NY Weinstein Response Would Allow Irrelevant Testimony in Court

New York’s high-court reversal of film producer Harvey Weinstein’s 2020 sex crimes conviction found the trial judge improperly permitted multiple women, who weren’t victims of the charged crimes, to testify about similar allegations. Weinstein now faces a retrial in Manhattan on new charges, with the next hearing scheduled July 9.

The 4-3 decision—aiming to preserve presumption of innocence and a defendant’s right to a fair trial—was widely condemned. But New York lawmakers risk setting dangerous precedent by responding with a bill that effectively circumvents the ruling.

On May 22, the state Senate passed legislation, headed to the state assembly, that would allow evidence of prior unrelated sex offenses to be used against a defendant in sexual assault cases.

The #MeToo movement forced a shift in our understanding of sexual crimes, prompting widespread demands for accountability and emboldening survivors of sexual violence to come forward and share their stories.

Despite these gains, the movement continues to encounter significant legal obstacles. Among them is the uphill battle to select an impartial jury and a society that too often equates cross-examination with victim shaming.

Most women who have spoken up online or on television about sexual assaults aren’t allowed to testify at trials of their alleged perpetrators. Yet there is a growing trend where prosecutors parade witnesses into court to testify about wrongdoing that never resulted in a criminal charge and need not be proven beyond a reasonable doubt.

In most states, including New York, rules of evidence limit testimony about a defendant’s prior bad acts. Although evidence of uncharged crimes can’t be used to suggest the accused is predisposed to commit crime, it can be permitted to prove motive, knowledge, or intent. This is how a Manhattan jury came to hear from half a dozen women about sexual attacks allegedly suffered at Weinstein’s hands.

The proposed bill would ensure past sexual misconduct—that isn’t part of the charged offense—is admissible in sex crimes prosecutions unless a judge concludes the testimony would be unduly prejudicial to the defendant. The measure permits prior bad acts to show a defendant had a “propensity to engage in similar wrongful acts.”

As a former sex crimes prosecutor, I’m familiar with the unique challenges these cases pose. I also know how powerful evidence of prior bad acts—particularly allegations of sexual misconduct—can be, and its potential to convince a jury of wrongdoing.

Weinstein’s prosecution, among the first to amass complaints that emerged in the #MeToo era, catalogued issues that historically didn’t fend well in the justice system: no evidence of force, continuing relationships after the alleged abuse, long delays before reporting. His conviction sent a promising message about these complex prosecutions.

But there has always been a caveat.

Despite wide public support for holding Weinstein accountable for accusations that surfaced from more than 80 women, his prosecution hinged on the stories of just two accusers. Still, the jury heard from six—and that’s unusual. In large part, it’s also the reason the Court of Appeals reversed.

Power in numbers is at the core of #MeToo. One allegation may not be enough to persuade others of its truth, but a drumbeat of allegations surmounts this barrier to belief. Common refrains may reflect public sentiment. They must not dictate or influence jury verdicts.

Celebrity-falls-from-grace are stories that garner inescapable levels of attention in the news and on social media. Everyday people witness these takedowns in real time, counting on the system to get it right. These are the individuals we select to be impartial jurors and on whom we rely to uphold our high burdens of proof and presumption of innocence.

Prosecutors must prove their case beyond a reasonable doubt. A jury must only convict because a defendant committed the bad act at the core of the trial, not because the defendant is a bad person or has faced similar allegations in the past. The Weinstein decision, however much disliked, shouldn’t prompt a legislative workaround that ensures prior sexual assault allegations are routinely admissible.

All sexual abuses offend the conscience; only some belong in a courtroom. At a time when the court of public opinion and of law are too often conflated, it’s vital to shield safeguards that intend to protect the accused. The alternative threatens to strip us of fundamental rights and guts the principle of innocence until guilt is proven.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Deanna Paul, a former New York City sex crimes prosecutor, is an attorney at Walden Macht & Haran, a New York litigation boutique.

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