“ Judge Merchan chided Trump’s lawyers for not objecting more during Daniels’ testimony”—why?

From CNN:

“The judge responded to their arguments saying, “For some unexplained reason that I still don’t understand” there was no objection to certain testimony cited in the motion for a mistrial and again today.

Merchan specifically pointed to Daniels’ testimony about the trailer park, in which Daniels suggested Trump told her she would be stuck living in a trailer park before they had sex in 2006. The judge said he felt that was unnecessary and he objected himself.

Another example listed by Merchan was the testimony about Trump not wearing a condom. Merchan said he was surprised attorney Susan Necheles did not object.

“Why on earth she (Necheles) wouldn’t object to the mention of a condom I don’t understand,” Merchan said.”

What would the grounds for objecting be, and why is this seemingly such an obvious move that the judge is commenting on it?

in Ask_Lawyersby seammus

302

96%

23d

The_Amazing_Emu

166

VA - Public Defender

23d

They’re arguing that the testimony was so inadmissible and prejudicial that it warranted a mistrial but didn’t object to that testimony in the moment.

Edit: typo

Csimiami

124

Criminal Defense and Parole Attorney

23d

Raise it or waive it is what we’re taught as trial lawyers

generousone

23d

Angling for ineffective counsel? Even the trial judge is acknowledging their mistakes on the record

slothrop-dad

CA - Juvenile

22d

If someone is angling for ineffective assistance they are angling to lose, bad. Ineffective assistance is very, very rare. You have to royally screw up. Being a coke head for falling asleep during a death penalty case aren’t enough in a couple notable cases.

Only_Razzmatazz_4498

23d

Would that be valid when you hired said counsel?

megggie

23d

I’m curious about this as well.

Isn’t this only an issue when the defendant is supplied an attorney?

CyanideNow

Criminal Defense

23d

BobertFrost6

23d

Did you mean warranted a mistrial?

The_Amazing_Emu

VA - Public Defender

23d

Yeah, posting from my phone

superdago

213

WI - Creditors' Rights

23d

None of it is relevant and it’s prejudicial. It’s basically character testimony. But it sounds like the judge is more taking issue with those statements being a basis for the motion for a mistrial when there was no objection at the time. Basically, you can’t be ok with the witness just saying whatever, and then afterwards say “oh but she shouldn’t have been allowed to say all that so you should just throw the case out.” If they didn’t like the testimony, they could have objected and it sounds like the judge would have gladly directed to witness and counsel to move on to something more relevant.

This is the among the most forceful ways you’ll ever hear a judge call an attorney a dogshit litigator.

Tufflaw

NY - Criminal Defense

23d

Oh I can think of more forceful ways, in particular a certain judge who said to me in open court "everything that comes out of your mouth is garbage".

Zealousideal_Tale266

23d

Was it?

Not_An_Ambulance

Texas - Cat Law.

23d

I'm not him, but I'll just say that SOMETIMES the best you've got is a ridiculous interpretation of some law.

Sometimes, the Judge doesn't understand some portion of the law AND has an ego, so when you're trying to politely explain they've misunderstood something they decide they can't be wrong, you must be making a ridiculous interpretation of some law.

Tufflaw

NY - Criminal Defense

23d

No the Judge was just being dick, he wanted me to agree with the defense attorney on something that I wasn't required to and I said I wouldn't. When he asked why, I started to explain and then he said something like "a simple no would have been enough, everything that comes out of your mouth is garbage".

seammus

23d

Excellent, thanks for the detailed answer!

SkyPork

23d

the most forceful ways you’ll ever hear a judge call an attorney a dogshit litigator.

"You are a dogshit litigator" is a phrase that needs to happen more often in courtrooms. How else will they learn?

Dr_Gimp

23d

In the E. Jean Carroll cases and this case, Trump's lawyers seem to be incredibly incompetent. Why is that?

Obviously he should be able to afford a "dream team" like OJ Simpson but it seems like he's getting newly graduated law school students.

bornconfuzed

NH/MA - Litigation

22d

He never pays anyone [and source 2 for that fact] and he wants lawyers who will just do every unethical thing he demands. Any lawyer who wants to both get paid and keep practicing law doesn't want to work with him.

SMIrving

LA - Complex personal injury and business litigation

21d

Yes, and the other thing is that a lot of the objectionable testimony (not the trailer park stuff the judge objected to) was as much as any, character evidence that reflected on the witness as much as trump and the evidence fit into the defense strategy of slut shaming the witness. Until the motion for mistrial, the judge has to consider the possibility that the defense would argue they wanted the evidence and he would look biased if he cut it off.

82ndAbnVet

-26

MS - Personal Injury

23d

I call bullshit. Judge is trying to cover his own ass.

superdago

WI - Creditors' Rights

23d

Is there a difference between “Cover his own ass” and “make a record for appeal”?

How is he covering his ass by explaining that the motion is denied because the basis is essentially an untimely objection that is waived? He could have said nothing, and then on appeal it would be an issue subject to some legitimate review, but now that he’s made a record, an appeal court will just say “the judge indicated the basis, it’s not a clear and obvious error, so we won’t change it.”

Moderator removed comment

23d

82ndAbnVet

-22

MS - Personal Injury

23d

There are no experts in n law, we are not allowed to call ourselves that, but after 33 years of practice across different states and various types of courts in criminal and civil cases, hundreds of jury trials, I may have had to confront these issues just a bit. I’ve been threatened with jail for making an objection by an irrational judge well known to put lawyers in jail. But you must be much more skilled and experienced than me so I’ll defer to your obviously unbiased, learned opinion

slam2foul

NY/State Gov't/Investigations

23d

I haven’t been keeping up with the case but a typical objection would be that the testimony is more prejudicial than probative in value. That is, if the point of the testimony is only (or mostly) to make the other party look bad, but it doesn’t help the jury determine a fact in dispute, then it should not be introduced.

AndrewRP2

Law talking guy

23d

Exactly- and the defense should have objected, but didn’t. Now they’re claiming a mistrial for that same testimony. Nope, not going to fly.

Most of the salacious parts of this trial could be avoided if Trump admitted he had sex with her. But he’s more interested in attacking her and keeping up the lie than the defense strategy.

EWC_2015

NY - Criminal

23d

Which, to be fair, is putting his lawyers between a rock and a hard place, but then again...they willingly signed up for this. As I've said several times throughout this whole debacle, you couldn't pay me enough to represent a client like that. He's used to micro-managing and getting his way to an extreme, which means he will *not* listen to any advice, even if it could get him an acquittal.

kwisque

this is not legal advice

23d

The time to object to something is when it’s happening so the court has a chance to stop it. Waiting until the testimony is complete and then moving for a mistrial is pretty obvious strategy, and judges hate that shit. A mistrial is always considered a win in a criminal trial, and in this case that’s especially true.

mattymillhouse

Texas - Civil

23d

As usual, neither CNN nor reddit is being particularly fair in its coverage here. But I'm pretty shocked at the answers here. Trump's lawyers did object. The judge just thought they should have objected more. So people saying Trump's lawyers are "dogshit" because they didn't object at all are wrong.

His lawyers may (or may not) be dogshit. But they objected. Multiple times.

Contrary to what most of the posters here have said, Trump's lawyers made an initial objection to allowing Stormy Daniels to testify at all. Trump's lawyers argued that her testimony was irrelevant and prejudicial. What the money she was paid was for -- and whether she had sex with Trump, and a whole bunch of other things she testified to -- have nothing to do with the criminal charges against Trump. The judge overruled those objections and allowed her to testify.

This creates a Catch-22. Because if a judge overrules your objection, and then you continue to make the same objection to literally every question afterward, the judge is going to get mad. "Stop objecting. I've already said this testimony is relevant."

And if you're objecting to literally every question, you're signaling to the jury that you desperately want every word of this kept out. The jury is going to think this testimony must be really, really bad for you.

Trump's lawyers did object to the testimony at the beginning. And they did make more objections throughout the testimony, especially when the testimony started to go further afield.

Did Trump's lawyers do enough during trial to raise the issue in a motion for mistrial? We don't really know. Because this isn't an exact science.

Typically, an objection at the beginning is enough to put the judge on notice that you think the entire line of questioning should be excluded. So you don't need to object to literally every question that's asked. That broad, initial objection preserves the issue for appeal.

But if some of it should come in, and some should be excluded, then you are supposed to object to the questions that should be excluded. And you waive any objections that are not raised.

Which is this? I don't know. Trump's lawyers also don't know. And the other posters here -- who apparently don't even know whether Trump's lawyers made any objections -- don't know.

Why didn't Trump's lawyers object more? Typically, if the judge is going to let some of the testimony in -- but not all of it -- you'd want the judge to give you some sign that he's considering excluding some of the testimony when he rules on your objection at the beginning: "I'm going to allow this to come in, but not that" or at least "I'm overruling the objection, but let's see how this goes." The judge didn't say either of those things. He just overruled the objections.

The judge apparently thought that when he jumped in and excluded some testimony -- without even needing an objection from Trump's team -- that he was signaling to Trump's lawyers to object more often.

It's possible the judge is right. It's possible that Trump's team should have objected more often. But lawyers aren't mind readers. So you can't expect them to know exactly where the judge intended to draw the line.

Another example listed by Merchan was the testimony about Trump not wearing a condom. Merchan said he was surprised attorney Susan Necheles did not object.

“Why on earth she (Necheles) wouldn’t object to the mention of a condom I don’t understand,” Merchan said.”

In probably every trial that has ever happened, there have been questions that, if someone had objected, the judge would have sustained the objection. But again, this isn't an exact science, and we're not mind readers. As a lawyer, you have to make a call. Is it worth objecting to this?

A lot of times, the damage is already done. So there's no reason to object. In this case, the court allowed Stormy Daniels to testify that she had sex with Trump, that they had sex in missionary position, how many minutes it lasted, and that she just stared at the ceiling and wanted it to be over.

If the judge let all that in, are you really going to object to the question of whether Trump wore a condom? Isn't the damage already done? Is Trump wearing a condom really the question that crossed the line there?

According to the judge, yes, that was the question that crossed the line. And in isolation, it does seem pretty bad. But when you put the question in context, it's probably not really any worse than the other questions the judge let in.

EWC_2015

NY - Criminal

23d

What the money she was paid was for -- and whether she had sex with Trump, and a whole bunch of other things she testified to -- have nothing to do with the criminal charges against Trump.

Except they opened on it and created the issue of whether the affair (the reason for the payment in the first place) ever happened. Once they claimed in their opening statement that the affair never happened and Daniels was lying, they opened the door to the prosecution eliciting evidence from her about the affair and/or whatever corroborating evidence they have because her credibility has now become an issue at the trial.

You can't successfully argue to preclude evidence at a trial and then go on to comment on said evidence in a manner most advantageous to your client. That's completely misleading and it will result in exactly what is happening here, which is evidence that would otherwise be irrelevant is now allowed to come in.

My understanding is that Merchan did sua sponte sustain objections on at least several occasions, which should've signaled to the attorneys to pay closer attention and object more than they did. Just use your common sense. For example, how is the fact of whether he used a condom or not even remotely relevant? It's not. It has nothing to do with the ultimate question of whether the affair happened and/or whether Daniels is a credible witness or not. I also can't believe they didn't object to that.

mattymillhouse

-1

Texas - Civil

23d

Except they opened on it and created the issue of whether the affair (the reason for the payment in the first place) ever happened.

The prosecution said in its opening statement that Trump had a sexual "encounter" with Stormy Daniels. So the prosecution brought it up, not Trump.

Once the prosecution brings it up, you'd expect the defense to rebut that allegation. That's perfectly normal. The prosecution opened that door. Not Trump.

You can't successfully argue to preclude evidence at a trial and then go on to comment on said evidence in a manner most advantageous to your client.

Again, the judge already admitted her testimony. Trump's objections and motions were denied. So they didn't "successfully argue to preclude evidence at trial and then go on to comment on said evidence in a manner most advantageous to your client." That's false.

For example, how is the fact of whether he used a condom or not even remotely relevant? It's not. It has nothing to do with the ultimate question of whether the affair happened and/or whether Daniels is a credible witness or not.

How is the fact that they had sex relevant to the criminal charges against Trump? But the judge let that in, along with testimony about what positions they had sex in, how long the sex lasted, whether she enjoyed it, etc.

If the judge admits all of that, it seems pretty unfair to assume that Trump's team should have objected to the question of whether he wore a condom. Yes, it's irrelevant. But it's not more irrelevant than how long the sex lasted, whether they were in missionary position, etc.

Lawyers are not mind readers. No one other than the judge know exactly where the judge was going to draw the line. And it's unfair to suggest Trump's team should have known to object to whether he wore a condom, when all sorts of salacious and irrelevant allegations were admitted prior to that over the Trump team's objections.

WrinklyScroteSack

23d

Is it normal for a judge to chide a lawyer for not more actively objecting? Is this inability to read the room/judge indicative of a bad legal team? if you were the prosecutor in this case and the judge just scolded the defense for not being more active, are you feeling pretty good about the potential outcome?

EWC_2015

NY - Criminal

23d

It honestly depends on the judge. Some judges are more active than others whereas some judges take a "I'm not doing their job for them" approach. It doesn't necessarily reflect bad lawyering in itself; it can be the result of just unfamiliarity with a particular judge.

AndrewRP2

Law talking guy

23d

They denied the affair occurred. They brought in Daniels to rebut that.

Generally objecting to a witness where your opening is claiming the affair never occurred, isn’t sufficient.

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23d

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