Will Evidence of Trump’s Propensities Fill the Forensic Void in Carroll’s Rape Allegation?

Last Thursday, recording our podcast, Rich and I delved deep into former president Donald Trump’s civil trial on E. Jean Carroll’s allegations of rape (the tort of battery in the civil context) and defamation. The same day, we also published my lengthy column, laying out Carroll’s story, relating some interesting twists and turns about the case, and noting the fire Trump is playing with by poking Judge Lewis A. Kaplan, who is presiding in Manhattan federal court.

The trial, before a jury of six men and three women (you don’t need twelve in a civil case) was in recess on Friday. It resumes its most important phase today: Trump lawyer Joe Tacopina’s cross-examination of Carroll — who is 79 and was 52 when the alleged rape occurred at the luxury midtown department store, Bergdorf Goodman.

Even accounting for the fact that media coverage tends to be hostile to Trump, Carroll seems to be holding up well. Tacopina is a bulldog, and that can be very effective for cross-examination in the right circumstances. Nevertheless, especially in this era, when #MeToo sympathies still run high, it would be tough for even the most skilled questioner to impeach an articulate, elderly woman who claims to have been traumatized by a brutal act that, even if you doubt Trump committed it, you wouldn’t bet the farm that he didn’t.

Trump’s position is that Carroll has made up the whole thing. Usually, when that’s the theory, the litigant assumes that the jury will be offended by the lying claimant and will thus be content to have her subjected to withering, belittling interrogation.