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The E. Jean Carroll witness decision that could haunt Donald Trump

Should the jury be entitled to hear from any of Trump’s other accusers? That was the weighty question Judge Lewis A. Kaplan had to decide.

On Thursday, E. Jean Carroll officially rested her case. This means a jury in New York City will soon be asked to decide whether Donald Trump raped, and then later defamed, the former magazine columnist and media personality. The general public will draw its own conclusions about the civil lawsuit, a remarkable event not only because Trump is the former president of the United States, but also because he is a presidential candidate once again. But because jurors are instructed to reach their decision only on the evidence they see or hear in the trial, the decisions U.S. District Judge Lewis A. Kaplan makes about what evidence comes in — and what does not — are of enormous importance.

This week, the jury heard from four key witnesses likely to be top of mind for the jurors when they begin their deliberations.

This week, the jury heard from four key witnesses likely to be top of mind for the jurors when they begin their deliberations. Two women — Lisa Birnbach and Carol Martin — testified that Carroll talked to them shortly after the attack in 1996 and that her account back then was consistent with her testimony at trial. This evidence is important corroboration of Carroll’s testimony — that is, it was introduced to show that the rape allegation was not a recent fabrication. (Trump has denied Carroll's claims, calling them a “scam.”)

But Judge Kaplan’s more fraught decision was whether to allow Carroll’s legal team to introduce evidence from two other witnesses: Jessica Leeds and Natasha Stoynoff.

Dozens of women have publicly accused Trump of sexual misconduct of some kind, up to and including assault. Trump was never indicted on criminal charges for any of these alleged acts, and the statute of limitations has expired on most of them. (He also claims he has never forced himself on any woman.) The battery (i.e., rape) claims that were in Carroll’s lawsuit were made possible only by a temporary 2022 law that extended the statute of limitations for sexual assault lawsuits. In that sense, it is an alternative means of holding Trump accountable outside a criminal courtroom. Given the unusual situation, should the jury be entitled to hear from any of Trump’s other accusers? That was the weighty question Kaplan had to decide.

He did so in a 23-page opinion. Kaplan ruled that Leeds, who said Trump sexually attacked her when she was seated next to him on a plane, and Stoynoff, a reporter for People magazine who said Trump sexually assaulted her while she was at Mar-a-Lago covering a story, should be allowed to testify.

So how did events unrelated to the facts in Carroll’s complaint make their way to the jury? Fans of courtroom TV dramas may be wondering, for example, about the probative value of such evidence. Indeed, evidence that a defendant has a “bad character” or might have a “propensity” to commit an offense usually is not permitted at trial, the exception being evidence offered to establish specific aspects of the act, such as a defendant’s motive, intent, preparation or plan. And even then, judges are wary of allowing in too much “other act” evidence for fear that the weight of such evidence would end up being “substantially more prejudicial than probative” and be grounds for a reversal on appeal. 

But in this case, Carroll’s lawyers had an advantage. This is a civil case alleging rape, and a federal rule of evidence, passed in 1994, explicitly says that “in a civil case alleging sexual assault, the court may admit evidence that the party committed any other sexual assault.”

The late GOP Sen. Bob Dole, a co-sponsor, justified the federal evidence rule by quoting the words of a former Justice Department official: “The past conduct” of “[a] person with a history of rape ... 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.” In 2017, the 2nd U.S. Circuit Court of Appeals, which would hear any appeal coming from this trial, ruled in another case that the evidence rule is constitutional. Three other courts of appeals have ruled the same way.

Despite these precedents, Judge Kaplan’s opinion allowing testimony from other women who say they were assaulted is not exactly bulletproof. An appeals court could still find that Kaplan did not appropriately weight the probative value of Leeds’ and Staynoff’s testimony against the prejudicial nature of their evidence. But, given that only two women out of many testified to Trump’s similar sexual aggressions in the past and given Kaplan’s carefully written analysis of the probative nature of the evidence, it is likely that his decision will hold up if Trump is found liable and there is an appeal. 

And that also means, at least for now, that E. Jean Carroll does not stand alone.