Sean “Diddy” Combs wants his sex-trafficking jury to be a no-prudity zone.
Defense lawyers have asked to pre-screen prospective jurors in hopes of winnowing out anyone too squeamish to handle sexually explicit videos, photos, and testimony.
The trial judge is due to decide soon what language will be used in the so-called jury questionnaire — a form filled out anonymously and in private by hundreds of prospective jurors before in-court jury selection begins.
A version proposed by the defense is designed to flag anyone who isn’t comfortable deliberating about or even looking at evidence involving graphic sex.
“Would you be able to listen to and discuss matters of a sexual nature with fellow jurors?” the questionnaire proposed by the defense would ask.
“Please explain,” it would add, providing three lines for a written reply.
The defense version of the questionnaire would also ask if the prospective juror can remain impartial in a case involving drugs, alcohol, and violence. There would then be less controversial screening questions, including whether any job, family, or health constraints prevent them from being jurors in an eight-week federal trial.
Only the prospective jurors who ace the questionnaire (as agreed to by both sides and the judge) will proceed to public jury selection, which is scheduled to begin at a federal courtroom in Lower Manhattan on May 5.
That start date is not set in stone. The defense team said this week that it will seek a two-month trial delay. Prosecutors oppose a delay, as does US District Judge Arun Subramanian.
“We are a freight train moving towards trial,” he warned the parties in court on Monday.
If the current trial schedule does hold, a final juror questionnaire would need to be approved by the judge in time to be handed to hundreds of prospective jurors on April 28 and 29.
The judge ordered that 600 copies of the questionnaire be printed.
It makes sense for the defense to want to screen out the sexually squeamish — and to do the culling in writing and as early as possible, according to trial consultants who specialize in jury selection.
“People are a little more candid on their questionnaires,” said Richard Gabriel, president of Decision Analysis and a consultant in more than 1,000 civil and criminal trials over the past 40 years.
“You don’t have that social anxiety of having to reveal personal information in a courtroom,” with members of the media watching, he said of written questionnaires.
“There’s a healthy portion of the population that has experienced sexual harassment or abuse, or who know someone who has, and so getting people to reveal that and how it’s going to affect them during trial is a very delicate process,” he said.
“People tend to be more open in their written responses, particularly with something like sex and trauma,” said Ross Suter, a jury consultant with Magna Legal Services, a national trial services firm headquartered in Philadelphia.
Sutor said that if the defense can flush out the overly squeamish early, there’s less risk that they’ll need to waste their limited peremptory challenges once jury selection begins in open court.
Hours of graphic video
During the trial, jurors will be asked to watch hours of graphic sex videos that Combs recorded over the years, including footage prosecutors allege was taken without his accusers’ consent. Some of the videos are from Combs’ so-called freak offs — described by prosecutors as elaborate, dayslong sex performances that Combs arranged, masturbated during, and often recorded.
For Combs to win an acquittal, jurors would need to believe these videos depict a consensual good time, as the defense has insisted was the case.
“Any fair-minded viewer of the videos will quickly conclude that the prosecution of Mr. Combs is both sexist and puritanical,” the defense wrote in January.
The freak off videos “unambiguously show” that key witness Cassie Ventura, an R & B singer Combs dated for a decade, “not only consented, but thoroughly enjoyed herself,” the defense wrote.
For that argument to work, the defense will need “more liberal minded jurors” who are open to arguments about alternative but consensual private behavior, Sutor said. Prosecutors have alleged that the evidence and testimony will describe drug use and the hiring of male escorts for group sex performances.
Prosecutors, meanwhile, “will be looking for jurors who are going to want to protect these women,” Sutor said of Combs’ accusers, who prosecutors say were coerced into complying with the rap mogul’s demands through violence and threats.
Prosecutors want to keep the jury questionnaire down to 11 pages, less than half the 27 pages proposed by the defense.
Their questionnaire shows a different strategy, experts said. It repeatedly asks prospective jurors if they can be fair and impartial, Sutor said, adding that it will then be that much harder for the defense to challenge jurors who give that assurance.
Ultimately, there is no proof that shorter questionnaires are better, or that questionnaires elicit more honest replies than open court jury selection, said Nancy Marder, director of the Justice John Paul Stevens Jury Center at Chicago-Kent College of Law.
Introverts may be more forthcoming in writing than in open court, Marder said. Other prospective jurors may fill out a questionnaire without much thought, and only take the questioning seriously once they’re facing a judge.
“The idea is that using both methods, you’ll get to the truth eventually,” she said.
Combs — a music and lifestyle brand executive whose worth once neared $1 billion — has repeatedly denied the charges. He is being held without bail pending trial, and is due back in court on Friday. If convicted, he faces a mandatory minimum sentence of 15 years and a potential maximum sentence of life in prison.
