The People v. Harvey Weinstein: The Question of Prior Bad Acts

The People v. Harvey Weinstein: The Question of Prior Bad Acts

7.8.2024

By Mark Dwyer

The case of People v. Harvey Weinstein¹ has attracted much attention because Weinstein was a “mogul” in the movie industry charged with sex crimes against actors, but the case will ultimately be remembered for its impact on the law of evidence. The Court of Appeals reaffirmed traditional limits on the introduction of evidence of a defendant’s alleged criminal behavior that is irrelevant to the case. Its opinion did so despite arguments grounded in social justice, accepted by the three dissenting judges, that the concept of relevance should be enlarged in sex crimes cases. The majority also found error in the trial judge’s decision that, should Weinstein testify, he could be cross-examined about an extraordinary number – a “broad swath” – of his alleged prior bad acts. But the court did not pass on whether the number of acts was excessive; consideration of that issue would have been inconsistent with prior decisions holding that doing so would be beyond the court’s review powers. Instead, the judges found legal error because many of those acts simply suggested that the defendant was a bully and a misogynist and were not relevant to his credibility as a witness. Those rulings are discussed here.

Molineux

New York’s law of evidence has for generations recognized a key principle of due process: in a criminal case the accused should not be convicted on proof of their general character or on a conclusion that they are predisposed to commit crimes. A conviction is appropriate only on evidence relevant to the specific accusations against the accused. In People v. Weinstein, the Court of Appeals addressed the limits of that principle. A four-judge majority reversed a decision by the trial court, affirmed by the Appellate Division, to admit evidence that Weinstein performed uncharged criminal acts. In doing so, the majority rejected the dissenters’ view that in sex crimes cases the rule against evidence of uncharged crimes should “evolve,” given the difficult realities in obtaining convictions on sexual assault charges involving acquaintances.

The indictment alleged that Weinstein committed sexual assaults on two women. Additional and enhanced charges were based on the testimony of a third woman about an attack on her. The women had not voiced their accusations to the authorities for years, and in the meantime had, to varying degrees, maintained personal and professional relationships with Weinstein. The defense was that the two main accusers had consented to the sexual encounters to further their acting careers, or at least that Weinstein thought they had.

At trial the court permitted the prosecution to present testimony not only about the assaults specified in the indictment, but also from three additional women who said that Weinstein committed sex crimes against them on unrelated occasions. The prosecution argued that this testimony would show that the defendant lured women to secluded locations to force them to have sex and that this pattern of trickery evinced his knowledge that the women might not consent to sexual activity. The judge agreed that the evidence bore on “lack of consent and forcible compulsion.” Coupled with the two accusers’ physical resistance to Weinstein, that proof might persuade the jury to reject the defense that he acted without realizing that the two women were not consenting to have sex with him.

Appellate review of this ruling turned on precedent familiar to every New York criminal practitioner. This state’s landmark case defining when a court may admit evidence of uncharged crimes is People v. Molineux.² Molineux held that such evidence is inadmissible to show that the defendant is of bad character or is disposed to commit crimes. But the evidence can be admitted if it helps prove an element of a charged offense, so long as the uncharged crimes are not unduly prejudicial. The Court of Appeals provided five examples of legitimate purposes for proof of other crimes: to show intent, motive, knowledge, a common scheme or plan, or identity. But those are among many possible permissible uses and are “merely illustrative.”³

Every sex crime has as an element that the complainant did not consent to the accused’s actions, and the accused cannot be convicted if they are not aware that the complainant was not consenting.⁴ Even without the evidence from the three witnesses who described uncharged acts, strong proof indicated that Weinstein knew that the charged acts were not consensual. One woman, called “Complainant A” by the Court of Appeals, testified that before Weinstein’s assault she had refused advances from him over two years. Then, in a hotel room in New York, the defendant “lunged” at her; she said “no, no, no” and tried to push him away. He pulled her back to kiss and fondle her. When she then sought to flee, the defendant used “his weight and his body” to push her into the bedroom and onto his bed. She tried several times to get up, but on each occasion, he forced her back. Complainant A kicked and pushed Weinstein to get him off her, but he grabbed her by the wrists and held her down. After she gave up struggling, Weinstein “forced himself upon [her] orally.” On a later occasion, not addressed in the indictment, the defendant grabbed Complainant A by the arm and led her directly to his hotel room bed. This time she did not offer physical resistance. Weinstein then had intercourse with her while calling her derogatory names.⁵

The testimony of the second woman, “Complainant B,” was powerful as well. She described a Los Angeles encounter in which Weinstein grabbed her arms, tried to kiss her “like crazy” and then sexually assaulted her. She later developed a relationship with the defendant and consensually engaged in oral sex with him. With respect to the charged crime, Complainant B told the defendant in a Manhattan hotel room that she did not have time to have sex, and she tried twice to leave. The defendant blocked her, putting his hand over her head to slam a door shut. He then grabbed her hand, forced her to undress and raped her.⁶ On a later day she encountered the defendant in Los Angeles after he learned she was dating another actor. Weinstein announced that she “owed him one more time.” He dragged her into his hotel room as she pleaded “no, please, no.” Weinstein nonetheless “lunged” at her, “ripped” her pants off and left scratches on both her legs. He then forcibly performed oral sex on her, obliged her to reciprocate and finally raped her.

A third woman, “Complainant C,” testified about an attack on her by Weinstein that occurred in 1993 or 1994. That attack was a predicate for elevated charges as to the attacks on Complainants A and B. Complainant C related that the defendant, a business acquaintance, pushed his way into her apartment, grabbed her near the collar and “shoved” her onto a bed. She punched and kicked him, but the defendant restrained her hands until she could not fight any more and then raped her. Weinstein ultimately was acquitted on the elevated charges.

As noted, three more women – actors or aspiring actors – described independent sexual encounters with Weinstein. The first testified that during a networking event she visited his hotel room. He led her into the bedroom and suddenly put his hand up her skirt, trying to push into her vagina. The second woman spoke about an event that occurred while she was working as a cocktail waitress. Weinstein pulled her by the arm to a deserted terrace. There he turned her around to face him while he masturbated. About a week later, while she waited for an audition, she was told that Weinstein wanted to see her in his apartment. When she arrived, he grabbed her arms, threw her on his bed, removed her clothes and had sex with her. She “just froze” and “looked off.” The witness explained that the defendant was a heavy man and that he weighed her down. The third witness testified that she and a friend entered the defendant’s Beverly Hills hotel room to discuss a script. Weinstein pulled the witness into a bathroom and undressed as she laughed nervously. He then pulled down her dress, grabbed her breast and masturbated.⁷

After considering that proof, the Court of Appeals majority held that the admission of other crimes evidence violated Molineux’s strictures. A trial court deciding whether to admit evidence of uncharged crimes applies a two-pronged test. First, the court must decide whether the proof is relevant to an issue besides propensity to commit crimes. Second, if such an issue exists, the trial court can admit the evidence only if its value outweighs its potential prejudice. In making that second assessment, the judge must begin with a presumption that the prejudice inherent in uncharged crimes evidence will render it inadmissible.

In this case the court felt obliged to consider only the first of those two requirements: relevance. The testimony of Complainants A, B, and C was that Weinstein violently pressed them for sex. If the jury found that credible, his behavior and the complainants’ resistance to it showed conclusively that they did not consent and that he knew it.⁸ Prosecution evidence that in other instances the defendant “lured” victims into forcible encounters was not what should determine the credibility of the complainants’ testimony that he forcibly attacked them and that they did not consent. There thus was no issue to which the defendant’s conduct with the three additional witnesses was relevant – apart from propensity. In support of its conclusion the court cited People v. Vargas.⁹ In that case the victim testified that the defendant raped her in a very violent manner. The issue at trial was whether her description of the defendant’s actions was credible and that she did not consent. Evidence of the defendant’s sexual misconduct with others was therefore not probative.

The Dissent

The first paragraph of this article mentioned that only four judges agreed with the ruling. Space is limited, and this article must set out the holding that will govern future cases. As a result, full justice will not be given to the arguments of the three dissenting judges. But the central view of the dissent is significant and should be identified. The dissenters believe that normal Molineux principles are inadequate in sex crime cases in which the victim and the defendant are acquainted, particularly when the defendant has greater professional or economic status than the victim. Sex crime victims often act in counterintuitive ways. For example, in this case, Complainants A, B, and C failed to make prompt reports to the authorities. Moreover, given the exigencies of the entertainment business, they continued in relationships, even with consensual sex, with the powerful defendant Weinstein. The causes of such actions are not understood by many jurors.¹⁰

But jurors know that they cannot return a guilty verdict unless their doubts about the credibility of prosecution witnesses are resolved beyond a reasonable doubt. “He said/she said” cases therefore become unfair contests if juries are not informed of the defendant’s prior acts of sexual misconduct in similar cases. Notably, the Federal Rules of Evidence and the laws in over a dozen states were amended years ago to accord with the position of the dissenters.¹¹ And on May 22, 2024, in the wake of the Weinstein decision, the New York State Senate passed a similar bill and forwarded it to the Assembly, although it looks unlikely to pass in the immediate future. ¹²

The majority’s response to the dissent was clearly put, early in its opinion:

Under our system of justice, the accused has a right to be held to account only for the crime charged and, thus, allegations of prior bad acts may not be admitted against them for the sole purpose of establishing their propensity for criminality (see People v. Molineux, 168 NY 264 [1901])…. It is our solemn duty to diligently guard these rights regardless of the crime charged, the reputation of the accused, or the pressure to convict (see Boyd v. United States, 116 US 616, 635 [1886] [“It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon”]).

The majority thus rejected the view that credibility issues in one case should be resolved through the testimony of witnesses to unrelated incidents. In this case, Molineux law did not evolve to create special rules for a single category of cases.

Sandoval

The second defense attack on the judgment was aimed at the trial court’s Sandoval ruling, so-named for another case known to every New York criminal practitioner.¹³ Molineux decisions resolve whether evidence of uncharged crimes can be admitted as substantive proof during the prosecution’s case. Sandoval decisions resolve whether a defendant’s own testimony can be impeached on cross-examination through questions about whether he or she committed prior crimes and other “bad acts.” These are usually crimes and acts with no substantive relation to the trial charges. The questions are meant solely to cast doubt on whether the testifying defendant is telling the truth, a matter not relevant to Molineux decisions.

Sandoval issues are usually resolved at the outset of the trial and certainly before defendants must commit themselves to whether they will testify. The prosecution identifies the matters on which it hopes to question the defendant. The court decides which questions might cast light on whether defendants would lie on the stand to protect their interests. The court may allow questions not only about past acts directly indicative of dishonesty – for example, perjury, fraud or bribery – but also about other ruthless or churlish acts relevant to whether the defendant might disregard the oath. The court also weighs the risk that the questions would unfairly prejudice the defendant and whether the jury would be distracted by mini-trials on the prior acts. Relatedly, the court will consider whether the defense case can be presented fairly if the Sandoval ruling prevents the defendant from taking the stand.

If there is a conviction and ultimately an affirmance in the Appellate Division, the Court of Appeals can consider whether, in making a Sandoval ruling, the trial judges abused their discretion as a matter of law. Abuse is rarely found; in numerous cases the court has stated that review of the discretionary balancing in Sandoval rulings will generally end with the Appellate Division’s decision.¹⁴ But in the Weinstein opinion, the court emphasized that it could resolve whether the prosecution was wrongly permitted to ask the defendant about matters that had no bearing on whether he might testify falsely. For example, in People v. Duffy,¹⁵ the court considered whether defendants can be examined about the purchase and use of drugs. In that case, the court also resolved that defendants cannot be examined about the existence of youthful offender adjudications but can be questioned about the underlying acts.

Weinstein had no prior convictions. The Sandoval inquiry was therefore about whether he could be cross-examined about prior bad acts. The state of the trial record in this case makes it difficult to count the number of acts about which the prosecution wished to make inquiry. At times, for example, the prosecution sought to ask questions about a course of conduct over an extended period. At other times, the prosecution sought to cross-examine about single incidents that encompassed a number of arguable bad acts. It is plain, however, that the trial court ruled on dozens of acts. The court refused permission for many of them. Still, by the Appellate Division’s count the prosecution was allowed to ask the defendant about 28 acts. The Appellate Division did find that the Sandoval ruling was proper. But it noted that, at least “at first blush,” the permitted number of inquiries was “troubling.” In fact, there may not be another reported case in New York holding that inquiries about so many independent prior bad acts could be permitted. There certainly are not many.

When inquiries about prior convictions are made, the prejudicial impact of questioning can often be ameliorated with a “Sandoval compromise.” The prosecutor might be allowed to ask defendants whether they were convicted of particular crimes but not about their actions during those crimes. Or, where the defendant has many convictions, the prosecutor might be permitted to ask only whether the defendant has been convicted of the particular number of felonies and misdemeanors shown by the records, without reference even to the names of the crimes. But when, as in this case, the prosecution application concerns not convictions but bad acts, a compromise of this sort is impossible. The only way to impeach a defendant with prior bad acts is with a description of the acts.

And that is what the trial judge authorized here. To begin, the court allowed the prosecution to ask Weinstein about his attacks on the three Molineux witnesses and one on a woman who had offered testimony corroborating Complainant C. That was no surprise, at least as to the Molineux witnesses, given that the evidence about those women was admitted on the theory that it was material proof against the defendant.

Beyond that, the court allowed the prosecution to ask the defendant whether he used a friend’s Social Security card years before to obtain a passport; told people to lie to his wife about where he was; directed investigators to deceive people when they acted on his behalf; arranged a business meeting with a woman under false pretenses to be alone with her in an elevator; encouraged executives to lie for him about his relationships; threatened violence against people who worked for him; had people lie about whether certain expenses were business related rather than personal; bragged that he had ordered people injured or killed in the past; photoshopped the head of a female actor onto a nude body; and berated an underling before abandoning him on a road in Canada. When the defendant was displeased with an employee’s performance, he would require the employee repeatedly to write out “I am an idiot” or to send him a letter of apology. The defendant also cursed at employees and, on one occasion, at restaurant staffers who refused to prepare a meal for him after the kitchen had closed. In another restaurant, Weinstein overturned his table out of pique. He also kept an executive from receiving compensation out of spite. The prosecution could also ask about other incidents of hostile behavior toward women or showing that he was a bully toward less powerful individuals. Questions could be asked about various threats of violence made across the years, including threats to women. One act involved a heated argument in a business meeting in which the defendant knocked his brother unconscious.

In past cases, the Court of Appeals has not placed a limit on the number of prior crimes or bad acts about which defendants can be questioned. Nor did the court do so in this case or say that the trial judge abused his discretion in allowing as many as he did; although, like the Appellate Division, it seemed troubled by the number of areas in which questions could be asked. The court instead focused its criticism on the types of bad acts on which inquiry was allowed. A significant number struck the court as irrelevant to whether the defendant would lie on the witness stand. These included many acts showing that the defendant was an uncouth bully prone to fits of anger. Inclusion of these acts in the group accepted for questioning allowed attacks on the defendant’s character unrelated to proper Sandoval concerns. On that basis the court found reversible error – an abuse of discretion as a matter of law.

* * *

The Weinstein appeal challenged settled Molineux precedents. A significant social justice issue impacting women’s rights inspired an argument that an exception be made to traditional rules in a particular category of cases. In the Court of Appeals, tradition narrowly won out – though the challenge will doubtless be continued in the legislative arena. In the meantime, evidence of prior sexual assaults will not be admitted simply because a defendant is charged with a sexual assault, even one involving acquaintances and differing amounts of influence. That defendants have had a past habit of committing sex crimes will not be acceptable proof that they intended to commit new ones.

As to the Sandoval ruling, judges are people too. The majority expressed no sympathy for Weinstein but must have agreed with the defense that the client, flawed in character though he appeared to be, deserved relief from unfair treatment. As a result, the majority maneuvered past the traditional view that a considered exercise of discretion by a trial judge in deciding a Sandoval motion is generally beyond review in the Court of Appeals, which is able to consider only questions of law.

Perhaps the plainest lesson from the case is one for prosecutors. Be careful not to ask for more than you need. You may get it.

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Mark Dwyer is a retired judge of the New York Court of Claims. He served for over 10 years as an acting justice of the Supreme Court in the criminal terms in Brooklyn and Manhattan. Prior to being a judge, he worked for 33 years in the Manhattan District Attorney’s Office.