During more than a full day of cross-examination, E. Jean CarrollDonald Trump’s lead trial attorney, Joe Tacopina, gave an object lesson on how not to conduct cross-examination in federal court.
The first day of interrogation bad. Day 2 It was even worse.If the jury believed E. Gene Carroll’s verdict direct testimony Tacopina gave jurors the fact that she was raped by Donald Trump, giving them little reason to reconsider their conclusions.
On Monday morning, before court began, Tacopina 18-page motion for miscarriage of justiceJudge Louis Kaplan, who is overseeing the case, repeatedly sentenced Tacopina before trial and on the first day of cross-examination, alleging that he violated Trump’s rights.
Tacopina acted like Judge Kaplan was the hitter who got too close to home plate, using the move as a “brushback” pitch so Judge Kaplan could give Tacopina more leeway. . The motion literally asked Judge Kaplan to either declare the trial erroneous or overturn virtually all evidentiary decisions.
This move never had any hope of success. At best, it was performative and meant to give Tacopina a chance to show Trump that he was doing his best to turn himself over to Judge Kaplan. If Tacopina actually believed the motion was likely to succeed, he’s not as formidable a barrister as I thought.
As expected, Judge Kaplan opposed the motion with the word “dismissed.” During the rest of the day’s proceedings, Justice Kaplan made a comment emphasizing that he was not amused by the motion.
But that was just the beginning of the failure.
Tacopina violated the basic rules of cross-examination
One of the core rules of cross-examination is to never corroborate the testimony provided by witnesses during direct testimony. This is difficult because it is difficult to remind a jury that a lawyer intends to discredit that testimony without summarizing it.
The best cross-examinations usually use the following formulation to get around this problem. [prior testimony] Upon closer inspection, that wasn’t true, was it?” The witness either defends previous testimony or appears confused. A good cross-examination provides a simple and direct allegation (expressed as a question) why the previous testimony must have been false.
Tacopina did just the opposite. He gave Carol the opportunity to repeat her first-hand testimony for a few minutes at a time. Then when he tried to debunk it, there was little substantive to convince the jury that she must have been lying. After admitting that it was surprising that she had become a rape victim minutes after joking with Trump, she asked him had nowhere to go.
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Tacopina also forgot the cardinal rule of never asking a question if you don’t know the answer.
people watching episodes of Law and order (More on this in a minute.) Attorneys know in cross-examination that they shouldn’t ask questions they don’t yet know the answers to (and have evidence to control the witness).
But Tacopina repeatedly asked questions when it was clear that he did not know what the answer would be. On the first day of cross-examination, he had a joust with Carol. The SNL skit she wrote, he apparently knew nothingOn Monday, he also did the same, asking about texting “Carol Martin” (who testifies to Carol) when the text exchange was actually “Carol Martin’s daughter Courtney.” Even after it was corrected, Tacopina repeated her claim that the message was addressed to Carol Martin.
Q: Okay. Actually, this was a text message you sent to Carol Martin, right?
Q: Is this directed at her daughter?
A: Yes. I wrote directly to her daughter.
Q: So, adjusting to my question, was it true that you wrote that this was sent to Mr. Martin’s daughter?
Tacopina lost control
Another rule of strong cross-examination is to never lose control of the court. Good lawyers get the jury’s attention and use witnesses as props. A witness can only say “yes” if the lawyer can only answer one key question.
Instead, Tacopina ceded control to Video, Entire segment (10+ minutes) CNN interview in which Carroll tells Anderson Cooper about Trump’s rape. Tacopina’s client Trump has repeatedly said he believes anyone who watches the segment will conclude that Carroll was lying. Tacopina was literally an observer while the video played.
Jury likely already decided Trump’s fate in rape case
Tacopina has been repeatedly closed by Judge Kaplan
During my more than 25 years as a trial attorney, I have appeared before Judge Kaplan on several occasions. He willingly does not torture fools. During Monday’s cross-examination, Judge Kaplan often treated Tacopina as an idiot who didn’t know the basics of the rules of evidence. made some objection.
Each time Tacopina tried to use defamatory comments or repetitions to discredit Carroll, Judge Kaplan objected or simply told Tacopina to “move on.”
In court, jurors usually look to judges for direction on how to review proceedings. Judge Kaplan gave the jury permission to ignore Tacopina’s question as inappropriate when he disrespected Tacopina’s yelling and grooming.
Tacopina has had some sporadic success
Tacopina was subjected to about five minutes of intense cross-examination. The problem is that it was hidden in about eight hours of ineffective interrogation. His best question came when he used Carroll’s own words (either from her deposition or a televised interview) to refute some of her direct testimony. For example, Carroll directly testified that her rape by Donald Trump was the reason she never had sex again.
Tacopina got Carol to admit that she previously said on a podcast: I don’t think he had the luck to meet the person he wanted again. Maybe my desires were killed in that dressing room, but if I had met someone, if I had been lucky enough to meet someone, I would have been alive again. I think that the desire has risen again. I can only assume I was unlucky. ”
Had Tacopina stayed with a similar excerpt, I believe he would have had a greater impact in undermining Carol’s credibility.
E. Gene Carroll testifies about ‘extremely painful’ Trump rape
Carroll’s redirect brought home her core claim
One of the basic court rules is that after cross-examination, the witness’ attorney has the opportunity to “rehabilitate” the witness through redirection. Carroll’s attorney, Michael Ferrera, did an admirable job. He gave Carroll the chance to directly address her cross-examination insinuation that she had raised rape allegations against Trump based on her next episode. Law and Order SVU This included a rape at Bergdorf Goodman.
Carroll testified that she had never seen the episode, hadn’t heard of it until she received the email (after filing the lawsuit), and didn’t yet know what happened in it.
More importantly, Carroll took the opportunity to articulate again that Trump raped her. Her testimony was unwavering even after two days of cross-examination.
A good cross-examination takes less than 30 minutes. The cross-examiner makes some strong points that the witness cannot deny and redirect. By that standard, Tacopina gave a very poor cross-examination. I believe that is trusted by
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