Harvey Weinstein, Sexual Assault, And Prior Bad Acts

One of the biggest pre-trial issues in the criminal case against Harvey Weinstein will be the issue of how many women other than his accuser will be able to testify against him.

Now that former Hollywood mega-mogul Harvey Weinstein has been charged with rape and sexual assault in New York City, his case is moving forward and the Court handling the case will soon be charged with dealing with an issue that also played a big role in the recent conviction of Bill Cosby on sexual assault charges, namely the question of whether evidence regarding other allegations against Weinstein can or should be used in the trial on the existing charges:

Lawyers call them “prior bad acts,” and one of the most important decisions facing the judge presiding over Harvey Weinstein’s trial will be whether to allow them into evidence.

Dozens of women have accused the movie producer of sexual misconduct from unwanted touching to sexual assault over the last three decades, and some of those accusations could have been the basis of a criminal case in New York had they been reported earlier, before the time limit expired under the state’s statute of limitations, law enforcement officials say.

Mr. Weinstein has been indicted in connection with only two of those accusations: He faces charges of forcing one woman to give him oral sex in 2004 and of raping a second woman in 2013. But the Manhattan district attorney’s office would like to put some of those other accusers on the witness stand, to establish a pattern of behavior for a person prosecutors describe as a sexual predator.

That is what prosecutors in Montgomery County, Pa., did in the second trial of Bill Cosby, which ended in April with a sexual-assault conviction. In the first trial, Judge Steven T. O’Neill of the Court of Common Pleas had allowed only one witness to testify about an incident with Mr. Cosby that had not led to charges, and that trial ended with a hung jury.

But in the second trial Judge O’Neill, without public explanation, permitted five women to testify about other incidents in which they said Mr. Cosby had drugged and violated them, and the jury found Mr. Cosby guilty. Mr. Cosby’s lawyers said he will appeal the verdict, and the influence of the extra “prior bad act” witnesses are certain to be part of their argument.

Mr. Cosby’s trials weigh heavily in the minds of Manhattan prosecutors, who have said they would like to employ the strategy used in the second Cosby trial against Mr. Weinstein. But the legal test for letting in evidence of prior accusations in New York is narrow, and it could be a hard road to persuade the presiding judge, Justice James M. Burke of State Supreme Court in Manhattan, to admit the evidence, legal experts and defense lawyers said.

“This kind of evidence can be devastating,” said James A. Cohen, a professor of law at Fordham University. “These are the kinds of things that could be so powerful that it could affect the outcome.”

Mr. Weinstein’s lawyer, Benjamin Brafman, has said he will fight hard to keep such evidence out. “It would be terribly unfair to allow women to testify to their interaction with Mr. Weinstein as to matters for which Mr. Weinstein cannot be criminally prosecuted, but nevertheless try and use their testimony to prejudice the jury,” he said. He said Mr. Weinstein has a strong defense against the charges he faces, calling the encounters consensual.

In the Cosby case, of course, the issue of prior bad act testimony played a huge role in both his first trial, which ended in a mistrial after a hung jury, and in his second, and the difference between how the issue was treated in both cases arguably played a huge role in that regard. In the first go-round, the trial judge only allowed one of the dozens of women who had come forward to allege that Cosby had harassed them in the past to testify regarding the circumstances of their allegations, circumstances that were largely identical to those that Andrea Constand, the accuser in both cases, says she experienced. In the second trial, the same trial judge allowed five additional women to testify regarding the nature of their accusations against Cosby. In all of those cases, the statute of limitations for either criminal or civil charges had long ago expired. This difference and the Judge’s decision to allow more accusers to testify will no doubt be a central part of the appeal that Cosby’s lawyers will inevitably file in his case.

As the article linked above notes, the standard for when the testimony of prior bad acts is permitted varies from state to state. Many states have rules that track the Federal Rules of Evidence when it comes to the admissibility of such evidence. Under Federal Rule of Evidence 404, evidence of prior bad acts is inadmissible except when offered for the purpose of establishing “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Such evidence may also be admissible for other purposes, such as if a Defendant makes their character an issue in the case or otherwise introduces evidence claiming that the Defendant does not have the nature of being someone who would commit and act like the one alleged. In those cases, the prosecution could potentially offer such evidence in rebuttal or to impeach the testimony of the Defendant. This typically happens in circumstances where the Defendant ends up testifying in their own defense and “opens the door” to such evidence in response to direct or cross-examination.

In New York, the standard is similar to the Federal Rule, but goes back to a case that rose 118 years ago:

In New York, the legal standard for prior bad acts goes back to a chemist named Roland B. Molineux, who was convicted in 1900 of sending a “Emerson’s Bromo-Seltzer” bottle full of cyanide to the director of the Knickerbocker Athletic Club, with whom he had a personal feud. A woman living with the club director took the fake medicine for a headache and died.

At trial, prosecutors presented evidence that Mr. Molineux had previously poisoned a rival for his fiancée’s attentions in the same manner, with a mailed tin of poison masquerading as medicine, though he was never charged with the crime. A year later, the Court of Appeals overturned the conviction in a landmark decision that said the state could not present evidence about other alleged crimes, because jurors would believe a defendant “was guilty of the crime charged because he had committed other, similar crimes in the past,” the ruling said.

Still, the court laid out five exceptions, and later decisions added more. A judge could admit the evidence, for instance, to establish a motive for the crime, or to prove the crime wasn’t an innocent mistake or to establish a common scheme or plan. The court said before letting the evidence in the judge had to weigh the evidence’s “probative value” versus the “prejudicial” effect on the jury.

Both are highly subjective judgments, and that means defendants have ample ground to challenge a guilty verdict in higher courts, legal experts said. “When a judge rules there is going to be evidence coming in under Molineux, there is going to be an appeal,” said Steve Zeidman, a law professor at the City University of New York.

Mr. Molineux, by the way, was acquitted at a second trial. That jury did not hear evidence about the previous poisoning.

This Molineuex standard will sound familiar to anyone who has been a regular viewer of Law & Order and Law & Order:SVU  and, while it’s likely true that the manner in which the issue has been handled on television doesn’t exactly track with how New York courts would actually rule in such cases., one does have to give the writers of those shows credit for largely getting the standard correct as part of their overall narrative. In any case, under this standard, the trial judge is going to be left with a difficult choice between admitting evidence that tends to establish a pattern on Weinstein’s part that stretches back more than two decades and the question of how much of a prejudicial impact such testimony could have on the outcome of the case against Weinstein.

If the Judge allows several Weinstein accusers to testify and he ends up being convicted, then the defense will no doubt argue on appeal that the admission of this additional prior bad acts testimony was prejudicial and that it caused the jury to convict based not so much based on the evidence supporting the accusations of the accuser in the case but based on the impact of the other accusers. They’re also likely to argue that the admission of multiple incidents of alleged prior bad acts clouded any issues of reasonable doubt in the underlying case that could have resulted in either an acquittal or a hung jury. That’s a bit far off in the future, though. For the time being, it will be interesting to see how the trial judge handles this significantly important pre-trial issue.

FILED UNDER: Crime, Law and the Courts, , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Kari Q says:

    Thank you for the article, Doug. I don’t really have anything to add, but I did appreciate the the discussion of the issues raise.

    Sexual crimes are particularly difficult in this regard, since it is common that an individual will commit many crimes (or the same crime many times) before they are ever charged. One the one hand, if they’ve never been convicted then that evidence doesn’t seem like it should be included. On the other hand, dozens of women sure lends credibility to the accusers.

  2. Sexual crimes are particularly difficult in this regard, since it is common that an individual will commit many crimes (or the same crime many times) before they are ever charged. One the one hand, if they’ve never been convicted then that evidence doesn’t seem like it should be included. On the other hand, dozens of women sure lends credibility to the accusers.

    That’s the issue the judge will have to deal with. It will be interesting to see how that turns out.

  3. Kathy says:

    It’s tempting to overlook the legal norms, and simply lock the monster up in jail until the day he dies.

    But it’s best to get an iron-clad conviction, following all the rules, and then let him die in prison.

  4. Lit3Bolt says:

    I think we should treat celebrity men with power over others like we treat the everyday 300 lb black men who have committed the same crimes.

    The only reason we are having this procedural discussion is because of Weinstein’s money and fame.

  5. CSK says:

    It was announced today that he’s facing 3 new charges. Two of them can carry a sentence of life in prison.