E. Jean Carroll v. Donald Trump: Trials are unpredictable, but here's the roadmap for this one

As a trial begins in writer E. Jean Carroll's lawsuit against former president Donald Trump, the United States contemplates the startling possibility that a federal jury may declare that a leading candidate for its highest office is, more likely than not, a rapist.

Such a verdict, if reached by a jury of Trump's peers, might land in the middle of a campaign season.

A testament to the unpredictability of the justice system, the high-stakes case Carroll v. Trump is as filled with variables as any other trial. It isn't currently known whether Trump will show up at some point during the trial, let alone testify. A jury hasn't yet been empaneled, and since jurors will be anonymous, the public will know little about them other than their numbers or whatever biographical details the court chooses to release. What arguments might be permitted is up to the discretion of Senior U.S. District Judge Lewis Kaplan, within the confines of the federal rules of civil procedure.

Even amid this uncertainty, both Carroll and Trump have laid out the broad outlines of what to expect from the trial in court filings. Law&Crime lays out the evidence and arguments both sides expect to make.

'More likely than not'

At the heart of the case is what happened inside a Bergdorf Goodman store in the mid-1990s.

As the events took place more than 25 years ago, the timeline was somewhat murky, allegedly falling either in the autumn of 1995 or the spring of 1996. Carroll was leaving the store when she encountered Trump, who she says stopped her and remarked: "Hey, you're that advice lady."

"Hey, you're that real estate tycoon," Carroll says she replied.

Carroll says that Trump asked her for advice about a gift for a woman, and eventually, she says, Trump led her back into the store and proposed buying lingerie. The two of them allegedly joked about who was going to try it on in the dressing room, and from there, the accusations turn dark and violent.

"He pulled down Carroll's tights, pushed his fingers around Carroll's genitals, and forced his penis inside her," her legal team wrote in a statement of the case.

As this is a civil case, the burden is on Carroll to prove her allegations to a jury unanimously by a preponderance of the evidence. Former federal prosecutor Mitchell Epner notes that isn't a "particularly onerous" standard.

"Preponderance merely means 'more likely than not,'" notes Epner, a partner at Rottenberg Lipman Rich PC. "It is far short of 'clear and convincing evidence,' which is required to prove a civil fraud case. It is very far short of 'beyond a reasonable doubt,' which is required to obtain a criminal conviction."

To make her case, Carroll plans to introduce dozens of exhibits and call up to 11 witnesses — with herself at the top of that list. Trump's defense in the case is relatively thin, but since it's not his burden, his lawyers are expected to dedicate more time challenging the evidence Carroll presents than offering their own.

'She swore her two friends to secrecy'

Carroll says that she confided in two people about the alleged rape: author Lisa Birnbach, immediately, and TV anchor Carol Martin, within a couple of days. Both are expected to testify.

"Carroll blamed herself for what had happened, felt embarrassment and shame, and feared what would happen if she spoke out," her attorney Roberta Kaplan wrote. "She swore her two friends to secrecy and did not speak about the rape again for more than two decades."

Some two decades later, the #MeToo movement started holding powerful men into account, and Carroll's legal team contends that's what motivated her to reveal her allegations for the first time in her book: "What Do We Need Men For? A Modest Proposal." The book would be published in 2019, with an excerpt about Trump published in advance of its release in New York Magazine.

Trump, then president of the United States, vehemently denied the allegations to reporters, including by saying: "She's not my type." That's the remark that sparked Carroll's original defamation lawsuit, and she intends to use the line against him at trial, by contrasting it with a line from his deposition.

When shown a picture of Carroll, Trump mixed up his rape accuser with his ex-wife Marla Maples, for whom the former president left Ivana Trump, the mother of three of his children.

The #MeToo movement will affect the trial in another way. Trump will face no fewer than three of his 26 women accusing him of some form of sexual misconduct: Carroll, businesswoman Jessica Leeds, and People Magazine writer Natasha Stoynoff.

'Pushes me against this wall'

Though their accounts span about a quarter-century apart, Carroll argues that all three of their stories share eerie similarities, with Trump allegedly swooping in to assault them until they broke free.

In 1979, Leeds claims, she had been seated next to Trump in a first-class seat on a flight from Texas to New York. After they finished an in-flight meal, Leeds said, Trump started "grabbing me, trying to kiss me, grabbing my breasts, pulling me towards him, pulling himself on me."

Stoynoff's account began in 2005, when she was assigned to interview Trump and his wife Melania Trump at Mar-a-Lago for People magazine. She claims that Trump cornered her after offering to show her a painting hanging in one of the rooms and then shut the door.

"I turn around and he's right here, and he grabs my shoulders and pushes me against this wall and starts kissing me," Stoynoff testified in a deposition.

Like Stoynoff, Carroll recounted her alleged sexual assault with the same prelude, almost verbatim: "He put me up against the wall."

Of the remaining people on the witness list, the advice columnist's sister Cande Carroll will give the jury a glimpse at her family life; her longtime boss Roberta Meyers will speak to Carroll's professional life; and psychological expert Leslie Lebowitz will assess psychological damages.

Another potential witness is Professor Ashley Humphreys, from Northwestern University's prestigious Medill journalism school, who describes herself as an expert in consumer behavior and marketing strategy, skills that are useful in determining defamation damages.

Trump's proposed witness list is relatively meager, showing only his name and that of Texas-based psychiatrist Edgar P. Nace — and the former president himself may be a no-show.

If Trump decides not to testify in his own defense, Carroll is preparing to show the jury passages of Trump's deposition. The judge curtailed the ability of either side to make DNA evidence figure as a part of the case.

'There were no eyewitnesses'

Trump's legal team, led by criminal defense counsel Joseph Tacopina, plans to highlight what Carroll was unable to show a jury.

"There were no eyewitnesses to this alleged incident nor is there any photographic or video evidence of this purported incident at Bergdorf Goodman, which is not surprising since this alleged incident never occurred," Tacopina wrote in the defense statement of the case.

Tacopina argues that Carroll's account "defies common sense," in it rests on the proposition that no customers or staff observed a rape taking place in the dressing room of a popular department store on Fifth Avenue in Manhattan.

Two of Carroll's listed witnesses, Cheryl Beall and Robert Salerno, share names with former executives at the store during the relevant time period.

At the heart of Trump's defense, his legal team plans to argue that Carroll is at the center of a conspiracy to smear the former president for money and political gain. Tacopina will tell a jury that Carroll turned her accusations against Trump into a "lifestyle," promoted them in an "extensive media tour," and joined forces with those who opposed him.

"Additionally, she colluded with two of her friends, Lisa Birnbach and Carol Martin, who also despise [Trump], to create a false story that [Carroll] reported this alleged incident to them shortly after it allegedly occurred," Tacopina alleged.

Before trial, Tacopina tried to highlight LinkedIn billionaire Reid Hoffman's role in financing a nonprofit group that helped pay for Carroll's litigation, but it remains unclear whether Judge Kaplan will bar that information as irrelevant for a jury.

Even if they succeed, Trump's attorneys may struggle to rope in such a large cast of characters in their narrative of political and financial intrigue, including Carroll's friends, his other accusers, and financiers. Trump will also have to play down the scandal that nearly derailed his 2016 campaign: the "Access Hollywood" tape, which showed him boasting about grabbing women "by the p—-."

In a key pretrial ruling, Judge Kaplan allowed for the admission of that tape, and Carroll's attorneys will argue that Trump was telling the truth to the show's host Billy Bush. Trump survived the scandal that came with the release of that footage in 2016.

On the day of President Joe Biden's announcement of his reelection bid, it remains to be seen whether the same video may hobble Trump's bid for an electoral rematch.