2d Circuit sustains sexual assault verdict against Trump

The Second Circuit has sustained the sexual assault verdict against Donald Trump, ruling that the trial court did not abuse its discretion in certain evidentiary rulings that bolstered the plaintiff's case. Recall that a Southern District jury found that Trump violated E. Jean Carroll in the dressing room at a Bergdorf Goodman in New York City in 1996, a claim made possible by the Adult Survivor's Act, which revived the statute of limitations. The ruling focuses on the federal rules of evidence and whether the trial judge abused his discretion in allowing the jury to hear about Trump's other sexual abuse victims and the Access Hollywood tape in which Trump talked about grabbing women by the genitals.

The case is Carroll v. Trump, issued on December 23. The jury awarded plaintiff $5 million in damages for the sexual assault and Trump's defamatory comments about plaintiff after she publicized the allegation.

Years ago, you could not bring in evidence of the defendant's prior bad acts to prove your case. We call that propensity evidence. The concern was that you would find a party liable or guilty (in a criminal case) because of what he did in some other case. But Congress amended the Federal Rule of Evidence 415 to permit the jury in sex abuse cases to hear about the civil defendant's prior sex abuse. That evidence is admissible if it survives the balancing test under Rule 403: if its relevance is not substantially outweighed by unfair prejudice. The trial judge's evidentiary rulings are usually affirmed on appeal under the "abuse of discretion" test, and this case is no exception.

The Court of Appeals summarizes the trial testimony this way:

In 1996, Ms. Carroll encountered Mr. Trump at the Bergdorf Goodman department store in Manhattan. At the time, Ms. Carroll was an advice columnist for Elle Magazine and hosted a daily advice talk show called "Ask E. Jean." Mr. Trump recognized Ms. Carroll and asked her to stay and help him pick a gift for a girl. Describing this as a "funny New York scene" and a "wonderful prospect" for a "born advice columnist" to give advice to Mr. Trump on buying a gift, Ms. Carroll said yes.

After Ms. Carroll suggested that Mr. Trump purchase a handbag or a hat, Mr. Trump proposed that they go to the lingerie department instead. Ms. Carroll and Mr. Trump went to the lingerie department on the sixth floor. Mr. Trump selected a piece of lingerie and insisted that Ms. Carroll try it on. Ms. Carroll jokingly responded, "You put it on. It's your color." After some playful banter, Mr. Trump took Ms. Carroll's arm and motioned for her to go to the dressing room with him. Because Mr. Trump was being "very light" and "pleasant" and "funny," Ms. Carroll walked with Mr. Trump into the open dressing room, which she described as "sort of an open area." But as soon as she entered, Mr. Trump "immediately shut the door" and "shoved [her] against the wall . . . so hard [that] [her] head banged."

Ms. Carroll pushed Mr. Trump back, but "he thrust [her] back against the wall again," causing her to "bang[] [her] head again." With his shoulder and the whole weight of his body against her, Mr. Trump held her against the wall, kissed her, pulled down her tights, and stuck his fingers into her vagina -- until Ms. Carroll managed to get a knee up and push him back off of her. She immediately "exited the room" and left the store "as quickly as [she] could." The encounter lasted just a few minutes.

One witness, Leeds, told the jury that Trump assaulted her on an airplane in 1978 or 1979. That conduct was admissible because it arguably constituted a sex crime under the U.S. Code. Another witness, Stoynoff, testified that, as a reporter for People magazine, Trump sexually assaulted her behind closed doors at Mar-a-Lago in 2005. As for the Access Hollywood tape, we all know what Trump said on camera, that "when you're a star," you can grab women by the genitals. That tape, from 2005, nearly upended the 2016 presidential election. The trial court admitted this tape in evidence because it suggests that Trump has had contact with women's genitalia without their consent, or has attempted to do so. The tape was also admissible because it shows a pattern of sexual assault, or a recurring modus operandi.

Other evidentiary rulings are also discussed in this decision. Trump challenged the trial court's order excluding evidence challenging Carroll's credibility, such as that a third-party helped to fund her litigation against Trump. But courts have held such funding is not relevant to credibility. The trial court also acted within its discretion in excluding evidence that, according to Trump, suggested that Carroll was trying to influence Stoynoff's testimony. Nor did the district court abuse its discretion in precluding any argument that Carroll had allegedly falsely claimed that Trump's DNA was on her dress from the dressing room incident.

As described in this ruling, the evidence at trial certainly makes Trump look terrible. The Court of Appeals (Chin, Carney and Perez) notes that Trump did not testify nor even appear at trial, and the Court adds that Trump has denied the allegations. I guess that reference is a courtesy to the next President of the United States. However, as all litigators know, if the jury said it happened, the denials fall away on appeal and the court accepts the evidence in the light most favorable to the winning party.