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The $5 million sexual abuse and defamation verdict that a New York federal jury entered this week against former president Donald Trump had a few interesting evidentiary rulings that Trump's attorneys will almost certainly challenge on appeal. I discuss them in this blog post.
The case is Carroll v. Trump, 22-cv-10016 (LAK), 2023 WL 2441795 (S.D.N.Y. March 27, 2023). This ruling resolved the motion in limine, in which the parties asked the trial court rule on evidentiary issues prior to trial so that the trial itself does not get bogged down in objections that delay the presentation of evidence. Recall that Carroll alleged that Trump raped her and also sexually assaulted her at a department store in Manhattan in the mid-1990s. Carroll's lawyers wanted to introduce the following evidence at trial: (1) the Access Hollywood tape in which Trump said that he tried to "fuck" a particular woman and added that "when you're a star . . . [y]ou can do anything. Grab them by the pussy"; and (2) two witnesses who would recount Trump's alleged prior sexual attacks against them. Judge Kaplan ruled that this evidence was admissible, and the jury presumably considered that evidence in finding that Trump sexually assaulted Carroll and then defamed her in calling her a liar when she went public with the accusations a few years ago.
First, the Access Hollywood tape, which nearly upended the 2016 presidential election when it surfaced a month before the vote. Under Federal Rules of Evidence 415, in a civil case "based on a party's sexual assault . . . evidence that the [defendant] committed any other sexual assault" may be admitted in such cases. This rule was adopted in 1994. That rule is an exception to the general rule that you generally cannot admit evidence of the defendant's prior bad acts to prove that he did it again. We call that propensity evidence. But Congress made an exception to this rule for sexual assault cases. The Access Hollywood tape was admissible at trial, Judge Kaplan ruled, because based on Carroll's allegations, this is a "sexual assault" case, as defined by Federal Rule of Evidence 413(d): contact without consent with another person's genitals or anus, or an attempt to do so. The Access Hollywood tape has Trump stating that me "moved on" a particular woman "like a bitch" and "tried to fuck her" and that he just starts kissing beautiful woman and a "star" can "grab" beautiful women by the genitals. At deposition, Trump testified that he is a "star." Judge Kaplan held that "a jury reasonably could find, even from the Access Hollywood tape alone, that Mr. Trump admitted in the Access Hollywood tape that he in fact has had contact with women's genitalia in the past without their consent, or that he has attempted to do so."
Judge Kaplan also considered whether Carroll could have two other women testify that Trump had sexually assaulted them, as well. The governing rule is Federal Rule of Evidence 415. The first witness would testify that Trump sexually assaulted her on an airplane in 1979. The other witness would testify that Trump sexually assaulted her at Mar-a-Lago in 2005. Since these accounts are similar to Carroll's account, they are relevant to her sexual assault case. Once the trial court makes that determination, it has to apply Federal Rule of Evidence 403, which requires the court to determine if the relevance is substantially outweighed by unfair prejudice. This balancing test requires the judge to use his or her wisdom, as the analysis is nuanced. Some prejudice to the opposing party is inevitable, so the rule is there has to be substantial prejudice such that it is not worth it to admit the evidence. To that end, Judge Kaplan writes:
This is, in the vernacular, is a “he said, she said” case, and it is one that turns on an alleged event more than two decades ago. There will be no physical evidence supporting either side at trial. Mr. Trump repeatedly has denounced Ms. Carroll as a liar and the perpetrator of a hoax, and he has done so on national television and with the benefit of his status in the public and political spheres. Ms. Carroll's case, absent these witnesses, likely will depend upon her personal credibility in the courtroom, the credibility of two witnesses whom she allegedly told of the alleged rape contemporaneously, and the jury's assessment of Mr. Trump's personal credibility. Mr. Trump's alleged sexual assaults on Mss. Leeds and/or Stoynoff, if the jury is permitted to hear their testimony and believes it, is likely to weigh heavily in the jury's determination. In consequence, their testimony, if received, could prove quite important, Indeed, that surely is why Mr. Trump seeks to exclude it. So it is in that context that the usual Rule 403 factors warrant attention.
Judge Kaplan allowed both women to testify, ruling that Trump's best argument is that the alleged incidents took place in 1979 and 2005, far removed from Carroll's case, which took place in the mid-1990s. While that time issue "weighs in his favor," the court wrote, Rule 415 does not contain any temporal limits on the admissibility of evidence of other sexual assaults in a sexual assault case, and the legislative history demonstrates this was no accident.
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