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

This is all a dance. The DA is posturing and given his failure to take action regarding prior allegations brought against Weinstein, he needs a conviction no matter what. That conviction will come at the cost of Weinstein's right to a fair trial if the "prior bad acts" get in front of a jury especially since all involved different activity. The argument can be made that they are irrelevant as well as being highly prejudicial. While the evidence can be devastating, it needs to be admissible. This isn't Pennsylvania. This case because of the politics involved will be tried for the record so if there were to be a jury finding of guilty, it will be overturned in The Appellate Division or if need be The Court of Appeals. The Defendant has the money and motivation to take the case through the process.

I'm a little surprised in a piece stretching back to the 19th Century for precedents the writer didn't cite the much more on-point case of William Kennedy Smith. Three other women, including a Vanderbilt law professor and the girlfriend of Rep. Patrick Kennedy gave testimony outside the hearing of a jury that Smith had assaulted them in ways similar to the charges by the Florida woman. But the judge refused to let that testimony be heard. It was the decisive moment of his trail, which of course let to an acquittal. You could write a whole essay about privilege and intimidation and Ted Kennedy's poisonous influence and the world before #MeToo about that case.

Jury selection will take enormous time, energy, and guile. Much of the conviction will be won or lost here and both sides will throw everything they can think of into it. Harvey's side has the advantage here because they can and will go full excavation on every juror. The character of the jury will also be shaped by the judge's ruling on prior bad acts. With so much public sentiment going so strongly against Harvey, it's hard to imagine the Manattan DA being able to survive an acquittal.

If the prosecution does not let at least 10 or more women testify the first time they are not going to get a conviction. On Bill Cosbys first they started off with only one witness and learned the hard way the defense attacked the victim. That is terrible to say but I was pleased when the second trial had more women witnesses who were victims also. So to avoid the defense from attacking the victims bring in more victims and get a guilty verdict the first time.

All other bad acts are inadmissible because they are a different set of facts, a different circumstance. Therefore, they are prejudicial to this specific case. New York state law may be different as to showing "a pattern" of behavior. I cannot say. Weinstein will not testify, and open himself up to impeachment of character with his bad acts. Hence, his attorney's strategy is to distill the whole thing down to "She said," and then to go after the victim's credibility and history. Really ugly. But it could make for a finding of less than beyond a reasonable doubt of guilty. You can bet voir dire will be important. Weinstein's attorney will look for illiterates or naifs and senescents with no electronics, out of earshot of all his widely reported bad acts.

I was on a jury where the other jurors suggested that the defendant "probably" did other stuff not part of the case before us. It took a lot to convince them to focus on the facts of the matter at hand. Impartiality requires discipline as much as people might want to rush to justice in this case. A fair trial is right afforded to everyone and should not be dropped due to a bias created media exposure.

I am generally coming down in favor of the accused, but in this case the evidence of a clear pattern is overwhelming. Still, we must follow the rule of law. But I also suggest that there should be a pretrial opportunity for Weinstein to reconcile with his victims. I suggest putting him into a room with all his accusers for 1 hour and locking the door. There may no longer be a need for a trial after that and a difficult legal problem would have been averted.

At trial, Mr. Weinstein may be the first witness to provide evidence that the encounters were consensual. A challenge to the credibility of any witness on a mixed question of law and fact may be the testimony of another witness that is subject to cross examination.

Everything says the guy did it! Right? Sorry, but without a tape kit or a torn semen-stained dress, the malefactor goes free. I thought boomer/X-er women were taught well that sexual assault is a violent crime not their fault. But the words still came out with something hideous, still communicating “we really don’t mean it-rape victims get what they deserve”. Maybe if we demand justice despite its cost. Are we honest when we say let 1,000 guilty go free to save one innocent from punishment. I abhor the result, but just maybe if the #metoo generation’s daughters see these cases tossed, they’ll get the right message and call the cops. I had a lover at Columbia University who asked me to help her tell a friend she saw talking to a monster rapist not to keep his dinner invite, He had raped my love last semester. He was a psychopath, who ignored his victim’s tears, attempted escapes. screams, while he talked on and on about how wonderful it would be when they married and had kids. It was always the same, victims found, comparing their nightmares. Not one called police, let alone protected evidence. “The first thing I did was take a long shower” she told me, crying. Somehow, she and his other victims convinced themselves they must have given the wrong signal. Since he seemed a ‘nice guy’ they didn’t want to hurt him. No matter how much he tortured them and would hurt many others, all they needed to fo is “get the word out”. This was 20 years ago - at New York’s Ivy-League campus.

I have no sympathy or empathy for Weinstein or Trump or Cosby. But if evidence of wrongdoing is now a thing of the past, then the rule of law is not dead; the rule of law is meaningless.

Prior acts by a defendant are most always inadmissible even if previously found guilty of those acts. We must see fairness given even to our most heinous criminals.

Only the judge can decide if character evidence is admissible. If it is, I hear there’s over 70 women around the world waiting to confront Weinstein and have their day in court. Sounds like justice to me.

Pity the anonymous woman didn't go to the police in 2013 so dna could be collected, supporting a contemporary inquiry which could've borne fruit.

Perhaps there shouldn't be a statute of limitations for the earlier sexual assault crimes that Harvey Weinstein is alleged to have committed. Many of these victims were likely afraid to come forward, intimidated by the power that Weinstein once wielded. Therefore, they should now be allowed to testify in order to show a pattern of behavior by Weinstein that continued to the time of the crimes with which he is currently being charged.

Mr. Weinstein is likely a despicable person. But all accused are entitled to due process, a fair trial, and their day in court. Allowing evidence of prior acts would likely deprive Mr. Weinstein of his right to a fair trial. This is very worrisome, particularly in a criminal trial. In the bad old days decades ago, when a woman accused a man of rape or sexual assault, testimony regarding the woman’s prior sexual history was admissible by the defense. If the woman could be shown to have been sexually active, this could be used by the defense to help exonerate the accused perpetrator. The law has now changed, and today “rape shield” laws prohibit such testimony. The same rationale should apply to the rights of the accused, including Mr. Weinstein. Except in very narrow circumstances, evidence and testimony about his prior behavior should not be allowed. I very much fear that in their quest for justice, many in the me-too movement have lost track of the importance of due process. This observation applies to the use of the “preponderance of the evidence” standard for those accused of sexual assault on campus, and even more worrisome to the successful recall of a respected judge in California, Aaron Persky, for a single sentence in an assault case some felt too lenient. His recall was endorsed by many in the liberal press and many politicians such as NY Sen. Gillibrand. It may have been emotionally satisfying, but it very much undermines the entire nation’s judicial system.

I am concerned that Due Process not be thrown under the bus simply because we are horrified at the statute of limitations benefiting these monsters. The argument for "prior bad acts" evidence at its core is that the evidence is not a generalized character attack but rather more relevant than prejudicial because this accused has a pattern of idiosyncratic behavior. In the Cosby case drugging your rape victims is (please let this be true) idiosyncratic. As much as Weinstein is a monster, the legal issue with him is a lot trickier. He's a run-of-the-mill predator rapist pig; there's no particular "pattern." As far as precedent, we would be better served advancing the civil cases against his enablers. There were many people who protected him, e.g., board members who allowed the pay-offs. Apparently humanity breeds rapist monsters, but in a civilized society they are not enabled the way Weinstein was. And, had someone stopped him earlier, then maybe the statute of limitations would not have run before these victims came forward.

Mr. Weinstein’s lawyer, Benjamin Brafman: “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” It's terribly unfair that a wealthy male predator can use his power to dominate women and mostly get away with it. It's terribly unfair that a wealthy predator can afford a very expensive legal team, while his female victims probably can't. When it comes to guys like Harvey Weinstein, perhaps it's time to reconsider certain laws.

In the Moline case, it would have been possible to seat a qualified jury that had no knowledge of his (likely) prior criminal acts. I'd like to see them pull that off with Weinstein.

No, it's not fair and there are about a thousand reasons why such evidence should not be allowed. The testimony regarding "prior bad acts" has nothing to do with the incidents being tried, everything to do with prejudicing the judge/jury against the accused. Say you're caught speeding. During the big trial that would result (lol) you line up ten people who say they have always seen you driving at the speed limit. Does it matter? No! Then prosecutors line up another ten people who say you're a wild animal on the road, and they have seen you speed countless times. Does it matter? No! Because what matters is what happened during the incident at question. Were you speeding when the cop said you were? If you think such testimony should be allowed because "everybody knows" he did it, then you need a refresher course on the dispensation of justice by the authority of the State. That this is Harvey Weinstein we're talking about, a man whose name is currently synonymous with sleaze and putrid acts, makes keeping the distinction clear all the more important.

I know that I'm gonna get grief for this but here goes. This man has no chance of a fair trial. Much like the Coby case.... This trial is just for show. The law does not allow for a womans past behavior to be questioned....but the law allows the defendants past behavior to be admitted. He looks like creep and probably is one....but he deserves a fair trial before an unbiased jury. This will not happen. The founders went out of their way to protect the accused. One by one these protections are being stripped away. This will be a show trial. Again...he is probably a creep....but he still deserves a fair trial.

In the accompanying photo, he looks like death warmed over.

Prosecutors should go after Weinstein with everything they got and put him away. He is a predator.

Anybody who has been harmed should be able to testify with or without the statue of limitations. Nobody should get away with his or her wrongdoings especially from somebody with such power to break someone's career. I have no sympathy for this worm.

If a pattern of behavior has continued past the statute of limitations, I do not see any reason for not allowing evidence of past such acts. If Congress has changed federal rules to allow it, there is even less justification for disallowing it. If the trial moves up to a federal court, would the federal rules not apply? Perhaps, charges against Weinstein should be filed in a federal court. Why a New York court when the offenses most likely would have occurred in and around Los Angeles, i.e. California (I presume)?

Nothing is going to save Weinstein. But if they can't get a guilty plea based on what they have, it's not going go help to have people talking about him walking around in a bathrobe.

In these cases it is often he said vs. she said. And up to this point, the woman's past behavior has been introduced as "evidence" that she invited the current advances. Seems only fair that now the man's past can be used to show his propensity to commit these acts.

Molineux evidence is usually introduced to establish identity if one victim cannot identify an assailant and the cases are similar. This doesn't seem to fit that situation.

What makes it difficult, is that any "prior bad act" in his history are still just alleged wrong-doings voiced from women, for which he has surely stated consensual. None of them can or should be considered fact, enough to contribute or be a deciding factor in proving guilt in a different case. Let them prove guilt based on this incident alone, then use it as a prior-bad act for another case, if it comes to trial. It must be able to stand on its own.

There is no genuine need for this additional evidence in this case.

It seems best to seek a conviction based on the evidence with regard to this specific crime, especially since this case has become a causes célèbre. It will likely be almost impossible to find a juror who has not heard something about Mr. Weinstein's previous behavior. It would be a pity for the prosecutors to get a conviction only to have it appealed because the jurors were considered biased for whatever reason.

It is unfair. It lessens the burden on the government and muddies the question of trial. Why not, then, let in every woman that Weinstein treated well on a date, or close proximity, or at work, or whom he pursued --flowers sent, meals paid for, trips arranged, acting gigs secured? And on and on and on. Because it alters the (simple) question of whether the government (who has the burden) can prove beyond a reasonable doubt, via all 12 jurors (not 11 or 10 or . . .) , that what they allege is true. A high rich standard. Liberty can be taken away when --and only when-- the government meets this burden. Otherwise liberty is preserved. An ode to (precious) liberty.

Seems legally dubious to tertiary about his pattern of behavior or his propensity. However, if he had a common plan or MO, then that can come in. But prosecutors should be careful that this doesn’t become a “beat up on Harvey” case if they want to deny the defense that particular silver bullet. Stick carefully to the incidents charged! That’s the way to get your jury to see what everyone else does.

It is fair as the defendant's lawyers in rape cases will work to question the victim's sexual history to make it seem the victim brought about the rape. It becomes the victim's fault and in court her private life is held up for all to see, though it is really irrelevant. Now time is up and the boot is on victim's foot--it's about time. It is overwhelmingly fair

It is unfair. It lessons the burden on the government and muddies the question of trial. Why not, then, let in every woman that Weinstein treated well on a date, or close proximity, or at work, or whom he pursued --flowers sent, meals paid for, trips arranged, acting gigs secured? And on and on and on. Because it alters the (simple) question of whether the government (who has the burden) can prove beyond a reasonable doubt, via all 12 jurors (not 11 or 10 or . . .) , that what they allege is true. A high rich standard. Liberty can be taken away when --and only when-- the government meets this burden. Otherwise liberty is preserved. An ode to (precious) liberty.

A very difficult, but nevertheless, dangerous area to enter into. One can fully understand the desire to present a fuller picture of an accused like Mr. Weinstein to the jury - though his often sneering demeanor may accomplish some of the same thing - but to allow in uncorroborated testimony of prior bad acts perhaps carries too great a risk to an impartial assessment to allow it. Jurors are only to consider the case at hand, not a lifetime of conduct, even if it was bad conduct. Even a lout may have been innocent in one instance, and we cannot go down the road of "well, even if he/she didn't do it THIS time, we know they did in the past so this is what they get". We need only imagine how we would feel if such extra information was used against us were we accused of a very serious crime. Jurors are only human, and we try to structure court presentations so as to focus them on the facts and case at hand, not outside influences (that is why they are not supposed to read or watch new coverage of the case so as not to be swayed one way or the other). Our constitutional protections are too precious to risk them just to convict one man.

The endemic proportions of this violence upon women and girls is beyond question. That putative men use power to force women into such "relationships" has long been the subject of "jokes" and boy talk in bars and board rooms as well as man caves across this nation. People like Weinstein and Cosby need to be seen as examples of bad behaviour. Even in the absence of convictions, the Lauers, Roses and others are pinned to my notice board as undesireables. We need convictions for the convincing of those who blame victims while using "boys will be boys" mantras. Hopefully the justified derogation of these self satisfying rapists will continue in the courts of law. The State seeks to imprison them, not hang, gas, electrocute or shoot. The Weinsteins and Cosbys will live on in prison garb while their appeals run out. Imagine the example that this would provide for young people maturing in a society with equitable gender representation at every level. Progress.

It seems like the evidence should be allowed in sentencing, after guilt is determined.