Legal analyst walks through the nightmare of a hung jury in Trump's trial

Former prosecutor and legal analyst Elie Honig is anticipating the worst-case scenario for Donald Trump's hush money trial in Manhattan: a hung jury.

Writing for Vanity Fair, Honig noted the difficulty of getting 12 people to agree on anything. But that is what the jury must do on the 34 counts Trump faces for a hush-money scheme around an alleged affair.

He cited a "study of over 30,000 criminal trials in the late 1990s concluded that about 6 percent resulted in hung juries."

In his experience, hung juries happened about 5 to 10 percent of the time. When he asked other lawyers, they ranged from 2 to 10 percent.

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"One veteran defense ace told me proudly that he had hung precisely 23 juries over his career, which spanned 300-plus total trials. There is some variation, but we see a general consensus in the mid–single digits," wrote Honig.

But in Trump's case, there might be a single holdout eager to give the ex-president a pass. While Honig warns a hung jury has a higher probability in this trial, he remains optimistic.

"The primary reasons so few criminal trials hang are also the most obvious: The defendant is usually guilty as all get-out, and the evidence is typically clear, clean, and compelling," he explained. "Remember that prosecutors have the luxury of picking their battles and typically don’t indict a case until they are confident they can overwhelm a jury. In 2023, over 85 percent of federal criminal trialsended in convictions; outcomes vary in state courts, but by any measure, a healthy majority of trials wind up with guilty verdicts."

There is evidence against Trump, but he called it "not overwhelming." Trump has alleged that the whole case rests on the testimony of Michael Cohen, but Honig explained he is "corroborated in key respects by financial documents and other independent evidence." But Honig said that the jury can't convict without taking into account some "uncorroborated aspects of Cohen’s testimony."

"So much for the prosecution’s theory that Trump knew exactly what was happening when he signed $420,000 worth of checks to Cohen. On the contrary, Trump was actually getting fleeced by Cohen on that very same transaction, and the former president didn’t even realize it," he said of the case.

That said, he's seen "the shakiest cases" facing the demand for a unanimous verdict come back with a conviction.

The two parties debated the jury instructions after each side rested their cases, and the decision was that the jury didn't have to be unanimous on all 34 counts.

If there is a stalemate, he said, the judge will pressure them to deliver an "Allen charge," which some lawyers call "the browbeating charge."

"In essence, the judge will tell the jury, 'Get the hell back in that jury room, and don’t come out until you’re unanimous. If you can’t get there, you’ve failed in your civic duty, and we’ll just have to retry this case again with the next group of suckers who get picked for the jury. So do your job now, and let’s get this over with.' (I’m paraphrasing)," he joked.

The piece went on to say that prosecutors like him will have nightmares about hung juries because "any time the jury splits, prosecutors mourn and the defense pops bubbly."

He closed by explaining that District Attorney Alvin Bragg and his team could rest assured that most trials result in a conviction, but if ever a case posed a heightened risk of a hung jury, "this is the one."

Read the full piece here.