A jury of nine spoke with one voice.  Donald Trump sexually assaulted a woman, brazenly, in a high-end department store, lied about it, and maliciously defamed his victim.  To put it mildly, Mr. Trump was likely not the easiest client to represent, and his cause not the easiest to defend.  But the case warrants a post-mortem to assess the tools of Evidence law that may have contributed to the verdict.

In terms of the power of ‘other acts’ proof, it was the breadth of Federal Rule of Evidence 415 that gave the plaintiff tremendous corroborative proof.  Unlike Pennsylvania law, which bars such proof and restricts proof to evidence of plan, unique modus operandi, or similar non-character uses, 415 specifically permits propensity proof, a ‘did it once, likely did it again’ approach restricted to cases of sexual assault and misconduct.  More specifically, that Rule allows “In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation…evidence that the party committed any other sexual assault or child molestation.”  “Any” sexual act.  No requirement of similar modus operandi; no time span limitation; no heightened burden of proof.  What did that allow here, where the assault proved was said to have occurred in 1995 or 1996?

  • testimony from two other women – Natasha Stoynoff and Jessica Leeds – who say that they were sexually assaulted by Trump and detailed forcible groping and kissing in incidents 36 years apart. One was 1979, the other in 2005; one on an airplane, the other at Mar-A-Lago.
  • The infamous Hollywood Access tape from 2005, with the infamous boast ““When you’re a star, they let you do it. You can do anything … Grab ‘em by the p—sy.”

[Before I go on, it is worth noting that the other acts didn’t make the assault on Ms. Carroll occur or not occur.  In other words, Carroll was assaulted regardless of whether the other women disclosed what happened to them and were willing to testify.  The ‘other acts’ proof gave [added] credibility to Carroll – sadly, still an essential ingredient in many sexual assault cases even though statistically there are few false accusations regarding such crimes.]

Corroboration by propensity was followed by corroboration by Carroll’s reports to others.  Sometimes denominated “prompt complaint”  evidence, other times deemed a prior consonant statement admissible as substantive proof [the federal approach, not Pennsylvania’s] after an attack based on recent fabrication or corrupt motive, or possibly an excited utterance, the jury in this trial heard of two such reports.  It is noteworthy that in pre-trial motions the defense challenged their use based on late disclosure, not on a hearsay ground.

And what came in with those complaints?  According to one news report, “Asked why she was testifying, Birnbach said: ‘I’m here because I’m her friend and I want the world to know she’s telling the truth.’”  https://www.theguardian.com/us-news/2023/may/02/trump-rape-trial-lisa-birnbach-testimony  The second friend?  Another news report explained that  she stated that “I’m here because I want to reiterate and remember what my friend E. Jean Carroll told me 27 years ago. I believed it then and I believe it today[.]”   https://www.msn.com/en-us/news/politics/e-jean-carrolls-friend-testifies-that-they-didnt-scheme-to-make-up-a-rape-allegation-to-stop-trump/ar-AA1aKkcW  An opinion on the truthfulness of another person?  Hardly countenanced by the Rules of Evidence, here either not objected to or elicited.

Finally, there were the defendant’s own words.  The jury watched a video of Mr. Trump denying the accusation at a rally and telling the crowd “Believe me, she would not be my first choice, that I can tell you.”  https://www.nytimes.com/2023/05/02/nyregion/trump-carroll-rape-lawsuit.html   And perhaps most damning were his ruminations when deposed and asked about the Hollywood Access tape.

KAPLAN: It’s true with stars that they can grab women by the p*ssy?

TRUMP: Well, that’s what, if you look over the last million years I guess that’s been largely true. Not always, but largely true. Unfortunately or fortunately.

Formal use of a party’s character is not allowed in civil litigation (other than the propensity proof allowed by Rule 415).  But a successful trial presentation reveals the character of the players, be it good or bad.  The words came in as relevant to address and contextualize the Hollywood Access tape, defended as being me braggadocio; but this opposing party statement saying that it might be “fortunate[]” that powerful men may grab women reveals a character trait of not caring, a disregard of the rights of others, and ultimately of approval of what was alleged here.

There was so much more to this verdict.  Debates can be had about defense trial strategy. Was it a smart move for the defense to appear to brand everyone a liar and part of a grand conspiracy? For Mr. Trump to show the utmost disdain by not appearing?  Was it possible to have better prepared Mr. Trump for his deposition, or was that impossible given his temperament?  If and when the jurors shed their anonymity, answers to these and other inquiries might begin to appear.  For now, it is worth weighing the forms of proof, and what rules allow them or were disregarded, that gave the jury what it needed for this verdict.


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