The Results of the Sandoval Hearing: Cross-Examining Trump?

JOYCE VANCE APR 22

Quick Programming Note: To avoid another monster post like last night’s, I’ll try to break it up and address discrete issues, like the Judge’s ruling here, as stand-alones where possible, so you can get your trial updates in bite-sized pieces. This is a quick note closing the loop on Judge Merchan’s Sandoval rulings. Tonight we’ll move on to opening statements.

On Friday we talked about the Sandoval hearing, which involves the Judge’s rulings on what prior crimes and bad acts Trump can be cross-examined about if (and that’s a big “if”) he takes the witness stand. This morning, as promised, Judge Merchan issued his decisions before opening statements began.

We reviewed the prosecution’s requests (find the chart showing all of them here) last week. They wanted permission to ask Trump about 13 incidents related to six different cases, including the New York AG’s civil fraud case where five of the requests came from. Judge Merchan ruled that if Trump takes the stand, prosecutors can ask him about six of those incidents, coming from four separate proceedings, including the two cases brought by E. Jean Carroll:

• The New York AG Civil Fraud Case:

The Court found Trump falsified business records.

Trump violated the gag order by failing to remove an untrue post about the Judge’s clerk and was fined.

Trump continued to violate the gag order by continually attacking the clerk and was subjected to increasing fines.

• The E. Jean Carroll Defamation Cases:

Trump defamed E. Jean Carroll by making false statement

The false statements were made with actual malice—Trump knew they were false and made them anyway

• The New York Attorney General’s successful case against the Trump Foundation, which resulted in its dissolution and a finding, the Foundation engaged in repeated and willful self-dealing, like the purchase of an expensive six-foot-tall portrait of Trump. Interesting fact: Michael Colangelo, who opened for the people today, ran this case against Trump in a prior position with the New York AG’s office.

This would be enough to keep most defendants off the stand. Cross-examination usually takes the form of yes or no questions, and the prosecution will ask the Judge to direct the witness to answer the question without more—no spouting off. Trump won’t be able to throw around his usual spate of accusations. He won’t be able to accuse prosecutors of being out to get him. The prosecution will ask, for instance, “did a jury conclude you made false statements about E. Jean Carroll and that you knew they were false and made them anyway?” Trump will have to answer, “Yes.” If he doesn’t, the Judge will instruct the jury to ignore any stray remarks and tell Trump to answer. You can imagine this rapidly going downhill.

Trump’s lawyers really don’t want him on the stand. There are a number of obvious reasons—his tendency to lie and make mistakes like identifying E. Jean Carroll as his second wife Marla Maples after saying she wasn’t his type. But facing cross-examination over his prior lies and fraudulent behavior will be chief among them.

They have a good out. Trump’s legal team can push hard to keep him off, telling him that their strongest argument is that the government failed to meet its burden of proving Trump committed crimes beyond a reasonable doubt. If Trump takes that advice, it gives him the public out of saying the government’s case was so weak it wasn’t even necessary for him to take the stand. Look for him to do that when we get to that point!

A couple of notable exclusions in the Judge’s ruling. Prosecutors can’t ask Trump about the jury verdict in the E. Jean Carroll case that concluded he had sexually assaulted her. They can’t go into Trump’s lawsuit against Hilary Clinton, where he was sanctioned for bringing a “completely frivolous” case and the Judge described him as a sophisticated litigant. Nor can prosecutors inquire about the successful criminal case against the Trump Organization that did not include Trump himself.

During the Sandoval hearing on Friday, lead prosecutor Matthew Colangelo argued to the Judge that, “There is a particular need for the people to introduce evidence to assess the defendant’s credibility,” if Trump testifies. He told the court the people would “make witness credibility the centerpiece for the trial” if he did.

Here’s a rare prediction from me: If Trump takes the witness stand it will be gory. And it will end with a quick vote to convict from the jury. I don’t think he will, but with Trump, one can never be certain.

We’re in this together,

Joyce

Prosecutors deliver first MAJOR blow to Trump at trial

 

Brian Tyler Cohen

The Legal Breakdown with BTC & Glenn Kirschner

The Legal Breakdown episode 262: @GlennKirschner2 discusses prosecutors' delivering a bruising Sandoval hearing against Trump. Subscribe for more and follow me here: YouTube (español):    / @briantylercohenespanol   Apple Podcasts: https://apple.co/36UvEHs Spotify: https://open.spotify.com/show/0066rKC... Twitter:   / briantylercohen   Instagram:   / briantylercohen   Facebook:   / briantylercohen   Patreon:   / briantylercohen   Newsletter: https://www.briantylercohen.com/sign-up/ TikTok:   / briantylercohen   Suit by JB Clothiers: https://jbclothiers.com/btc

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Trump: Will He or Won't He?

JOYCE VANCE APR 19

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.

This amazing illustration is used with the permission of the artist, Jennifer Vallez. If you’re as entranced by her work as I am, give her a follow on Instagram at @sophieandlili or visit her website at www.jennifervallez.com

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.

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.

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.

Save America, indeed.

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We’re in this together,

Joyce