i’m sure it doesn’t come up very often in most court cases.
on to press function, per cnn update:
The prosecution and defense are discussing a definition involving legitimate press function, a broad concept of normal tasks such as solicitation letters or seeking new subscribers to a publication.
In this case, it’s about AMI, the publisher of the National Enquirer.
Trump’s attorney Emil Bove argues that the defense wants to make clear that AMI did publish articles and do things for Karen McDougal, pursuant to the agreement within normal legitimate press function.
Judge Juan Merchan says:
“Why can’t we just strike the phrase legitimate press function is a broad concept. I can keep what you have before that and what you have after that.”
Prosecutor Matthew Colangelo says he thinks some of the other language is “unnecessary.”
Merchan says there’s no harm in including the line.
and on cohen: cnn
Judge Juan Merchan is now discussing another language dispute that appears to be related to Michael Cohen’s crimes.
The defense wants a sentence in the jury instructions to read “participated in a crime.”
The prosecution wants “participated in and was convicted of two crimes.”
Merchan agrees with the defense to tweak it to say “participated in crimes” (plural) and remove the language about being convicted.
They also are debating including “accomplice” versus “culprit” in the sentence.
“You should know going forward for the rest of this conference and beyond where there is standard pattern jury instructions I don’t deviate,” Merchan said.
Prosecutor Joshua Steinglass said that the defense’s suggestion of culprit had deviated from standard jury instructions.
Judge Juan Merchan is now reviewing some instructions jointly submitted by the parties earlier today.
In a moment of levity he says the word “eleemosynary” can be struck from definitions they proposed reading to the jury.
Merchan joked that he tried to pronounce it several times but cannot and so spelled it for the court reporter. He also said it means “charitable.” Prosecutor Matthew Colangelo laughing said they’re fine with that.
from cnn update:
Now there’s a discussion about how they will instruct the jury on how a person causes a false entry in business records and what that means.
Trump attorney Emil Bove objected to prosecutors’ language, saying they want to strike the phrase “a person causes a false entry when…”
Bove argues:
“They could convict based on someone else causing a false entry and accessorial liability — basically causing the causer — where (for example, if) Allen Weisselberg caused someone to do something and then President Trump caused Allen Weisselberg. It doubles up on accessorial liability.”
Judge Juan Merchan agrees with the defense but then hears prosecutor Matthew Colangelo.
Colangelo says it is “an extremely important concept” because Trump’s lawyers argued in openings that Trump did not deal directly with the business records. Colangelo says Trump could have acted in concert with Weisselberg to cause the false entry.
Merchan responds, “Isn’t this already covered in the definition of accomplice liability?”
Merchan is reserving decision but says his inclination is to strike the line as Trump’s team requested.
Donald Trump’s team wants the judge to read an expanded jury instruction on intent and also an instruction on intent to defraud.
Judge Juan Merchan asks why they need the “intent to defraud” charge in addition to the intent charge.
Trump attorney Emil Bove argues there’s a “significant issue with instructing to the jury that intent to defraud could include defrauding the government and the voting public, based on the facts of this case.”
Merchan says prosecutors have to prove there was “intent to deprive another, they don’t have to prove that it’s property or money, they have to prove that it was something.”
Prosecutor Matthew Colangelo says the wording they are seeking is “the controlling definition of intent to defraud and given the facts of this case it’s important the jury be instructed on it.”
Merchan said earlier he was inclined to use a line the prosecutors suggested to explain “intent to defraud can extend beyond economic concerns.” Bove contended that they have to tell the jury what it is, not what it is not.
He asked that if they include it, that the judge use the defense language that includes the language “lead another into error or disadvantage.”
Colangelo said that language is not a part of the official language in the standard legal definition.
Judge Juan Merchan is addressing language related to intent to conceal or commit another crime.
Trump attorney Emil Bove is objecting to language proposed by prosecutors that he says calls the jury’s attention to things that the government does not have to prove.
“What we perceive here is a risk of burden-shifting,” Bove says.
Merchan says he’s not going to rule immediately on Bove’s objection.
rc: this one is creating quite the back and forth.
cnn:
Judge Juan Merchan is now moving onto the final issue in the section, which he says he has particular concerns about. The section reads that the defendant did so with the intent to defraud that included an intent to commit or conceal another crime.
Merchan says that the defense proposes an additional line: Thus, for this second element the people must establish beyond a reasonable doubt two separate intents, the intent to defraud and the intent to commit or conceal the aid of another crime.
The judge says he’s specifically concerned about this section. Defense attorney Emil Bove said he understands that their proposed language is not the official criminal jury instructions.
Prosecutor Matthew Colangelo argued the defense version is inconsistent with the text of the statute and “there’s nothing in the statute about two separate intents.”
Merchan said he’d keep the standard language on the issue.
Trump’s attorney Emil Bove says the defense doesn’t think the underlying tax crime predicate should go to the jury.
But if it does, it should include language that says the jury must find prosecutors proved Donald Trump acted willfully with the intent to conceal a tax crime.
Prosecutor Matthew Colangelo says the alleged grossing-up agreement and intent to conceal the reimbursement to Michael Cohen that was income clearly goes to that underlying tax crime.
The parties are debating over language about the jury’s requirement to find the prosecutors proved that Donald Trump participated in the alleged conspiracy.
Prosecutor Matthew Colangelo said that there’s “extensive corroboration” for example that Trump was at the Trump Tower 2015 meeting with David Pecker that goes to his participation in the conspiracy.
Trump attorney Emil Bove says, “Our perspective, what was discussed in that meeting — if you credit the people’s witnesses — were a series of pretty standard campaign activities that were not criminal and were being practiced by candidates across the country for decades.”
Bove continued, “the defense’s position is there’s nothing criminal at all” about what was discussed at that meeting.
Judge Juan Merchan asked, “If there’s nothing criminal about it what difference does it make if he’s present or not?”
Colangelo pushed back on this, in a preview of what’s to come at closing arguments next week. He said that Bove’s argument that the 2015 meeting was “benign” and a “high-minded” discussion about democracy did not match the trial record, pointing to evidence that Pecker told just a few people about the meeting and told them to keep it secret, and then “proceeded to do all the steps of the conspiracy” that prosecutors argue was unlawful.
Thanks! Just trying to inject a bit of humor into this discussion.
oh dear things have gotten a bit tense.
per msnbc:
merchan to bove:
please don’t get up.
let me speak… my ruling is the jury will not hear that instruction from the bench nor are you permitted to make that argument. period
now we are moving on to the word “intent” prosecution is arguing intentional, the defence wants “willfully”.
from cnn update, clearing up what the admonishment was about.:
Trump attorney Emil Bove wants to be able to argue that because Michael Cohen testified that ex-National Enquirer publisher David Pecker told him the agreement was “bulletproof” and Cohen communicated that to Trump, that they should be able to argue it goes to Trump’s state of mind and intent to defraud.
Prosecutor Matthew Colangelo says it was a “retread” of previous arguments the judge had rejected about a presence of counsel of defense.
Judge Juan Merchan agrees. He says he never heard of presence of counsel and now the terms has “morphed” to “involvement of counsel.”
Merchan tells Bove to sit down.
“My answer hasn’t changed, and honestly I find it disingenuous to make it at this point,” Merchan says before Bove tries to speak.
Colangelo also says Pecker did not give adequate testimony to show that a lawyer adequately vetted the agreement with Karen McDougal, because he testified the lawyer who looked at the McDougal agreement didn’t know all the facts surrounding the situation.
“I’m telling you my ruling is the jury will not hear that instruction from the bench nor are you permitted to make that argument. Period,” Merchan says.
“I understand. I just want to complete the record,” Bove says.
“Go ahead,” Merchan says.
Before moving on, Merchan says: “This is an argument that you’ve been advancing for many many many months. This is something you’ve been trying to get through to the jury for many, many, many months. It’s denied, it’s not going to happen, please don’t raise it again.”
Trump muttered something, shaking his head and looking down, as Merchan said it’s not going to happen.
Question: when the judge’s instructions to the jury are finalized, will the jury have a printed copy of these instructions when they retire to begin deliberations? In fact, will each and every juror have his or her own copy of these instructions? Surely each one of them cannot be expected to remember all of the ins and outs of this nitpicky language?
Also, do judgers and lawyers labor over this level of minutely nuanced language when it’s an ordinary person on trial?
Yes.
Our practice was to send in one set, and if they wanted more copies, they simply had to ask.
They aren’t.
They do. 
Learned something new today. I always thought the judge gave the instructions, period (and that they were pretty cut-and-dried)…it never occurred to me that the lawyers could make their cases to include or exclude this or that.
I suspect many of us (I have for certain) have experienced similar or even more involved discussions over word choice and definitions and so on at our places of work when crafting documents. Worse, many of us have seen individuals receive documents and nitpick the precise meaning behind individual word choice and phrasing even when we know such care was not made in writing them.
Be very glad if you have never experienced it if you have never seen it. I understand such attention to detail when a felony conviction is a possibility. But this seems to be a natural part of human nature as well even for mundane tasks.
I’m struggling to imagine the task ahead of the jurors at this point. Even knowing that the jury instructions’ negotiations are housekeeping and the jury isn’t involved, …
- The administrative and documentary evidence, to me, is critical. Though they’ll have access to copies, if needed, the meat of those docs has to stay front of mind;
- Sorting through the witness testimony, making credibility assessments, and then translating those assessments into what effectively will be a points system used to determine if “beyond a reasonable doubt” was met … against the final Jury Instructions … is a big (t)ask here. I’m heartened by the high general degree of education on this jury.
Maybe the only thing simple, IMHO, is that it really is a all-or-nothing proposition. I see it as either guilty or not guilty on all 34 counts. Hard to legitimately parse count by count.
Which brings me back to our two sleepers: the attorneys on the jury.
I imagine I could be impartial on this jury. If I were an attorney-juror, I’d like to believe that I could be a spirit guide, helping to manage all the innumerable moving parts and answering questions not properly left to the Judge.
But then I’d still have that “juror” job to do, myself.
The high-level thing that always strikes me is the profound impact that jury instructions and Motions In Limine can have on a trial.
I’m with @JKellyMap on this one. In my extensive legal training, which consists of reading Grisham and Turow and watching Perry Mason and Boston Legal, I’m not sure I’ve ever run across this bit of courtroom wrangling.
Jury instructions, including which ones are given, which ones are not and which ones are modified, are all minefields of issues on appeal. Attorneys do craft them carefully and they make their records on any objections they have to what the judge has ruled to preserve their issues on appeal.
It was not uncommon in my experience for attorneys to meet with the judge for most of an afternoon to discuss jury instructions in even less significant cases.
Time for Donnie’s daily post-court rant.
This time, though, he seems worried. He’s prattling on, as usual, but he’s verging on Captain Queeg.
ETA: He’s really stretching it to try to connect Biden to his charges and prosecution.
I’d actually like to see that one.
On CNN earlier this afternoon, one of the commentators was saying that one of the vagaries of New York state law was that the jurors would not be getting a printed copy of the instructions. Instead, the judge will make himself available to jurors to orally explain and clarify instructions as often as is necessary.
This law/protocol was spoken of as a highly unusual thing to still be in place in 2024.
EDIT: Some quick Googling obfuscates the matter for me. It might be more a Judge Merchan thing than a New York State courts thing.
That’s… really surprising. Jury instructions are like a small book.
In California (as I expect almost everywhere), the judge is required to read the instructions aloud to the jury to make a record of exactly what the instructions were, then send in a copy for the jury’s use during deliberations.
One of my regular amusements was to watch jurors’ faces while the judge machine-gunned through reading the instructions. For many jurors, the first time they ever hear them is when the judge reads them aloud. Not a chance they could comprehend the instructions read at high speed.
Something tells me Judge Merchan will read them aloud quite slowly and with gravitas. Interesting how he addresses questions about the instructions.
That’s nuts. I’ve never heard of that before.
If you’re (generally speaking) new to this, jury “instructions” are basically the Law. The jury has all the facts now, but the jury does not know what the law is at all. The law is given to the jury in the form of jury instructions. It goes over the actual crime Trump is charged with, and it also gives definitions to some of the words in the crime to help them understand it better; and then told, basically, when in doubt about something to use their common sense.
It would be nice for the jury to have this prior to the trial starting (but it can’t work that way). It’s like taking an exam on a big book but not getting the exam until after you read the book. That’s ok, but better to have the exam first so you know what to look for when you read the book. Especially when you’ve never read a book or taken an exam before. It can be really hard.
I was under the impression that what made those efforts unlawful was the fact that actions they took in support of those efforts amounted to (and were required to be reported as) campaign contributions.
Nitpicking over details in language is probably not particularly entertaining for the general public, so they skip over that part. Just like they don’t show all the breaks they have to take for someone going to the bathroom, or a juror who has a dental appointment, and so on.