Amicus Curiae Brief — Donald J. Trump, Petitioner v. E. Jean Carroll

Supreme Court briefDec 11, 2025

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No. 25-573

In the Supreme Court of the United States

__________

DONALD J. TRUMP,

PRESIDENT OF THE UNITED STATES,

Petitioner,

E. JEAN CARROLL,

Respondent.

____________________

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

_______________

BRIEF FOR AMERICA FIRST LEGAL

FOUNDATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

__________

EMILY C. PERCIVAL

LAURA STELL

America First Legal

Foundation

611 Pennsylvania Ave. SE

#231

Washington, DC 20003

(202) 964-3721

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

Table of Authorities .....................................................ii

Interest of Amicus Curiae ........................................... 1

Summary of the Argument ......................................... 2

Reasons for Granting the Writ.................................... 3

The decisions below failed to apply

legal principles neutrally.................................. 3

II. The decisions below wrongly modified

Rule 403’s analysis for Rule 415 evidence. .... 16

A. Rule 415 does not alter Rule 403’s

analysis. ...................................................... 19

B. The Second Circuit’s reliance on

legislative history is misplaced. ................. 21

C. The approach below raises

constitutional doubts. ................................. 22

Conclusion.................................................................. 25

TABLE OF AUTHORITIES

Page(s)

CASES

Bd. of Regents of Univ. of State of N.Y. v. Tomanio,

446 U.S. 478 (1980) .................................................. 5

Bostock v. Clayton Cnty.,

590 U.S. 644 (2020) ................................................ 22

Boyd v. United States,

142 U.S. 450 (1892) ................................................ 23

Bus. Guides, Inc. v. Chromatic Commc’ns Enters.,

Inc.,

498 U.S. 533 (1991) ................................................ 21

Carroll v. Trump,

2023 WL 2006312 (S.D.N.Y. Feb. 15, 2023)........ 7, 8

Carroll v. Trump,

650 F. Supp. 3d 213 (S.D.N.Y. 2023)................... 4, 5

CTS Corp. v. Waldburger,

573 U.S. 1 (2014) ...................................................... 5

Daubert v. Merrell Dow Pharms., Inc.,

509 U.S. 579 (1993) ................................................ 21

Jama v. Immigr. & Customs Enf’t,

543 U.S. 335 (2005) ................................................ 21

Joint Anti-Fascist Refugee Comm. v. McGrath,

341 U.S. 123 (1951) .................................................. 3

Kirtsaeng v. John Wiley & Sons, Inc.,

579 U.S. 197 (2016) .................................................. 3

Martin v. Franklin Cap. Corp.,

546 U.S. 132 (2005) .................................................. 3

iii

Martinez v. Cui,

608 F.3d 54 (CA1 2010) ......................................... 19

Mathews v. Eldridge,

424 U.S. 319 (1976) ................................................ 23

Michelson v. United States,

335 U.S. 469 (1948) ................................................ 17

Posters ‘N’ Things, Ltd. v. United States,

511 U.S. 513 (1994) ................................................ 21

Prevost v. Gratz,

19 U.S. 481 (1821) .................................................. 17

Pugin v. Garland,

599 U.S. 600 (2023) ................................................ 20

Sharon B. v. Reverend S.,

244 A.D.2d 878, 665 N.Y.S.2d 139 (1997) ............... 4

St. Amant v. Thompson,

390 U.S. 727 (1968) .................................................. 9

United States v. Augenblick,

393 U.S. 348 (1969) .................................................. 3

United States v. Brown,

381 U.S. 437 (1965) .................................................. 5

United States v. Guardia,

135 F.3d 1326 (CA10 1998) ....................... 19, 20, 21

United States v. Kubrick,

444 U.S. 111 (1979) ................................................ 18

United States v. LeMay,

260 F.3d 1018 (CA9 2001) ..................................... 24

United States v. Wells Fargo Bank,

485 U.S. 351 (1988) ................................................ 21

Zadvydas v. Davis,

533 U.S. 678 (2001) ................................................ 23

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I, § 10, cl. 1 ........................................ 5

RULES

Fed. R. Evid. 102 ......................................................... 3

Fed. R. Evid. 403 ......... 2, 16, 18, 19, 20, 21, 22, 23, 24

Fed. R. Evid. 404 ........................... 2, 16, 19, 20, 22, 23

Fed. R. Evid. 412 ....................................................... 20

Fed. R. Evid. 413 ................................................. 18, 19

Fed. R. Evid. 414 ....................................................... 23

Fed. R. Evid. 415 ... 2, 16, 18, 19, 20, 21, 22, 23, 24, 25

Fed. R. Evid. 609 ....................................................... 20

Fed. R. Evid. 703 ....................................................... 20

OTHER AUTHORITIES

1 McCormick on Evidence (9th ed. 2025).................. 23

140 Cong. Rec. 23603 (1994) ..................................... 18

140 Cong. Rec. H8968-01 (Aug. 21, 1994) ................ 22

140 Cong. Rec. S12990 (Sept. 20, 1994).................... 22

Alan Dershowitz, The Trump-Carroll Verdict is a

Rorschach Test, Spectator (May 9, 2023),

https://perma.cc/GX9Q-C25A .......................... 14, 15

Amy Coney Barrett, Listening to the Law (2025)..... 22

Assemblymember Linda B. Rosenthal’s Statement on

New York State Assembly’s Announcement that it

will Pass the Adult Survivors Act Before the End of

the 2022 Session (May 19, 2022),

https://perma.cc/TD63-ZXLF ................................... 5

James Joseph Duane, The New Federal Rules of

Evidence on Prior Acts of Accused Sex Offenders: A

Poorly Drafted Version of A Very Bad Idea,

157 F.R.D. 95 (1994) .............................................. 23

Twitter (Jan. 30, 2020),

https://perma.cc/BPU5-DBL8 .................................. 6

Victor J. Gold, Federal Practice and Procedure

(Wright & Miller) (Sept. 2025 update) ............ 22, 24

INTEREST OF AMICUS CURIAE

America First Legal Foundation is a nonprofit

organization dedicated to promoting the rule of law in

the United States by ensuring due process and equal

protection for every American citizen and encouraging

understanding of the law and individual rights

guaranteed under the laws of the United States. AFL

has a substantial interest in this case. Ensuring

judicial adherence to federal law and the Constitution’s mandates is a core institutional interest at the

heart of its mission. *

* Amicus provided timely notice of this brief. No counsel for a

party authored this brief in whole or in part, and no person other

than amicus curiae, its members, or its counsel made a monetary

contribution to it.

SUMMARY OF THE ARGUMENT

In this extraordinary case, President Donald

Trump was held liable for calling a decades-delayed

lawsuit a hoax—even though the jury unanimously

agreed that plaintiff E. Jean Carroll failed to prove

even by a preponderance of the evidence her central

claim of rape. Just as extraordinary were the procedural departures that inexorably led to the jury’s

verdict of liability. On issue after issue, the district

court’s evidentiary decisions let Carroll skirt wellestablished legal rules to bring in unreliable

evidence—while freeing her from explaining the many

inconsistencies in her story. Taken together, these

rulings leave little doubt that President Trump was

treated differently from other litigants—and was

improperly deprived of the law’s procedural

protections. The result was an incomprehensible

verdict that likely rested more on hostility toward

President Trump than the merits of Carroll’s claims.

Though the differential treatment given President

Trump alone warrants this Court’s review, the

decisions below also implicate an important conflict

about how Rule 403 applies to propensity evidence

under Rule 415. For centuries, Anglo-American legal

systems have excluded propensity evidence. While

Rule 415 relaxes Rule 404’s general ban on propensity

evidence for certain claims of sexual assault, it

expressly preserves consideration under “other”

rules—including Rule 403. Yet, departing from other

courts, the courts below held that the staleness of Rule

415 evidence was insignificant under Rule 403. But

that staleness makes propensity evidence especially

unreliable and prejudicial. And the propensity

evidence offered here was especially stale and

unreliable, as it involved—like Carroll’s claim itself—

alleged incidents occurring decades ago for which

there was no physical evidence or corroboration. To

preserve the evenhandedness and integrity of federal

judicial proceedings, the Court should grant certiorari

and reverse.

REASONS FOR GRANTING THE WRIT

The decisions below failed to apply legal

principles neutrally.

A “basic principle of justice” is “that like cases

should be decided alike.” Martin v. Franklin Cap.

Corp., 546 U.S. 132, 139 (2005). “[L]imiting discretion

according to legal standards helps promote” that

principle. Ibid. “Without governing standards,”

“judicial ‘whim’ or predilection” may lead to

“freewheeling inquiries [that] often deprive litigants

of” the right to be treated the same way as other

litigants. Kirtsaeng v. John Wiley & Sons, Inc., 579

U.S. 197, 203–04 (2016).

The Federal Rules of Evidence play a critical role

in treating like litigants alike. Their goal is that

“every proceeding” be “administer[ed] . . . fairly,” “to

the end of ascertaining the truth and securing a just

determination.” Fed. R. Evid. 102; see United States

v. Augenblick, 393 U.S. 348, 352 (1969) (“Rules of

evidence are designed in the interest of fair trials.”).

Procedural rules like the rules of evidence “spell[]

much of the difference between rule by law and rule

by whim or caprice.” Joint Anti-Fascist Refugee

Comm. v. McGrath, 341 U.S. 123, 179 (1951)

(Douglas, J., concurring).

Here, it is hard to imagine that the proceedings

below would have transpired the same way had the

defendant not been named Donald J. Trump. Those

proceedings were rife with procedural irregularities

and suspect evidentiary rulings, all with the effect of

bolstering Carroll’s stale claim and depriving

President Trump of meritorious defenses. Thus, as

Judge Menashi put it, “[n]o one can have any

confidence that the jury would have returned the

same verdict if the normal rules of evidence had been

applied.” Pet. 240a (dissenting from denial of rehearing en banc). Every aspect of this case suggests a

biding hostility to the defendant.

Before addressing the questionable evidentiary

rulings, it is necessary to consider the extraordinary

reopening of the statute of limitations that allowed

this case to proceed in the first place. The claim here

against President Trump is based on events about

three decades ago—the plaintiff could not pinpoint a

day or even a year (more on that later)—so it would

normally have been barred by New York’s one-year

statute of limitations. See Sharon B. v. Reverend S.,

244 A.D.2d 878, 879, 665 N.Y.S.2d 139 (1997). But

“[i]n the midst” of Carroll’s litigation against

President Trump, “New York in May 2022 enacted the

[Adult Survivors Act] which, in relevant part, created

a one-year revival period, starting November 24,

2022, during which adult survivors of sexual assault

could sue their abusers despite the expiration of the

previously applicable statutes of limitation.” Carroll

v. Trump, 650 F. Supp. 3d 213, 218 (S.D.N.Y. 2023).

The bill’s sponsor focused on President Trump,

emphasizing that “Carroll has traveled to Albany to

lobby for the ASA’s passage and has previously said

she would use the ASA to sue Trump.” 1 And sure

enough, “a bare nine minutes after the ASA became

effective on Thanksgiving morning,” Carroll sued

President Trump. Carroll, 650 F. Supp. 3d at 218.

The district court was unconcerned by this

gerrymandered statutory extension. See id. at 225.

But “[s]tatutes of limitations are not simply

technicalities.” Bd. of Regents of Univ. of State of N.Y.

v. Tomanio, 446 U.S. 478, 487 (1980). “[T]hey have

long been respected as fundamental to a well-ordered

judicial system.” Ibid. That is because “[t]he process

of discovery and trial which results in the finding of

ultimate facts for or against the plaintiff by the judge

or jury is obviously more reliable if the witness or

testimony in question is relatively fresh.” Ibid. Thus,

limitations periods “require plaintiffs to pursue

diligent prosecution of known claims.” CTS Corp. v.

Waldburger, 573 U.S. 1, 8 (2014) (cleaned up).

“Statutes of limitations promote justice by preventing

surprises through plaintiffs’ revival of claims that

have been allowed to slumber until evidence has been

lost, memories have faded, and witnesses have

disappeared.” Ibid. (cleaned up).

The proceedings below prove how problematic it is

to reopen a statute of limitations over two decades

1 Assemblymember Linda B. Rosenthal’s Statement on New York

State Assembly’s Announcement that it will Pass the Adult

Survivors Act Before the End of the 2022 Session (May 19, 2022),

https://perma.cc/TD63-ZXLF. This apparent targeting of

President Trump suggests that the law may implicate the

constitutional prohibition on bills of attainder. See U.S. Const.

art. I, § 10, cl. 1; United States v. Brown, 381 U.S. 437, 462 (1965).

later. The district court said that this was “a ‘he said,

she said’ case,” “turn[ing] on an alleged event more

than two decades ago.” Pet. 121a. The court said that

“[t]here will be no physical evidence supporting either

side at trial.” Ibid.

Yet Carroll had proclaimed that she did have

physical evidence, particularly DNA evidence. She

insisted that the dress she had worn was her trump

card because it supposedly had the President’s DNA

on it: “I have the dress. Trump is basically in deep

s***.” Ct. App. App’x A-603. She made the point

repeatedly: 2

2 Twitter (Jan. 30, 2020), https://perma.cc/BPU5-DBL8.

“Ms. Carroll testified at her deposition . . . as

follows:

Q. * * * [Y]ou stated in the public that you had

DNA from the former president; is that correct?

A. Yes.

Q. Why did you say that?

A. Because we sent the dress to be examined

and then we got back a report. Robbie published

it.

Q. What did that report say that you recall? . . .

Q. It is so far above my head. The reports about

DNA are so detailed and so much scientific

rigor is required to understand even the

opening paragraph, I can’t really—I can’t say.”

Pet. 91a (cleaned up).

This DNA claim turned out to be a dud. “There was

no evidence of any sperm cells.” Carroll v. Trump,

2023 WL 2006312, at *3 (S.D.N.Y. Feb. 15, 2023). And

Carroll seemed to give up on any effort to tie the dress

to President Trump at all. She “had plenty of

opportunities in both of the two related cases to move

to compel Mr. Trump to submit a DNA sample,” and

the district court explained that “[h]ad [she] done so,

[she] almost certainly would have gotten it.” Id. at *2.

“But Ms. Carroll’s counsel never moved to compel Mr.

Trump to submit a DNA sample.” Ibid. And when

President Trump offered to voluntarily submit a DNA

sample, in exchange for a portion of the DNA report

that Carroll had withheld from disclosure, Carroll

refused. She refused even though the appendix

“simply contain[ed] the electropherograms that were

generated in reaching the report’s conclusions.” Id. at

*8. She said this exchange was “untimely”—

notwithstanding her failure to timely turn over the

appendix—and might “delay the trial”—though she

waited decades to sue. Id. at *6.

An obvious conclusion that could be drawn is that

Carroll knew all along that the dress—her centerpiece

evidence—did not have President Trump’s DNA on it.

The district court said that conclusion was “factually

impossible for a simple reason: Mr. Trump never

provided a DNA sample for the purpose of comparing

it to the DNA on her dress. No one knows whether his

DNA is on the dress.” Id. at *8. But Carroll could have

known, if the incident never happened—that is the

whole point. Her promise that she preserved a dress

from three decades ago because it had President

Trump’s DNA on it, followed by proof that the dress

had no sperm and her own refusal to ask for DNA

confirmation, is highly probative of the veracity of her

belated allegations.

Yet the jury never heard any of this, because the

district court excluded all discussion of DNA on

Carroll’s motion. The district court acknowledged that

“the fact that [Carroll’s] statement [about the dress]

may have been inaccurate has at least some

relevance.” Pet. 94a n.46. But the court said it would

be “unfairly prejudicial” for the jury to even “infer[]”

“that the reason that Ms. Carroll did not adduce

scientific DNA evidence at the trial is that Mr.

Trump’s DNA is not on the dress.” Pet. 94a. That is

hardly an unreasonable inference, given the facts

here, and it is far from an unfair one, given Carroll’s

repeated public statements and later court retreats.

Yet the district court relied on its “factual

impossibility” illogic addressed above and excluded all

evidence about DNA. Pet. 94a–96a & n.47.

The district court never grappled with the fact that

the DNA evidence not only undermined Carroll’s

assault claim, but also bolstered President Trump’s

defamation defenses. In a public-figure defamation

case, the plaintiff “must prove that the defamatory

[statement] was made with ‘actual malice’—that is,

with knowledge that it was false or with reckless

disregard of whether it was false or not.” St. Amant v.

Thompson, 390 U.S. 727, 728 (1968). Carroll’s shifting

DNA stories suggest that President Trump was not

“speaking with actual malice when he called [Carroll’s

lawsuit] a hoax”—but the district court “never

addressed this argument.” Pet. 204a–05a (Menashi,

J.).

What about other evidence? According to Carroll’s

book, surveillance cameras should have captured key

moments of her alleged encounter with Donald Trump

at Bergdorf Goodman. Ct. App. App’x A-1841. Carroll

testified that she and Donald Trump “would have

been filmed on the ground floor,” and that cameras

“could have also captured [them] going up the

escalator” and “filmed [them] walking into the lingerie

department.” Ibid. Despite identifying this potentially

dispositive evidence in her book, and confirming it at

trial, Carroll did not even try to obtain the footage. See

ibid.

Carroll also “never called the police.” Ct. App.

App’x A-1757. In her book, she recognized that this

was an “odd fact” that she needed to “clear up.” Ct.

App. App’x A-1829. When President Trump’s counsel

tried to ask what she meant by that statement, the

district court largely precluded further questions. See

Ct. App. App’x A-1830. But Carroll did confirm that,

until publishing her book in 2019, she “hadn’t publicly

disclosed this purported attack for 23 or 24 years.” Ct.

App. App’x A-1749. Carroll said she “was never going

to talk about it.” Ibid.

In a TV interview, Carroll said she would not seek

to press rape charges because it would have been

“disrespectful to women being raped by the border and

around the world”—and the district court refused to

allow questioning about that excuse. Ct. App. App’x A3027–28. She decided to sue President Trump only

after “a conversation with George Conway,” a lawyer

who “does not like Donald Trump,” “crystallized” the

issue for her. Ct. App. App’x A-1705–06. She has

described President Trump as “evil” and “vile”—but

enjoyed watching The Apprentice television show

starring Donald Trump. Ct. App. App’x A-1649, 1651,

1654.

Carroll also testified that no one else was paying

her legal fees. Ct. App. App’x A-1175. But on the eve

of trial, Carroll suddenly “recollected” that her multiyear litigation was being funded by Reid Hoffman,

“one of the largest donors to the Democratic party”

and “a vocal critic of [President Trump] and his

political policies.” Ct. App. App’x A-1176–77. Hoffman

was “on record stating that he would ‘spend as much

as [he] possibly can’ to avoid another Trump

presidency.” Ct. App. App’x A-1177. The district court,

however, precluded “the whole subject of litigation

funding.” Ct. App. App’x A-1659.

Turning to Carroll’s book, What Do We Need Men

For?: A Modest Proposal, published in 2019 as she

made allegations against President Trump for the

first time, Carroll claimed to be compiling a “dead

serious” book listing the 21 “most hideous men” of her

life. Ct. App. App’x A-1751. One man was a mechanic

who put her car “wheel on the wrong way,” while

another was “some man who wouldn’t let [her] park in

an empty parking lot.” Ct. App. App’x A-1752. Despite

this apparent low bar of hideousness, she “didn’t

decide to include Donald Trump on that list until [she

was] already four or five weeks into writing the book,”

and “[h]e was not permanently fixed in the book until

the very end.” Ct. App. App’x A-1752–53. She thought

that “including the story about Donald Trump in [the]

book while he was still president would help sell the

book.” Ct. App. App’x A-1753.

Carroll conceded that she “first mentioned the

story about Donald Trump in Bergdorf Goodman” as

she was “trying to sell [her] book and get money for

[her] book.” Ct. App. App’x A-1759. And she confirmed

that this story “was the single most important part of

[her] prepublication” “publicity.” Ct. App. App’x A1763. She aggressively pushed her PR agents to get

her “more press” because her book had been “an

absolute dud.” Ct. App. App’x A-1943–44. She

conceded that mentioning Donald Trump meant

“people would be interested.” Ct. App. App’x A-1667.

Her plan worked. An expert report analyzing her

public profile found that before June 2019, articles

about Carroll were practically nonexistent. Ct. App.

App’x A-856. After she published her accusation and

President Trump responded, her visibility “r[ose]

tremendously.” Ibid. She admitted, “I like attention.

There is no question, I like attention.” Ct. App. App’x

A-1708. One of her alleged confidants texted her

daughter to say that Carroll was “acting a little scary,”

“turning this whole never-ending transaction into a

lifestyle,” and “loving the adulation.” Ct. App. App’x

A-2452.

Carroll’s testimony below was less than reliable.

Carroll—who was around 52 years old at the time of

the alleged incident, and 79 at trial—could not provide

basic details about the incident, which limited

President Trump’s ability to defend against her

belated claim. At first, she could not identify the

date—or even the year—of the alleged incident. See

Ct. App. App’x A-1746–47. The two confidants whom

she claimed to have told immediately after the

incident fared no better—they “couldn’t give [her] a

specific date of the alleged incident, either” and

“couldn’t even tell [her] the year, whether it was 1995

or 1996.” Ct. App. App’x A-3253.

Once discovery closed, Carroll suddenly testified

more precisely: “It’s always been in the back of my

mind that it was a Thursday, but I never said it

because I wasn’t 100 percent positive.” Ct. App. App’x

A-1585. This was after she had “spoken publicly about

it,” “written publicly about [it],” and “been deposed

about it.” Ct. App. App’x A-1586. Yet “never before”

had she “said it was Thursday.” Ibid. Carroll believed

it was a Thursday night because “that’s the only night

of the week that Bergdorf stayed open past 6 p.m.”—

a fact she learned in discovery from a former store

manager. Ct. App. App’x A-1451; see Ct. App. App’x

A-1586, A-2153.

In similar fashion, Carroll narrowed down the year

of the incident. “[G]oing by what [she] was wearing”—

“a wool dress, tights, high heels, but no coat”—she

deduced that it “wasn’t too cold out” but still cold,

which “pinned it to” fall 1995 or spring 1996. Ct. App.

App’x A-1582–83. To narrow the timeline further, to

the spring of 1996, she relied on her friend Lisa

Birnbach’s published magazine article about Donald

Trump from February 1996, claiming that Birnbach

“never would have gone down to Mar-a-Lago to cover

Trump if she knew what Donald Trump had done to

me in Bergdorf’s.” Ct. App. App’x A-1584–85.

To bolster her late-breaking allegations, Carroll

recruited two others who suddenly recalled decadesold incidents supposedly involving President Trump.

One, Natasha Stoynoff, was “sought out” by Carroll,

who “created a transcript of an interview that

suggests Carroll was coaching her on what to say.”

Pet. 204a (Menashi, J.); see Ct. App. App’x A-1407 (“I

think his pelvis was against you.”). Stoynoff waited

some 11 years—during which she wrote a favorable

profile of President Trump—to accuse President

Trump of trying to kiss her without permission while

surrounded by others. Pet. 8–9. She “retreated from

her pre-trial statement about having been ‘groped.’”

Pet. 233a (Menashi, J.). The district court admitted

this belated testimony despite its scant resemblance

to Carroll’s claims. Stoynoff—who views President

Trump as “terribly unfit,” Ct. App. App’x A-2360—has

not filed any claims herself against President Trump.

Likewise, the court admitted uncorroborated

testimony from Jessica Leeds, who “testified that,

approximately forty-five years earlier”—like Carroll,

she could not recall the precise year—“she sat next to

President Trump on an airplane, and he ‘grabbed

[her] with his hands, tried to kiss [her], grabbed [her]

breasts, and pulled [her] towards him.’” Pet. 221a

(Menashi, J.); see Ct. App. App’x A-2098. She could

not “remember whether [the flight] was from Dallas

or from Atlanta.” Ibid. She initially claimed that the

assault lasted “15 minutes” before revising that

estimate to “just a few seconds.” Ct. App. App’x A2103. She did not “tell anyone about supposedly being

assaulted by Donald Trump for almost 40 years.” Ct.

App. App’x A-2123. Leeds, like Carroll and Stoynoff,

is a political opponent of President Trump. Ct. App.

App’x A-2126–27. Yet the court admitted her vastly

stale testimony—along with Stoynoff’s—shoring up

Carroll’s own claim.

Finally consider the jury’s verdict. Both in her

book and in her testimony, Carroll asserted that

President Trump had “inserted his penis” into her.

Pet. 135a–37a. The first “liability question[] for Ms.

Carroll’s sexual battery claim w[as] whether Ms.

Carroll proved by a preponderance of the evidence

that (1) ‘Mr. Trump raped Ms. Carroll?’” Pet. 158a.

Applying New York law, “the instructions required

the jury to answer Question 1 ‘No’ unless it found that

Ms. Carroll had proved that Mr. Trump penetrated

her vagina with his penis.” Pet. 160a (emphasis

omitted). And the jury unanimously answered

Question 1 “no.” Ct. App. App’x A-3095.

As Professor Dershowitz has explained, “[i]n so

finding, the jury apparently disbelieved at least part

of the plaintiff’s testimony”: “[s]he was very specific

about being raped, not merely sexually abused.” 3 Yet

even as the jury unanimously found that Carroll had

not proved rape even by a preponderance of the

evidence, it seemed to accept Carroll’s claim of “an

encounter with Trump”—even though the essential

feature of that claim was rape. 4 This “strange verdict”

is even harder to understand given the simultaneous

“finding that he did not rape her” and the “finding that

he maliciously defamed her by essentially saying that

he did not rape her.” 5 It is unclear how the jury could

have found President Trump’s statement false and

defamatory—and made with actual malice—when the

jury agreed with him that Carroll had “made up” the

rape claim. Pet. 7a. Even Carroll took the verdict as a

repudiation of her rape claim, per the following

exchange just after the verdict:

Reporter: Sure. And I want you to, but I just

wonder, E. Jean, what went through your head

when you heard that [the jury found that

Trump did not rape you]?

Ms. Carroll: Well, I just immediately say in my

own head, oh, yes, he did—oh, yes, he did.

Carroll v. Trump, 685 F. Supp. 3d 267, 272 (S.D.N.Y.

2023) (cleaned up). But according to the jury, that did

not happen.

All this is why Professor Dershowitz wrote that “if

the appellant in this case had a name other than

Donald Trump, there is a good likelihood that the

3 Alan Dershowitz, The Trump-Carroll Verdict is a Rorschach

Test, Spectator (May 9, 2023), https://perma.cc/GX9Q-C25A.

4 Ibid.

5 Ibid.

entire verdict might be reversed.” 6 Because Donald

Trump is entitled to the same protections and

procedures as any other defendant, and the

proceedings below did not provide those same

protections and procedures, the Court should grant

certiorari.

II.

The decisions below wrongly modified Rule

403’s analysis for Rule 415 evidence.

As noted, the main way Carroll tried to bolster her

late-breaking claim was via testimony of two others,

who offered similarly delayed, spectacular claims.

Normally, this type of propensity evidence would be

barred by Rule 404(b), which provides that “[e]vidence

of any other crime, wrong, or act is not admissible to

prove a person’s character in order to show that on a

particular occasion the person acted in accordance

with the character.” Rule 415 relaxes that prohibition

for sexual assault claims. But, as all agree, Rule 403

still requires a court to “exclude relevant evidence”—

including other claims of sexual assault—“if its

probative value is substantially outweighed by a

danger of . . . unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.”

Though the Second Circuit rightly acknowledged

that “Rule 403’s protections apply to evidence being

offered under Rule 415,” Pet. 13a, the courts below

went astray by using a more lenient Rule 403 inquiry

for Rule 415 evidence. The district court said that

President Trump’s “best argument” was “that these

three alleged incidents were widely separated in time:

6 Ibid.

Ms. Leeds in 1979, Ms. Carroll in the mid-1990s, and

Ms. Stoynoff in 2005.” Pet. 123a. Likewise, members

of the Second Circuit majority agreed that Leeds and

Stoynoff “testified to incidents that allegedly occurred

many years before their respective trial testimony and

years apart from the incident that Carroll alleged.”

Pet. 251a (Chin and Carney, JJ., in support of the

denial of rehearing en banc).

Ordinarily, such stale evidence—including

testimony about events forty-five years before trial—

would tend to be much more prejudicial than

probative. At the outset, propensity evidence is

suspect because “it is said to weigh too much with the

jury and to so overpersuade them as to prejudge one

with a bad general record and deny him a fair

opportunity to defend against a particular charge.”

Michelson v. United States, 335 U.S. 469, 476 (1948).

“[I]ts disallowance tends to prevent confusion of

issues, unfair surprise and undue prejudice.” Ibid.

Propensity evidence that is stale is especially

problematic. “[L]ength of time necessarily obscures all

human evidence,” Prevost v. Gratz, 19 U.S. 481, 498

(1821), so claims of long-ago misconduct raise

significant risks of error—including by making it

difficult for the defending party to rebut newfound

claims. Time generally thus “operates by way of

presumption, in favour of innocence.” Ibid. For

instance, as explained above, statutes of limitations

“protect defendants and the courts from having to deal

with cases in which the search for truth may be

seriously impaired by the loss of evidence, whether by

death or disappearance of witnesses, fading

memories, disappearance of documents, or otherwise.”

United States v. Kubrick, 444 U.S. 111, 117 (1979)

(cleaned up). Admitting as propensity evidence stale

claims that would be long barred by the statute of

limitations likewise threatens the judicial search for

truth.

But both the district court and the Second Circuit

swept away the staleness of this propensity evidence.

The district court reasoned that Rule 415 “contains no

temporal limits on the admissibility of evidence of

other sexual assaults in a sexual assault case,” and

“[t]he legislative history makes clear that this was no

accident.” Pet. 123a. Thus, the court said that Rule

403’s limitations “perhaps must be applied with due

regard for Congress’s deliberate failure to impose

temporal limits.” Ibid.

Though members of the panel majority later

disclaimed the use of similar reasoning, Pet. 252a–

53a, the decision below belies any suggestion that the

Second Circuit applied an ordinary Rule 403 analysis.

The panel decision echoed the district court nearly

verbatim. First, citing the district court, it repeated

that court’s observation that “Congress intentionally

did not restrict the timeframe within which the other

sexual act must have occurred to be admissible under

Rules 413-415.” Pet. 46a.

Then, the Second Circuit quoted the same

legislative history statement cited by the district

court, in which a sponsor “explained that ‘evidence of

other sex offenses by the defendant is often probative

and properly admitted, notwithstanding very

substantial lapses of time in relation to the charged

offense or offenses.’” Ibid. (emphasis omitted) (quoting

140 Cong. Rec. 23603 (1994) (Rep. Molinari)). Thus,

“[i]n consideration of this express intent,” the Second

Circuit “conclude[d] that the time lapse between the

alleged acts does not negate the probative value of the

evidence of those acts to the degree that would be

required to find an abuse of discretion in admitting

them for the jury’s consideration.” Pet. 46a–47a

(emphasis added).

This reasoning can only be understood as

modifying Rule 403’s ordinary application to reduce

the prejudicial effect—and increase the probative

value—of stale evidence. Other courts have squarely

rejected applying “an especially lenient application of

Rule 403” to evidence that could otherwise be

admissible under Rules 413–15. United States v.

Guardia, 135 F.3d 1326, 1331 (CA10 1998); see also

Martinez v. Cui, 608 F.3d 54, 61 (CA1 2010) (“Nothing

in the text of Rules 413–415 suggests these rules

somehow change Rule 403.”). This Court’s resolution

of this important conflict is especially important

because the Second Circuit’s approach is highly

dubious.

A. Rule 415 does not alter Rule 403’s analysis.

First, the Second Circuit misunderstood the thrust

of Rules 413–15. Those rules make evidence that

would otherwise be barred by Rule 404 potentially

admissible. But they do not relax other rules that

guard against prejudicial evidence, most significantly

Rule 403. Indeed, Rule 415(c) says that it “does not

limit the . . . consideration of evidence under any

other rule.” See Martinez, 608 F.3d at 61 (emphasizing

that point). So even though Rules 413–15 encompass

evidence about long-ago acts—relaxing the bar on

admissibility of such propensity evidence regardless

of date—they do not make such evidence

automatically more probative or less prejudicial for

Rule 403 purposes.

This conclusion is reinforced by the fact that

“courts apply Rule 403 in undiluted form to” other

“exceptions to the ban on propensity evidence,”

including exceptions articulated by Rule 404 itself.

Guardia, 135 F.3d at 1331. Like Rule 415, Rule 404’s

exceptions “reflect a legislative judgment that certain

types of propensity evidence should be admitted.”

Ibid. “Courts have never found, however, that because

the drafters made exceptions to the general rule of

404[], they tempered 403 as well.” Ibid. Rule 415

should not be treated differently from these other

exceptions to Rule 404.

What’s more, “if Congress wanted to” change how

Rule 403 applies to Rule 415 evidence, “Congress

knew how to do so.” Pugin v. Garland, 599 U.S. 600,

608 (2023). Several rules have their own explanation

of how courts should weigh probative value and

prejudicial effect for specific kinds of evidence. For

instance, Rule 703 allows an expert witness to disclose

otherwise inadmissible underlying facts or data “only

if their probative value in helping the jury evaluate

the opinion substantially outweighs their prejudicial

effect.” Rule 609(b)(1) allows evidence of old criminal

convictions “only if” “its probative value, supported by

specific facts and circumstances, substantially

outweighs its prejudicial effect.” And Rule 412(b)(2)

provides that a court in a civil case “may admit

evidence offered to prove a victim’s sexual behavior or

sexual predisposition if its probative value

substantially outweighs the danger of harm to any

victim and of unfair prejudice.”

Given these indications that Congress could have

changed Rule 403’s application for Rule 415

evidence—but did not—the Court should not “lightly

assume” that Congress “nonetheless intends to apply”

a modified Rule 403 analysis. Jama v. Immigr. &

Customs Enf’t, 543 U.S. 335, 341 (2005).

The approach taken by the courts below is

inconsistent with Rule 415’s text. Courts “interpret

the legislatively enacted Federal Rules of Evidence as

[they] would any statute.” Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 587 (1993). Because the

relevant text is “clear and unambiguous,” judicial

inquiry should be “complete.” Bus. Guides, Inc. v.

Chromatic Commc’ns Enters., Inc., 498 U.S. 533, 540–

41 (1991). “When balancing Rule 41[5] evidence under

403, then, the district court should not alter its normal

process” of applying Rule 403. Guardia, 135 F.3d at

1331.

B. The Second

Circuit’s reliance

legislative history is misplaced.

Lacking a textual hook for a modified Rule 403

application, the district court and the Second Circuit

turned to a stray remark in the legislative history

from one of the sponsors. This reliance is misplaced. A

“short, isolated comment” from the legislative history

sheds no light on the original public meaning of the

text, United States v. Wells Fargo Bank, 485 U.S. 351,

358 (1988)—even a comment from “the principal

House sponsor.” Posters ‘N’ Things, Ltd. v. United

States, 511 U.S. 513, 522 (1994). It is “the provisions

of th[e] legislative commands rather than the

principal concerns of our legislators by which we are

governed.” Bostock v. Clayton Cnty., 590 U.S. 644, 674

(2020) (cleaned up). After all, “members of Congress

may have different views about how a statutory

provision should apply to particular circumstances,

and there’s no reason to treat the views of one member

or a faction of members as representative of the

majority of both houses of Congress.” Amy Coney

Barrett, Listening to the Law 220 (2025).

Plus, the House sponsor relied on by the courts

below specifically said that Rule 415 would supersede

only Rule 404(b), and that otherwise admission of

Rule 415 evidence would be governed by “the general

standards of the rules of evidence,” including the

“court’s authority under Evidence Rule 403 to exclude

evidence whose probative value is substantially

outweighed by its prejudicial effect.” 140 Cong. Rec.

H8968-01, 8991 (Aug. 21, 1994) (Rep. Molinari). The

bill’s primary Senate sponsor said the same. 140

Cong. Rec. S12990 (Sept. 20, 1994) (Sen. Dole).

Ambiguous legislative history cannot overcome clear

text. See Barrett, supra, at 220 (“If the history

contains statements going both ways, it’s not

reliable.”); accord Victor J. Gold, Federal Practice and

Procedure (Wright & Miller) § 5385 (Sept. 2025

update) (noting contradictory comments by sponsors).

C. The approach below raises constitutional

doubts.

If there were any doubt about how Rules 403 and

415 interact, the constitutional problems associated

with the theory adopted below would resolve that

doubt in favor of Rule 403’s ordinary application. See,

e.g., Zadvydas v. Davis, 533 U.S. 678, 689 (2001). Rule

415’s allowance for propensity evidence otherwise

barred by Rule 404 “flouts the general prohibition of

evidence whose only purpose is to invite the inference

that a defendant who committed a previous [bad act]

is disposed toward committing [bad acts], and

therefore is more likely to have committed the one at

bar.” 1 McCormick on Evidence § 190.10 (9th ed.

2025). This “general ban on evidence of criminal

propensity was the universal law throughout the

States long before the Federal Rules of Evidence were

adopted in 1975,” and it “has received judicial

sanction in Anglo-American history for nearly three

centuries.” 7 Propensity evidence “tend[s] to prejudice

the defendants with the jurors, to draw their minds

away from the real issue, and to produce the

impression that they were wretches” generally. Boyd

v. United States, 142 U.S. 450, 458 (1892).

One of the factors central to “the specific dictates

of due process” in a civil case is “the risk of an

erroneous deprivation of [a protected] interest” “and

the probable value, if any, of additional or substitute

procedural safeguards.” Mathews v. Eldridge, 424

U.S. 319, 335 (1976). Given the deep roots of the bar

on propensity evidence and the implications that bar

has for a litigant’s defense, Rule 415’s deviation from

the general rule requires constitutional guardrails.

Most courts have identified the main guardrail as

Rule 403. For instance, the Ninth Circuit upheld Rule

414’s similar standard because “Rule 403 adequately

7 James Joseph Duane, The New Federal Rules of Evidence on

Prior Acts of Accused Sex Offenders: A Poorly Drafted Version of

A Very Bad Idea, 157 F.R.D. 95, 105 (1994) (cleaned up).

safeguards the right to a fair trial.” United States v.

LeMay, 260 F.3d 1018, 1031 (CA9 2001). The court

emphasized “that evidence of a defendant’s prior sex

crimes will always present the possibility of extreme

prejudice, and that district courts must accordingly

conduct the Rule 403 balancing inquiry in a careful,

conscientious manner that allows for meaningful

appellate review of their decisions.” Ibid. As a leading

treatise summarized, “[a] serious rather than

perfunctory effort to balance under Rule 403 may be

required to avoid questions regarding fairness that

may rise to a constitutional level.” Gold, supra, § 5387.

The importance of a genuine Rule 403 analysis for

Rule 415 evidence is heightened in cases like this,

involving stale claims. The district court itself

underscored the significance of Leeds’s and Stoynoff’s

testimony, given that Carroll’s claim “turns on an

alleged event more than two decades ago” and was

supported by “no physical evidence.” Pet. 121a. Thus,

“Mr. Trump’s alleged sexual assaults on Mss. Leeds

and/or Stoynoff, if the jury is permitted to hear their

testimony and believes it, is likely to weigh heavily in

the jury’s determination.” Pet. 122a.

Yet despite the conceded importance of this

testimony—and its implications for President

Trump’s right to a fair trial—the courts below

conducted a circumscribed Rule 403 inquiry

unsupported by text, history, or the Constitution. The

courts erred by “forsak[ing] the traditional,

discretionary gate-keeping role of Rule 403 and

substitut[ing] a ‘presumption of admissibility’”—a

“toothless application” that is even more problematic

because “only the individual balancing provided by”

Rule 403 protects Rule 415’s constitutionality. 8

CONCLUSION

For these reasons, the Court should grant