As the Carroll rape/defamation trial against Trump goes to jury many feel it is a slam dunk case for the plaintiff. It is not. There are plenty of weaknesses in the case the jury could hang its hat on to rule in Trump’s favor. Let’s talk about those first.
Carroll’s biggest problem is the age of the case, nearly 30 years old. She has no direct witnesses that even saw her and Trump together. Her second biggest problem is she can’t even remember specifically when the rape happened. That’s a real bad fact for the plaintiff.
Carroll argues not remembering the day proves her credibility, that if she was making things up she’d have made up a day. But Trump claims she didn’t provide a specific day because if she had he may have proven an alibi. Which of those competing narratives prevails could be decisive.
However, there is much helping to push Carroll’s side of that narrative. The performance of Trump’s attorney was often poor. His cross examination of Carroll sometimes seemed determined to alienate the jury and build sympathy for her. Carroll’s counsel often successfully objected, which looks to the jury like Trump’s attorney is doing wrong things.
Most damaging to Trump was his not testifying, which can be used against him in this civil case, and was. Carroll looked the jury in the eye and told her story, she subjected herself to live cross examination. Trump did not, and that could really make an impression on the jury.
Without live testimony Trump was left only with his vehement, but often awkward and bumbling, denials from his taped deposition. There were at least two moments in that deposition that were horrible for Trump.
The first was Trump’s identifying a photograph of Carroll as a picture of his wife. That’s devastating because Trump’s entire argument was that he wouldn’t rape Carroll because she’s not his type. Not only does this contradict Trump’s “not his type” defense, but that entire defense is offensive. A discerning jury might ask, “is this admitting he might rape a woman who is his type?”
Second was Trump, attempting to explain the Access Hollywood tape, said that for a million years celebrities could get away with grabbing women by the pussy. As bad as saying just that was, he then added “unfortunately or fortunately.” To characterize men like him getting away with sexual assault as possibly fortunate is not a good look when one is on trial for sexual assault.
Moments like those two allowed Carroll’s attorney to describe Trump as a witness against himself and they certainly help to make this a case Carroll can win.
So who wins? This civil case is to a preponderance of evidence standard, much lower than the beyond reasonable doubt of a criminal case. It simply means more likely than not. There’s a metaphor plaintiff’s counsel often uses to explain to the jury this standard. The attorney holds his arms out to the side and says something like this:
Imagine I am holding a bucket in each hand. In the bucket on the right goes evidence, in the form of sand, favorable to the plaintiff. You decide the weight (how much sand) each piece of evidence is worth. In the bucket on the left goes evidence favorable to the defendant. At the end of trial if there is just one grain of sand more in the bucket held in my right hand you are obligated to rule for plaintiff.
With Trump not testifying, with defense calling no witnesses at all, not even putting on a case, there is not much sand in Trump’s bucket.