Evidence corroborating the accounts of Harvey Weinstein’s accusers is stacking up against the former movie mogul.
Prosecutors will be allowed to introduce to the jury witnesses who will back up testimony from women Weinstein is accused of sexually assaulting. There will be nine accusers in total. Of the nine, Weinstein is on trial for raping four of them. The remainder are victims of uncharged sexual assaults by Weinstein.
Judge Lisa Lench on Friday ruled that she will permit testimony from a witness corroborating the account an alleged victim of Weinstein who’s expected to testify at trial but who’s not among the women that Weinstein is charged with raping. The prosecution wanted to introduce two witnesses, while the defense looked to exclude both of them.
So-called “fresh complaint” witnesses are allowed to be introduced as an exception to hearsay. That’s not the case here, defense attorney Mark Werksman said, because “when it’s eight years later and pried out of an alleged victim after it’s been widely publicized that the accused was arrested for sexual assault, it’s just hearsay.”
Prosecutor Paul Thompson stressed that the judge has typically allowed at least one “fresh complaint” witness and “possibly two if the second adds something to the conversation.” On one of the potential witnesses, Thompson said that he adds a “very early disclosure” and that he was “very specific of when it happened,” during the financial crisis in 2008 — the year the accuser was allegedly assaulted.
Thompson added that the purpose of the testimony from the witnesses is not the content of what they say but the disclosure. “The purpose is to show when the disclosure was made, that a disclosure was made, and that it was made against the defendant,” he said.
Arguments on the issue of the breadth of witnesses testifying against Weinstein and corroborating the accounts of those testifying against him flared up when the prosecution looked to allow a witness who will testify about a prior admission by Weinstein in a 1998 settlement conference that he has issues with consent.
According to Werksman, Weinstein said “something to the effect of ‘Sometimes I don’t know when things are consensual. I’m trying to learn. Sometimes I don’t recognize my power.’” He argued that testimony from the witness is a “backdoor way” to sneak in evidence of another alleged assault, that references to settlements are barred and that it’s hearsay.
Although the judge didn’t issue a ruling on the testimony, Werksman emphasized that the court is allowing too much evidence of uncharged “bad acts” by Weinstein. “Now we have five uncharged witnesses for five charged victims,” he said. “That ratio is dangerously prejudicial. I don’t know how the jury will impartially judge his guilt.”
In addition to four women Weinstein is accused of assaulting, five women will testify about uncharged assaults. On Oct. 14, Werksman warned that the court is allowing far too many witnesses.
“There is a real risk that Mr. Weinstein is going to be convicted by volume, rather than by merit,” he said.
Weinstein appealed his New York conviction based on the introduction of prior bad acts testimony from three women, but the appeals court in June found that evidence of his alleged uncharged crimes was fair game to counter the defense’s arguments that Weinstein believed his accusers consented.
On Thursday, a jury of nine men and three women were seated from a pool of 225 potential jurors. Eight alternates were also chosen. Opening statements will start on Monday.
Weinstein is charged with 11 counts of sex crimes, including rape, in connection with the assaults of five women from 2004 to 2013, which cumulatively carry a sentence of up to 140 years.