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| Jessica Roth |
On May 9, the jury took only three hours to return a unanimous verdict in Carroll's favor, finding that Trump sexually abused Carroll in the mid-1990s at a Bergdorf Goodman dressing room, and then defamed her in 2022 when he denied her allegations after she went public with them in her 2019 book.
The jury awarded Carroll $5 million in damages, mostly in compensatory rather than punitive damages.
Though Carroll was initially unable to sue for rape because the statute of limitations had passed, the New York's Adult Survivors Act opened a one-year window in which individuals who were over 18 years old at the time they suffered sexual offenses could file otherwise time-barred claims against their alleged abusers.[1]
Emboldened by Carroll's victory, other survivors of sexual offenses who have not yet done so may decide to file lawsuits before the New York Adult Survivors Act window closes in November.
The Carroll verdict may be significant to their calculus, given that the jury rejected the defense's argument that Carroll's account was not credible because she did not follow a particular script for how a survivor of sexual assault should behave during an assault or afterward.
But we should not be so quick to view this as a pivotal moment in the broader movement to obtain justice for the survivors of sexual assault. The constellation of factors that made Carroll's case so strong may make it the exception rather than the rule.
First, Carroll had corroborating evidence to support her allegation that Trump sexually assaulted her in a Bergdorf Goodman dressing room.
There were no other eyewitnesses to the alleged attack, but she told two friends about it very close in time to when it occurred, in terms that were consistent with her testimony at trial.
Ordinarily, such out-of-court statements are treated as hearsay and are inadmissible unless they fall within a hearsay exception, such as for an excited utterance,[2] or New York's "prompt report" exception for victims of sexual assault.[3]
In Carroll's case, her statements to her two friends were admitted on a different basis: to rebut the argument advanced by Trump's counsel that Carroll had recently fabricated her account because of improper influence or motive.[4]
Trump's attorneys argued that Carroll had made up the sexual assault to help sell her 2019 book and because she was politically biased against Trump — pointing to the fact that she did not go public with her account until after Trump was president and she had published her book.
Because her prior consistent statements to her friends predated any such possible motive, they were admissible to rehabilitate her credibility from that alleged attack pursuant to Federal Rule of Evidence 801(d)(1)(B)(i), and the U.S. Supreme Court's 1995 decision in Tome v. U.S.[5]
Second, two other women gave accounts of sexual assaults by Trump that were remarkably like Carroll's allegations. Both alleged assaults were in semi-public spaces, came seemingly out of the blue, and involved Trump forcing himself on the women.
Precisely because Trump's alleged conduct was so unusual, without those other women's accounts, Carroll's testimony might have seemed far less plausible.
That Trump himself admitted in the Access Hollywood tape that he kissed women and grabbed their genitals without their consent further buttressed her account.
Third, Carroll benefited from very favorable rules about admitting this "other act" evidence because this case, which involved alleged sexual assault, was tried in federal court — specifically, the U.S. District Court for the Southern District of New York.
Generally, courts are very careful about admitting evidence of other similar acts by a defendant. Under well-established evidence rules reflected in Federal Rule of Evidence 404(b) and similar state rules,[6] jurors are not permitted to draw inferences based on a defendant's propensities.
Pursuant to Federal Rule of Evidence 403 and similar state rules, courts must balance the risk of unfair prejudice against the probative value of such evidence for permissible purposes, such as to establish intent or modus operandi.
In other high-profile sexual assault cases — like the trials of Harvey Weinstein in New York and Bill Cosby in Pennsylvania — courts have admitted other-act evidence for such purposes.
But the path to admitting such evidence under the usual rules is more constrained, and a court's decision to do so can constitute grounds for reversal. Indeed, the admission of other act evidence in the New York criminal prosecution of Weinstein is one of the pending issues in his appeal before the New York Court of Appeals.[7]
But in Carroll's case, the trial court had a good deal more latitude to admit the two other women's accounts, as well as the Access Hollywood tape, because of a pair of rules — Federal Rules of Evidence 413 and 415, adopted by Congress in 1994 — that govern cases involving allegations of sexual assault.[8]
These rules, which apply in criminal and civil cases, respectively, supersede the usual restrictive rules governing evidence of character and propensity to explicitly permit evidence of other sexual assaults by a defendant in a case involving sexual assault.
Such evidence "may be considered on any matter to which it is relevant,"[9] including to support the inference that the defendant has a propensity to commit sexual assaults and therefore is more likely to have committed the assault alleged in the case.
Some courts have interpreted these rules as requiring courts to apply Rule 403 to admit other-act evidence more liberally in this context, considering Congress' plain purpose in enacting Rules 413 and 415.[10]
These rules do not apply in New York state courts, nor do they apply in federal courts in cases not involving sexual assault. A minority of states have adopted such rules.[11]
But Carroll's case against Trump was tried in federal court, and therefore was subject to these special rules.
Even though her claims arose under state law, Trump's post-presidency move from New York to Florida rendered him and Carroll citizens of two different states, and thus provided the basis for federal diversity jurisdiction given that the amount in controversy exceeded $75,000.[12]
Even though New York law provided the substantive law for her claims, the federal rules of evidence governed their adjudication in court.
Carroll also had access to exceptional attorneys and the resources to litigate this case aggressively, over many years, despite continual efforts by Trump to delay it.
Her attorneys effectively presented an expert witness who, along with Carroll herself, dispelled many common myths about how survivors of sexual assault behave.
Carroll's attorneys also masterfully elicited damaging admissions from Trump during his deposition, which were played for the jury.
And they corroborated Carroll's account in numerous other ways, including through her sister's testimony about their upbringing, which helped explain why Carroll did not come forward earlier, and through the testimony of witnesses familiar with Bergdorf Goodman in the 1990s who testified about the layout of the dressing rooms.
Other plaintiffs with fewer resources may not be able to match these efforts. And, but for Trump's public profile, the other women that Trump allegedly assaulted might not have come forward, nor would anything like the Access Hollywood video likely have existed or been discovered.
There are other unquantifiable factors, too: the fact that Trump chose not to testify; that jurors heard from him only through the videotaped deposition, in which he affirmed his assertion from the Access Hollywood tape that stars "can grab women by the" genitals, "unfortunately, or fortunately"; that he chose not to present any defense witnesses; and that he did not even attend the trial.
All of this is to say that a lot of things had to align for Carroll's case to wind up as it did. She confided in friends close in time to the alleged attack, they remembered, and they were willing to testify. Because of the nature of the defense that Trump advanced, the testimony of those friends was admissible. Because Trump had moved out of state, the case was tried in federal court, a favorable forum for the admission of other-act evidence.
The jury's rejection in Carroll's case of outdated stereotypes about survivors of sexual assault may signal a watershed cultural moment that will pave the way for other survivors to succeed in their claims — even if, like Carroll, they did not report the assault to the police.
The extensive media attention her case received may have helped educate future jurors, who consequently may be more receptive to claims like Carroll's. But the corroborating evidence in Carroll's case made it easier for the jury to credit her account.
Other plaintiffs may not be able to offer such evidence, especially of similar acts by a defendant, either because they are not aware of such other acts, they lack the resources to fund a thorough investigation, or the evidence rules in the court available to hear their claims do not permit evidence of other acts to be admitted.
Thus, before we assign too much significance to this moment, it's worth pausing to consider just how unusual this case was. That it involved the former president of the U.S. is just a piece of what made the case so unique.
The jury is still out on what lasting impact, if any, Carroll's case will have on the ability of other survivors of sexual assault to obtain justice.
Jessica Roth is a professor of law at Yeshiva University's Benjamin N. Cardozo School of Law, where she also serves as co-director of the Jacob Burns Center for Ethics in the Practice of Law. She previously served as a federal prosecutor in the U.S. Attorney's Office for the Southern District of New York.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] N.Y. C.P.L.R. § 214-j.
[2] See Fed. R. Evid. 803(2).
[3] See, e.g., People v. Rosario
, 17 N.Y.3d 501, 515 (2011); People v. McDaniel , 81 N.Y.2d 10, 16-17 (1993). Under this New York exception, the fact that a timely complaint was made is admissible to corroborate the allegation that a sexual assault occurred, but "does not allow further testimony as to the 'details of the incident.'" Rosario, 17 N.Y.3d at 512 (quoting People v. Rice , 75 N.Y.2d 929, 952 (1990)).[4] See Carroll v. Trump
, __ F. Supp. 3d __, 2023 WL 2441795, *8 (Mar. 10, 2023) (admitting testimony of two friends to whom Carroll spoke about Trump's alleged sexual assault as prior consistent statements).[5] 513 U.S. 150 (1995). In Tome, which also involved alleged sexual abuse, the Court made clear that prior consistent statements offered to rebut a charge of recent fabrication are only admissible if they were made before the alleged motive to fabricate arose. New York similarly permits evidence of prior consistent statements to rehabilitate a witness charged with fabricating an account, where the prior consistent statements predate the alleged motive. See Rosario, 17 N.Y.3d at 513; McDaniel, 81 N.Y.2d at 18.
[6] See, e.g., People v. Molineux
, 168 N.Y. 264 (1901).[7] See People v. Harvey Weinstein, APL-2022-00112 (N.Y. App. Ct. Dec. 11, 2022). The New York Court of Appeals granted Weinstein leave to appeal on several issues, including whether the court properly admitted evidence at his trial of other alleged sexual assaults. https://www.nycourts.gov/ctapps/Filings/2022/IID3522.pdf.
[8] See Carroll v. Trump
, __ F. Supp. 3d __, 2023 WL 2441795, *3-8 (Mar. 10, 2023) (admitting testimony of two other women who alleged Trump sexually assaulted them, and the Access Hollywood video, on basis of Federal Rules of Evidence 413 and 415).[9] Fed. R. Evid. 413(a).
[10] See, e.g., United States v. Lecompte
, 131 F.3d 767 (8th Cir. 1997); United States v. Larson , 112 F.3d 600, 604 (2d Cir. 1997).[11] See James C. McKinley, Jr., Key Question for Judge in Weinstein Case: Can Other Accusers Testify?, N.Y. Times (June 25, 2018). https://www.nytimes.com/2018/06/25/nyregion/weinstein-sexual-assault.html?searchResultPosition=1.
[12] See 28 U.S.C. § 1332(a)(1).