I just wanted to mention that since this is a civil trial, the court can make negative inferences from his refusal to testify.
But having read his deposition, which was a 400+ page confession, I still don’t think he’ll be doing himself any favors, especially since there’s no jury to sway.
I’m still not convinced that the failure to request a jury trial was unintentional, since the jury pool would be drawn from Manhattan. I think he might have thought they’d play judge roulette and maybe land a sympathetic judge, but they lost that bet big time. So now they’re screaming UNFAIR.
My first time in a courtroom, when I was still a law student volunteering with Student Legal Services, I was absolutely awed by everything going on. I remember thinking, “I’d better be polite and pleasant to everybody who works here.” I’ve done that ever since, and it has worked well.
Am I reading you correctly - the reason this isn’t a jury trial is because Trump ('s attorneys) failed to request one? I thought it might have to do with them requesting a summary judgement (which then caused it to be a non-jury trial based on procedure).
AIUI, the only issue that was qualified to be heard by a jury was the issue of fraud, which the judge took care of via his ruling on Plaintiff’s motion for summary judgment. All remaining issues could only be heard by a judge, because they are issues of equity, not eligible for jury determination.
What’s interesting, though, is that there was no request for a jury trial prior to the judge’s ruling on the motion for summary judgment. To me, that leans toward an “oops.”
Trump’s team had a choice to request a jury trial. Ticked the wrong box by mistake, or ticked the “judge only” box deliberately, depending on who you listen to.
https://www.advocatemagazine.com/article/2016-october/pleading-the-fifth-in-civil-cases The party or witness who wishes to invoke the right must assert the privilege as to particular questions asked or other evidence sought. A blanket refusal to appear or testify is not sufficient.… Any delay or failure to assert the privilege may result in waiver thereof. This applies to responses to interrogatories, requests for admissions, document productions, and depositions. (See, e.g., Brown v. Sup.Ct. (Boorstin ) (1986) 180 Cal.App.3d 701, 712 in which Plaintiff served interrogatories inquiring about matters for which Defendant was facing criminal charges. Defendant failed to respond within the time permitted. His later attempts to avoid discovery by claiming self-incrimination were unavailing. The court held “Defendants had ample opportunity to timely raise their Fifth Amendment objection and failed to do so, thereby waiving their privilege.”
And While in a criminal procedure, the court must instruct the jury that it cannot draw an inference of guilt from a defendant’s failure to testify about facts relevant to his case, (Griffin v. California (1965) 80 U.S. 609). In civil cases, “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” (Baxter v. Palmigiano (1976) 425 U.S. 308, 318.)
Whereas the privilege may be invoked by a civil litigant. (Segretti v. State Bar (1976) 15 Cal.3d 878, 126 Cal.Rptr. 793; Alvarez v. Sanchez (1984) 158 Cal.App.3d 709.) It does not provide for protection against civil penalties, and in a civil case, a witness or party may be required either to waive the privilege or accept the civil consequences of silence if he or she does exercise it. (Blackburn v. Superior Court, (1993) 21 Cal.App.4th 414.)
So, like I said, IANAL but in Civil cases, things change. Maybe one of our SDMB legal eagles can explain better.
But I’m not saying he can assert it to prevent consequences in the civil action. I’m saying he can assert it to not incriminate himself for criminal actions – whether charged or uncharged. At present, there are no criminal charges pending against him for these actions. That doesn’t mean there can’t or won’t be.
I think they could, but I doubt they will. It’s a lot of resources for any state agency to throw at a guy who is already going to be completely hamstrung by federal and other state criminal matters.
Alvin Bragg already declined to prosecute these matters criminally once before. He might change his mind based on the outcome of the civil case, but I think it’s unlikely.
That’s what I was wondering: what would he have to say, if he chooses to testify, that will initiate a re-consideration of criminal charges? Will anything short of explicitly admitting to committing fraud do the trick? How far can he go and still have Bragg concluding, “Nope, not enough there.”
