FRE 404(b) permits the introduction of a party’s prior acts for purposes other than character, including to show “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” If evidence is relevant to these things, however, FRE 403 still allows the court to exclude it “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” The problem here is that these evidentiary rulings are all subject to the trial judge’s discretion. This trial judge appears to be decidedly pro-government (in this particular case at least). If I were a betting person, I would bet that a lot of the prosecution’s evidence gets in. I think the real question is how much of Trump’s 2020 election fraud evidence the judge lets in. Even if a lot of it doesn’t get in, the court still has to allow Trump’s lawyers to proffer it. That means it should be public. Whether the MSM covers it or not is a different matter.
Motive, et cetera, have to apply to the particular offenses alleged, not prior acts. As regards the 2012 and 2016 elections, 404(b) is not likely to matter, because in 2012 Trump was not a candidate and in 2016 Trump won. These are substantially different circumstances and the imputation of motive based on the 2012 and 2016 elections would be problematic at best, and wholly speculative at worst.
But even beyond that, everything still hinges on a presumption of falsity with regards to Trump's claims of election fraud, and that will apply also to the 2012 and 2016 elections. That's the real landmine Smith has to avoid. He has to hope he can persuade the court not to adjudicate the claim of falsity but to allow it merely to be stipulated--and I doubt that Trump's lawyers are going to be willing to do so. Which means Smith, by going after tweets from the 2012 and 2016 elections, is running the risk of creating even more opportunities for Trump's lawyers to sow reasonable doubt.
The corporate media has deluded itself in recent years into thinking it is somehow an arbiter of fact, and that claims are true or false based on whether corporate media says they are true or false. That, of course, is simply not the case, and is especially not the case inside the courtroom. It is not a matter of whether the corporate media asserted there is "no evidence" of fraud in these elections, but whether Trump legitimately (not necessarily reasonably) believed there was evidence of fraud. If Trump believed there had been fraud in any of these elections--2012, 2016, or 2020--Jack Smith's case falls apart completely.
I guess we’ll see how far the trial judge thinks she can stretch her discretion on Smith’s 404(b) evidence. Like you, I think that the can containing the 2020 election fraud worms has been opened. Regardless of the rules of evidence, Trump’s right to put on the evidence on which he bases his belief of election fraud (in 2020) rises to a constitutional level. Based on what I’ve seen, any fair jury would have to conclude that Trump truly and legitimately believes that the 2020 election was stolen from him. The “fair jury” factor is the issue here. There is a reason that Smith brought these charges in DC, and we all know what that reason is.
Consider this: The DC jury convicts Trump. The trial judge does not stay his sentence pending appeal. He goes to jail. (Maybe a higher court allows the stay; maybe not. Winning on appeal is always an uphill battle.). A year later, the DC circuit hears his appeal. It eventually issues an opinion affirming the conviction. SCOTUS grants writs, hears the case and eventually reverses. Three years have passed. If the goal is to punish Trump and also take him out of action, Smith has accomplished that goal.
That is not an impossible scenario, but I suspect it is an implausible one.
Appeals can be (and often are) made throughout the trial process. Gag orders have already been appealed, as have other judicial orders.
But here's the most interesting part of these indictments: they are not for insurrection, sedition, nor treason. There is not a single aspect of these cases that prevents Trump from standing as a candidate for President in 2024. He could be convicted and still be elected President. That's the other aspect of this process that doesn't make much sense--this isn't a political "kill shot" by any stretch of the imagination.
The only real hope they have is if the RNC uses a conviction to keep him from being the party's nominee next fall. Whether Trump could organize a third party run is inherently a problematic question. Yet the Republicans might have a real rebellion on their hands if they try to keep him from being the nominee especially if he has won the delegates through primaries to secure the nomination. So far, Trump's supporters do not care that he is under indictment, that there are trials underway, or that he potentially could be convicted.
The DC jury might convict Trump, and Trump might get elected President anyway. That also is a possible scenario, although I do not know how plausible it is.
The other possible scenario is that people become convinced by the trials that the corruptocrats in both parties have seized power, and the mass of people genuinely outraged at the death of democracy in this country reaches the critical threshold.
If people give up on the ballot box and the jury box, to the point of being willing to open the cartridge box, while there's no way to know for certain the outcome, we can be certain that the outcome would be violent, and bloody, and that the Republic might not survive.
What Trump knew or did not know is only known to Trump himself. Jack Smith attempting to read anyone's minds by any means is not only an exercise of pure folly, it is an exercise of things that are not within his position description nor his credentialed experiences. If the mens rea is being argued, then the actual mens rea of Trump is subject to debate and to being discredited by the usurpers.
Presumably, Smith is hoping to bolster the mens rea part of his case.
The problem with that is that the mens rea is the pivotal part of the case, and if it needs strengthening already it was never that strong. That begs the question of why Smith even brought a case that was not ready to go to trial.
FRE 404(b) permits the introduction of a party’s prior acts for purposes other than character, including to show “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” If evidence is relevant to these things, however, FRE 403 still allows the court to exclude it “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” The problem here is that these evidentiary rulings are all subject to the trial judge’s discretion. This trial judge appears to be decidedly pro-government (in this particular case at least). If I were a betting person, I would bet that a lot of the prosecution’s evidence gets in. I think the real question is how much of Trump’s 2020 election fraud evidence the judge lets in. Even if a lot of it doesn’t get in, the court still has to allow Trump’s lawyers to proffer it. That means it should be public. Whether the MSM covers it or not is a different matter.
Motive, et cetera, have to apply to the particular offenses alleged, not prior acts. As regards the 2012 and 2016 elections, 404(b) is not likely to matter, because in 2012 Trump was not a candidate and in 2016 Trump won. These are substantially different circumstances and the imputation of motive based on the 2012 and 2016 elections would be problematic at best, and wholly speculative at worst.
But even beyond that, everything still hinges on a presumption of falsity with regards to Trump's claims of election fraud, and that will apply also to the 2012 and 2016 elections. That's the real landmine Smith has to avoid. He has to hope he can persuade the court not to adjudicate the claim of falsity but to allow it merely to be stipulated--and I doubt that Trump's lawyers are going to be willing to do so. Which means Smith, by going after tweets from the 2012 and 2016 elections, is running the risk of creating even more opportunities for Trump's lawyers to sow reasonable doubt.
The corporate media has deluded itself in recent years into thinking it is somehow an arbiter of fact, and that claims are true or false based on whether corporate media says they are true or false. That, of course, is simply not the case, and is especially not the case inside the courtroom. It is not a matter of whether the corporate media asserted there is "no evidence" of fraud in these elections, but whether Trump legitimately (not necessarily reasonably) believed there was evidence of fraud. If Trump believed there had been fraud in any of these elections--2012, 2016, or 2020--Jack Smith's case falls apart completely.
I guess we’ll see how far the trial judge thinks she can stretch her discretion on Smith’s 404(b) evidence. Like you, I think that the can containing the 2020 election fraud worms has been opened. Regardless of the rules of evidence, Trump’s right to put on the evidence on which he bases his belief of election fraud (in 2020) rises to a constitutional level. Based on what I’ve seen, any fair jury would have to conclude that Trump truly and legitimately believes that the 2020 election was stolen from him. The “fair jury” factor is the issue here. There is a reason that Smith brought these charges in DC, and we all know what that reason is.
Consider this: The DC jury convicts Trump. The trial judge does not stay his sentence pending appeal. He goes to jail. (Maybe a higher court allows the stay; maybe not. Winning on appeal is always an uphill battle.). A year later, the DC circuit hears his appeal. It eventually issues an opinion affirming the conviction. SCOTUS grants writs, hears the case and eventually reverses. Three years have passed. If the goal is to punish Trump and also take him out of action, Smith has accomplished that goal.
That is not an impossible scenario, but I suspect it is an implausible one.
Appeals can be (and often are) made throughout the trial process. Gag orders have already been appealed, as have other judicial orders.
But here's the most interesting part of these indictments: they are not for insurrection, sedition, nor treason. There is not a single aspect of these cases that prevents Trump from standing as a candidate for President in 2024. He could be convicted and still be elected President. That's the other aspect of this process that doesn't make much sense--this isn't a political "kill shot" by any stretch of the imagination.
The only real hope they have is if the RNC uses a conviction to keep him from being the party's nominee next fall. Whether Trump could organize a third party run is inherently a problematic question. Yet the Republicans might have a real rebellion on their hands if they try to keep him from being the nominee especially if he has won the delegates through primaries to secure the nomination. So far, Trump's supporters do not care that he is under indictment, that there are trials underway, or that he potentially could be convicted.
The DC jury might convict Trump, and Trump might get elected President anyway. That also is a possible scenario, although I do not know how plausible it is.
The other possible scenario is that people become convinced by the trials that the corruptocrats in both parties have seized power, and the mass of people genuinely outraged at the death of democracy in this country reaches the critical threshold.
If people give up on the ballot box and the jury box, to the point of being willing to open the cartridge box, while there's no way to know for certain the outcome, we can be certain that the outcome would be violent, and bloody, and that the Republic might not survive.
The more controversial Smith's strategy is, the greater the chance for reversible error at trial.
Which is why I don't understand Smith's thinking with some of his latest moves. They look like a whole lot of risk without much payoff.
What Trump knew or did not know is only known to Trump himself. Jack Smith attempting to read anyone's minds by any means is not only an exercise of pure folly, it is an exercise of things that are not within his position description nor his credentialed experiences. If the mens rea is being argued, then the actual mens rea of Trump is subject to debate and to being discredited by the usurpers.
Presumably, Smith is hoping to bolster the mens rea part of his case.
The problem with that is that the mens rea is the pivotal part of the case, and if it needs strengthening already it was never that strong. That begs the question of why Smith even brought a case that was not ready to go to trial.
Jack Smith has previously been proven a loser. I think he's going to lose despite all the appeals the Satan Fornicator will try