Harvey Weinstein Faces The Propensity Test

New York County District Attorney Cy Vance may not have wanted to prosecute Harvey Weinstein in the first place, but now that it’s happening, he doesn’t want to lose. That would just add insult to injury, and Cy has already gotten more than a few well-deserved kicks in the nuts over his handling of the matter.

A grand jury voted on Wednesday to indict Harvey Weinstein on charges that he forced one woman to perform oral sex in his office and that he raped a second woman at a hotel, the Manhattan district attorney said.

With indictment in hand, the next step is trying the case and getting a conviction for these two alleged offenses. One question is whether the prosecution will seek to try the two accusations together, even though they are separate crimes. That will allow them to bootstrap the prejudice of one to bolster the commission of the other. But then, what of the other accusations against Weinstein? 

The primary difference between the two trials for Bill Cosby was that the the first involved only evidence of the crime on trial, while the second included the testimony of five unrelated accusers. The first trial resulted in a hung jury. The second in conviction. Propensity is a powerful drug.

The question for Justice James M. Burke is whether the introduction of other accusations, other women, would satisfy the Molineux test, New York’s version of Federal Rule of Evidence 404(b), to permit the introduction of testimony of Weinstein’s alleged “prior bad acts.”

At trial, prosecutors presented evidence that Mr. 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 before letting the evidence in the judge had to weigh the evidence’s “probative value” versus the “prejudicial” effect on the jury.

The test lays out a two-prong inquiry, whether the prior bad act evidence satisfies one of the purposes set forth in Molineux, and if so, is the probative value of the evidence outweighted by its prejudicial impact. When the issue is contested, the court will hold a Ventimigla hearing to determine admissibility.

Weinstein’s lawyer, Ben Brafman, will fight the introduction of prior bad act testimony hard.

Mr. 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 Mr. Weinstein has a strong defense against the charges he faces, calling the encounters consensual.

There are two problems that arise from the introduction of extraneous allegations. The first, obviously, is the prejudicial effect of propensity evidence, that Weinstein is just a rapist sort of guy who rapes, and even if you doubt he committed the crime for which he’s indicted, he’s still a guilty kind of guy, so convict him anyway.

The second problem is the “trial within a trial” problem, putting the defense in the position of having to not only defend against the indictment, but against the prior bad act testimony as well. Rather than fight the case on trial, Weinstein is put in the position of fighting the truthfulness of the allegations of women for offenses with which he’s not charged, but for which he’s tainted nonetheless. That’s the only way in which the prejudicial effect can be addressed.

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.”

Indeed, while the rhetoric argued may be addressed to the Molineux test, propensity is always the real purpose. Prosecutors know too well that smearing a defendant, trials within trials, can produce convictions even when they can’t make their case otherwise. But will that work with Weinstein?

There is a fairly good argument that Weinstein’s crimes have a “signature,” his use of his unique position as a movie mogul to coerce women into sex in exchange for the “star treatment.” For most of us, the promise of a lead role in the cinema wouldn’t get us a peck on the cheek, and more likely a damn hard smack. But Weinstein could make good on the promise, or the threat of killing the career of an unaccommodating woman.

In contrast, the riposte is that women knew what they were getting into with Weinstein, and knowingly and voluntarily traded sex for the hope of a movie role. Was Weinstein wrong to dine at the table of women who sought his good graces? He held no gun to their head; they could leave any time they wanted.

The decision of whether to admit this extraneous testimony is highly subjective, particularly as to the prejudice prong. It is invariably prejudicial, often overwhelmingly so, such that no fair trial of the actual crime before the jury can be had in the midst of a smörgåsbord of accusations. This won’t be an easy decision for Justice Burke, particularly given the atmosphere in general, the Persky Effect and the peculiar outrage focused on Weinstein and, independently, Cy Vance.

24 thoughts on “Harvey Weinstein Faces The Propensity Test

  1. Pseudonymouskid

    Dear Papa,

    Women who didn’t trade sex will have a nightmarish time proving they were blacklisted as a result of that and not just being terrible actresses. Women who traded sex will have paid the meat price willingly. They had no right to access with Weinstein. Good luck to Mr. Vance and the judge. Hopefully the accusers have some good dirt, but then again if they did they might have their own cases.


    1. SHG Post author

      Women who didn’t trade sex for stardom won’t be the ones called as witnesses at this trial.

  2. Chris

    Surely though, they will not be able to find a full jury who have not yet heard these testimonies, given as they were via twitter and/or the press.

    Perhaps it would be fairer to hear them in court, unedited by a journalist and subject to cross examination?

      1. Patrick Maupin

        But, but, but…

        Aren’t our experiences and knowledge all the same? I mean, we all watch Walter Cronkite every night, so we’re all on the same page, right?

        1. Jim Tyre

          Sit down, Patrick. I have something to tell you and it’s going to make you sad. Walter Cronkite is dead.

          1. Fubar

            All these deaths leave me shaken, perplexed.
            What’s gone wrong? Has the whole world been hexed?
            At the rate they are going,
            We’ve no way of knowing,
            First Lenny, then Walter, Who’s next?

  3. Kathryn Kase

    Oh, great one, I know this is your evidentiary lesson, but wouldn’t the first-level response to the signature evidentiary argument be that Weinstein didn’t invent the casting couch? After all, the commonality of the casting couch across the movie industry suggests that the alleged signature evidence does not, in fact, show an individualized criminal modus operandi. Consent — they all knew what they were getting into — would be a subsequent response if the dude or dudette in the black robe ruled that the signature evidence was coming in.

    1. SHG Post author

      That’s a dangerous argument, though. He didn’t invent rape either, but that doesn’t mean he had to do it. Ben made that arg after arraignment, and got his butt handed to him for it. I don’t know whether he can finesse that enough to make it persuasive.

  4. Kay

    The movie “All About Eve” (Bette Davis, Marilyn Monroe) is all about what a woman would do for a part in a play. “All that, and more”….

    Side question–This post did not hurt my feelings, but I am curious as to what would happen if I clicked that button–would my laptop blow up?

  5. Sgt. Schultz

    Looks like Greg poked the nuthouse and they all came out to play. So this is what it looks like way down the rabbit hole, eh?

    1. SHG Post author

      Oh no. I started trashing with extreme prejudice today. You have no idea how bad this could have gotten.

      1. LocoYokel

        So you admit you are feeling trashy today? Is this a regular occurrence for you?

        ‘Nother week or two and the pastrami will be ready to smoke. Now I need to look up how to ship it.

            1. LocoYokel

              Well, I can only provide the means for one, and it wouldn’t be the one who could possibly keep you out of jail. Unless you have a judge who is easily persuadable and likes a good sandwich.

  6. Justin

    Two things:

    1. Why do you say “the peculiar outrage focused on Weinstein”? Why do you think it’s peculiar? I don’t disagree, btw, I’m just curious. It seems like out of all the MeToo stories, nobody has ever piped up to even sort of defend Weinstein.

    2. I guess this goes to the whole trial within a trial thing, but it seems strange to me to allow other stories in as evidence. Trials are about making legal conclusions based on the evidence, but allowing other accusations in almost seem like we’re doing a deem-and-pass on unreported accusations.

    1. SHG Post author

      You answered yourself in the first question. Your second point is what this post is about. If you didn’t get the long version, you won’t get the short version.

  7. Nemo

    There’s another disadvantage to propensity witnesses that wasn’t mentioned. there’s a tipping point in the number, especially here. Even if the defense manages to discredit every such witness, he will still have, in the eyes of the jury, destroyed however many innocent women in the process.

    Juries are committees. Encountered any committees that are collectively smart, lately?



    1. SHG Post author

      You’re absolutely right. No matter what tack the defense takes, it ends up looking bad to the jury.

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