UNBIASED - Special Report: E. Jean Carroll v. Donald J. Trump

Episode Date: May 10, 2023

In this episode, listen to Jordan tell you everything you need to know about E. Jean Carroll's case against Donald J. Trump. Jordan tells you in a way no one else will - nonpartisan and focused on the facts. Here's what you can expect:1. Background of the Case (1:23)2. Evidence Presented at Trial (5:56)3. Hearsay Explained; Inadmissible Evidence (8:39)4. Burdens of Proof (15:31)5. The Jury (17:13)6. Elements of Defamation and Battery; Sexual Abuse vs. Rape (19:01)7. Appeal Expected (23:16)IF YOU ENJOYED THIS EPISODE, PLEASE LEAVE ME A REVIEW! It is truly so appreciated! Follow Jordan on Instagram and TikTok. Subscribe to Jordan on YouTube. All sources can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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You are listening to the Jordan Is My Lawyer podcast, your favorite source of unbiased news and legal analysis. Enjoy the show. Welcome back to the Jordan is my lawyer podcast. This is a special report on the battery defamation case against Donald Trump brought by E. Jean Carroll. On May 9th, yesterday, the jury returned a verdict in favor of E. Jean Carroll, finding that Donald Trump was liable for both battery and defamation, specifically sexual abuse and defamation. So let's get into it. We're going to cover the background of the case, trial evidence, inadmissible evidence. We're going

to talk about, you know, the burdens of proof, the verdict. Will this be appealed? We're going to cover all the bases. As always, you guys know the drill. This is unbiased, just the facts, no political motives here. I just want to educate you guys on what's going on so you can fully understand this case and what this case means for Donald Trump and his presidential run. So the background of this case, let's talk about it. So this stems from a sexual assault that happened sometime between the spring of 1995, or sorry, the fall of 1995 and the spring of 1996. Now, the one fact or one of the facts that was kind of working in favor of Donald Trump, that didn't end up working in his favor, but she couldn't remember what day it happened on. So she said she remembers being

in Bergdorf Goodman after work. It was sometime between the fall of 95 and the spring of 96. And she said she was in Bergdorf and she was leaving as Donald Trump was walking in and they ran into each other by the front door and or by one of the doors. And Donald Trump says, you're the advice lady because she had had a name for herself in New York. She was a columnist and she was on a TV show. And so he recognized her and said, you're the advice lady. And she said, you're the real estate tycoon. And so he proceeds to ask her for her help in finding a gift for a girl. So they start walking around Bergdorf and they're looking at hats and they're looking at bathing suits and then Donald Trump suggests looking at lingerie.

So they go upstairs to the lingerie department and there's no one around. There's a counter nearby that has some boxes on it and then this sheer see-through bodysuit. And they start joking around with each other, telling each other to try it on. He's telling her to try it on. She's telling him to try it on. And they eventually make their way to the dressing room where Donald Trump, according to E. Jean Carroll, pushes her up against the wall, bangs her head against the wall, and forces himself on her. She realized when he put his shoulder into her and kind of pinned her up against the wall that he, you know, was going to sexually assault her. And she tried getting out of the situation,

and she did eventually get out of the situation. But she says by the time she got herself out of it, he had already penetrated her. So she says that he raped her. She gets out. She goes on to Fifth Avenue. She calls two of her friends. Again, this is according to the complaint. So all of these facts that I'm telling you are according to what she alleges happens. So she calls her two friends. She tells them what happens. One of the friends tells her she was raped. She needs to go to the police. The other friend tells her to stay quiet, don't say anything. She ultimately decides to stay quiet. She stays quiet for 27 years-ish. And then in 2019, when the Me Too movement started and Harvey Weinstein was getting all this attention, she decides to come forward. So she comes forward with her story. Following the publishing of her story in 2019, Donald Trump made various statements,

but in one statement specifically in October of 2019, he says that he doesn't know who this woman is. It's a complete con job. It's a hoax. She's making it all up. He's never seen her before, et cetera, et cetera. That statement is what caused the defamation claim. So at this point, the statute of limitations had run. She did not have a case against him for the sexual assault, but she could bring a civil defamation claim against him. So that's what she does. In November 2019, a month after he makes the statement, she brings a defamation suit in New York.

And then in November 2022, so three years later, a second case is brought for battery, and the cases are consolidated. Now, you're sitting here saying, well, you just said the statute of limitations had run, so how did she do this? Coincidentally, in 2021, the governor of New York enacts the Adult Survivors Act. And what this law says is that adult victims could sue their abusers, their sexual assault abusers, where the statute of limitations had expired. And it opened up this one-year window. So from November 24th, 2022 until November 24th, 2023, an adult victim, meaning someone who was sexually assaulted or abused over the age of 18, could bring a civil lawsuit regardless of when

the sexual assault took place. So Carroll adds this battery claim based on this law. And the trial goes forward. It started on April 25th, just a few weeks ago. And ultimately, he was found liable of defamation and sexual abuse. Now, one thing to note is that battery is a general term in New York. It covers a bunch of different crimes, including sex crimes. So we're going to talk about that and why he was found liable for sexual abuse and not rape, specifically sexual abuse. So we'll get into that. But first, let's talk about the evidence that was presented at trial.

So this wasn't your typical battery case just because so many years had elapsed, that there wasn't any physical evidence, there was no DNA evidence, there was no video footage, nothing like that. So it basically came down to a he said, she said, especially for the defamation claim, because that is just, do you think he's lying or do you think she's lying? Do you think he's telling the truth? Do you think she's telling the truth? Depending on who you think is telling the truth, that's ultimately going to decide the defamation claim because if they believed Donald Trump, then he wouldn't have been liable for defamation, right? But because they believed Carol, she prevailed on that claim. So again, this case came down to who the jury found credible. Keep in mind that Trump's team did not present any

witnesses. They were going to have a psychiatrist testify, but the psychiatrist was unavailable for court for some reason, so they didn't end up doing that. Trump himself didn't testify, so they didn't present any witnesses. Trump's attorney said, you know, how do you defend a negative? How do you defend something that didn't happen? So they didn't really present any sort of defense. Carol's team, on the other hand, presented the following. So Carol testified herself for two full days recounting what happened. She never wavered. She was very consistent in her story. They also had the testimony of two friends that she told following the incident. So if you remember when I was telling you about the background of the case, I said when she walked out onto Fifth Avenue, she called two of her friends. One said not say anything. One said go to the police. And those were the two friends that

she had testified following the incident. She also had a former coworker testify that knew of the incident. She had two other women testify who had allegedly been abused by Donald Trump in the same manner. She had a deposition tape where Donald Trump mistook her for his ex-wife, Marla. And the reason that this helped Carol's case is because Trump, when he denied the accusations, said that, you know, she wasn't his type. Well, then Carol's attorneys come back and they say, well, you mistook her for your ex-wife, who is presumably your type, correct? And so that was beneficial to Carol's case in that sense. It kind of discredited Trump, if you will. And then they also had the Access Hollywood tape that has obviously become very well known. It's

the tape where Donald Trump is saying, grab her by the pussy. So they had that for their defense, claiming that that tape was essentially an admission of assaults that he had committed in the past. So that was Carol's case in a nutshell. Now, you have a lot of people saying that Carol's case was based on hearsay. I'm not going to get into a full analysis of hearsay because when I tell you hearsay was the most complex concept I learned in law school, there is so much to learn between hearsay, hearsay within hearsay, hearsay exceptions, how to admit evidence that is considered hearsay. It's so complex.

So I will tell you the basics of hearsay it's so complex so i will tell you the basics of hearsay and tell you i'll give you an example of you know testimony that was allowed in because it fell under a hearsay exception but just to give you kind of a broad understanding of what hearsay is because i think a lot of people hear hearsay and then they just run with it not knowing that there's a ton of exceptions to hearsay. So hearsay is an out-of-court statement being used to prove the truth of the matter asserted. So if we put this another way, it's a statement made by someone outside of the courtroom, so an unsworn statement, that is being brought in to prove the substance of that statement is truthful. So the whole point of not allowing this is it obviously lacks credibility.

It's not a sworn statement that was made within the court. So now you have to jump through hoops to prove credibility, right? So let's say you're talking to a friend and this friend tells you that he saw Steve walk into a liquor store yesterday. Well, months go by and Steve ends up on trial for robbing that liquor store. And now you're called to testify about what you know. And what you know is that your friend told you Steve went to the liquor store. But that's hearsay because it's an out-of-court statement made by your friend and you're testifying about it to prove the truth of

the fact that Steve went to the liquor store on that particular day. So in order for that statement to be admissible, it has to fall under an exception because hearsay is inadmissible. There's tons of exceptions. So there's present sense impression, excited utterance, then existing mental, emotional, or physical condition, recorded recollection, attacking or supporting the declarant. There are so many exceptions to hearsay, and if you can prove that it falls under one of these exceptions, it's allowed in. So just to give you an example, excited utterance would be like if something happens, you witness something crazy and you say, oh my gosh, so-and-so just

stabbed him. That's an excited utterance that may be admissible even though it's hearsay. So to give you an example in the context of this case, one of the witnesses, her name was Lisa Birnbaum, and she was one of the friends that Carol had called immediately after the assault. And technically, some of the things that she testified to was hearsay but some of it was allowed in because it rebutted an assertion that donald trump had made where he said carol made up this story you know recently this was a new fabrication

but lisa's testimony was able to come in because it fell under an exception where she was proving one of donald trump's assertions to be incorrect So all of this to say is when you just say, you know, when you hear people say, oh, this is hearsay, this is hearsay, this is hearsay. Yeah, sure. It may be hearsay, but there are exceptions. And it's really up to the judge to determine if these statements fall under these exceptions and therefore can come in. So that's a little bit about hearsay. Now, let's get into the evidence that wasn't allowed in this case. And specifically, I'm going to focus on two things, the dress and the funding. So the dress that Carol says she wore on the day of the assault was this black dress that had stains on it. And she had asked for

Trump's DNA years ago when she first filed this lawsuit to compare it with had stains on it. And she had asked for Trump's DNA years ago when she first filed this lawsuit to compare it with the stains on the dress because she had had a DNA analysis conducted on the dress. And the report concluded that the dress did contain traces of an unknown man's DNA. So she had been asking for Trump's DNA, Trump's attorneys and Trump himself, obviously initially refused to provide it. But then in February of this year, so years after the initial request was made, Trump and his attorneys said that they would provide the DNA if Carroll's lawyers agreed to turn over a missing appendix from the DNA report.

So this DNA report was missing a page. And they said, if you want to give us this page, we'll give you the evidence. But, you know, it's going to be a tradeoff situation. Carroll's attorneys rejected this offer. So did the judge. The judge actually rejected it because, I mean, at this point, trial was starting in two months. And he said, one, this is going to delay the trial. Two, the DNA report didn't find any evidence of sperm cells. And three, even if it was a positive match, the only thing it would prove was that there was an encounter between Trump and Carol on a day that she wore the dress. It

wouldn't necessarily prove or disprove rape, which is what Carol is alleging took place. So really, there's just no point in it. So the dress actually wasn't allowed to be discussed at all. In fact, on one of the days of the trial, Trump's attorney mentioned the dress and the trial ended for the day because the judge was like, no, we're not discussing this at all. So that's the dress that was not allowed into trial. Then you also have the funding. So this is something else that wasn't allowed to be discussed. And it was the funding of Carol's lawsuit by a man named Reid Hoffman. He is the co-founder of LinkedIn.

He also happens to be one of the largest donors to the Democratic Party. And the reason that this was an issue is because in a deposition that Carol did in October, she was asked if there was any funding behind her lawsuit, and she said no. Well, it later came to light just a few weeks before the trial was set to start that she did in fact have funding and not only did she have funding but it was from one of the largest donors of the democratic party now clearly trump being a republican there's a conflict there but the judge barred the admission of this evidence because he said um you know there's virtually nothing there as to credibility.

This isn't going to knock Carol's credibility at all. And even if there was something there that would, you know, maybe knock her credibility a bit, the unfair prejudicial effect of going into the subject of funding would outweigh any probative value. So that's one of the standards that judges look at when determining whether to allow certain evidence. They'll weigh the prejudicial effect against the probative value, and if the prejudicial effect outweighs the probative value, the judge will say it's inadmissible. So that is why he didn't allow the funding of the lawsuit to be discussed. So the trial comes to a close and now it's up to the jury to determine if they think Donald Trump is liable. Now let's talk a little bit about burden of proof because the burden of proof was actually different for the battery claim than it was for the defamation claim.

And this is what Carol had to prove her claims by. So there's different levels of burden of proof. In order of least to most difficult to prove, you have by preponderance of the evidence, and then you have clear and convincing evidence, and then you have beyond a reasonable doubt. So the battery claim had to be proven by a preponderance of the evidence, which is the least difficult to prove. It just means that it's more likely than not

that it happened, right? So there's a 51% chance that it happened. That's what she had to prove the battery claim with. Then you get to defamation and it goes up one level. So now she has to prove defamation by clear and convincing evidence. This means that the evidence is highly and substantially more likely to be true than untrue. So it's not necessarily beyond a reasonable doubt, but it's a bit more likely than not,

which is what we see in bioproponderance of the evidence. Now, when you compare these two beyond a reasonable doubt, beyond a reasonable doubt means the jury can have no reasonable doubt. The jury must be convinced that there is no other reasonable explanation for what happened. So as you can see, it gets increasingly harder to prove the case. So what you need to know for this case is that the battery claim had to be proven by a preponderance of the evidence. The defamation claim had to be proven by clear and convincing evidence, which the jury found that she did because it was a unanimous verdict. The jury was, it was six men and three women and the jury was anonymous. So we don't know exactly who they are, obviously, but we do know a little bit about their profiles. So this is what

we know. We know that the age range of the jury was 26 to 65. We know that two worked in security. One is a janitor. One works in a high school. Another works for the public library. One works in a healthcare facility, and one is retired. We know that four jurors were married. Five of them have children. One of the jurors had their master's degree. Another juror was pursuing a master's degree in library science. And then four of the jurors said that they don't obtain their news from any specific outlet. Three said they don't watch the news or they purposely avoid it. And two said that CNN is their main source of news. So again, we do know a little bit about the profile makeup of the jurors that we don't know exactly who they are. In fact, the

judge at the close of the trial, once the verdict was read, he instructed the jurors, he said, look, you can go reveal yourself to other people if you want, but I suggest you don't. And I suggest you don't for a very long time. So he actually said, if you want to reveal yourself to other people and you want to talk about this, fine, but you are not allowed to reveal any of the other jurors because this is just too high profile of a case. Don't say anything about who you served on the jury with. So that's the deal with the jury. Now, as far as criminal consequences, there are none. This is a civil action. So there are no criminal consequences. The statute of limitations for the sexual abuse claim are far gone. It's just monetary damages. The monetary damages are in the amount of $5 million. The way that that breaks down is it's $3 million for the defamation claim and $2 million for the defamation claim and two million for the battery claim. So let's talk about each claim, the defamation and the battery claim. And the battery claim is a little bit more complex

because although her claim was for battery, he was actually found liable of sexual abuse, which is under the umbrella of battery. So yes, he was found liable for battery, but specifically sexual abuse, and it'll make sense in a second. So in order to prevail on the defamation claim, which we know that she did, in New York, what she had to prove by clear and convincing evidence was that this was a false statement about her, that Donald Trump was at least negligent in making the statement, and that she suffered some sort of harm. So the jury obviously found that all three of those things were true, and that's suffered some sort of harm. So the jury obviously found that all three of those things were true, and that's why she prevailed on that claim. And then as far as the

battery claim, like I said, a little bit more complex. So battery is an umbrella term. In a general sense, what battery is by definition is when someone touches you in a harmful or offensive way without your consent. And the way that this is different than assault is assault is a threat of harm. It's not a physical touching. So if someone physically touches you, that's when battery comes into play. Now, underneath the general term of battery, there are types of battery. So this can include things like rape, sexual assault, sexual abuse, forcible touching. Specifically, Carroll's complaint cited to Article 130 of the New York Penal Code, which encompasses a variety of sex crimes specifically.

So obviously battery can also include getting punched in the face or punched in the arm or kicked or whatever. But specifically, this complaint cites to the sex crimes portion of New York penal law. It says, quote, Trump's actions constitute sexual offenses, including but not limited to rape in the first degree, rape in the third degree, sexual abuse in the first degree, sexual abuse in the third degree, sexual misconduct, and forcible touching. Three of those are felonies. Three of those are misdemeanors. Not that it matters. Just felt that that was a fun fact. The jury just had to find that one of those things were true to find him liable. So what they actually found him liable for was sexual abuse,

not rape. And this is what the jury instructions looked like. So you can kind of understand what they were analyzing. The jury was instructed that sexual abuse meant subjecting another person to sexual contact without their consent. Now, what is sexual contact? Sexual contact is defined under New York law as any touching of the sexual or other intimate parts of a person for the purpose of gratifying the sexual desire of either party. Rape, on the other hand, is when a person forces sexual intercourse with another person without their consent. Sexual intercourse is defined as any penetration, however slight, of the penis into the vaginal opening. So the key difference and distinction here is penetration, right? Because sexual abuse is touching, touching intimate parts of a person,

whereas rape is actual penetration. So what's interesting is that Carol said she was raped this whole time. She said she was raped, right? They go into the dressing room. He initially, I believe she said, starts touching her with his fingers, and then he puts himself inside of her that is what she has said this whole time so i find it very interesting that the jury didn't find trump liable of rape but they found him liable of sexual abuse which means i mean necessarily what that means is that they didn't completely believe her enough to find what she said was 100 accurate do you go what i'm saying because if she said from the% accurate. Do you get what I'm saying? Because if she said from the very beginning that she was raped, if they believe her story in its entirety,

he's liable for rape. But in this case, they found that it wasn't proven by preponderance of the evidence that he actually penetrated her. So I just think that that's a very interesting point considering this case did boil down to a he said, she said, right? And what she said is that she was raped and it came down to what she said, but not entirely. That's just something to think about. Thought that that was thought provoking. Now, will there be an appeal? So following the verdict, Donald Trump's attorney said that they will be appealing. Trump doesn't believe he can get a fair trial in New York because of the jury pool. His attorneys seem to agree with this sentiment. And Trump himself posted to Truth Social after the announcement of the verdict, saying, quote, I have absolutely no

idea who this woman is. This verdict is a disgrace, a continuation of the greatest witch hunt of all time, end quote. And that was only one of his posts. He had many more, but it all boils down to that same idea, that he doesn't agree with the verdict. If you want to review anything for yourself from this episode, I actually have the original complaint, the true social posts, the DNA lab report regarding the dress, Trump's attorney's letter to the judge regarding a mistrial, and various other news articles and explanations linked on my website. So you guys can definitely read those for yourself. But that concludes this episode. Please share it with your friends, family and colleagues who

maybe don't have a full understanding of this case and want to know more, or just people you know that appreciate nonpartisan news. I will talk to you on Friday.