In a 4-3 split, the New York conviction of Harvey Weinstein was reversed based on the trial court’s allowance of promiscuous propensity evidence against him under the guise of Molineux exceptions. Much as Weinstein was one of the most despised targets of #MeToo, four judges of the Court of Appeals, in an opinion written by Judge Jenny Rivera, held that smearing a defendant with collateral accusations bearing no relevance to the crimes with which the defendant was charged went too far. No serious criminal defense lawyer was surprised.

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 ]). Nor may the prosecution use “prior convictions or proof of the prior commission of specific, criminal, vicious or immoral acts” other than to impeach the accused’s credibility (People v Sandoval, 34 NY2d 371 , 374 [ 1974]). 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 case against Weinstein was flawed, with his two accusers engaged in a friendly and utilitarian relationship with him long after his putative sexual assaults and rapes. To beef up his awfulness to the jury, the court allowed the prosecution to throw every bad act against the wall to see what stuck. Based on the conviction, much of it did, and Weinstein’s evilness was proved. Except Weinstein wasn’t charged with being a bad dude, but with two crimes.

The trial court then compounded its error by its Sandoval ruling allowing Weinstein, should he testify, to be crossed on the collateral accusations.

We conclude that the trial court erroneously admitted testimony of uncharged, alleged prior sexual acts against persons other than the complainants of the underlying crimes because that testimony served no material non-propensity purpose. The court compounded that error when it ruled that defendant, who had no criminal history, could be cross examined about those allegations as well as numerous allegations of misconduct that portrayed defendant in a highly prejudicial light. 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.

There was little doubt that the prosecution was grounded in blatant propensity evidence, Weinstein being so deeply despised and neither the district attorney nor the court willing to take any chance he would beat the rap. It may well be that he deserved the disgust he was shown, but there should have been no question that he should be convicted on evidence that he committed the crimes charged, not that he was a repulsive human being. Yet, three judges hated him enough that they didn’t care what the law required.

And yet, the majority of the court, much like the dissent of former Nassau County district attorney Madeline Singas, conceded that the junk science of #MeToo, the litany of excuses that usurps the jury’s function, introduces ideology to excuse the failure of evidence and is utterly without any basis other than desperate belief, embraced the “expert” testimony of Barbara Ziv.

The prosecution also presented testimony from a forensic psychiatrist and an expert on rape trauma syndrome. She described how sexual assault victims may behave in ways towards their attackers that persons unfamiliar with the syndrome might consider counterintuitive. She attempted to dispel certain rape myths, including that most rapes are committed by strangers and that ” credible” victims promptly report attacks and discontinue relationships with their  attackers. She further testified that traumatic events narrow the brain’s ability to focus on specific details, yielding clearer memories of such events.

If this sounds familiar, Ziv is to sexual assault what Bill Lewinski is to police shootings. a pseudo-expert with a ready excuse for any and every failing of evidence. The majority used Ziv’s testimony to juxtapose the “right” way to fill the gaps in flawed evidence and a weak case.

The proper method for dispelling rape myths in “nuanced and complex” cases (Singas, J., dissenting op at 24) is the one deployed by the prosecution here: educating jurors about rape myths and social misperceptions about sexual assault with expert testimony explaining rape trauma and survivor responses (see Taylor, 75 NY2d at 288-289). Specifically, testimony from the prosecution’s expert provided non-propensity evidence that addressed what some jurors might have seen as counterintuitive acts by complainants when they continued to interact with defendant, and contextualized conduct associated with rape trauma. As the expert explained to the jury, her professional work with sexual assault victims led her to conclude that many victims often maintain contact with their attackers out of fear the attacker will retaliate.

Indeed, it was non-propensity evidence. It was also complete nonsense, a faux litany of pseudo-scientific excuses that explains away the conduct of accusers such that no matter what they do, or don’t do, it proves they were the victims of sexual trauma.

That testimony was particularly crucial here.

And fake science that serves to rationalize failed evidence will invariably be crucial in the prosecution of sexual assault accusers. While everyone is focused on the horror of Weinstein’s New York convictions being reversed for flagrantly improper propensity being admitted, beware the “particularly crucial” evidence that turns trials into inquisitions where no matter what evidence is admitted, it proves guilt.