During more than a full day of cross-examination of E. Jean Carroll, Joe Tacopina, Donald Trump’s lead trial lawyer, gave an object lesson on how NOT to conduct a cross-examination in federal court.
The first day of cross-examination was bad. Day two was even worse. If a juror believed E. Jean Carroll’s direct testimony that she was raped by Donald Trump, Tacopina gave that juror precious little reason to reconsider that conclusion.
Before court even started Monday morning, Tacopina filed an 18-page motion for a mistrial, contending that Judge Lewis Kaplan–who is overseeing the case–had violated Trump’s rights by repeatedly ruling against Tacopina pre-trial and during the first day of cross-examination.
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Tacopina acted as if Judge Kaplan was a batter who had dug in too closely to home plate, and he could use the motion 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 reverse virtually all of his evidentiary rulings.
This motion never had a chance of success. At best, it was performative–designed to give Tacopina the chance to demonstrate to Trump that he was trying his best to get Judge Kaplan to reverse himself. If Tacopina actually believed that the motion had any prospect for success, he is not nearly as formidable a trial attorney as I thought he was.
Predictably, Judge Kaplan ruled against the motion with a single word: “Denied.” During the rest of the day’s proceedings, Judge Kaplan made comments that underscored that he was not amused by the motion.
But that was just the beginning of the blunders.
Joe Tacopina, lawyer of former U.S. President Donald Trump, questions former Elle magazine advice columnist E. Jean Carroll before U.S. District Judge Lewis Kaplan.
Jane Rosenberg/ReutersTacopina Violated Cardinal Rules Of Cross-Examination
One of the central rules of cross-examination is to never reinforce the testimony that the witness provided during direct testimony. This is difficult, because it is a challenge to remind the jurors of the testimony that the attorney intends to discredit without recapitulating that testimony.
The best cross-examination usually avoids this problem by using this formulation: “When you said [prior testimony] on direct examination, that was not the truth, was it?” The witness will either defend the prior testimony or appear confused. Good cross-examination will then lay out, in simple and direct assertions (phrased as questions), why the prior testimony had to be false.
Tacopina did precisely the opposite. He spent minutes at a time giving Carroll the opportunity to repeat her direct testimony. When he then tried to debunk it, he rarely had anything of substance to convince the jury that she must have been lying. Rather, he repeatedly just 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 bantering with Trump to being a rape victim in the course of a couple of minutes, he had no place left to go.
Tacopina also forgot the cardinal rule to never ask a question where you don’t know the answer.
Anyone who watches an episode of Law & Order (more on that shortly) knows that an attorney should never ask a question on cross-examination where they do not already know the answer (and have the evidence to control the witness).
Tacopina, however, repeatedly asked questions where it was clear he had no idea what the answer would be. During the first day of cross-examination, he jousted with Carroll about a SNL skit that she had 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 he was corrected, Tacopina repeated his assertion that the message was to Carol Martin.
Q: OK. This, in fact, was a text message that you had sent to Carol Martin, correct, and then to pass on to her daughter?
A: No.
Q: This was directed to her daughter?
A: Yes. I wrote directly to her daughter.
Q: So, with that adjustment in my question, that this was sent to Ms. Martin’s daughter, what you wrote was true?
A: Yes.
Tacopina Lost Control
Another rule for strong cross-examination is to never lose control of the courtroom. A good attorney will command the attention of the jury, using the witness as a prop who can only say “yes” when the attorney finishes a leading question with only one possible answer.
Instead, Tacopina ceded control to a video, playing an entire segment (over 10 minutes) of a CNN interview where Carroll talked to Anderson Cooper about being raped by Trump. Tacopina’s client, Trump, has repeatedly stated that he believes that anyone who watches the segment would conclude that Carroll must be lying. Instead, Tacopina gave the jury the opportunity to see Carroll once again cogently describe being sexually assaulted by Trump. While the video was playing, Tacopina was literally reduced to being an observer.
Tacopina Was Repeatedly Shut Down By Judge Kaplan
During my more than 25 years as a trial attorney, I have appeared before Judge Kaplan several times. He does not suffer fools gladly. During Monday’s cross-examination, Judge Kaplan frequently treated Tacopina as a fool who did not know the basics of the rules of evidence. He sustained several objections to lines of questions, just as Tacopina thought he was about to score points.
Virtually every time that Tacopina tried to use snide comments or repetition to undercut Carroll’s credibility, Judge Kaplan sustained objections or simply told Tacopina to “move along.”
In the courtroom, jurors typically look to the judge for guidance on how to regard the proceedings. When Judge Kaplan showed such disdain for Tacopina’s blustering and preening, he gave the jurors permission to disregard Tacopina’s questions as improper.
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 questioning. His best questions were when he used Carroll’s own words (either from deposition or televised interviews) to rebut some of her direct testimony. For example, Carroll testified on direct that the rape by Donald Trump was the reason that she never had sex again.
Tacopina got Carroll to admit that she had previously stated during a podcast: “Well, after the episode in Bergdorf’s, I never had sex again, but I think it wasn’t because of him. I think it was I just didn’t have the luck to meet that person who would be desirous again. I think maybe in that dressing room my desire for desire was killed, but I think if I had met somebody, had the good luck to meet somebody, I think I would have been revived again. I think the desire would have boiled up again. I just think I’ve been unlucky.”
Had Tacopina limited himself to similar excerpts, I believe that he would have had a much greater impact in undercutting Carroll’s credibility.
Re-Direct of Carroll Brought Home Her Central Allegation
One of the fundamental trial rules is that after cross-examination, the witness’ attorney has the opportunity to “rehabilitate” the witness through re-direct. Carroll’s attorney, Michael Ferrera, did a spectacular job. He gave Carroll the opportunity to directly address the insinuation on cross-examination that she had conjured up a rape allegation against Trump on the basis of an episode of Law & Order SVU that included a rape at Bergdorf Goodman.
Carroll testified that she never saw that episode or had never heard of it until she received an email (after she filed suit) telling her about it, and that she still did not know what happened in that episode.
More importantly, Carroll had the opportunity to again clearly state that Trump had raped her. She again testified that she could still feel the pain from when Trump sexually assaulted her. Her testimony was unshaken, even after two days of cross-examination.
A good cross-examination takes less than 30 minutes. The cross-examiner makes a few powerful points, which the witness cannot deny and re-direct cannot rehabilitate. By that standard, Tacopina conducted a very poor cross-examination. Whatever credibility the jurors thought Carroll had after she finished her direct testimony, they likely still believe that she has now.
