Since 2017 the name Harvey Weinstein has been practically synonymous with “sexual predator.” In the years since the wave of accusations against the former movie mogul, it has even been argued, as a defense, that other serial abusers are not as bad as Mr. Weinstein.
But Mr. Weinstein’s notoriety is not supposed to matter if you are selected to serve on a jury in a trial of his crimes. Jurors are usually instructed to decide each case exclusively on its own facts. And it is a hotly disputed question how much prosecutors are allowed to disclose to the jury about a defendant’s past when, like Mr. Weinstein, he has been accused of sex crimes. That question deserves a close look now, following Mr. Weinstein’s conviction on Monday of rape and other crimes in Los Angeles, and his conviction in 2020 of other crimes in New York.
Disagreements over how much a jury should know about a defendant aren’t new. The American legal system has long checked prosecutors’ wish to share negative history about the accused. Prosecutors pursue crimes, not people, and we are supposed to hold people accountable for their bad acts, not their bad reputation. As such, courts rarely allow prosecutors to present evidence of the defendant’s “prior bad acts.” There are exceptions — for example, if that evidence helps to establish a motive, or to undermine a claim that something happened by accident. Even then, courts must decide beforehand that this evidence is important enough to outweigh any prejudicial effect it might have on the jury.
But limitations have their limits. As former prosecutors who handled cases involving many types of serious crimes, including sexual assault, we think trials for sex crimes are different from other trials, and these differences must be reflected realistically in the rules of evidence.
The federal government and at least 16 states, including California, agree. These jurisdictions have decided that the traditional prohibitions don’t make sense when a jury must ascertain whether a sex crime took place. In these cases, the jury needs to know more about the defendant — particularly what other victims would say about him under oath. New York does not have this special evidentiary rule for sex crime trials. We hope that reflecting on the California and New York trials of the same man, for similar crimes, under two different legal regimes, offers a lesson for legislatures here in New York and across the country.
In California, the jury convicted Mr. Weinstein of rape and two other sex crimes against a woman, identified as Jane Doe 1, in Los Angeles in 2013. Nearly three years ago, Mr. Weinstein was convicted in New York of rape and a criminal sexual act against two different women in Manhattan in 2006 and 2013. (The New York and California juries acquitted him of or were hung on other serious charges.)
One of the grounds on which Mr. Weinstein has appealed his New York conviction hinges on the idea that, in New York, where we work, prosecutors are usually forbidden from telling a jury about a defendant’s past predation. In 2020, Mr. Weinstein’s trial judge applied a narrow exception to New York law (one not available in most cases)and let three women testify that Mr. Weinstein had assaulted them in the past, though the judge did not let prosecutors argue that he was predisposed to attack women sexually. Mr. Weinstein argues that, whatever the purported reason for the testimony, it violated his rights.
In California, though, when trying a case of sexual assault, prosecutors are allowed to tell juries about a defendant’s other sexual offenses, for many strategic reasons — including to argue that a defendant has a disposition or propensity to commit sexual assault. At Mr. Weinstein’s Los Angeles trial, prosecutors used this freedom to bring in four additional witnesses to establish a pattern of violent assaults.
To us, that makes sense. Sex crimes differ from other crimes both in how they happen and in what it takes to prove them. Often, you don’t have witnesses to a crime committed behind closed doors, and sometimes in the context of an intimate relationship. But what you may have are other victims, who can echo and corroborate a victim’s account of violence. This is critical because, even today, jurors come to court steeped in sexist biases — for example, that “real” rape victims fight back physically against their attackers and report sex crimes immediately. These cultural prejudices cast doubt on the individual accuser. A group of accusers is harder to dismiss.
For those who are — rightly — concerned about defendants’ rights in these trials, California law has guardrails. Judges must decide whether the value of presenting “prior bad acts” to the jury outweighs their potential to influence the jury unfairly. Jurors are instructed first to decide whether the alleged similar crimes actually happened, and only then to consider whether that makes it more likely that the charged crime did. They are cautioned that similar crimes are “only one factor to consider along with all the other evidence” and that they may only support, rather than substitute for, evidence of guilt of the charged crime. California law trusts jurors to follow these rules.
We believe jurors are capable of following these rules and balancing fairness to the defendant alongside fairness to the victim. Juries should know, and can handle knowing, if a sex crime defendant has been accused of committing similar crimes in the past, not just on rare occasions to help dig into a specific issue like motive or absence of mistake (as is the law in New York), but in all sex crime cases (as is the law in California). As it happens, the Weinstein juries in New York and in California heard this type of evidence, and neither rushed to convict him on all available counts.
Prosecutors should be able to argue something that tracks with common sense — that past predatory acts show a pattern of behavior by the defendant. We hope other states will agree and follow California’s lead. This summer a New York State legislator, Amy Paulin, introduced a bill that would do exactly that, and we hope that legislation will receive widespread support.
The central insight of the #MeToo movement has been described as “the power of numbers across time” — in other words, the strength of a chain connecting one victim’s experience to another’s. That does not mean that every allegation of a sex crime is true, or that every defendant is guilty. Survivors’ accounts must be tested and considered critically, like any other evidence. But when a chorus of women, like those who testified against Mr. Weinstein, stands ready to describe violence that occurs in private and too often is disbelieved, that chorus must be heard, both in everyday life and in the law.
Tali Farhadian Weinstein is a former federal and state prosecutor in New York. Jane Manning, the director of the Women’s Equal Justice Project, is a former sex crimes prosecutor.
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