Errors in Weinstein Prosecution Lead to Retrial

Written by: Matt Perez

On April 25th, in a 4-to-3 decision, the New York Court of Appeals overturned Harvey Weinstein’s 2020 felony sex crime convictions. The court concluded that the New York City trial judge, Justice James Burke, erred when he permitted the prosecution to call Molineux witnesses to testify against Weinstein. Molineux witnesses are witnesses who testify about prior criminal acts committed by the defendant that did not result in criminal charges. The witnesses testified that Weinstein had sexually assaulted them. However, no charges were ever brought against Weinstein. Such testimony comes with a high probability of prejudice against a criminal defendant. Judge Jenny Rivera, writing for the majority, said that allowing this testimony to be proffered served to wrongly “diminish the defendant’s character before the jury.”

Weinstein’s 2020 convictions centered around him forcibly performing sexual acts on a production assistant and sexually assaulting an actress. In the initial trial, the prosecution’s decision to call such witnesses was questionable considering the nature of the testimony. The prejudicial value, in the eyes of the court, clearly outweighed the probative value. The court concluded that the prosecutors had taken too large of a risk in their efforts to persuade the jury, and, in essence, created a mini trial within the trial itself as to whether Weinstein committed these uncharged acts. Thus, the court reversed the conviction and called for a retrial.

Notable Prosecutorial Errors

With respect to the prosecution’s strategy, the court noted two egregious errors. First, the court criticized the use of the Molineux witnesses. According to legal scholars, from the time the charges were filed, the prosecution’s case seemed to be on shaky grounds. The prosecution went to trial based on only two complaining witnesses. Both witnesses accused Weinstein of sexually assaulting them but admitted to having consensual sexual relations with him as well. These victims represented most of the prosecution’s evidence. Thus, to account for the small amount of concrete evidence, the prosecution implemented the Molineux witness strategy. Their hope was to establish a pattern of predatory behavior for the jury to take into consideration in their verdict.

The second error stems from the explicit disclosure that if Weinstein testified in his defense, they would ask him about a myriad of allegations regarding other crimes and bad acts. In a pre-trial Sandoval hearing, Justice Burke informed the prosecution that he would allow the above-mentioned lines of questioning. In total, there were twenty-eight allegations that the prosecution intended to question Weinstein about. Such allegations included physically attacking his brother, threating to castrate a colleague, throwing a table of food, and screaming at hotel staff. During oral arguments before the Court of Appeals, Weinstein’s lawyer said that the threat of such questioning rendered Weinstein virtually unable to execute his sixth amendment right to testify.  The court agreed with Weinstein’s lawyer, stating “the threat of a cross-examination highlighting these untested allegations undermined defendant’s right to testify… the remedy for these egregious errors is a new trial.”

The Dissents

Three judges dissented – Madeline Singas, Anthony Cannataro, and Michael J. Garcia. In both dissents, the judges accused the majority of engaging in “a disturbing trend of overturning juries’ guilty verdicts in cases involving sexual violence.” The dissenters noted that the court ignored evidence that the Molineux witnesses established: that Weinstein displayed patterns of coercion and manipulation. “Men who serially sexually exploit their power over women – especially the most vulnerable groups in society – will reap benefit of today’s decision,” Singas wrote. These words capture the essence of Singas’ dissent. Her worry is that the majority’s decision will benefit the perpetrators of sexually violent crimes. Further, all three dissenters claimed that the decision would take away relevant prosecutorial strategies in obtaining a conviction.

What are the implications of the reversal? 

In the immediate, Weinstein had been serving his sentence in Rome, New York. However, now, he will likely be transferred somewhere closer to New York City. He will be there until the charges are refiled by the district attorney. In the long term, the critical question left unanswered will be whether this decision represents a complete bar on calling Molineux witnesses. If so, as the dissenters point out, the Court of Appeals decision presents a substantial obstacle in the prosecution of sexually violent criminals in New York. The decisions handed down by the Court of Appeals control those lower courts in the district. If prosecutors cannot use Molineux witnesses to establish patterns of predation, establishing such patterns will be increasingly difficult. Sexually violent crimes are among the most difficult to prosecute, in part, because there is typically little evidence to begin with. Now, prosecutors may have a significant evidentiary basis stripped from their arsenal.


Brian Lee, NY Court Overturns Harvey Weinstein’s Rape Conviction; Holds Admission of ‘Molineux’ Witnesses Was Improper, New York Law Journal (Apr. 25, 2024)

Maria Cramer, Harvey Weinstein’s New York Conviction is Overturned, New York Times (Apr. 25, 2024)

Michael R. Sisak, New York Appeals Court Overturns Harvey Weinstein’s 2020 Rape Conviction from Landmark #MeToo Trial, Associated Press (Apr. 25, 2024)

National District Attorneys Association, Prosecuting Sexual Assault and Related Violent Crimes (Aug. 2018).

People v. Weinstein, No. 24, 2024 NY Slip Op 02222 (N.Y. Apr. 25, 2024).