Recently New York’s highest court, the Court of Appeals, overturned the sexual assault convictions of Harvey Weinstein, the former Hollywood producer. They ruled that he was denied a fair trial because (1) the prosecution was permitted to introduce witnesses testifying about his alleged assaults on them, for which he had not been charged; and (2) if the defendant testified, the prosecution would be able to cross-examine him about numerous alleged prior bad acts to challenge his credibility. He chose not to testify.
This column will explore reason #1, which is based on what is called the “Molineux Rule” — the name of a 1901 New York case. Essentially, the Molineux decision stands for the principle that a defendant’s conviction must be based on the evidence of crimes charged in the indictment — the crimes for which he is on trial — not evidence of uncharged crimes or “bad character.”
That makes sense, yet it can be very challenging to apply. The Molineux case itself creates some exceptions to its general prohibition against “uncharged crime” evidence. Such evidence cannot be allowed “for the sole purpose of establishing their propensity for criminality.” But it can be admitted as proof of motive, intent, absence of mistake or accident, common scheme or plan under specific circumstances, or identity.
So, uncharged crime evidence cannot be allowed if its only purpose is to show a defendant’s bad character or ”propensity towards crime.” But it can be introduced if it is directly relevant to a material issue in the case — like intent. The judge can hold a hearing to determine if it qualifies. If it does, then the judge decides whether it is too prejudicial to allow the jury to hear it.
That was all done in Weinstein; the trial judge made rulings allowing some uncharged crime evidence and prohibiting others. After conviction, the appellate court ruled that the trial judge was correct. When appealed higher, the Court of Appeals concluded 4-to-3 that the uncharged crime evidence should not have been permitted and reversed the convictions.
What Molineux means is far more complicated than there is space for here. The Court of Appeals said it “is based on policy and not on logic.” To some, it is logical and natural to make a connection between past behaviors and the crime on trial. The policy adopted, though, is the opposite.
Very often, trials come down to “who do you believe?” Credibility is often a key issue. The prosecution wants to present evidence to help support the accuser’s testimony, and the defense wants to undercut that testimony. The lawyers are making decisions about what evidence to present, and the judge makes rulings about what to permit or exclude. There are statutes and cases that govern these decisions, and each side has a different perspective on how they should apply.
As in Weinstein, the accuser testifies about the defendant’s conduct and her own, and that she did not consent to the sexual acts. The prosecution’s case goes first, and has the legal burden of convincing the jury beyond a reasonable doubt that the defendant committed the crimes charged. When an element of a crime is “intent” — like intent to have sex without consent or by “forcible compulsion” — that intent must be part of the prosecution’s proof.
If other women said that he did the same to them, wouldn’t that make a difference in deciding whether the defendant intended the crime he is charged with? Or is that unfair and a violation of his rights?
Trying to balance the competing interests between the defendant’s right to a fair trial and the prosecution’s ability to present relevant evidence is challenging. As the Weinstein case shows, doing so can be a very close call, and one on which not everyone agrees.
The courts do agree that the danger they want to avoid is that, if the jury hears testimony about other crimes or bad acts, it might find a defendant guilty simply because it thinks he has a “propensity” — or was likely — to commit this crime too.
Therefore, the Court created the Molineux Rule as a barrier “against a guilty verdict based on supposition rather than proof . . . or because of a defendant’s past or . . . bad character . . . .”
— Penny Clute has been an attorney since 1973. She was Clinton County district attorney from 1989 through 2001, then Plattsburgh City Court judge until her retirement in January 2012.