Remember the Jury: Cross-Examining Trump’s Claimed Rape Victim Jean Carroll

 

Donald Trump's lawyer, Joseph Tacopino was tasked with the cross-examination of 79-year old Jean Carroll who claims that Donald Trump raped her in a Manhattan department store in 1996. Tacopino attacked her credibility contending that she came forward in 2019 because she did not like his politics and wanted to sell copies of her book. That’s fair game.

A cross-examiner needs to beware of the different expectations of each of the audiences the cross-examiner is playing to during the cross-examination. The cross-examiner needs to be constantly aware of the jurors’ role in applying the law to the facts as they find and reach a verdict. The jurors’ job is to determine the truth, and the cross-examiner's demeanor and conduct should be designed to help the jurors meet their responsibilities.

While it may be satisfying to the cross-examiner Tacopino to challenge Carroll, the real test is what the jury thinks. Jurors may perceive his conduct in a negative light—as an abuse of her—particularly if they're not convinced that she deserved it. If she were patently lying, the situation shifts in favor of a rigorous cross-examination.

In the aftermath of his cross questioning her about why she didn’t act the way some might think a rape victim should—scream, call the police and so on, the jury will hear from two other women who say Trump raped them, Trump’s own words about how he groped women, and expert testimony that women don’t react as Tacopino suggests. And, this is not a he-said-she-said trial because it’s likely Trump won’t testify. The prosecutor’s closing probably will shred any argument by Tacopino to the effect that she wasn’t sexually assaulted.

Defense counsel Tacopino’s approach is a lesson is what not to do—he forgot his audience. For instance, Tacopino pressed Carroll about why she did not scream for seek help when Trump attacked her in the department store. Carroll's reaction was to respond to the suggestion that rape victims are supposed to act in a certain way was incorrect by saying that such thinking deters women from coming forward. She said, “I'm telling you, he raped me, whether I screamed or not.” News reports say that her voice rose and broke at this point. It was a step too far on cross.