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

L ast 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. But juries can be repulsed if a lawyer, who is trained to do this sort of thing, is perceived as bullying an older, sympathetic person. It’s a hard balance to strike: A cross-examiner in these circumstances must be stern but humane; yet, if that humaneness comes across as too sympathetic, it could lead the jury to think the cross-examiner actually believes the claimant and is just going through the motions.

In that vein, I want to discuss something we grappled with on the podcast: propensity evidence.

There are two reasons that Carroll’s credibility is so central to the outcome of the case. First, there is no forensic evidence to support her claim. The sexual assault allegedly happened 23 years before Carroll went public about it in 2019 (to the point that she can’t even pinpoint a date, or even a month, when it occurred). Consequently, there was no timely police or medical investigation. After she went public, her lawyers did have testing done on the black coat dress she says she was wearing at the time. But it was unlikely that this testing would yield anything probative, and it didn’t. Carroll had not laundered the dress, but neither had she wrapped it in plastic or done anything similar to try to preserve its 1996 condition — she says it just hung in her closet, behind a raincoat. I am sorry to be graphic about this, but it is unavoidable: Carroll has not alleged that Trump ejaculated — she says he painfully penetrated her (first digitally) and she fought him off, pushing him out and off of her after about two minutes, then fled. Because she did not seek medical attention, there was no compiling of any possible genetic evidence, or other physical evidence that she’d been assaulted.

In other words, the main evidence in the case is her credibility or lack thereof.

Second, because it’s a civil case, the high criminal beyond a reasonable doubt burden of proof does not apply. The standard is preponderance of the evidence. If there had been a criminal investigation, prosecutors would have been loath to file charges even if they believed Carroll and were impressed by her contemporaneous reports of an attack to two friends (who back her account of those reports). The lack of physical evidence, Carroll’s inability to say when the attack occurred, and some unlikely facts (a sexual assault in a department-store dressing room where there might have been any number of witnesses — yet there are none), would convince a prosecutor there was little chance that a twelve-person jury would unanimously find proof beyond a reasonable doubt to convict Trump. Even jurors who believed Carroll could rationally harbor reasonable doubt.

By contrast, in a civil case, the question is really whether the jury believes the rape probably did happen — and here, the civil jury is 25 percent smaller than a criminal jury, so there is less chance of naysayers. (Civil juries in federal cases must have at least six members, and generally — as in the Carroll/Trump case — must reach a unanimous verdict.)

This brings us to propensity evidence.

As a general rule (but, as we’ll see, with several exceptions), the law precludes a finding of guilt (in criminal cases) or liability (in civil cases) on the rationale that because the defendant has committed other bad acts on other occasions, he must have committed the bad act that is charged in the case. As the relevant federal evidence provision (Rule 404(b)) puts it: “Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”

Nevertheless, this stricture has been loosened in the last 20 years. Clearly, much of this owes to some notorious child-molestation cases and to the Catholic Church’s sex scandal, in which it emerged that many children and young adults were sexually abused by priests. In fact, perhaps the most notorious offender, the now-defrocked former cardinal Theodore McCarrick, is back in the news due to yet another abuse allegation, this one allegedly occurring 46 years ago.

As Judge Kaplan explained in one pretrial ruling, “the purpose of these amendments to the Federal Rules of Evidence was to make it easier to convict and hold civilly liable alleged perpetrators” of sexual assault. In essence, academic, judicial, and congressional studies of sexual abuse concluded that sexual predators are a different breed of criminal. It was not typical for an offender to commit, say, just a single career incident of rape or child molestation. Such offenders recidivate. Kaplan went on to quote an academic study by attorney David J. Karp (previously relied on by the Second Circuit appellate court) to explain why the rules were changed:

A person with a history of rape or child molestation . . . provides evidence that he has the combination of aggressive and sexual impulses that motivates the commission of such crimes, that he lacks effective inhibitions against acting on these impulses, and that the risks involved do not deter him. A charge of rape or child molestation has greater plausibility against a person with such a background.

For what it’s worth, having dealt with serious criminals over decades in law enforcement, this supposed distinction between sex offenders and other sociopaths has never bowled me over. Don’t get me wrong: I believe Kaplan and Karp are right about sex offenders. I just think other criminals are hard-wired to offend, too. My quarrel is not with allowing propensity evidence in sex-abuse cases; it is with the presumption against propensity evidence in other cases.

Obviously, the burden of proof in litigation should not be undermined. If the government is going to convict someone in a criminal case, we want it to be because prosecutors show proof beyond a reasonable doubt on every essential element of the crime charged in the case. Propensity evidence is thus promiscuous: In a weak case, the government may not have established one or more elements of the charged offense, yet the jury might be persuaded to convict if criminal propensity — usually, the commission of uncharged similar crimes — is shown. Such a verdict may be dubious (and if so, one would hope a judge would dismiss the case rather than submit it to the jury), but it would not be irrational. To the contrary, the same reasoning impels the government to do extensive background checks on prospective hires and private businesses to require employment references. Propensity is why you want to know the histories of the kids your children hang around with, and especially the people they date.

That is why, the anti-propensity presumption notwithstanding, there has never been a categorical ban on such evidence. The same Rule 404(b) that prohibits evidence of similar bad acts for purposes of showing propensity has a loophole that many a prosecutor has driven a truck through: Such “evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Is there really much, if any, distinction in this difference? From my standpoint, there is no daylight between proof of uncharged bad acts to show propensity to offend (forbidden) and, say, proof of uncharged bad acts to show that the crime charged was not committed by mistake (permitted). Mustn’t it be the propensity inferred from uncharged bad acts that convinces us the charged act was committed on purpose?

In any event, the ambivalence the law has about propensity evidence, and the fact that we’ve rationalized its admission to prove an array of things (motive, opportunity, plan, etc.) we’d prefer not to think of as propensity, has made it a natural to fill the forensic void in sexual-assault cases. What makes sexual assault different from other crimes is that (a) it has gotten a lot more attention thanks to the church scandal and #MeToo, and (b) it is unique in that fear, shame, and embarrassment so often cause the crime not to be discovered until long after it is too late for useful forensic investigation — most crimes are discovered and investigated promptly, even if they are not solved. That is, the academy says the difference justifying propensity evidence is that there is something peculiar about the sex offender; I disagree, believing the difference is the circumstances of the sex crime (the typical lack of forensic evidence) — the offender is just another kind of recidivist sociopath.

As Judge Kaplan concluded in applying the rules of evidence, in a civil case “based on a party’s alleged sexual assault,” evidence that the defendant “committed any other sexual assault” is admissible. As a result, as I explained in the above-referenced column, Carroll is being permitted (a) to call two women — Jessica Leeds and Natasha Stoynoff — who allege that Trump sexually assaulted them (i.e., forcibly, though not to the extent of rape), and (b) to present the Access Hollywood tape, in which Trump brags about being sexually aggressive (i.e., about habitually forcing himself on women without consent and expecting to be indulged because of his fame).

Again, this is not a criminal case. Let’s say the jury believes Carroll is probably telling the truth, despite the lack of supporting physical evidence. Let’s say the jury believes Carroll contemporaneously reported what happened to two corroborating witnesses, who seem credible and who would be unlikely to risk a perjury charge by scheming with Carroll to fabricate these contemporaneous reports. That is, let’s say, once Carroll and the two contemporaneous-report witnesses are done testifying, the jury is persuaded that a rape may well have happened, even if there are reasons for doubt. If that is the state of play, the propensity evidence — the two other alleged victims, along with Trump’s own words on the Access Hollywood tape — is apt to have a powerful impact. It could be the difference in the case.