Thread by @lawofruby

The appellate decision affirming E. Jean Carroll’s first jury verdict against Donald Trump is a 77-page foray into rules of evidence. You might be tempted to put it aside. Don’t look away. 1/

Its holdings about the use of testimony from other sexual assault victims and other evidence that shows a defendant’s modus operandi not only will complicate Trump’s continued efforts to fight Carroll’s two jury verdicts but will reverberate throughout federal courts. 2/

Perhaps the most significant part, at least to this observer, is the court refusing to find error in the trial court’s admission of the Access Hollywood tape. 3/

In general, federal evidentiary rules prohibit the admission of a defendant’s “prior bad acts” to show their propensity to commit the crime or conduct at issue. But there are exceptions, including where the evidence tends to show a pattern or modus operandi. 4/

And that’s exactly what, according to the three-judge appellate panel, the tape, coupled with the other accusers’ testimony showed: “a repeated, idiosyncratic pattern of conduct consistent with what Ms. Carroll alleged.” 5/

The panel continued, “In each of the three encounters, Mr. Trump engaged in an ordinary conversation with a woman he barely knew, then abruptly lunged at
her in a semi-public place and proceeded to kiss and forcefully touch her without her consent.” 6/

And those acts, they ruled, “are sufficiently similar to show a pattern or ‘recurring modus operandi.’” 7/

One of my friends told me over the weekend that she has never been so despondent about women’s power, at least the kind of power they obtain and exercise independently, not derivatively from a male parent, partner, or mentor. 8/

And while I wholly appreciate where she is coming from, remember this: 2024 was also the year in which a federal appeals court decided that the word of three women, juxtaposed against the smirking admissions of one man, could justify a game-changing jury verdict. 9/

Even if that man is the former or future president. 10/

p.s. We have been trained to think accountability comes solely through criminal law. Let 2025 be the year that we stop treating civil judgments like prosecutions’ poor relation. What matters, as Gisele Pelicot reminds us, is that the shame changes sides.