The first days of the E. Jean Carroll damages trial have been rife with examples of what not to do on trial or in any evidentiary hearing.
1. Understand and Honor the Scope of the Proceeding
Former President Donald Trump was previously found liable in another case for sexually abusing and defaming Carroll in statements he made in 2022 attacking her and denying the allegations. The defamatory statements at issue in the second trial were made while Trump was President in 2019. Due to legal wranglings involving the temporary intervention of the Department of Justice on behalf of Trump in this case (which was the earlier filed of the two involving Carroll), the trial in the 2022 case proceeded first and resulted in a jury verdict that Trump has sexually assaulted Carroll in a dressing room in 1996 and defamed her in 2022. That jury awarded Carroll $5 million. (The jury verdict form can be found here.)
In light of that jury verdict, the Court determined that Trump’s liability for sexually assaulting Carroll and knowingly making false statements about her with actual malice would not be re-litigated in this trial. Instead, the only question to be decided by the jury is how much damages should be awarded to Carroll.
In a pretrial order entered on January 9, 2024 (an excerpt of which can be found here), the Court made it clear that it would not entertain testimony on the subject of liability or allow Trump to testify that he had not sexually assaulted and defamed Carroll. Trump and his counsel have complained of their inability to re-litigate the prior verdict.
Seasoned attorneys appearing at an evidentiary hearing, framed hearing or any trial having a defined scope should constrain the evidence and presentation to those matters before the Court. In such circumstances, counsel have presumably raised and preserved, at an appropriate time, any objections to the breadth of the proceeding and prior rulings on evidence and scope or have taken appeals where appropriate. Once the Court has drawn the lines, the ethical attorney will generally color within them.
2. Use Your Inside Voice or You May Be Removed from the Courtroom
Courts are like classrooms. You be should generally not speak unless called upon. The student who talks over or mutters during a lesson will be disciplined or required to leave the courtroom.
Trump’s courtroom theatrics caused him to be admonished that if he could not contain himself he would be removed from the courtroom as he was loudly heard complaining to his counsel about Carroll’s testimony.
Trump was overheard muttering “con job” and “witch hunt” to his counsel. Not having a contrite bone in his body, when warned by the judge he might be removed from the courtroom Trump had the audacity to tell Judge Kaplan, “I would love that. I would love that.” “I know you would because you just can’t control yourself in this circumstances, apparently. You just can’t,” the judge responded. “Neither can you,” Trump replied.
Federal judges have the authority to exclude certain parties from the courtroom during a proceeding under Rule 615 of the Federal Rules of Evidence. (I recently discussed an amendment to this Rule effective December 1, 2023.) However, Rule 615 does not authorize the Court to exclude a natural person who is a party, presumably because the removal of a party would violate the confrontation clause of the United States Constitution.
In Illinois v. Allen, 397 U.S. 337 (1970), the Supreme Court of the United States (SCOTUS) recognized that “[t]he flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated.”
In Illinois v. Allen, the SCOTUS stated,
We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.
The premise of this power is that the defendant who knowingly and voluntarily chooses to so misbehave waives his right to be present at trial. Presumably, Judge Kaplan was threatening to exercise his discretionary authority and conclude that Trump was waiving his right to be present if he persisted in his poor behavior.
Ultimately, it was not necessary for Trump to be expelled from the courtroom as he absented himself from part of the proceedings, but was expected to return to Court on January 22, 2024.