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Comment by rwmj | Hacker News Reader

Can someone explain why they did this "practice run" (I guess?) without the jury? It says the judge wanted to find out what answers would be admissible but it's unclear what that means or how the practice run will help here. When they bring the jury back will they do through the whole set of questioning again?

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The main issue at play, from what I read in this story [0], is worry he will gum up the trail by saying everything was on the advice of his lawyers. Which would then require hauling the lawyers in and clarifying they of course never told their client to commit fraud or “borrow” billions of dollars of customer money.

>> One decision for Kaplan is whether Bankman-Fried will be allowed to blame FTX lawyers when the jury is back in the courtroom. As we previously wrote, this is called an "advice-of-counsel defense" in which SBF could argue that he sought advice from company lawyers, received advice that his conduct was legal, and "relied on that advice in good faith."

[0] https://arstechnica.com/tech-policy/2023/10/sam-bankman-frie...

It's worth reading Judge Kaplan's earlier rulings related to the "advice of counsel" defense. As the judge writes, you can only invoke this if you "made a complete disclosure to counsel," right at the beginning, of what you planned to do. Sounds like the kind of situation where, once on trial, you'd need to produce an original "Memo to Lawyers" spelling out all of the intended FTX/Alameda games.

Once that's on the the table, then you need to have asked the lawyers: can we do this? And then you need a clear response from the lawyers (i.e. a memo) saying: "Yep!"

SBF's testimony, peeling away some of the word haze, amounts to: "I think the lawyers were loosely aware of at least some of this stuff and I don't exactly remember them telling me we couldn't do it." That's miles short of the standard (Kaplan-summarized) test.

https://storage.courtlistener.com/recap/gov.uscourts.nysd.59...

SBF wanted to advance a defense that he relied on his lawyers telling him that was kosher, which requires there to be enough evidence that his lawyers specifically told him it was kosher. The hearing was to determine if he would be allowed to raise that defense. You don't want the jury to be present because if you ultimately decide the evidence isn't admissible, you can't exactly tell the jury "please forget everything you just heard."

At the end of the hearing, the defense attorney decided they weren't going to proceed with that defense, and instead go with the general defense of, uh, SBF thought the lawyers were telling him this was all kosher, so it can't be fraud.

In any case, he is actually testifying in his defense in front of the jury today, and Monday, and likely Tuesday. Based on this hearing, when he goes into cross-examination, the prosecutor is going to open him up and completely eviscerate him, with SBF happily handing the prosecutor the surgical tools to do so.

The guy already had his bail revoked over witness tampering. Judge wants to decide what parts of SBF’s testimony he’ll admit.

Doesn't that go against "jury by peers"?

Courts are selective about what evidence can be entered. You can't just show up with say reams of papers or random (deepfake) videos and present them.

If you weren't aware of this consider it an awakening. One of the best ways to beat somebody in court is not to have a stronger argument but to prevent them from presenting evidence.

No, in the same way lawyers and the judge can decide ahead of time not to admit an unqualified expert witness, or to dismiss the jury for someone like Darrell Brooks representing himself by bringing up irrelevant information and hearsay which is inadmissible in court. If someone says the wrong thing in front of the jury it is somewhat difficult to erase it from their brains or to convene a new jury.

No. It's up to the judge to decide what to allow as evidence or not. It has nothing to do with your right to a trial by jury.

It certainly seems so to me, but IANAL nor a legal scholar.

I'm curious whether or not this kind of thing was what the Constitution's authors had on mind.

(I've also heard that the meaning of "peers" has changed, but no idea if that's really true.)

It's not a practice run... it's a hearing-within-a-hearing to discuss admissibility. i.e., What evidence can be placed in front of the trier of fact (the jury).

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