Harvey Weinstein and the Limits of Prior Bad Acts

Harvey Weinstein’s convictions for sex offenses in New York were overturned today by the New York Court of Appeals. He has not been acquitted, the appellate court ruled that he is entitled to a new trial. He is not likely to get out pending the new trial, as his convictions in California still stand, and he has been sentenced to 16 years for those offenses. This is in no way an exoneration.

This is a rebuke of the prosecution, and of the trial court who erred in allowing into evidence prior bad acts allegations (a.k.a. similar fact evidence) introduced by the state. In this case, the prior acts were also sexual acts, but against different people, and none of them had ever been charged, much less proven, against Weinstein. It is much easier to convict someone if you can tell the jury they are a serial offender than to prove a case standing alone. The evidence is not supposed to be admissible to show the propensity to commit a crime, but the impact on the jury can be overwhelming. The theory is that prior bad acts are admissible for other reasons; be it motive, opportunity, etc. The reality is that suggestion of propensity and is likely to overwhelm the presumption of innocence. It’s the worst kind of character evidence, and character evidence is generally inadmissible.

The limit of relevant evidence is that the prejudicial value cannot outweigh the probative effect. Obviously the prejudicial effect of evidence of prior acts of criminal conduct is extremely high, and moreso if the prior bad acts are similar in nature to the offense being tried. It should be a rare circumstance that a prior bad act is admissible, particularly if the prior bad act is a criminal offense that was uncharged.

The power of bad acts evidence was apparent in the prosecution of Bill Cosby. In Cosby’s first trial, the judge allowed prior bad act evidence, but only from one prior alleged victim. That case ended in a deadlocked jury and a mistrial. However, when the case was brought back for Cosby’s second trial, the judge allowed the state to introduce testimony from 5 prior accusers, to show a ‘ distinct, signature pattern’ of Cosby’s assaults. Cosby’s was convicted as charged in the second trial, though his conviction was later overturned for other reasons. There is a risk on prior bad acts cases that the jury is convicting someone not based on the alleged conduct, but on the perception of their character. The difference in results in Cosby’s trial demonstrate the reality of that risk.

Harvey Weinstein has not been acquitted. His conviction being thrown out was for evidentiary errors by the trial judge- but the state is entitled to retry him. They will have to do the trial with evidence of the case at hand, and not based on allegations of his prior monstrous behavior. Regardless, he remains in prison, and his monstrosity remains exposed to the world.