This week, headlines announced that the Trump Organization’s tax evasion trial had begun in New York State Court in Lower Manhattan. Before any dramatic opening statements or witness testimony, however, the first order of business was jury selection, a process that took the better part of a week. Since this is a tax case, choosing a jury can be very difficult.
Right to a Jury Trial
The right to a jury trial in federal criminal cases is guaranteed by the Sixth Amendment to the United States Constitution. The same rights are generally guaranteed in state courts, although the offenses warranting a jury trial may differ. In New York, a right to a trial by jury exists for all Class A misdemeanors and criminal matters, unless you ask to be tried by a judge instead – there is an exception for first degree murder, which requires a jury.
What is the work of a jury?
The jury’s job is to decide the issues in a trial. If you’ve ever served on a jury, you know the process. In a criminal trial, the jury reviews the evidence and decides whether the prosecution has proven its case beyond a reasonable doubt. There is no maybe, the choices are “guilty” or “not guilty”.
Choose a jury
The process of selecting a jury is called voir dire — French for “telling the truth.”
To begin with, a basic screening takes place to ensure jurors are eligible. In New York, you can serve if you are a U.S. citizen, at least 18 years old, a resident of the county to which you are summoned, able to understand and communicate in English, and have no felony convictions.
The judge will ask questions to confirm that serving on a jury would not cause undue hardship. Generally, an employee should be allowed time off work to serve as a juror. There are often exceptions for the self-employed, caregivers and others who would have difficulty attending a trial for several days or weeks.
Then the real work begins. Typically, prosecutors and defense attorneys ask potential jurors about their backgrounds to get as much information as possible about them, including perceived or actual biases. They will also ask what the jurors may know or have heard about the case or the parties involved in the case. The scope of questions can be broad, but attorneys are not allowed to ask how potential jurors might decide the issue.
It should be noted, however, that the process does not work the same way in all courts. Isabelle Kirshner, partner at New York-based Clayman Rosenberg Kirshner & Linder LLP, notes that the vast majority of significant criminal tax cases are tried in federal court. There, she says, there can be “virtually no voir dire” conducted by attorneys. Most are made by judges, she says, although lawyers can provide input in the form of questions to pass on.
A juror’s answers can often be revealing in unexpected ways. Kevin Sweeney, shareholder of the law firm Chamberlain Hrdlicka, was a federal tax attorney with the tax division of the United States Department of Justice in Washington, DC. He notes that jurors’ facial expressions and body cues can tell you as much or more than their verbal responses. .
Kirshner agrees. She says lawyers are often inspired by how jurors react. Do they nod their heads? Shaking his head? Do you look indignant? She noted that she tried a case during Covid-19 in which jurors wore masks. It was harder to read their expressions unless, as she joked, one of them raised an eyebrow.
The process also allows lawyers to give jurors insight into the case. Bruce Kaye, a partner at Barasch & McGarry, has nearly 30 years of experience in civil and criminal matters before state and federal courts in New York City. He says jury selection “is always about breaking down your claim or defense into a simple, easy-to-understand theme.” This means, for example, explaining that the government has the burden of proof in cases and that a charge or indictment is not proof of guilt.
Tax cases can be difficult
Judges and lawyers often need to educate juries on the elements of criminal cases. But tax cases can add a potential complication: numerous tax laws filled with exceptions and exclusions. “It depends” is a common catchphrase for many tax professionals, because tax laws are rarely straightforward. Breaking these laws for a jury can be difficult, which makes choosing the right jury even more critical.
The facts, says Brian Linder, managing partner and general counsel at Clayman Rosenberg Kirshner & Linder LLP, are usually uncontested in this type of lawsuit. The government will come prepared with the numbers, he says. The focus will be on driving and what that means in the context of complex tax laws. This means that you would be looking for jurors who have been exposed to complicated situations in their work and who have dealt with complex issues.
“You want jurors who aren’t afraid of shades and shades of gray,” he says. That’s because the cornerstone of a white-collar defense will be, “I believe what I was doing was right and I acted on that belief,” he explains.
Sweeney says a complex tax system is one of many considerations; potential jurors may enter the case with complicated experiences and opinions about the IRS and the US tax system. For example, while jurors may view the IRS negatively and hate filing and paying taxes, he says that doesn’t necessarily mean they’ll sympathize with a defendant who didn’t report all income or pay all taxes. when they had to do these things. themselves.
Of course, most criminal tax cases do not involve statistically ordinary taxpayers – they are not disputes over a missed deduction or wrong credit. They can involve millions of dollars, numbers that we cannot all comprehend. You can’t bury the numbers, Kirshner points out. But understanding who you’re dealing with, including jurors, can help you figure out how to present your case.
Common goal
Linder says all tax professionals should eventually find a good tax lawyer. I agree. In my practice, I’ve made more than one phone call to a colleague after noticing a red flag, such as a potential FBAR issue that wouldn’t be easily resolved by voluntary disclosure or receiving a clear sign of the IRS that there might be a referral for criminal investigation.
The goal of tax professionals who represent clients is the same no matter where you are in the process. You want resolution and a fair shake. Kaye says the key to a good outcome is the selection of a fair and impartial jury who can weigh the evidence and reach a verdict without fear or favor on one side.
This is a regular column from Kelly Phillips Erb, the Taxgirl. Erb offers commentary on the latest tax news, tax law and tax policy. Look for Erb’s column each week in Bloomberg Tax and follow her on Twitter at @taxgirl.
