Joe Tacopina’s cross-examination of E. jean Carroll, who is suing Trump for battery and defamation based upon a sexual assault and rape that she alleges occurred in 1995 or 6, was characterized as pretty harsh.
The fireworks started from the first moment, when Tacopina started, “Good morning, Ms. Carroll.” She did not respond in kind, but instead remained silent—which was appropriate, as there was not question pending. Mr. Tacopina, visibly perturbed, raised his voice and repeated, “Good morning, Ms. Carroll!” At that point, she finally responded, “Good morning.”
It went downhill from there.
By most accounts, Carroll was well-prepared, and handled what Tac threw at her. Whether or not the cross was tactically wise is a different question. Mitchell Epner was not impressed.
As I wrote yesterday, I do not know whether the jurors believed Carroll’s direct testimony that she was raped by Trump. Based on my 25+ years as a trial attorney, including service as an Assistant United States Attorney who focused on sex crimes, I am confident that any juror who did not already believe that Ms. Carroll lied in her direct testimony would not have been persuaded by any of the cross-examination that she was a liar.
Sometimes a cross works. Sometimes it doesn’t. Sometimes, it serves enough of a purpose to make its point. Sometimes, it’s very failure gives the jury a reason to hate the defense, particularly the defense lawyer, for attacking the witness they perceive to be the victim. Whether to cross a putative victim gently or aggressively is a tactical choice the defense lawyer has to make. Most of the time, an aggressive cross is not an effective strategy. But that’s a very question than whether the defense lawyer should be allowed to ask relevant questions on cross at all.
Rape shield laws already constrain the defense from inquiring into an accuser’s past sexual history. But what of the question, “Why didn’t you scream?”
It is 2023, more than five years after #MeToo, and nearly five decades after “acquaintance rape” was coined to describe how rape doesn’t happen only with strangers in dark alleys but happens also with people you know. These days, our understanding of the concept has evolved enough — at least in some circles — that it took only moments between the time details of Ms. Carroll’s cross-examination began to surface online and the appearance of a hashtag in defense of her: #Ididntscream, with assault victims sharing their own stories of silence.
And yet in the court of law, where Mr. Tacopina stretched out his calves and pressed his knuckles together beginning his cross-examination of Ms. Carroll, as if preparing for a boxing match, none of that mattered. We are still cross-examining rape victims as if it were 1993.
Jessica Bennett argues in the New York Times that questions such as “why didn’t you scream” are unacceptable and should not be permitted.
This isn’t to say that those making rape allegations shouldn’t answer questions. But we don’t ask victims of other violent crimes if they screamed out — to the contrary, not screaming is considered a way to not further provoke. Why, then, when it comes to victims of sexual violence, are those tropes so baked in?
Of course, that would be a fair argument to make on summation as an explanation for the fact that Carroll didn’t scream, or call the police, or take any number of actions that she, or any rape victim, might normally be expected to take. And that’s the point of cross, where the defense is that it did not happen and the cross is directed toward the accuser’s conduct, and lack of conduct, consistent with being raped at the time.
“And so, you have a very obvious effort to suggest that Carroll couldn’t be a ‘worthy’ victim if she didn’t scream, if she didn’t report immediately, if she didn’t call the police — even as all of those things are contradicted by everything we know about how victims behave after an assault,” Ms. Tuerkheimer told me.
These tactics persist because they tap into deep misconceptions — and somehow, the scream seems among the most potent.
What Bennett characterizes as misperceptions is the current narrative that no matter what a victim did, it’s proves she’s telling the truth. Scream? True. Didn’t scream. True. Remember the details? True. Can’t remember the details? True. Short of a confession of lying, every course of conduct is wrapped in a rationalization, what Bennett calls a “misperception,” that proves the accuser is telling the truth. What, then, should be allowed on cross?
Joe Tac asked his questions, and Carroll was up to the task of responding. Whether Tacopina landed any blows is up to the jury to decide, but he was legally permitted to ask these questions of Carroll, for whatever it was worth. Should these and other questions suggesting that the accuser is lying or the conduct never happened be off the table because they are contrary to the carefully crafted narrative that no matter what the accuser did or didn’t do, she was still the victim? Is there anything wrong with asking whether she screamed? Should the victim be presumed credible and any challenge to her credibility prohibited, as Bennett contends?
If a person lies about a sexual assault, how else would one challenge the testimony but to question her conduct, what she did and what she failed to do? If that’s no longer permitted, how would one defend against the false accuser?
*Tuesday talk rules apply within reason.
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