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Throughout greater than a full day of cross-examination of E. Jean Carroll, Joe Tacopina, Donald Trump’s lead trial lawyer, gave an object lesson on how NOT to conduct a cross-examination in federal court docket.
The primary day of cross-examination was dangerous. Day two was even worse. If a juror believed E. Jean Carroll’s direct testimony that she was raped by Donald Trump, Tacopina gave that juror valuable little purpose to rethink that conclusion.
Earlier than court docket even began Monday morning, Tacopina filed an 18-page movement for a mistrial, contending that Choose Lewis Kaplan–who’s overseeing the case–had violated Trump’s rights by repeatedly ruling in opposition to Tacopina pre-trial and in the course of the first day of cross-examination.
Tacopina acted as if Choose Kaplan was a batter who had dug in too carefully to residence plate, and he may use the movement as a “brush again” pitch to get Choose Kaplan to offer Tacopina extra leeway. The movement actually requested Choose Kaplan to both declare a mistrial or reverse nearly all of his evidentiary rulings.
This movement by no means had an opportunity of success. At greatest, it was performative–designed to offer Tacopina the possibility to show to Trump that he was attempting his greatest to get Choose Kaplan to reverse himself. If Tacopina truly believed that the movement had any prospect for achievement, he’s not practically as formidable a trial lawyer as I believed he was.
Predictably, Choose Kaplan dominated in opposition to the movement with a single phrase: “Denied.” Throughout the remainder of the day’s proceedings, Choose Kaplan made feedback that underscored that he was not amused by the movement.
However that was only the start of the blunders.
Joe Tacopina, lawyer of former U.S. President Donald Trump, questions former Elle journal recommendation columnist E. Jean Carroll earlier than U.S. District Choose Lewis Kaplan.
Jane Rosenberg/Reuters
Tacopina Violated Cardinal Guidelines Of Cross-Examination
One of many central guidelines of cross-examination is to by no means reinforce the testimony that the witness supplied throughout direct testimony. That is tough, as a result of it’s a problem to remind the jurors of the testimony that the lawyer intends to discredit with out recapitulating that testimony.
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The most effective cross-examination normally avoids this downside through the use of this formulation: “While you stated [prior testimony] on direct examination, that was not the reality, was it?” The witness will both defend the prior testimony or seem confused. Good cross-examination will then lay out, in easy and direct assertions (phrased as questions), why the prior testimony needed to be false.
Tacopina did exactly the alternative. He spent minutes at a time giving Carroll the chance to repeat her direct testimony. When he then tried to debunk it, he hardly ever had something of substance to persuade the jury that she should have been mendacity. Fairly, he repeatedly simply tried to get Carroll to confess that her testimony was “unimaginable” or “extraordinary”. As soon as she admitted that she discovered it superb that she went from bantering with Trump to being a rape sufferer in the midst of a few minutes, he had no place left to go.
Trump’s Legal professionals Go After E. Jean Carroll for ‘Scheme’ E mail
Tacopina additionally forgot the cardinal rule to by no means ask a query the place you don’t know the reply.
Anybody who watches an episode of Legislation & Order (extra on that shortly) is aware of that an lawyer ought to by no means ask a query on cross-examination the place they don’t already know the reply (and have the proof to manage the witness).
Tacopina, nonetheless, repeatedly requested questions the place it was clear he had no concept what the reply could be. Through the first day of cross-examination, he jousted with Carroll a few SNL skit that she had written, which he clearly knew nothing about. On Monday, he did extra of the identical, asking a few textual content message to “Carol Martin” (who will testify for Carroll), when the textual content alternate was truly with “Carol Martin’s daughter Courtney”. Even after he was corrected, Tacopina repeated his assertion that the message was to Carol Martin.
Q: OK. This, in reality, was a textual content message that you simply had despatched to Carol Martin, right, after which to move on to her daughter?
A: No.
Q: This was directed to her daughter?
A: Sure. I wrote on to her daughter.
Q: So, with that adjustment in my query, that this was despatched to Ms. Martin’s daughter, what you wrote was true?
A: Sure.
Tacopina Misplaced Management
One other rule for sturdy cross-examination is to by no means lose management of the courtroom. A great lawyer will command the eye of the jury, utilizing the witness as a prop who can solely say “sure” when the lawyer finishes a number one query with just one doable reply.
As an alternative, Tacopina ceded management to a video, taking part in a whole phase (over 10 minutes) of a CNN interview the place Carroll talked to Anderson Cooper about being raped by Trump. Tacopina’s consumer, Trump, has repeatedly said that he believes that anybody who watches the phase would conclude that Carroll should be mendacity. As an alternative, Tacopina gave the jury the chance to see Carroll as soon as once more cogently describe being sexually assaulted by Trump. Whereas the video was taking part in, Tacopina was actually diminished to being an observer.
Jury Has Seemingly Determined Trump’s Destiny in Rape Case Already
Tacopina Was Repeatedly Shut Down By Choose Kaplan
Throughout my greater than 25 years as a trial lawyer, I’ve appeared earlier than Choose Kaplan a number of occasions. He doesn’t endure fools gladly. Throughout Monday’s cross-examination, Choose Kaplan incessantly handled Tacopina as a idiot who didn’t know the fundamentals of the foundations of proof. He sustained a number of objections to strains of questions, simply as Tacopina thought he was about to attain factors.
Nearly each time that Tacopina tried to make use of snide feedback or repetition to undercut Carroll’s credibility, Choose Kaplan sustained objections or just informed Tacopina to “transfer alongside.”
Within the courtroom, jurors usually look to the decide for steering on the best way to regard the proceedings. When Choose Kaplan confirmed such disdain for Tacopina’s blustering and preening, he gave the jurors permission to ignore Tacopina’s questions as improper.
Tacopina Had A Few Scattered Successes
Tacopina had about 5 minutes of sturdy cross-examination. The issue was that it was hidden in about eight hours of ineffective questioning. His greatest questions have been when he used Carroll’s personal phrases (both from deposition or televised interviews) to rebut a few of her direct testimony. For instance, Carroll testified on direct that the rape by Donald Trump was the explanation that she by no means had intercourse once more.
Tacopina received Carroll to confess that she had beforehand said throughout a podcast: “Effectively, after the episode in Bergdorf’s, I by no means had intercourse once more, however I feel it wasn’t due to him. I feel it was I simply didn’t have the luck to satisfy that one who could be desirous once more. I feel perhaps in that dressing room my need for need was killed, however I feel if I had met any person, had the great luck to satisfy any person, I feel I’d have been revived once more. I feel the need would have boiled up once more. I simply suppose I’ve been unfortunate.”
Had Tacopina restricted himself to related excerpts, I imagine that he would have had a a lot higher affect in undercutting Carroll’s credibility.
E. Jean Carroll Testifies About ‘Extraordinarily Painful’ Trump Rape
Re-Direct of Carroll Introduced Dwelling Her Central Allegation
One of many basic trial guidelines is that after cross-examination, the witness’ lawyer has the chance to “rehabilitate” the witness by re-direct. Carroll’s lawyer, Michael Ferrera, did a spectacular job. He gave Carroll the chance to instantly deal with the insinuation on cross-examination that she had conjured up a rape allegation in opposition to Trump on the premise of an episode of Legislation & Order SVU that included a rape at Bergdorf Goodman.
Carroll testified that she by no means noticed that episode or had by no means heard of it till she acquired an electronic mail (after she filed go well with) telling her about it, and that she nonetheless didn’t know what occurred in that episode.
Extra importantly, Carroll had the chance to once more clearly state that Trump had raped her. She once more testified that she may nonetheless really feel the ache from when Trump sexually assaulted her. Her testimony was unshaken, even after two days of cross-examination.
A great cross-examination takes lower than half-hour. The cross-examiner makes a couple of highly effective factors, which the witness can’t deny and re-direct can’t rehabilitate. By that customary, Tacopina performed a really poor cross-examination. No matter credibility the jurors thought Carroll had after she completed her direct testimony, they possible nonetheless imagine that she has now.
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