DOJ's Proposed Jury Questions 'Risks Tainting' Bankman-Fried's Panel, Defense Says

Some of the U.S. Department of Justice's proposed juror questions could bias either miss juror biases or prejudice potential jurors into thinking Sam Bankman-Fried was guilty before the trial begins, the FTX founder's defense team charged in a late Friday filing.

"As a general matter, the Government’s proposed voir dire discourages full disclosure from potential jurors, fails to elicit sufficient information to allow the defense to ascertain potential juror bias, and risks tainting the jury by presenting the allegations in a prejudicial manner," attorney Mark Cohen wrote.

Specifically, the defense team believes that omitting the word "allegedly" when describing the crimes Bankman-Fried is accused of "improperly suggests that fraud by Mr. Bankman-Fried is an established fact," Cohen wrote. Other questions are too limited and may not reveal if the potential jurors might be predisposed to agreeing with prosecutors just because they're part of the federal government or if they lost money in crypto "that they believe was the result of wrongdoing."

Other proposed questions would provide potential jurors with instructions, Cohen wrote.

"Finally, we specifically object to Question 31, which seeks to elicit irrelevant information," he concluded. "The question asks whether potential jurors or their close friends or relatives have 'ever been stopped or questioned' by law enforcement. This question appears designed to elicit information concerning potential jurors’ encounters with law enforcement and law enforcement practices that disproportionately affect people of color. Neither race nor police misconduct are relevant to the instant case, and this question risks improperly excluding potential jurors on the basis of race."

The DOJ and defense both proposed voir dire questions to the judge on Sept. 11. Attorneys with the DOJ objected to Bankman-Fried's proposed questions a few days later, saying some of them are "unnecessarily intrusive" about the potential jurors' existing thoughts on FTX and its related companies, as well as the case.

Like Friday's filing from the defense, the DOJ objections also alleged that some of the proposed questions seemed designed to prime potential jurors into believing certain defense arguments and otherwise bias them toward Bankman-Fried prior to trial.

Voir dire is set to begin on Oct. 3. CoinDesk asked New Yorkers in lower Manhattan if they'd heard of FTX or Bankman-Fried earlier this month to gauge what a random selection of individuals might say.

As of this writing, a court schedule expects jury selection to last no longer than a day.

In a separate filing earlier on Friday, the defense team said it had no problems with the judge granting immunity to two unnamed witnesses. Judge Kaplan asked if the defense would ask that the witnesses first invoke their Fifth Amendment right to not potentially incriminate themselves first during a hearing on Thursday.

Read more: Here’s How FTX Founder Sam Bankman-Fried’s Trial May Play Out