Today is only the first day of the civil rape trial between Donald Trump and E. Jean Carroll, and suffice it to say that Trump is already positioning himself to lose badly. Trump’s attorney Joe Tacopina (yes he’s still using that guy) has failed to block Carroll from getting her witnesses admitted to the trial. And now Trump is making a blunder so big that Tacopina has no idea what he’s even supposed to do with it.
In a criminal trial there’s no onus on the defendant to testify, and it’s entirely up to the other side to establish their case. A criminal defendant’s refusal to testify is not legally seen as an indicator of guilt. But a civil trial works differently. Failure to take the stand and defend yourself can potentially be used as a factor by the jury when deciding which side to rule in favor of. And in any case, you have to let the other side know in advance whether or not you’re planning to testify at the trial.
When Trump’s lawyer Tacopina was asked during the trial today whether Trump will testify, his answer was “I don’t know.” Now that’s the wrong answer. At this point it has to be a “yes” or a “no” because the other side is allowed to know in advance. Trump is either tepidly unable to make a decision about this, or he delusionally thinks that being coy is somehow going to help his case. But that’s not how it works.
This isn’t a movie, where surprise last minute testimony magically turns the case on its head. In the real world, trials are much more procedural than that. Trump is not helping his odds of winning by sending his attorney into the first day of the trial with an “I don’t know” answer about whether Trump will testify. This kind of thing just causes you to lose the trial.
Tacopina seems to know this too. After he said “I don’t know,” he added “Yes, you can look at me that way.” Legal expert Harry Litman called that a “total blunder” on Tacopina’s part, because it is. It sounds like a line out of a reality show or something. It’s certainly not an approach that leads to a winning verdict in a civil trial. The case isn’t even being presented yet, and Trump and his team are already crashing and burning.
Bill Palmer is the publisher of the political news outlet Palmer Report