A Daily Kos story which was posted a few minutes ago reports that Trump’s attorney strongly suggests that Trump will not attend the trial or testify.
As a trial lawyer of 40 years, it seems to me that this is the equivalent of throwing in the towel and conceding that the verdict will be for Ms. Carroll.
The only reason I can think of why Trump would choose to go to trial in a civil case and not testify is to spare Trump the humiliation of having his testimony heard by the jury and the jury entering an unequivocal finding that the is lying (by voting for Ms. Carroll).
Let me explain.
Under the rules of evidence, every statement of Trump which makes it more likely that Trump did what Ms. Carroll alleges can be admitted as an “admission” or a “statement against interest.” So, the judge has ruled that Trump’s “grab them by the p_____y” statement and others can be admitted. Any statements made by Trump in his deposition which make it more likely that he did what Ms. Carrol alleges are admissible.
Similarly, the testimony of other women who experienced similar conduct by Trump is admitted as evidence of Trump’s “pattern or practice”. This is because similar conduct with others is probative of what Trump did to Ms. Carroll.
On the other hand, without Trump testifying that he did not do it, Trump’s attorneys have no way to present any defense at all. They cannot introduce Trump’s out of court denials that he raped Ms. Carroll. Out of court statements are not evidence. Even his testimony in his deposition that “I would never have done it because she is not my type”, can’t be presented to the jury. The only parts of depositions which can be presented to the jury are those which impeach, not support, the non- testifying person.
So, without Trump testifying, his attorneys can try to discredit Ms. Carroll and her witnesses. But, that is all.
In rebuttal, Ms. Carroll’s attorneys are entirely free argue to the jury that Trump’s absence is an admission of guilt. (The 5th amendment privilege against self-incrimination only applies in criminal cases.) They can say “If he didn’t do it, why isn’t he here testifying before you? The reason he is not here is that if you heard him testify, you would know he is lying.”
Trump’s pattern in other cases where he has faced imminent trial defeat has been to settle at the last moment—e.g. Trump University litigation. So, what is happening here? My guess is that settlement negotiations have occurred, and Ms. Carroll has refused to settle without an admission from Trump that he raped her and defamed her.
Faced with having to make an admission and pay some amount of $$$, Trump has no alternative but to go to trial. But, facing almost certain defeat, Trump can save a small amount of face by not testifying and then claiming the trial process was unfair.
More tea leaf reading. I thought Trump’s lawyers showed desperation a few weeks ago when, after refusing for years to allow a DNA comparison between Trump and Ms. Carroll’s dress, they reversed course and sought a trial delay for such a test. If Trump knew he had not sexually assaulted Ms. Carroll, he would have been eager for such the DNA comparison. That he waited until the last moment showed desperation. The lawyers knew that they would lose and threw a hail Mary in the hopes that the lapse in time would defeat the comparison.
I may be wrong, but that is the way things seem to me from the available information.