Staff

Author E. Jean Carroll’s $5 million victory in her defamation and sexual assault trial against former President Donald Trump can be traced to pretrial motion practice and the reliance on evidentiary rules — unique to sexual assault cases — that in large measure preordained the verdict.

The “Ask E. Jean” columnist began her legal quest in 2019, when she filed a case — Carroll v. Trump in the U.S. District Court for the Southern District of New York — that has come to be known as Carroll I,[1] asserting a claim that Trump had defamed her by publicly calling her recounting of a sexual assault in a Bergdorf Goodman dressing room a “totally false accusation.”

At the time, Carroll could not make a direct legal claim for sexual assault, because the statute of limitations had long since passed.

Then, in May 2022, New York Gov. Kathy Hochul signed into law the Adult Survivors Act, which opened a one-year window allowing past survivors of sexual assault to file a legal claim. Carroll took this opportunity to file a second suit seeking redress for what would have otherwise been a time-barred claim.

On Nov. 24, 2022, the day the Adult Survivors Act went into effect, Carroll filed her second lawsuit — Carroll II — against the former president, seeking damages for both the alleged rape and for alleged defamatory statements made by Trump after he left office.[2]

Although both cases were initially scheduled for trial this spring, the presiding judge paused the Carroll I case to allow Carroll II to proceed to trial first, culminating in the jury’s May 9 verdict against the former president.

It may well have been an under-the-radar pretrial order entered in Carroll I[3] — and later adopted in Carroll II[4] — that paved the way for the jury’s verdict. That order, allowing the admission of damaging “prior bad act” evidence against Trump, illustrates the importance of oft-overlooked evidentiary rules, and perhaps even broadens their application.

On March 10, U.S. District Court Judge Lewis Kaplan ruled in the Carroll I defamation case that Carroll would be allowed to introduce evidence that Trump had previously committed sexual assault against other women — even though Carroll was not suing him for rape in that case.

As a starting point, the concept of propensity evidence should be familiar to a layperson. After all, in our daily lives, it is human nature to consider a person’s past actions in figuring out, say, who took the last cookie from the cookie jar: If they’ve done it before, they probably did it this time.

Of course, how we informally assign blame in everyday matters is markedly different from the rigors of evidentiary rules designed to afford litigants due process in the courtroom — from the beginning, our constitutional standards have insisted that the prosecutor or
plaintiff cannot, as a general rule, rest a legal claim on evidence of prior bad conduct.

Federal Rule of Evidence 404(a)(1) states that “[e]vidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.”

While Rule 404 lists exceptions, those exceptions are very limited and rarely come into play in civil cases.

In 1994, however, Rules 413, 414 and 415 were adopted, expanding the circumstances under which propensity evidence could be admissible in highly sensitive cases.

Rule 413 addresses criminal cases and the introduction of evidence of similar crimes in sexual assault cases; Rule 414 addresses criminal cases and similar crimes in child molestation cases; and Rule 415 addresses similar acts in civil cases involving sexual assault or child molestation.

Carroll’s lawyers relied on Rule 415 to contend that the jury should hear about Trump’s past alleged conduct as evidence in the defamation case that he falsely denied attacking Carroll and accused her of making up the incident.

Their argument was apparently persuasive to the judge — and should serve as a reminder to trial lawyers everywhere that close familiarity with the rules of evidence can be the key to success.

In his decision, Judge Kaplan held in the Carroll I defamation case that the jury could hear testimony from two other alleged victims of the former president, and that Carroll’s legal team could present audio of Trump’s now-infamous commentary about women from the “Access Hollywood” tape.

The judge explained that

[m]ost of the evidence that Mr. Trump seeks to keep from the trial jury is to the effect that Mr. Trump allegedly has abused or attempted to abuse women other than Ms. Carroll in ways that are comparable to what he allegedly did to Ms. Carroll. In other words, Ms. Carroll offers the evidence to show that Mr. Trump has a propensity for such behavior.

Noting that propensity evidence is ordinarily excluded, the judge went on to say that

Congress enacted Rule 415, which created an important exception to that principle. In a civil case “based on a party’s alleged sexual assault,” as that term is defined in the rules, “evidence that the [defendant] committed any other sexual assault” may be admitted in such cases.

Of course, what makes the application of Rule 415 in the Carroll I case noteworthy was that — unlike Carroll’s second lawsuit — the case did not involve a separate claim for rape.

Because damages were claimed not for the alleged rape itself, but for Trump’s allegedly false denial of the event, the judge had to make a threshold determination of whether evidence of Trump’s past words and behavior could be used to prove that he lied about assaulting Carroll.

Before evaluating the applicability of the propensity evidence exception, Judge Kaplan outlined the Rule 415 analysis:

(a) whether this is a case “based on [an] alleged sexual assault,” (b) whether the evidence Mr. Trump seeks to exclude is evidence of “other sexual assault[s],” and even if both are so, (c) whether Rule 403 warrants exclusion.

Trump argued that the case was not “based on” a sexual assault, because proof of an assault is not an essential element to a claim for relief for defamation.

But the judge declined to make such a categorical ruling, instead grounding his decision in the simple facts of the case. He held that Rule 415 applied, and the propensity evidence was admissible, because proving up the sexual assault was essential to proving the falsity of Trump’s statements: “Unless she proves that [sexual] assault, she cannot establish that Mr. Trump’s charge that her story was a lie and a hoax was false.”

It then follows that Rule 415 can be applied to a legal theory — in this case, defamation — that involves an essential act that falls within the scope of the rule’s exception to the exclusion principle, even if the claim itself does not involve sexual violence.

Once he determined that evidence of the former president’s propensity to commit acts of sexual assault was admissible under Rule 415, Judge Kaplan then turned his attention to the specific evidence Carroll sought to present: the recording of Trump’s hot mic statements on the “Access Hollywood” tape, and testimony from two women who also alleged they had been attacked.

First, in determining whether the “Access Hollywood” tape contained admissible evidence of a sexual assault, Judge Kaplan noted that he was required to “decide under Rule 104(b) whether a reasonable jury could find by a preponderance of the evidence that the past act was ‘an offense of sexual assault’ under Rule 413(d)’s definition and that it was committed by the defendant.'”

Applying Rule 413’s broad definition of sexual assault, the judge found that the

jury reasonably could find, even from the Access Hollywood Tape alone, that Mr. Trump admitted in the Access Hollywood tape that he in fact has had contact with women’s genitalia without their consent, or that he has attempted to do so.

In allowing the evidence, the judge noted that he was not ascribing meaning to the former president’s words — only that the tape was properly admissible under Rule 415, and that the jury should be afforded the opportunity to receive and weigh the evidence as it saw fit.

Applying a similar analysis, the court found that Rule 415 applied to the testimony of the two other alleged victims.

Again, Judge Kaplan took pains to avoid casting judgment on or interpretation of the witnesses’ testimony, noting that the only issue to be decided by the court was whether a reasonable juror could believe that the testimony described unwanted or attempted sexual contact. Because he found the jury could reasonably do so, the judge held that the evidence satisfied Rule 415.

Finally, Judge Kaplan turned his attention to Rule 403, which filters out otherwise admissible evidence with a probative value that is substantially outweighed by, among other things, its prejudice.

As with all trial evidence, even though the “Access Hollywood” tape and witness testimony met the requirements of Rule 415, it could still be excluded from trial if it was unfairly prejudicial to the defense.

In beginning his analysis of the In beginning his analysis of the probative value of the propensity evidence, the judge noted the significance of the evidence: “This is, in the vernacular, … a ‘he said, she said’ case, and it is one that turns on an alleged event more than two decades ago.”

Judge Kaplan then posited that Trump’s “best argument is that these three alleged incidents were widely separated in time.”

But the court disposed of this argument, explaining that “Rule 415, unlike other provisions of the Rules of Evidence, contains no temporal limits on the admissibility of evidence of other sexual assaults in a sexual assault case.”

Ultimately, because he found no persuasive reason to believe that any potential risks substantially outweighed the probative value of the evidence, the judge allowed Carroll to present the tape and the witness testimony to the jury.

Not long after the order was entered, Carroll I was paused while Carroll II — the two-count rape and defamation case — went to trial.

On March 27, shortly before that trial began, Judge Kaplan issued an order adopting his prior evidentiary rulings, noting that because Carroll II involved direct allegations of sexual assault, the “based upon” analysis no longer had a bearing.

Still, the judge’s based-upon analysis could well become a template for survivors to present evidence of a defendant’s prior bad acts in cases where the cause of action is based on, but does not actually include, an allegation of sexual assault.

While E. Jean celebrates her trial victory in Carroll II, astute trial lawyers should take special note of the ruling in Carroll I, issued without fanfare but heralding broad implications for applying the Rule 415 exception.

Carroll’s pretrial success teaches that Rule 415 can be applied where the cause of action itself is not a sexual assault, but is based on — or perhaps turns on — a jury’s finding that a sexual assault occurred.

Beyond its use in defamation cases, the Rule 415 exception might apply to Title VII litigation, civil rights cases, or any case in tort where the legal claim turns on the jury answering an interrogatory about the occurrence of a sexual assault.

The case also serves as another important reminder that diligent investigation and evidence collection, along with a robust understanding and strategic application of the evidentiary rules, can tip the scales in close cases.

Trials may well be won — or lost — before the jury is even sworn in, and a lawyer’s comprehension and strategic invocation of the evidentiary rules cannot be left just for trial.

Beginning in the earliest stages of investigating a case, attorneys should make use of the rules to inform their approach to discovery and depositions, to refine their preparation for trial, and to zealously advocate their theory of the case.

For example, in deposing others who have had similar experiences, or in investigating their claims, attorneys should pose questions that flesh out whether the alleged prior conduct was a sexual assault as defined by Rule 413(d).

To the extent that those questions would require a granular inquiry as to the alleged assault, the line of questioning should be thought out in advance because of the delicate nature of the subject matter.

Had the judge excluded Trump’s “Access Hollywood” statements and the testimony of other alleged victims, the verdict in Carroll’s trial may well have been different.

Because her lawyers prevailed in their pretrial motions, she ultimately won at trial — and in doing so, provided a road map for other survivors to use the rules of evidence to hold defendants to account.

That road map involves a diligent investigation with a constant eye toward how the facts play out in a narrative that will be admissible in a court of law.

It is a process that requires not just the application of Rule 415, but also other evidentiary arrows in the quiver of trial lawyers, including rules defining hearsay and its exceptions, the rules governing relevance and, of course, the rules of authentication.

Particularly in an era where emails and videos and social media can tell a story even without a witness on the stand, the rules of evidence can turn the case. And this is what Carroll’s lawsuit taught us.

___________________________________

Reuben Guttman is a partner at Guttman Buschner & Brooks PLLC. He is co-author of “Pretrial Advocacy” (NITA/Wolters Kluwer 2023).

Whitney Untiedt is a trial lawyer in Miami. She is a member of the Board of Trustees for the National Institute for Trial Advocacy.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Carroll v. Trump, et al., No. 20-cv-07311 (LAK) (S.D.N.Y.).

[2] Carroll v. Trump, No. 22-cv-10016 (LAK) (S.D.N.Y.).

[3] Carroll I, Dkt 145, No. 20-cv-7311 (LAK), 2023 WL 2441795 (S.D.N.Y.) (Mar. 10, 2023).

[4] Carroll II, Dkt 95, No. 22-cv-10016 (LAK) (S.D.N.Y.) (Mar. 27, 2023).