Witness credibility is crucial at any trial. Donald Trump’s criminal case in New York is no exception. But Tuesday’s court proceedings remind us that some of the most important evidence doesn’t always come from witness testimony alone but also from documentary evidence that can’t lie or be cross-examined, like text messages.
Consider the testimony of Keith Davidson, whom Manhattan prosecutors called to the stand Tuesday. The lawyer represented Karen McDougal and Stormy Daniels, two women who claimed to have had sex with Trump and allegedly were paid to keep quiet about it ahead of the 2016 presidential election to help Trump’s campaign.
But the prosecution didn’t merely ask Davidson to recall the happenings of nearly a decade ago. Rather, the state walked him through texts from that time that the jurors can not only see themselves as they learn about the case but also, ultimately, consider when they decide whether prosecutors have proved their case beyond a reasonable doubt. Trump has pleaded not guilty to falsifying business records, which prosecutors say he did to cover up the hush money reimbursement to Michael Cohen, and denied having a sexual relationship with Daniels or McDougal.
With Davidson on the stand, prosecutors were able to show jurors texts between him and Dylan Howard, the National Enquirer’s editor-in-chief at the time. Recall that the trial’s first witness, former National Enquirer publisher David Pecker, testified that he was looking to kill negative Trump stories to help the 2016 campaign. Further laying the foundation for their case, prosecutors spotlighted a series of texts, including one in which Davidson told Howard ahead of the election that he had a “blockbuster Trump story,” referring to McDougal.
As a general matter, it’s difficult to overstate the power of objective evidence like this, especially in a case where the sides could be focused on the credibility and motivations of witnesses in their closing arguments. That’s not to say that jurors wouldn’t believe Davidson’s testimony without these texts, but they help to corroborate the state’s argument that this was an election-related conspiracy. As a general matter, it’s difficult to overstate the power of objective evidence like this, especially in a case where the sides could be focused on the credibility and motivations of witnesses in their closing arguments. So, throughout this historic trial, when thinking about the importance of testimony from both higher- and lower-profile witnesses, the reality is that all of the testimony matters to varying degrees. That’s why prosecutors are putting it on. But sometimes, the most important evidence isn’t witness testimony itself, but rather cold, hard documentary evidence that serves as a time capsule that jurors can use to judge the case for themselves. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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