Harvey Weinstein - Posterboy for Prior Bad Acts - Given Another Chance to Act Badly
Yet Another Bad Actor Gets Another Chance...
I have written previously of the injustices in the so-called “justice system” - especially when it comes to women and abuse - and the overturning of guilty verdicts in cases such Bill Cosby and now Harvey Weinstein - which prove my point spectacularly. In 2020, Weinstein was convicted by a New York jury of rape and sexual assault, but recently his conviction was overturned on appeal - much like that of Cosby. According to the New York Court of Appeals, the Weinstein trial judge “erroneously” allowed several women to testify as “witnesses” to the defendant’s alleged “prior bad acts,” which the New York Appeals Court found too prejudicial for Weinstein’s conviction to stand.
Many of the women who testified against Weinstein were aspiring actresses, relaying their own saga of debauchery by the defendant, and fueling the “#MeToo” movement that rocked the nation and the world. It brought to light the prevalence of sexual abuse, and how victims had suffered in silence for so long, much of it unreported. In fact, several woman who testified against Weinstein, told the same story: they too had been sexually assaulted, raped by the defendant - lured by promises of stardom, Hollywood film roles, or career advancement – much if not all of it never reported, as they feared they wouldn’t be believed, or even worse, ostracized by the industry. The common thread: they were all deceived by the same predator, abused by him, their careers ruined if they didn’t submit - fiercely resisted – or informed the police.
New York Appeals Court Takes Issue With Trial Court Process
Despite his claims of innocence, Weinstein was found guilty - his heinous encounters revealed. A jury finding him guilty of rape and sexual assault - an abuser of the most cunning and insidious kind. Yet, the New York Appeals court took issue with the trial judge’s “Sandoval” ruling (trial court setting witness and evidence to be presented), leading up to the guilty verdict at trial - ruling the evidence presented was overly “prejudicial,” to Weinstein - throwing his guilty verdict out.
What the Trial Court Did
By the trial court’s Sandoval ruling, it allowed other “allegations” from non-party victim-witnesses (who never brought legal claims against Weinstein) to testify at trial. These women testified as to Weinstein’s methodology to bait them: detailing his “modus operandi,” illuminating Weinstein’s plan, scheme, and methodology of his deception - luring these women under pretense: to his office or hotel room to “talk” about their careers. All of these invitees soon learned he targeted them as his prey; in a place where he could surreptitiously, and uninterruptedly sexually abuse them behind closed doors - out of the view of the public and any witnesses, just as any ordinary, clandestine abuser would do.
Prior Bad Act Evidence Used to Hold Weinstein Accountable
By the accounts of witness testimonies, these women (nonparties to the case) became “Prior Bad Act” witnesses to Weinstein’s “alleged” crimes against themselves - although not percipient witnesses to the allegations being litigated; but they still had valuable information tangentially-related to the crimes being charged.
“Prior Bad Acts,” evidence – is a legal term of evidentiary art, encompassing the wrongs done by a defendant – whether criminal, civil act, or any “wrongs” in between.
Evidence of other crimes, wrongs, or bad acts are not admissible to prove character or propensity to commit a crime or wrong – and it cannot be used as a basis for suggesting the inference that conduct on a particular occasion would conform to conduct on another.
The Scope of Prior Bad Act Evidence
Prior bad act evidence “cannot” be used for the “truth” of a prior unrelated statement or observation or to show propensity;
But,
It “can” be used for the limited purpose - to show: Motive, Intent, Absence of Mistake, Identity, Common Plan/Scheme (modus operandi).
Pretrial Hearing is Important to Getting Prior Bad Act Evidence Before the Court
Evidence of these “prior bad acts” are presented in a pre-trial hearing (called a Sandoval hearing in New York state), where proposed evidence is presented to a Judge outside the presence of the jury. If the presiding judge believes this “prior bad act” evidence is “relevant” and not overly “prejudicial” to the accused defendant, it will be allowed to come into evidence at trial, for the limited purpose for which it is admitted.
Exception to Hearsay
In the state of New York, as in most jurisdictions, “prior bad act” evidence is an exception to the “hearsay rule” - which means this “evidence” can be introduced at trial, either through documents or testimony - as long as is used for the limited purpose for which it was intended - and as long as the court found it to be relevant and not overly prejudicial to the defendant. This hearsay exception - allowing “prior bad act evidence,” is referred to in New York as the Molineux rule - named after a 1901 New York murder case, People v Molineux.
Under “Molineux,” the prior bad act evidence is first reviewed pre-trial, in the “Sandoval” hearing, out of the presence and earshot of the jury. (The hearing name gets its namesake from a seminal New York murder case circa 1974). As far as I can tell, the women who testified, spoke of Weinstein’s Modus Operandi and lure – which is acceptable under Molineux – yet the problem here appears to be with the Sandoval hearing itself: the allowance by the trial judge letting these prior bad act witnesses to testify, who are not parties to the case, and were not witnesses to the events being litigated in the trial.
What does a Sandoval Hearing do?
The trial judge determines what “prior bad act” evidence including testimony and witnesses will be allowed at trial. The purpose of which, is to set the scope of cross-examination of the witnesses on relevant issues with the aim of not prejudicing the defendant. It also serves the purpose of letting the defendant know ahead of time what witnesses can testify to, so the defendant can assess whether or not he will take the stand in his own defense.
Weinstein Had a Sandoval Hearing – But Outcome was Prejudicial?
At Weinstein’s Sandoval hearing, the trial judge ruled to allow the prosecution to bring up certain “prior bad acts” detailed by the witnesses who testified. But as a result of the judge’s ruling, Weinstein claims he did not take the witness stand in his own defense, dissuaded by the trial judge’s ruling. That ruling allowed him to be subject to cross-examination on issues brought out by these “prior bad act” witnesses – who are not parties to the pending lawsuit. As a result of the pre-trial Sandoval ruling, and Weinstein’s claim of prejudice – his lawyers assert he was denied a right to a fair trial. Recently, the New York Appeals Court agreed.
Was Jury Deprived Too?
In respect to Weinstein not taking the stand is own defense, the reason being he could be cross-examined on this bad act testimony; it is also arguable, the jury was deprived of its opportunity to assess Weinstein’s credibility and demeanor under oath on the witness stand. In essence, there was a lost opportunity for both Weinstein to testify in his own defense, and the jury to assess him as well. What happened instead, his testimony was supplanted by allowing multiple witnesses, non-parties to the litigation, testifying to his character and crimes they alleged. When brought up on appeal, the New York Appeals court agreed, it would be highly prejudicial for Weinstein to be cross- examine about alleged wrongdoings, by accounts of women having no part in the case.
Majority Rules
In a close, but nevertheless majority ruling, (4-3 decision), the New York Appeals court overturned Weinstein’s 23 year sentence and guilty verdict, stating:
“the trial court erroneously admitted testimony of uncharged, alleged prior sexual acts” and permitted questions about Weinstein’s “bad behavior” if he had testified, stating it was “highly prejudicial” and “an abuse of judicial discretion.”
The court reasoned: the testimonies of women - nonparties to the case, was prejudicial to Weinstein the defendant. Had he “wanted” to testify, he would have been subject to cross-examination on what the women testified to at trial, having nothing to do with the case being litigated. The Appeals finding that evidence against him was overly prejudicial, and he need not be forced to testify or defend issues outside of the case.
The Appeals Court ruled, the allowance of these extraneous witness testimonies was not only,
“highly prejudicial” to Weinstein, but an “abuse of judicial discretion” by the trial judge for allowing it to take place. The result of which was depriving Weinstein of his right to testify to allegations brought in the case against him. At the same time, it deprived the jury the opportunity to judge Weinstein’s credibility and demeanor for themselves.
Beyond the New York Case Against Weinstein
In California, where a number of his crimes took place, Weinstein was convicted of sexual assault and rape.
One silver lining: even though his New York conviction was overturned, he will not be released from custody as he is subject to incarceration in California. Nevertheless, victims and prosecutors are concerned that overturning of the conviction in New York could potentially upend his conviction in California which became part of its trial court record.
It is noteworthy, that it is easier to hold sex offenders accountable for their crimes in California, as their statutes specifically address sex-based crimes, and violence against women. As a result, it is easier for prosecutors to prove sexual assault and rape cases where gender-based statutes exist, such as in California rather than New York, which do not have specific statutes on point. This discrepancy in the statutes that proscribe gender-based crimes, would most likely be why the New York judge allowed witnesses to testify to prior bad acts, because the burden of proof in multiple sex-based crimes that happen in private, without percipient witnesses, are far too difficult to prove in New York under current law.
Money Speaks Volumes & the People Pay the Price
But like every wealthy criminal who commits crimes spanning multiple jurisdictions, Weinstein’s well-paid lawyers are diligently working on overturning the California conviction, arguing prejudice, that the previous conviction in New York influenced the conviction in California. But the California conviction stands strong in its own right, as the statutes in place in California specifically address the nuances of the crimes charged. With more time and money spent on litigation - which the defense seems to have plenty of, will help that determination to be made. In the meantime, the “people” of New York and California foot the bill - paying the price to prosecute a man who is a multiple-time convicted serial-rapist - yet unlike the poor destitute criminal, Weinstein’s money and influence still serves him well.
Copyright 2024, Mary Kay Elloian, MBA, JD, Esq. - The Legal Edition - Legal, Business & Policy News. TheLegalEdition.com