What do legal experts think of the SBF trial?

Legal experts' opinion on the SBF trial?

Source: Coindesk

Translation: LianGuaiBitpushNews Mary Liu

Sam Bankman-Fried (SBF), the founder and former CEO of FTX, will stand trial in less than two weeks to defend himself. SBF is accused of intentionally committing fraud and conspiring to deceive investors and clients of FTX and Alameda Research.

The prosecutor needs the jury to reach a unanimous verdict to convict SBF. The trial, expected to last six weeks, is set to begin on October 3, 2023, Eastern Time in the United States. This is less than 10 months since Bankman-Fried’s initial arrest and less than 11 months since the collapse of FTX.

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To better understand the trial process, CoinDesk interviewed several legal experts, some of whom requested anonymity to discuss this high-profile case.

Jury Selection

Although the trial is scheduled to begin next month, it will take some time before actual arguments are presented. The first step may take place next week, which is the final pre-trial conference.

New York Southern District Judge Lewis Kaplan will list the final witness schedule and how long the trial is likely to last, as well as make final pending rulings on any issues at the conference. Martin Auerbach, a lawyer at Withersworldwide, said that after selecting the jury, Judge Kaplan may also consider some motions.

The second step is voir dire, which will actually begin on October 3.

During the jury selection process, the judge will ask potential jurors some questions. A lawyer with white-collar litigation experience told CoinDesk that he might start by asking if any potential jurors have any plans to travel in the next few weeks, as they may not be able to leave their jobs for weeks.

They said that the judge may also inquire if any potential jurors have FTX accounts, which will be screened out by LianGuaiSS. Once these extensive jury questions are completed, the judge will begin asking individuals the questions posed by the prosecution and defense teams.

They said, “The defense and the prosecution may compete for each juror, which will take a long time. It won’t be a yes or no question, but a back and forth process, so I think it will take a few days.”

Auerbach said that while lawyers may be able to ask questions to potential jurors at the state court level, this is a federal court, so only the judge will ask questions.

If some potential jurors can demonstrate economic hardship or similar issues, they may be excluded from attending. Others may be excluded through peremptory challenges, where lawyers can strike a limited number of potential jurors for any reason.

Other potential jurors may demonstrate clear bias towards the defendant SBF or the plaintiff government and may be excluded without counting towards the peremptory challenge quota.

This process is usually quick. Given the significant nature of the SBF case, it may take several days to arrange only 10 or 12 jurors, but according to the filing submitted by the Department of Justice on September 19, this would only require “half a day.”

Auerbach said that there would also be some alternate jurors, who may ultimately be ignored unless one of the original jurors must withdraw from the case.

Both the prosecution and the defense have raised some questions, requesting the judge to inquire each potential juror to eliminate anyone who may have serious bias or be unsuitable to serve as a member of the jury. Judge Kaplan is advised to ask these individuals if they are familiar with the case, if they have any opinions on the case, or if they are acquainted (or familiar) with Bankman-Fried or the lawyers involved.

The SBF team has also raised questions about effective altruism, political donations and lobbying, and ADHD. The Department of Justice opposes these questions, believing that they appear to be biased in favor of the prosecution.

Reasonable Doubt

Once the trial begins, jurors, journalists, and members of the public in the gallery will witness opening statements from the Department of Justice and the defense, followed by the presentation of evidence and examination of witnesses by the Department of Justice. The Department of Justice’s pretrial filings show that, in addition to written documents, prosecutors will also present recordings during the trial.

Witnesses will be questioned in this manner.

An expert told CoinDesk that the first witness subpoenaed by the Department of Justice may help demonstrate the strength of the case, at least in the eyes of the prosecutors. The DOJ may call FBI agents as the first witnesses, or they may “go for the jugular” and immediately summon members of the FTX core circle.

Both sides are also attempting to provide certain expert witnesses to describe FTX code and other details, and even explain cryptographic fundamentals, although there is still controversy over whether some or all potential witnesses should be allowed to testify.

Given that this is a criminal trial, the Department of Justice must prove guilt “beyond a reasonable doubt.” In contrast, the standard of “preponderance of the evidence” is lower in civil cases.

A legal expert told CoinDesk, “There’s no specific percentage beyond reasonable doubt, but you can think of it as 90% or more, a deep and lasting belief in the guilt of the defendant.”

They said that the assistant U.S. attorneys prosecuting the case are likely to present each element of every charge and explain what evidence they have to support a conviction on each charge.

The expert said, “They’re tracking every word, every document to make sure that there’s enough in the record that [Bankman-Fried] will inevitably argue—because every defendant does—that there are flaws in this or that evidence.”

Once the prosecution rests, the defense will have an opportunity to present more witnesses. An outstanding question is whether SBF himself will testify for his own defense.

One source told CoinDesk that more white-collar crime defendants are waiving their Fifth Amendment rights and testifying in court, with Theranos founder Elizabeth Holmes (who was convicted last year and sentenced to over 11 years in prison) being an example.

Experts say, “The current thinking is that juries are very concerned about the celebrity effect, even if they don’t know who the defendant is in the trial, almost everyone is likely going on Twitter and the internet during the trial to research them, and judges tell them not to…but because there’s this celebrity culture around these cases, the idea is that if they don’t testify, essentially, it’s presumed that they’re not testifying because they don’t want to admit their guilt.”

Concerns about jury tampering have already arisen in some pre-trial hearings. Bankman-Fried’s defense team argued that there have been over a million negative articles about the FTX founder, which has prompted media narratives about him.

Unanimous Verdict

A federal criminal trial requires a unanimous verdict for conviction. If the jury consists of 12 people, all 12 must believe SBF is guilty without reasonable doubt at the end of the trial.

The defense’s job may be (relatively) simple, convincing one juror that the evidence is insufficient or that the prosecutor has not presented evidence for different charges.

Auerbach said the judge will read a series of instructions explaining how they should evaluate what they hear and see. Both the U.S. Department of Justice and SBF’s team have proposed their own jury instructions.

“[It’s] a piece of paper that lists the legal elements they have to find beyond a reasonable doubt to convict, if they don’t find beyond a reasonable doubt, they must acquit, if they can’t agree, they will deadlock on that particular legal element,” he said.

The jury can ask questions, but typically these questions are held during deliberation. Jurors can send written questions to the judge, who will read them in court and provide answers with the attorneys.

“I have to believe that in such a complex case, the jury will have one or more questions,” one legal expert said.

Another source told CoinDesk that another complicated factor is that most of the core conduct of the charges is actually not in dispute. The prosecutor’s job is to convince the jury that SBF’s conduct fits within the regulations he is accused of.

Out-of-jurisdiction or extraterritorial jurisdiction is an example. The wire fraud and anti-fraud rules in securities regulations do not apply to “defendants who primarily engage in conduct outside the United States”. In other words, the prosecutor must prove that SBF’s conduct not only fits the definition of wire fraud but also that his target is a U.S. citizen or is otherwise being carried out in the United States.

Bankman-Fried formerly resided in the Bahamas, where FTX’s global headquarters are located.

Another individual told CoinDesk that if the jury is deadlocked, the judge can use certain tools to instruct the deadlocked jurors to “go back and try again.”

“This is not like in the first round of voting, if a juror says ‘I don’t believe it,’ they will be told to go back and continue to strive for a unanimous verdict,” they said.

Auerbach said that if the jury comes back after multiple attempts to reach a unanimous verdict and indicates that they have irreconcilable conflicts on all aspects, the judge may declare a mistrial. Otherwise, the jury may agree to convict on all or some of the charges, or acquit on all or some of the charges.

Sentencing

If SBF is convicted of one or more charges he faces, the length of time he will spend in prison will largely depend on Judge Kaplan.

One individual told CoinDesk that while sentencing guidelines used to be mandatory decades ago, they are now more often seen as a starting point rather than strict rules, according to Supreme Court rulings.

There are still statutory requirements that judges must adhere to, but these requirements are distinct from the guidelines.

The individual said that the U.S. Probation and Pretrial Services System would first create a report that includes a “preliminary calculation of the suggested sentencing range.” The Department of Justice and the defense team can present any objections, advocating for a longer or shorter sentence.

Then Judge Kaplan will consider various proposals and take into account many other factors, such as the seriousness of the crime, to make an actual judgment.

Typically, if there are multiple convictions for similar charges, a judge may choose to distill the charges into “core misconduct.”

Given the progress of the case so far, if SBF is convicted, his team could also file an appeal. Another individual said that due to the “double jeopardy” rule, the Department of Justice cannot appeal a “not guilty” verdict. Legal experts said, “Except in the rarest of cases, the government does not appeal in all instances… Once you’re acquitted by the jury, it basically means you’re released for life.”

Regardless, this is not SBF’s final criminal trial. In early next year, he will face a series of additional charges brought by the Department of Justice after the initial indictment.

Considering that Monday, October 9th is a U.S. holiday, Columbus Day, Judge Lewis Kaplan approved October 6th, Friday, as the trial date.

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