UPDATE 11/21/24: Since Donald Trump’s conviction in the New York hush money trial in May 2024, the case has faced several delays. The Supreme Court’s July ruling on presidential immunity granted presidents broad protections for official acts, but the majority opinion stated that there is no immunity for unofficial acts. Trump’s attorneys have argued that the decision should lead to the dismissal of his conviction and that regardless, he can’t be sentenced while in office as it would interfere with his duties as president. The prosecution disagreed, telling the court, “We also deeply respect the fundamental role of the jury in our constitutional system.” The judge has delayed sentencing to consider the issues.
In a Manhattan courtroom, former President Donald Trump is sitting through the fifth week of a trial where he is charged with 34 felony counts of falsifying business records in the first degree. To secure a conviction, prosecutors will need to show that Trump not only falsified business records related to payments made to adult film star Stormy Daniels, but that he did so to illegally conceal information from voters that could have hurt his 2016 presidential chances — a crime that bumps these charges from a misdemeanor to a felony. The 12-member jury will soon need to weigh the evidence presented and decide the former president’s fate. Here are the potential outcomes as explained by two former New York City prosecutors.
What if the jury can’t agree on a verdict?
For criminal trials in New York State, the jury must unanimously agree on the verdict. This means that one lone juror can serve as a holdout, forcing what is called a hung jury. If 11 of Trump’s jurors agree on a conviction and 1 disagrees, for example, the presiding judge, Juan Merchan, would likely suggest that they continue to deliberate and try to come to a decision. If the jurors still can’t reach a consensus, Merchan would need to eventually call a mistrial, which is when a trial is terminated before a verdict is handed down. Importantly, a mistrial is not the same as an acquittal of the charges, so a hung jury is not necessarily a win for the former president. It would be up to Manhattan District Attorney Alvin Bragg to decide whether to retry the case.
Trump’s lawyers have already pleaded their case for a mistrial earlier in the case, arguing that Daniels’s testimony was prejudicial, or that it wouldn’t allow the jury to reach an impartial verdict. Merchan denied their motion.
It’s also possible that the jurors will agree to convict on some but not all of the charges, which could result in the court accepting a partial verdict. In this event, Manhattan prosecutors would still be able to retry the former president.
What if the jury decides Trump is not guilty?
If the jurors unanimously decide that the prosecution has not proven its case beyond a reasonable doubt, they can acquit Trump of all charges. In that case, the former president could not be retried for those offenses, as that would violate the Fifth Amendment’s Double Jeopardy Clause prohibiting someone from being prosecuted twice for the same crime.
What if the jury decides Trump is guilty?
Trump is charged with 34 Class E felony counts, which are punishable by imprisonment for more than one year. If the former president is found guilty, he could serve between a year and four months and four years in prison for each count, though a prison sentence is unlikely.
Felony sentencing in New York is determined by several factors, including the severity of the offense, the defendant’s criminal history, and any aggravating or mitigating circumstances, and there is a range of possible penalties for felonies aside from imprisonment, such as fines, probation, and other forms of supervision or rehabilitation. Given that this would be Trump’s first criminal conviction — and the charges are nonviolent in nature — the former president would be unlikely to receive much, if any, jail time. But it is possible. An analysis of prior cases where falsifying business records was charged as a felony found that approximately 1 in 10 cases resulted in prison time.
What if Trump is convicted of misdemeanor rather than felony charges?
This scenario has received little attention but is worth mentioning. Trump can be convicted of the misdemeanor charges of falsifying business records even though the indictment only charges him with felony counts.
Typically, before a judge reads instructions to the jurors ahead of their deliberations, the court holds a conference with the attorneys to discuss what charges the jury will be asked to consider. At that point, the prosecution or the defense could ask Merchan to charge what is considered the “lesser included offenses” and read the jurors the elements of the misdemeanor crime of falsifying business records along with the felony crime. The judge would then instruct the jurors that they can also choose to convict the defendant on just the misdemeanor charges.
If found guilty of a misdemeanor, Trump would still be subject to penalties, including jail time. Because a misdemeanor is a less serious criminal offense than a felony, the sentence could consist of up to one year in a local jail, probation, fines, or other penalties.
Can Trump appeal if he is convicted?
Yes. His case would be heard by the First Department of the New York Supreme Court’s Appellate Division, and it could potentially be appealed again to the New York State Court of Appeals, which is New York’s highest court. Notably, that court just overturned Harvey Weinstein’s 2020 sex crimes conviction. The majority’s ruling in that case rested almost entirely on what the majority viewed as critical errors by the trial judge in allowing prejudicial testimony.
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The jury won’t start deliberations until every witness has testified and all the evidence is heard, but when the time comes, jurors will have myriad options in front of them.
