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Will he or won’t he? In every criminal trial, the smart money says no. Absolutely, absolutely not. Very few defendants take the witness stand in their own defense, and Trump, given his past performance and proclivities, should not be one of them. The man whose lawyers were afraid to let him sit down for an informal Q&A with Special Counsel Bob Mueller has no business on the witness stand. If he testifies, he will be subject to relentless and free-ranging cross-examination by a highly skilled prosecution team in Manhattan. As much as I’d like to see this, it’s a sure thing Trump’s lawyers will do everything they can to keep him off the stand.
But the decision about whether to testify belongs to the client, and Trump has proven to be a client who is uniquely incapable of listening to the advice of his lawyers. For one thing, you need to be awake for that to happen.
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We will get a little preview of the issues involved if Trump testifies on Friday, when the Judge previously indicated he will hold a pre-trial Sandoval hearing. The hearing is named after a 1974 case where New York’s highest court ruled a defendant is entitled to know what prior crimes and bad acts prosecutors can cross-examine them about before they decide whether to testify. Prosecutors can’t offer evidence of prior crimes and bad acts to show a defendant is of bad character or that because he’s done wrong in the past he must be guilty in the instant case. If they want to use evidence like this in their case, it has to be relevant to one of the issues. But they can use this evidence to impeach the credibility of the defendant as a witness if he testifies. In Sandoval, the court concluded that the judge should make a ruling, almost always in advance of trial, about the “permissible scope of … cross-examination concerning prior commission of specific criminal, vicious and immoral acts” before a defendant decides “whether to take the witness stand in his own defense.”
The Court of Appeals of New York wrote, that the “reconciliation of the interests of the People and the rights of the defendant must here as in other instances, be committed principally to the reviewable discretion of the trial court.” Under Sandoval, Judge Merchan can only be reversed on appeal if he abuses his discretion. We’ve seen him pre-trial, as we’ve discussed previously, make careful decisions that give each side its due. It seems very likely we can expect that same thing tomorrow. Judge Merchan will have to decide whether the value of the evidence to the government is outweighed by undue prejudice to the defendant. The Sandoval court put it this way, “a balance must here be struck between the probative worth of evidence of prior specific criminal, vicious or immoral acts on the issue of the defendant's credibility on the one hand, and on the other the risk of unfair prejudice to the defendant.” Typically judges rule on these issues from the bench, although the Sandoval court noted there might be rare cases where an evidentiary hearing was warranted.
Judge Merchan will take up each of the instances the DA’s office has advised him they would like to cross-examine Trump about. He must ensure that Trump is not deprived of a fair trial. Sandoval provides some guidance for doing this, although the court declined to establish precise standards. Among the questions they suggest the judge should consider are: “Will the testimony to be elicited in cross-examination have a disproportionate and improper impact on the triers of fact? Will the apprehension of its introduction undesirably deter the defendant from taking the stand and thereby deny the jury or court significant material evidence?”
Prosecutors filed their Sandoval notice on Wednesday, providing a list of “misconduct and criminal acts” committed by Trump that they want to use if he takes the witness stand at trial. They’re required to do this under New York law.
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There are 13 incidents the DA’s office wants to use. They will try to offer at least some of them as direct evidence to prove their case, but if the court rules against them on any of them, they write that they would still want to use them for cross-examination to attack Trump’s truthfulness. They identify incidents where they allege Trump testified untruthfully or acted in a deceitful manner, like inflating the value of his Trump Tower apartment and testifying untruthfully in the NY AG’s civil fraud case. They also want to use the E. Jean Carroll cases, which at first blush might look unrelated—they are civil cases involving a sexual assault that occurred decades ago. Look for prosecutors to argue they are relevant because they show yet another instance where Trump lied—the jury found against him because they believed the comments he made about Carroll weren’t true.
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So, will Trump testify? It’s unlikely that he and his lawyers will make a decision until the moment is close at hand and they have seen how the trial is going. The prospect of being cross-examined on incident after incident showing he’s a notorious liar would be enough to keep most defendants from testifying. It certainly will be in the view of his lawyers.
But we learned a fascinating tidbit about Trump’s willingness to listen to the lawyers today. A pool reporter in the courtroom noted that "when the defense is introduced to the potential jurors seated in the audience, Trump does not stand up like his legal team does to turn and face them." My friend and former Chicago federal prosecutor Renato Mariotti, now a criminal defense lawyer, pointed out that this is the most basic thing defense lawyers instruct their clients to do—they tell them to rise along with everyone else in the courtroom to show respect for the people who will decide their fate. I have never seen a defendant fail to stand up every time the jury entered or left the courtroom.
Trump continues to believe he is above the law. He continues to flout the Judge’s gag order—we’ll discuss that next Tuesday when the Judge holds a hearing on the growing list of Trump’s violations. And here, even in the small things like standing for the jury, he is incapable of feigning respect. In his mind, it’s Donald Trump versus the rule of law, and the former president seems to think he’s going to win. If he does, America truly loses.
By the end of the day today, 13 of the 18 jurors needed to complete the jury had been selected. Jury selection continues tomorrow, and we are on track for trial to begin next week.
Predictably, Trump is fundraising off of his own criminal conduct.
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Save America, indeed.
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We’re in this together,
Joyce
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