Key Question for Judge in Weinstein Case: Can Other Accusers Testify?

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.

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, Pennsylvania, 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 Cosby that had not led to charges and that trial ended with a hung jury.

But in the second trial, O’Neill, without public explanation, permitted five women to testify about other incidents in which they said Cosby had drugged and violated them, and the jury found Cosby guilty. 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.

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 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.”

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 Weinstein has a strong defense against the charges he faces, calling the encounters consensual. Each state has a different legal standard for presenting evidence about accusations that have not led to indictments, as do the different districts of the federal court system. But as a general rule, all states place limits on such evidence on the theory jurors might convict someone because they have a bad character rather than because the evidence proves they committed the crime in the actual indictment.

Until the 1990s, few state or federal courts would let evidence of prior sexual assaults be heard in rape trials, considering it a classic example of evidence that only shows a “propensity” to commit a crime.

But then Congress, recognizing that convictions are often hard to obtain in sexual assault cases, in which there are seldom witnesses other than the victim, changed the federal rules of evidence to permit evidence about accusations of similar assaults, said Steven Duke, a law professor at Yale. Sixteen states followed suit, including California and Connecticut. New York was not among them.

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 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 that 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.

Molineux, by the way, was acquitted at a second trial. That jury did not hear evidence about the previous poisoning. In Weinstein’s case, prosecutors would likely try to use past incidents to show the movie producer had a long history of luring young women, many of them actresses, to hotel rooms with a promise to talk about a work opportunity — like a script or a role — then sexually assaulting them.

Ronald Kuby, a Manhattan defense lawyer, said judges typically allow evidence of prior bad acts in New York to allow prosecutors to show the defendant had a modus operandi, a unique “signature” for his or her crimes. Such evidence invariably turns the trial “into a series of mini-trials within the trial” as each accuser takes the stand, he said.

Judges in New York are often leery of allowing that to happen, he said, because it is easy for the defense to argue to an appeals court that the jury was improperly swayed by the other witnesses. “The Molineux window is very small and the likelihood of improper prejudice is extremely high,” he said. “Nobody likes to get overturned on something like that.”

So far, prosecutors have not identified the “prior bad act” witnesses they would call against Weinstein. The Manhattan District Attorney’s Office has interviewed numerous women who had complaints too old to be prosecuted. They also interviewed Paz de la Huerta, an actress who told Vanity Fair magazine that Weinstein overpowered her and raped her twice at her apartment in 2010.

Weinstein has not been charged in connection with de la Huerta’s accusation. The charges he faces are connected to two other sexual encounters: Lucia Evans, a former actress turned marketing executive, has told prosecutors he forced her to perform oral sex during a casting meeting at his office in 2004, and an unidentified woman has said he raped her at the Double Tree hotel on Lexington Avenue in 2013.

In the end, the judge in the Weinstein case will have to decide if the testimony the witnesses would provide fits one of the exceptions under the Molineux decision. Then he has to decide if the evidence proves something so important to the case that it outweighs the danger that jurors might convict Weinstein because of his character rather than on the evidence. Burke may opt to hold a hearing to listen to the testimony himself or rely on written motions. It is never an easy decision for a judge to make, said Edward J. McLaughlin, a retired Manhattan Supreme Court justice. “You can draw comfort that everyone knows that there are cases where this kind of evidence would be and should be admitted,” he said. “You just have to figure out if this is one of them.”