Gavel and handcuffs

Harvey Weinstein, Donald Trump, and Evidence of Past Misconduct

New York’s high court overturned the disgraced producer’s conviction. Will that affect the Trump trial?


In a 4–3 decision last week, the New York Court of Appeals overturned disgraced film producer Harvey Weinstein’s sex-crimes conviction. The court said that the trial judge made two critical errors. First, he allowed the jury to hear too much about Weinstein’s alleged prior sexual assaults, which were not among the charges and tainted the jury’s opinion. Second, by allowing the prosecutors to question Weinstein about certain alleged prior misconduct if he chose to testify, the trial judge created an unfair disincentive for the movie mogul to take the stand in his own defense.

Manhattan District Attorney Alvin Bragg announced that he intends to retry Weinstein if the complaining witnesses are amenable to participate in the trial, but the court’s decision has broader implications. Another high-profile defendant, former President Trump, is currently on trial in New York for falsifying business records. As in the Weinstein case, mention of prior misconduct could play an important role in the trial. Below is an explanation of the background facts and law, and how the two cases are connected.

What did Harvey Weinstein’s trial court judge get wrong?

Generally, prosecutors cannot present evidence of a defendant’s uncharged crimes or past misconduct just to prove that he is likely to have committed the crime he is charged with. This guards against a jury convicting someone based on character rather than facts. The judge may override the rule, however, if the evidence proves something important, such as the defendant’s motive or knowledge, and admitting the evidence wouldn’t unduly prejudice the jury.

Weinstein’s 2020 criminal trial hinged on whether the jury believed that the victims of his sexual assaults did not consent. As part of its evidence, the prosecution sought to call to the stand several women who claimed Weinstein sexually assaulted them, even though Weinstein wasn’t being charged for these encounters.

In accordance with the landmark New York case People v. Molineux, the trial judge determined that three women could testify about their experiences, because Weinstein’s pattern of interactions with these women — arranging business meetings to provide an opportunity to assault them — showed that he knew the encounters were nonconsensual and designed to engage in sexual acts regardless of consent. The judge believed the importance of this proof outweighed the prejudice it could create in the jurors’ minds against Weinstein’s character.

In addition to putting these women on the stand, the prosecutors asked the judge for a second opportunity to mention Weinstein’s past misconduct. If Weinstein were to take the stand, they wanted to ask him about a broad range of uncharged bad acts, such as asking people to lie for him and previous alleged abusive or violent behavior. Again, the judge decided that the evidentiary value of these questions, which would demonstrate his lack of credibility as a witness, outweighed the potential prejudice. In the end, Weinstein did not testify and claimed that the judge’s ruling influenced his decision not to take the stand.

On appeal, the New York Court of Appeals (the state’s highest court) ruled that the trial judge was wrong on both decisions: the potential prejudice of the women’s testimony should have precluded their taking the stand, and the trial judge should not have ruled that uncharged misconduct — which the majority felt did not bear on Weinstein’s credibility — could be used to question the defendant if he chose to testify.

What does the Weinstein ruling have to do with the Trump criminal trial in Manhattan?

The Manhattan DA’s office is currently prosecuting Trump on 34 felony counts of falsifying business records. The prosecutors allege that these crimes are a part of a scheme to influence the 2016 presidential election. On April 22, Judge Juan Merchan ruled that prosecutors can question Trump about several prior bad acts if he takes the stand, including: 

  • Having been found liable once for sexually abusing and twice for defaming writer E. Jean Carroll
  • The civil fraud case prosecuted by New York Attorney General Letitia James, in which Trump was found to have inflated his net worth to receive favorable loans
  • Two violations of a gag order during that trial last fall. Trump was fined $15,000 for those violations
  • The settlement Trump reached with former New York Attorney General Barbara Underwood that that led to the dissolution of the Donald J. Trump Foundation.

However, Merchan limited the “bad acts” the former president can be asked about if he takes the witness stand. Prosecutors won’t be allowed to question him about a case in Florida in which a judge sanctioned Trump for filing a frivolous and bad-faith lawsuit against Hillary Clinton. In that case, Trump alleged that Clinton, the Democratic National Committee, former FBI officials, and others were part of a conspiracy to create a false narrative that his 2016 presidential campaign colluded with Russia. Also off the table are any questions about a 2022 tax fraud conviction against the Trump Organization, in which two entities controlled by Trump were found guilty on 17 counts of criminal tax fraud and falsifying business records.

How are the cases different?

The New York Court of Appeals vacated Weinstein’s conviction on two grounds: the testimony of the women who told the jury about the producer’s past sexual misconduct and the judge’s decision to allow prosecutors to question Weinstein directly about his prior misconduct. The court in the Weinstein case was clear that the two erroneous decisions “compounded” the error.

In Trump’s case, the prosecutors will not call witnesses to testify about his past misconduct — the judge has only permitted them to question Trump himself on prior bad acts, if he chooses to testify. Even if an appeals court decides this decision is erroneous, it will be just one erroneous decision with less prejudicial effect on the jury, compared to the Weinstein case, which had two.

And, as journalist Ronan Farrow also points out, Merchan is only allowing prosecutors to question Trump about conduct for which he has been convicted or reached a settlement. Merchan ruled that uncharged conduct — specifically Trump’s history of alleged sexual misconduct — is not relevant to the present case and would be too prejudicial for the defendant in the eyes of the jury.

In another carefully calibrated ruling, Merchan will permit prosecutors to use emails from Trump campaign officials referencing the notorious Access Hollywood recording in which the former president spoke about grabbing women by their genitals. However, the prosecutors will not be allowed to play the recording itself, because the sound of the former president’s voice could be too prejudicial for the jury.

While the Trump trial is ongoing, if he is convicted it is likely that the former president will appeal. But last week’s Weinstein decision can be differentiated. Nevertheless, the ruling will likely have a lasting impact on how prosecutors, defense attorneys, and judges handle prior acts of misconduct — charged and uncharged — for years to come.

This article was first published by the Brennan Center.

Brianna Seid is a counsel in the Brennan Center’s Justice Program. 

Lauren-Brooke Eisen is the senior director of the Brennan Center’s Justice Program.





Sole footer logo

A project of the Brennan Center for Justice at NYU Law