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Whether Donald Trump wins or loses his civil trial will rest entirely on if the jury believes E. Jean Carroll has proved her case enough, a legal expert has said.
The former president is accused of raping Carroll at a New York Bergdorf Goodman department store in the mid-1990s, then repeatedly defaming her character why denying the alleged assault took place, including stating that "she's not my type."
Carroll has testified in front of the New York jury, with two other women—journalist Natasha Stoynoff and retired businesswoman Jessica Leeds—also accusing Trump of sexual assault while under oath. Trump denies the accusations from all three women.
Trump's lawyers said they will not be calling any witnesses to testify on behalf of the former president. Trump, who has not been present during the trial, told reporters at a golf course he owns in Doonbeg, Ireland, on Thursday that he will "probably" return to New York to attend the trial, although it is unclear if he will testify.
New York Judge Lewis Kaplan gave Trump a deadline of 5 p.m. on Sunday to confirm if he intends to testify, with closing arguments in the case currently scheduled for 10 a.m. on Monday.
As the trial is a civil case, rather than criminal, the burden of proof to rule in favor of the plaintiff is lower. The standard of proof in civil trials is "a preponderance of the evidence," meaning that a jury can rule in favor of Carroll if they believe the alleged incident was more likely than not to have occurred, rather than beyond all reasonable doubt.
Attorney Sherif Edmond El Dabe, a partner with Los Angeles-based El Dabe Ritter Trial Lawyers, said that while it is a risk for Trump's lawyers not to call any witnesses for the defense in the trial, it may be beneficial for him.
"The burden is on Carroll to prove her case. Conceivably Donald Trump can win the case without any witnesses or evidence if the plaintiff does not uphold her burden," El Dabe told Newsweek. "Not calling any evidence in your defense case can be a risky move, and is unconventional, but Trump is very good at getting his message across in unconventional ways."
Newsweek reached out to Trump's legal team via email for comment.
Carroll took to the stand in late April to accuse Trump of assaulting her and then trying to ruin her character by denying the accusations which were published in her 2019 book, What Do We Need Men For? A Modest Proposal.
"I'm here because Donald Trump raped me, and when I wrote about it he said it didn't happen. He lied and shattered my reputation, and I'm here to try to get my life back," Carroll said.
During cross-examination, Trump's lawyer Joe Tacopina attempted to sow doubt into the jury's mind by questioning why she did not scream at the time of the alleged assault in the department store and then waited years to come forward.
"I was in too much of a panic to scream, I was fighting," she said. "One of the reasons why women don't come forward is they are asked 'Why didn't you scream.' It keeps women silent."
A psychologist testifying on Carroll's behalf later said that it was common for rape victims not to report the incident, or blame themselves for the attack.
With regards to Trump potentially deciding he will testify right at the end of the trial, El Dabe said that judges "do not like unpredictability" but "ultimately, they cannot control everything about the trial" and the defense has until the moment they rest to decide whether or not to call the former president.
"Studies have shown that there are primacy and recency biases, which means that jurors tend to remember the first and the last thing they hear. Closing arguments will be very important in this case," El Dabe said.
Correction 05/06/2023 3:47 a.m. ET: This article has been updated to correct the spelling of Edmond El Dabe's name.
About the writer
Ewan Palmer is a Newsweek News Reporter based in London, U.K. His focus is reporting on US politics, and Florida ... Read more