Saturday October 8th, 2016

In an important development in the trial of New York Knicks guard Derrick Rose for the civil equivalent of rape, attorneys for Rose’s accuser called Rose to the stand. According to the Associated Press, Rose denied that he committed rape and stressed that the sexual encounter was consensual. Rose further portrayed his accuser as aggressively soliciting him to have sex on the day of the incident. Rose claimed that she texted him with the message she “wakes up horny” from thinking about him and that she, rather than he, texted about having sex. He also reportedly testified that his accuser, while at Rose’s Beverly Hills house earlier in the evening, propositioned him to have sex, a proposition he says he rebuffed. Rose is scheduled to return to the stand on Tuesday for additional questioning.

Rose moves for a mistrial

Prior to Rose’s resumed testimony on Tuesday, the presiding judge, U.S. District Judge Michael Fitzgerald, will rule on a motion by Rose’s attorneys for a mistrial. A mistrial would end the trial, though it would not dismiss the case, which could be retried at a future date. The attorneys have made the motion on grounds that Rose’s accuser failed to turn over a text message during pretrial discovery. Failure to turn over evidence is a serious matter and the text message in question reportedly was made within hours of the alleged rape. On the other hand, motions for mistrials face a high burden under federal law—“manifest necessity,” which is a high degree of necessity —and judges usually deny such motions. Odds are, Rose’s motion will be denied and Rose’s trial will likely proceed with him going back on the stand. 

Key background on trial and how Rose’s NBA career may be impacted

Rose’s accuser—whom Sports Illustrated and other media outlets refer to as “Jane Doe” in light of her status as an alleged victim of sexual violence—contends that Rose and two of his acquaintances, Ryan Allen and Randall Hampton, broke into Doe’s Los Angeles apartment in August of 2013 and gang raped her while she was intoxicated. Doe insists that she had consumed large amounts of alcohol and was possibly drugged by Rose earlier in the evening. In such a condition, Doe would have been incapable of offering consent in a legally meaningful way.

Derrick Rose’s accuser and her attorneys give new insight into civil suit

Doe’s lawsuit demands $21.5 million in damages. It alleges sexual battery and other alleged civil claims that, if proven, would only carry financial consequences for Rose. The 28-year-old Chicago native has not been criminally charged over the incident. Although the Los Angeles Police Department confirms that the its criminal investigation into the incident remains open, it is unlikely, now more than three years after the incident took place, that Rose will face charges.

Nonetheless, the civil trial, particularly if it leads to a finding of liability, could pose adverse consequences for Rose’s NBA career. The league, for instance, could suspend Rose for conduct detrimental under Article 35 of the league constitution. Rose, who in is in the final year of a 5-year contract, might also become a much less desirable free agent next summer, which could cost him millions of dollars. Further, Adidas, a company with whom Rose has signed a 13-year, $185 million endorsement deal, could invoke morals clause language in the contract and potentially suspend or terminate Rose’s lucrative deal.

Rose had to testify once called to the stand

Unlike in a criminal trial, where pursuant to the Fifth Amendment a defendant is not required to testify, Rose, as a civil defendant, had to testify once called. Rose did so as an adverse or hostile witness in the plaintiff’s case-in-chief. This legal strategy guarantees Doe’s attorneys an opportunity to question Rose under oath.

Along those lines, it is possible that Doe’s attorneys were concerned that Rose’s attorneys might decline to put Rose—who struggled during pretrial testimony—on the stand during the defendant’s case-in-chief. To illustrate his earlier struggles providing testimony, Rose summarized the intentions of he, Allen and Hampton on the night of the incident by saying “we men”—an expression that signals he sought sex. Rose also claimed not to know what the word “consent” means. It should be noted that Rose’s attorneys could call their client back to the stand during their case-in-chief. They could also call Doe to the stand in a tactic similar to one used by her attorneys to call Rose.

There are risks for Rose in testifying. Most obviously, if he seems untruthful or even unlikeable, jurors are more likely to find him liable. The relevant legal standard in a civil case is preponderance of evidence, meaning Doe must only prove her case by probability—that is, any degree of certainty greater than 50%. If jurors find Doe even slightly more believable than Rose, she would be poised to win. While not “jurors” in a legal sense, the NBA and Adidas are something of jurors in Rose’s professional basketball career. League and Adidas officials will surely be monitoring Rose’s testimony and judging him.

A potentially more significant concern for Rose is if he testifies in a way that is inconsistent with his prior testimony. Doing so could lead to the criminal charge of perjury, which refers to knowingly lying while under oath. Rose must avoid contradicting testimony he has already provided.

In addition, Rose’s testimony is being watched closely by LAPD detectives. While, as noted above, it is unlikely that Rose will face criminal charges before the relevant statute of limitations under California law run out in 2019, Rose could unintentionally and unwittingly increase those odds by providing testimony that suggests he raped Doe.

While on the stand, Rose could try to mitigate his risk of criminal charges by invoking his Fifth Amendment privilege. Although the privilege does not allow Rose to escape going on the witness stand, he can use it to avoid answering questions while on the stand—but only if answering them would require him to disclose information that he reasonably believes could be used in, or give rise to, a criminal prosecution stemming from the alleged rape. It should be noted that Judge Fitzgerald might bar Rose from invoking the Fifth Amendment if he already addressed a question’s topic during pretrial testimony. Moreover, invoking the Fifth would carry decidedly “bad optics” for Rose in how jurors perceive him: it would undoubtedly make him look “guilty.” So far, Rose has not adopted this strategy and, in fact, seems willing to answer any question.

Doe’s testimony and her struggles while on the stand

Rose’s testimony follows the testimony of Doe, who testified on Thursday and Friday. According to members of the media who were in Courtroom No. 1600 of the U.S. District Court for the Central District of California these past two days, Doe was at times effective but also struggled during much of her cross-examination by Rose’s attorneys.

In terms of the favorable aspects of Doe’s testimony, she offered a description of the events that in, significant ways, matched her account found in pretrial litigation materials. As she has before, Doe’s portrayal of the alleged rape—Rose, Allen and Hampton, broke into her apartment and gang raped her while she lay on a bed extremely inebriated—remained essentially the same. She also corroborated her pretrial testimony concerning her reasons behind not seeking medical care or alerting the LAPD. Consistency helps Doe establish her believability with jurors.

Reassessing the details surrounding Derrick Rose's civil sexual assault lawsuit

However, Rose’s attorneys identified several problematic topics for Doe that may raise questions about the accuracy of her recollection, her intentions and her believability. For instance, Rose attorney Mark Baute led Doe to admit that, despite Doe claiming to be very inebriated and drugged on the evening in question, Doe wrote eloquent texts with proper punctuation. If jurors believe that Doe has exaggerated her level of intoxication, they may be less likely to believe other aspects of her account.

Doe was also confronted with text messages that undermine her case. In one text, at a time when she was unemployed, she told a friend, “I need a wealthy man. We should go find one.” This text may be irrelevant to whether she consented to sexual intercourse at the time of the incident. Such a text might also have been sarcastic or self-deprecating, rather than suggestive of an actual intention to find an affluent person to date. Nonetheless, jurors could read into the text in a way that reflects poorly on Doe.

Doe also admitted that in some of her texts connected to the alleged rape, she embellished. In one such text, Doe assured Rose of a plan to visit a sex shop to purchase a new sex belt. In reality, Doe had no such plan as already possessed a belt that she intended to portray as new. In the grand scheme of things, a lie about buying a new sex belt may seem of little importance to the central legal question in this case: did Rose obtain the legal consent of Doe to have sexual intercourse? Along those lines, Doe lying about a purchase does not indicate whether she gave Rose consent to have sex—these are completely different issues and to dwell on the former is arguably a distraction or red herring in assessing the latter. Yet in a trial, details matter, especially when they shape jurors’ opinions about the witnesses.

Baute also directed Doe to acknowledge that her relationship with Rose may have been less substantial than the two-year relationship she spoke of. Doe admitted that until the night of the alleged rape, Rose had never been to her apartment and she never saw Rose play an NBA game. While a weaker bond between Rose and Doe does not undermine Doe’s specific allegation—that Rose inflicted sexual battery upon her—it could lead jurors to question Doe’s believability.

How the jury assesses the strengths and weaknesses of Doe’s testimony remains to be seen. It appears, based on eyewitness accounts from the courtroom, Doe was far from an excellent witness. Then again, on the most relevant issue of whether she gave consent, Doe seemed to offer a consistent account: she did not. Evaluating Doe’s testimony also can’t be done in a vacuum—it must be weighed against the testimony of Rose. If Rose struggles on the stand, Doe’s mixed results on the stand might be enough to win. But if Rose excels, he’d be poised to be found not liable.

Michael McCann, SI's legal analyst, is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law.

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