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Okay, I'm going to tell you about the case.
Out of all of the potential cases that President Trump has, will have, that he seems to have, the case that I think is the most troubling, the most frightening, the most scary for him, and the potential of what it means.
And it's civil.
It doesn't mean that there's any kind of criminal charges attendant thereto.
But that doesn't matter.
I don't think incarceration has been really anything that we've been seriously thinking about.
Though, in today's climate, I couldn't guarantee against anything.
No, this is a case involving this E. Jean Carroll.
It is the case involving sexual, sexual battery, sexual abuse.
Call it what you want.
And it is the case and the type of case that requires the most surgical of approach.
Surgical.
Not to mention, we have a judge that has ruled that similar evidence of other victims can be considered, can be heard.
And this is what happens.
In the case of Harvey Weinstein, this is one of the major concerns.
If there's one thing that we do that is absolutely a minefield for potential miscarriage of justice and due process violation, it's bringing in Other people, other situations where they say, yep, that's what happened to me.
Where there's smoke, there's fire.
So, a jury, theoretically, could say, you know, this case isn't that great.
But if he's done it before, there's something to this.
That's not the way to handle it.
It's about this case, this evidence, this event now.
Irrespective.
Whether you like the defendant or not.
That's what I always am amazed by, is how people take into account whether they like somebody, whether somebody is appealing to them.
Is Harvey Weinstein, are you sympathetic to Harvey Weinstein?
No, whatever that means.
I'm not sympathetic.
But I will explain to you how this started, at least initially, how it makes sense, sort of, this similar fact, evidence, common, Plan and motive and all of that jazz.
And how it can be abused.
And how it can be an absolute, just insurmountable for a defendant.
So first, a couple of things.
Number one, please like this video.
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Let me give you a hypothetical.
Let's assume that you are a bank robber.
And you have been involved in robbing banks for a very long time.
And every time you do, you've worn a weird kind of a tam-o-shanter, pansnay, an Ike jacket.
You've carried a Derringer.
And made some strange reference to Michael Dunn, Miguelito Loveless, from the wild, wild west.
Every single time you did in the past.
Unique MO.
Unique.
Unique.
Very strange.
Well, let's assume they've got another case.
Except this guy, he's got a mask on.
But he's got a tamashanter.
He's got an Ike jacket.
He's got a Derringer.
Refers to Miguelito Lovelace.
I believe Michael Dunn was the actor.
And everything is like, that's you!
So they bring that up and they say, this, this is the guy.
Now the jury hears, wait a minute, you mean he did other robberies?
You mean he did other, what?
Well, why are you using this?
Is it just to show a propensity?
No, it's to show that...
He has a common pattern, an M.O. He does.
There are sometimes things that people have done that are important, important to show the jury that, see, this is him!
This is, this, okay.
Still sketchy, because we always like to look specifically at this case, this evidence, this, but, okay.
But let's assume you're Harvey Weinstein.
Let's assume you're Donald Trump.
And in the course of this, a woman, E. Jean Carroll, says you attacked her or raped her or sexually abused her.
You then respond with, you're crazy, you're a liar, you're this, you're that.
Not to mention some other comments which are extraneous to this.
She sues for defamation, blah, blah, blah.
And then in the course of this, you are allowed, you are permitted under this new particular statute to bring up adult survivor sexual battery cases that may have been forever or prior foreclosed by the statute of limitations which had lapsed,
but under this What is important to note then, and what is important to grasp,
extremely important, is that in this case, you have someone who is alleging a horrible, Terrible event.
Sexual battle.
And now, a judge seems to have allowed, and again, this can be limited later on, two other women who have said, yep, that's what he did to me.
Yep.
That's it.
Yep.
And there is an Access Hollywood tape that is used, or that they claim to be used, where he said some things that are untoward.
And a federal judge ruled that the testimony of two other women alleging that President Trump had assaulted them may be also entered into evidence at a civil trial.
And now we get...
Into who knows?
What do you do?
How do you, how do you, out of all of the types of victims in this, how do you cross-examine, impeach this?
You're a liar!
Do you want to try that?
Not advised.
After a woman takes a stand, explains her own particular nightmare, evidence of, assuming this goes a trial, assuming this is not settled, of course, but psychiatric care, psychiatric victimization and damages, expert testimony.
Friends who remember at the time what she went through.
You name it.
Now it's your turn.
You're going to what?
Cross-examine this?
What are you going to say?
What's your point?
How do you...
Good luck.
Next to a child?
Next to trying to cross-examine a child?
It's a minefield.
It is a...
And what do you do?
You can maybe point to maybe inconsistencies in testimony.
Well, you said it was a Tuesday, but then you said it was a Wednesday.
Now, is that enough?
Or is there a money allegation?
Is there a political connection?
I'm only saying this hypothetically, but let's say there's a case where you have The collateral evidence that shows that the victim said to other people, you know, this is my gravy train.
You know, I've always wanted to bring this guy down or something along those lines.
Maybe, maybe, something.
And again, I'm not saying that's the case here.
But what do you do?
And then you have other women who come and you're going to...
What's your crossing?
What's your impeachment?
What?
Nuh-uh.
Oh, yeah?
Sure.
What do you say?
And your approach has to be so careful.
Because if they don't like you, I mean, there's so many things.
You're sitting at the council table.
Are you looking smug?
Are you laughing?
Who is your trial counsel?
Many people have thought, And it has been suggested that a female counselor might help.
I'm not necessarily as formulaic as that.
I don't believe that that changes anything.
But a lawyer who is understanding, dare I say maybe fatherly, who comes across almost In the crudest of sense,
you're almost, if you cross-examine at all, unless there's some glaring inconsistency, something that you have to bring out, and then bring it up and then run.
Forget it.
Argue it later on.
Argue it in closing.
Not with them there.
You've got to be careful to act almost like you're...
Being paternal.
You're worried about them.
They're going through a lot.
But they're mistaken.
Because maybe, and there's a way of saying this, you never want to say this, but you can intimate it.
What many people try to do is they try to say, this person's crazy.
Making it up.
But you...
Good luck!
Good luck!
It's a minefield.
Harvey Weinstein, as despicable as you might think he is, absolutely, in my humble opinion, has more issues on appeal and stands for the proposition where they just, it never stopped.
What did you do then?
If I'm a bank robber and you can't prove your case against me now, who cares what I did then?
Let's talk about now.
There's a notion of finality.
Now, within the framework of this, we have bills of particulars, we have an indictment that says on this date, in this county, in this state, in this jurisdiction, you here, then, on at this time, did conspire, conjoin, confederate with this person.
Very specific.
Not you did what you've done before.
And you've acted completely consistent with how you've done before.
Now let me explain something to you.
First, you don't have to tell me how important it is to stop people who do terrible things to other people, especially with children.
You don't have to tell me this.
Believe me.
Trust me when I tell you this.
But the other issue you have to deal with is sometimes the system itself, while seeming to make sense on paper, while being logical in some respects, can be used not out of corruption or not out of any particular malice, but in a way that deprives people of fundamental fairness because you can bring up extraneous extrajudicial collateral matters.
That have nothing to do with this case, but were similar.
And, most probably, were committed by this person, who most probably is guilty.
And I'm going to tell you something.
Being guilty has nothing to do with it.
I know you're going to say, what?
We're not talking about it.
We're talking about due process.
Fairness.
That's the way we do it.
That's our constitution.
I'm not making this up.
If we didn't have a constitution, it's all right.
Have a trial by ordeal.
I don't care.
But we have this thing called the Constitution.
We have the Sixth Amendment.
We have the right to counsel.
We have the speeding to public trial.
We have due process.
We have the right to call witnesses, confrontation clause.
We have a lot of things, a lot of protections.
The Bill of Rights was written specifically with guilty people in mind.
Not the innocent, not the victim, but guilty people.