There’s something very striking about Stormy Daniels’ testimony in the Donald Trump hush money trial. Usually, character evidence is not admissible to prove a criminal defendant’s conduct on a specific occasion. It’s called “Rule 404” evidence, and it makes sense: The jury should not hear that the defendant may have done other “bad acts” at some other time out of a concern that it might unfairly be inclined to convict the defendant for the current charged conduct. There are a few, very specific exceptions when that “bad acts” evidence is allowed to come in: “such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
Usually, character evidence is not admissible to prove a criminal defendant’s conduct on a specific occasion.
This is part of what has been so very interesting about Daniels’ testimony thus far: She has become somewhat of an (inadvertent) character witness for the prosecution who shows the bad character of Trump. Through her testimony, the jury is actually hearing about other “bad acts” by Trump, even though the evidentiary rules typically would not let that occur.
The prosecution began Daniels’ direct examination by humanizing her, having her describe her childhood and how she was eventually introduced to the world of adult films. The prosecution walked her through the chronology, setting the stage for her fateful meeting with defendant Trump. Because the defense failed to object to certain questions posed to Daniels, here is just a sample of some of what the jury has now heard about Trump:
- Daniels was only 27 and Trump was “old, if not older than [my] dad” (who was then 60 years old), when she and Trump had their sexual encounter in 2006.
- When she arrived at Trump’s hotel suite ostensibly just to have dinner (which was his invitation), he was waiting for her in satin pajamas.
- Trump told her not to worry about Melania (his wife) because “we don’t even sleep in the same room.”
- Trump told Daniels that she “reminded him of his daughter”: “smart and blonde; beautiful and people underestimate her as well.”
- Daniels spanked Trump with a rolled-up magazine.
- Trump asked Daniels if she had been tested for sexually transmitted diseases within a very short period of meeting her.
- When Daniels came out of the bathroom, Trump was waiting for her on the bed, wearing only a T-shirt and boxer shorts.
There may be disagreement as to whether any of this testimony is relevant. In my opinion, it is relevant because this evidence provides the necessary context for why Trump was so desperate to hide it from the public eye — and thus the reason why he pushed for Daniels to sign the non-disclosure agreement and why he ultimately paid her $130,000 for her silence. Trump never wanted these embarrassing details to see the light of day, especially on the eve of the 2016 presidential election.
I would submit, as well, that the so-called “ick factor” of this information can be universally agreed upon. And none of it is good for Trump. So much of Daniel’s testimonial evidence will not be refuted by Trump unless he takes the witness stand in his own defense. And we know the chances of Trump doing that are slim to none.
His lawyers now face a challenge: How much time do they spend on the cross-examination of Daniels focusing on this testimony that was presented to the jury on direct examination? Do they run the risk of highlighting it even more by doing so — knowing that there really are not any other third parties to call for the defense who would be able to refute what Daniels put forth about her encounter with Trump? Merchan further noted for the record that he was surprised there were not more defense objections to Daniel’s testimony and that he did signal to the defense that the prosecution was going “into way too much detail,” although they failed to object. The defense moved for a mistrial, arguing that “the guardrails were thrown aside” during Daniels’ testimony and that it was “so unduly prejudicial to Trump” that he could not get a fair trial. Although Judge Juan Merchan did note that “there were things that would have been better left unsaid,” he denied the mistrial motion. Merchan further noted for the record that he was surprised there were not more defense objections to Daniel’s testimony and that he did signal to the defense that the prosecution was going “into way too much detail,” although they failed to object. And Merchan is absolutely right: The defense had the obligation to object to the questions that elicited the “bad acts” testimony from Daniels. The defense should have objected, asked for a sidebar and moved for a mistrial in real time. Instead, they waited until almost all of it was already in front of the jury, and even Trump lawyer Todd Blanche admitted, “You can’t unring that bell.” There was the occasional objection (that was sustained), but otherwise, the testimony flowed from Daniels with no roadblocks thrown up by the defense. It will still be on the prosecution during closing arguments to tie up all of the evidence into a clean, clear package so that the jury understands why this evidence from Daniels was relevant to its theory of the case. But until then, you can bet your bottom dollar the jurors are left with these quite detailed images of Trump burned into their minds. And that does nothing good for Trump.
Katie S. Phang
Katie S. Phang is the host of "The Katie Phang Show," which airs Saturdays at 12 p.m. ET on MSNBC. She is a legal contributor for NBC News and MSNBC based in Miami. She leverages her significant trial attorney experience to provide analysis and commentary on the latest legal issues. 
