Nate TrelaUSA TODAY
The claim: The jury in Trump's hush money trial did not need a unanimous verdict to convict
A May 29 Facebook post (direct link, archive link) questions the legality of jury instructions in former president Donald Trump’s hush money trial in New York.
“So they get a jury, only 4 guilty votes needed, to convict Trump,” the post reads in part.
An Instagram post made a similar claim about what was required of jurors to bring back a guilty verdict.
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Our rating: False
Each conviction on the 34 felony counts of falsifying business records required a unanimous verdict from the jury.
Jury did not have to agree on specific ‘unlawful means’
On May 30, Trump was convicted of 34 felony counts of falsifying business records to cover up a hush money payment to Stormy Daniels, an adult film actress. The charges were felonies because prosecutors contended the payment was part of an illegal scheme to keep voters from knowing about Daniels' claim of an affair, thus unlawfully influencing the 2016 presidential election. Trump denied the affair and the charges and is expected to appeal.
Each guilty verdict was unanimous and had to be, contrary to what social media users said.
Judge Juan Merchan made that explicit when delivering jury instructions on May 29.
“Your verdict, on each count you consider, whether guilty or not guilty, must be unanimous; that is, each and every juror must agree to it,” he said while reading the jury instructions on May 28.
The 55-page document spelled out in more detail what the jurors had to consider in order to reach a verdict on each charge.
The claim appears to stem from misinterpretation or misrepresentation of the fact that the jurors did not have to agree on what specific unlawful acts Trump committed to cover up what prosecutors called election interference. The jury instructions also noted the jury "need not be unanimous on whether the defendant committed the crime personally, or by acting in concert with another, or both."
However, the instructions were clear that if the jurors were to find Trump guilty of a charge (as they ultimately did), they had to all agree that a business record was falsified by Trump or at his direction. They also had to agree that it was done “with an intent to defraud” and done to conceal, commit or aid another crime.
Prosecutors said the concealed crime was election interference, specifically a violation of section 17-152 of New York election law. In the jury instructions, Merchan wrote that the law “provides that any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of conspiracy to promote or prevent an election.”
Prosecutors said those “unlawful means" included violating federal campaign finance laws with a payment to Daniels, falsifying additional business records and violating New York tax laws.
Fact check: No, the FBI was not authorized to assassinate Trump during the Mar-A-Lago raid
But the instructions said jurors did not have to agree on the “specific unlawful means” used.
“Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were,” Merchan instructed.
Adam Shlahet, director of the Brendan Moore Trial Advocacy Center at Fordham Law School, told USA TODAY there was nothing improper or unusual about the instructions not requiring unanimity on that component of the charges. The charges filed and the statute did not require prosecutors to prove which specific “unlawful means” were used, just that at least one was used for each charge.
“The jury can disagree about how the election was influenced unlawfully, and the prosecution gave them options,” he said.
Shlahet noted that New York state courts use model jury instructions that judges then customize to the specific details of each case. Merchan “would not reinvent the wheel here” and would have based his instructions on ones used in similar cases.
The Facebook post also makes a claim that the conviction opens the door for President Joe Biden to steal the election, using “prefilled mail in ballots.” There is no evidence or credible reporting of such a scheme underway now or ever having happened before.
USA TODAY could not reach the Facebook user who shared the claim for comment.
Our fact-check sources:
- Adam Shlahet, May 30, phone interview with USA TODAY
- Judge Juan Merchan, May 29, Jury instructions
- New York Senate Open Legislation, published Sept. 22, 2014, Section 17-152
- New York State Unified Court System, updated May 8, Criminal Jury Instructions
- USA TODAY, May 30, Judge Merchan's instructions to the Trump jury have angered the MAGA crowd. Here's why
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