can fire up to 20 potential jurors, says Professor Hans. The lawyers on both sides will try to establish a jury that they believe will be more favorable for them.
The prosecution will want jurors who can relate to the alleged victims, while the defense will want jurors to “see themselves as defendants,” says Thaddeus Hoffmeister, a law professor at the University of Dayton.
He believes the prosecution may want to select younger jurors, because of their understanding of the #MeToo movement.
He adds that Weinstein is “in a unique position” with which “many people will have difficulties in relating.”
“You would really need a jury of CEOs, or people who have been in a position of power.”
What kind of strategies could lawyers use?
Mr. Weinstein’s team has employed a jury advisor, an expert who will help lawyers with the selection of the jury, including through community surveys and the development of favorable and unfavorable juror profiles.
They are also likely to look for publications on the public social networks of all potential jurors to see if they have commented on the #MeToo movement, although they are not authorized to be “friends” of the jury.
“Each party will have an ideal jury they are looking for,” says Alan Tuerkheimer, a jury advisor. However, they cannot be too obvious about who they want, because if it is clear that they want a potential jury, the other party “would probably eliminate them.”
Instead, he compares it to a “chess game,” where each side tries to guess which jurors are good for their opposition and then dismisses them.
“The defense will want jurors who believe that women sometimes invent things to get powerful men into trouble … the prosecution will want people who think that any questioning about the victims’ account is prohibited.”
Professor Hans says that the results of the questionnaire, and online research, can often help lawyers “identify in advance the people who will be close to your case.”
This is particularly useful if you allow questions to potential jurors to prove to the judge that they are not impartial, because then they can be fired for a “challenge for cause”, without the lawyers using one of their peremptory challenges.
Finally, with any high profile judgment, there is also the risk of “stealth jurors”: potential jurors with an agenda, or who hope to write a revealing book later.
“If someone seems too anxious to be part of a jury, all parties must be careful,” says Tuerkheimer, adding that this has led to trials in the past.
What is it like to serve in a high profile test?
In the United States, the names of jurors are often publicly available, and former jurors have faced intense media attention or have quarreled with family and friends who disagree with their verdict. .
James Matsumoto, who was the president of the jury in the first corruption trial of former Illinois governor Rod Blagojevich, recalled that the courtroom was full of journalists when he was questioned as a possible juror.
“There must have been several hundred people in the courtroom at that time. It was a bit disconcerting, because you don’t have anyone there on the jury; you’re alone and you gave him a microphone so that everyone in the courtroom can hear what you have what to say “.
He believes that the high profile nature of the trial helped focus the minds on the jury, because it made them realize how important the case was.
An unexpected consequence was the fact that “most people gained weight” during the trial, which lasted almost two months.
Jurors were kidnapped during the day and had to have lunch together in court, which meant that “not much exercise is being done, and everything is fast food because you need something fast and close to the court.”
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He was surprised to discover that journalists were even interested in finding out where the jury ordered lunch, considering it a “blow” when they could publish their lunch options.
But media attention became “really intense” once the trial ended, with the jury finding Blagojevich guilty on one charge, but unable to reach a unanimous verdict on 23 other charges.
On the way home, he noticed “a lot of people standing in front of my house.”
He said a journalist approached him, asking if it was James Matsumoto, and tried to divert him saying “no, I think he lives at the end of the block”, but in the end he was still recognized.
“That night the phone kept ringing and the answering machine filled up. My wife didn’t expect any of that, so I was very upset with all the attention,” she said.
Other jurors had journalists knocking on their doors, while one found a helicopter flying over their house.
The trial made a lasting impression on Mr. Matsumoto. To this day, he says it bothers him that his jury was unable to reach a consensus on the charges. (In a new trial a year later, Blagojevich was found guilty of 17 charges and sentenced to 14 years in prison).
Despite this, Mr. Matsumoto says that if he were asked to be sworn again, he would. “For me it was a good experience: I learned more about human nature than before and about the nature of truth.”
“Most Americans do not want to participate in trials, but I think it is our duty as citizens to be jurors.”
His advice to the jurors in the Harvey Weinstein trial is simple: “Do everything the judge tells you, just pay attention and deliberate with honesty.”