New Trial Granted for Harvey Weinstein


Harvey Weinstein, noted film producer, was recently granted a new trial by the New York Court of Appeals. At the trial in early 2023, Mr. Weinstein was convicted by a jury of first-degree criminal sexual act and third-degree rape. The jury sentenced him to consecutive (box car) sentences for a total of 23 years followed by five years post-release supervision.

Why does this grant of a new trial matter?

The main crux of the Court of Appeals’ reasoning for the grant of a new trial was that the prior bad acts evidence that was admitted under Molineux 1 , was an error and an abuse of discretion. The Court’s opinion opens with several references to the constitutionally protected rights of defendants.

“Every person accused of a crime is constitutionally presumed innocent and entitled to a fair trial and the opportunity to present a defense.” U.S. Const. Amend. VI,XIV, Estelle v. Williams, 425 US 501, 503 [1976].

“The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment and the presumption of innocence, although not articulated in the Constitution is a basic component of a fair trial under our system of criminal justice.” Crane v. Kentucky, 476 US 683, 690 [1985].

A defendant is entitled to a fair trial. This is a fundamental right that is constitutionally guaranteed. This right cannot be interfered with by the introduction of evidence that does nothing more than show the likelihood of a defendant to commit the crime for which they are currently charged. The defendant is also entitled to be presumed innocent until proven guilty beyond a reasonable doubt. Additionally, a defendant has the right to remain silent and not take the stand in court. The use of this right is not to be held against him to create a negative inference on his guilt or innocence.

Evidence showing propensity

The cases relied on by the New York Court are similar to the North Carolina Rule of Evidence 404(b), which states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity with the character. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, entrapment or accident. N. C. Gen. Stat. § 8C-1, Rule 404(b)[1995].

In Mr. Weinstein’s case, three additional witnesses, who were not the subjects of the instant prosecution, were allowed to present testimony regarding alleged sexual assaults that had never been charged and were highly irrelevant, prejudicial and untested allegations.

In no American jurisdiction is it proper to raise a presumption of guilt on an offense, simply because a person has committed one crime.

Eroding the Right to remain silent?

The prosecution in Mr. Weinstein’s case also sought, pursuant to Sandoval, the ability to cross-examine the defendant, should he take the stand, on a multitude of uncharged alleged bad acts. These items included, “directions to a witness to lie to defendant’s wife; filing an application for a passport using a friend’s social security number; comments about harming a woman professionally; using entertainment company’s budget for personal expenses; withdrawing from a business deal and pressuring others to cease funding; hid a woman’s clothes; falsifying a movie poster with photoshopping a female lead’s head onto another woman’s nude body; telling a private intelligence firm to manipulate or lie to people; scheduling business meetings with women under false pretenses; inducing executives to lie on his behalf; made threats and committed acts of violence against employees; abandoned a colleague on the side of the road in a foreign country; physically attacked his brother; threatened to cut off a colleague’s genitals with gardening shears; cursed at a hotel restaurant staff when he was told the kitchen was closed; and threw a table of food, for example.

The court’s granting of this request that a defendant, who had no prior criminal history, could be cross-examined on these alleged acts and despicable behavior, was a severe and gross abuse of discretion. This evidence would and did have a disproportionate effect on the jury and likely deterred the defendant from taking the stand to introduce any material evidence he might have possessed that was necessary to the determinations by the jury.

The Court of Appeals found that many of these acts were not even criminal in nature and were simply designed to showcase alleged despicable and bad behavior of defendant to slant the jury towards a conviction. Specifically, the court stated, “Without question, this is appalling, shameful, repulsive conduct that could only diminish defendant’s character before the jury.” There is no rule of evidence or court approved procedure that permits a prosecution to destroy a defendant’s character under the guise of assessing his credibility, whether in New York or here in North Carolina.

The usual reasoning for admission of acts and behaviors is that they have a bearing on or tend to demonstrate a defendant’s lack of credibility or “lack of in court veracity.” However, the decision to admit this evidence is a discretionary decision by the court and as such is reviewed for an abuse of that discretion.

The Court of Appeals found that this ruling was an abuse of discretion since it colored the defendant’s right to testify, and it was simply prejudicial to defendant. This prejudicial effect far outweighed the probative value of any of this evidence, including the admission of three testimonial witnesses whose alleged sexual assaults were not charged and were not a part of the crimes for which defendant was presently on trial.

Why should I care?

While we are not all high-powered Hollywood heavy hitters, we are all entitled to the same presumptions of innocence and the same constitutionally protected rights. Arnold & Smith, PLLC’s team not only includes a highly skilled criminal defense team, but also an effective and competent appellate team that can assist you at all stages of your case, whether it is pre, post or during conviction.

1 Molineux is a New York case from 1901 that limits the ability of the prosecution to admit evidence of prior uncharged bad or criminal acts for the sole purpose of showing a defendant’s propensity to commit the crime being charged.