Tuesday Talk*: Fair Questions On Cross

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 different 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 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.

18 thoughts on “Tuesday Talk*: Fair Questions On Cross

  1. Michael Shapiro

    Very simply, a defense lawyer shouldn’t cross examination a petite 79-year old woman in the manner in which Bruce Cutler would cross Sammy Gravano. Cutler’s style was dubbed “Brucification” and was quite effective against mobsters. Unfortunately, some lawyers are one trick ponies; it’s hammer and tong all the time. Other lawyers can adapt to what the circumstances require. Cross by a thousand careful scalpel cuts can be much more effective especially when the witness presents as did Ms. Carroll. A surgical cross requires much greater prep but may not be what a former president client wants or expects.

    1. David

      “Very simply,” a defense lawyer should take whatever approach he thinks will prove most effective in persuading a jury. While your tactical approach is more likely effective (as was already noted in the post), there is no “one right way” as you suggest. Whatever works is the right way. If Tacopina gets a defense verdict, he’ll be a genius. Or maybe no approach will work, and his “go for broke” gave his client a better chance than your “play nice” approach.

      But it’s hardly “very simple.”

      1. Michael Shapiro

        Experience is a great teacher. I, and others, who have been in this business for a very long time and have cross examined wise guys and sexual assault victims and most everyone in between, have seen what works and what doesn’t. Yes, Tacopina may be successful but even a blind squirrel eventually finds a nut.

        1. David

          It’s adorable how you assume you’re more experienced than me. You are an insufferable pompous ass.

  2. Chris Van Wagner

    Asking such a “why” question is certainly within the bounds of rational cross, be the accuser 27 or 72. One might ask, though, if the better question is, simply, “You didn’t scream, correct?” And a whole series (chapter, Prof Posner, chapter) of similar affirming questions, the answers to which do not allow the explanation as to why. Yes, that may come on redirect – perhaps less effective – but this open-ended approach can still grab a juror or the with its ancient ‘logic’ that was and remains a fact question.

  3. Mark Schirmer

    In general, one should avoid weighing in on these questions. I am going to break that rule.

    Cross is part of a lawyer’s job. The job is not destroy the enemy. It is convincing 6 or 12 (or 8) people my client’s “spin” on largely undisputed fact is correct.

    This requires a tool kit that rarely requires – or even calls for – an aggressive cross. It often requires open ended questions because jurors want to hear what witnesses have to say – not just lawyers talking. (The single most effective cross I have ever seen was essentially all open ended questions.)

    Our job is PERSUASION. We need to remember that. Not rules of cross examination.

    1. Chris Van Wagner

      Mark, thanks. I agree that rules exist to be broken. But it is the rare historical sex assault case where one can use all open-ended questions. Yet, circling back to the theme here, that might well be a cross that Ms. Bennett might tolerate – but that isn’t our goal. Persuasion is. So to be persuasive, or numerically strategic when counting juror votes in one’s head, that wholly open-ended cross in this case would seem to require endless preparation and practice in order to have a chance not to “unpersuade” at least a couple in the box. Those rules you decry are important in every case.

      1. Mark Schirmer

        Perhaps the issue is context. In civil cases, witness control is perhaps less important than story telling. In addition, financial incentives and open discovery make the extensive preparation for a mixed cross a more viable option.

        Certain types of criminal cases require different strategies. The “rules” are really experiential guides or tools to use – it is, in my not so humble opinion, the ability to discern when and how to use our tools in the context of the moment that distinguishes good and great trial attorneys.

  4. orthodoc

    I see that the NY Times calls this a “rape case”. Those words connote a criminal charge, but in point of fact this is a defamation and civil battery case. That distinction is relevant to a discussion of fair cross (I would say as a lay person/Tuesday Talker). The relevance here is not only that in a real rape case the best question is “when did this happen?” (and EJC says she does not know, so in a criminal case I’d begin every question with the phrase “So you don’t know when this happened, but let me ask you…”), but also wider latitude for questioning has to be permitted, to put the damages in context. For instance, prior sexual history has no business in a criminal rape case. On the other hand, the value of the damages here might be affected by prior sexual history. The context matters most especially about defamation side of the case, but it matters to even the battery part too–punching a professional boxer without permission seems less of a tort than punching a nun.

  5. Miles

    Maybe I’m reading this post different from others, but I didn’t see it as a critique of Tacopina’s cross as much as a question arising from Bennett’s (and Turkheimer’s) attempts to use it to argue that relevant questions challenging the accuser’s story were “unfair” and should not be permitted.

    To which I respond, no. Not at all.

  6. B. McLeod

    I think that in allowing her to press these claims based on no direct evidence but her own testimony, without so much as identifying the day, week, month or even year of the alleged occurrence, the court has made effective impeachment very difficult. The canned “victim” justifications impede cross, and the indefiniteness in time prevents the defendant from showing that he (or even she) was somewhere else. Basically, she has picked an unpopular target and set up a claim that is insulated from any real testing.

  7. Ron

    Kind of a devil’s advocate view, but why would Tacopina treat Carroll gently when the defense is that she’s an opportunistic liar? Do liars deserve gentle treatment? Is his harsh cross not reflective of his defense that she’s the bad person in the courtroom and not the victim at all?

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