Legal Analysis of Misdemeanor Charges

Judge Wilson, what's the statute of limitations on a

misdemeanor in New York?

One year.

The business records case is a misdemeanor, correct?

The, uh, underlying crime, the falsifying business records, yes,

that's a

misdemeanor charge.

So the only way to get to a felony is by committing a, or

is by in concealment of

another crime?

Correct.

Uh, and each one of those crimes has specific

elements?

That's right.

And you have to prove-- In order to get a conviction at trial,

you have to prove

every element of the crime beyond a reasonable doubt, right?

That's just traditionally how this works.

That is the right way to do it.

So in the indictment, did they put the underlying crime?

No, they did not. They only described it as other crimes.

Okay. And in the jury instructions, did they put the specific

underlying crime?

No. The, um, falsifying business records

was described in the jury instructions.

There was some brief description of the, uh, New York State election law violation,

but there was no description given of the three choice of three crimes.

There was a description given of falsifying business records, which

was pretty

ironic because it was falsifying business records to falsify

business records.

So-- And that's also a misdemeanor, right?

That should be, yeah.

So you have two plus two equals six.

Like, if you commit two misdemeanors, you get to the felony statute of

limitations,

which they had to get or they could have never brought the case.

That's correct.

But so was the election law case a federal election law or state election law

underlying crime?

Seemed like it was charged as both.

When we got to the jury instructions, there's a violation of New York election

law

charged, but then there's, among the three charges underlying, is an

unspecified violation of federal election law.

Uh, and then the third one was tax violation, right?

Also unspecified.

So all three of those underlying crimes have significantly different elements of

the crime?

That is correct.

Were any of the elements of those crimes listed?

No, not at all.

So th-a-and th- this is important, and it, it, it might not be as

robust or anything, but when you defend a client in court,

if you don't

know what the elements of the crime you're defending, how do you mount a defense?

You can't. That's the very issue of fundamental

fairness that I referenced.

You as a defendant are entitled to know what the charges

are against you so that

you can defend against those charges.

Donald Trump was never made aware of what the extent of the charges were against

him until the end of the trial.

And those-- And the elements of the crime go in the

jury instructions.

I mean, traditionally, that's how it works.

Federal court, state court in North Dakota,

state court in Minnesota.

I've been in all of these different jurisdictions.

You actually get the elements of the underlying crime, correct?

Any time that I instructed a jury, I instructed them what the elements of the

crime

were.

And instead, in this case, they got a grab bag.

They, they got a choice of three when it came to the underlying crimes,

and we

don't even know which ones they chose.

So we don't know whether or not they could have been unanimous on

those three or

not. That's, that's another failing of the jury

instructions.

So not only did we have not the elements of the crime, but we have three different

crimes with three vastly different elements of the crimes.

All unspecified.

None of them in the indictment. The elements of the crimes weren't in the

bill of

particulars. Last hearing, I had the bill of particulars waved at me

like it was

some kind of magic document that flew in here with its own cape.

So the, uh, statement of facts only describes a series

of allegations, a

series of actions that it's believed that Donald Trump took.

None of them describe any criminal activity.

None of them describe any, um--

They don't describe any elements of any crime.

And that's why you believe, as do I, that when this goes on appeal,

there's gonna

be significant legal issues to argue that the jury never actually got them put

in

front of them.

I, I have very little doubt that this matter will be reversed on

appeal and based

upon these issues.