Global Courant 2023-05-02 08:23:59
Michael M Santiago/GettyImages
During more than a full day of cross-examination of E. Jean CarrollJoe Tacopina, Donald Trump’s chief litigator, gave a hands-on lesson on how NOT to cross-examine in federal court.
The first day of cross-examination was bad. Day two was even worse. As a juror who believed of E. Jean Carroll direct testimony that she had been raped by Donald Trump, Tacopina gave that juror little reason to reconsider that conclusion.
Before court even began Monday morning, Tacopina filed a Motion of 18 pages for a mistrialalleging that Judge Lewis Kaplan — who oversees the case — had violated Trump’s rights by repeatedly ruling against Tacopina’s pretrial and during the first day of cross-examination.
Tacopina pretended to be a batter who dug in too close to home plate, and was able to use the move as a “brush back” pitch to get Judge Kaplan to give Tacopina more leeway. The motion literally asked Judge Kaplan to either declare a mistrial or quash virtually all of his evidence.
This motion never had a chance of success. At best, it was performatively designed to give Tacopina a chance to show Trump that he was doing his best to get Judge Kaplan to reverse himself. If Tacopina really believed the motion had any chance of succeeding, then he’s not nearly as formidable a litigator as I thought he was.
Predictably, Judge Kaplan ruled against the motion with a single word: “Denied.” During the rest of the day, Judge Kaplan made comments that underscored his displeasure with the motion.
But that was just the beginning of the blunders.
Joe Tacopina, attorney for former US President Donald Trump, questions former Elle magazine advisory columnist E. Jean Carroll before US District Judge Lewis Kaplan.
Jane Rosenberg/Reuters
Tacopina violated cardinal rules of cross-examination
One of the central rules of cross-examination is never to reinforce the testimony the witness gave during direct testimony. This is difficult because it is challenging to remind jurors of the testimony that the attorney intends to discredit without summarizing that testimony.
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The best cross-examination usually avoids this problem by using this wording: “When you said (previous testimony) during direct examination, that wasn’t the truth, was it?” The witness defends the previous testimony or appears confused. A good cross-examination will then explain in simple and direct statements (phrased as questions) why the previous testimony had to be false.
Tacopina did just the opposite. For several minutes he gave Carroll a chance to repeat her direct testimony. Then when he tried to expose it, he rarely had anything substantial to convince the jury that she must have lied. Rather, he repeatedly tried to get Carroll to admit that her testimony was “incredible” or “extraordinary.” Once she admitted that she found it amazing that she went from teasing Trump to rape victim in the course of a few minutes, he had nowhere to go.
Trump’s lawyers go after E. Jean Carroll for ‘Schedule’ email
Tacopina also forgot the cardinal rule of never asking a question you don’t know the answer to.
Anyone who watches an episode of Law & Order (more on that shortly) knows that a lawyer should never ask a question during cross-examination if they don’t already know the answer (and have the evidence to check the witness).
However, Tacopina repeatedly asked questions that it was clear he had no idea what the answer would be. During the first day of cross-examination, he sparred with Carroll over a SNL skit she’d written, which he clearly knew nothing about. On Monday, he did more of the same, asking about a text message to “Carol Martin” (who will testify for Carroll), when the text exchange was actually with “Carol Martin’s daughter Courtney”. Even after being corrected, Tacopina repeated his claim that the message was to Carol Martin.
Q: Okay. This was actually a text message that you sent to Carol Martin, is that correct, and then passed on to her daughter?
A: No.
Q: Was this addressed to her daughter?
A: Yes. I wrote directly to her daughter.
Q: So, with that adjustment in my question, that this was sent to Mrs. Martin’s daughter, was what you wrote true?
A: Yes.
Tacopina lost control
Another rule for strong cross-examination is to never lose control of the courtroom. A good attorney will grab the jury’s attention and use the witness as a prop who can only say “yes” if the attorney finishes a leading question with only one possible answer.
Instead, Tacopina surrendered control to a video and played one whole segment (over 10 minutes) of a CNN interview in which Carroll talked to Anderson Cooper about being raped by Trump. Tacopina’s client, Trump, has repeatedly stated that he believes anyone watching the clip would conclude that Carroll must be lying. Instead, Tacopina gave the jury a chance to see Carroll again conclusively describe that he had been sexually assaulted by Trump. As the video played, Tacopina was literally reduced to an observer.
Jury has probably already decided on Trump’s fate in the rape case
Tacopina was repeatedly shut down by Judge Kaplan
During my more than 25 years as a litigator, I have appeared before Judge Kaplan several times. He does not like to suffer fools. During Monday’s cross-examination, Judge Kaplan often treated Tacopina as a fool who didn’t know the basics of the rules of evidence. He had several objections to series of questions just as Tacopina thought he was about to score points.
Virtually every time Tacopina tried to use snide remarks or repetitions to undermine Carroll’s credibility, Judge Kaplan objected or told Tacopina to “go ahead.”
In court, jurors usually look to the judge for guidance on how to view the proceedings. When Judge Kaplan showed such contempt for Tacopina’s blunder and smoothing, he authorized the jurors to dismiss Tacopina’s questions as inappropriate.
Tacopina had a few scattered successes
Tacopina had about five minutes of strong cross-examination. The problem was that it was hidden in about eight hours of ineffective interrogation. His best questions were when he used Carroll’s own words (either from testimonials or from televised interviews) to counter some of her direct testimony. For example, Carroll testified directly that Donald Trump’s rape was the reason she never had sex again.
Tacopina got Carroll to admit that she had previously said on a podcast, “Well, after the episode in Bergdorf’s I never had sex again, but I don’t think it was because of him. I guess I just wasn’t lucky enough to meet that person who would be longing again. I think maybe in that locker room my desire for desire was killed, but I think if I had met someone, been lucky enough to meet someone, I think I would have been revived again. I think the desire would have come to a boil again. I just think I was unlucky.”
If Tacopina had limited himself to similar fragments, I think he would have had a much greater influence in undermining Carroll’s credibility.
E. Jean Carroll testifies about ‘extremely painful’ Trump rape
Carroll’s redirect brought out her central claim
One of the fundamental rules of procedure is that after the cross-examination the witness’s lawyer has the opportunity to ‘rehabilitate’ the witness through a referral. Carroll’s attorney, Michael Ferrera, did a spectacular job. He gave Carroll the opportunity to address directly the insinuation under cross-examination that she had invoked a rape allegation against Trump based on an episode of Law & Order SVU that included a rape at Bergdorf Goodman.
Carroll testified that she never saw or heard of that episode until she received an email (after filing a lawsuit) telling her about it, and that she still didn’t know what happened in that episode .
More importantly, Carroll had the opportunity to make it clear again that Trump raped her. She testified again that she still felt the pain from when Trump sexually assaulted her. Her testimony was unwavering, even after two days of cross-examination.
A good cross-examination takes less than 30 minutes. The cross-examiner makes some strong points, which the witness cannot deny and rehabilitate. By that standard, Tacopina did a very poor cross-examination. Whatever credibility the jurors thought Carroll had after she finished her direct testimony, they probably still believe she has it now.
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