by Richard Resch

The Court of Appeals of New York reversed Harvey Weinstein’s convictions for various sexual crimes because the trial court improperly admitted into evidence “irrelevant, prejudicial, and untested allegations of prior bad acts” and compounded its error by ruling Weinstein could be cross-examined about those prior bad acts.

Background

Weinstein was charged with numerous sex-related crimes against three alleged victims identified as Complainant A, Complainant B, and Complainant C. At the time of the alleged crimes, he was a prominent and powerful individual within the entertainment industry. The prosecution contended that he took advantage of his position to coerce aspiring actresses into unwanted sexual encounters. The prosecution further alleged that when his unwanted advances were rebuffed, he used force.

During pretrial proceedings, the trial court granted, over the defense’s objection, the prosecution’s application to admit testimony regarding uncharged crimes as an exception to the Molineux rule, which ordinarily prohibits this type of evidence. The testimony was intended to show Weinstein’s intent and that he knew the Complainants did not consent to the sexual encounters. As a result, Complainant B could testify about uncharged sexual assaults that Weinstein allegedly committed against her, and three other women (collectively, “Molineux Witnesses”) could testify about Weinstein’s sexual misconduct towards them years before and after the charged offenses involving Complainant A and Complainant B.

Additionally, the trial court granted, over the defense’s objection, the prosecution’s request to cross-examine Weinstein on a wide array of uncharged prior bad acts in the event he testified in his own defense (the “Sandoval ruling”). The court’s ruling permitted the prosecution to question Weinstein on numerous specific incidents that would portray him in an extremely poor light.

At trial, the three Complainants testified, and afterwards, the three Molineux Witnesses testified about their alleged unwanted sexual encounters with Weinstein. Following the testimony of the Molineux Witnesses, the trial court instructed the jury that their testimony “must not be considered for the purpose of proving that the defendant had a propensity or predisposition to commit the crimes charged.” The court added that the testimony of the Molineux Witnesses was provided to the jury for consideration of the “question of whether the defendant intended to engage in the sexual acts, and whether each of the complaining witnesses consented.” During the trial court’s final instructions to the jury, the court reiterated that the testimony of the Molineux Witnesses “was offered for [its] consideration on the issues of forcible compulsion and lack of consent.”

The jury acquitted Weinstein on a couple of charges but convicted him on the first-degree criminal sexual act against Complainant A charge and third-degree rape charge involving Complainant B. The trial court sentenced him to an aggregate 23 years in prison, followed by five years of post-release supervision.

Procedural History

Weinstein timely appealed to the Appellate Division, which affirmed. The appellate court ruled that the testimony of the Molineux Witnesses was properly admitted to show that Weinstein’s sole interest in the Complainants was sexual and that their consent was irrelevant to him. A judge on the Court of Appeals granted him leave to appeal.

Discussion

The Court began its opinion by reiterating the time-honored legal principle that “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.” People v. Molineux, 61 N.E. 286 (N.Y. 1901). Similarly, the Court stated that defendants may not be convicted on the basis of “prior convictions or proof of the prior commission of specific, criminal, vicious or immoral acts” other than to impeach a defendant’s credibility. People v. Sandoval, 314 N.E. 413 (N.Y. 1974); see also People v. Alvino, 519 N.E.2d 808 (N.Y. 1987).

The Court observed that Molineux recognized the following non-exhaustive list of exceptions to the general rule that evidence of other crimes may not be used to prove the crime charged: when such evidence “tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; and (5) identity of the person charged with the commission of the crime on trial.” For so-called Molineux evidence to be admissible, it must “logically be connected to some specific material issue in the case” and be “directly relevant” to it. People v. Cass, 965 N.E.2d 918 (N.Y. 2012). The prosecution bears the burden of showing this direct relevance. See People v. Denson, 42 N.E.3d 676 (N.Y. 2015).

The Court explained that when an appellate court reviews a Molineux ruling, it engages in a two-step process. The first step is for the court to determine whether the prosecution has identified an “issue, other than mere criminal propensity, to which the evidence is relevant.” People v. Hudy, 535 N.E.2d 250 (N.Y. 1988). This inquiry is a question of law that the court reviews de novo. People v. Telfair, 2023 N.Y. LEXIS 1898 (2023).

If the first step is satisfied, the court proceeds to the second step in which it determines whether the Molineux evidence’s “probative value exceeds the potential for prejudice” to the defendant. People v. Alvino, 519 N.E.2d 808 (N.Y. 1987). In making this determination, the Court explained that “the trial court’s decision to admit the evidence may not be disturbed simply because a contrary determination could have been made or would have been reasonable. Rather, it must constitute an abuse of discretion as a matter of law.” People v. Morris, 999 N.E.2d 160 (N.Y. 2013). Importantly, in the event there is “any substantial doubt” in making this determination, it must be made in favor of the defendant, according to the Court. People v. Stanard, 297 N.E.2d 77 (N.Y. 1973). Finally, if the court concludes that the trial court abused its discretion by admitting Molineux evidence, the appellate court must decide whether the error was harmless or necessitates a new trial. See, e.g., People v. Leonard, 73 N.E.3d 344 (N.Y. 2017).

Turning to the present case, the Court determined that the trial court’s Molineux ruling failed the first step. The testimony of the Molineux Witnesses was ostensibly admitted to show the defendant’s forcible intent, refute his claim on consent, and explain why the Complainants waited years to report the sexual assaults. However, the Court rejected that rationale for admitting the evidence, stating the trial court erred, as a matter of law, in ruling that the prosecution had shown the testimony was required and admissible for a non-propensity purpose.

The Court reasoned that there was nothing equivocal about the testimony of the Complainants regarding the issue of consent. Complainant A described a violent, forcible sexual assault, Complainant B described a situation in which the defendant physically blocked her attempt to leave the hotel room and grabbed her to force her to comply with his demands, and Complainant C testified that the defendant lunged at her and used his weight to pin her down while sexually assaulting her. No reasonable person would interpret any of these encounters as consensual, the Court stated. Thus, there was no need for the testimony of the Molineux Witnesses regarding the issue of consent because the testimony of the Complainants themselves clearly showed that there was a lack of consent, the Court concluded.

In reaching its conclusion, the Court explained: “Testimonies from three individuals about their own unwanted sexual encounters with defendant were therefore ‘unnecessary.’ Instead, the testimony served to persuade the jury that, if he had attempted to coerce those three witnesses into nonconsensual sex, then he did the same to the victims on the dates and under the circumstances as charged. That is pure propensity evidence, and it is inadmissible against a criminal defendant under Molineux and its century-old progeny.”

The Court then turned to the trial court’s Sandoval ruling, which the defendant argued violated his right to testify. The Court noted that under Sandoval, a trial court may “make an advance ruling as to the use by the prosecution of prior convictions or proof of the prior commission of specific criminal, vicious or immoral acts for the purpose of impeaching a defendant's credibility.” But when evidence of other crimes and vicious conduct serves no other purpose than to show that the defendant has a propensity for criminal and immoral behavior and thus likely to have committed the charged crime, such evidence must be excluded. People v. Schwartzman, 247 N.E.2d 642 (N.Y. 1969).

The trial court permitted the prosecution to cross-examine the defendant, who did not have a prior criminal record, about numerous alleged incidents of “appalling, shameful, [and] repulsive conduct” involving bullying and fits of anger towards employees, restaurant staff, and business associates, according to the Court. However, the Court explained that none of these incidents were of any probative value with respect to the defendant’s lack of in-court veracity, but they would certainly prejudice the jury against him. Thus, the Court concluded that the trial court abused its discretion regarding the Sandoval ruling.

Conclusion

The Court held that the trial court’s Molineux and Sandoval rulings deprived defendant of his right to a fair trial. It explained: “The synergistic effect of these errors was not harmless. The only evidence against defendant was the complainants’ testimony, and the result of the court’s rulings, on the one hand, was to bolster their credibility and diminish defendant’s character before the jury. On the other hand, the threat of a cross-examination highlighting these untested allegations undermined defendant’s right to testify. The remedy for these egregious errors is a new trial.”

Accordingly, the Court reversed the order of the Appellate Division and ordered a new trial. See: People v. Weinstein, 2024 N.Y. LEXIS 590 (2024).

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