My wife (a Lawyer) is not thrilled with Stormy Daniels' testimony...

[brooklynite]

Her adding unnecessary detail to the sexual activity testimony may offer Trump an appeal on the grounds of tainting the Jury. Reminder that rape/sexual assault, etc. are not charges in this case. All she needed to do is testify that they had sex which Trump needed to cover up.

[emulatorloo]

1. Apparently defense didn't object though.

[brooklynite]

2. But the Judge did.

Its been suggested that the Defense didn't object precisely to have grounds for an appeal. They know he'll be found guilty on the actual business/election fraud charges, and need something else to throw the case out.

[Tommy Carcetti]

4. Then the issue of waiver would come into play.

Ask your wife about that.

[hlthe2b]

20. Yes. The very fact the defense(apparently) chose not to object is an issue. Their strategy may

have been "too cute by half"... even though most analysts would agree that streamlining that aspect of the testimony would have been better (and certainly less cringe-worthy). That said, Daniels has a right to testify and show her human side--which she did--even with extraneous details, which likely increases her believability. So, it cuts both ways.

[emulatorloo]

21. Judge called them out for not objecting. That's in the record.

[a kennedy]

17. Wasn't tRump poking his attorney to object to stuff being said, was that about the details???

cause I thought I heard that tRump kept poking his attorney to object to stuff.

[poozwah]

30. poking?

trump’s poking is what has gotten him to where he is today!

[a kennedy]

61. Oh my, too funny. 😂 🤣 😂

[Tommy Carcetti]

3. I think it helps to establish motive.

Simply testifying “we had sex” and leaving it at that with no further detail makes the claims easily dismissible by Trump.

On the other hand, providing the proper narrative lays the foundation as a story that Trump did not want getting out.

For what it’s worth, I believe it was Tyler McBrien who has been in the court room and providing a live Twitter feed said that at the end of the day, none of the jurors even looked at Trump as they were exiting the courtroom. Take that for what it’s worth.

[Oopsie Daisy]

7. I agree. He's cheated so many times that "we had sex" would barely raise an eyebrow *

* and Trump knows it. He wouldn't care. But the fact that it played out as it did, well, he knows that too. And THAT'S what he was so concerned about and wanted to cover up.

[brooklynite]

9. Wrong...

The additional detail is only relevant to the accuracy of her testimony if the prosecution can then present corroborating facts (Trump owns silk boxer shorts; he and Melania don't sleep together), which they didn't.

[getagrip_already]

18. but at the same time...

They haven't refuted any of those facts either. They won't put melania on the stand, and they won't put trump on the stand.

In totality, she painted a picture that only someone who had been there would have known. None of it has been refuted.

And the defense has to be careful not to open doors. If they aren't careful, there is one detail stormy can offer that a doctor can corroborate. They do this even in child rape cases where the child describes a feature, birthmark, or deformity. The court issues a search warrant and a court appointed doctor inspects the defendent.

Do they really want to start saying she has her facts wrong? really?

[Tommy Carcetti]

44. Testimony can be offered for more than one reason.

It can be offered for the truth of the matter asserted, or in other words, to prove that something actually took place.

But it can also be offered simply to prove that something was said, regardless of whether or not it was true, if the statement itself is at issue.

An example of this is defamation cases. A statement can be offered into evidence, not to prove what was said was true (and in the case of defamation, the exact opposite of that), but rather that it was said at all.

This is why there is a fine line about what is and what is not hearsay.

So regarding the statements about boxer shorts or Trump's sleeping arrangements--if those were part of the original story offered by Daniels years ago, then they certainly can be relevant and admissible as to the extent of what Trump might have wanted to suppress from coming out.

Of course, if those were just details brought out later on, yes, perhaps they could be viewed as irrelevant and/or prejudicial.

[MorbidButterflyTat]

62. Isn't that for the jury to decide?

[Raven123]

5. I have heard that elsewhere

I have mixed feelings about Daniels’ testimony. On the other hand, every one knows TFG has been an adulterer. Why would he pay the sum he did just to silence an accuser? His defense team claimed in opening that he is a good family man.

Also, he could simply testify that she lied and go on with whatever argument they plan to use about the payment. It’s unclear to me where the defense will land on this. Some level of detail lends credibility to the Daniels’ claim. Unfortunately she went too far.

I just hope the prosecutors can keep Cohen from doing the same thing.

[spanone]

6. She said it was consensual. Never said rape or sexual assault.

[brooklynite]

12. But people here have.

[spanone]

19. Irrelevant.

[emulatorloo]

23. Speculation from anonymous DU'ers doesn't matter in the court AFAIK

[MOMFUDSKI]

8. This is the only chance of getting some of

the goods on clown out before the election. Unless Jack goes ahead with major leaking. All other trials are stymied.

[brooklynite]

11. It's not the job of the prosecution to "get the goods out" before the election. Its to get a conviction.

[Happy Hoosier]

25. Quite so, and they are doing just that.

Trump claims the sex act didn't occur. Details of event add to the witness's credibility.

If Trump's lawyers thought this detail was too prejudcial, then they should have objected to it at the time.

The fact that they didn;t means one of three things:

1) They are incompetent (not so, according to a number of analysts I've seen)
2) They didn't think it was too prejudicial, but decided to object after the fact becasue Trump lost his damned mind. (that last part is sepculation)
3) They are were TRYING to force a mistrial. That's not gonna work, since as mentioned by a number of people, they have a duty to object to inadmissable testimony as it is occurring.

Simply put, by not objecting as the testimoney was given, they pretty much shot themselves in the foot. As Merchan said... the defense has to take some responsibility for prejudicial testimony if they didn;t object to it.

[brooklynite]

26. BUT, if the conviction gets tossed on appeal...

[Happy Hoosier]

29. On what grounds?

The defense saying "we fucked up?" Unless they want to decalre themselves "ineffective counsel," which would be devasting to their reputations, that has no teeth.

And Lawyers generally cannot object later to evidence that they did not object to at the time, as Merchan said.

If they fucked up, that's on them. If they were attempting to set a "mistrial trap," That's not permitted.

Short of an ieffective counsel claim, they have no grounds.

[brooklynite]

31. On the grounds of tainting the Jury by brining up unrelated character issues about Trump.

[Happy Hoosier]

35. Did you read my posts at all?

If the defense had objected and Merchan overruled the objection, they'd have grounds for reversible error.

What's the reversible error here? "Your honors, we suck and didn't do our job properly?"

Appeals require actual reversible error on the judge's part. Not just that they didn't like the testimony that THEY didn't object to!

If they argue that the testimony should not have been allowed, the appeals court will argue "why didn't you object at the time?"

[hlthe2b]

39. Yes. We discuss this upstream. Any & all due respect to Brooklynite's attorney wife but...

she does not appear to have considered or at least discussed this. The issue isn't whether or not they can appeal (they will find something, regardless, to try to mount an appeal). The issue is whether it is backed with true grounds for overturning a prior court judgment and that is NOT a low bar. Justice Merchan is very much aware of this (and Trump's lawyer's desperate tactics/strategy). He appropriately stepped in when the defense failed to do their due diligence in mounting objections and made it quite clear to note this on the record.

And no, it is not required that prosecutors recover Trump's clothing or anything else to validate Daniel's statement as was stated upstream. This is not a rape trial. Her role is merely to show the story from her POV that might have been made public had she not been paid off. Thus, the jury can see WHY the illegal payment strategy was launched and supports why Trump would have had the motivation to do what he is alleged to have done via Michael Cohen to prevent her story from coming to light just prior to the election (and after the already damaging release of the Access Hollywood tape).

[bluestarone]

37. Difference is, might be unrelated but TRUE?

It's not like they were bringing things up that were (are) false? Also with NO objection from defense, i'd say they are NOT out of line. This also was Stormy responding to a DEFENSE question right? So i'm thinking can't blame the prosecution. But i'm no lawyer, so i just hope they cannot appeal.

[brooklynite]

38. You can't bring up evidence that's true but irrelevant.

[bluestarone]

52. Was evidence brought up by the Defense?

Would that make a difference?

[brooklynite]

56. The Defense doesn't bring up evidence until the Prosecution rests.

[Happy Hoosier]

57. Which is when the defense can and should object.

If they do not object, it implies they believe the evidence is admissable. This is an adversarial process. They didn't push back when they should have and that's on them.

[Happy Hoosier]

54. They can and will appeal, but...

... they don;t have any grounds for appeal here. Merchan told them at the ouset it was their responsibility to object to testimony they found objectionable. They didn't do so. Too bad, so sad.

[MOMFUDSKI]

41. It could be both.

Prosecutors will do what they want.

[mackdaddy]

10. I think this is why the judge asked Trump's lawyers why they did not object more.

He said that it was not his job to object and that he would have sustained if they had objected.

Although the crimes being prosecuted here are all financial and document falsification, THIS story is why all of that was done, and this woman was the direct recipient of the payoff. So was the story bad enough for Trump to pay all of this and do all of these coverup actions?

And Trump has been saying that she lied about everything. Her telling her story, in her own words, with the amount of details about the room, their interactions and discussions help the jurors decide if she was being truthful or not.

I have no doubt that this will be used in the appeal and it might be why Trumps lawyers did allow it to go as far as it did. They do not have much else.

Trump loves to whine about his 'testimony' being gagged. The person who's actual testimony was being gagged was Stormy Daniels being told what parts of her story she could not tell...

[Happy Hoosier]

27. "this will be used in the appeal and it might be why Trumps lawyers did allow it to go as far as it did."

You may be right, but their argument will collapse once the appelate judges ask "why didn't you object to the testimony as it was occurring?"

If there answer is "we wanted grounds for appeal," that's a tough argument!

[PCIntern]

13. Jesus H.....

There wasn't THAT much detail: condom or no condom, what he was wearing...it wasn't a porno novel designed for "release" and gratification. I don't get the pearl-clutching and faux-virginal whining about the "details" - I would post a true narrative with real details but it'd be alerted upon in about 15 seconds by the easily-offended. I'll put it this way: if an individual with whom I were having a sexual relationship posted one of these gasping-revulsion rejections of these innocuous details, I would be embarrassed as a partner. Ridiculous.

[brooklynite]

16. And yet the Judge felt the need to tell her to stick to the relevant facts.

[emulatorloo]

22. That's his job. And he did it.

Defense did not do their job. See Mackdaddy post #10.

[PCIntern]

50. And the facts include the fact that they had sex and it is vitally

important to hammer home the fact that it was not a lie which she told, as the defendant claims. Details help. The judge was acting as the judges normally do since he did not know exactly what she might say in open court. Somehow, all the adults in the room survived.

[Jersey Devil]

14. and if she didn't give all those details you can bet the ranch

that the defense would argue on summation that her failure to give details shows that she is making up the whole story, allowing Trump to continue arguing that the event never happened.

[SARose]

15. It doesn't match his macho image

What would you think had she said he sent a limousine; we went to dinner at fill-in-the-blank restaurant; he ordered champagne; we drove to his hotel; had sex; he sent me 3 dozen roses the next day.

He is “embarrassed” because he treated her (and still does) like a piece of meat.

PS - that’s why he paid her off, IMHO.

[Happy Hoosier]

24. Heard a lawyer saying why that detail is okay...

1) Trump denies sex occurred. Her testimony to the details of the event is evidence to the fact that the event DID occur. The payoff is the matter at issue, but Trump claiming the act did not occur is an attack on her credibility which IS defensible.

2) It could even go so far as describing genetalia. Daniels' "mushroom" description could be evidence of an actual sexual act if Trump's tiny knob IS in fact mushroom-like.

3) It's Trump's lawyers' job to object to testimony, not the Prosecutor's, or the judges. If they did not object to testimony when it was given, it's difficult to argue later than it should cause a mistrial, because all the judge reviewing the case has to ask is "why didn't you object to the testimony?" "I made a mistake." is not a reversible reason.

[NanaCat]

28. Sexist much?

It's not Stormy's job to determine the scope of her testimony. She's not a lawyer, so why expect her to know where the lines need to be, legally? And why are you going the same old tired misogynist route of blaming a woman for the failure of lawyers or the court to help her understand where those lines are?

[MorbidButterflyTat]

64. No shit.

Will the male witnesses be judged as harshly and blamed for any and all missteps, real or imagined?

GAWD this crap is beyond old.

[niyad]

32. Andrea Marcotte at Slate has a very different view.

[SunsetDreams2]

33. No, all she NEEDED to do is tell HER TRUTH

That’s what she did. If she was allowed to elaborate on HER TRUTH, that is the defense problem, not hers! The most he can hope for is “ineffective assistance of counsel” on appeal.

[Patton French]

34. I've heard a fair number of legal observers express that opinion.

The prosecution pushed the envelope too far unnecessarily, and it may backfire.

[LiberalFighter]

36. It was explained that the judge will likely instruct the jury what can be considered.

It is the defense making mistakes. That doesn't justify a mistrial. The judge has now warned the defense they didn't object to what they had complained.

[brooklynite]

43. And the defense will appeal that.....

.....you can't instruct the Jury "Ignore the fact that the defendant did something sleazy" after the fact

[Prairie Gates]

47. Donald Trump's going to appeal if he gets convicted?

Wow!

I'm glad we had a lawyer spouse around to fill us in on this obscurantist bit of legal arcana.

[intheflow]

58. Just a reminder to the jury that it's not a rape trial

should be enough. “Consider Mrs. Daniel’s account as the motivation for the defendant to pay her off. She didn’t bribe him, he/his representative approached her.” If the judge puts the testimony in context like this, he’s done his due diligence. And of course, the defendant did do something sleazy, the pay off.

[dpibel]

63. Very silly

You're wife's not a trial lawyer, right?

You clearly have no idea how these things work.

That kind of curative instruction is commonplace.

[unblock]

40. this is flat out incorrect. there's no rationale to limit her story to the fact that they had sex

yes there is a rationale to limit her testimony to what's relevant and material to the case, and extraneous details may not be relevant and material and could be prejudicial. sure.

but the case isn't specifically about the sex, the nda didn't specifically mention the sex, and there's no basis for assuming that the reason for the nda and the payoff and the desire to keep her story out of the media was simply the fact that they had sex.

the nda and the payoff and the silencing was about her entire story and/or embarrassing details that donnie believed might have been highly damaging to his image.

and sure, it's reasonable to think that the mere fact that they had sex was the main image problem for him here.

but there's no reason to think that the specific details wouldn't also be worthy of coverup. as others have noted, he was already known to be an adulterer. but he wasn't known to like being spanked, for instance. *that* could certainly be part of the reason, or even a big part of the reason, to want to keep her quite.

or the fact that it seems he was the aggressor. the need to silence her might have been different had she been the aggressor or even somehow coerced him.


anyway, what's legally relevant is not specifically that they had sex. what's legally relevant is that she had a story to tell that he thought was sufficiently embarrassing to want to keep out of the media. that story *include* sex, but there's no reason to arbitrarily limit her story to the simple fact of that they had sex.


never mind that the only way she could convince anyone that they had sex 18 years ago would be to tell a credible story, which necessarily involves providing many more details than simple "yes, we had sex".

[Orrex]

42. When Jodi Arias was on trial for murder...

CNNHN ran an extensive live broadcast of her testimony about the nature of her panties and the sex fantasy roleplay that she'd engaged in with her victim.

I don't recall any concerns about jury-tainting in that case.

[Prairie Gates]

45. ...

[The Magistrate]

46. Cheer Up, Fella, One Day There'll Be Blue Skies Once More....

[Elessar Zappa]

48. Other legal experts have a different view than your wife.

[JohnnyRingo]

49. It wasn't encouraging when even the judge said it was TMI.

To the rest of us it was political porn, but it may come at a cost.

[walkingman]

51. Trump will appeal regardless.

[Barry Markson]

53. Well, she's back on the stand today

Trump's team seemed a bit caught off guard by her appearance Tuesday but has now had Tuesday night and all day yesterday to prepare for cross.

There is no gag order in the courtroom.

[Tickle]

55. I was not thrilled myself

and I stated it here on DU. My post got removed.

[bucolic_frolic]

59. With her profession and personality, she was simply going to go there, no matter what.

I don't think that will shock a jury. As to rules of evidence, that's for the lawyers and judge to hash out. The judge knows two things at this point: A prime witness has strayed into the rough, and the defense is more interested in piling up grounds for appeal than in asserting their objections.

[MorbidButterflyTat]

60. What is your wife basing her opinion on?

Was she in the courtroom? Did she study the transcripts? Have they even been released, I wonder. Talking heads on various news shows and/or podcasts, etc., maybe?

If Stormy's testimony would be grounds for appeal then why didn't the judge grant a mistrial when the defense brought it up?

"I'm a lousy defense attorney and didn't object when I should have! Appeal!" Sounds kinda lame.

BTW....why is your wife blaming Stormy Daniels for her "unnecessary" testimony? Isn't that the prosecutors' job? Aren't they in charge of their own witnesses?

"...adding unnecessary detail to the sexual activity testimony.." Like what? There was no sexual activity testimony. The judge specifically said, no mushroom talk.

[BannonsLiver]

65. And?

She also thought there would be a recession last year. Didn't happen. Opinions are like...

[XanaDUer2]

66. Snort