Wed. Jun 7th, 2023

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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 courtroom.

The primary day of cross-examination was unhealthy. 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 treasured little motive to rethink that conclusion.

Earlier than courtroom 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 throughout the first day of cross-examination.

Tacopina acted as if Choose Kaplan was a batter who had dug in too carefully to house plate, and he might use the movement as a “brush again” pitch to get Choose Kaplan to present 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 finest, it was performative–designed to present Tacopina the possibility to show to Trump that he was making an attempt his finest to get Choose Kaplan to reverse himself. If Tacopina really believed that the movement had any prospect for fulfillment, he isn’t 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 just the start of the blunders.

<div class="inline-image__caption"><p>Joe Tacopina, lawyer of former U.S. President Donald Trump, questions former Elle magazine advice columnist E. Jean Carroll before U.S. District Judge Lewis Kaplan. </p></div> <div class="inline-image__credit">Jane Rosenberg/Reuters</div>

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.

One of the best cross-examination often avoids this drawback by utilizing this formulation: “Whenever 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. Somewhat, he repeatedly simply tried to get Carroll to confess that her testimony was “unbelievable” 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’ Electronic 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, nevertheless, repeatedly requested questions the place it was clear he had no concept what the reply can be. In the course of the first day of cross-examination, he jousted with Carroll a couple of SNL skit that she had written, which he clearly knew nothing about. On Monday, he did extra of the identical, asking a couple of textual content message to “Carol Martin” (who will testify for Carroll), when the textual content alternate was really 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 actual fact, 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 robust cross-examination is to by no means lose management of the courtroom. A very good 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 attainable reply.

As an alternative, Tacopina ceded management to a video, enjoying a whole section (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 section would conclude that Carroll have to 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 enjoying, Tacopina was actually decreased to being an observer.

Jury Has Doubtless 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 instances. He doesn’t undergo fools gladly. Throughout Monday’s cross-examination, Choose Kaplan continuously handled Tacopina as a idiot who didn’t know the fundamentals of the foundations of proof. He sustained a number of objections to traces of questions, simply as Tacopina thought he was about to attain factors.

Just about 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 sometimes look to the choose for steerage on methods 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 robust cross-examination. The issue was that it was hidden in about eight hours of ineffective questioning. His finest 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 rationale that she by no means had intercourse once more.

Tacopina obtained 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 believe it wasn’t due to him. I believe it was I simply didn’t have the luck to fulfill that one who can be desirous once more. I believe perhaps in that dressing room my need for need was killed, however I believe if I had met anyone, had the great luck to fulfill anyone, I believe I’d have been revived once more. I believe the need would have boiled up once more. I simply suppose I’ve been unfortunate.”

Had Tacopina restricted himself to comparable excerpts, I consider that he would have had a a lot larger influence in undercutting Carroll’s credibility.

E. Jean Carroll Testifies About ‘Extraordinarily Painful’ Trump Rape

Re-Direct of Carroll Introduced House Her Central Allegation

One of many elementary 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 immediately tackle 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 swimsuit) 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 might nonetheless really feel the ache from when Trump sexually assaulted her. Her testimony was unshaken, even after two days of cross-examination.

A very good cross-examination takes lower than half-hour. The cross-examiner makes just a few highly effective factors, which the witness can’t deny and re-direct can’t rehabilitate. By that normal, Tacopina performed a really poor cross-examination. No matter credibility the jurors thought Carroll had after she completed her direct testimony, they probably nonetheless consider that she has now.

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