As a preliminary matter, it seems reasonably likely that a trial will in fact happen. Having indicted a former president on numerous felony counts, it seems unlikely that they will make Mr. Trump a plea bargain offer to anything less than a felony. To anyone who knows Mr. Trump at all, it seems inconceivable that he would admit to any guilt of a crime, especially with a looming presidential election. Thus, in the absence of a plea bargain (which resolves most cases), a trial should happen.

That being said, it is quite likely that the trial might not happen before the presidential election next year. One can only imagine what would happen to the indictment if Mr. Trump were elected president prior to the trial taking place.

However, in the event that the trial actually takes place on Manhattan soil, the selection of the jury will undoubtedly be one of the most difficult aspects for Trump’s trial team.

To reach a verdict in a felony case, a jury of twelve must be unanimous in its decision. To convict, the jury must agree that a defendant is guilty beyond a reasonable doubt. In the event that one or more jurors disagrees with the others, then the judge must declare a mistrial (or “hung jury”) and the case has to be retried, as it is neither a conviction nor an acquittal.

From the defense perspective, a hung jury represents a victory. Certainly, Mr. Trump would tout it as such on social media and in his political campaign. Also, the delay in scheduling the re-trial would likely propel Mr. Trump past the election date. So, the defense team will likely employ a common defense strategy of searching for a rogue or contrarian juror who will disagree with the other jurors just to disagree, or to prove a point, or to seek fame and fortune on the speaking circuit for himself/herself. In short, the prosecution needs a unified team of twelve, but the defense just needs to persuade one juror. Frankly, it might be impossible for the defense to find twelve jurors in Manhattan who want to acquit Trump, so they will likely be aiming for a hung jury. That might mean finding one juror who hopes to make a name for himself/herself by making a controversial decision of national importance in the hopes of attracting the spotlight.

Potential jurors will be drawn from the island of Manhattan – they will all be residents of New York County. Jury service is a duty of citizenship and cannot be refused. People are selected to receive jury summonses randomly through the mail. Normally, hundreds of people are called down to 100 Centre Street every week and told to wait in a jury waiting room until (or if) they are needed by a judge starting a trial. There is no requirement that people have a certain level of education or familiarity with the law. Generally, it is only required that jurors be able to speak and read English and be healthy enough to sit through the trial.

In this case, the courts might elect to bring more people than usual down to 100 Centre Street for the date of Mr. Trump’s trial. Then, as Mr. Trump’s trial is set to begin, about 100-200 of them (maybe) will be brought into the courtroom and made to wait in the audience. Certain general instructions about jury service will be given to them by the judge, and then they will be made to swear under oath that their answers to questions will be the truth.

From there, about 14-20 of the potential jurors (panelists) will be randomly picked to sit in the front of the courtroom and endure questions from the attorneys on the case (both prosecution and defense). Usually, a wireless microphone is passed from panelist to panelist so that they can answer certain pedigree questions about themselves: their name, the neighborhood in which they live, their profession, their educational background, who they live with and who is in their family, whether they have ever been jurors before, whether they have ever been involved in litigation before, whether they have any friends or family members involved in the criminal justice process, and whether they have any issues that make them unable to be open-minded as jurors. Jurors answer these questions in open court before the attorneys and judge, though sometimes if issues are private or personal, they can be answered outside of the defendant’s presence.

Both sides – the prosecution and the defense – would be afforded ten peremptory challenges in total, meaning that they can remove possible jurors from consideration for the trial for any reason whatsoever without explanation or justification (though it is not supposed to be done for certain impermissible reasons, like race or gender). However, an unlimited number of panelists can be successfully challenged “for cause,” meaning that the panelist says something during voir dire (another term for jury selection) that indicates that they cannot be fair as a juror. CPL § 270.25(2)(c).

In a case like this, the court will almost certainly ask questions about pre-trial publicity and whether the jurors have formulated any opinions about this case. In high-profile criminal cases, panelists are not automatically excluded from jury service just because they have heard about the case, or because they may have an opinion about the defendant or the case. The threshold question is whether the juror can put aside his/her personal feelings about a person/case and whether he/she can evaluate the evidence with an open mind (and without considering any pretrial publicity or news reports he/she may have seen).

Any potential panelists who say they cannot be fair will be excluded from service. Of course, some of those people will be lying, as will some of the people who claim they are capable of being fair. But the judge cannot fail to exclude someone who does not give an “unequivocal assurance of impartiality” without risking a serious chance of reversal on appeal. This will be a very dicey area for the trial judge to oversee, as many potential jurors are likely to hesitate when answering this question about impartiality. On appeal, a defense attorney can even win a reversal of a conviction where the attorney had to use a peremptory challenge to exclude a juror who should have been dismissed for cause. Put another way, the problematic juror does not even have to have been on the jury for the defense to potentially win an appellate argument that an unfair juror was not excluded for cause.

As a practical matter, Donald Trump and his attorneys face an incredibly uphill battle in picking a jury in Manhattan. He only received 12% of the vote in Manhattan in the last presidential election, The remaining 88 percent or so of the residents of the island has a very unfavorable opinion of the former president. It is no stretch to say that there are likely many people in Manhattan who would want to get onto the jury(and say whatever was necessary during voir dire) just so that they could convict him at trial by any means necessary. Donald Trump is entitled to a fair trial just as anyone else, but he isn’t entitled to be tried by people who like him, either. After all, that might be impossible to arrange in Manhattan (or anywhere else near New York City).

Trump’s legal team might think it smarter to waive a jury and have the judge decide the case on the facts. This would be an interesting strategy. On the one hand, it would hopefully place the decision into the hands of a more objective jurist. On the other hand, should he be convicted, Trump could blame a single individual who he has already accused of being biased against him. Such a scenario might play well into his broader political objectives. Given the unfavorable landscape in Manhattan, the possibility of a “bench trial” by judge (instead of jury) seems significant here.

Matthew Galluzzo is a criminal defense attorney and former Manhattan Assistant D.A. He has appeared as a legal commentator on TV and in newspapers across the world, including CNN, MSNBC, Fox, NPR, The Economist, the New York Times, the Wall Street Journal, the BBC, and others.

A gag order basically instructs a party to a litigation to refrain from speaking publicly about the case. A New York judge overseeing a criminal case has the power to issue a gag order over one or more of the parties to the case. Gag orders are relatively rare, however. They certainly are not done as a matter of routine. The Constitution guarantees the right to free speech, after all, and courts are generally loath to abridge those rights. However, gag orders may be necessary to protect other valuable rights under the Constitution, such as the right to a fair trial (contained in the Sixth Amendment of the Bill of Rights), as well as the all-important “true administration of justice”.

Sometimes defense attorneys ask courts to order prosecutors not to talk about their clients’ cases publicly for fear that they would prejudice any potential jurors. For example, the attorneys for Ghislaine Maxwell – convicted in Manhattan federal court of assisting notorious sex trafficker Jeffrey Epstein – contended that the federal prosecutors had tainted potential jurors by hosting press conferences in which they laid out the facts of their case. Ultimately that application for a gag order was denied, but the federal judge did admonish the attorneys to adhere to the rules of professional conduct for lawyers, which generally prohibits attempts to unfairly influence juries (or potential juries) outside of the courtroom. After all, the paramount rule of trials was explained by Justice Holmes in 1907: “The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether private talk or public print.” Patterson v. Colorado, 205 U.S. 454, 462 (1907).

Sometimes defense attorneys work the media circuit and give pre-trial interviews to the press to try to influence potential jurors before their clients proceed to trial. Trump’s attorneys appear to be doing quite a bit of that lately. In one case, the attorneys for Joey Buttafuoco were gagged by a judge because of their admitted attempts to sway the jury pool with statements to the media. People v. Buttafuoco, 158 Misc. 2d 174 (County Court, Nassau 1993). That gag order was especially easy to justify in light of the Code of Professional Responsibility, DR 7-107 (22 NYCRR 1200.38) relating to trial publicity, which prohibits the sort of behavior done by the attorneys.

Prosecutors do not have a right to a fair trial, per se, because that right stems from the U.S. Constitution and protects individuals accused of crimes. One might think, then, that a defendant cannot be gagged. After all, the purpose of a gag order – normally – is to protect a defendant’s right to a fair trial. However, a gag order can be imposed upon a defendant where the defendant makes deliberate attempts to undermine the “true administration of justice” by tampering with the jury pool and making extrajudicial statements. Already, Mr. Trump has made numerous postings in social media (Truth Social etc) about the alleged bias of the prosecutor and the trial judge, and slammed the charges as being baseless and politically motivated, among other things. Mr. Trump might argue that his statements about the case relate to his campaign for president. While that may be true in part, there is no question that he hopes to persuade potential jurors of his innocence by making these claims about the case. In the least, he has to be aware of the fact that his public statements about the case – which immediately become the subject of numerous national media stores – could taint the jury pool in Manhattan. So, a gag order seems likely in this case. In short, if Mr. Trump wants to speak to the jurors in his case, he will have to take the oath and subject himself to cross-examination.

Given what we know of Mr. Trump’s personality and character, it seems inevitable that he would violate such a gag order and speak publicly about the charges. Notwithstanding his general inclination to talk about everything that crosses his mind, it would actually be difficult to run for president without discussing pending criminal charges against oneself. So, then, it is worth asking what would happen if Mr. Trump were to violate the gag order.

Violations of gag orders are prosecuted by courts pursuant to N.Y. Judiciary Law Section 750. A court would have to conduct an evidentiary hearing on the issue of the violation of the court order before rendering a decision. The decision would be made by the court and not a jury. The maximum jail punishment for a violation would be thirty days at Rikers Island. There could also be a fine up to $1000.00.

Courts in the past have considered whether judges who have been personally attacked or criticized by a litigant outside of the courtroom can be permitted to preside over the subsequent contempt proceeding. The Supreme Court has concluded that “[a] constitutional rule which disqualifies a Judge solely based upon criticism of rulings and disobedience to court orders during a trial is excessive and unwarranted.” In re Hirschfield, 184 Misc.2d 119, 122 (N.Y. County Sup. Ct. 1999) It should not be assumed “that judges are so irascible and sensitive that they cannot fairly and impartially deal with resistance to their authority or with highly charged arguments about the soundness of their decisions.” Ungar v. Sarafite, 376 U.S. 575, 584 (1964). But a judge might be disqualified from presiding over a contempt hearing on a gag order where the judge becomes so “embroiled in… controversy” that he should recuse himself based upon the “likelihood of bias.” Taylor v. Hayes, 418 U.S. 488, 501 (194).

Prosecutors might request a gag order at Mr. Trump’s arraignment on April 4. The court may decline to issue such an order at this point, and may instead admonish the parties not to speak publicly about the case. But if Mr. Trump and his attorneyscontinue to wage a public media campaign about the case, then the judge will likely be inclined to grant a gag order. One doubts that Mr. Trump could possibly abide by such an order, or that he would. In that case, it seems altogether plausible that we will have a violation hearing on a gag order with the very real possibility of Mr. Trump being incarcerated pre-trial for a violation of a gag order. But that of course remains to be seen.

Matthew Galluzzo is a criminal defense attorney in New York City and former Assistant D.A. in Manhattan. He has appeared as a legal commentator on CNN, MSNBC, Fox, ABC, Dateline, BBC, and other television news programs throughout the world. He has been quoted by newspapers including the New York Times, the Wall Street Journal, and the Economist, among others. Fluent in French, Mr. Galluzzo has also been interviewed countless times in French by European and Canadian news channels. For his services to the French government and French citizens facing criminal charges, Mr. Galluzzo was recently named a knight in the French National Order of Merit.