NEW YORK — If Donald Trump takes the stand at his criminal trial in Manhattan, prosecutors want to cross-examine him about recent lawsuits he’s lost, attacks he’s made on women and a judge’s opinion that his sworn statements in a civil case rang “hollow and untrue.”
In hearing Friday afternoon, prosecutors from the Manhattan district attorney’s office who want to ask those questions sought permission from Justice Juan M. Merchan, the state judge presiding over Trump’s trial on charges that he falsified business records to cover up reimbursements for a hush-money payment made to a keep a sex scandal quiet.
The proceeding, known as a Sandoval hearing, was a high-stakes affair for all the parties: the prosecutors, the defense team, Trump and Merchan himself. Whatever the judge decides will inform whether the former president decides to testify and, if he does, what prosecutors can ask him.
Although Trump has said he would testify in his own defense, there have been plenty of signs that he is not fully committed to. This week, his lawyers asked prospective jurors to assure them that they wouldn’t hold a failure to testify against Trump.
The arguments, held in front of Merchan in the afternoon, went quickly, with little indication of which way the judge was leaning. The judge said he would rule Monday.
Chief among the topics prosecutors asked to discuss were the civil fraud trials that Trump lost in quick succession in recent months. In one, the New York attorney general accused him of having conspired with others to inflate his net worth. In the other, writer E. Jean Carroll accused him of defamation for remarks he had made in 2019 after she accused him of raping her decades earlier.
The aim of a Sandoval hearing is to let a defendant decide whether it is in his or her best interest to testify. In the hearing, which typically takes place before a trial, prosecutors are required to outline a defendant’s past crimes and misdeeds that could be brought up on cross-examination.
Defense attorneys can ask a judge to prohibit prosecutors from asking the defendant about previous incidents, on the theory that knowing about those events would unfairly prejudice the jury.
Prosecutors are also asking to bring up a civil jury’s finding last year that Trump was liable for sexually abusing Carroll.
Emil Bove, a lawyer for Trump, said that introducing questions about the civil fraud trial would take the criminal trial down a “rabbit hole” and confuse jurors. And he fought tooth and nail against the admission of any evidence related to Carroll’s lawsuits.
Prosecutors fought back, maintaining that the judge’s finding that Trump had not been credible when he testified at the civil fraud trial was relevant to the current criminal case and that his defamatory statements about Carroll, determined to be false by a civil jury, would give jurors in the criminal case crucial context.
“That is critical to assessing the defendant’s credibility if he testifies,” said one of the prosecutors, Matthew Colangelo.
There was only one issue on which Merchan seemed to clearly indicate that he was inclined to side with the prosecution. Prosecutors asked whether they could cross-examine Trump about a lawsuit he filed against Hillary Clinton and others that a federal judge in Florida, Donald Middlebrooks, determined was “frivolous.”
Merchan read aloud from Middlebrook’s decision, which said that Trump was a “sophisticated litigant who is repeatedly using the courts to seek revenge on political adversaries” and a “mastermind of strategic abuse of the judicial process.”
The Sandoval hearing is unique to the New York state criminal court system, and it takes its name from a 1974 case, the People of the State of New York v. Augustin Sandoval. Sandoval was charged with murder. His lawyer asked a judge to forbid mention of Sandoval’s past crimes, which included driving while intoxicated, saying they would create prejudice. The judge ultimately limited what prosecutors could ask.
Sandoval hearings have arisen in other prominent New York cases. Harvey Weinstein, the disgraced movie producer, declined to testify in his criminal trial in 2020 after the presiding judge said he would permit prosecutors to question Weinstein about 28 allegations of other crimes and previous “bad acts.”
But that case also points toward the danger for a judge: Weinstein’s lawyers have appealed that decision, which legal experts consider one of the most credible challenges to his conviction. His lawyers have taken their arguments all the way to New York’s highest court, which has yet to issue a decision.