Why Trump Would Be Crazy To Testify In His New York Criminal Trial

Today Trump, once again, vowed that he would testify at his criminal trial in New York for which jury selection starts on Monday. He is charged with business fraud to cover up hush money payments to Stormy Daniels in order to influence the 2016 election. So will he really testify? Here is why he should most definitely not.

Trump has a long history of other, prior frauds that are well documented. Allow me to list some.

• Trump University: Closed for fraud, tens of millions paid in settlement.
• Trump Charitable Foundation: Closed for fraud, millions paid in settlement.
• Trump himself and Trump Organization: Found civilly liable for pervasive criminal fraud, hundreds of millions in civil penalties imposed.
• Trump: Charged with fraud related to election lies and fake electors, forged electoral college certificates, in Washington D.C. and in a Georgia case built around RICO.

Now some law talk, and the rules of evidence. Normally all this stuff would NOT be admissible in his current fraud trial. The general rule is that evidence of other wrongful acts to show consistency of action, or propensity to commit such crimes, is not admissible. The philosophy is that the jury should find an accused is guilty (or innocent) based on the evidence for the crimes charged, and not based on other possible misconduct.

Okay, read closely what I said above. Evidence of crimes to show consistency or propensity to similar acts charged is not admissible. It could be admissible for other purposes.

If Trump chooses to testify then such evidence could be admissible for the other purpose of impeaching his testimony. When one testifies they put their credibility at issue, and evidence undermining a witnesses credibility due to a history of dishonesty is made relevant. The rules related to impeachment allow for evidence of prior crimes or misconduct that reflect on a person’s “character for truthfulness or untruthfulness.” Such prior misconduct includes fraud because of its untruthful nature. Ironically, evidence of a prior murder would not be admissible to impeach, but writing a bad check would.

Of course Trump doesn’t know this, but he lawyers undoubtedly do. To put him on the stand opens the door for the prosecutors to impeach his testimony by making him answer their questions about all those prior frauds. Trump could even be compelled to answer under, oath questions, relating to the election fraud stuff for which he has pending active criminal cases in D.C. and Georgia. Once Trump takes the stand he can no longer invoke the 5th Amendment, he has waived it.

His lawyers would be committing malpractice to allow him to testify. Trump would be committing manifest stupidity by insisting that he testify.