Donald Trump Lawyer Joe Tacopinas Terrible Cross-Examination in E. Jean Carroll Trial Gets Worse

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Over a full day of cross-examination by E. Jean Carroll, Joe Tacopina, Donald Trumps lead trial lawyer, gave an object lesson in how NOT to cross-examine in federal court.

The first day of cross-examination was bad. The second day was even worse. If a jury believed E. Jean Carrolls direct testimony that she was raped by Donald Trump, Tacopina gave that jury precious little reason to reconsider that conclusion.

Before court began Monday morning, Tacopina filed an 18-page motion for a mistrial, arguing that Judge Lewis Kaplan presiding over the case violated Trump’s rights by repeatedly sentencing him. against Tacopina pre-trial and on the first day of cross-examination.

Tacopina acted as if Judge Kaplan was a batter who dug too close to home plate, and he could use the motion as a brush back pitch to get Judge Kaplan to give Tacopina more rest. The motion literally asked Judge Kaplan to declare a mistrial or reverse almost all of his evidentiary rulings.

This movement never had a chance to succeed. At best, it was performatively designed to give Tacopina an opportunity to show Trump that she was trying her best to get Judge Kaplan to reverse himself. If Tacopina really believes the motion has any hope for success, he’s not nearly as heavy a trial attorney as I thought.

Predictably, Judge Kaplan ruled against the motion in one word: Denied. During the remaining days of the trial, Judge Kaplan made comments emphasizing that he was not pleased with the motion.

But that’s just the beginning of the mistakes.

Joe Tacopina, former US President Donald Trump’s lawyer, questioned former Elle magazine advice columnist E. Jean Carroll before US District Judge Lewis Kaplan.

Jane Rosenberg/Reuters

Tacopina violated the Cardinal Rules Of Cross-Examination

One of the basic rules of cross-examination is to never reinforce the testimony given by the witness during direct testimony. This is difficult, because it is a challenge to remind jurors of the testimony that the attorney intends to disparage without recapitulating that testimony.

The best cross-examination usually avoids this problem by using this formulation: When you say [prior testimony] on direct examination, that’s not the truth, is it? The witness will either defend the previous testimony or appear confused. Good cross-examination will state, in simple and direct statements (referred to as questions), why the prior testimony must be false.

Tacopina did the opposite. He took a few minutes at a time giving Carroll a chance to repeat his direct testimony. When he tried to debunk it, he rarely came up with anything to convince the jury that he was lying. Instead, he repeatedly tried to get Carroll to admit that his testimony was implausible or unusual. Once he admitted that he found it amazing that he went from making fun of Trump to being a rape victim in a matter of minutes, he had nowhere to go.

Tacopina also forgot the cardinal rule of not asking questions where you don’t know the answer.

Anyone who watches an episode of Law & Order (more on that in a moment) knows that a lawyer should never ask a question on cross-examination to which they don’t already know the answer (and have evidence to control the witness).

However, Tacopina kept asking questions to which she clearly had no idea what the answer would be. On the first day of cross-examination, he argued with Carroll about an SNL skit he wrote, which he clearly knew nothing about. On Monday, he went even further, asking about a text message with Carol Martin (who will testify for Carroll), when the text exchange was actually with Carol Martin’s daughter, Courtney. Although he was corrected, Tacopina repeated his assertion that the message was from Carol Martin.

Q: Okay. This, in fact, was a text message that you sent to Carol Martin, correct, and then forwarded to her daughter?

A: No.

Q: It was directed at his daughter?

A: Yes. I wrote directly to his daughter.

Q: So, with that adjustment in my question, that it was sent to Ms. Martins daughter, is what you wrote true?

A: Yes.

Tacopina Lost Control

Another rule for strong cross-examination is to never lose control of the courtroom. A good lawyer will command the jury’s attention, using the witness as a prop who can only say yes when the lawyer ends a leading question with only one possible answer.

Instead, Tacopina handed over control to a video, playing an entire segment (over 10 minutes) of a CNN interview in which Carroll spoke to Anderson Cooper about Trump’s rape. Tacopinas’ client, Trump, repeatedly stated that he believed anyone watching the segment would conclude that Carroll was lying. Instead, Tacopina gave the jury a chance to see Carroll again vividly portray being sexually assaulted by Trump. As the video plays, Tacopina literally becomes an observer.

Tacopina Repeatedly Shut Down By Judge Kaplan

During my more than 25 years as a trial attorney, I have appeared before Judge Kaplan several times. He does not like fools. During Monday’s cross-examination, Judge Kaplan often treated Tacopina like an idiot who didn’t know the basics of the rules of evidence. He got a few objections to those lines of questions, just as Tacopina thought he was about to score.

Almost every time Tacopina tried to use derogatory comments or repetitions to undermine Carrolls credibility, Judge Kaplan agreed with the objection or simply told Tacopina to comply.

In the courtroom, jurors usually look to the judge for guidance on how to handle the proceedings. When Judge Kaplan showed so much disdain for Tacopinas blustering and gloating, he gave jurors permission to dismiss Tacopinas’ questions as improper.

Tacopina Has Had Some Scattered Successes

Tacopina had about five minutes of vigorous cross-examination. The problem is that it’s hidden in nearly eight hours of ineffective questioning. His best questions were when he used Carrolls own words (either from depositions or television interviews) to refute some of his direct testimony. For example, Carroll directly testified that Donald Trump’s rape was the reason he never had sex again.

Tacopina got Carroll to admit that he once said on a podcast: Well, after the episode with the Bergdorfs, I never had sex again, but I don’t think it was because of him. I guess I just don’t have the luck to meet that person to lust again. I think maybe in that dressing room my lust for lust died, but I think if I met someone, I had the luck to meet someone, I think I was revived. I think the passion is simmering again. I just think I’m unlucky.

If Tacopina had limited himself to similar passages, I believe he would have had a greater effect in reducing Carrolls credibility.

Carroll’s Re-Direct drives home His Central Allegation

One of the basic rules in the trial is that after cross-examination, the witness’s attorney has the opportunity to rehabilitate the witness by redirecting. The Carrolls’ attorney, Michael Ferrera, did an amazing job. He gave Carroll a chance to directly address the insinuation on cross-examination that he conjured up a rape charge against Trump based on a Law & Order SVU episode involving a rape at Bergdorf Goodman.

Carroll testified that he never saw that episode or heard about it until he received an email (after he filed suit) telling him about it, and he still doesn’t know what happened to that episode.

More importantly, Carroll had the opportunity to once again clearly say that Trump raped her. She testified again that she still feels pain from when Trump sexually assaulted her. His testimony was unwavering, even after two days of cross-examination.

A good cross-examination takes less than 30 minutes. The cross-examiner makes some powerful points, which the witness cannot deny and redirect cannot be rehabilitated. To that standard, Tacopina conducted a very difficult cross-examination. Whatever credibility the jurors thought Carroll had after he finished his direct testimony, they likely still believe he has it now.

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