Evidence of Prior Bad Acts in the Harvey Weinstein Trial

Harvey Weinstein Trial and Evidence of Prior Bad Acts

 The Harvey Weinstein scandal that helped spark the #MeToo movement has reached the trial phase. In January of 2020, the Hollywood mogul went on trial for a pair of sexual assaults, dating from 2013 and 2006. Still, though he’s only charged with two assaults, six women were expected to testify against him, each as to Weinstein’s behaviors on separate occasions.[1] This is reminiscent of the 2018 Bill Cosby trial, during which the comedian and actor was convicted of one sexual assault on the strength of testimony of six witnesses to six different incidents.[2]

Testimony of “prior bad acts,” wherein testimony of wrongs that cannot be proven or which are barred from prosecution by the statute of limitations, are generally inadmissible to prove criminal conduct.

In fact, Rule 404 of the Federal Rules of Evidence states that evidence of a prior crime or wrong is “not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” This is a codification of the century-old “Molineux” rule, named after a New York Court of Appeals case of the same name, that held that the government cannot prove a “crime not alleged in the indictment.”[3]

The Federal Rules make exceptions for sexual assault cases. Rule 413 states that in a “criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault.”[4] While some states have enacted similar rules, many others leave it to the discretion of the trial courts to balance the competing interests at hand.

This rule allowing the prior acts in sexual abuse cases have generally been upheld against challenges on the idea that sexual assault cases are based heavily on the credibility of the victim and that corroborating evidence of prior attacks casts light on that credibility. In other words, evidence of the prior acts is not being brought to show the defendant’s character, but to show that the allegations are more likely to be true if other victims can corroborate that the defendant behaved in this manner.[5]

Interestingly, some states, including New York, have declined to expressly add the rule to their rules of evidence.[6]

One thing courts have insisted upon is that, in making the determination of what to allow, the court must consider the possibility of prejudice against the defendant and weigh it against the probative value. For example, though roughly 80 women have come forward to accuse Harvey Weinstein of various levels of sexual harassment and assault, only a few are allowed to testify at his trial. At some point, cumulative evidence of past sexual assaults becomes overly prejudicial and risks the jury’s resolving to punish the defendant for being a bad person rather than committing the act alleged in the current indictment.

Combined with “rape shield” laws that prohibit raising the alleged victim’s sexual history in many cases, the rules of evidence seek to make things easier for sexual abuse victims to come forward. But, in some cases, they can also threaten the due process rights of the accused. Where to draw that line was an issue for the Cosby appeal, might be an issue for a Weinstein appeal and certainly is a critical question in criminal procedure law and policy.