♪♪ good morning, i'm ana cabrera alongside my colleague josé diaz-balart with special coverage, the historic criminal trial of a former president moves from the courtroom to the jury room. any moment judge juan merchan will start laying out the instructions to the jury, and that's expected to last about an hour. >> then the jurors begin deliberations, which could last until at least 4:30 today. nbc's yasmin vossoughian is outside the courthouse. also with us, catherine christian, former manhattan assistant district attorney, temidayo agone da williams, former federal prosecutor, and adam pollock, and judge diane keyes l, a retired court judge. yasmin, what's going on right

now? >> reporter: ten hours of closing yesterday. here we are, jury instructions happening any moment now. court beginning at 10:00 a.m. donald trump inside the courtroom not making any comments as he was walking in. let's just remind folks where we are and what these charges kind of make up. the falsification of business records to conceal another crime violating of campaign finance laws, violation of new york tax laws, violation of election laws as well. so if you can imagine, these 12 jurors will have to understand and grapple with what exactly these charges are to whether or not they're going to come up with a verdict of guilty and/or not guilty. those jury instructions expected to last about an hour, and then they go into deliberations, when they are in deliberations, they're able to ask the judge questions. every time a question is asked of a judge, both defense and prosecution need to be in the courtroom for this question in

order to weigh how it is they're going to answer this question. again, they're able to revisit also the transcript from the entire trial. we are six weeks into this thing, ten hours of closing arguments. they can revisit the transcript from the entire trial. when you're trying to decide we're going to get a verdict on this, it could be ten minutes into deliberations. it could be ten days into deliberations. we really do not know on this one. but certainly a huge day not only for what's happening inside that courtroom, guys, but for this country as well. >> and you will be there for us throughout the morning and throughout the day as long as this trial continues, and we do know that trump has taken his spot there inside the courtroom, but the official proceedings haven't yet begun. they should be getting underway any moment now. catherine, we know jury instructions are important. we've talked about that before. but help us understand because we know that the lawyers on both

sides argued over what should be included, what should be excluded. why could there be different variations in that there's not just a standard here when it comes to these instructions. >> there is a standard. for instance, the definition of intent. there are going to be a lot of definitions that judges routinely give, the definition of intent. the definition of reasonable doubt, the definition and what the prosecutors wanted is a definition of acting in concert. in new york they call it criminal liability because they're arguing that donald trump didn't himself put the false entries in but he intentionally aided that. also it appears that the prosecution won on that definition of unlawful means, so they're arguing that donald trump conspired to promote an election by unlawful means and the prosecution said you could say it was a federal campaign violation. you could say it was a violation of the tax laws or you could say it was the falsification of business records, so clearly the prosecution won on that because the jury can decide one of three, all three, two of three.

so jury instructions are very important. particularly also for the defense because reasonable doubt a charge is going to say although the defendant presented testimony, mr. costello, that does not mean the burden shifts to them. the burden still remains with the prosecution, and also will be told the prosecution loves this, reasonable doubt doesn't mean beyond any doubt, so those definitions are very important in addition to the substantive falsifying business records charge. >> diane, you serve as a judge in new york state. how do you typically go about the process of laying out these instructions? >> well, essentially you start as catherine indicated by a general overview of what the jury has to do. as catherine said, you have to keep the prosecutor to its burden. you have to make sure that you evaluate the testimony fairly and impartially. one important instruction is

going to be that if you find anyone has testified falsely, you may disregard that person's entire testimony or you may disregard only that much of the testimony that you find false and accept the rest. that is going to be key when they are evaluating what michael cohen had to say. and, generally, after you do the sort of more general instructions, then you narrow it down to the specific charges, and then in the end you give the jury the come on now, this is the time for you to do your duty, do it fairly, and no matter who the verdict helps or hurts, as long as you do it fairly, you've contributed to the administration of justice. >> i think that these could go on for about an hour this morning, that sounds like a long time. is this case and these jury instructions perhaps more detailed or more complicated than others? >> no, i think the problem is

you've got 34 counts and you've got to make sure the jury understands that each count must be examined individually and rise and fall on its own evidence. so i've given charges as much as two hours long, so this is not unusual. >> temidayo, the jurors can't take those jury instructions back in the room. why not? is that typical? >> it depends on the judge, but it's not abnormal. what the deliberations are about, these folks with their memory unpacking what happened that day with the benefit of the jury instructions. i think the benefit of not having the jury instructions back there is that they don't get bogged down with them perhaps when they're in their deliberations. what they really should be doing there is going over the facts. they are the fact determiners. anytime they have questions they can ask the questions of the judge. they can read back of testimony, if the judge doesn't let them

have the jury instructions, to have further direction on those. i was a federal prosecutor, and i clerked for a judge, my judge did send back jury instructions. i think it really depends on judge by judge. >> not new york state. so unusual in many ways. >> very different world. >> it's a very different world. >> and in new york the defense has to consent to written instructions going in with the jury or it's a reversible error. >> and they never do. >> reversible error, i think about, you know, depending on the outcome here, there could be appeals, right, after this trial. is there anything related to the jury instructions that you'll be watching for that could become a potential issue on appeal? >> i think almost everything from trump's side should he be convicted become an issue for an appeal, just as they threw all the spaghetti against the wall in this trial, they'll be trike

trying a lot of tracks in the case of appeal. the issue catherine flagged about for the felony charge, which felony, which other crime was trying to be admitted. was it the election, was it the tax fraud? to reach the felony charge here, the prosecution has got to show and the jury has to find that the defendant was trying to commit another crime, was using the false records in pursuance of another crime. i think this is a really important one. i think another really important one here, this is a somewhat atypical case for false records in that it wasn't trump literally making the false records except the checks that he signed, the ledger entries, the accounting, these were all -- these were all false records allegedly made and it appears apparently made by other people in the organization. so what did trump do to make the false records? i think that this is a key issue for the jury instructions. can you find that he made the false records if he directed the false records, if he approved the false records, if he caused

the false records, key question for the jury. >> court is in session right now. juan merchan is speaking. yasmin vossoughian, what's going on? >> reporter: jury is coming in right now. they had a brief exchange over, for instance, the verdict sheet when it comes to the 34th count. it seems as if it was easily resolved. at this point now the jury is filing in to get those jury instructions. you were talking about specifically when it comes to those counts. 34 counts of falsifying business records, you have 12 counts for ledgers, 11 counts for invoices, 11 counts for checks as well. remember, nine of those checks were signed by the former president himself from the oval. two of them signed by don jr. along with eric trump. they were from the revocable trust as well. throughout this trial, we have had a number of witnesses over two dozen witnesses called by the prosecution. only two witnesses called by the defense as well, the former president when going into the

courtroom this morning did not have anything to say to the cameras, but he certainly had a lot to say when it came to truth social. if you give me a moment, i'm going to read his comments to you. he said ndas are legal and accepted. the d.a.'s office was allowed to go on with five hours of bull yesterday, i have no rights against the crooked judge's gag order. kangaroo court, a corrupt and conflicted judge, reliance on counsel not allow bid merchan, a first, his rulings on a case that should according to all legal scholars and experts never have been brought, have made this a biden-pushed witch hunt. there was no crime except for the bum that got caught stealing from me, in god we trust. i think it's interesting, guys, and we can talk about this later on as we look back on the closing arguments from yesterday when he talks about michael cohen having stolen from donald trump, and the prosecution came back at that and said essentially you cannot have it both ways.

you cannot say, for instance, michael stole $60,000 from donald trump, but then also saying the $35,000 a month was, in fact, a retainer for michael cohen's services. it was $50,000 to red finch, it was 60,000 in bonus. $130,000 to pay back stormy daniels and grossing up for taxes. during the prosecution's closing they said you can't have it both ways. you can't say michael cohen was a thief while also saying you were paying him that money for his retainer. a lot to go on in this next hour as we listen to those very important jury instructions. >> okay, and the jury is now hearing the beginning of those jury instructions there in the courtroom, and court is in session. catherine, coming back to that post this morning from trump and the line, quote, the bum that got caught stealing from me. that seems to be talking about michael cohen. there's a gag order in the case. is this a violation? >> i think it is, but i think what judge merchan and the

prosecutors are -- let's just get through this trial, let the jury deliberate, let's get our verdict. it's clear, what other bum could he be talking about? >> still stealing from me. and he thinks because he didn't name him, meaning michael cohen, that it probably is not a violation, but in my view it is, but i don't think you're going to hear -- you would have heard the prosecutor stand up. they may not have seen the post but they now know about it. >> it wasn't brought up before the jury instructions got underway. >> the fact that it wasn't brought up, does it tell you that this is pretty much done? >> if it was something egregious, if he says something about the jury, you better believe the prosecutors would be bringing it to the judge's attention. this was slipped into some long rant that he usually gives. >> just the other part of that post this morning, i think it's important to address because he has been complaining about not being allowed to make the advice of counsel defense. can you explain what that is,

and why judge merchan said that was not valid in this trial? >> well, the advice of counsel defense is a defense that allows you to say i relied on my lawyer, but you can't rely on your lawyer if what you're about to do is commit some type of crime. your lawyer cannot give you illegal advice. and the judge put the -- put the lid on this a long time ago, and he continues to raise this, and look at the other things he's raising. somehow he's implying that it was unfair that the people got to speak for five hours but his lawyer did not. that was something that was agreed upon before, and this lawyer wanted to speak for five hours, there were no time limits for either side. i wondered why there was no time limit for either side. be that as it may, these

complaints have no -- >> i'm just going to take you in for just a minute if i could. i will explain juan merchan the law, spell out the elements of the alleged crimes. these instruction will take about an hour. there you go. you will not receive copies of them. you may -- the judge is saying -- request to have them read back to you as many times as you wish. i will not summarize the evidence. nothing i have said in the course of the trial is meant to suggest i have an opinion on this case. it is not my responsibility to judge the evidence here. it is yours. >> and judge, we have seen moments where judge merchan has come in and objected or sustained objections, right? there was a moment yesterday, and i just wanted to get your take on this when we heard from todd blanche in his closing argument saying something to the jury along the lines of you can't send a person to prison

for what michael cohen's saying in his lies. i'm paraphrasing there, but the reference to the jury sending donald trump to prison if they convict judge merchan said that was an outrageous comment. he instructed the jury after they returned to the courtroom because that was discussed during a break. he said that was improper. do not take this comment and basically scratch it. why was that such an out of bounds thing for todd blanche to say? >> every lawyer knows you are not supposed to suggest to the jury that if they come back with a conviction somebody is going to jail. it is completely inappropriate. it is the purview of the judge to decide what the appropriate sanction is, and if a lawyer says that, the implication is that they want the jury to feel sorry for the defendant or be reluctant to convict because

they don't want to see him go to jail, and, frankly, that's something that he admonished, it's my understanding he admonished the defense lawyer outsides presence of the jury. i might have just said, counsel, stop it right now. lawyers know that's not proper. >> you would have done that in front of the jury. >> i might have, yes. >> maybe this lawyer thought it was a cost benefit analysis he was willing to take. >> i think that's exactly what happened here. he clearly knows that's an out of bounds comment. that punishment is the province of the judge, fact finding for the jury. and yet to come out and say something like this, i think he knows what he's doing. it drew an objection as it should, the judge sustained the objection. but the jury has heard that, and it's very hard to undo it. the judge can give a direction, the judge can give an admonishment, but tactically playing chess here, it's not crazy for him as the defense

lawyer to have made a comment like this knowing it would draw limited rebuke. >> right now the judge continues with the jury instructions talking about the evidence. make sure your decision is based on the evidence, set aside personal opinions or bias and decide the case fairly on the evidence and the law. you just set aside personal opinions or bias. final question, judge kiesel for you, as you look at the totality of this trial, your assessment of judge merchan and how he's handled it? >> i think he was marvelous. i don't know how he managed to hold this together. he knew what kind of comments donald trump was making. they were within the bounds of the gag order, of course, but every night he has to have known that he was being called corrupt, conflicted. i find this so upsetting because it goes to the heart of the judiciary, the judicial system. that's another story. he has managed to keep his cool.

he has managed to keep this trial going at an amazingly fast pace, if you think about it, and i think at the end of the day, he will come out looking quite well. >> 421 days since the indictment as of 5/29 including today. 22 days in court including jury selection. it has been an intense, fascinating process to witness, and now, yasmin, we're kind of seeing the last phase of this in realtime. >> reporter: yeah. >> that defendant who has been saying all kinds of things about the judge, what's he looking like there? >> reporter: i think it's important to get a picture of what donald trump is doing in the courtroom right now. i say this only because as you mentioned, jose, i was down here when he was arraigned. you said 421 days since this indictment was delivered.

i remember in april when he was arraigned. this incredibly historic day, the former president of the united states, a presumptive republican nominee for president of the united states as well sitting in this courtroom with these jury instructions being delivered, a potential verdict, anytime after those jury instructions are, in fact, delivered, the former president wearing a navy suit inside the courtroom with a yellow tie, at one point glancing at lead prosecutor joshua steinglass who delivered that four hour and 45 minute closing argument yesterday during a small correction that was asked of the final count, that 34th count that i mentioned a little bit earlier was a very minor correction in which merchan said thank you, noted, i'll make the correction. as merchan continues to deliver his instructions, trump has resumed his kind of usual pose sitting back in his chair, eyes closed at times and head tilted softly to the back. certainly this is going to have a much shorter day than yesterday, but an incredibly significant day in this trial as

well. when it comes to security, the city by the way, is prepared. we have a special response from the new york supreme court here along with nypd. we have secret service as well. we have extra barriers in place. usually this barrier directly mind me is always here. another barrier behind that has now been erected in light of what could be a verdict coming down any moment after those jury instructions are included. we're also getting a note from kelly o'donnell in which the secret service has said they have not had conversations in light of a possible conviction because of ongoing deliberations, but once verdict does come down, that planning will go into place as to how they'll deal with any possible conviction for the former president of the united states, the presumptive republican nominee for president, guys. >> and thank you so very much, and color from laura jarrett inside the courthouse. judge merchan is speaking slowly in almost a monotone way with little inflection.

he's warning jurors at the beginning of his instruction if he shows any kind of inflection it is not to be seen as he agrees or disagrees with anything. and now the judge specifically has been sayings you must set aside any personal opinions or bias. you must not allow any such opinions to influence your verdict. if there is a verdict of guilty, it will be my responsibility to impose the appropriate sentence. you have to consider only the evidence, testimony of witnesses, exhibits, testimony that was stricken from the record must be disregarded and i'm talking about how you disregard that. he's saying testimony that was stricken from the record must be disregarded and exhibits are available upon request. >> joining us now defense attorney misty maris. would you rather be in the defense's or the prosecution's shoes as this jury heads into deliberations today? >> well, what i would say is that there's a certain degree of angst on both sides.

from the prosecutor's perspective, you were the last to go. you know that the jury heard their narrative as their final words before they go into that deliberation room. you're also aware of what the jury instructions actually are. with so much heated debate about what the verdict sheet is going to read. you may have some confidence to the extent the prosecution looks like they had some victories in that initial hearing. now, from the defense perspective, you know that you just want to have one or two jurors who are going to look at this case, maybe they won't believe michael cohen or they won't believe the prosecutors fulfilled their burden beyond a reasonable doubt. both sides have their own internal angst to deal with as they sit there and wait for the jury to decide. >> how do you as a judge or as the prosecution and the defense explain correctly or well enough to a jury what reasonable doubt really is? >> it is so difficult because

there's definitions that are reasonable doubt that are in new york pattern jury instructions, and for the most part, they're pretty much set in stone. there's minor differences, both sides basically know what reasonable doubt is going to look like on the verdict sheet. but what it really means to somebody is a debated topic that's been debated for years and years and years because it's not no doubt, but it's just a reasonable doubt, but it doesn't mean no doubt. so it's difficult for jurors to grapple with exactly what that means, but jurors take it seriously. they're going to read the instructions, go through all of those elements, and ultimately make a determination about whether the prosecution fulfilled their burden. >> and the prosecution, as you mentioned, had the last word yesterday, temidayo, they were in the courthouse until 8:00 last night, had been there since 9:30 in the morning yesterday. and some of the color from what we're hearing the jurors were looking like is twisting hair, rubbing faces. at one point a woman had her head kind of up to the ceiling

just facing forward. signs of fatigue. is that of concern at all if you're the prosecution? >> i don't think it is a sign of concern. it is remarkable that we made it all these weeks and we have not lost a single juror. that i think shows you you have a jury that is fully committed. i've had trials that are far shorter and multiple jurors have said, oh, my tooth hurts, i need to get out of this. typically you have all of these alternates because people drop out. here every single one has been committed. i don't think we've had a single day where we had a juror that's been late and we had to start late. nothing has happened. these jurors have shown themselves to be anything but committed. they are human. i think the fatigue they were feeling, i'm sure the lawyers, donald trump, the judge, everyone was feeling it but i don't think it means we should take anything from that, that they won't be fully committed in the jury room deliberating. >> is it possible you could still lose a jury at this stage, or is that now behind us? >> it's not over until it's over. so i mean, it happens sometimes.

you could have deliberations that go on and on, an emergency pops up. the fact that you've come this far, i suspect that those 12 jurors will be the ones to render their verdict here, you know, it's not over until it's over until you have a final verdict. >> how do you read what happened yesterday? you know, the three hours for the defense and the many, many hours for the prosecution. >> well, the verdict is not going to be based on you were too long. you were too short. i think they started at 9:30, they went to 8:00, they're human. of course they were tired. they were yawning. but remember, they consented. they told the judge we want to stay. let's just get this part over with. >> and they would have shortened it. >> they could have said, judge, you know, i'm sorry. i have a child care issue. i have to be home at 7:00. they consented. he made it clear, judge merchan, it's over at 8:00. i think he told josh steinglass, maybe one of your colleagues needs to hands you a note at 8:00. steinglass got the hint, so he knew he was going to finish by 8:00. >>. >> let me just take you back

into what's happening right now inside this courtroom as judge merchan is giving jury instructions. he says we now turn to the fundamental principles of all trials, presumption of innocence, burden of proof, et cetera. merchan, you must find defendant not guilty unless the prosecution has proven defendant guilty beyond a reasonable doubt, even though the defendant is innocent, the burden of proof remains on the prosecution and nothing should be drawn from the fact that the defendant did not testify to the contrary. the people have the burden and they must prove beyond a reasonable doubt that the defendant committed that crime. if they fail to satisfy their burden of proof, you must find them not guilty. >> temidayo, how much of this is standard and how much of this so far is unique to this specific case? >> this is standard stuff. i mean, these are your core constitutional rights here, so wherever you are in the country, that's what it is, right? the reasonable doubt, the burden is always on the government. it does not shift.

these are especially important here because donald trump didn't testify, and he did put up, you know, that pretty weak defense with the two witnesses so i think it's especially important they're reminded that even though they saw a clarkt, even though they saw the defense put up that doesn't matter. donald trump and his lawyers could have done nothing, sat quiet the entire time and the state would have had to prove its case. >> so far this is standard. so far what we've been hearing this morning. >> later on, it will get more specific, and you'll start talking about the actual charges here, and that's where it gets in the nitty-gritty. that's where the prosecution and defense are really going to be -- that's where the fighting was in the charing conference where these are decided. the rules and the law about these charges here and how to apply the facts to these charges, that's what's going to be key. this stuff, it's general. it's important, but it is general. >> and we know that the lawyers had these jury instructions

before they did their closing arguments. so that they didn't -- >> last thursday. >> they got in last week, so he have the weekend to look at them to make sure they were above board when they gave those closing arguments yesterday, and one thing that stood out to me, adam in the prosecution's closing argument was he said these are the three things you need to think about as a jury, and he says the prosecution rests its case on establishing that false business records were created, that the falsification was designed to cover up conspiracy to aid trump's 2016 campaign and that trump was involved in the conspiracy and intended to defraud the voting public. is it that simple? >> i think it's that simple. i think that the -- as you said to reach the felony because a misdemeanor isn't enough here. to reach a felony, the jury needs to find that he intended to defraud, in pursuit of another crime, in pursuit of the election crime. in pursuit of another crime like the tax crime. this is the key. we have to remember that the

misdemeanors here are barred by the statutes of limitation. so it's not enough to say merely that false records were made. he directed the falsification of records, the intent to defraud is a key part of the instruction and a key part for the jury to find. that's what gets them to the felony, and that's what gets them in the statute of limitations. >> there's still -- juan merchan is still focused on the i guess common, normal standard instructions, but as temidayo was saying in short order, it's time for him to focus specifically on this case. >> yeah, well, we did get through that, and now we're kind of getting into more of the specifics, speaking of david pecker's testimony along with donald trump's lack of a testimony, and let me talk you through that, when it comes to david pecker, he mentions how he has this non-prosecution agreement and says you can use that, if you remember this nonprosecution agreement that he has with the sdny, you can use

that to judge david pecker's credibility with his testimony. you cannot use that to judge whether or not you believe the former president of the united states is guilty and/or not guilty. you can also not draw inferences from the fact that the former president of the united states did, in fact, not testify. two very specific things. i imagine the jury will be taking into consideration as they go into their deliberations. color from inside the courtroom as well, guys, you know how awful it is when a phone goes off in the middle of a yoga class. imagine a phone going off in the middle of these jury instructions on this historic day inside the courtroom, and that's exactly what happened. it seems as if it came from trump's side of the courtroom, maybe alina habba, maybe don jr., we're not quite sure where exactly. maybe it was a video going off or something. a phone, in fact, did go off as these jury instructions are being read. merchan took a brief pause until that stopped, and then went on. certainly it seems as if they're getting into more of the specifics of this case.

and going away from the general jury instructions they began with. >> and it's also important that not only in a jury room n a courtroom, but maybe in a tv studio it's always good. >> we all checked our phones as you were mentioning that. misty, michael cohen, of course, was such a big factor in this trial. he was a big part of the closing arguments on both sides, especially the defense. really laying it all out there saying if you don't believe michael cohen, there's no case essentially. who do you think made the stronger argument as it related to michael cohen? >> the defense perspective has a very clear strategy. one jury instruction that we're going to hear is that if you believe any witness lied about a material fact -- >> right, that's what they're talking about right now. >> yes, it makes sense. you can take their testimony and disregard it all. the defense's perspective is if a juror were to disregard michael cohen's testimony, there's no longer that link

between donald trump and actually falsifying the business records, the intention and the paperwork and documentation. the defense wanted to make sure, and we know they spent a significant portion of time talking only about michael cohen's credibility issues, the defense wants jurors to draw that conclusion. on the other hand, prosecutors have said you don't have to rely 100% on michael cohen. there is other evidence and we're going to draw those connections for you in closing arguments. something that's strategic on both sides is knowing what's in those jury instructions so what they're telling you is reflected when the judge ultimately rereads them. what they're saying in the closings, they're keeping in mind what the jury is going to hear from judge merchan today. >> merchan is just saying now it's the quality of the testimony, not the number of witnesses. there is no particular formula for evidencing the truthfulness.

some of the factors to consider, says a judge, if a witness had an opportunity to see or hear what they are testifying about. was the testimony consistent or inconsistent with other testimony, to what extent did the witness bring experience. does the witness have a conscious bias. hostility that may impact their testimony. you may consider whether the witness had or did not have a motive to lie, if they did not have a motive to lie, you may consider that as well. >> he says you may consider whether a witness has been convicted of a crime or engaged in criminal conduct. you're not require to reject the testimony of a witness who's been convicted of a crime but can consider whether that impacts truthfulness, in determining whether a statement would have been reasonable or logical, you may consider where or to what extent it would impact truthfulness or accuracy, and so he's really digging into witness credibility here. adam, your thoughts on that

piece as it relates to cohen and whether or not that is going to be a key to what the eventual outcome will be. >> i think that cohen is clearly the key here, a central figure in the story, but i think that the defense has made an error in their strategy. it started on opening by denying that trump had an affair and denying that there was any hush money payment, and the evidence of that was abundantly clear in the trial. now they come to closing, and they say, cohen is a liar. don't believe him, and also, they say that there was no affair. they doubled down. there was no affair with stormy daniels. there was no hush money payment. this is a strategic error. the judge is not going to talk about whether -- is going to say the closing is not evidence. by yet, the jurors have heard this, and the jurors i think are going to have a hard time

believing blanche when blanche gets up there and pretty much lies to the jury when blanche says there was no affair, when blanche says there was no hush money payment, how can the jury believe him when he says that michael cohen is a liar? >> so the relevance of whether the defendant had or did not have an affair with someone, the relevance of that in the broader concept of what those -- these counts are, why does it matter that they either said, yes, we did or, no, we didn't have an affair? >> i think it actually has become a key issue because trump's defense here does really make sense. their story is that suddenly stormy daniels showed up out of nowhere in 2016 and started demanding money for nothing? that story doesn't quite make sense. jurors are smart. they're going to see through this. they're going to see that there was a scheme on trump's side afoot. trump's defense could have said,

yes, there was an affair. that is legal. yes, there was hush money payments. that is legal, but did trump phony up the documents, phony up the accounting ledgers when he was running the country and he was running a large corporation? i don't know. it was somebody in accounting that did that. that was not the defense they took. instead they had this long-winded mvp gloat. >> right, they talk about michael cohen, he was the mvp of liars. he was the greatest liar of all time. that was really the thrust of the defense. i am interested to get your thoughts, catherine, on the fact they haven't given any kind of instruction related to stormy daniels' testimony, and is that surprising at all? >> it's not surprising. she wasn't a main witness. she didn't even have to be called. why hide her, we're talking about this $130,000, bring the person who was paid the $130,000. all of these charges, jury instructions, are standard. so you can like look them up on

aline. the only things that are different when he conspired to -- these facts have never been happened before, so this is truly a novel prosecution. but everything about credibility of witnesses and acting in concert and interested witness and reasonable doubt, that's all standard and there's very rarely a fight about those issues. the fight is usually about what happened here, unlawful means. it has to be unanimous. but everything else is like that. the general witness, going to be charged about that believability. it does apply to stormy daniels. the judge had to be more pesk specific when it came to michael cohen because of the criminal convictions. >> misty, thanks for being with us. always a pleasure to have you. >> thank you so much. yasmin, what's going on inside the courtroom? >> reporter: yeah, by the way,

we're about halfway through. we have 30 minutes or so left it seems if juan merchan sticks to his time line of an hour long of jury instructions being given. we're about halfway through that. color from inside the courtroom, donald trump seems very in tune with what merchan is saying taking several sips of water, oftentimes talking to todd blanche as well. todd blanche seemingly taking notes throughout these jury instructions that are being given. let's talk the jury for a moment as well. we're getting some colors from laura jarrett. you have judge juan merchan. you have the witness stand to the left of judge juan merchan, if he's looking out to the courtroom. then to the left of that witness stand is the jury box. there's 12 jurors. this is a jury who has been very focused in on the judge, who seems to respect this judge, who follows his lead as well. throughout these jury instructions being given, this jury is taking notes it seems for the most part throughout these jury instructions, and

again, just a reminder. i know i've said this at the top of the show, i know you've talked about it repeatedly. any questions they have throughout these deliberations, they can ask the judge in which the judge will call in the prosecution and the defense to answer these questions, depending on what the question is about. they are in fact taking notes. they are tuned in despite the fact they had a very long day yesterday with about 30 minutes to go with these jury instructions, guys. >> and please keep us posted. i'll read right now they just mentioned michael cohen in fact, even if you find the testimony of michael cohen to be believable, you may not convict the defendant solely on that testimony unless you find corroborative evidence, judge merchan says. corroborative evidence by itself may not prove that a crime was committed or that a defendant is guilty, but helps connect defendant to a crime. and he goes on to say you may also consider whether there is material believable evidence apart from the testimony of michael cohen that satisfies you that the accomplice is telling the truth and connects the

defendant to the commission of the crime, meantime, our color from the courtroom as trump appears to be a little restless as merchan is going through these instructions. he's adjusting himself from time to time. he's clasped, unclasped his hands on the front of his chest, leaned forward to take a few sips of water, and he's had his eyes on mostly judge merchan. >> we want to bring in former prosecutor paul callan, part of our expert panel. 34 counts, 34 business records, 34 decisions to the jury to make. as a prosecutor, how are you seeing this phase being carried out right now by juan merchan? >> what's happening now is maybe the most important thing in the case. that is the judge's charge to the jury. this case involving the former president is extraordinarily complicated as a false business records case. >> and unusual. >> totally unusual. >> in order for him to be guilty of a felony here they have to of course link it to a second crime

and they're saying an election law crime because the $130,000 paid to stormy daniels was a campaign contribution in kind, and that has to be listed in a formal record which it was not. and so i've never seen a falsifying business records case that had to tie into the federal election law. it's a case of first impression and how this judge charges the jury is very important. that last charge is a very surprising one. >> why? >> saying -- well, he's an eyewitness, michael cohen, and to say to a jury that you can't convict based on his testimony alone, i mean, in theory if he had a conversation that was relevant and he saw the entries, which he did, i don't know why you couldn't convict on his testimony alone, frankly. but that's a very favorable

ruling for the defense in the case by judge merchan. he got one from the judge hear. >> of course we're reading notes from our reporters, may not be exact verbate, but i did notice the word accomplice in there temidayo when he was talking about michael cohen. did that catch your eye? >> no, i was more shocked by the other charge we just heard, which i heard that and i thought what is going on there. >> so explain that a little bit more. >> to the point of if michael cohen testified and he provided eyewitness testimony, relevant facts, and the jury finds him credible, the idea that there would be a charge that they need corroboration specifically for him is incredibly surprising charge. if he's credible, the jury's there. they heard him, they observed him, if they find him credible,

you don't need corroboration. >> and that was a direct quote, by the way, that part, and i'm quoting. even if you find the testimony of michael cohen to be believable, you may not convict the defendant solely on that testimony. >> yeah, i find -- i mean, i'm very curious to see -- >> what that means is the judge -- or quite frankly, he's saying that michael cohen was an accomplice, and he was. he's an uncharged co-defendant here. so -- and under new york law, you cannot convict someone just solely on the word of an accomplice. you need corroboration. so that's what that charge is. it's basically michael cohen. trump was acting in concert with michael cohen and allen weisselberg quite frankly. so you know, that's why, you know, i think now steinglass spent so much time talking about corroboration, corroboration in his summation yesterday. >> because he knew this was going to be -- >> especially for prosecutors, you want to put the words that they're going to hear out of the judge when you start talking

about the law in the jurors' head. this was corroboration. when you hear about cause, he caused. so the jury will go, okay, corroboration. i think that's what this is about. he's an accomplice as a matter of law, his testimony has to be corroborated and the prosecution said it was going to be ringing in the jurors' ears, there's a mountain of evidence of corroboration. >> i wonder how the defense feels about that? >> they lost. >> this idea that like, okay, they tried to make so much of michael cohen's testimony being like the case itself. we've talked about it because it was so, so direct in their closing arguments. they just hammered it. it seemed like that was the closing argument, and now he's saying even if you found him believable, that's not going to make or break the case. that's not going to make the case. >> that's pretty much the case. that may not make the case, but it could still break the case if you don't find him to be

credible. you have to believe, for the jury to convict here they have to see a scheme at which michael cohen was at the center, and they have to believe him that these were hush money payments, that these weren't payments for legal services, that there's a lot that puts him at the center, and the prosecution's problem -- and as they said, they didn't pick their witness. he is the central witness, which is he is a known liar. he is i think an airport full of baggage if i can say that. the difficulty for the prosecution is he's the one, and the jury has to find at least some portion of his testimony to be credible in order to convict here. plus, the corroboration, plus the circumstantial evidence that goes along with it. >> and yasmin, juan merchan is focusing in for the jury on intent. >> yeah, let me read for you what merchan is saying about intent, incredibly important part of these jury instructions.

intent to defraud is when his conscious objective or purpose is to do so. intent is not required for meditation. intent does not require advanced planning. at this very moment the person kmited the conduct or caused it to happen. a person acts with intent to defraud when his or her objective or purpose is to do so. merchan tells the jury in determining intent they can ask this, what did the person do or say? was the result of the natural or probable outcome, what was the result i should say of the natural or probable outcome? at this point, again, laura jarrett inside that courtroom taking several notes when it comes to this general intent to defraud and the communication and definitions in which merchan is giving when it comes to intent, the former president, the defendant in this case. >> yasmin vossoughian, thank you

for that update from the courtroom. several jurors taking notes, the judge says general intent to defraud suffices. we know there are a couple of lawyers on the jury, paul. i would maybe assume and whether that assumption is accurate or not, that they would have a bigger understanding perhaps of some of these intricacies. do you expect that to be a factor during deliberations? >> well, it's an interesting question because prosecutors for the most part don't want lawyers on their juries, and the reason they don't want lawyers on their juries is they think that lawyers are -- engage in hyperanalysis, that they're always looking for a technical thing that could maybe eliminate the reasonable doubt and it was surprising there were two lawyers left on this case. i have a close friend lawyer who served on a jury, and he said to

me this is the surprising thing that he found in the jury deliberations. he got shunned in the jury deliberations by the other jurors because they said, well, the lawyers just look for a technicality for somebody to get off. we want to know whether he committed the crime or not, and he ended up slipping a note to a nurse who was a good friend of his on the jury, became a friend of his on the jury, and she would express his point about how technically the reasonable doubt was present in the case, but that could happen in this case too. these lawyers who everybody's saying, well, they could be leaders in the deliberation. they could be shunned by the jurors who might say, no, we don't have to listen to the lawyers. >> just a reminder, we can't assume anything. >> yeah. and by the way, every group of 12 jurors, they're always different. you know, lawyers, a lot of us, we like to go and talk to the jury. when i win a case, i love to talk to them, they praise everything i did. when i lose a case, they always decide it for the wrong reason,

right? >> yeah. because every group of 12 is different. it's quite a thing, you know, when 12 strangers get together and decide a big question. >> and they haven't been able to talk about this case at all for the past six weeks of this trial. >> in new york, the jury doesn't elect the foreman. >> no, it's the first person, juror number 1. >> doesn't matter who it is. >> doesn't matter who it is. now sometimes they get in the jury room and there's one person who takes over. juror number 1 is like i'm the foreperson, i have to take this seriously. i agree with paul, jurors might get offended if two lawyers decide they know it all. it doesn't matter what their job is. it's can they for the prosecution's along and speak t other, you know? if you're the defense, you probably want two people, like, i don't want to deliberate, what does that mean, that means a hung jury. i don't think we can say two lawyers, they're not criminal lawyers. >> this is corporate law for one

and litigation for another. >> this is foreign to them. they don't know criminal law. they really can't really explain intent to defraud or the definition of an intent. >> let's bring in jury consultant alan turkimer. thank you for joining us. we have been talking about this jury makeup. let's pick up where we left off and this foreperson who was selected even before opening statements. how important is the foreperson? are they like the team captain typically? >> they have somewhat of an elevated role. it is very different here in new york because in most cases, actually elected and by that point, the jurors know each other, they know a little bit about their backgrounds, they haven't talked about the case, but they're familiar with who they are, the personality characteristics show through and in that situation, somebody nominates themselve or nominates somebody else based on who they think would be a good leader. here, just a question of the first person who is seated. it all depends on his

personality, juror number one. if he has a strong personality, and he's a leader, sure, he'll influence a deliberation, but as you just mentioned, there are going to be others that are going to lead. probably the lawyers, we don't know for sure, they're going to be some strong leaders on the jury, and they'll be the functional equivalent of a foreperson. in a jury of 12, you'll have three or four strong leaders and middle of the road tier and three or four followers. that's general. this jury looks accomplished in professions. you're going to have a lot of leaders, a fascinaing deliberation. >> there are two lawyers, teacher, software engineer, speech therapist among others. how do any of these backgrounds possibly impact deliberations? >> i go back to the lawyers. and i know it has been talked about a lot, but some juries, when they get a case, they can back into a verdict, they have a

feeling how they want something to play out, they can decide on what the outcome is and then justify it with the law. this juror i think will strickly adhere to the law and the instructions. happened in the casey anthony trial, one of the jurors spoke after and said we thought she murdered her child, but there was reasonable doubt and the law didn't get us there. here, who do you think the jurors are going to ask if they're wondering about the law? who do you think is going to be able to answer it, the lawyers. it is risky leaving them on but we'll see what happens. >> are you surprised they haven't been sequestered during this trial at all? >> i thought maybe there was a chance they would be sequestered during the deliberation. but given the schedule, given there were breaks, given that it seemed like the jurors were attentive, diligent from the beginning, i wasn't that surprised that there was no sequestration up until now. and now, i don't know if it is going to happen. at this point, it sounds like they're not, they're going to go into deliberations. it is pretty standard not to, but, of course, this is such an

historic trial, unprecedented, so -- >> alan, i was wondering -- sorry about that. it is so difficult to do, but when looking at these men and women, if you're the defense, are you looking at any one specific or two specific jurors that may be the ones that could help you? and if you're the prosecution, how do you see those? >> i would be in a much better position to tell you if i sat in on the voir dire and jury selection. the lawyers get to do that and make the decisions. they look at the respective jurors as they answer questions, as they give answers, as they give their perspective of the case, and then you also, if you're in the courtroom, you get to see the testimony coming in and you get a sense of what jurors are maybe with me, which ones are a little more skeptical. so it is hard to say from my standpoint at this point, but, again, i go back to the lawyers

because you have two lawyers on the case, and lawyers tend to be argumentative, tend to find technicalities, become contrarian. they'll be the authority on the jury if they're wondering about the ambiguity of the law. they don't have copies of the law, something will come up and they'll wonder about what was read, so complex. and they're going to be the ones that jurors are going to look to for guidance. >> and the judge's instructions. so heavy for this particular case. thank you for being with us. >> thank you so much. >> good to be here. >> let's look back to what the judge is now telling these jurors, an important section he just outlined, he says although you must conclude unanimously that the defendant conspired to promote or prevent the election by unlawful means, you don't have to be unanimous in what that unlawful means is. it could include violation of the federal elections laws,

falsification of other business records, violation of tax laws, he says. so he gives them those options. if they find this defendant guilty of any of those or that he -- those -- any of those laws, that would qualify. he also says when it comes to intent to defraud, you may consider bank records associated with cohen's accounts, the bank records associated with his wire to keith davidson, the invoice from investor advisory services incorporated, and the 1099 miscellaneous orgs that were issued to michael cohen. he's getting very specific, adam. >> i think so. i think there is a reason for that kind of level of specificity. the jurors need to know when they go back into deliberate, what is it that is going to meet the elements of this crime. they have now heard the description, the crime read, they need to know what can we consider, what can we -- and it

is very significant for the prosecution, a win for the prosecution, he's saying that could include as you said a violation of the election laws, falsification of other business records, violation of the tax laws, this is something that the defense has complained about since the beginning of the trial, which is we don't know what the prosecution is setting out to prove, we don't know what it is that is being charged here, which secondary crime. there is the felony four. and this is really a win for the prosecution, that he's charging the jury, you can find that there was an intent to defraud, to commit one of these other three areas of the law. >> your thoughts on the fact that the jury is not going to have the instructions on paper, and they're also taking notes, we're seeing today the notes -- the note taking. how do you see that? >> well, the jury can request a written copy of the judge's instructions. and if the defense can sense to

that, the instructions can actually be submitted to the jury. it doesn't usually happen that way in new york because the judges will say to the jury, if you have any questions about the charge, you just send us a note and we'll bring you back out into the courtroom and then the jury is recharged there. so, the note taking, i think, is very important with respect to the charge. and special on this thing that alan was talking about, because i think this is an area of danger in terms of this conviction getting overturned on appeal, when you think about it. because he has to be proven -- it has to be proven beyond a reasonable doubt that trump was involved in falsifying the records, or order that they defalsify. but, two, that he did it with intent to commit or conceal another crime. well, if i were one of those lawyers sitting on the jury, i might say what are the elements of the crime that the second crime that has to be proven. >> now the judge said it could

be any three of these particular crimes. >> he doesn't tell them. what is the violation of the federal election law? and presumably he's talking about the fact that they pay off of stormy daniels would be an in kind contribution under the federal election law that would have to be reported. >> hold on, i have more information on what he says that means. he says on the first one, exceeding a donation to any candidate for any office including a president in the united states that exceeds a certain limit. the terms contribution, expenditure, include anything of value. payment, loan for the purpose of influencing any election and under federal law, third party unless it was made irrespective of the candidate. >> so he is, okay, he is giving them that. that's good. i think he saves the sustainability of the conviction by having given them what the elements of the second crime are so, that's very, very -- >> you said it twice, are you pretty convinced there is going to be a conviction? >> well, i just think with 34

counts, all right, it is very easy for this jury if they're having a fight about whether to convict or not convict, to compromise and say, all right, well, we'll find him guilty of these two counts out of the 34. and will feel like they're throwing him a break. they're not, by the way, because the maximum sentence on each of the counts is four years in jail. and that, even if he was convicted of all the counts, those would be the sentences would be run concurrently, not consecutively, so, really one count is as dangerous to him as being convicted of all 34 counts. >> do you agree? >> i do. i do. i think going into this, if i'm the prosecution, i'm feeling bullish that a conviction is on the way. >> thank you so much for being with us on this historic day. we're going to continue our coverage. but yasmin vossoughian outside the courthouse, what is going on in the courthouse right now, fair to say, has never