Will Trump testify in the E Jean Carroll civil rape trial? He faces ‘huge’ legal risk either way, experts say

Donald Trump faces court for the first time accused of sexual assault in Manhattan on Tuesday. He staring down huge legal hurdles whether he decides to show up or not, experts tell Bevan Hurley

Bevan Hurley
Tuesday 02 May 2023 19:58 BST
Jury selection to begin in Trump sexual assault lawsuit

A jury in New York is currently hearing allegations that E Jean Carroll was raped by Donald Trump in the changing rooms of a Manhattan department store nearly three decades ago.

The former president has been accused of sexual assault by more than two dozen women, but this is the first time a jury will be asked to determine the claims in court.

Legal experts told The Independent that Mr Trump’s likely non-appearance in the civil battery and defamation trial in the US District Courthouse in lower Manhattan was a major gamble.

“The risk for Trump if he doesn’t testify is huge,” Jennifer Keller, who represented Kevin Spacey when he was found not liable of sexual battery by a jury in 2022, told The Independent.

“The jury will hear only one side of the story — the plaintiff’s. And the jurors may well conclude he’s afraid of showing up because he knows the allegations are true.”

Mr Trump, 76, was accused of sexually assaulting Ms Carroll, an author and former Elle magazine columnist, in the dressing room of the 5th Avenue Bergdorf Goodman department store in her 2019 book What Do We Need Men For? A Modest Proposal.

His strenuous denials and claims that Ms Carroll, 79, was “not his type” led her to sue the leading contender for the Republican Party presidential nomination for defamation in 2019.

When New York passed a law in 2022 which allowed sexual assault survivors one year to sue their alleged abusers, she filed a second suit for defamation and battery, alleging he had damaged her reputation, substantially harmed her professionally, and caused emotional pain. That case is currently playing out in court while her initial suit has yet to make it to trial.

Will Trump testify at the trial?

In April court filings, Mr Trump asked the judge to explain his probable absence to the jury was due to the “logistical burdens” of closing streets in his home city of New York.

Judge Lewis Kaplan denied the request days before the trial began on 25 April, saying it was premature to give the jury any reason for his non-appearance.

Ms Keller, a partner at Keller/Anderle in California, told The Independent that the risk of Mr Trump making a last-minute decision to testify was also “huge”.

“He’s an uncontrollable witness,” she said. “His past comments about how he didn’t rape Ms Carroll because she was ‘not his type’ are problematic from several angles.”

Trump is an ‘uncontrollable witness’, attorney Jennifer Keller says
Trump is an ‘uncontrollable witness’, attorney Jennifer Keller says (Associated Press)

Ms Carroll’s attorneys, led by Roberta Kaplan, planned to call several witnesses to testify about being sexually assaulted by Mr Trump, and were permitted to introduce evidence such as the Access Hollywood tapes, in which he spoke about sexually assaulting women.

“This is not a man who can withstand cross examination, with difficult questions being thrown at him and a tough trial judge who would order him to answer,” Ms Keller added. “He’s used to adoring crowds that hang on his every word with no challenge from anyone.”

Attorney Jamie White, who represented USA Gymnastics team members who were assaulted by ex-coach Larry Nasser, told The Independent thatMr Trump’s legal exposure appeared “overwhelming”.

The contemporaneous statements that Ms Carroll made to friends would likely be crucial to the jury believing her allegations, he said.

“Any time there is a ‘he said, she said,’ incident — especially in this case, we look for corroboration. So you can’t say she went back in time and bolstered her story,” he said.

Mr White, of White Law, added Mr Trump would likely have been trying to reach an 11th hour settlement to avoid the trial.

If Mr Trump does testify and make admissions of guilt, he could open himself up to a criminal liability as New York does not have a statute of limitations for first degree sexual assault, Mr White added.

“So if he gets up there and provides testimony and the DA decides he may have committed a criminal sexual act in the first degree, criminal charges could be brought.”

E Jean Carroll’s contemporaneous statements to friends could prove crucial, attorney Jamie White believes
E Jean Carroll’s contemporaneous statements to friends could prove crucial, attorney Jamie White believes ( Associated Press)

Los Angeles entertainment and libel law attorney Tre Lovell told The Independent that jury selection would be critical to Mr Trump’s chances.

“It’s getting to the point where he is so disliked in New York that there is an issue,” Mr Lovell said.

“They’ll just have to try extra hard to weed out those jurors who will be biased and it’s not impossible, but it doesn’t bode well for Trump.”

Ms Keller added that testimony or no testimony, Mr Trump is looking at a difficult trial.

Still, she has faith in the jury system.

“I believe the jurors will make their decision based on the evidence before them and tune out the media noise about other allegations.”

Mr Trump’s previous attacks on judges and prosecutors, extensive pre-trial publicity, and the “unprecedented circumstances in which the trial will take place” has led Judge Kaplan to issue an order that jurors remain anonymous.

There was a “very strong risk that jurors will fear harassment, unwanted invasions of their privacy”, he wrote.

Each day of the trial, jurors have been transported from an undisclosed location to and from the court accompanied by US Marshals.

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