Harvey Weinstein- Was There Legal Error?
While merely hearing the name Harvey Weinsten elicits a visceral reaction, the New York Court of Appeals has agreed to hear an Appeal from the First Department to consider whether the trial Judge committed legal error which caused prejudice to Harvey Weinstein. This is an unusual step since there is no right to appeal to the New York Court of Appeals, which is New York's highest Appellate Court and indeed the Court only agrees to hear a very small percentage of cases from litigatants who request that they reivew the decisions of the Appellate Divisions. The Court of Appeals own policies state that they only consider cases where there is a split among the Appellate Divisions on an interpretation of law or where there is an important policy or legal issue. So the Court of Appeals is less concerned with an individual's claim that the result was right, but are more concerned about the legal implications of the decisions below on a larger scale. So what makes the Harvey Weinstein case so special that the Court of Appeals would agree to hear it?
From our New York City Criminal Defense Lawyers perspective, the most important issue that seems to be raised is the propriety of allowing the other woman who claimed to be sexually assaulted by Weinstein to testify in support of the criminal conviction, which was commonly dubbed the "Me Too" movement. Interestingly, the Court even allowed high profile actresses who had engaged in voluntary romantic relationships with Mr. Weinstein, i.e., his ex-girlfriends, to testify that he sexually assaulted them.
So many are wondering, what is the legal issue. The legal issue is that the law generally prohibits evidence of prior bad acts for the purpose of showing that a defendant in a criminal case had a general criminal propensity or a bad character. The legal theory is that the prosecution has the burden of proving that the accused committed the crime which with they are actually being charged. Prior bad act evidence is considered inflammatory because it has a tendency to make the jury dislike or even hate the defendant and convict him on that basis alone. The result is that a defendant is being convicted of a crime that they may not have committed because the jury dislikes them and not because they are in fact guilty of the crime. This is the basic argument that the Weinstein criminal defense team will likely make to the Court of Appeals. This prejudicial effect seems to have been borne out by the First Department, which had an all female panel, who apparently were so disgusted by the accusations against Weinstein that they rubber stamed the conviction. Another way to look at whether there was a prejudicial effect of this other bad act evidence is to consider whether there was sufficient proof of guilt of the crime which Weinstein was convicted, without the other accuser's testimony. Certainly a victim claiming to be sexually assaulted by a rich man, who waited years to come forward, without corroborating evidence may lead to circumstantial reasonable doubt about the veracity of the allegations.
So when is other bad act evidence admissible in a criminal case? The most common use is for impeachment, i.e., when a Defendant takes the stand and affirmatively denies the accusation, then he or she has put their credibility at issue. In that case, a criminal defendant can be questioned as to their prior immoral or vicious acts, in addition to any criminal convictions, so long as there is a good faith basis to believe that the defendant committed the act. This standard varies from one Judge to another. Also a Judge has to consider whether the prejudicial effect of the alleged bad act outwieghs the probative vale of the evidence. In other words, is the danger that a jury will just focus on the bad acts and convict solely upon that rather than considering it soley as to whether the defendant is telling the truth, so great that the evidence should not be considered. One of the major considerations in this inquiry is how long ago the alleged bad act occurred. In the Weinstein case, some of the alleged bad acts were decades old, and even under Federal law, convictions over ten years old are considered irrelevant to credibility unless they involved actual fraud. Another concern of the Criminal Courts in general, is whether admission of evidence will itself create a mini-trial on whether the bad acts actually occurred whcih will distract the jury's attention from the main issue in the case, which is whether the Defedant committed the crime with which they are actually charged.
Another recognized exception is the modus operandi exception, where Courts allow prior bad acts to establish a particular criminal methodology. For example proof that a burglar always uses the same tools, or a common fradualent scheme. In this case, the prosection obviously asserted a similiarity of instances in the alleged sexual assaults, but Courts generally require more than commission of the same crime in general to allow admission, rather there must be some common methodology, such as Bill Cosby using depressents to drug the victim. So it is questionable whether the other victims established a modus operandi or a common method, or was it really just making Weinstein out to be a terrible guy and convicting him based upon bad character.
The Court of Appeals is sure to draw some bright line rules for other criminal judges to follow in the future, otherwise, why would they have agreed to hear the case. It will be interesting for New York criminal defense attorneys to see how this plays out. It is important to remember, that if the conviction is overturned that does not mean Weinstein will walk, rather he will have to undergo a new trial, with only the legally permissible evidence considered by the jury. Although with the amount of publicity generated, it is unlikely that Weinstein will ever get a completely unbiased jury, regardless of whether he is actually guilty or innocent.