A Main Problem With the E. Jean Carroll Trial Could Have Been Solved With an Instagram Post
Reading Time: 5 minutesE. Jean Carroll Couldn’t Remember When Trump Attacked Her. The Jury Didn’t Care., The advice columnist couldn’t remember when Trump attacked her. He called her a liar. The jury did not require a date., E. Jean Carroll/Trump trial verdict: The advice column
E. Jean Carroll has said that she’s certain that former President Donald Trump sexually assaulted her in a Bergdorf Goodman dressing room. But the 79-year-old advice columnist does not know the year. It may have been 1995. Or could it have been later. Her friend, the writer Lisa Birnbach, whom she called after the attack, testified that it occurred in the spring of 1996.
On Tuesday morning, the jury arrived at a verdict: The jurors rejected Carroll’s claim that she was raped, but decided there was a ‘preponderance of evidence’ that Trump had had committed battery by sexually and physically abusing her and that he had defamed her. Carroll was awarded $5 million.
Trump and his lawyers had made the question of why Carroll didn’t recall the date of the alleged assault a main part of their strategy, arguing that it proved that she’s lying. (‘She has no idea what day, what week, what month, what year, what decade this so-called ‘event’ supposedly took place,’ Trump wrote in a post on Truth Social last October.) Without a concrete date, there was no reason to call Trump or any other witness to the stand, Joe Tacopina, Trump’s attorney, said in his closing arguments on Monday. ‘What could I have asked Donald Trump? Where were you on some unknown date, 27 or 28 years ago?’ Conservative commentators embraced this logic.
This set up the jury’s decision to become not just a referendum on the 2024 presidential contender, but also a sort of referendum on dateless crimes. As it turns out, being unable to recall when a traumatic—or even neutral—event occurred is common, several lawyers and forensic investigators told me. But in recent years technology has largely phased out that litigation obstacle by supplementing victims’ memories with digital clues. It’s much easier to remember a date if you posted a photo of yourself, arriving at the scene of the crime that morning, or Googled something relevant on your phone right after. Nonetheless, we’re in a tricky moment for courtroom recollections; post-#Metoo, post-Cosby shifts to statutes of limitations have encouraged people like Carroll to demand justice for crimes from the landline era. But now we’re all so spoiled by the troves of digital data filling gaps in our timeline-challenged brains, many of us have forgotten that the act of remembering used to be different.
One of the basic notions Adam Scott Wandt, an attorney and professor at the John Jay College of Criminal Justice, learned over the years is that personal testimony makes for the most inaccurate type of evidence. ‘People live through experiences and they get it wrong when they repeat it,’ he said in a recent interview ‘They don’t do it on purpose, it’s just that people’s recollections tend to be pretty poor,’ he said.
Wandt believes that litigation changed around the time the first iPhone was released in 2007. That’s when Apple and non-Apple users began leaving a larger digital trail. Until then court cases were heavily reliant on rather unreliable eyewitness testimony. But from 2007 on out, the opportunity to verify dates and facts just kept expanding. Now text messages, emails, digital calendars, social media posts, Ring camera footage and even pacemaker data can all be used as memory aids. Expecting the average person to produce dates from long ago without supplementation is unrealistic, Wandt believes. (Carroll has said she kept a journal, but generally only noted positive developments.)
This is particularly true when it comes to sexual assault, said Patrick, the trial attorney. People tend to clearly remember being sexually assaulted decades later. But because it’s so traumatizing, often they do not remember the events surrounding the incident. ‘It’s not usual for people to be unclear when it happened,’ she said.
The muddiness of temporal memory is a complicating layer to the various efforts to shift statutes of limitations, she said. Last November, New York removed the state’s statute of limitations for civil sexual assault claims so long as they are filed by Nov. 24, 2023. (Previously it was seven to 20 years depending on the claim.) Two months earlier, President Biden signed a bill eliminating the federal statute of limitations for those who were sexually abused as minors, an approach mirrored by numerous states including Kansas earlier this year. These shifts follow an earlier expansion of statutes of limitations. In 2015, Oregon increased the state’s statute of limitations from six to 12 years for rape victims. The following year, prompted by the Cosby case, California’s elimated its 10-year limit for rape and sex crimes.
These endeavors are helpful because, particularly if a victim knew their perpetrator before the attack, it’s not unusual to take a long time to come forward, said Wendy Patrick, a career trial attorney, who is a member of the organization End Violence Against Women International. But the more time that has passed, the less digital backup they’ll have. And not being able to remember a date creates complications beyond a veneer of unreliability: For one thing, it’s difficult to find witnesses or other corroborating evidence.
For another, whether in civil court or criminal court, filing a lawsuit or charging someone typically requires an identifiable date range, partly to allow the accused to prepare a defense. This last item is something that Trump and his lawyers have milked during the recent trial, suggesting that it was part of a scheme to inhibit Trump from providing an alibi.
Wandt, the attorney from John Jay College of Criminal Justice, told me that he believes the Black Mirror moment when we can verify anything with digital data is ahead of us. Matt Edmondson, who used to conduct digital forensics for the Department of Homeland Security and now teaches open-source intelligence classes, said he thought the optimal verification moment is already in the past. That’s because if he’s trying to investigate something from 10 years ago, he has the investigator’s dream scenario of being able to draw on lots of digital data without much concern about security or privacy. But if the incident occurred within the last two years, ‘we’re screwed,’ he said. Lately, Edmondson is typically investigating companies on behalf of a client. But regardless of who he’s working for, he has also found that without digital supplementation, most memories are flawed.
Of course, establishing a clear date is far from the only obstacle that an old rape case faces. Less than 1 percent of sexual assault complaint are resolved through a jury trial, even in the digital era, according to one study. Often criminal cases are derailed by other limitations that are true, even with a date. Lacking a witness, for example, prosecutors are often reluctant to move forward with a he-said, she-said situation. Still, a clear-cut timeline discourages comments like this one: On Monday, Michael Goodwin, a New York Post columnist, told longtime friend of Trump and radio host Mark Simone that he couldn’t believe Carroll. Why? Because, if you got raped, ‘of course you’d remember the date,’ he said. Though the jurors did not find the events Carroll described to be rape, they signaled that they did not require a date to believe that abuse occurred.
And that could prove pivotal for other victims. As Patrick, the trial attorney, told me shortly after the verdict was announced: ‘Vindication may encourage other victims to come forward even if they cannot remember the exact date with specificity.’
Ref: slate
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