Prejudice, Propensity, and Probative Value: Stormy Daniels Edition

Last week, Donald Trump's defense attorneys twice sought a mistrial after Stormy Daniels testified about her 2006 liaison with Trump: once after the direct testimony and then again after cross-examining Daniels. Judge Merchan acknowledged after the direct testimony that Daniels had included a number of extraneous details but ruled that, given the opportunity for cross, her testimony did not warrant a mistrial. Following the defense cross-examination of Daniels--in which the attempted slut-shaming was very much on-brand for a Trump lawyer but also seemed to backfire by bolstering Daniels's credibility--the defense again moved for a mistrial and was again denied.

Could that be grounds for reversal on appeal? One reason it might not be is that Trump's lawyers didn't object to some of the most salacious details as the testimony was offered and may have thus not preserved the objections for appeal. However, Alan Dershowitz--who, it should never be forgotten, heroically refused to remove his underwear while receiving what he later called a "shoulder massage" at Jeffrey Epstein's lair--recently suggested that Judge Merchan's failure to cut off the testimony sua sponte was itself reversible error (or as the once-somewhat-respected emeritus Harvard law professor put it, "judicial malpractice").

Assuming the objection is preserved, is it sufficient for a reversal? A fully clothed Dershowitz suggested that Manhattan DA Alvin Bragg is following a "roadmap" for reversal by repeating the trial judge's error in the Harvey Weinstein case, which recently led to a reversal of Weinstein's conviction by the New York Court of Appeals (the state's highest court). According to Dershowitz, "the thrust of the Weinstein reversal was that the trial court allowed too much evidence that was more prejudicial than it was probative . . . and . . . the same thing is happening" at the Trump trial.

That's not what the NY Court of Appeals said in the Weinstein case. Dershowitz characterized its holding as reversing the lower courts' judgment about what is generally known in the law of evidence as the prejudice/probity balance. However, the NY Court of Appeals in fact relied on the propensity rule--i.e., it held that the trial judge had erroneously admitted evidence that Weinstein was guilty of uncharged sexual crimes in order for the jury to draw the inference that Weinstein has a propensity to commit sexual crimes and thus committed the ones with which he was charged.

As I'll explain, admission of the Daniels testimony in Trump's hush-money-coverup case was not a violation of the rule regarding the balancing of prejudice and probity. However, there is a nontrivial argument that the admission of other evidence--relating to Karen McDougal--was problematic under the actual Weinstein precedent regarding the propensity rule.

Let's start with the prejudice/probity question that Dershowitz mistakenly associated with the Weinstein case. There is no doubt that the Stormy Daniels testimony was highly prejudicial, but the rules of evidence do not exclude prejudicial or even highly prejudicial testimony. They exclude testimony (and other evidence) that is unduly prejudicial as weighed against its probative value. Some of what Daniels testified about could be described as unduly prejudicial in that it would lead jurors to form a negative impression of Trump without bearing on any material issue. For example, the testimony that Trump didn't use a condom is prejudicial but only tangentially relevant to any disputed fact in the case. This isn't a paternity case, after all.

However, the testimony of Daniels overall was highly relevant, given the defense assertion that Trump never had sex with Daniels and thus had no reason to pay her hush money.

To be sure, the prosecution could win this case even if Trump never had sex with Daniels. Trump could have paid hush money to someone not to peddle a false but believable story. If so, and if he then falsified business records to mischaracterize the hush money as legal fees, he could still be guilty, even if there was never any sex. After all, David Pecker testified that he bought the apparently false story that Trump fathered a child out of wedlock from doorman Dino Sajudin as part of the catch-and-kill scheme. If part of the indictment charged Trump with falsifying business records relating to the Sajudin payment, it wouldn't matter whether the underlying allegation were true or false. Thus, one might think that the Daniels testimony about the silk-or-satin pajamas and the condom-less missionary position sex should have been excluded as irrelevant. In this view, Daniels should have been asked only whether she planned to tell the media that Trump had sex with her and whether she received the hush money not to.

Nonetheless, even if we assume that Trump did not have sex with Daniels, her testimony that he did would be relevant. Indeed, even the details about the pajamas and the lack of a condom would be relevant. After all, regardless of its truth, the more embarrassing to Trump is the story that Daniels would have told the world in fall 2016, the more likely it is that Trump would have sought to buy her silence. When evaluated relative to the actual disputed issue with respect to which the Daniels testimony was offered--did Trump authorize the payment of hush money to her?--the prejudicial effect of the testimony runs through and therefore does not outweigh its relevance.

Moreover, even if one thinks that, all things considered, Judge Merchan should have cut off more of the Daniels testimony, that's not a likely ground for reversal on appeal should the jury convict. Whether the admission of evidence is unduly prejudicial relative to its probative value is a subjective judgment as to which trial court judges get considerable deference. That's why I don't expect the Daniels testimony to result in the reversal of a conviction.

There is a bigger potential problem, however, and that's Pecker's testimony about Karen McDougal, with whom Trump allegedly had an affair and who received catch-and-kill payments from the National Enquirer. Apparently the prosecution had been considering calling McDougal herself to testify but ultimately decided not to do so. Had McDougal been called to testify, that might well have raised a question under the Weinstein precedent, because McDougal's testimony would have been relevant mostly through a propensity inference: the jury might infer that because the Trump campaign's ally at the National Enquirer paid hush money to McDougal, Trump had a propensity to seek payment of hush money to women who might talk about having had sex with him and therefore paid hush money to Daniels. Even without any testimony from McDougal, Pecker's testimony about McDougal arguably violated the propensity rule because its relevance runs through the same kind of propensity inference.

However, the Pecker testimony about McDougal could fall into one of the exceptions to the propensity rule. In New York, where the propensity rule is called the Molineux rule after a 1901 case, the McDougal evidence could be thought to fall within one or more of the exceptions for evidence that aims at showing motive, intent, or a common scheme. To be sure, the trial judge in the Weinstein case admitted the testimony regarding uncharged crimes on the assumption that it fit within a Molineux exception but was reversed by the Court of Appeals.

Even so, the Court of Appeals hardly abolished the exceptions. In light of the tighter logical and temporal connections in time, it's entirely possible to conclude that the testimony about McDougal fit an exception that the testimony from Weinstein's additional accusers did not. Moreover, given the prosecution's decision not to call McDougal herself to testify, any impact of Pecker's testimony about her seems relatively slight. If admitting that testimony was error, it probably wasn't reversible error.

Finally, in this essay I have not addressed another way in which the Weinstein precedent could be relevant to Trump's case. As a second ground for reversal, the NY Court of Appeals said that the trial judge in Weinstein's case erred by allowing cross-examination of Weinstein "about prior, uncharged alleged bad acts and despicable behavior which was immaterial to his in-court credibility, and which served no purpose other than to display for the jury [Weinstein's] loathsome character." The risk of such cross-examination impermissibly deterred Weinstein from exercising his right to testify in his own defense. It has been suggested that a pre-trial ruling by Judge Merchan about the permissible scope of cross-examination of Trump should he testify could likewise result in reversal. I express no opinion about that issue.