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By Giulia Carbonaro
Senior Reporter
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On Thursday, E. Jean Carroll, the writer who's suing Donald Trump for defamation and battery after accusing him of raping her in the 1990s, will be cross-examined by Trump's attorneys, in a moment that's expected to be crucial for the former president's defense.
"With Trump presumably not testifying, the whole defense comes down to the cross [examination] of Carroll, which should begin mid morning tomorrow," Harry Litman, the senior legal affairs columnist for the Los Angeles Times, wrote on Twitter.
"Look for Tacopina to take some chances that risk the ire of the judge and the alienation of the jury. He has to undermine her credibility," he said.
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Whether Trump will testify in the trial is a key factor that could change the results of the case, according to legal experts who spoke to Newsweek. Until now, Trump's attorneys have left open the possibility that the former president might testify during the New York trial, though his presence in court is anything but certain.
Newsweek has reached out to the law firm representing Trump for comment.
"The defense will aggressively attempt to undermine Ms. Carroll's credibility by attempting to expose inconsistencies in her story over the course of 30 years," attorney Jamie White, best known for his work with sexual assault victims, told Newsweek.
"This can be an effective strategy as a general matter but contemporaneous evidence in this case should overcome minor inconsistencies in her story. You do not have to be an attorney to recognize that minor recollections over the course of 30 years will be inconsistent. Plaintiffs will pound on this during closing and the jury is likely to overcome any concerns, especially in light of the fact the defense does not appear to be putting forth any substantive evidence."
White is convinced that Trump will likely not testify. "Testifying would open him to a grueling cross-examination. He would likely wither under cross-examination and seal his fate. With that said, the plaintiff's attorneys will likely point to the empty chair and say you can draw negative inferences from Mr. Trump's non-participation."
This is likely why Trump's attorneys are leaving a question mark hanging over his presence in court, former federal prosecutor Neama Rahmani, president of West Coast Trial Lawyers, told Newsweek.
"Trump's attorneys are leaving open the possibility that he will testify at the trial because they don't want to tip their hand," Rahmani said.
"What they're trying to do is make the plaintiff's lawyers have to prepare for two possibilities, the first being that Trump testifies live in court and they have to cross-examine him. The second is that he won't testify at all, and they'll have to show the deposition. They basically want Carroll's team to have to do the work to prepare even if he doesn't show up. It's total gamesmanship as in, 'Why make their job easier?'"
Legal experts agree that his lack of testimony would only be damaging for the embattled former president.
"Trump not attending can only hurt his case," Rahmani said. "Jurors see trials on television and expect the parties to be present. Jurors may think that Trump doesn't take the allegations seriously and be more inclined to rule against him for not being present. Deposition testimony is also less effective than live testimony if Trump refuses to testify at trial."
White agreed. "The defense made a perilous mistake by not having Mr. Trump testify," he said. "The jury is looking at his 'empty chair' and undoubtedly making negative inferences. Mr. Trump is not in criminal jeopardy and not defending himself is a textbook 'unforced error.'"
Los Angeles-based entertainment and corporate law attorney Tre Lovell is of the same opinion.
"Trump needs to testify in his own defense since this is a he said-she said case and the jury will only be hearing from one side at trial if he doesn't," he told Newsweek.
"If the jury believes him, he will prevail against both the sexual assault allegation and the defamation allegation. Since this case completely rests on his credibility, he needs to show up and look the jury in the eyes and convince them that E. Jean Carroll only filed this lawsuit for money and the rape never happened."
On Wednesday, 79-year-old Carroll testified in detail about the alleged rape which she said happened in a Bergdorf Goodman dressing room in the spring of 1996. For years, Trump, who has consistently denied the allegation, has accused her of lying about what happened.
"I'm here because Donald Trump raped me, and when I wrote about it, he said it didn't happen," Carroll said on Wednesday. "He lied and shattered my reputation and I'm here to try to get my life back." She said she was not "settling a political score" with her lawsuit, but a "personal score."
White thinks Carroll is likely to win her case. "The burden of proof is very low in this type of case, the plaintiff only needs to show that her claims are supported by a preponderance of the evidence," he told Newsweek.
"This is very different from the reasonable doubt standard in a criminal case. Mr. Trump is very likely to be found liable and he should dust off his checkbook."
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