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.
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.
Tacopina 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.
Trump’s Lawyers Go After E. Jean Carroll for ‘Scheme’…
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