The Trial: A "Good Juror"

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this week, jury selection kicked off in the trial of Sean Diddy Combs.

The Sean Combs sex trafficking and racketeering trial in New York is expected to have a jury seated by Friday.

The judge currently has 45 prospective jurors in place.

Both the prosecution and defense anticipate the jury will be finalized by the weekend.

We're never really sure how long this jury selection process could take, but the judge has been running a very tight ship, and so we seem to be on track for the trial to start next week.

We could hear opening statements as early as Monday, May 12th.

This week, we saw dozens of prospective jurors cycle in and out of the courtroom.

They included a massage therapist, a freelance writer, an investment analyst, and a high school wrestling coach, a real cross-section of New Yorkers.

One by one, they answered questions from the judge.

Questions like, have you listened to podcasts about this case?

What social media do you use?

Also, questions about whether they think they'll be able to listen to testimony that's sexual in nature, about things the government says are a crime.

What's the purpose of these questions?

It's to figure out whether the juror can give Sean Combs a fair and impartial trial.

Legal minds like me refer to this whole jury selection process as voider.

It means to speak the truth.

while the courtroom theater has already begun the government and the defense have been preparing behind the scenes for months and gaming out jury selection is a crucial step in that preparation think about it the 12 jurors and six alternates who will be seated for this trial are going to hear all of the arguments listen to all of the witnesses and see all of the evidence this assortment of people will ultimately decide whether sean combs is guilty or not.

He continues to deny all of the charges against him.

So in this episode, we're going to hear from someone who knows a lot about the strategizing that goes into jury selection and how that could play into this case.

I think if you're the defense, you certainly want an individual who has kind of a untraditional sexual lifestyle, for example.

Probably someone who hasn't followed the case very closely because I think a lot of the media attention has not been very positive to Sean Combs.

For the prosecution, you would want probably the reverse.

This is Bad Rap, the case against Diddy.

I'm Brian Buckmeyer, an ABC News legal contributor and practicing attorney.

This episode, a good juror.

My guest today is Eric Rudich.

He's a senior litigation consultant with Blueprint Trial Consulting.

His job is to help legal teams prepare for trial, including jury selection.

And to be clear, he is not working on Diddy's case.

Now, before we hear my conversation with Eric, I just want to mention that as a former public defender, I've never worked with a jury consultant.

This process we're going to describe, it doesn't happen on every case.

Actually, far from it.

That's because jury consultants are expensive.

They typically work on really big cases with really deep-pocketed clients.

We know from court records that Combs' lawyers are using a jury consultant.

And even more rare, so is the prosecution.

So I started off by asking Eric about what his job entails.

I think a lot of people haven't heard of a jury consultant.

Or at most, maybe they've seen a fictionalized version on TV.

Yeah, absolutely.

So this show Bull is about a jury consultant, and it certainly is a glamorized view of jury consulting with a lot of technology that you wouldn't be allowed to have in the courtroom.

Jury consultants, the work that they do is a lot different than what's portrayed in the media.

A lot of what we do is behind the scenes to assist attorneys with developing case strategy, determining what their weaknesses are, how to address those weaknesses, what are the profiles of good and dangerous jurors in this case, what kind of visual evidence will help your case.

Another task that jury consultants will do as part of their engagement in a trial like this is do very thorough investigations of prospective jurors.

So we will run background reports on them to determine if they're a registered Democrat or Republican, what their social media presence has been, where they live, their home value.

In addition, we're doing a thorough search on their online presence to determine what have they posted, what have they liked.

Some people call it cyber stalking.

We're We're just doing background information to determine what publicly available information we have on those jurors that might be indicative of whether they're likely to favor the prosecution or Sean Combs in this case.

Let's have a little fun, right?

You and I just met a few minutes ago.

You know that Brian Buckmeyer is going to walk in as a prospective juror.

What are some of the things you're going to try to look into?

Where are the avenues where you might look into them, where you would have the ability to tell a client, Brian's good for your jury or maybe Brian's not good for your jury like how do you start that search

so I'm going to first look at your responses on the juror questionnaire and then me and my team are going to do a deep dive in your on your online presence which I'm sure there is a

good deal good amount of and you know we're also going to do a deep dive on your personal social media and we're going to find out based on your responses to the questions during void deer in in court are you the type of juror that's going to closely scrutinize the evidence?

Or are you going to be someone who's going to be quick to make decisions?

And I think in your case, because of your education level and because you were a public defender, I think you would be more favorable to the defense just based on your demographics and

life experience.

Now, do you or jury consultants take like a one-size-fits-all?

You say, okay, this is an assault case, so we're going to do it this way this is a a rape case we're going to do it this way this is a murder case do is that kind of how that works all the pretrial research has to be customized it's similar to conducting a market research study except your product is your case and you want to see how well received it will be and what you need to do to change your product i.e your case to make it more receptive to prospective jurors now you use the word test a case and for for whatever reason that kind of brought me back to law school the fun parts i remember where we did mock trials, where we did like an exhibition of what a trial would look like with fake jurors and a fake defendant and a fake case.

Are you doing mock trials with some of your clients to show them how to do this?

Absolutely.

And that's an important aspect of our work as jury consultants is to test our clients' cases and do mock trials.

We're using or working with actual individuals in the trial venue who could be prospective jurors in this case.

Of course, they're not jurors.

And this is all done well in advance of trial.

But typically a mock trial is one or two or even three days.

And so we would have a recruiter, similar to a focus group, come and recruit, let's say, 30 or 40 or even more people to arrive at the exercise.

And the individuals would be paid for their time.

And they come from all walks of life.

And so they might be the person who works at a bodega, it might be a secretary, it might be a teacher.

And the idea is to get a representative sample like you would in a trial jury.

But we're looking to see how someone who might be a juror on this case, who has similar demographic and characteristics and attitudes and experiences of a prospective juror, might react to the case.

Well, if you ever need an ABC legal contributor and like you could put me up at a hotel and just I'm happy to be part of this focus group.

I'll let you know our daily rate and you can see if it works for you.

Exactly.

Now, there's been a lot of talk about questionnaires.

And in this case, there is a 31-question questionnaire that went out to the prospective jurors before they even got into the court.

What stood out to you?

Also, what would you give in the questionnaire, like an A plus, or what would you say this could have been worked on a little bit better?

And then ultimately, how do you think it does in terms of picking a good juror?

So the questionnaire focuses a lot on hardship and bias, which, of course, it should.

Overall, I'd give the juror questionnaire a B because I think there could be a lot more information included in the juror questionnaire about individuals' attitudes, particularly, but it certainly works for the court to determine whether or not someone could be potentially biased.

Important question is what they've heard about the case, if they've formed any opinions about the case that indicate that it may not be a fair and impartial juror on this particular case.

There are questions about whether they've been a victim of sexual assault.

There are also questions about whether they've been accused of sexually assaulting individuals.

So there are questions on there to uncover whether someone is potentially, their experiences indicate that they may be biased and may not be a fair and impartial juror in this case.

Now, just to be clear to our listeners, you are not working on the Diddy case.

And based on my understanding and being in the court, there is a jury consultant there.

And so.

Let's kind of put you into that role there.

Sean Combs has now hired you or the SDNY has now hired you.

If you were working on this case on either side, what would be the sort of profile that you're looking for for the type of juror in the Sean Combs case?

For the defense, I would be particularly concerned about individuals who've been victims of sexual assault.

And there are probably a number of individuals who say that they were victims, but can still be fair and impartial in this case.

You certainly want an individual who has kind of a untraditional sexual lifestyle, for example.

Probably someone who hasn't followed followed the case very closely because I think a lot of the media attention has not been very positive to Sean Combs.

Someone who's not had very favorable experiences with law enforcement.

For the prosecution, you would want probably the reverse.

You would want people who have much more traditional sexual lifestyle, maybe individuals who follow the case closely, who've started to form some opinions, maybe have seen the Cassandra video, individuals who have positive views of law enforcement.

I would want to know if anyone has been accused of committing a crime or have had negative experiences with law enforcement or mistrustful of prosecutors.

So those are just a few of the characteristics I think each side will be looking for when they're selecting the jury in this case.

Within the questionnaire, and even when asking a prospective juror, there are going to be individuals, as you know, who are going to say that they were victims of sexual assault or abuse in the past.

When that issue comes out, how do you parse through which one of those individuals can be fair to a defendant like Sean Combs and who can't be fair?

It's certainly how they will respond to the follow-up questions during court.

It may also come down to what type of sexual assault, when it occurred, how traumatic it was for that individual.

So all those factors will come into play when determining first if they indicate they could be fair and impartial to begin with, but then also when both sides are evaluating whether or not to to use one of their strikes on that particular juror

in the public defenders' offices and some of the conversations that I just have with attorneys, we seem to think, and please tell me if I'm crazy or if this makes sense, that there are certain archetypes of people.

That if you have a certain case that you want someone who is a woman with a certain education and a certain background or a certain part of Brooklyn, because we may know the different communities, or if you have another case, you might want a blue-collar male worker who looks at protecting their three daughters in a way that's different than someone else.

Is that true, or is that just make-belief in our heads?

It's true to some extent, but those are, you know, the demographic characteristics that you describe are often a product of individuals' experiences.

So, the extent to which certain groups have certain experiences, that would be predictive of their verdict orientation.

So, you may want the blue-collar worker, but the question is: why?

What about their attitudes, their life experiences, their value system that indicates that they may be favorable to your particular case?

So, Eric's explained what jury consultants do before and during void.

But is there a role for them to play later on in the trial?

And what are some of the more surprising things Eric's found doing background research on potential jurors?

That's after the break.

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Once the jury is selected, is it kind of, I'm done, I walk away from the case onto the next one?

Or is there still more that you carry on with the case?

Often we're retained to assist with jury selection, but for a case like this, it wouldn't surprise me if the jury consultants stayed on to work with the attorneys on, let's say, their opening statements and fine-tune their opening statements based on the research that they've done.

Certainly, jury consultants are often retained on trial to assist with preparing the witnesses for their testimony.

For closing arguments, jury consultants are working with the attorneys to help organize the evidence and organize their themes in a way that's persuasive to the jurors.

So there's a lot more that jury consultants will do, particularly in a high-stakes case like this.

Could a jury consultant be part of potentially preparing Sean Combs if he decides to testify?

That would be critical, actually.

So if Sean Combs does testify, he will be going through a great deal of prep.

And I'm sure he's going to even be prepped just to determine

if he does testify, how will he be perceived by the jury?

So it certainly would not be surprising to me.

In fact, I think it would be almost a certainty that if he's going to testify, that there will be a jury consultant involved with helping prepare his testimony.

So I'm curious how that looks because, again, as a defense attorney, my clients often can't afford a jury consultant.

So my prep of a defendant to potentially testify may differ from you.

For me, I get in one of my buddies or a friend and I say, grill this client as if you're a prosecutor and see if you can make them sweat, see if you can make them lash out.

And then we gauge how they did on that cross-examination.

I might get a few interns, a few first-year associates or attorneys as prospective jurors.

And that's how I would prep a defendant or a client to potentially take the stand.

Am I that far off from you?

Or are you doing something similar, something different?

Like, how would Sean Collins be prepped to potentially testify?

Very similar.

He would undergo a vigorous cross-examination to see how he would respond to very tough questions about evidence and certainly the Cassandra video.

I don't think in this case it would be very different.

I can't imagine people coming in because there would be the issues with confidentiality.

So even though you might have someone sign an NDA, it's not very foolproof.

And I could see someone go into the media and said, hey, I just participated in a mock witness testing with Sean Combs.

And that would be the worst thing he could do for his case.

Yeah.

What is some of the wildest thing you maybe have seen during this quote-unquote cyber stalking that you're like, red flag, we've got to bring this up?

Well, you certainly see people's strong political views, especially in this environment.

So, you know, you may have a defendant who is black, and during your investigation, you may see Confederate flags as part of their social media, which we've seen in the past.

So you'll often see extreme political views that you may bring up to the court to indicate to the judge that although they might not have indicated it during the voir dire process, they may not be a particularly fair and impartial juror in this case.

Yeah, and I'll share one example as well.

I've had jury selection where one prospective juror got up on the witness stand, said that he couldn't trust those people.

We went into a private chamber with the judge who was Hispanic, two prosecutors who were white, my co-counsel was white, and I'm the only black person.

And the prospective juror who was not black kept saying, I can't trust those people.

I kept telling everyone, we could just move on, guys.

Like, you know what he's saying.

And ultimately, the prospective juror turned and looked at me and he says, I don't trust them.

And I'm like, I'm not even on trial.

So I don't know what we're doing here.

But the person was excused.

So yeah, we see crazy things like that.

And I'll follow up on that because there's a difference between what a person says and how they say it.

And I think with the defense attorney and even the government, they'll look at how it's said and say, all right, I might not be able to get them out for a cause, but I will definitely take them out for peremptory challenges.

If I say, I really like Eric, I want to go for a beer with him.

You're like, I think Brian wants to hang out with Eric.

But if I say, I really like Eric,

I may want to get a beer with him.

Same words, but the way in which it was said, it's clear whether or not Eric's going to use one of his peremptory challenges to go get a beer with me.

That's a great example.

So, certainly, what they say or what they write on the juror questionnaire is informative, but how they react and respond to questions during the voider is much more informative and will be indicative of whether they're likely to favor one side or another in this case.

Got it.

Thank you very much, Dr.

Eric Rudish, for your time here.

Really appreciate the conversation.

Thank you.

I appreciate it.

By the way, you're going to see peremptory strikes in action in Diddy's trial today.

Four cause is when a judge or attorney strikes a prospective juror for bias or because they won't be able to be impartial.

A peremptory challenge is when attorneys strike a juror for any reason at all.

But importantly, they have a limited amount of strikes.

In this case, the prosecution will get six and the defense has 10.

The number of peremptory challenges depends on how much potential jail time a defendant is facing.

Before we go, we want to catch you up on one other highlight from the courtroom this week.

Mark Garagos, a lawyer who has represented Diddy in the past, got scolded by the judge for the way he's talked about the prosecutors in the case.

Now, Garagos isn't officially one of Diddy's attorneys for the trial.

His daughter is.

But he's someone they've been consulting in court.

Garagos has a podcast, and on it, he referred to the team of prosecutors as, quote, a six-pack of white women.

Judge Subramanian did not like that.

Neither did the prosecutors.

They told the judge that the podcast has several million subscribers and his statements could infect the jury pool.

The judge spoke to Garagos and Chambers.

We have a transcript of the exchange.

He called the language outrageous and said it wouldn't be tolerated in any court from any lawyer in the country.

He warned Garagos that he'll be listening to the podcast from now on.

So Garagos made a joke about being all for it as long as the judge subscribes.

Last thing, we have a listener call-in line so we can answer your burning questions about Sean Diddy Combs's case.

The number is 646-504-3221.

That number again is 646-504-3221.

You can also find it in our show notes.

Please leave us a message.

You might hear your question and my answer on an upcoming episode of this podcast.

That's it for this episode of Bad Rap, The Case Against Diddy.

I'm Brian Buckmeyer.

We'll be back next week to catch you up on opening statements and where the trial could go from there.

Bad Rap, The Case Against Diddy, is a production of ABC Audio.

I'm Brian Buckmeyer.

The production team includes Vika Aronson, Nancy Rosenbaum, Audrey Maztek, Amira Williams, Tracy Samuelson, and Sasha Aslanian.

Special thanks to Stephanie Maurice, Caitlin Morris, Liz Alessi, Katie Dendas, and the team at ABC News Live.

You can check out their daily show, Burden of Proof, The Case Against Diddy, streams weekdays at 5.30 p.m.

Eastern on ABC News Live.

Find it on Disney Plus, Hulu, or on most of your favorite streaming apps.

Michelle Margulis is our operations manager.

Josh Cohan is ABC Audio's director of podcast programming.

Laura Mayer is our executive producer.

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