Winning Them Over

After the end of the 2025 retrial of Harvey Weinstein, during which the former film producer was convicted on one count of sexual assault, acquitted on a second, and granted a mistrial on the third, a juror confided in Weinstein’s attorney, Arthur Aidala. “You were my guy from the time we met at jury selection,” she told him. “I loved your style and I just believed in you.”

That type of two-out-of-three win, says Aidala, who practices criminal defense at Aidala, Bertuna & Kamins in New York City, “has to do with the jurors sticking by the defense team that selected them.”

Choosing the right jurors can make all the difference. But how are they selected? And who is most likely to side with you? 

The term “jury selection” is actually a misnomer, says Aidala. “It’s actually jury deselection. You do not pick the jurors that you want. Both sides have an opportunity to pick the jurors they do not want, and then whoever is left becomes your jury.”

The process begins when the court clerk sends notices called summons to eligible jurors, randomly drawn from voter lists, who live in the county in which the trial will take place. A group of at least 60 prospects is summoned to court; some will quickly be disqualified based on medical issues, language barriers and other factors, generally leaving approximately 36 qualified people in the “maybe” pool. 

“And then comes the most exciting and interesting part of this,” says Zachary Margulis-Ohnuma, a criminal defense attorney in New York City. “I think of it as a fun game where you’re shooting in the dark—and it’s really more like roulette than chess, in that you try to take a guess as to which jurors are going to be good for you and which jurors are going to be bad for you.”

To kickstart the question-and-answer phase known as voir dire, the judge asks a few basic questions: What neighborhood do you live in? What’s your occupation? Are there children in the household? After that, lawyers for both sides ask their own questions and eventually nix a slew of possible jurors, which they can do for any reason except blatant racism.

Even before the first inquiry, a good defense attorney is watching for subtle signs that a juror is likely to favor their client, from whether they make eye contact to which newspaper they’re carrying. “You look at little things,” Aidala says. “Do they smile at you when they enter or leave the courtroom? You’re not allowed to talk to them in any way, shape or form beforehand, so you have to just look for those little nods here and there.”

The most important thing the defense lawyer is looking for when seeking potential jurors, says Margulis-Ohnuma, is a willingness to challenge authority and be “skeptical and willing to second-guess police officers, FBI agents, government officials, witnesses that the government has sat down with two dozen times to get their story straight.” 

Jurors who are likely to deliver a favorable verdict for the defendant, adds Aidala, often come across as having an open mind. “They are going to dig a little deeper. They’re going to look into the facts surrounding what the witness says, or what the prosecutor says, to see if it rings true.”

Another important factor is how well a potential juror bonds with the defense attorney. “You don’t get a long amount of time to chat with them, but you want someone who seems to enjoy you and identify with you,” Aidala says, noting that he makes a point to smile to set them at ease. “You’re trying to make a connection, whether it’s about children you have in common at the same age, the neighborhood you grew up in, ethnicity, a sports team, food.”

The time it takes to whittle the jury down to at least a dozen people, plus several alternates, can vary. “It totally depends on the judge,” says Margulis-Ohnuma. “I’ve seen jury selections in big cases go on for weeks.”

Jury selection is probably the most important part of a case, says Aidala, who likens the process to making pasta sauce. “It does not matter how much garlic and onions and meatballs and sausage you put in there—if you start off with tomatoes that are not edible, then the sauce is never going to be good. It’s the same thing with a trial. If you start off with jurors who are so against you—who want nothing to do with you—then no matter how good the evidence is and how much it’s in your favor, they’re never going to rule for you. … So it is absolutely crucial to do everything in your power to get the best jury you can.”