What E. Jean Carroll must show to prevail in the defamation trial against Trump

Carroll has to prove that she is entitled to damages from Trump for defamation by a preponderance of the evidence, a standard used in civil cases that’s lower than what’s required in criminal trials.

That evidence standard was used in Carroll’s civil defamation case last year, in which a jury found that Carroll proved Trump had sexually abused and defamed her by a preponderance of the evidence, but that she did not prove Trump had raped her, as that crime is narrowly defined by New York’s criminal laws. Trump has appealed the verdict.

Carroll’s case last year, in which she was awarded $5 million for battery and defamation, focused on comments Trump made about Carroll in 2022. The current case is about Trump’s statements when he was president in 2019. Carroll is seeking over $10 million in damages.

Trump is expected to be in court when the trial resumes Monday.

After the jury was sworn sworn in last week, Judge Lewis Kaplan compared the preponderance standard in the case to a scale.

“What a preponderance of the evidence means is that the plaintiff has to produce evidence which, considered in light of all of the facts, leads you to believe that what the plaintiff claims is more likely correct or true than not,” Kaplan said.

“To put it differently, if you were to put the plaintiff’s and the defendant’s evidence on opposite sides of metaphorical scales, the plaintiff has the burden to make the scales tip, even if only slightly, in the plaintiff’s favor,” the judge continued. “If they tip slightly for the plaintiff or heavily for the plaintiff, then the plaintiff has prevailed by a preponderance of the evidence. If they tip even slightly for the defendant or heavily for the defendant, then the defendant prevails on that issue.”

Carroll testified at the trial last week that Trump’s statements after she went public about his allegedly having sexually assaulted her shattered her reputation and led to an onslaught of threatening messages.

“I was attacked on Twitter. I was brutally attacked on Facebook. I was attacked in news blogs. I was attacked in messages,” Carroll testified. “As I said, it was a new world. I had left the world of facts, a lovely world, and I was living in a new universe.”

This current trial is not considering whether Carroll proved the sexual abuse allegations, as Kaplan ruled ahead of trial that the verdict in the first trial — that she proved Trump had sexually abused her by a preponderance of the evidence  — will also carry over to this case.

Trump could still testify in the case after Carroll’s attorneys wrap up their case, though it’s not clear if he will do so. His testimony would be limited, as Kaplan has ordered restrictions that Trump will not be allowed to testify that he didn’t assault Carroll or that she lied about the rape allegation — since those questions are not before the jury.

Outside of court, Trump has continued to deny Carroll’s allegations, while in court his lawyers have argued that Carroll’s reputation was not damaged by Trump’s statements in 2019, and that she faced a negative backlash from her story even before Trump commented.

In last year’s trial, Carroll also had to prove by “clear and convincing evidence,” which is a higher standard of proof than preponderance of the evidence, that Trump’s 2022 statement was false and that Trump made the statement with “actual malice.” The jury found Carroll proved both claims.

Kaplan told the jury in this trial that some questions in this case may also have a higher evidentiary standard.

“Typically, the plaintiff in a civil case has the burden of proving her case by what we refer to as the preponderance of the evidence. On some issues, the burden of proof is higher. Should it become necessary, I’ll explain that to you in this case, too,” Kaplan told the jurors Tuesday.

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