FILED: APPELLATE DIVISION - 1ST DEPT 04/05/2021 12:09 PM 2020/00590

NYSCEF DOC. NO. 8 To be Argued by: RECEIVED NYSCEF: 04/05/2021

BARRY KAMINS
(Time Requested: 15 Minutes)

New York Supreme Court

Appellate Division—First Department

Appellate
THE PEOPLE OF THE STATE OF NEW YORK, Case No.:
2020-00590
Respondent,

– against –

HARVEY WEINSTEIN,

Defendant-Appellant.

BRIEF FOR DEFENDANT-APPELLANT

AIDALA, BERTUNA & KAMINS, PC

Attorneys for Defendant-Appellant
546 Fifth Avenue, 6th Floor
New York, New York 10036
(212) 486-0011
judgekamins@aidalalaw.com

New York County Clerk’s Indictment Nos. 2335/18 and 2673/19

 TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................................................................. vii

INTRODUCTION .....................................................................................................1
PRELIMINARY STATEMENT ...............................................................................3
QUESTIONS PRESENTED ......................................................................................9
THE EVIDENCE AT TRIAL ..................................................................................11
The Molineux Evidence.................................................................................27
Expert Testimony...........................................................................................33
The Sandoval Ruling .....................................................................................45
POINT I
MR. WEINSTEIN WAS DENIED HIS CONSTITUTIONAL
RIGHT TO BE TRIED BY A FAIR AND IMPARTIAL JURY
WHEN THE COURT REFUSED TO DISMISS A JUROR FOR
CAUSE AFTER HIS PEREMPTORY CHALLENGES WERE
EXHAUSTED AND PERMITTED HER TO REMAIN ON THE
JURY, EVEN AFTER IT WAS WELL ESTABLISHED THAT
SHE LIED ABOUT MATTERS MATERIAL TO HER FITNESS
TO SERVE. (U.S. CONST. AMENDS. VI, XIV; N.Y. CONST.
ART VI, § 18A) .............................................................................................50
A. The Improper Seating of Juror No. 11 and The Additional
Failure to Remove Her During The Trial............................................51
B. The Trial Court Abused Its Discretion By Failing to Excuse
Juror No. 11 For Cause Where A Substantial Risk Existed
that She Possessed a Prejudicial State of Mind That Precluded
Her From Rendering a Fair and Impartial Verdict and Where
the Record Reflects that She Made Material
Misrepresentations about Her Qualifications to Serve .......................59

i
POINT II
THE TRIAL COURT’S MOLINEUX AND SANDOVAL RULINGS
DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT
TO A FAIR TRIAL UPON CHARGES BROUGHT BY A GRAND
JURY AND TO TESTIFY ON HIS OWN BEHALF. (U.S.
CONST. AMENDS. V, VI, XIV; NY CONST. ART 1 SECTION 6) ......... 67
A. Weinstein Was Stripped of the Presumption of Innocence
When the Trial Court Allowed the Jury to Hear Excessive and
Disparate Molineux Evidence that Served No Legitimate
Non-Propensity Purpose and Was Designed Solely to Breed
Contempt for Weinstein and Distract the Jury from Fairly
Evaluating the Evidence on the Charged Offenses .............................67
1. The Molineux Rulings ...............................................................67
2. The Molineux Evidence was Not Admissible For Any
Legitimate Non-Propensity Purpose .........................................72
a. Molineux Testimony from Dunning, Wulff, and
Young Was Simply Not Relevant to the Question
of Whether Haley and Mann Consented to the
Sexual Conduct that Formed the Basis of the
Charged Offenses................................................................72
b. Dunning, Wulff, and Young’s Testimony Was Not
Relevant to Show Weinstein’s Intent to Forcibly
Compel Haley, Particularly Where the Women Did
Not Allege Any Forcible Compulsion by Weinstein ......... 75
i. Intent Was Not an Issue .......................................75
ii. The Molineux Witnesses Did Not Allege
Forcible Compulsion ............................................77
c. Dunning, Wulff, and Young’s Testimony Was
Not Admissible under a Common Plan or
Scheme Exception ..........................................................77

ii
 d. Mann’s Testimony Regarding Prior and
Subsequent Non-Consensual Acts of Sex with
Weinstein Was Not Relevant to any Disputed
Issue and Was Therefore Inadmissible to Show
Mann’s Lack of Consent or to Demonstrate
Weinstein’s Intent to Forcibly Compel Her on
the Occasion Charged .....................................................80
e. The Litany of Additional Bad Act Evidence
Regarding Weinstein’s Alleged Sexual Behavior
Was Not Admissible Under Any Legitimate
Theory of Admissibility, Including the Non-
Existent Exception of “Giving the Jury an
Understanding.” ..............................................................81
3. Even If Some Molineux Evidence Was Proffered for a
Legitimate Non-Propensity Purpose, Its Probative
Value Was Nil as Compared to Its Prejudicial Effect
and Still Should Have Been Excluded ......................................83
4. The Admission of Molineux Evidence in this Case was
Tantamount to a Constructive Amendment of the
Indictment .................................................................................85
B. Weinstein Was Denied his Constitutional Guarantees Under
the Fifth, Sixth, and Fourteenth Amendments to the
Constitution Where the Trial Court Ruled that If Weinstein
Exercised His Right to Testify, the Prosecution Would be
Permitted to Cross-Examine Him About Dozens of Remote,
Highly Prejudicial, and Unsubstantiated Allegations of
Assorted “Bad Acts” ...........................................................................90
POINT III
THE TRIAL COURT COMMITTED REVERSIBLE ERROR
WHEN IT (1) PRECLUDED THE DEFENDANT FROM
OFFERING EXPERT TESTIMONY ON TOPICS TESTIFIED TO
BY THE PEOPLE’S EXPERT AND (2) PERMITTED THE
PEOPLE’S EXPERT TO BOLSTER THE CREDIBILITY OF THE
PEOPLE’S WITNESSES (U.S. CONST. AMENDS. VI AND XIV;
CHAMBERS V. MISSISSIPPI, 410 U.S. 284 (1973)) .................................95

iii
A. Procedural History, Evidence, and Summation Tactics
Concerning Expert Testimony ............................................................97
B. The Court Committed Reversible Error by Permitting
Unchecked Expert Testimony That Bolstered the Credibility
of The People’s Witnesses and Sought to Establish That The
Crimes Charged Occurred .................................................................103
1. Dr. Ziv’s Testimony Constituted Inadmissible
Bolstering To Prove the Crimes Actually Occurred ...............106
a. Women do not lie about rape........................................106
b. Women are usually raped by someone they know ....... 108
c. Rape victims engage in self-harm and feel like
“damaged goods” ..........................................................109
2. Dr. Ziv Addressed Topics Concerning Sexual Assault
That Were Not Beyond The Common Understanding
of Lay Jurors ...........................................................................111
3. Dr. Ziv’s Testimony About Victim Behavior During
The Alleged Assaults Was Not A Proper Topic For
Expert Testimony ....................................................................112
4. Dr. Ziv’s Testimony Improperly Addressed Perpetrator
Behavior ..................................................................................113
5. Dr. Ziv Supplanted the Role of the Jury By telling The
Jury That it Could Not Determine Credibility,
Supplanted the Role of Defense Counsel by Instructing
the Jury that it was “Out of Touch” to Ask an Alleged
Victim to Explain Her Conduct and Bolstered the
Prosecution by Suggesting that the Prosecutor Had
Done its Job .............................................................................113
6. Dr. Ziv Was Permitted to Testify About Memory for
Sexual Assault, Voluntary Unwanted Sex, and Consent
- Matters as to Which She Was Not Qualified to
Testify And As to Which the Defense Experts Were
Barred ......................................................................................115

iv
 7. The Prosecutor in Her Summation Amplified The
Prejudice to Mr. Weinstein Resulting From Dr. Ziv’s
Improper Testimony................................................................117
C. The Trial Court Committed Reversible Error By Precluding
the Defendant From Offering Expert Testimony On Topics
Testified To By The People’s Expert Witness ..................................118
D. The Defendant Was Further Denied His Constitutional Right
to Present a Defense When, Inter Alia, the Prosecution
Withheld Exculpatory Evidence, and the Trial Court
Precluded the Defense from Calling Police Officer DiGaudio
to Testify............................................................................................121
POINT IV
THE DEFENDANT’S CONVICTION FOR THIRD DEGREE
RAPE SHOULD BE REVERSED AND THE CHARGE
DISMISSED AS TIME-BARRED BECAUSE THE TOLLING
PROVISIONS CONTAINED IN CPL 30.10 ARE NOT
APPLICABLE TO THE DEFENDANT WHO WAS A RESIDENT
OF NEW YORK DURING THE STATUTORY TIME PERIOD .............128
POINT V
THE COURT ERRED IN REFUSING TO DISMISS THE
PREDATORY SEXUAL ASSAULT COUNTS THAT WERE
PREDICATED ON AN UNCHARGED, TIME-BARRED
SEXUAL ASSAULT ALLEGED TO HAVE OCCURRED IN
1993, THEREBY PERMITTING EVIDENCE OF THIS CRIME
AND ASSOCIATED MOLINEUX EVIDENCE BEFORE THE
JURY (U.S. CONST. AMENDS. VI, XIV, EX POST FACTO
CLAUSE) ............................................................................................ 135
A. Introduction .......................................................................................135
B. Discussion .........................................................................................138
1. The Predatory Sexual Assault Counts were an Ex Post
Facto Violation Because They Improperly Resurrected
a Time-Barred Prosecution .....................................................138

v
 2. The Predatory Sexual Assault Counts were Applied
Retroactively in the Absence of a Plainly Manifest
Legislative Intent, Which Intent Would Have Been a
Constitutional Violation of The Ex Post Facto
Provision .................................................................................142
POINT VI
THE VERDICTS OF GUILT WERE AGAINST THE WEIGHT
OF THE EVIDENCE AND, AS TO THE THIRD DEGREE RAPE,
WAS INSUFFICIENT AS A MATTER OF LAW.....................................144
POINT VII
THE DEFENDANT’S SENTENCE WAS UNDULY HARSH AND
EXCESSIVE ................................................................................................157
CONCLUSION ......................................................................................................165

vi
 TABLE OF AUTHORITIES
Page(s)
Cases:
Boyd v. United States,
142 U.S. 450 (1892).......................................................................................85
Brady v. Maryland,
373 U.S. 83 (1963).........................................................................24, 122, 149
Calder v. Bull,
3 U.S. 386 (1798).........................................................................................138
Chambers v. Mississippi,
410 U.S. 284 (1973).......................................................................................95
Chandler v. Florida,
449 U.S. 560 (1981).......................................................................................60
Collins v. Youngblood,
497 U.S. 37 (1990).......................................................................................139
Crane v. Kentucky,
476 U.S. 683, (1986) ....................................................................................118
Duncan v. Louisiana,
391 U.S. 145 (1968).......................................................................................59
Estes v. Texas,
381 U.S. 532 (1965)................................................................................. 60-61
Ex parte Bain,
121 US 1 (1887).............................................................................................88
Gaither v. United States,
134 U.S. App DC 154, 413 F.2d 1061 (1960)...............................................88
Holmes v. South Carolina,
547 U.S. 319 (2006).....................................................................................118
In re Estate of Brandon,
55 N.Y. 2d 206 (1982) .............................................................................75, 78
In re Michael,
326 U.S. 224 (1945).......................................................................................51

vii
Irwin v. Dowd,
366 U.S. 717 (1961).......................................................................................59
Mazella v. Beals,
27 N.Y.3d 694 (2016) ..................................................................................110
Nevada v. Jackson,
569 U.S.505 (2013)......................................................................................118
Payne v. Tennessee,
501 U.S. 808 (1991).....................................................................................110
People ex rel., McCracken v. Miller,
291 N.Y. 55 (1955) ......................................................................................145
People v. Allweiss,
48 N.Y.2d 40 (1979) ......................................................................................84
People v. Alvino,
71 N.Y.2d 233 (1987) ....................................................................................83
People v. Behlog,
74 N.Y.2d 237 (1989) ..................................................................................142
People v. Benjamin R.,
103 A.D.2d 663 (4th Dep’t 1984)................................................................116
People v. Bennett,
79 N.Y.2d 464......................................................................104, 105, 107, 112
People v. Berk,
88 N.Y.2d 257 (1996) ....................................................................................97
People v. Bleakely,
69 N.Y.2d 490 (1987) ..................................................................................145
People v. Bowles,
132 A.D.2d 465 (1st Dep’t 1987) ............................................................92, 93
People v. Buford,
69 N.Y. 2d 290 (1987) ...................................................................................64
People v. Burroughs,
108 A.D.3d 1103 (4th Dep’t 2013) .............................................................139
People v. Cahill,
2 N.Y.3d 14 (2003) ..............................................................................144, 145

viii
People v. Carroll,
95 N.Y.2d 375 (2000) .................................................................. 104, 118-119
People v. Caruso,
246 N.Y. 437 (1927) ....................................................................................110
People v. Cass,
18 N.Y.3d 553 (2012) ..............................................................................69, 71
People v. Chase,
299 A.D.2d 597 (3d Dep’t 2002).................................................................130
People v. Coe,
95 A.D.2d 685 (1st Dep’t 1983) ....................................................................94
People v. Crimmins,
36 N.Y.2d 230 (1975) ............................................................................67, 156
People v. Cronin,
60 N.Y.2d 430 (1983) ..................................................................................116
People v. Cruciani,
63 Misc. 3d 226 (Sup Ct NY Co 2019) ...............................................130, 131
People v. Danielson,
9 N.Y.3d 342 (2007) ............................................................................144, 145
People v. De La Rosa,
233 A.D.2d 257 (1st Dep’t 1966) ..................................................................65
People v. Delgado,
80 N.Y.2d 780 (1992) ..................................................................................157
People v. DiPippo,
27 N.Y.3d 127 (2016) ..................................................................................119
People v. Duell,
163 A.D.2d 866 (4th Dep’t 1990)................................................................113
People v. Ferrari,
155 Misc. 2d 749 (Co Ct Ulster Co 1992)...................................................130
People v. Frumusa,
29 N.Y. 3d 364...............................................................................................69
People v. Grega,
72 N.Y.2d 489 (1988) ....................................................................................86

ix
People v. Harding,
44 A.D.2d 800 (1st Dep’t 1974) ....................................................................60
People v. Harris,
51 A.D.2d 937 (1st Dep’t 1976) ..................................................................156
People v. Ivery,
9 A.D.2d 712 (4th Dep’t 1983)......................................................................60
People v. Johnson,
252 N.Y. 387 (1930) ....................................................................................158
People v. Johnson,
94 N.Y.2d 600 (2000) ............................................................................61, 165
People v. Jordon,
43 A.D3d 1076 (2d Dep’t 2007)..................................................................133
People v. Keindl,
68 N.Y.2d 410 (1986) ..........................................................................108, 116
People v. Knobel,
94 N.Y.2d 226 (1999) ..........................................................130, 131, 132, 134
People v. Knupp,
179 A.D.2d 1030 (4th Dep’t 1992) .............................................................101
People v. Kuramura,
148 A.D.2d 331 (1st Dep’t 1989) ................................................................158
People v. Lancaster,
143 A.D.3d 1046 (3d Dep’t 2016)...............................................................140
People v. LaValle,
3 N.Y.3d 88 (2004) ......................................................................................110
People v. LeGrand,
8 N.Y.3d 449 (2007) ....................................................................................119
People v. Leonard,
29 N.Y.3d 1, (2017) .................................................................................69, 80
People v. Littlejohn,
125 A.D.2d 710 (2d Dep’t 1986).................................................................156
People v. Mateo,
2 N.Y.3d 383 (2004) ....................................................................................145

x
People v. McGregor,
179 A.D.3d 26 (1st Dep’t 2019) ..............................................................62, 67
People v. Mercado,
188 A.D.2d 941 (3rd Dept.1992).................................................................105
People v. Molineux,
168 N.Y. 264 (1901) ...............................................................................passim
People v. Notey,
72 A.D.2d 279 (2d Dep’t 1980)...........................................................157, 158
People v. Oliver,
1 N.Y.2d 152(1956) .....................................................................................142
People v. Partridge,
173 A.D.3d 1769 (2019) ..............................................................................143
People v. Quinto,
77 A.D.3d 76 (2d Dep’t 2010) .....................................................................133
People v. Resek,
3 N.Y.3d 385 (2004) ......................................................................................69
People v. Robinson,
68 N.Y. 2d 541 (1986) ...................................................................................84
People v. Rojas,
80 A.D.3d 782 (2d Dep’t 2011)...................................................................144
People v. Rojas,
97 N.Y.2d 32 (2001) ......................................................................................89
People v. Romero,
7 N.Y.3d 633 (2006) ....................................................................................144
People v. Rosen,
275 N.Y. 627 (1937) ......................................................................................62
People v. Ruiz,
159 A.D.3d 1375 (4th Dep’t 2018) .....................................................101, 113
People v. Sandoval,
34 N.Y.2d 371 (1974) .............................................................................passim
People v. Seda,
93 N.Y.2d 307 (1999) ..................................................................133, 134, 135

xi
People v. Southall,
156 A.D.3d 111 (1st Dep’t 2017) ............................................................60, 62
People v. Suitte,
90 A.D.2d 80 (2d Dep’t 1982) .....................................................................157
People v. Taylor,
75 N.Y.2d 277 (1990) .............................................................................passim
People v. Torpey,
63 N.Y.2d 361 (1985) ....................................................................................59
People v. Valentin,
29 N.Y. 3d 150 (2017) ...................................................................................75
People v. Vargas,
88 N.Y.2d 856 (1996) ........................................................................73, 74, 76
People v. Weinberg,
83 N.Y.2d 262 (1994) ..........................................................................142, 143
People v. White,
4 Misc. 3d 797(N.Y. Sup. Ct. 2004) ....................................................105, 112
People v. Williams,
20 N.Y.3d 579 (2013) ..........................................................................113, 117
People v. Williams,
56 N.Y.2d 236 (1982) ....................................................................................94
People v. Wright,
121 A.D.3d 924 (2d Dep’t 2014)...................................................................93
Rock v. Arkansas,
483 U.S. 44 (1987).........................................................................................93
Ronson v. Commissioner of Correction,
604 F.2d 176 (2d Cir. 1979) ..........................................................................97
Selkowitz v. County of Nassau,
45 N.Y.2d 97 (1978) ....................................................................................116
Sheppard v. Maxwell,
384 U.S. 333 (1966).............................................................................7, 60, 61
Smith v. Phillips,
455 U.S. 209 (1982).................................................................................60, 66

xii
Stirone v. United States,
361 U.S. 212 (1960).................................................................................86, 89
Stogner v. California,
539 U.S. 607 (2003).............................................................................138, 139
Toussie v. United States,
397 U.S. 112 (1970)....................................................................................135
United States v. Copple,
24 F.3d 535 (3rd Cir. 1994) .........................................................................110
United States v. Simon,
664 F. Supp. 780 (S.D.N.Y. 1987) ................................................................61
United States v. Whitten,
610 F.3d 168 (2d Cir. 2010) ........................................................................110
Us v. Miller,
471 US 130 (1985).........................................................................................88
Williams v. New York,
337 U.S. 241 (1949).....................................................................................158

Statutes & Other Authorities:

U.S. Const. Amend. V.......................................................................................passim
U.S. Const. Amend. VI .....................................................................................passim
U.S. Const. Amend. IX ............................................................................................95
U.S. Const. Amend. XIV ..................................................................................passim
U.S. Const. Art. 1, § 9, Cl. 3 ..................................................................................142
U.S. Const. Art. 1, § 10, Cl. 1 ................................................................................138
N.Y. Const. Art. 1, § 2 ...........................................................................................165
N.Y. Const. Art. 1, § 6 .................................................................................59, 67, 86
N.Y. Const. Art. 6, § 18A ........................................................................................50
1 CJI (N.Y.) 5.39 ......................................................................................................33
CPL § 1.20 ...............................................................................................................18

xiii
CPL § 30.10 ...........................................................................................128, 132, 140
CPL § 30.10(2) .......................................................................................................128
CPL § 30.10(4)a(i) ......................................................................... 128-129, 130, 131
CPL § 30.10(4)a(ii) ...........................................................................................passim
CPL § 200.70 ...........................................................................................................86
CPL § 245 ..............................................................................................................154
CPL § 270.20(1)(b) ..................................................................................................61
CPL § 270.35 ...........................................................................................................65
CPL § 470.15 .........................................................................................................144
CPLR § 215(8)(b) ....................................................................................................18
L. 2006, Ch. 3, § 1..................................................................................................140
L. 2006, Ch. 107, § 1..............................................................................................142
McKinney's Tax Law § 1802 .................................................................................142
Penal Law § 130.05................................................................................................117
Penal Law § 130.25 ................................................................................................117
Penal Law § 130.25(3) ...............................................................................................1
Penal Law § 130.35(3) ...........................................................................................157
Penal Law § 130.40 ................................................................................................117
Penal Law § 130.50..................................................................................................18
Penal Law § 130.50(1) .................................................................................1, 18, 157
Penal Law § 130.95................................................................................................137
Penal Law § 130.95(2) ...........................................................................................141
Court’s Decision on Defendant’s Omnibus Motion, November 26, 2019
quoting Deborah Davis & Elizabeth Loftus, Remembering Disputed
Sexual Encounters: A New Frontier for Witness Memory Research,
105 J Crim. L. And Criminology 810 (2016) ...................................... 119-120

xiv
McCandless, Jason L., Note: Prior Bad Acts and Two Bad Rules: The
Fundamental Unfairness of Federal Rules of Evidence 413 and 414,
5 Wm. & Mary Bill of Rts. J. 689 (Summer 1997) ................................. 84-85

xv
 SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT

_______________________________

New York County Indictment Nos. 2673/2019, 2335/2018

__________________________________________

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent

v.

HARVEY WEINSTEIN,

Defendant-Appellant.
___________________________________________

BRIEF FOR APPELLANT

INTRODUCTION

Appellant Harvey Weinstein appeals from a judgment of the Supreme Court,

New York County (James Burke, J.) rendered on March 11, 2020. He was

convicted after a jury trial of Criminal Sexual Act in the First Degree [Penal Law

Section 130.50(1)] and Rape in the Third Degree [Penal Law Section 130.25(3)],

and was sentenced to consecutive terms of twenty and three years of imprisonment,

respectively. Appellant was remanded on the day the jury returned its verdict. On
1
April 2, 2020, Appellant filed his Notice of Appeal. On October 12, 2020,

Appellant moved for a stay of execution of judgment pending the determination of

his appeal. That motion was denied on October 19, 2020 (Angela Mazzarelli, J.).

Appellant remains incarcerated at Wende Correctional Facility, a maximum

security prison in Alden, New York.

On appeal, appellant argues that he was (I) denied his constitutional right to

be tried by an impartial jury when the trial court denied appellant’s challenge for

cause of a juror who had written an autobiographical book about the predations of

older men against younger women, and who lied about the substance of the book

during voir dire, and again denied appellant’s motion to discharge the same juror

as grossly unqualified when the juror lied to the court about reading and reviewing

books on line during the trial about the very same topics involved in the trial; (II)

denied his right to a fair trial by the trial court’s Molineux and Sandoval rulings,

which also violated his Sixth Amendment right to be tried only upon charges

brought by a Grand Jury and his Fifth Amendment right to testify; (III) deprived of

his constitutional rights to a fair trial and to present a defense when the trial court

precluded, inter alia, the defendant’s experts from testifying on the very same

subject matter that it had permitted testimony by the People’s expert and permitted

the People’s expert to bolster the credibility of the complainants to prove crimes

occurred. (IV) denied his constitutional right to due process when it permitted

2
appellant to be tried on first and third degree rape charges that were insufficient as

a matter of law and time-barred, respectively; (V) denied his constitutional right to

due process when the trial court permitted appellant to be charged with an alleged

rape that was time-barred in connection with two predatory sexual assault charges;

(VI) denied his constitutional right to a fair trial where his convictions were against

the weight of the properly admitted evidence, and so weak that the trial court’s

errors could not be deemed harmless; and (VII) received a sentence that was harsh

and excessive.

PRELIMINARY STATEMENT

Harvey Weinstein’s alleged behavior toward women in the film industry

became a cause celebre in 2017. Advocacy journalists published many unvetted

allegations against Mr. Weinstein; within months, a new movement was spawned,

known under the meme, #MeToo. The vast majority of the allegations described so-

called inappropriate, but noncriminal behavior. As a result, Mr. Weinstein was

ultimately fired from the company he built, and those who claim they were

victimized by sexual importunities are suing for financial compensation. A man

who once stood as a giant in Hollywood is now scorned and treated as a pariah. The

Manhattan District Attorney’s Office set up a hotline and began a years-long

investigation into every aspect of Mr. Weinstein’s life, i.e., his financial dealings,

3
his interactions with employees, and his interpersonal relationships with women

dating back thirty years. This prosecution was the result.

Mr. Weinstein was indicted on five charges: two counts of Predatory Sexual

Assault, (a class A-2 felony); Criminal Sexual Act in the First Degree (a class B

felony); Rape in the First Degree (a class B felony); and Rape in the Third Degree

(a class E felony). He was acquitted of both counts of Predatory Sexual Assault, as

well as Rape in the First Degree. However, he was convicted of Criminal Sexual Act

in the First Degree, which required a determinate jail sentence of from five to twenty-

five years in jail, and for which he was sentenced to 20 years imprisonment and five

years of post-incarceration supervision. He was also convicted of Rape in the Third

Degree which carried a maximum sentence of one and a third to four years, for which

he was sentenced to three years imprisonment, to run consecutive to the 20 year

sentence.

Mr. Weinstein’s conviction of one count of Criminal Sexual Act in the First

Degree (a class B felony) and Rape in the Third Degree (a class E felony), arose out

of two separate incidents of alleged sexual assault in 2006 and 2013, respectively,

with two women with whom he indisputably had consensual sexual relationships.

Their testimony and the documentary evidence of their relationships with Mr.

Weinstein, even in the light most favorable to the People, suggest that under the

totality of the circumstances described by the complainants, these two incidents were

4
also consensual at the time. Their explanations of why they capitulated, continued

to see him, have sex with him, email him, introduce him to their parents and friends,

and request favors from him are implausible, but the trial court lent them a venire of

credibility by permitting over vociferous objection, expert testimony from a

psychiatrist that such behaviors were commonplace for victims of sexual assault and

that such victims do not lie and never forget, while it precluded the defense from

admitting expert testimony to rebut her claims. Reflecting the “MeToo corollary,

#Believe women” which quickly became, “believe all women,” this so-called expert

testimony undermined the reality that in cases such as these, the truth can be illusive

given the passage of time and, in this case, the near-universal condemnation of Mr.

Weinstein across all media platforms.

The criminal prosecution commenced with charges as to alleged victims-

Jessica Mann and Lucia Evans (May 30, 2018 Indictment), which subsequently grew

to three victims-Mann, Evans, and Miriam Haley (July 2, 2018 Indictment), but then

was quickly reduced to two (Mann and Haley) when it was revealed that the lead

investigator, Detective Nicolas DiGaudio, had purposefully sought to hide

compelling evidence that the allegations of Lucia Evans, were untrue. Notably, in

the July 2, 2018 Indictment the prosecution absurdly charged the defendant with two

separate counts of predatory sexual assault based on the exact same two charges and

the court ruled that this was legal. Nevertheless, left with only the allegations of

5
Mann and Haley, both of whom had had consensual relationships with Weinstein, to

support their indictment, and the questionable ruling by the trial court to permit two

counts of predatory sexual assault on the same two charges, the prosecutors added

to a bill of particulars, a nearly thirty year old allegation of rape by an actress with

some name recognition (Annabella Sciorra), as an alternative predicate crime for

both counts of predatory sexual assault. When the judge precluded the use of this

allegation as a predicate crime for the predatory sexual assault charges, on the basis

that it had not been presented to the Grand Jury, the prosecutors re-presented the

case on the eve of trial, this time predicating both counts of predatory sexual assault

only on the then-26 year old, time-barred crime of rape in the first degree.

Notwithstanding the fact that this statute had never been used in New York to import

a time-barred offense into a criminal prosecution, the trial court permitted the use of

the predicate crime, thereby creating the first of many trials within the trial.

Notwithstanding that the trial would already involve three entirely separate

instances of alleged sexual assault, the prosecution moved to admit additional

uncharged crimes evidence. The trial court not only erroneously permitted four

women (Dawn Dunning, Tarale Wulff, Lauren Young, and Emanuella Postacchini)

to testify to six instances of alleged uncharged sexual misconduct by Mr.

Weinstein, but permitted Jessica Mann (the complaining witness in the rape

charges stemming from an incident in 2013) to testify to two additional instances

6
of alleged sexual misconduct-one of which occurred nearly a year after the charged

incident. As a result, Mr. Weinstein was tried not only for alleged criminal acts

charged in the indictment, but also for his alleged propensity to behave in ways

that evinced licentiousness in his relationships with women.

Mr. Weinstein was tried in a venue, the atmosphere of which was permeated

with negative publicity about him and his alleged relationships with women, an

atmosphere reminiscent of the carnival-like conditions the Supreme Court

condemned in the Sam Sheppard case, Sheppard v. Maxwell, 384 U.S. 333 (1966).

Mr. Weinstein had a right to a fair trial by an impartial jury. The trial court should

have exercised the utmost vigilance in protecting this most important right of the

defendant. Instead, the trial court was cavalier in its obligation to safeguard this

right and the consequences for Mr. Weinstein were disastrous.

Aware of the highly volatile and prejudicial atmosphere, Mr. Weinstein filed

not one, but two, Change of Venue motions with this Court. The first was filed on

August 16, 2019. At that time, the trial was scheduled to commence on September

9, 2019. That motion was denied. In the interim, the trial was adjourned until

January 6, 2020, due to the prosecution’s decision to return to the Grand Jury for a

superseding indictment.

Once the trial commenced, it was clear that the jury would be facing a daily

7
barrage of improper influence and outright intimidation. On the very first day of

trial, California state prosecutors held a highly publicized press conference to unveil

charges against Mr. Weinstein in their jurisdiction. This only increased the media

firestorm, but the trial court refused to delay the trial. Prospective jurors ran a

gauntlet at the entrance of the courthouse and in the hall outside the courtroom itself,

and were subjected to activists who were giving speeches, chanting and carrying

placards declaring Weinstein guilty, not to mention scores of media representatives

from around the world. Inside the courtroom and during voir dire, chants of “rapist”

by organized protesters were heard from the open windows, and an alarming

percentage of the venire admitted that they could not give Mr. Weinstein a fair trial.

Even prospective jurors who claimed in court that they could be fair, revealed their

bias against him on social media. All of this was brought to the attention of the trial

judge who refused to acknowledge any possible prejudice inuring to the defendant

from either the charges unveiled with great fanfare in California or the intimidation

tactics in and around the courthouse. Hence, motions to delay the trial due to the

new charges in California and for individual, sequestered voir dire, given the intense

publicity in and around the courthouse, were denied.

On the second day of trial, the court threatened to jail Mr. Weinstein for life

because Mr. Weinstein had been seen handing his cell phone and ankle monitor

device to his attorneys before the judge entered the courtroom. The court asked Mr.

8
Weinstein, “Is this really the way you want to land up in jail for the rest of your life

by texting in violation of a court order, is it”(T: 37)? A motion for the judge’s recusal

was denied.

The defense filed a renewed motion for a change of venue in the First

Department, however the trial court would not allow the defense the opportunity to

return to the Appellate Division before the jury was sworn, although the Appellate

Division had specifically granted the defense the right to do so (T: 828-9). The

motion also sought a pause in jury selection while this Court considered the new

request. The motion was denied.

Set against this backdrop, we have identified the following errors, most of

which are of constitutional magnitude which we submit require reversal.

QUESTIONS PRESENTED

I. Was the Defendant Denied his Constitutional Right to an Impartial Jury

When the Trial Court, After the Defendant Had No Peremptory

Challenges Remaining, Denied the Defendant’s Challenge For Cause of a

Juror Who had Written an Autobiographical Book About the Predations

of Older Men Against Younger Women and Lied About it in Voir Dire,

and Then Denied Defendant’s Motion to Discharge the Juror as Grossly

Unqualified When, During the Trial, She Lied to the Court About

9
 Reviewing a Book the Content of Which Mirrored the Subject Matter of

the Trial?

II. Did the Trial Court’s Molineux and Sandoval Rulings Deprive the

Defendant of His Right to a Fair Trial, His Right To Be Tried only on

Charges Brought By a Grand Jury, and His Right to Testify on His Own

Behalf?

III. Did the Trial Court Deprive the Defendant of His Constitutional Rights

to Present Evidence and to a Fair Trial When it Precluded the Defendant

from Presenting Expert Testimony on Topics About Which the People’s

Expert was Permitted to Testify and Permitted the People’s Expert to

Bolster the Credibility of the Witnesses and to Offer Evidence to Prove

That the Crimes In This Case Occurred, such as That Rape Victims Do

Not Lie?

IV. Did the Trial Court Err When it Admitted Evidence at Trial and

Permitted the Jury to Deliberate on First and Third Degree Rape Charges

That were Insufficient as Matter of Law and Time-Barred, Respectively,

in Connection with the March 18, 2013 Incident?

V. Did the Trial Court Err When it Admitted Evidence at Trial of, and

Permitted the Jury to Deliberate on, a Time-Barred First Degree Rape

Accusation to Support Predatory Assault Charges?

10
 VI. Was the Verdict Against the Weight of The Evidence and was the Evidence

Supporting the Verdict so Weak that the Trial Court’s Erroneous Rulings Could

not be Adjudged Harmless?

VII. Was the Sentence Harsh and Excessive?

THE EVIDENCE AT TRIAL

The conviction for Criminal Sexual Act in the First Degree involved the
complainant Miriam Haley. The allegation was that on July 10, 2006, fourteen years
ago, Mr. Weinstein performed oral sex on her while in a bedroom at his Soho
apartment.
Haley and Weinstein first met socially through a mutual friend at the premier
of the movie, Aviator, in 2004 (T: 1553, 1630).1 In May 2006, they met again at a
“boat party” at the Cannes Film Festival in France (T: 1556, 1632). At the time,
Weinstein was not married. There, Haley told Weinstein that she was moving to
New York City and was looking for work (T:1556), despite the fact that Haley knew
it was illegal for her to work in the U.S. because she did not have a work visa or any
employment authorization documents (T:1568, 1643, 1644-5). Haley later met him
in his hotel room, where Haley testified that Weinstein complimented her on her
appearance and asked her for a massage which she declined (T:1557-59). She then
took down his personal phone number on hotel note paper (T: 1639-40). According
to Haley, these benign overtures caused her, then a 29 year old woman (T: 1723)
who had been living on her own since the age of 17, to “burst into tears” after she

1
Page references denoted by “T” refer to the trial transcript.
11
left the hotel with his personal phone number in hand (T: 1561-3, 1639).
Nevertheless, there followed “other conversations” between her and Weinstein that
she could not recall (T: 1643), after which Haley accepted Weinstein’s help in
obtaining short-term employment as a production assistant for a Weinstein Company
production, Project Runway, already underway in New York (T: 1566). Mr.
Weinstein provided this help notwithstanding Haley’s testimony that she rejected
his advances in the hotel room (T: 1566).
Once in New York, Haley’s 2006 calendar indicated that she called
Weinstein’s office.2 Mr. Weinstein made no effort to contact Ms. Haley during her
short stint as a production assistant in New York City (T: 1568, 1753). It was Haley
who again reached out to Weinstein in June 2006, after the production concluded
and Haley’s job had ended (T:1648). On June 27th, she and Weinstein went on a
date at the Mercer Hotel (T: 1571, 1648-9), and she visited him again in his office
where he lent her a book (T: 1574-5, 1650) and drove her home (T: 1577, 1650-1).
According to Haley, Weinstein told her he was going to Paris for fashion week and
invited her to join him. Days later, Weinstein stopped by Haley’s apartment and she
testified that he asked her again if she wanted to accompany him to Paris, but that
she declined (T: 1582, 1653).
Haley continued to meet and communicate with Weinstein but could not recall
where or what they talked about, only remembering that she had returned his book
(T: 1594). Around this time, Haley wanted to visit a friend in California who was

2
Notably, there were numerous cross outs on her calendar for which she had no explanation of
information related to her involvement with Weinstein in Cannes, New York, California, and
London (T: 1637, 1644, 1648, 1695-6, 1712-13, 1716).
12
due to give birth and Weinstein, according to Haley’s email, “kindly offered” to
purchase Haley a ticket to California so that she could stay with her friend for two
weeks (T: 1595-6, 1662-3).3 This offer was made just days before Haley would visit
Weinstein at his apartment. Again, this was established by documentary evidence
as Haley could not recall when, and under what circumstances, she requested that he
buy her a plane ticket to California for July 11, 2006, although her calendar indicated
that she was purchasing baby clothes for the trip as early as June 24th (T: 1662-5).
Haley wanted a “professional slash social” relationship with Weinstein (T:1579).
Apparently that meant dating, asking for favors, and accepting personal gifts.
Weinstein went to Paris where he was photographed with Georgina Chapman,
who he would later marry. On July 10, 2006, Weinstein returned from Paris. That
very same evening, Haley testified that she visited Weinstein at his apartment in
Soho. She was driven to the apartment by Weinstein’s driver (T: 1597, 1677, 1681).
She testified that she recalled seeing an article about Weinstein and Georgina
Chapman in a copy of the New York Post that was in the car and thought he had
“planted it there” for her to see it, but denied that she told the District Attorney that
she thought he had done so to make her jealous (T: 1679). Haley testified that the
District Attorney’s notes of her statements on 2018 were inaccurate (T: 1680, 1761-
2, 1765-66). In fact, there was no such article in the July 10th New York Post, but in
a July 11 edition of the New York Post there was a mention of Weinstein and
Chapman together at fashion week (T: 1680).

3
Haley testified that Weinstein bought her the ticket so that she could attend a premier on July
11, but her letter to Weinstein’s assistant indicates that she was happy to fly to California on July
12, 2006, indicating that the premier could not have been the purpose of the trip.
13
 At Weinstein’s apartment, they sat on the sofa, talked and watched television
(T: 1599, 1688). Weinstein tried to kiss her. Haley testified that she said, “no, no,”
and pushed Weinstein away, but that Weinstein persisted. Haley testified that she
stood up and attempted to back away. She stated that she backed into a bedroom
and fell backward onto the bed (T: 1599-1600, 1688-92). Haley testified that she
initially struggled, but then “checked out” and did not struggle or attempt to leave
because she imagined that Mr. Weinstein’s driver might have been waiting outside
(T: 1602, 1607, 1689-93). She testified that she told Weinstein that she was on her
period and not to “go there” or “do that,” when he pulled out her tampon and placed
his mouth on her vagina (T:1602-3). Haley had no recollection about what followed
or how she got home, but recalled that the driver was not outside when she left (T:
1603-4). (This act was the basis upon which Weinstein was convicted of Criminal
Sexual Act in the First Degree.)
The next day, July 11, Weinstein sent his driver to pick up Haley at her
apartment to drive her to the airport and she had no concerns about accepting the
ride, despite claiming that she had thought the driver would prevent her escape from
Weinstein’s apartment just hours earlier (T: 1595, 1680, 1693-4). She flew to Los
Angeles on the plane ticket purchased for her by Weinstein (T: 1595). While in
California she continued communicating with Weinstein (T: 1609-10). Haley
returned from Los Angeles on July 24th on another plane ticket purchased by
Weinstein (T: 1610). On July 26th, Haley met Weinstein at the Tribeca Grand Hotel
where she admitted that she had consensual sex with him. [In her initial meetings
with the District Attorney’s Office and first grand jury testimony she “didn’t recall”

14
(T: 1709-10) much about this encounter because her memory was “not very detailed”
and the triste occurred “a very long time ago,” but by the time of trial she recalled
more details (T: 1614, 1701, 1704-09, 1726-7)].4 Her calendar indicated that
Weinstein offered to pay for her flight to London when they met at the Tribeca
Grand, although she could not recall requesting or being given this generous gift (T:
1710-11), but then, in an apparent effort to minimize the generosity of the gift
remembered that the tickets were “on miles” (T: 1713-14). Barely a week later,
Haley then flew to London, again on a ticket purchased for her by Weinstein (T:
1710-14).
Haley’s 2006 summer roommate, Liz Entin, testified that Haley told her about
what happened on the night of July 10th and was not the same the rest of the summer
(T: 1801-02). [Notably, the prosecution did not turn over Entin’s August 2019 Grand
Jury testimony until January 27, 2020, at which point the trial was well underway
(T: 1767).] Her story tracked the narrative for public consumption crafted by Haley
and her civil attorney, Gloria Allred, who appeared together in a press conference
and television interviews, which Entin admitted seeing on line (T:1814-5). Entin’s
testimony was demonstrably false in many particulars that strayed beyond the public
narrative. For example, she claimed that Haley was more “withdrawn, “less vital,”
and spent more time in her room after July 10, 2006 (T: 1801-2), whereas in fact,
Haley was not even in New York after that day, having flown to California the
following morning for two weeks and to London on August 2nd for good, nor, in all

4
In fact, by the time of trial, the prosecutors had recast this consensual sexual encounter
into one in which Haley did not want to have sex and that defendant “knew she didn’t want to
but she didn’t fight.” Prosecutor’s Opening statement (T: 992).
15
likelihood, was Entin, who “traveled frequently” (T; 1795); she testified that Haley
worked for Weinstein for five months (T: 1804) when, in fact, Haley worked for the
Weinstein Company just two or three weeks; she claimed that Haley went to
Weinstein’s apartment on a work “errand” when Haley was, in fact, no longer
working for the Weinstein Company (T: 1811). And she did not know that Haley
had had consensual sex with Weinstein that summer, although she recalled a party
she attended with Haley at which Weinstein put his arm around Haley in her
presence.
Once back in London, Haley continued to seek out Weinstein. Emails
established that on September 8, Haley tried to meet up with Weinstein in London,
and demonstrated a desire to see Weinstein again, stating, “if you are coming back
anytime soon, please let me know” (T: 1717-19) and that she met him at the
Claridge’s Hotel in London on November 6, 2006 (T: 1617, 1720-22, 1730).
Haley continued to reach out to defendant by telephone and email for social
and work-related reasons (T: 1623-24, 1731). She reached out to him in early
February 2007 (T: 1721, 1724, 1728-30) and, in another email on February 19, 2007,
she thanked Mr. Weinstein for his “kind offer to help,” told him that his “support”
was “very much appreciated” and signed “Lots of Love, Miriam,” indicating that
she may have met with him again (T: 1731-2); According to documentary evidence,
at Cannes in 2007, Haley reached out to Weinstein to let him know she was in town
and asked him for tickets to a show (T: 1733-4); she called him in Cannes in 2008
and sent him an email on June 27, 2008, in which she wrote, “Great to see you;”
reminisced about their time spent together in the summer of 2006, “just to remind

16
you what a genius I am-didn’t I tell you that was a great idea like, three years ago,
at the mercer bar…hmm”; and signed “Lots of love, Miriam” (T: 1624-8, 1738).
She reached out again in an email on February 5, 2009, with the words, “I haven’t
seen you in so long. How are you?” and told him that she was saving to become a
yoga instructor and signed off, “Peace and Love, Miriam”(T: 1618, 1737). Over the
years, Haley would send Weinstein scripts (T: 1738-39).
When stories about Weinstein’s alleged indiscretions with women emerged in
the press in October of 2017, Haley read about them and wanted to “lend [her]
support” so she contacted Gloria Allred (T: 1620, 1740), a plaintiff’s attorney, and
the two of them embarked on a media tour (T: 1619-20, 1707, 1739). She did not
pay Allred for her services (T: 1743), but together, they held a press conference (T:
1707, 1741) in which Haley aired a selective retelling of her relationship with Mr.
Weinstein for public consumption which excluded, inter alia, any reference to her
consensual sex with Mr. Weinstein, and Allred importuned Weinstein to reach out
through his lawyers to offer “more than an apology” – an obvious pitch for money
(T: 1742-5). Haley then appeared on several major networks for interviews, with
Allred by her side, to publicize her narrative, always excluding her part in a
consensual sexual relationship. Only after these appearances, did Haley speak to the
District Attorney’s Office (T: 1707-08). Haley denied learning from her civil
attorney that unless she brought criminal charges, the statute of limitations barred
her from suing Weinstein (T: 1743). Haley denied that she planned to sue Weinstein,
but insisted that her conversations with Allred on the topic were “confidential” (T:
1747-8). Allred sat in a front row near the jury during the entire trial, and delivered

17
press conferences on the court house steps on a regular basis. On October 30, 2020,
Haley sued Weinstein. 1:20-cv-09109-JPC Haley v Weinstein.5
********
The conviction for Rape in the Third Degree involved the complainant Jessica
Mann, a long-time paramour of Weinstein. She testified that on March 18, 2013,
Weinstein had sex with her in a hotel room at the DoubleTree Hotel in lower
Manhattan. Despite the fact that she alleged no force, the trial court permitted the
jury to consider first degree rape and predatory sexual assault based on this incident.
The jury acquitted Weinstein of the charge of first degree rape and predatory sexual
assault in connection with this incident, but found him guilty of the lesser charge of
third degree rape which was time-barred. See Point IV, infra
Mann met Weinstein at a party in California in January of 2013 through her
friend, Talita Maia, who testified that Mann openly flirted with Weinstein at the
party (T: 2394, 3301, 3303). Maia recalled Mann flirting with Weinstein, putting
her arm around Weinstein, pinching his cheek, and remarking that he was “so cute”

5
In fact, the timeliness of Haley’s civil complaint, at the time she made her criminal complaint,
could only have been predicated on the criminal prosecution. See Complaint at 50-51, 1:20-cv-
09109-JPC Haley v Weinstein:

The criminal action against Weinstein for violating Penal Law section 130.50(1) by
sexually assaulting Ms. Haley in the July 10, 2006 Rape terminated on March 11, 2020
when he was sentenced to prison for committing that offense. Plaintiff’s claim is
therefore timely brought under CPLR § 215(8)(b), which provides that “[w]henever it is
shown that a criminal action against the same defendant has been commenced with
respect to the event or occurrence from which a claim governed by this section arises, and
such criminal action is for . . . criminal sexual act in the first degree as defined in section
130.50 of the penal law . . . the plaintiff shall have at least five years from the termination
of the criminal action as defined in section 1.20 of the criminal procedure law in which to
commence the civil action . . . .”

18
(T: 3303, 3334). She recalled them leaving together and then emerging later that
evening from a “secluded area” (T: 3304). Shortly thereafter, Mann met him again
at a bookstore where he bought her several books (T: 2317). She went to dinner with
Weinstein at an Italian restaurant and again at the Peninsula Hotel (T: 2317, 2409-
11). On that occasion, Weinstein invited her to go to his hotel room, where she
agreed to give him a massage (T: 2206-08, 2322, 2409). Maia recalled that Mann
was “very happy” after this date and that Mann had told Maia that she sang for
Weinstein (T: 3308). After that, she met Weinstein again for tea or coffee somewhere
in Beverly Hills (T: 2213). Maia recalled attending another dinner with Weinstein
and Mann at that time on Melrose in Beverly Hills (T: 3307).
During the Oscar parties, Mann engaged in a threesome with Weinstein and
another woman, Emanuela Postacchini (T: 2246-8, 3349). Around the same time,
Mann engaged in other threesomes with friends, and was dating several people (T:
2315-2316). According to Maia, Mann was “very curious about girls” and,
afterwards, told Maia how gorgeous Postacchini was. Mann, wrote a blog about the
incident, entitled the “Failed Threesome.” (T: 2314, 2329-33). The following
evening, after an Oscar party where she had been drinking (T: 2217-18), Mann and
Maia met Weinstein in the bar at the Montage Hotel in Beverly Hills (T; 2215). They
both joined him in his hotel room where Maia waited in the sitting area (T: 2219,
2344), while Weinstein and Mann retreated to the bedroom. According to Maia,
Mann and Weinstein asked her to come up and wait in the sitting area and that Mann
was “already seeing him” at this point (T: 3309) and “happily” followed Weinstein
into the bedroom (T: 3332). In the bedroom, Weinstein and Mann engaged in oral

19
sex (T: 2222-4). Mann testified that she really did not want to, but that she faked an
orgasm (T: 2224, 2345).6 Mann told Maia,“ he went down on me” and “I told him
it was the best I ever had” (T: 2224-5, 2427, 2449, 3320, 3324, 2344).
According to Mann, she “made the decision to be in a relationship with
[Weinstein]” (T: 2232, 2335) and Maia understood them to be in a “relationship” (T:
2326-8, 3323). Despite the fact that she knew Weinstein was married and had
children, she thought it was going to be a “real relationship.” (T: 2233). She saw
Weinstein often between their first date in and their meeting in New York on March
18, 2013, and engaged in consensual sexual activity (T: 2244-6, 2324-5). Maia
testified that “[Mann] was always saying good things about [Weinstein], she never
said anything bad” and “she never seemed upset” (T: 3348-9).
In March 2013, Mann and a friend, Tommy Richards, flew to New York City
from Los Angeles to see a Broadway show. She personally invited Weinstein, with
whom she was admittedly involved in a consensual sexual relationship, to meet her,
Maia, and Richards, for brunch at the DoubleTree Hotel on March 18, 2013 (T:
2254). Weinstein arrived early and Mann met him in the lobby (T: 2255). He
registered for a room at the front desk and Mann accompanied him to the room (T:
2256). Once there, Mann testified that she told Weinstein that they did not have any
time before brunch and tried to open the door, but she testified that he “blocked the
door” (T: 2256-7). She testified that her “worst fear” was that her friends were
going to find out about her sexual relationship with Weinstein (T: 2257, 2342-3),
although Maia already knew by Mann’s own admission (T: 2449, 2487). Mann

6
This testimony was admitted by the court as part of its expansive Molineux ruling.
20
testified that Weinstein told her to take off her clothes and she did so. Naked, she
laid on the bed while Weinstein went into the bathroom and she waited for his return
(T: 2259). Upon his return, they engaged in sexual intercourse (T: 2259). (This act
was the basis upon which Weinstein was charged with first and third degree rape, as
well as one count of predatory sexual assault, and was convicted of third degree
rape.) They then joined Maia and Richards for brunch (T: 2262).
Maia and Richards were called by the defense. Both said that they detected
nothing amiss at the brunch (T: 3315) and Richard recalled that Weinstein and Mann
were “friendly” toward one another (T: 3459-60) and that Weinstein invited Mann
to stay an extra night in New York and that Mann accepted his invitation (T: 3461).
In fact, Mann told Richards that she was going to stay an extra day in New York,
courtesy of Weinstein ( T: JM 2489; TR 3460-1), and appeared perfectly “normal,”
“her every day self” (T: 3462-4) . She and Maia met with Julie Oh of the Weinstein
Company that afternoon and then went to a movie screening for August Osage
County that evening, courtesy of Weinstein (T: 2264, 2496-7). She slept at Maia’s
apartment in Jersey City that night and declined an invitation to meet Weinstein in
the city. Mann claimed that she slept in a closet on the floor, but Maia testified that
Mann slept on the couch (T: 2264, 3319). The following day, Mann knew it was
Weinstein’s birthday and met him at a hotel (T: 2493-95, 2497). Afterwards, she
was picked up at the Doubletree Hotel, where she had a room paid for by Weinstein,
and driven to JFK airport and from LAX to her home, also courtesy of Weinstein (T:
2499-2500).
Back in Los Angeles, Weinstein got Mann a job cutting hair at the Peninsula

21
(T: 2278, 2508-10, 2525) and they continued their sexual relationship (T: 2278). On
the evening of April 12, Mann emailed Weinstein, “I appreciate all you do for me.
It shows” (T: 2408-09). In September 2013, she wrote to Weinstein, “Miss you big
guy,” (T: 2528). In an email to Weinstein in November 2013, Mann thanked
Weinstein for his “unfailing support and kindness” in connection with her romantic
relationship with another man (T: 2542). Nevertheless, their sexual relationship
continued until at least 2016 (T: 2299, 2456-7).
On January 5, 2014, Mann told Weinstein that the haircut she had given him
the previous day looked good only because of his “smile and beautiful eyes” (T:
2549). On February 19, 2014, Mann emailed Weinstein, offering to cut his hair
again for the Oscars (T; 2668). Around the same time, Mann testified that she visited
Weinstein in his room at the Peninsula Hotel and told him that she was in a
relationship with someone else and he raped her (T: 2286, 2360).7 On June 16, 2014,
Mann’s boyfriend, Eddie, texted Mann to ask her if she told Harvey about him and
Mann responded, “He blessed me and wanted me to have happiness” and that “he
was always kind to me. Was curious who you were and would tease me wondering
but I left it personal to me” (T: 2634). When her boyfriend said that Harvey was
vindictive she responded, “I have never seen and experienced firsthand his
vindictiveness”(T: 2635). These text messages contradicted her trial testimony.8
In April 2014, she emailed him to tease him that she had heard he wore a hat
all week after she had cut his hair (T: 2556). Indeed, Mann’s large volume of emails

7
On cross examination, Mann testified that this incident occurred “a long period of time” after
the incident in New York that formed the basis of the charges (T: 2360).
8
This incident allegedly occurred in the winter of 2014, nearly a year after the charged incident.
The trial court permitted Mann to testify to this incident in its Molineux decision discussed infra.
22
to Weinstein over the course of their consensual sexual relationship that spanned
five years (T: 2360, 2649, 2747-8) were replete with “flattery” and “compliments”
(T: 2268). Five times over the course of years through 2017 (T: 2702), Mann
changed her cell number and made sure to give her new number to Weinstein
unsolicited (T: 2418, 2522, 2680, 2702). She told Maia repeatedly that Weinstein
was her “spiritual soulmate” (T: 3323) and was “always going to see him” (T: 3324).
Mann initiated flirtatious exchanges with Weinstein, arranged to meet with
him alone, have him meet her mom and her friends, and met his children (T: 2438-
41, 2445-7, 2511, 2520, 2531). She confided in him about her father’s illness and
death (T: 2561); repeatedly reached out to Weinstein to get together (T: 2644, 2676,
2680, 2684, 2696); asked him for personal favors such as a personal membership to
the Soho House (T: 2671-2); help with her outstanding traffic tickets and an expired
car registration (T: 2674-8); help finding an apartment (T: 2700); and obtaining
invitations to parties (T 2682). Mann also traded on her personal relationship with
Weinstein by trying to get him to invest in a business deal (T: 2694); and introducing
him to a film producer in exchange for having her name listed in the “credits” for
the film (T: 2740).
Mann had dinner with Weinstein July 12, 2014 (T: 2641), and on July 26,
2014, reached out to him by email just to say “Hi” (T: 2643). On August 17, 2014,
Mann sent Weinstein an email in which she reminded him that he is supposed to let
her know when he will be in LA (T: 2644). On August 22, 2014, Mann and
Weinstein met for a drink (T: 2646). And Mann arranged to meet Weinstein again
on September 3, 2014 (T: 2647). Shortly after that Mann traveled to Berlin where

23
she continued to email Weinstein and sent him a photo of herself (T: 2650). After
her return from Berlin, on September 14, 2014, Mann emailed Weinstein asking to
get together (T: 2652, 2654). She wrote, “went through a break-up. Was hoping for
dinner with you” (T: 2654). When Mann emailed Weinstein that she had been ill,
Weinstein responded, “Hope you are feeling well” (T: 2657)
In January of 2015, Mann was in Washington state. She and Weinstein
exchanged emails in which Mann told Weinstein about her father’s illness and
Weinstein responded, “let me know how I can help” (T: 2661). When Mann emailed
Weinstein that her father had died on January 23, 2015, he responded, “ I send to
you my deepest condolences. Please let me know if there is anything I can do” (T:
2662-3). On February 15, 2015, Mann emailed Weinstein at 2:20am to ask him
when he would be in LA and if he would take her out for dinner and a drink (T:
2663-4). On February 17, 2015, Weinstein invited Mann with a guest to two Oscar
parties and she enthusiastically accepted (T: 2665). On April 27, 2016, Mann met
Weinstein in his room at the Peninsula Hotel in Beverly Hills, immediately after
which she wrote to him, “I feel so fabulous and beautiful. Thank you for everything”
(T: 2685). On February 23, 2017, Mann emailed Weinstein, asking for a favor: she
wanted him to help her to obtain a membership to the Soho Club in LA and
Weinstein responded that he was “happy” to do it . (T: 2671-2)
That Mann continued having consensual sex with Weinstein after the incident
that was the basis of the charges until at least 2016, was known by the prosecutors,
but not disclosed to the defense prior to trial as required by Brady v. Maryland, 373
U.S. 83 (1963) and its progeny (T: 2302-08, 2383). In September 2016, Weinstein

24
was invited to be Mann’s date at Maia’s January 21, 2017 wedding (T: 3322, 3353-
4).9 Mann thought the last time she had sex with Mr. Weinstein was when his mother
died in November of 2016 (T: 2689). But on February 2017, Mann reached out to
Weinstein for help in finding her an apartment in New York and wrote, “I love you,
always do, but I hate feeling like a booty call” (T: 2700).
At trial, Mann testified that she did not remember when things happened in
her relationship with Weinstein (T: 2360-1, 2446). She refused to commit to a
timeline of events (T: 2357-63, 2458, 2482, 2556); could not remember who she
emailed a timeline to and refused to say how many lawyers she consulted ( T 2396,
2744). Indeed she repeatedly claimed she did not remember things and, as a result,
avoided answering questions (T: 2540, 2542-3, 2548). In fact, she insisted, “I will
not attach a timeline” (T: 2557). She admitted lying about matters great and small
(T: 2394-4) and otherwise deceiving her friends (T: 2339, 2341) and her mother (T:
2439) about her relationship with Weinstein; deceiving Weinstein about how she felt
about him; and manipulating him in repeatedly having sex with him over many years
( T: 2343, 2347-8, 2352. 2419, 2433-4, 2449, 2459, 2472, 2488, 2512).
Mann engaged in therapy through an online company called “Relationship
Reinvented.” In June and July of 2014, Mann sent several emails to Relationship
Reinvented about Weinstein. She never told them that Weinstein had assaulted her
(T: 2640); rather she referred to their relationship as a friendship (T: 2639). On July
13, 2014, she told her therapist how happy she was to have gone to dinner with

9
Mann and Maia’s friendship ended in 2016 (3351). Maia explained, “I don't dislike Jessica.
Jessica did things in my life that [] impacted my life in a very negative -- in a terrible, terrible
way and I wish I didn't have to go through that” (T: 3321).
25
Weinstein and that Weinstein “always extended his hand to help” (T: 2641)
Like Haley, Mann accused Weinstein of rape only after allegations of sexual
improprieties by Mr. Weinstein were made by others in October of 2017 in highly
publicized articles in The New York Times, The New Yorker, and elsewhere. At that
time she was admitted to a New York Hospital where heavily redacted records
indicate long term psychiatric problems and a possible diagnosis of borderline
personality disorder (T: 2745-6). Notably, the People’s expert, Dr. Barbara Ziv, had
testified that borderline personality disorder is a “severe psychiatric disturbance”
(T:1440, 1444) and it was one of the reasons Dr. Ziv had found an alleged sexual
assault victim, in another case, lacking in credibility. Mann had exhibited the traits
commonly associated with this diagnosis. She exhibited dramatic fluctuations in
mood, self-image and behavior including disassociation and suicidal ideation (T:
2746-7); had a history of troubled relationships with friends and family (e.g., T:
2566, 2741) due to misperceptions regarding the moods and behaviors of others
(e.g., T: 2488-9, 2500); a history of self-harm (T: 2746) and claims of past
victimization dating back to her teen years (T: 2640). Specifically, she claimed that
she was raped by someone in her church. (T: 2640)
Like Haley, Mann consulted with attorneys as early as November 2017, who
explained to her that a civil case was barred by the statute of limitations, but that she
could pursue a criminal case in New York. She denied knowing that this avenue
could revive a civil claim in New York (T: 2743-5).
Annabella Sciorra testified that Weinstein raped her in her Grammercy
apartment in 1993, but that she did not know it was rape at the time (T: 1154, 1244)

26
and that he tried to meet with her in London the following year (T: 1173). Her
attorney, Gloria Allred was present in the courtroom for her testimony (T: 1288-9).
Over objection, the People were permitted to introduce evidence that Weinstein had
hired investigators in response to the deluge of media reporting about his personal
life in 2017, and that Sciorra’s name appeared on an otherwise redacted list of names
of men and women who knew Weinstein and could vouch for him (T: 1330).
Sciorra’s old friend, Paul Feldscher, was called by the defense and he testified that
he recalled Sciorra telling him that she had had sex with Weinstein at the time and
that she had not said that she was raped (T: 3102), but Rosie Perez claimed that
Sciorra had told her that she had been. Weinstein was acquitted of the predatory
assault charges predicated on this rape charge.
The Molineux Evidence
Dawn Dunning testified that in 2004, Weinstein, in the presence of his female
assistant, asked her to have sex with him and his assistant in exchange for movie
roles and, when Dunning declined, told her that she would never make it in
Hollywood (T: 1870-2). She also testified that on an earlier occasion, Mr. Weinstein
had put his hand up her skirt and his fingers into her vagina as they sat side by side
on a bed in a hotel room during a shoot (T: 1865). Dunning claimed that she had
never told anyone about this second allegation until just before trial - not her
boyfriend, the DA, nor the numerous journalists to whom she gave interviews (T:
1848,1946). In addition, over defense objection (T: 1972-6), Dunn’s live-in
boyfriend at the time, Lincoln Davies, testified that she was upset when she returned
from a meeting with Weinstein on some unspecified occasion in 2004 (T: 2101-02).

27
 Tarale Wulff testified that in 2005, she accompanied Weinstein to an unused

terrace on a restaurant rooftop where he masturbated in front of her (T: 1967-8,

2022). Maurizio Ferrigno, the restaurant manager, testified over defense objection

(T: 2075) that he was not sure if he remembered seeing Wulff and Weinstein

ascend the stairs to the restaurant roof on an unspecified occasion 15 years earlier,

but that he was there because the prosecutors told him that that was what happened

(T: 2131). Shortly thereafter, Wulff was invited to the Weinstein Company for an

audition and, from there, was driven to Weinstein’s apartment where she had sex

with Weinstein (T: 1990-2). She vaguely recalled the latter episode, testifying that

he led her to his bed and that she said “I can’t,” and he responded that he had had a

vasectomy. Wulff never told Weinstein that she did not want to have sex with him

(T: 2069). Afterwards, she and Weinstein drove back to the Weinstein Company

together (T: 2049-50). In October 2017 she reached out to a lawyer because she

“wanted to help the girls” who were making accusation against Weinstein (T:

1996-7). Subsequent discovery established that Wulff had little recollection of the

circumstances of having sex with Weinstein when she first reported her story to the

DA by way of her civil attorney, Douglas Wigdor (T: 2005, 2036, 2042-3). 10 In

10
Wulff did not initially recall having sex with Weinstein (T: 2042) in her initial interview with
the DA in October 2017, and the DA’s office documented that her memory was so “fragmented,”
that they could not make a case (T: 2072-3). One week later she began seeing a trauma therapist
(T: 2044). Even in an interview with the DA in September of 2018 (T: 2039), Wulff was “still
struggling to remember the act that took place” but just knew they had sex (T: 2042-3, 2067)
28
fact, she did not even remember the year it allegedly occurred until speaking to a

friend named Gloria Busse11 (T: 2006) . Instead, she went to a “trauma therapist”

fifty-five times to try to “remember” what happened (T: 2046-2070).

Based on the People’s Molineux proffer, Lauren Young was expected to

testify that in February of 2013, an acquaintance named Claudia Salinas, locked

her inside a hotel bathroom where the defendant prevented her from leaving and

masturbated in front of her.12 By the time of trial, however, Young’s story had

changed. At trial, over the course of two days (T: 2900-3056), Young testified that

she followed Weinstein into a hotel bathroom and stood in the bathroom while

Weinstein showered quickly and then unzipped her dress, touched her breasts and

masturbated in front of her (T: 2923-26). She testified that Salinas was present,

hovering on the other side of the closed bathroom door. Contrary to what Young

initially told the DA, Young admitted that Salinas never pushed her into the

11
During Wulff’s testimony, the defense learned that Wulff’s friend, Gloria Busse (whose name
had not been disclosed to the defense), recalled having lunch with Wulff and Weinstein at the
Mercer Hotel in 2005 (T: 2166-78, 2383-5). The defense moved for a mistrial based on this
Brady violation (T: 2015, 2384-6). The trial court directed the District Attorney to make Busse
available to the defense and permitted the defense to recall Wulff (T: 2383-6). Efforts by the
defense to speak to Busse and to secure her attendance for trial were unsuccessful as she was out
of state and refused to speak with them, and the defense maintained that the Brady violation had
therefore not been cured (T: 3443). Both motions for a missing witness charge and a mistrial
were denied.
12
The Court permitted Young to testify notwithstanding that on January 6, 2020, the LA District
Attorney filed a felony complaint charging the defendant with crimes arising out of Young’s
allegations, merely revising its Sandoval ruling to preclude the prosecutor from questioning the
defendant about the incident. This ruling put Mr. Weinstein in the position of making the
Hobson’s choice between asserting his Fifth Amendment privilege not to respond to questions
about this incident and his Sixth Amendment right to present a defense.
29
bathroom, nor locked her in the bathroom, and that she (Young) never banged on

the door to escape (T: 3027, 3052-3). The dress Young wore that night

materialized for the first time during the trial and was admitted in evidence despite

the defense objecting that it had been afforded no time to examine the dress for

exculpatory evidence (T: 2898). Young’s friend, Ryan Beatty, testified that he

remembered that Young was upset one night after meeting with Weinstein (T:

3066). The defense called Claudia Salinas who adamantly denied that Young’s

account had ever happened (T: 3366).13

As part of its Molineux ruling, the Court also permitted Mann to testify to two
other sexual encounters with the defendant that she claimed were nonconsensual.
The first was alleged to have occurred two months prior to the charged incident.
Mann claimed that the defendant performed oral sex on her in a Los Angeles hotel
room with her friend, Talita Maia, nearby. The second occurred almost a year after
the charged incident. In this second incident, Mann testified that Weinstein forced
her to have sex with him in another Los Angeles hotel room after she told him that
she was in a relationship (T: 2286-88).14

13
The prosecutor continued its character assassination of Mr. Weinstein in its cross-examination
of Salinas, prompting defense counsel to object. Defense counsel moved for a mistrial based on
“the cross-examination of Ms. Salinas, which has been a constant sort of a way for the state to
attempt to get character evidence in through a witness inappropriately, there is no reason [the
prosecutor] should have gotten into whether or not Mr. Weinstein was ethical or a bully. That
had nothing to do with her direct examination” (T: 3436-7).
14
Although she testified that she did not remember when this happened (T: 2360-1, 2560, 2667,
2731), she told the prosecutors in an email that it was likely to have happened in early January
2014 (T: 2734), close to a year after the incident in New York that was the subject of the
charges.
30
 At trial, and over repeated objections, Mann testified that Weinstein would
“talk very dirty about fantasies and things” and compare her to other actresses that
he told her were doing “kinky, dirty things with him” and asked to film her (T:
2234); that he would ask her if she liked his big fat Jewish dick” (T: 2236); that he
looked “deformed and intersex” (T: 2237)15; peed on her once in the shower (T:
2239); was “dirty” and “smelled like shit” (T: 2241).16
In addition, the court permitted Mann to testify that she had witnessed
Weinstein bully the staff at a hotel restaurant in LA in 2016 and that Weinstein had
told her that he could send people to her dad’s house with bats on some unspecified
occasion after the incident in New York when she told him that she was having
issues with her dad “for the limited purpose of explaining Ms. Mann's delay in
reporting the sexual assaults and to show her state of mind.” (T: 2243, 2311)
Emanuela Postacchini, testified over strenuous objection and a motion for a

mistrial by the defense ( T: 2376, 2585-89), in the middle of Mann’s cross-

examination, to corroborate that Mann had engaged in a threesome with the

defendant and Postacchini in February of 2013, although no one had suggested

otherwise.17 At trial, Postacchini testified that Weinstein invited her to the Montage

15
The People were permitted to introduce photographs of Weinstein’s genitalia for no purpose
other than to shame Weinstein.
16
The court never required Mann to specify when in her five-year sexual relationship anything
actually occurred, much less in relation to the charged incident, despite repeated objections (e.g.
T: 2278, 2280-2).
17
Mann testified that she had run out of the room crying. The defense cross-examined Mann on
a blog she had written about the incident in which Mann also described that she had run out of
the room crying. The Court permitted Postacchini to testify that she had engaged in a

31
Hotel for a drink and then brought her to a room where she met Mann. There,

Weinstein was “directing” them “to do something together” and Mann ran out

crying (T: 2595-2600). Postacchini testified that she saw Mann crying in a fetal

position, but admitted that she had not told the DA that the first time she was

interviewed (T: 2610). As predicted by the defense and despite the trial court’s

cautionary instruction that the testimony elicited was to be about “consensual

activity” (T: 2378), Postacchini’s testimony provided the prosecutor more

Molineux fodder. She testified that Weinstein did not force her or Mann to do

anything, but volunteered that she felt “manipulated” (T: 2608). Postacchini

testified that she had had sex with Weinstein on a previous occasion when he

showed up in a robe and asked for a massage (T: 2611). Ignoring the court’s

limiting instructions, the prosecutor asked Postacchini if she felt “tricked” and she

said she did (T: 2623). Again drilling down on the very issue that the court had

ruled could not be addressed, the prosecutor also asked Postacchini if she ever

wanted to have sex with Weinstein, and Postacchini replied that she did not and

that she felt “frustrated by the situation” (T: 2622).

“threesome” with Weinstein and Mann which made Postacchini uncomfortable (T: 2372). The
court reasoned that even if it were Molineux evidence, it had “the very probative value
delineating the history and nature of the power relationship between the defendant and Jessica
Mann” (emphasis added) (T: 2376-7).

32
 In addition, there was effectively, additional Molineux evidence by virtue of

the fact that charges based on three separate incidents were being tried together.

Thus, the three complaining witnesses (Mann, Haley, and Annabella Sciorra)

constituted Molineux witnesses as to one another. The trial court neither

considered this issue in its Molineux rulings, nor did it give the jury any

instructions as to how to use this evidence in evaluating the separate charges before

it. The trial judge did not even instruct the jury that the three charged incidents

were separate and distinct, and that evidence of guilt as to one of the incidents

may not be considered as evidence of guilt as to the other incidents (see, 1 CJI

[N.Y.] 5.39, p. 239).

Expert Testimony

Dr. Barbara Ziv, a hired gun (T: 1358), testified over defendant’s objection

on behalf of the People on the third day of testimony about “rape myths.” She

claimed to have evaluated over a thousand sex offenders and over a thousand

victims of sexual assault and rape (T: 1344-5). She identified herself as a forensic

psychiatrist (T: 1342) who evaluated credibility in specific cases of sexual assault

for purposes of civil and criminal litigation (T: 1342). Despite not being board

certified in forensic psychiatry (T: 1346, 1356), she claimed to use “the literature

pertaining to sexual assault,” “the characteristics of individuals who have been

33
sexually assaulted” “in terms of behaviors before, during, and after sexual assault”

(T: 1347-8) to determine whether someone had been sexually assaulted.

Dr. Ziv claimed to have “always been qualified” to testify as an expert in

both forensic psychiatry and in “sexual assault victim behavior” (T: 1350).

However, she explained, for purposes of her testimony in this trial, “I’ve been

hired to provide information and education about sexual assault, victim behavior in

sexual assault, rape trauma in sexual assault” (T: 1358). Over defense objection,

Dr. Ziv was permitted to use the term “rape” to cover all forms of sexual assault

and to apply her testimony, by extension, to allegations of all sexual assault (T:

1344). Over objection, she defined “rape trauma” as a “legal term” “involving the

experience of sexual assault and the individual who has been sexually assaulted,

their responses to that.” (T: 1359). She testified that rape myths were the

“preconceived notions” people have about rape that are “usually wrong” and that

she has been permitted to testify as an expert on such myths for 20 or 30 years (T:

1359). They include “commonly held beliefs about perpetrators, victims,

aftermath of sexual assault” and are “culturally dependent,” which she explained

meant that they vary depending on time and place (T: 1360).

34
 Over objection, the People were permitted to introduce in evidence a power

point (People’s Exh 57) entitled “Rape Myths.” created by Dr. Ziv (T: 1361).18

Over objection, Dr. Ziv was then permitted to lecture to the jury in narrative form

with the aid of her power point projected on an enormous screen less than five feet

from the jury box. She identified several “myths” she claimed existed in the

culture about sexual assault victims and then editorialized about them.

The first “myth,” according to Dr. Ziv, was that “Rape and sexual assault is

most commonly perpetrated by a stranger. This is not true” She testified that at

least 85% of rapes are committed by someone known to the victim, such as an

acquaintance, a relative, or a domestic partner,” who are “the most common

perpetrators of sexual assault” (T: 1361). Next she stated, that “Another common

rape myth is that victims of sexual assault resist their assailants. This is not true”

(T: 1362, 1377). She testified that most of the research on the behaviors about

which she was testifying is done concerning the “rare” situation of stranger rape

which can include weapons and multiple assailants and that even in those cases

only between 20% to 40% of victims “resist their assailants” by “shout[ing]out,

scream[ing], yelling, that “very few people run and physically resist other than

struggling [which] is also quite rare” and that the “most common type of physical

18
Only later, outside presence of the jury did the court change its ruling, deciding that Exhibit 57
was a demonstrative exhibit and would not be admitted in evidence (T: 1434).
35
resistance…when faced with a stranger rape is kicking” (T: 1362). She concluded

that women would be even less likely and not more likely to resist rape by an

acquaintance (T: 1362-3).

Another rape myth that she claimed was “absolutely untrue” was that

victims of sexual assault promptly report the assault. The “vast majority” do not,

she testified (T: 1363). She specifically, stated that it could be years before a

victim will report the crime, if they ever do (T: 1363). Dr Ziv testified that while

not reporting the rape, victims will tell a friend. With Jessica Mann clearly in

mind, the prosecutor pointedly asked Doctor Ziv about individuals who may not

have close connections in life, and whether those people may not report a rape to

anybody, even a friend (T: 1386). Ziv chimed in, “absolutely and it is not

uncommon” (T: 1386). This was clearly an effort to bolster the credibility of

Mann who had engaged in a five-year sexual relationship with Weinstein, bragged

about it to friends and family, and had told no one that he had raped her.

Another “common misconception, according to Dr. Ziv is that “victims of

sexual assault don’t have contact with the perpetrator following the sexual assault”

(T: 1363). She told the jury that, in fact, it is “extremely common;” it is “the

norm” (T: 1363-4) “they almost always do” (T: 1367). She elaborated that such

contact could range from texting to emailing to continuing or even developing a

sexual relationship that did not exist before (T: 1364), bolstering the testimony the

36
People’s witnesses by naming all the specific ways in which the witnesses had

continued in their relationships with the defendant.

At this point she offered a discursive explanation of the reasons why women

might behave this way and referred to “the carrot and the stick” to explain “how

perpetrators gain compliance” (T: 1364). The “stick aspect of why do women

continue to have contact with the perpetrator” was elaborated upon as follows: “I

don’t want it to get worse, I don’t want this individual who had sexually assaulted

me to ruin my reputation, ruin my friendships, put my job in jeopardy…God forbid

they ruin the rest of my life, make it impossible for me to go on” (T: 1365). These

concerns can arise from the act itself in which the perpetrator over-powers the

victim and “actual and even implied threats.” In this way Dr. Ziv characterized not

just the victim, but the perpetrator. Tracking the facts of the case closely, Ziv

noted that "sometimes what happens is a second sexual assault occurs” (T: 1367).

She emphasized that to even question why an alleged rape victim acted in a certain

way during the encounter or afterwards was simply “out of touch” because they

don’t do what people think rape victims do (T: 1441).

Dr. Ziv testified that it was a “myth” that “one can determine whether

someone has been raped by her behavior” (T: 1368, 1431). When asked about this,

Dr. Ziv categorically stated, “No, one cannot.” (T: 1431). This “myth,” like the

others was in large writing on a slide for the jury to see (T: 1431). She explained

37
that real victims, “comply;” “give false statements;” say they are menstruating or

have an STD; and “their facial expression may not reveal that they are horrified”

(T: 1369). Then, in the aftermath, they may retreat; become more withdrawn or

outgoing or even promiscuous; and engage in self-harm such as cutting, burning

themselves, drinking or using drugs, just to name a few behaviors (T: 1369). They

may even deny that a rape has occurred (T: 1422). Again, she referred to “studies”

involving only stranger rape that showed that there were “hundreds of behaviors”

engaged in by rape victims (T: 1369).

Dr. Ziv drove her point home by telling the jury that none of these post-

assault behaviors are probative of whether a sexual assault occurred because actual

victims act in all these ways (T: 1369). Hence, Dr. Ziv was telling the jury that

their role in evaluating the evidence was circumscribed by an outcome

determinative set of “scientific” parameters that essentially precluded them from

evaluating the evidence and, instead, directed a credibility finding in a purported

victim’s favor.

Dr Ziv was then permitted to testify about the effects of trauma and how

memory of trauma is stored in the brain, notwithstanding a defense objection that

she had not given notice nor had she been qualified as an expert in this area at all

(T: 1371). Dr. Ziv instructed the jury that any deficiencies in a witnesses’ memory

of trauma is due to the fact that they are remembering only what is important for

38
survival and that those memories remain for “a very long time” (T: 1372-5). Over

objection, she described the operation of memory specifically in the context of

sexual assault, testimony about which the prosecution had not given notice and

about which the defense foremost memory expert was precluded from giving

testimony (T: 1373-75). She used a slide entitled “enhanced attention to those

factors that are significant to survival” (T: 1378). In fact, she even instructed the

jury that the “passage of time” “does not impact memory of the assault” (T: 1377).

“People tend to remember… the core elements of the trauma pretty clearly,” she

told them (T: 1377). Over objection, Dr. Ziv recounted a story about a woman who

was sexually assaulted thirty years ago but still remembered that she waited to hear

the click of the door shutting behind her assailant “because she knew then that the

guy was out of the house and her babies were safe” (T: 1379). This was highly

prejudicial testimony plainly calculated to engender sympathy from the jury for the

victims about whom she was testifying and, by inference, those alleged victims

who would testify at trial.

Dr Ziv went on to explain that any false information elicited from a victim is

the fault of the interviewer not letting the victim “control their own memory” (T:

1378). This testimony had prejudicial implications for cross-examination itself as

a foundational element of due process in criminal trials. She stated that even when

39
an alleged sexual assault victim changes her story over time, this just means she is

“testing the water” because she is ashamed (T: 1431-2).

Dr. Ziv vouched for the District Attorney when she testified over objection

that she “assumed” the DA’s office had done its investigation in the case (T: 1439).

On cross examination Dr. Ziv stated that she had begun working with the

prosecutor after she had testified “in a similar way” at the “Cosby trial” (T: 1381).

This reference to the Cosby trial was, of course, intended to prejudice the

defendant by suggesting a comparison of defendant’s trial with the allegations

involved in another high-profile case. She claimed that she had never read any

articles about Harvey Weinstein (T: 1382), yet admitted participating in a panel

discussion entitled “Dealing with the #MeToo Plaintiff Who is Currently

Employed” just a few months earlier (T: 1354).

On cross examination Dr. Ziv was asked whether, in her forensic practice,

she considered whether a motive to lie involving secondary gain such as money,

attention, and fame on the part of an alleged victim in assessing whether an

allegation of sexual assault was true (T: 1390). On redirect the prosecutor was

permitted to ask Dr Ziv over objection, “Do many women allege that they have

been raped or sexually assaulted for secondary gain?” Her answer was a

definitive “no” (T: 1438). Effectively, she was stating that women do not lie about

rape. She supported this position by explaining to the jury that she based her

40
forensic assessments of whether someone is credible on the very information she

had provided them, i.e., “whether the allegations comported with the patterns of

behavior of victims and perpetrators described in the literature” (emphasis added)

(T: 1439). (Of course, she had just told the jury that, with respect to victim

behavior, there were no patterns and that you could not tell from victim behavior

whether the victim was being truthful.) She stressed that forensic evidence “in a

case like this” could be evidence from other women that experience the same

thing, i.e., “a pattern of behavior of the perpetrator that is consistent with the

allegations” (T:1429). This testimony was in direct contradiction to the

instructions given the jury on the use of the Molineux evidence. See Point II, supra.

Dr. Ziv made the following statement in a report she had given to the

prosecutor concerning the subject matter of her testimony: “Because of embedded

rape myths, society acts as if it believes that all women are ready and willing to

have sex at any time, with anyone unless they unequivocally and forcibly refuse,

preferably multiple times in the presence of a witness who can vouch for them” (T:

1406-7). She claimed, “Individuals who allege sexual assault are routinely told,

challenged and told that it is consensual. And that implies, so it doesn’t matter that

the woman didn’t want to have sex. It doesn’t matter what the woman did before

she had sex. It doesn’t matter that she tried not to have sex. Once the sexual act

happened, all of a sudden, it’s up to her to prove that she didn’t want it, so that’s

41
what I mean by that statement” (T: 1407-8). This commentary shifted the burden

of proof, as it implied that the burden should not rest with the People to prove their

case.

Dr. Ziv was asked by defense counsel to explain her findings in a rape case

in which she was hired by the defense. In that case she had concluded that the

allegations of the alleged rape victim were, in fact, false. She explained that she

based that opinion on the fact that the woman had a “severe psychiatric

disturbance,” “a severe mental illness” (T: 1440) which she diagnosed as

“borderline personality disorder” (the diagnosis indicated in Mann’s hospital

records) and that her story had changed over time (T: 1444).

The trial court permitted Ziv to testify about voluntary or consensual

unwanted sex even though it had ruled that the defense expert could not. She

testified that it was a “ridiculous concept and it is not a consent that is accepted in

any field that I know of” (T: 1425). She then testified that you can have sex as an

exchange, “but those parameters are set up beforehand. There is an expectation that

you have agreed to this exchange.” When asked if someone could have regrets

about transactional sex, she stated, “No, I don’t think that that is a common

experience,” “it certainly isn’t common” (T: 1426). Asked if “somebody could

have a consensual sexual relationship and then years later, read a news article or

hear about an individual and think how could I have had a consensual sexual

42
relationship with a bad person,” Ziv replied, “That can happen but then there is

evidence of consent. Then there is evidence of consent which does not come after

sex, it comes before.” She then volunteered, “To consent you have to agree before

the event that you want sex” (T: 1428). In this way, Dr Ziv transformed a question

about relabeling experiences based on new information to legal instruction about

what constitutes consent. Obviously, a person does not need “evidence” for

consent in consulting their own memory and Dr. Ziv was clearly instructing the

jury improperly on what constitutes consent.

The defense objected and requested a mistrial on the ground that Dr. Ziv’s

went beyond victim responses into testimony offered to prove the crimes occurred

(T: 1535). This evidence is discussed in Point III, infra.

Dr. Elizabeth Loftus, one of the country’s foremost experts on human

memory (T: 3184-88), and Dr. Deborah Davis were precluded by the court from

testifying about the very subjects about which Dr. Ziv had been given free reign,

although their CVs, provided to the court, established their knowledge and

expertise:

The court will not allow testimony on the following subjects: Special issues
of memories specifically for sexual[ly] or potentially, [] sexual interactions,
including sexual consent communications, causes of original
misunderstandings of sexual intentions and causes of distortion in sexual
interactions. The phenomena known as quote, voluntary unwanted sex, end
quote, responses to sexual assaults, including discussion of statistics
regarding the frequency of reactions such as the failure to report, the late
reporting, continuing contact with the allege[d] perpetrator and the
43
 frequency of false reporting and methods of studying of such rates and why
any rates obtained through such methods are unreliable and statistical
analysis of the data upon which Dr. Ziv testimony relies.

(T: 3173-4).
In response to clarification, the trial court insisted that neither defense

counsel nor the expert was permitted to reference memory for sexual interactions,

much less mention the word sex. Defense counsel argued that since the trial

concerned memories for sexual events, there was no reason why the defense expert

could not talk about memory for such events, as the plaintiff’s expert was

permitted to do. Defense counsel even showed the trial court a transcript of a trial

concerning allegations of sexual assault by a physician at which Dr. Loftus had

testified (T: 1373-74). The trial court insisted that the defense expert simply could

not testify about memory in the context of anything sexual (T: 3176-77).

Due to the court’s ruling, Dr. Davis did not testify. Dr. Loftus testified about

how memory works and the factors that can influence and distort memory over

time; that traumatic events are not immune from such influences (T: 3214); that

memories that conjure up emotions are not more likely to be true (T: 3216); and

that confidence in one’s memory correlates less with accuracy over time and as

memory is influenced and distorted by post-event suggestions (T: 3216-17). She

described a phenomenon known as the “misinformation effect” in which

particularly biased or misleading information can cause a transformation or

contamination of a memory (T: 3188); a process known as “relabeling” wherein

44
people exposed to misinformation will relabel their own memory as one involving

trauma and aggression that had not actually occurred (T: 3215). She was not

permitted to reference sex, sexual interactions, or sexual abuse in her testimony

about memory (e.g. T: 3210-11) and was cut off by the court even when no

objections were made (e.g. T: 3211).

The Sandoval Ruling

Finally, Mr. Weinstein was prevented from exercising his constitutional

right to testify due to the court’s Sandoval ruling. That ruling permitted the

prosecutor to question Weinstein about the following allegations, in the event he

were to exercise his right to testify. The allegations were anonymous at the time of

the ruling and remained so, save for those made by Molineux witnesses, Mann, and

Sciorra, whose names were later disclosed to the defense.

1) That defendant used Witness #1’s social security number to apply for and
receive a passport in 1998;
2) Defendant’s communication with Black Cube, “an organization that
generated content designed to publicly discredit and shame the defendant’s
sexual assault victims,” to the extent the prosecutor could tie defendant to
dishonest acts;
3) According to Witness # 2, on a regular basis over the course of many
years, the defendant compelled witnesses to lie to his wife.
4) Witness #3 alleged that she met the defendant in 2012 and that she
attended a meeting with the defendant and his staff at his office in New
York, ostensibly to discuss a possible business partnership, but that after the
meeting, the group took the elevator downstairs but everyone except for the
defendant and Witness # 3 got off the elevator before the lobby indicating to
her that he had set up the meeting “under false pretenses.”
45
5) Jessica Mann observed the defendant bullying staff members of the Mr.
C Hotel in Los Angeles in early 2016. The defendant wanted to be served a
meal in the hotel’s restaurant late one evening. When the defendant was told
that the kitchen was closed, he became irate, screaming, and cursing, and
demanded that the kitchen be opened. He told the staff that he was in the
process of buying the hotel and that everyone currently employed would be
fired.
6) Sometime in 2013, when Jessica Mann told the defendant that she was
having problems with14 her father, the defendant said that he could send
some men with baseball bats to her father’s house, as he had previously done
for a well-known actress whom he identified.
7) When Witness #5 called the defendant in 1991 to confront him about
having committed a crime, he demanded that she tell the other woman not to
report the crime. (The trial court precluded mention of the specific crime).
8) In 1993, the defendant drove Annabella Sciorra from a party to her home
in New York City and then left. A short time later, the defendant returned
and knocked on her door. When Sciorra opened the door, the defendant
pushed her into the apartment and immediately began to undress. The
defendant ignored Sciorra’s refusal to have sex with him and pushed her into
her bedroom and onto her bed. She attempted to escape by using both of her
hands to hit the defendant and by kicking him with her legs, but the
defendant held her down with her arms above her head, forced her legs open
with his knees, and forcibly raped her. He then forcibly performed oral sex
on her as she begged him to stop.
9) In 1994 or1995, Sciorra was staying in a hotel while filming a movie in
London. The defendant sent her messages and repeatedly sent company cars
to pick her up even though she made clear her refusal to see him.
10) One night, the defendant banged on Sciorra’s hotel room door and
screamed for her to open it. She refused and he eventually left.
11) In May 1997, when Sciorra was at the Cannes Film Festival promoting a
movie, the defendant knocked on her door at 5:00 a.m. one morning,
wearing only his underwear and holding a bottle of baby oil. As soon as
Sciorra opened the door and saw the defendant, she immediately retreated
into her room and pressed several service call buttons, which caused the
defendant to leave.

46
12) In 2004, the defendant took the hand of Tarale Wulff, a waitress at
Cipriani, and led her into a stairwell where he blocked her from leaving and
masturbated in front of her. On another occasion at around the same time,
someone from the defendant’s company called and told Wulff that the
defendant wanted her to come in and read a script. She went to the company
offices where she was led outside to a waiting car. She was driven to the
defendant’s Manhattan apartment where, despite her protestations, the
defendant had sexual intercourse with her.
13) In 2004, the defendant arranged to meet Dawn Dunning, an aspiring
actress, at a hotel room in New York City for a proposed business meeting.
When the witness arrived at the hotel, the defendant’s assistant was present
in the lobby and told Witness # 14 to go up to the defendant’s room. The
defendant was wearing a bathrobe that opened. He told the wit-ness that he
would give her three movie contracts if she would have a “threesome” with
the defendant and his assistant. When the witness declined, the defendant
became angry and screamed directly into her face that she “will never make
it in this business if you don’t do this.” Dunning became frightened and ran
out into the hallway to escape from the defendant.
14) In 2013, at the direction of the defendant, a woman brought Lauren
Young to the hotel where the defendant was staying in Los Angeles,
purportedly so that the defendant could review a script that Young had
written. Shortly after they began their conversation in a lounge adjacent to
the lobby, the defendant said that he wanted to finish talking about the script
upstairs in his suite. Because the defendant said that he was in a rush and
would have to cut the meeting short, Young agreed to go upstairs. The
defendant, Young, and the escorting woman proceeded to the defendant’s
hotel suite. As the defendant was speaking to Young about her script, he
walked into the bathroom so she followed him to hear what he was saying.
The escorting woman shut the bathroom door after Young went inside,
leaving her alone with the defendant. The defendant blocked Young from
leaving, attempted to remove her dress, and masturbated in front of her.
Young banged on the door and was only able to flee because, after the
defendant ejaculated, the escorting woman opened the door. (This proffer
proved to be inaccurate based on the evidence at trial, in that Young
admitted she was not locked in the bathroom by Salinas, was not freed by
Salinas, and did not bang on the door in an attempt to exit the bathroom)
15) In 2013, the defendant was repeatedly verbally abusive to Witness # 16,
an assistant to the defendant. The defendant threatened to physically hurt

47
him, made him get out of a car on the side of the road, and abandoned him
while on a business trip outside of the United States.
16) After the publication of articles in 2017 alleging the defendant’s sexual
abuse of various woman, and after the defendant was fired by the Weinstein
Company, he called Witness #17 and asked him to let people in who would
remove computers and files from the company’s offices. This witness also
observed the defendant meeting personally with representatives of Black
Cube.
17) In the mid-1990s, the defendant asked Witness # 18, a business
executive, to lie for him in both personal and professional matters.
18) Witness # 19, a business executive and former close confidante of the
defendant, observed a pattern of conduct by the defendant including lying.
This witness also observed the defendant, during a business meeting in front
of multiple witnesses, stand up and physically attack his brother, Bob
Weinstein, punching him so hard that he bled a great deal and was briefly
unconscious.
19) Witness # 20, a long-term executive at Miramax, witnessed specific
incidents in which defendant pulled out of business deals and threatened to
stop funding (H: 146) and described specific acts of financial
mismanagement, including “burying” personal costs with the company’s
budget for specific projects.
20) Witness # 22, who recently worked as a Weinstein family personal
assistant, was bullied, overworked, and verbally abused by the defendant.
She observed him throwing staplers and other objects at people, and
witnessed him threatening female assistants “all the time.” The defendant
repeatedly screamed and cursed at Witness # 22, on one occasion calling her
an offensive word in front of a celebrity while she was trying to navigate the
defendant’s schedule.
21) In 2015, the defendant threatened to punch Witness # 23, and said he
would kill him. On another occasion, the defendant told Witness # 23 that
he would send someone to his office to cut off his genitals with gardening
shears.
22) Witness # 26 was an executive in the defendant’s companies from the
1990s through 2017. He reported that the defendant threatened him on
multiple occasions and he observed the defendant threaten others physically

48
 and professionally. The defendant asked Witness #26 to lie for him when
Ronan Farrow’s article about the defendant’s sexual abuse of women was
published in the New Yorker. In addition, the defendant threatened to expose
Witness# 26 for a minor dispute with another employee if the witness would
not lie for him.
23) In the late 1980s, Witness # 31, an employee, was verbally abused by the
defendant who, at a morning meeting at the Cannes Film Festival, threw a
table full of food on top of him.
24) In 2007, Witness # 32 was an assistant traveling with the defendant. One
day in the backseat of a car, the defendant got angry and physically assaulted
the witness. When the witness indicated that he would report him, the
defendant told the witness that he could never tell anyone and that no one
would ever believe him. When the witness quit his job over this incident, the
defendant had another employee follow the witness in an attempt to
convince him not to report the defendant’s actions.
April 26, 2019 Sandoval Hearing at pages 141-148
On November 22, 2019, the People requested that the trial court permit them

to question the defendant on eleven additional bad acts should the defendant elect

to testify. On December 17, 2019, the court ruled that while the People could not

inquire about specific sexual allegations, they could ask the defendant about the

following:

25) Defendant told Witness #35 that he “could harm (Witness #35)
professionally, but offer[ed] her a book publishing opportunity.”
26) “[T]hrew objects at (Witness #39) at his office in New York and that
(Witness #39) observed the defendant throw objects at (Witness #39’s)
coworkers.”
27) “[W]hen an actress refused to be photographed nude [and] the defendant
insisted that they photoshop the actress’s head on another woman’s body.”

49
 28) Could inquire about the defendant hiding the clothes of Witness #44.
Absurdly, the trial court stated that the People could not include allegations
regarding sexual activities in this inquiry.

POINT I

MR. WEINSTEIN WAS DENIED HIS CONSTITUTIONAL RIGHT TO BE

TRIED BY A FAIR AND IMPARTIAL JURY WHEN THE COURT
REFUSED TO DISMISS A JUROR FOR CAUSE AFTER HIS
PEREMPTORY CHALLENGES WERE EXHAUSTED AND PERMITTED
HER TO REMAIN ON THE JURY, EVEN AFTER IT WAS WELL
ESTABLISHED THAT SHE LIED ABOUT MATTERS MATERIAL TO
HER FITNESS TO SERVE.
(U.S. CONST. AMENDS. VI, XIV; N.Y. CONST. ART VI, § 18A)

Mr. Weinstein’s right to a fair and impartial jury was denied when, after

exhausting his peremptory challenges, the trial court refused to excuse for cause

Juror No. 11 even though she repeatedly deceived the court and the parties about

the subject matter of a “deeply personal” book she authored that contained strong

themes and implicit opinions about sexual predation of older men. Juror No. 11

was unqualified to sit as a juror, notwithstanding any promise by her to be fair. In

addition, based on the imminent publication of her book, she had a pecuniary

motive to convict the defendant.

Although the defense raised legitimate questions about whether Juror No. 11

was fit to serve, the trial court failed to discharge its constitutional obligation to

conduct a full inquiry to ensure that the juror was capable of rendering a fair and

impartial verdict. Because of the unprecedented pre-trial publicity and concerted

50
effort by the media (and others) to breed public contempt for Mr. Weinstein, the

trial court had a heightened responsibility to ensure that Mr. Weinstein’s

constitutional right to a fair and impartial jury was honored. But when confronted

with indisputable evidence that Juror No. 11 was actually prejudiced against Mr.

Weinstein, the trial court abdicated its constitutional responsibilities and refused to

apply the minimal safeguards that would be expected even in a case where the

accused was unknown to the public

As Justice Black stated in In re Michael, 326 U.S. 224, 228 (1945): “[I]t is

difficult to conceive of a more effective obstruction to the judicial process than a

juror who has prejudged the case.” Juror No. 11’s fixation with matters of consent

and predatory older men and her lack of candor about it, raises troubling questions

about whether she prejudged Mr. Weinstein’s guilt and whether she had a personal

agenda to see him convicted. Allowing Juror No. 11 to participate in the

deliberations did not merely obstruct the judicial process, it single-handedly

obliterated it.

A. The Improper Seating of Juror No. 11 and The Additional Failure

to Remove Her During The Trial
On January 10, 2020, during voir dire, the defense raised an issue about Juror
No. 11’s lack of candor in her responses to her juror questionaire, in a letter to the
Court, seeking, inter alia, individual sequestered voir dire, which was denied. See
January 10, 2020, letter to the Court and January 20, 2020, letter to the Court at

51
page 1-2 in which relevant portions of January 10, 202, letter to the Court is quoted.
The defense informed the Court that the juror had authored a book, to be published
in the summer of 2020,19 about women who, according to Juror No. 11’s personal
webpage, “negotiate fraught friendships, sexuality, class and predatory older men
on the journey from innocence to independence.” (emphasis added). Id. The defense
pointed out to the Court that one of the questions asked of all venire persons in their
questionnaire was the following: “Is there anything else that you believe the judge
and the parties should know about your qualifications to serve as a fair and impartial
juror in this case?” Juror No 11, a Harvard graduate, answered, “No.” See Juror No.
11’s questionnaire attached as an exhibit to January 20, 2020 letter to the court..
Clearly, the fact that the prospective juror had written a book that involves sexual
relationships between woman and “predatory older men” – the very accusation
against Mr. Weinstein – is something that should have been disclosed, even absent
a direct question. For reasons that seem obvious even then, however, she wanted to
sit as a juror on this specific case and avoid disclosing anything that would prevent
her from doing so.
On Friday, January 17, 2020, after the defense had exhausted all of its peremptory
challenges and had been denied additional challenges by the court, Juror No. 11 was
seated in the final panel of prospective jurors. Defense counsel attempted to elicit
truthful answers from the prospective juror about topics discussed in her not-yet-
published book:

19
The book was published on July 14, 2020, under the title Age of Consent (Viking, 2020). On
February 8, 2020, defendant moved this Court to permit an enlargement of the record to include
excerpts from the book, but that motion was denied.
52
 MR. CHERONIS: Ma’am, are you an author?
PROSPECTIVE JUROR: Yes, I am.
MR. CHERONIS: And are you currently writing a book or about to
publish a book?
PROSPECTIVE JUROR: I am.
MR. CHERONIS: Can you tell us the name of the book?
PROSPECTIVE JUROR: Age of Consent.
MR. CHERONIS: Can you tell us what that book is about?
PROSPECTIVE JUROR: Yes. It’s about parents and teenagers. The three
main characters are teenage girls and their parents
and their struggle.
MR. CHERONIS: Does it have anything to do with predatory older
men?
PROSPECTIVE JUROR: All three girls have some relationship with an older
man but it’s not a predatory situation at all.
MR. CHERONIS: When is that book coming out?
PROSPECTIVE JUROR: July 14th.
MR. CHERONIS: Was there any press about it, about it being about
predatory older man?
PROSPECTIVE JUROR: Not that I am aware of. There hasn’t been very
much press about it.
MR. CHERONIS: Okay. Did you do any research into predatory older
men or victims of sexual assault in writing that
book?
PROSPECTIVE JUROR: I didn’t because of – it’s really not about that.
MR. CHERONIS: Does it have anything to do with sort of individuals
who may, young women, who may be involved with
older men that may be considered predatory?
PROSPECTIVE JUROR: No.

T: 879-881. (emphasis added)

After the foregoing exchange, defense counsel challenged Juror No. 11 for cause

(T: 895-8), but the trial court declined to excuse Juror No. 11, stating that he

53
“accept[ed] her answers under oath” that the book “is not about predatory older

men” (T: 895). Juror No. 11 was subsequently sworn in as juror.

Defense counsel continued to develop new information about Juror No. 11’s

book that raised questions about whether she possessed a state of mind that

precluded her from serving as a juror and whether she had actively misled the court

about the contents of her book. Critically, defense counsel disclosed to the trial

court in a January 20, 2020 letter that Juror No. 11’s publisher, Penguin Random

House was promoting Age of Consent while Juror No. 11 was seated as a juror and

that Penguin’s website described Age of Consent as a book involving “predatory

male teachers,” and “sexual relationships with older men and the power adults hold

over them.20” Of particular concern, Juror No. 11’s literary agent, the Cheney

Agency, was promoting Age of Consent alongside and to the same audience as the

highly-publicized book - She Said: Breaking the Sexual Harassment Story that

Helped Ignite a Movement which chronicled allegations of sexual misconduct

against Mr. Weinstein. Perhaps most troubling, defense counsel discovered an

article in The Atlantic in which Juror No. 11 had, herself, characterized Age of

Consent as a “deeply personal story,” suggesting that the book was, at least in part,

20
www.penguinrandomhouse.com/books617875/age-of-consent-by-amanda-brainer/

54
autobiographical.21 This admission raised even more questions about whether Juror

No. 11 had concealed information about her own experiences with “sexually

predatory men” that might affect her ability to serve as a fair and impartial juror

and whether she had answered other questions on the juror questionnaire honestly,

such as, “have you, a family member, or a close friend ever been the victim of

physical or sexual abuse, either as a child or adult.”

Before the panel was sworn in, defense counsel moved alternatively for a

mistrial or for the court to excuse Juror No. 11 for cause. Defense counsel argued

that if the court was disinclined to excuse Juror No. 11 on the existing record, it

should conduct an evidentiary hearing to further explore the contents of Juror No.

11’s book and whether she had been candid with the court. Defense counsel further

moved the court to order Juror No. 11 to produce her book for inspection. See

Defendant’s Letter to the Court, January 20, 2020.

The trial court denied the application but agreed to question Juror No. 11 in

the presence of counsel about her website’s characterization of the book (T: 952-

54). When confronted with a copy of her website, Juror No. 11 admitted that her

21
On January 7, 2020, The Atlantic published an opinion piece about the life and death of writer
Elizabeth Wurtzel, who before her death, published a searing #MeToo condemnation of Harvey
Weinstein. Juror No. 11 was quoted in The Atlantic article, stating “[Wurtzel] helped me tell my
deeply personal story, albeit in novel form.” See
https://www.theatlantic.com/entertainment/archive/2020/01/liz-wurtzels-glorious-messy-
life/604606/ A copy of the article was provided to the trial court in support of defense counsel’s
motion to excuse Juror No. 11 for cause.

55
website accurately described the book as involving “predatory older men” but

stated that she had not remembered that the website described the characters in that

manner when she was first questioned about the book during voir dire. Notably,

her explanation fails to account for why she denied that her book involved

predatory older men when pointedly asked in voir dire, irrespective of how it may

have been characterized by others. She claimed that although there were older

predatory male characters in the book, their relationships with high school

protagonists were “consensual.” Juror No. 11 insisted that her book was fictional,

but the court did not press her to explain why she told The Atlantic that Age of

Consent was her deeply personal story. Over defense counsel’s objection, the trial

court refused to excuse Juror No. 11 or conduct an evidentiary hearing before

swearing in the jury. The court also declined to order Juror No. 11 to produce her

book for inspection.22

On February 14, 2020 as Mr. Weinstein’s trial was underway, defense

counsel again moved to discharge Juror No. 11 after discovering that at the exact

same time she was hearing evidence in Mr. Weinstein’s case, she was reading and

22
Had the trial court simply ordered Juror No. 11 to provide a copy of her manuscript for in
camera review, the court would have learned that Juror No. 11 was untruthful when she told the
court that her book had nothing to do with predatory men. As a critic for the The New Yorker
observed, “[t]he elephant in the room and it is baked into the title of the novel . . is the seduction
of teenage girls by older men which occurs repeatedly in the novel, older men, fifteen year old
girls, sixteen year old girls – seduction is one word, I think today we call it rape.”
https://www.youtube.com/watch?v=4ZgqDXBs4l8
56
reviewing books on-line that centered on issues of consent and older predatory

men (T: 3809-3817). Specifically, on January 29, 2020, Juror No. 11 posted an on-

line review (in the middle of trial no less) about a book she was reading called My

Dark Vanessa. The book concerned the sexually inappropriate relationship of a 42-

year-old teacher and his 15-year-old student. Juror No. 11 commented that “the

repulsiveness of her predator and her entrapment in the relationship” were, inter

alia, what she “liked about the book.” Juror No. 11 was also reading and posting

about a book entitled Le Consentement during Mr. Weinstein’s trial. Involving

themes shockingly analogous both to those pedaled by the prosecution at trial and

to those in Juror No. 11’s own book, Le Consentement is a 1980s memoir about a

teenager who was sexually abused by a famous author, 36 years her senior, whose

status and influence shielded him from the consequences of his predatory

behavior.23

After bringing this new and troubling information to the attention of the trial

court, the court stated that it was going to “dump” Juror No. 11 (T: 3853, 3855-

6).24 In response to objections by the prosecutor, the trial court posited, “[w]hy is it

simply not the better part of valor to excuse her now, given that if there is a

23
A copy of Juror No. 11’s on line posts about My Dark Vanessa and Le Consentement were
provided to the Court (T: 3809).
24
The court’s statement that he intended to “dump” Juror No. 11 was made off the record. The
statement was attributed to the court by defense counsel on the record and the court did not
dispute the attribution (T: 3853).
57
conviction in this case or an acquittal in this case, her presence on the jury is a

distraction and now even potentially more so?” The prosecution persisted in its

objection, prompting further questioning of Juror No. 11 by the trial court – this

time in open court over defense counsel’s objection (T: 3855-6) .

During the colloquy, Juror No. 11 adamantly, defensively, and

unequivocally denied reviewing any books on-line:

The Trial Court: I understand during the course of the trial you reviewed

some books on-line about various topics such as child

abuse, predatory--

Juror No. 11 I have not. I have not.”

(T: 3815).

Because the court’s questioning of Juror No. 11 was imprecise and confusing,

Juror No. 11 avoided answering for her on-line activity which showed that during

trial she was reading and posting about books that centered on issues of sexual

predatory behavior and consent – the same issues that were being raised at the trial

for which she was supposed to be serving as a fair and impartial juror free of any

preconceived views of the case. Although the court initially seemed ready to

concede that Juror No. 11 was not qualified to serve as a juror in the case, the court

ultimately refused to excuse her, exacerbating the prejudice to Mr. Weinstein by

58
confronting Juror No. 11 in open court with an allegation of inappropriate conduct

that she surely deduced was lodged by defense counsel.

B. The Trial Court Abused Its Discretion By Failing to Excuse Juror

No. 11 For Cause Where A Substantial Risk Existed that She
Possessed a Prejudicial State of Mind That Precluded Her From
Rendering a Fair and Impartial Verdict and Where the Record
Reflects that She Made Material Misrepresentations about Her
Qualifications to Serve.

The record as summarized above reflects that Juror No. 11 was unqualified

to sit as a juror at Mr. Weinstein’s trial from the start and should have been

excused for cause upon defense counsel’s discovery that she had misrepresented

the subject matter of the book she had authored and was publishing at the time she

was serving as a juror. Juror No. 11 was statutorily prohibited from serving as a

juror where the record, taken as a whole, reflects that her state of mind precluded

her from rendering an impartial verdict. The trial court’s failure to remove her for

cause was a denial of Mr. Weinstein’s constitutional right to trial by a fair and

impartial jury.

A defendant has a constitutional right to be tried by an impartial jury.

U.S.C.A. Const. Amends. VI, XIV; McKinney’s Const. Art. I, §6; Duncan v.

Louisiana, 391 U.S. 145, 153 (1968); People v. Torpey, 63 N.Y.2d 361, 365

(1985). As the United States Supreme Court held in Irwin v. Dowd, 366 U.S. 717,

722 (1961), “the right to a jury trial guarantees to the criminal accused a fair trial

by a panel of impartial and ‘indifferent’ jurors . . . This is true, regardless of the

59
heinousness of the crime charged, the apparent guilt of the offender or the station

in life which he occupies . . . a juror who has formed an opinion cannot be

impartial.” See also, People v. Harding, 44 A.D.2d 800, 801 (1st Dept. 1974) (“[i]t

is elemental that every defendant in a criminal has a constitutional right to an

impartial jury . . . The preservation of the integrity of the judicial process requires a

trial by a jury above all and any suspicion of prejudice.”)

In this context, “Due Process means a jury capable and willing to decide the

case solely on the evidence before it, and a trial court ever watchful to prevent

prejudicial occurrences and to determine the effect of such occurrence when they

happen.” Smith v. Phillips, 455 U.S. 209, 217 (1982). As this court has observed,

the constitutional protections afforded the accused at trial, such as the presumption

of innocence and the prosecutor’s heavy burden of proving guilt beyond a

reasonable doubt are of little value unless those who are called to decide the

defendant’s guilt or innocence are free of bias. People v. Southall, 156 A.D.3d 111

(1st Dept. 2017) quoting People v. Ivery, 9 A.D.2d 712 (4th Dept. 1983).

In high-profile cases, a trial court’s obligation to ensure that a jury is

untainted by negative pre-trial publicity is enhanced. Chandler v. Florida, 449 U.S.

560, 574 (1981). Trial courts have a heightened obligation to ensure juror

impartiality, particularly when media coverage is predominantly sensational or

inflammatory. See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 362 (1966); Estes v.

60
Texas, 381 U.S. 532, 577-80 (1965) (Warren, C.J. concurring); Levine v. 764 F. 2d

590, 596 (9th Cir. 1985); United States v. Simon, 664 F. Supp. 780, 789 (S.D.N.Y.

1987) As the United States Supreme Court observed long ago:

Due Process requires that the accused receive a trial by an impartial

jury free from outside influences. Given the pervasiveness of modern
communications and the difficulty of effacing prejudicial publicity
from the minds of the jurors, the trial courts must take strong
measures to ensure that the balance is never weighed against the
accused.”
Sheppard v. Maxwell, 384 U.S. 333, 362 (1966).

A trial court’s obligation to ensure a fair and impartial jury is more critical than

ever where, as a result of social media, pre-trial publicity in high-profile cases can

be ubiquitous; the average person simply has no choice but to consume media

every day, all day.

Pursuant to CPL 270.20(1)(b), a court must accept a challenge for cause

when a prospective juror “has a state of mind that is likely to preclude her from

rendering an impartial verdict based upon the evidence adduced at trial.” “Most if

not all jurors bring some predispositions, of varying intensity, when they enter the

jury box. It’s only when it is shown that there is a substantial risk that such

predispositions will affect the ability of the particular juror to discharge his

responsibilities (a determination committed largely to judgment of the Trial Judge

with his peculiar opportunities to make a fair evaluation) that his excuse is

warranted.” People v. Johnson, 94 N.Y.2d 600, 613 (2000). Where there is

61
evidence that a prospective juror’s state of mind is likely to preclude him from

rendering an impartial verdict, the juror must state unequivocally that he or she

would be able to render verdict based solely on the evidence adduced at trial. But

that “unequivocal assurance” may not suffice when a prospective juror has

demonstrated dishonesty in responding to questions on matters that relate to her

qualifications to serve. Southall, supra.

In order for the parties and the court to assess a juror’s qualification, a

prospective juror has a duty to truthfully answer all questions posed to her that

might bear on her qualifications; a juror may not omit material facts that reflect on

the prospective juror’s ability to render an impartial verdict. People v. Rosen, 275

N.Y. 627 (1937). As this Court held in Southall, “actual bias may be demonstrated,

inter alia, by failure “to answer honestly a material question on voir dire,”

concealing material information from the court, or by manifesting a predisposition

in favor of prosecution.” Southall, 156 A.D.3d at 121 (internal citations omitted)

Upon finding that such a juror has withheld such information, the normal

“unequivocal assurance” is not sufficient; rather the juror should be discharged. Id.

see also, People v. McGregor, 179 A.D.3d 26 (1st Dept. 2019) (relying on Southall

for the proposition that actual bias is inferred from fact of concealment of material

information, notwithstanding juror’s subjective belief that she could be fair.)

62
 Here, even before Juror No. 11 was questioned by the parties, defense

counsel discovered evidence that demonstrated a substantial risk that Juror No. 11

had “actual bias” against Mr. Weinstein, making it impossible for her to carry out

her duty to render a verdict based solely on the facts adduced at trial. As discussed

at length, supra, Juror No. 11 had authored and was in the process of publishing a

book that she herself and her publisher had described as involving “predatory men”

and their power over the young women they exploited. When asked about the

content of her book, Juror No. 11 simply lied, telling the court that it had nothing

to with “young women who may be involved with older men that may be

considered predatory.”

When confronted with her blatant misrepresentation, Juror No. 11 doubled-

down on her dishonesty, implausibly claiming that she had forgotten that she had

previously described her book in that manner and was unaware of how her

publisher had described it. Given the opportunity to spin her book anew, Juror No.

11 opted for more half-truths, telling the parties and the court that the book was

about high school students having relationships with predatory older men but that

the relationships were “consensual.” Again, it is difficult to imagine that Juror No.

11, a Harvard graduate with an apparent appetite for books about predatory men,

truly held the belief that a high school girl could have a consensual sexual

relationship with an adult male.

63
 These facts, standing alone, demand a new trial for Mr. Weinstein. But there

is more. Defense counsel presented evidence to the court in the form of Juror No.

11’s own admission that her book was, in fact, autobiographical. (Wurtzel’s

“fearlessness” “helped me tell my deeply personal story, albeit in novel form” (see

Footnote 22, supra). Incredibly, Juror No. 11 was reading books during trial that

focused on predatory relationships between older men and girls and even posted an

on-line review of one of those books. Unsurprisingly, Juror No. 11 was most

impressed with the author’s ability to describe the “repulsiveness of her predator”

and a teenager’s “entrapment in the relationship.”

These facts, brought to the attention of the trial court, should have prompted

an immediate excusal of Juror No. 11 for cause. Indeed, the trial court’s failure to

grant the cause motion was especially unjustified where alternate jurors were

available to step up, and the court admitted on the record that Juror No. 11 had

become a “distraction.” By excusing the juror, the trial court would merely have

been following the direction of the Court of Appeals which has cautioned that “[a]

trial court should lean toward disqualifying a prospective juror of dubious

impartiality” when such a juror is challenged for cause. People v. Buford, 69 N.Y.

2d 290, 298 (1987). This is especially the case whereas here, the public outcry for

the defendant’s conviction was pervasive and loud.

64
 Instead, the trial court engaged in an imprecise and superficial inquiry of

Juror No. 11 that failed to adequately explore the juror’s bias and rationale behind

her continued deceptions. Additionally, the court failed to obtain clarification

about whether her book reflected a personal experience that would bear further on

her qualifications as a juror. After Juror No. 11 flat-out denied posting a review of

the book My Dark Vanessa in the face of undeniable proof of her on-line activity,

the trial court refused to get to the truth of the matter. The court asked no probing

questions of Juror No. 11 and did not follow-up on her ambiguous responses, nor

did it provide defense counsel the opportunity to inquire. Inexplicably, the trial

court refused to order the juror to simply produce her book for an in camera

inspection which would have revealed, then and there, that the book was about

sexually predatory men and that Juror No. 11 had taken great pains to conceal that

information from the parties.

New York Criminal Procedure Law §270.35 states, in pertinent part, that if at

any time after the trial jury has been sworn and before the rendition of its verdict, the

court finds as a result of a “reasonably thorough inquiry” from “facts unknown at the

time of the selection of the jury that a juror is grossly unqualified to serve in the case

or has engaged in misconduct of s substantial nature, but not warranting the

declaration of a mistrial, the court must discharge such juror.” People v. De La Rosa,

233 A.D.2d 257 (1st Dept. 1966). The trial court’s failure to adequately inquire also

65
ran afoul of the Due Process clause of the United States Constitution. Smith v.

Phillips, 455 U.S. 209, 217 (1982) (“Due Process means a jury capable and willing

to decide the case solely on the evidence before it, and a trial court ever watchful to

prevent prejudicial occurrences and to determine the effect of such occurrence when

they happen.”) Indeed, because Mr. Weinstein’s trial was nothing short of a media

feeding-frenzy with the public clamoring for a conviction, the trial court had a

unique responsibility to conduct the necessary inquiry to ensure that every member

of Mr. Weinstein’s jury remained fair and impartial. Rather than conduct the

necessary hearing to ensure that Juror No. 11 was fair and impartial, the court turned

a blind eye to the signs of her obvious prejudice.

The trial court was on notice that Juror No. 11 had demonstrated repeated

dishonesty about the contents of her book Age of Consent. Her willingness to deceive

raised grave questions, not just about her qualifications as a juror, but whether she had

an agenda, personal or pecuniary, to serve as a juror in this high-profile case. A hearing

could have revealed, for example, that Juror No. 11 (a first-time author) hoped that her

participation in the conviction of Mr. Weinstein would allow for more effective

marketing of her book which shared many of the same themes as the trial. On the other

hand, her participation in the acquittal of Mr. Weinstein would have proved disastrous

to her marketing campaign directed at the #MeToo movement. Frankly, the fact that

Juror No. 11 and the authors of the book She Said shared a literary agent should have

66
prompted the court to conduct an evidentiary hearing to explore the juror’s motives for

misleading the court about her book and her suspiciously strong desire to serve as a

juror on this case. The trial court’s failure to excuse Juror No. 11 or even conduct a

meaningful inquiry violated Mr. Weinstein’s constitutional guarantee of a fair and

impartial trial, and because Mr. Weinstein depleted all of his peremptory challenges, he

is now entitled to a new trial. See People v. McGregor, 179 A.D.3d at 32 citing

People v. Crimmins, 36 N.Y.2d 230, 238 (1975).

POINT II

THE TRIAL COURT’S MOLINEUX AND SANDOVAL RULINGS

DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A
FAIR TRIAL UPON CHARGES BROUGHT BY A GRAND JURY AND TO
TESTIFY ON HIS OWN BEHALF. (U.S. CONST. AMEND. V, VI, XIV; NY
CONST. ART 1 SECTION 6)

A. Weinstein Was Stripped of the Presumption of Innocence When the

Trial Court Allowed the Jury to Hear Excessive and Disparate
Molineux Evidence that Served No Legitimate Non-Propensity Purpose
and Was Designed Solely to Breed Contempt for Weinstein and Distract
the Jury from Fairly Evaluating the Evidence on the Charged Offenses.

1. The Molineux Rulings

Weinstein’s trial was overwhelmed by excessive, random, and highly

dubious prior bad act evidence, none of which shed light on disputed issues

67
relevant to the charged offenses. See Evidence At Trial section at pp. 27-33, supra.

Because the evidence on the charged offenses was weak, the prosecution inundated

the jury with copious tales of alleged misconduct (much of which was not criminal

in nature) that served no legitimate evidentiary purpose but merely depicted

Weinstein as loathsome. The Molineux evidence presented at Weinstein’s trial did

not assist the jury in determining whether he committed the charged offenses, it

merely persuaded the jury that it didn’t matter. Simply put, the prosecution tried

Weinstein’s character not his conduct. Forced to defend a half-dozen mini-trials

involving belated allegations of sexual misconduct by women with strong

incentives to recollect their experiences inconsistent with reality, Weinstein was

stripped of the presumption of innocence and the prosecution relieved of its burden

of proof. The incalculably prejudicial evidence had no proper non-propensity

purpose and served only to distract the jury from legitimate weaknesses in the

prosecution’s case on the charged offenses.

The American criminal justice system was designed to convict defendants

based upon their conduct – not on their general character. As such, evidence of

uncharged crimes or bad acts is generally prohibited unless the evidence is offered

for some purpose other than to raise an inference that a defendant has a criminal

propensity. People v. Molineux, 168 N.Y. 264, 291-294 (1901). Under Molineux

jurisprudence, courts begin from the premise that uncharged crimes are

68
inadmissible. People v. Resek, 3 N.Y.3d 385, 390 (2004); People v. Frumusa, 29

N.Y. 3d 364, (Molineux evidence is presumptively inadmissible unless it is

relevant to some material issue in the case). If the prosecution can identify a non-

propensity purpose for the uncharged bad act evidence, a court must then weigh

the evidence’s probative value against its potential for undue prejudice. People v.

Cass, 18 N.Y.3d 553, 560 (2012).

To be clear, before a court considers the prejudicial effect of introducing

uncharged bad act evidence, it must first determine whether such evidence is

admissible under a Molineux exception, that is, whether the evidence is relevant to

some disputed matter at issue. Simply because other bad act evidence may fall into

a Molineux exception, it does not automatically follow that such evidence is

admissible unless the evidence makes a fact in dispute more or less likely. If the

prosecution can identify a proper purpose that is at issue in the case as opposed to

one that can be inferred from the act itself and explain how the evidence is

relevant, the court is then tasked with determining whether the probative value of

the evidence is outweighed by the risk of undue prejudice. See People v. Leonard,

29 N.Y.3d 1, 8, (2017).

On April 26, 2019, the court ruled from the bench that the prosecution would

be permitted to introduce significant Molineux evidence at trial through three

unnamed women, now known to be Dawn Dunning (“Dunning”), Tarale Wulff

69
(“Wulff”), and Lauren Young (“Young”). The court also permitted, complainant

Jessica Mann to testify about two additional uncharged sex acts with Weinstein

that she alleged were non-consensual. At trial, the court further permitted Mann to

testify about other consensual sexual activities with Weinstein that could be

viewed as repugnant and to call Emanuella Postacchini to purportedly corroborate

a sexual escapade with Jessica Mann and Weinstein through which the

prosecution, incredibly, was able to introduce even more Molineux evidence over

objection. All told, well over half of Mr. Weinstein’s trial centered on uncharged

allegations of misconduct and miscellaneous bad character evidence.

As set out below, none of the Molineux evidence presented at Weinstein’s

trial served a legitimate non-propensity purpose. And even if the prosecution had

derived a valid theory of admissibility for introduction of the Molineux evidence,

its probative value would have been outweighed by the risk of undue prejudice.

Critically, the prosecution had no need for any Molineux evidence, let alone a

mountain of it, where Weinstein was already facing the herculean task of

simultaneously defending against multiple sexual assault charges by three different

women.

Initially, the trial court admitted the Molineux evidence to prove (1) an intent

to forcibly compel and (2) lack of consent and, in rendering its determination from

the bench on April 26, 2019, failed to articulate any basis for its decision (H: 80),

70
much less did it articulate how the probative value of the allegations outweighed

the enormous prejudice to the defendant. People v. Cass, 18 N.Y.3d 553, 560

(2012).

The defendant, in an Omnibus Motion dated October 10, 2019, asked, inter

alia, that the trial court reconsider its Molineux decision. In its written decision

dated December 16, 2019, the trial court ruled that the “‘uncharged crime’

evidence proffered by the People is admissible as it is relevant evidence for the

non-propensity purpose of establishing the defendant's intent to use forcible

compulsion and the complainant's lack of consent” and “for the purpose of

assisting the jury in understanding the relationship between the defendant and

[Mann].” As to the Molineux witnesses (Lauren Young, Tarale Wulff, and Dawn

Dunning), the trial court explained its decision to admit this evidence as follows:

The uncharged acts in the People's Molineux application rebuts the

defendant's claim of consent and demonstrates the defendant's intent to
commit these crimes. The crux of the People's Molineux application is that
these encounters were a ruse, in order to "snare his victim." (People's
Molineux motion pp.26-27). In the proffered Molineux applications, the
consistent theme is that the defendant used his business stature in the movie
industry to lure women to believe that he would connect them to careers in
the entertainment industry. The invitation came in the form of a business
opportunity, a book or script that she should read, or a movie that she should
see; each suggestion a little different yet creating a false opportunity to put
the women in a position to believe that he was interested in them on a
professional level and could give them “entre" into his world. Knowing that
these women did not voluntarily seek his company in order to engage in
sexual acts, the defendant created an "engineered situation" where he could
be alone with them and then sexually assault them. Later, the defendant
71
 would find a "good deed" to make them feel as though they were beholden
to him, holding the power to make or break their careers, which in turn made
these women hesitant to report these assaults.
Molineux Decision, December 16, 2019, pp.8-9 (emphasis added).
This ruling borrowed, verbatim, the prosecutor’s April 26, 2019, hearing argument

(H:37) which pathologized commonplace, noncriminal courting behaviors into a

criminal scheme, e.g., offers to assist with career goals, flattery, gifts, not to

mention that the sexual encounters occurred in private. In doing so, the trial court

effectively added a type of common scheme rationale to its reasoning which is

wholly unsupported by case law. In this way, the trial court grounded its ruling in,

and permitted the prosecutor to argue that, a myriad of uncharged conduct evinced

an intent to have sex “by trick,” although sex by trick is not an element of any

crime charged here. The only intent relevant for purposes of the element of forcible

compulsion is the intent to use force or the threat of force. As will be addressed

below, it is unnecessary and improper to use Molineux evidence to prove intent to

use force because such intent, if it exists, is evinced by the conduct itself.

2. The Molineux Evidence was Not Admissible For Any Legitimate Non-
Propensity Purpose.

a. Molineux Testimony from Dunning, Wulff, and Young Was Simply Not
Relevant to the Question of Whether Haley and Mann Consented to the
Sexual Conduct that Formed the Basis of the Charged Offenses.

With no analysis, the trial court summarily concluded that testimony from

Dunning, Wulff, and Young about their alleged sexual experiences with Weinstein
72
was admissible to support the complainants’ claims that the sexual encounters that

formed the basis of the charged offenses were not consensual. The court failed to

explain how Dunning, Wulff, and Young’s stories of non-consensual sex was

relevant to the question of whether Haley, Mann, and/or Sciorra consented to their

sexual encounters with Weinstein. It should be obvious that one person’s lack of

consent to a sexual overture is neither relevant nor probative of another person’s

lack of consent to a sexual overture by the same individual. People v. Vargas, 88

N.Y.2d 856 (1996). If it were otherwise, a defendant could present testimony from

sex partners willing to testify about their past consensual sexual activity with the

defendant to prove that the sex acts that formed the basis of the charged offenses

were consensual. Because one woman’s claim that she did not consent to a sexual

encounter says absolutely nothing about whether an entirely different woman

consented to a sexual act, this Molineux testimony was neither relevant nor

admissible “to show lack of consent” by Haley and Mann.

Had Weinstein claimed that he mistakenly assessed Haley and Mann’s

ability to consent, perhaps an argument could have been made that prior

accusations against Weinstein, to which he claimed to mistakenly assess

someone’s ability to consent, would be relevant under an absence of mistake

theory. But Weinstein never asserted a mistake defense to the charges against him.

Indeed, as defense counsel’s cross-examinations and arguments revealed,

73
Weinstein maintained that his sexual encounters with Haley and Mann were fully

consensual and their belated claims to the contrary were nothing more than ill-

motivated falsehoods and distorted memories. Thus, the contested issue that the

jury was asked to decide was whether the complainants were credible when they

alleged that they did not consent. Whether three or thirty other women claimed

they did not consent to sex with Weinstein is simply irrelevant to whether the

complainants consented.

In People v Vargas, an instructive case, the Court of Appeals held

inadmissible prior sexual misconduct evidence on the grounds that it only served to

lend credibility to the complainant by suggesting that because the defendant

engaged in sexual misconduct with others, he was likely to have committed the

sexual assault charged. 88 N.Y.2d at 858. There, the prosecution offered testimony

from several women who claimed that the defendant accosted them, demanded sex,

fondled them, and engaged in other sexually deviant behavior. Like the trial court

did here, the trial court in Vargas ruled the evidence admissible to rebut the

defendant’s consent defense. The Court of Appeals reversed, finding that the

evidence merely bolstered the complainant’s story by showing that because

defendant “did it once, he would do it again,” – the exact purpose for which the

evidence is forbidden. Had the trial court pressed the prosecution to pinpoint its

theory of admissibility it would have recognized that, as in Vargas, the only (and

74
improper) purpose for this Molineux evidence was to show that because Weinstein

allegedly engaged in sexual conduct with three other women without their consent,

he must have done so with respect to the complainants.

b. Dunning, Wulff, and Young’s Testimony Was Not Relevant to Show

Weinstein’s Intent to Forcibly Compel Haley, Particularly Where the
Women Did Not Allege Any Forcible Compulsion by Weinstein.

i. Intent Was Not an Issue

The trial court also allowed the testimony of Dunning, Wulff, and Young

under a theory that their testimony was relevant to show that Weinstein “forcibly

compelled” Haley, Mann, and Sciorra during their 2006, 2013, and 1993 sexual

encounters, respectively. Intent is one of the “well-recognized, non-propensity

purposes for which uncharged crimes may be relevant.” People Valentin, 29 N.Y.

3d 150, 155 (2017). Where guilty knowledge or unlawful intent is in issue,

evidence of other similar acts is admissible to negate the existence of an innocent

state of mind.” In re Estate of Brandon, 55 N.Y. 2d 206, 211 (1982). The focus

here is not on the actual doing of the act, for the act is proved or not by other

evidence. Rather, the element in issue is the actor’s state of mind, and evidence of

other similar acts is admitted under this exception because no particular intent can

be inferred from the nature of the act committed. Id. For example, the intent

exception has often been applied where fraud is alleged because intent rarely can

be established by direct evidence. Id.

75
 At the outset, intent was simply not “at issue” in this case, notwithstanding

that Weinstein’s defense was that he did not physically force Haley to engage in

sexual activities in his Soho apartment in 2006.25 The question in dispute was

whether Haley’s allegations of physical force happened at all. If the jury believed

that it did, than Weinstein’s intent would be easily inferred from the commission of

the act itself obviating any need to use Molineux evidence to prove intent, Vargas,

88 N.Y.2d at 858 (observing that “evidence of prior misconduct to prove intent is

unnecessary, where intent may be easily inferred from the commission of the act

itself.) Put differently, if the jury believed that Haley “struggled” with Weinstein

and that he used force have oral sex with her, his intent would be obvious. There is

no scenario under which that conduct, if believed, could be construed as innocent.

Accordingly, the stories of Dunning, Wulff, and Young had no relevance to any

issue in dispute.

If for example, Weinstein claimed that he used physical force against Haley

in some type of consensual act of “rough sex,” his intent could be at issue and

arguably prior similar acts might be admissible to negate Weinstein’s claim of

“innocent” intent. But Weinstein presented no evidence to that effect; rather he

25
Clearly, intent to forcibly compel was not “at issue” in the Mann allegations where she,
herself, did not allege forcible compulsion and the jury found none – notwithstanding that the
prosecution overcharged this offense. Nor was it at issue in the 1993 alleged rape of Sciorra,
whose testimony, had it been believed, made out the element of forcible compulsion.
76
maintained that Haley fabricated her claims of forcible compulsion, leaving it to

the jury to decide whether it happened it all – not whether Weinstein had acted

with an “innocent” intent.

ii. The Molineux Witnesses Did Not Allege Forcible Compulsion

Even if it could be said that intent was a disputed issue in this case, the

prosecution’s use of Dunning, Wulff, and Young’s testimony had no ability to shed

light on Weinstein’s “state of mind” since these accusers did not even allege forcible

compulsion. Under the intent exception there must be sufficient similarities between

the prior uncharged bad acts and the charged offense to permit the introduction of

the other crimes evidence. No such similarities exist between Haley’s allegation

from 2006 which included a claim, albeit shaky, of forcible compulsion, Mann’s

allegation of 2013 that involved no claim of force at all, and Sciorra’s claim of force,

and the accusations of Dunning, Wulff, and Young who made no claims of forcible

compulsion. As none of these Molineux accusers alleged that Weinstein used

physical force against them, even if their dubious tales were true, their testimony

would not be relevant or admissible for a non-propensity purpose.

c. Dunning, Wulff, and Young’s Testimony Was Not Admissible under a

Common Plan or Scheme Exception.

The trial court further justified the admission of Dunning, Wulff, and

Young’s testimony on the basis that it demonstrated a common plan or scheme.

77
The trial court observed that there was a consistent theme in which the “the

defendant used his business stature in the movie industry to lure women to believe

that he would connect them to careers in the entertainment industry. . . Knowing

that these women did not voluntarily seek his company in order to engage in sexual

acts, the defendant created an “engineered situation” where he could be alone with

then and then sexually assault them.” Molineux Decision, December 16, 2019,

pp.8-9

The common plan or scheme exception is simply inapplicable in this case.

Nonetheless, the court’s commentary reflected its strong reliance on this theory as

a basis for admission, notwithstanding binding legal precedent that precluded him

from doing so.

Under the “common scheme or plan” exception, evidence of collateral acts

may be admitted to show that the collateral acts are sufficiently connected with the

act in issue such that each forms a part of a common plan on the part of the actor to

achieve some ultimate result. Brandon, supra, 55 N.Y. 206, 212 (1982). Unlike the

intent exception, mere similarity between the acts is an insufficient predicate for

admissibility under the common scheme or plan exception. Rather, “[some]

connection between the [acts] must be shown to have existed in fact and in the

mind of the actor, uniting them for the accomplishment of a common purpose,

before such evidence can be received.” Id.

78
 As the record aptly reflects, Dunning, Wulff, and Young’s allegations bore

virtually no similarities to the charged offenses other than that all included some

type of alleged sexual misbehavior and all the women had some connection with

(or desire to be connected with) the movie industry. But more importantly, the

record is devoid of any evidence showing that the prior bad acts alleged by the

women were linked to the charged offenses as part of an overarching plan with the

goal of accomplishing a particular purpose. To put a finer point on it, when

Weinstein allegedly engaged in sexual conduct with Dunning, Wulff, and Young in

2004, 2005, and 2013 respectively, he certainly was not contemplating his sexual

encounter with Haley in 2006, his sexual encounter with Mann in 2013, or his

sexual encounter with Sciorra in 1993. The alleged sexual acts had no connection

to one another and were not perpetrated as part of an over-arching plan. As such,

the common plan and scheme exception simply has no applicability to this case

and could not provide a basis for admitting the Molineux evidence.

As the foregoing demonstrates, testimony from Dunning, Wulff, and Young

served no legitimate non-propensity purpose. Putting aside the prejudicial effect of

this evidence which will be addressed below, the evidence was introduced under

the guise of legitimate Molineux exceptions when, in fact, it was rank propensity

evidence.

79
d. Mann’s Testimony Regarding Prior and Subsequent Non-Consensual Acts of
Sex with Weinstein Was Not Relevant to any Disputed Issue and Was
Therefore Inadmissible to Show Mann’s Lack of Consent or to Demonstrate
Weinstein’s Intent to Forcibly Compel Her on the Occasion Charged.

At the outset, Mann’s prior and antecedent claims of alleged non-consensual

activity with Weinstein was wholly irrelevant to show that Mann did not consent to

sex on March 18, 2013. As the Court of Appeals has held, testimony by a

complainant that the defendant had sexually assaulted them on another occasion is

propensity evidence, tending only to show that defendant committed the charged

crime because he had done it before. People v. Leonard, 29 N.Y.3d 1, 7 (2017).

Furthermore, the fact that Mann claimed that she did not consent to sex with

Weinstein in early 2013 in connection with the oral sex incident and her claim that

Weinstein forcibly raped her in 2014, is plainly irrelevant to the question of

whether she consented to sex with Weinstein in March 2013 in a hotel room in the

DoubleTree Hotel. Mann had a five-year relationship with Weinstein. Even taking

her at her word, Mann concedes that she had consensual sex with Weinstein on

numerous occasions. Her own testimony drives home the point that a claim of non-

consensual sex on one occasion is irrelevant to show that a woman consented to

sexual conduct on an entirely different occasion.

Similarly, Weinstein’s mental state or “intent” to forcibly compel is simply

not an issue in this case where Weinstein did not allege that he used force

accidentally or without ill-intent as to the charged offense, but rather maintained

80
that no forcible compulsion occurred at all. Importantly, Mann’s testimony

regarding the charged offense did not involve allegations of physical force (hence

the jury’s rejection of the charge of first degree rape as to Mann). Even if Mann

had alleged that Weinstein “physically forced” sexual activity upon her in the

DoubleTree Hotel (e.g., holding her down, threatening to hurt her), which she did

not, his intent would be manifest obviating any need to demonstrate intent through

Molineux evidence. In short, Weinstein’s mental state as to the forcible compulsion

element was not a disputed issue in the case. Thus, it is entirely unclear how

Mann’s prior or subsequent sexual actions with Weinstein, one of which did not

even involve a claim of physical force, was relevant to demonstrate that Weinstein

intended to use force in connection with the charged offenses. As with Dunning,

Wulff, and Young’s testimony, Mann’s testimony regarding these alleged prior and

subsequent occasions of non-consensual sex were merely designed to persuade the

jury that it should believe Mann’s patently unbelievable tale and to punish

Weinstein for vague uncharged crimes and general brutish behavior.

e. The Litany of Additional Bad Act Evidence Regarding Weinstein’s Alleged

Sexual Behavior Was Not Admissible Under Any Legitimate Theory of
Admissibility, Including the Non-Existent Exception of “Giving the Jury an
Understanding.”

In addition to the mountain of Molineux evidence described above, the trial

court also permitted the prosecution to introduction testimony about unrelated

sexual activities that were neither criminal nor non-consensual but were,
81
nonetheless, highly prejudicial. This testimony included, inter alia, an incident

during which Weinstein allegedly urinated on Mann in the shower; a threesome

between Weinstein, Mann, and Emanuella Postacchini; a sexual act between

Weinstein and Postacchini that was not forced but, according to Postachhini, left

her feeling “frustrated;” and commentary by Mann that Weinstein had “kinky” and

“dirty” sexual proclivities. Although the trial court justified the admission of this

testimony on the vague basis that it gave the jury an “understanding” of

Weinstein’s relationship with Mann, the evidence amounted to nothing more than

impermissible bad character evidence.

Weinstein’s relationship with Mann was not in dispute where Mann testified

at length about her relationship with Weinstein. The jury learned through Mann

that she had consensual experiences with Weinstein, and she further claimed, that

she had three separate experiences that were non-consensual in nature . Mann’s

testimony about consensual threesomes and urination in the shower added nothing

to the jury’s understanding of Weinstein’s relationship with her and was offered

solely to paint Weinstein as a deplorable human being, concerned only with his

own sexual gratification rather than the feelings of his consensual partners.

Moreover, Postachinni’s own account of her consensual sex with Weinstein (that

she now apparently regrets) was relevant to absolutely nothing. Thus, the trial

court’s analysis was contrary to Molineux and its progeny and ran afoul of a

82
number of constitutional guarantees including the presumption of innocence and

the prosecution’s burden of proof.

3. Even If Some Molineux Evidence Was Proffered for a Legitimate Non-

Propensity Purpose, Its Probative Value Was Nil as Compared to Its
Prejudicial Effect and Still Should Have Been Excluded.

As argued above, none of the uncharged prior bad act evidence identified

above was admitted for a legitimate non-propensity purpose. But even if the

prosecution had successfully identified a proper basis for the admission of the

evidence, its probative value was outweighed by its prejudicial effect, particularly

where the prosecution had the benefit of built-in Molineux evidence as a result of

simultaneously trying Weinstein for three unrelated sexual crimes before the same

jury. Indeed, Weinstein suffered unquantifiable prejudice by the admission of over

a dozen unproven and uncharged accusations of sexual misconduct that spanned

over 20 years – notwithstanding the trial court’s limiting instructions to the jury.

When considering the evidence cumulatively, its probative value diminished

exponentially as compared to its overwhelming prejudicial effect.

The trial court had an obligation to subject the proffered Molineux evidence

to “the most rigid scrutiny” wherein it balances the probative value of the evidence

against its potential for unfair prejudice. Molineux, 168 N.Y. at 314; People v.

Alvino, 71 N.Y.2d 233, 241-42 (1987) “Prejudice involves both the nature of the

crime . . . and the difficulty faced by the defendant in seeking to rebut the

83
inference which the uncharged crime [invites].” People v. Robinson, 68 N.Y. 2d

541, 549 (1986). After all, “[i]t is much easier to believe in the guilt of an accused

person when it is known or suspected that he has previously committed a similar

crime.” People v. Allweiss, 48 N.Y.2d 40, 48 (1979).

Here, the trial court failed to subject the cumulative body of prior bad act

evidence to “the most rigid scrutiny” as required under the law. Arguably, the trial

court had a heightened obligation to conduct a thoughtful and impassive “unfair

prejudice” analysis given the extraordinary negative media coverage of Weinstein

that prompted the witnesses to make the allegations at issue in the first place, and

the outsized influence of the #MeToo movement on the trial. A scrupulous

balancing test between the probative value of the evidence versus its prejudicial

effect was never more important, and the trial court shirked its responsibilities in

this regard.

The trial court’s limiting instructions could not have cured the prejudice

suffered by Weinstein, no matter how many times they were repeated because

there was no way for the jury to consider the Molineux evidence other than for the

forbidden propensity purpose. Courts and commentators generally agree that

uncharged misconduct evidence can have a decisive impact on criminal trials

because of its influence on a jury’s factfinding process. McCandless, Jason L.,

Note: Prior Bad Acts and Two Bad Rules: The Fundamental Unfairness of

84
Federal Rules of Evidence 413 and 414, 5 Wm. & Mary Bill of Rts. J. 689, 712-

713 (Summer 1997). The risk of jury misdecision seems particularly acute when a

court admits prior bad evidence of sexual misconduct. Id. It has the capacity to

impact the jury in the following ways: surprise, misestimation, confusion of the

issues, arousal of punitive instincts and interference with the guilt determination

standard. Id. See also, Boyd v. United States, 142 U.S. 450 (1892). Weinstein

sought no special treatment at his trial but expected the trial court to protect his

constitutional guarantees with the same vigor as any other defendant. The record

reflects a troubling abdication of that responsibility where in the media circus of

the #MeToo movement, the court discarded widely-accepted principles of law to

justify the admission of prohibited bad character evidence and made no effort to

mitigate the unfair prejudicial effect of this evidence. Because Weinstein’s trial

was a trial of his character, there can be no confidence that the verdicts returned

against Weinstein were based on findings of proof beyond a reasonable doubt on

the charged offenses. Accordingly, Weinstein is entitled to a new trial that is not

tainted by excessive evidence of his purported bad character.

4. The Admission of Molineux Evidence in this Case was Tantamount to a

Constructive Amendment of the Indictment

The vast amount of uncharged criminal conduct that the trial court permitted

the People to offer in evidence in their case-in-chief, together with the People’s

fanciful theory of premeditated predation by trick, violated defendant’s most

85
fundamental state and federal constitutional right that he not be held to answer for a

capital, or otherwise infamous crime, unless on a presentment or indictment of a

Grand Jury. U.S. Const. amend. V, N.Y. State Const. Art 1 Section 6.

CPL Section 200.70 prohibits the People from amending an indictment that

changes the theory or theories of the prosecution as reflected in the evidence before

the grand jury which filed such indictment or that otherwise tends to prejudice the

defendant on the merits. In People v. Grega, 72 N.Y.2d 489 (1988), the Court of

Appeals held that pursuant to CPL Section 200.70 and Article I Section 6 of the New

York State Constitution, the prosecutor cannot usurp the powers of the grand jury

and that the crimes for which the defendant is tried are the same crimes for which he

was indicted and not some alternative seized upon by the prosecution. Grega at 496.

Proof at trial that varies from the indictment compromises two of the essential

functions of a grand jury: Notice to the accused and the exclusive power of the grand

jury to determine the charges. “The right to have the grand jury make the charge on

its own judgment is a substantial right which cannot be taken away” [Stirone v.

United States, 361 U.S. 212, 218-219 (1960)] and “after an indictment has been

returned its charges may not be broadened through amendment except by the grand

jury itself” (id. at 215-216).

Here, the defendant was charged by the Grand Jury on July 2, 2018, for

86
conduct based on three incidents with three women (Mann, Haley, and Lucia Evans).

After the trial court dismissed the charge in connection with Evans based on

information that Detective Nicholas DiGaudio had encouraged a witness not to come

forward with information that the incident was consensual, the prosecution added a

third uncharged offense, an alleged 1993 rape of Annabella Sciorra, to its amended

bill of particulars. Two and a half months later, the trial court ruled admissible the

allegations of Dunn, Wulff, and Young, alleging four additional uncharged crimes

or bad acts of a sexual nature and an additional two uncharged sexual crimes,

including an alleged forcible rape, by Mann. Before trial, Dunn added another

accusation of sexual misconduct that the trial court permitted, and then additional,

numerous instances of Molineux bad act evidence was admitted during the trial

through Postacchini, Mann, Haley, and Sciorra. The People spun a theory of

culpability based on uncharged crimes and bad acts that had no logical connection

to the three incidents charged in the indictment, save the impermissible connection

of sexual misconduct as bearing upon propensity. Without the uncharged Molineux

evidence, the trial would have been vastly different, i.e., the defendant would have

been given the fair trial to which he was entitled on charges brought by the grand

jury, and not on additional charges improperly admitted into evidence by the court.

The difference between an amendment of an indictment and a variance is

explained as follows:

87
 An amendment of the indictment occurs when the charging terms of the
indictment are altered, either literally or, in effect, by prosecutor or court after the
grand jury has last passed upon them. A variance occurs when the charging terms
of the indictment are left unaltered but the evidence offered at trial proves facts
materially different from those alleged in the indictment.
Gaither v. United States, 134 U.S. App DC 154, 413 F.2d 1061, 1071 (1960).

Here, the evidentiary rulings by this Court effectively altered the charges for

which the defendant was tried by permitting the prosecution to broaden its case

against defendant to the point that the indictment reflected less than a quarter of the

charges for which the defendant was called to answer.

In Ex parte Bain 121 US 1 (1887), the Supreme Court held,

If it lies within the province of a court to change the charging part of the indictment
to suit its own notions of what it ought to have been, or what the grand jury would
probably have made it if their attention had been called to suggested changes, the
great importance which the common law attaches to an indictment by a grand jury
as a prerequisite to a prisoner’s trial for a crime and without which the Constitution
says ‘no person should be held to answer,’ may be frittered away until its value is
almost destroyed.

Id. at 10.

In Bain, the Supreme Court explained the Fifth Amendment rationale for these

rules stating, “any other doctrine would place the right of the citizen which were

intended to be protected by the constitutional provision at the mercy or control of

the court or prosecuting attorney. Ex parte Bain at 13 [see Us v Miller, 471 US 130,

142 (1985)] (overruling Bain to the extent that it held that a narrowing of an

indictment constitutes an “amendment” that renders the indictment void; but

88
continued to maintain that a broadening of such an indictment would render the

indictment void). What has never been overruled is that a court cannot permit a

defendant to be tried on charges that are not contained in the indictment against him.

Stirone v U.S., 361 U.S. at 217.

It is axiomatic that propensity evidence invites a jury to do just that. And the

more evidence of uncharged crimes that bear on propensity introduced at trial, the

more likely it is that a jury will “misfocus, if not base its verdict, on a defendant’s

prior (uncharged) crimes rather than on the evidence or lack of evidence related to

the case before it.” People v Rojas, 97 N.Y.2d 32 (2001). This court’s Molineux

decision virtually ensured that the defendant would be convicted, not on the charges

brought by the grand jury, but on the volumes of inflammatory bad act evidence, the

probative value of which rests only on its impermissible use as evidence that

defendant is predisposed to commit the very crimes with which he is charged. Thus,

Weinstein was convicted of uncharged crimes in violation of his state and federal

constitutional rights that he not be tried for such crimes except on a presentment or

indictment by a grand jury.

89
B. Weinstein Was Denied his Constitutional Guarantees Under the Fifth,
Sixth, and Fourteenth Amendments to the Constitution Where the Trial
Court Ruled that If Weinstein Exercised His Right to Testify, the
Prosecution Would be Permitted to Cross-Examine Him About Dozens
of Remote, Highly Prejudicial, and Unsubstantiated Allegations of
Assorted “Bad Acts.”
Although Weinstein desired to testify on his own behalf and reminded the

judge that he knew this (S: 58)26, he was effectively prevented from doing so when

the trial court guaranteed his conviction by ruling that if he took the stand, the

prosecution would have carte blanche to put before the jury, twenty-eight alleged

prior bad acts spanning the past thirty years (see Evidence At Trial section for

specific bad acts at pp. 46-51, supra). To compound matters, the court’s ruling

deprived Weinstein of the ability to prepare for the onslaught of allegations or

defend against them. Thus the trial court’s Sandoval ruling not only resulted in a

violation of Plaintiff’s constitutional right to present a defense and testify on his

own behalf, it deprived him of his constitutional Due Process guarantees. Finally,

the trial court’s Sandoval ruling in conjunction with its admission of irrelevant and

excessive Molineux evidence destroyed even the semblance of a fair trial.

The trial court ruled that if Weinstein testified on his behalf, the prosecution

would be permitted to cross-examine him about twenty-eight alleged prior bad acts

26
Page references preceded by “S” are to the transcript of the Sentencing Proceeding held on
March 11, 2020. At that time, Weinstein reminded the court, “You know [] I wanted to testify,
but they told me all these things the District Attorney just said would come in my way before I
testified” (S: 58).
90
purportedly lodged by scores of witnesses, many of whom were unidentified and

unknown to Weinstein at the time of trial. (H: 145-148). The trial court conducted

no inquiry to determine the veracity of the claims nor did it make any precise

determinations about whether the claims bore on Weinstein’s credibility, veracity

or honesty. The accusations were far-reaching and broad in scope; some dated back

decades and involved bizarre claims of nothing more than brutish behavior that had

nothing to do with sexual misconduct or Weinstein’s credibility. Other allegations

involved vague claims that Weinstein had threatened or lied or engaged in abusive

or quasi-abusive conduct toward his employees, acquaintances, and even his own

brother. Weinstein was given no reasonable advance notice of many vaguely

worded allegations while the prosecution was afforded the opportunity to ambush

Weinstein with these accusations should he take the stand. None of the allegations

formed the basis of any prior criminal charges or conviction but constituted

nothing more than bare allegations untested by the adversarial process.

Not only did the trial court open the floodgates to the introduction of scores

of accusations of dubious veracity, it further ruled that if Weinstein took the stand,

the prosecution would have unfettered latitude to cross-examine him about the

damning Molineux evidence that had already been placed into evidence in the

prosecution’s case in chief. Put simply, the trial court’s Sandoval ruling left

91
Weinstein no choice but to remain silent against his will or take the stand and

suffer the legal equivalent of suicide.27

The trial court’s failure to give sufficient consideration to the overwhelming

prejudice Weinstein would suffer if forced to face cross-examination concerning

scores of allegations of misbehavior (both criminal and non-criminal in nature), not

only was an abuse of discretion but stripped Weinstein of his most cherished

constitutional guarantees. In determining a Sandoval application, a Court must

strike a balance between the probative worth of evidence of prior bad acts on the

issue of the defendant’s credibility on the one hand and, on the other, the risk of

unfair prejudice to the defendant, measured both by the impact of such evidence, if

admitted after defendant's testimony, and by the effects its probable introduction

may have in discouraging defendant from taking the stand. People v. Bowles, 132

A.D.2d 465, 466 (1st Dept. 1987); See People v. Sandoval, 34 N.Y.2d 371, 375

(1974).

Here, the trial court accorded no consideration to the prejudicial impact that

would ensue from allowing the People to question defendant about so many

27
Defense counsel explained to the court the effect of the Sandoval ruling on defendant’s ability
to testify: “The People will say, you know, did you do this absurd thing that we know that's not
true? Mr. Weinstein says no. And they ask, did you do this absurd thing? No. Did you do that
absurd thing? No. Although, Your Honor will instruct the jury that the comments of counsel are
not to be evaluated by the jury in their deliberations, it would just be a cumulative point of
poisoning the jury. They will have heard it” (Sandoval hearing: 138-9).
92
allegations of purported bad behavior or the likelihood that the ruling would

effectively preclude Weinstein from testifying in his own defense. Introduction of

a veritable tsunami of bad act evidence was clearly designed to keep Weinstein off

the stand since no reasonable jurist could conclude that a jury would be capable of

using the evidence for a non-propensity purpose. In short, the trial Court’s

Sandoval ruling was more damaging to the defendant than was appropriate or

necessary for the jury’s evaluation of his credibility. See People v. Wright, 121

A.D.3d 924 (2d Dept 2014); People v. Bowles, 132 A.D.2d at 467.

The trial court’s Sandoval ruling was not simply a garden-variety trial error

but amounted to a constitutional violation of epic proportions, denying Weinstein

of his right to testify in his own defense, a right guaranteed by the Fourteenth

Amendment Due Process Clause (“it is one of the rights essential to due process of

law in a fair adversary process”); the compulsory process clause of the Sixth

Amendment (“even more fundamental to a personal defense than the right of self-

representation”); and the Fifth Amendment (a “necessary corollary … to the

guarantee against compelled testimony”). Rock v. Arkansas, 483 U.S. 44, 51-53

(1987). Defense counsel recognized the constitutional implications of the trial

court’s ruling, stating “the Court’s Sandoval ruling all but ensured that the

defendant, a man with no prior arrests, much less criminal convictions, will not be

able to take the stand in his own defense.” See Defendant’s Motion to Reargue

93
Molineux, May 28, 2019. And, even apart from the defendant’s claim that the trial

court’s Sandoval ruling deprived him of his right to testify, the Sandoval ruling

constituted such an abuse of discretion as to deny the defendant a fair trial.

When combined with the Court’s Molineux ruling, as discussed above, the

People were afforded an unparalleled, unheard of, opportunity to introduce a

mountain of uncharged crimes and bad act evidence. See People v. Coe, 95 A.D.2d

685 (1st Dept. 1983); People v. Williams, 56 N.Y.2d 236 (1982). The People’s case

comprised highly prejudicial evidence involving charges that were time-barred or

legally insufficient and improper propensity evidence. The People improperly

bootstrapped the testimony of Sciorra, Mann, Dunn, Wulff, Young, and

Postacchini, thereby permitting highly prejudicial evidence that had no place in

this trial on the single charge of criminal sexual act in the first degree (Haley)

properly before the jury. In effect, the Court permitted the evidence at trial to

devolve into a tail (uncharged, time-barred and legally insufficient charges)

wagging the dog (a single facially sufficient count in the indictment), thereby

depriving the defendant of a fair trial and the chance, with the world watching, not

simply to defeat the charges against him, but to defend against the most vile

allegations - allegations which Mr. Weinstein denies to this day.

94
 POINT III

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT (1)

PRECLUDED THE DEFENDANT FROM OFFERING EXPERT
TESTIMONY ON TOPICS TESTIFIED TO BY THE PEOPLE’S EXPERT
AND (2) PERMITTED THE PEOPLE’S EXPERT TO BOLSTER THE
CREDIBILITY OF THE PEOPLE’S WITNESSES
[U.S. CONST AMEND. VI AND XIV; CHAMBERS V. MISSISSIPPI, 410
U.S. 284 (1973)]

The case before the jury hinged on the credibility of three women whose

allegations were made years after the incidents were alleged to have occurred and

only after the media vilified Mr. Weinstein, even as it lauded those who came

forward with grievances about him. Due to the trial court’s Molineux and other

evidentiary rulings (discussed supra), the case grew to encompass the allegations

of seven women and more than a dozen separate instances of sexual misconduct.

Despite the plethora of evidence against Mr. Weinstein that was admitted at trial,

the trial court committed two reversible errors with respect to the expert testimony.

First, the trial court permitted an expert witness (Dr. Ziv) to make sweeping

generalizations that bolstered the credibility of the alleged victims. In testifying

about rape trauma syndrome, Dr. Ziv was permitted to give generalized data about

rape that was offered to bolster the credibility of the witnesses and to prove the

crimes occurred. (see the Evidence At Trial section, supra, pp. 33-43, for a

95
summary of Dr. Ziv’s testimony). Specifically, the trial court erred in permitting

the People’s expert to testify that women do not falsely report rape and that their

memories of rape do not fade over time; that women are usually raped by an

acquaintance, delay reporting the rape for years, do not physically or verbally

resist, and continue or even develop sexual relationships with the perpetrators

thereafter. Notably, some “myths” associated with rape were referenced by the

Court of Appeals in People v. Taylor, 75 N.Y.2d 277 (1990), thirty-one years ago,

and defense counsel requested a Frye Hearing to determine, inter alia, if “myths”

identified by Dr. Ziv are the product of generally accepted principles and methods

that are valid today. Defendant’s Omnibus Motion, October 10, 2019. That request

was denied. Dr. Ziv’s testimony, aided by the prosecutor’s pointed questioning

and summation tactics, tracked the evidence in the case, thereby further bolstering

the credibility of the witnesses with the impermissible result of tending to prove

that the crimes occurred, thereby depriving the defendant of a fair trial.

The trial court also committed reversible error when it precluded a defense

expert from testifying about the very topics the People’s expert was permitted to

expound upon; precluded the defense experts from offering testimony about the

methodologies used in the data upon which Dr. Ziv’s testimony relied; and

precluded the defense from offering expert testimony about memory of sexual

encounters.

96
 These limitations imposed on the scope of the defendant’s expert testimony

effectively precluded the defense from calling Dr. Deborah Davis, a foremost

social psychologist and author of over one hundred scholarly articles and book

chapters concerning memory, suggestion and suggestibilty, sexual communications

and sexual assault, who had provided expert testimony in hundreds of cases. See

Defendant’s Notice to Introduce Expert Testimony of Dr. Davis. It also had the

effect of preventing the testimony of Dr. Elizabeth Loftus, perhaps one of the most

acclaimed memory experts in the country today, from discussing memory for

sexual encounters, thereby permitting the prosecutor to marginalize Loftus’s

testimony as having nothing to do with the trial. This limitation of the defense

expert testimony was a violation of defendant’s constitutional right to present

witnesses in his own defense. U.S. Const. 6th, 14th Amends; see, Ronson v.

Commissioner of Correction, 604 F.2d 176, 178 (2d Cir. 1979); see also, People v.

Berk, 88 N.Y.2d 257, 266 (1996).

A. Procedural History, Evidence, and Summation Tactics Concerning

Expert Testimony
On January 18, 2019, the People filed its Notice of Intent to introduce

“expert testimony on sexual assault and rape trauma syndrome.” The People

claimed that their expert testimony was necessary to “dispel several myths about

sexual assault” including that victims are usually raped by strangers, promptly

report their crimes, display symptoms of trauma, and avoid communicating and
97
associating with their attacker. Defendant objected to Dr. Ziv’s proffered

testimony. Nevertheless, the trial court granted the People permission to call Dr.

Ziv. See April 26, 2019 hearing at pp. 156-57.

On October 10, 2019, the defendant filed his omnibus motion in which he

gave notice of his intent to introduce expert testimony on human memory; the

factors that are understood to influence and distort memory for events including

sexual communications and interactions and for voluntary unwanted sex (i.e. sex

voluntarily engaged in without sexual desire). The defendant also sought to

introduce expert testimony on the methodologies used to gather the data on which

Dr. Ziv was intending to rely in her testimony concerning the frequency of false

reporting, failure to report, delayed reporting, and continuing contact with the

alleged perpetrator. The defendant also moved to limit or preclude the People’s

expert testimony because the potential value in her testimony was far outweighed

by its potential for undue prejudice and for a Frye Hearing to determine its

admissibility. The trial court ruled the testimony of the People’s expert admissible

without limitation and without a Frye hearing, and denied the defendant the right

to introduce any expert testimony on the data used and relied upon by the People’s

expert. Decision November 26, 2019.

The trial court permitted the defendant to introduce expert testimony on

“the general operation of human memory,” “the factors that are understood to

98
influence or distort memory,” “the nature of motivational and suggestive

influences that can cause memory distortion,” and “on the subjects of whether

memories of traumatic events are immune from factors that decay or distort

memories, whether memories can be improved or enhanced over time, whether

memories that conjure up emotions are more likely to be true, and whether there

exists a correlation between how confident a person is in their memory and the

accuracy of that memory” (see the Evidence At Trial section, supra, pp. 43-45, for

a summary Dr. Loftus’s testimony). However, the trial court precluded the

defendant from introducing testimony regarding “special issues of memory

specifically for sexual or potentially sexual interactions” Id. At trial, the trial court

expanded its ruling to preclude any mention of the word “sex” in the testimony of

the defendant’s expert Dr. Elizabeth Loftus, who unlike Dr. Ziv, was required to

give her testimony in a vacuum that suggested to the jury that it bore no relation to

the issues of memory pertaining to the case on trial.

In August 2019, the People re-presented two counts of predatory sexual

assault to the Grand Jury. Only after the defendant filed its October 10, 2019

omnibus motion in connection with this new indictment did the People disclose

that Dr. Ziv had testified in that Grand Jury. Much of her testimony in the Grand

Jury served only to prove that crimes occurred and to bolster the credibility of the

witnesses. She testified that women do not lie about rape, specifically testifying

99
that only 2% of rapes are false reports; she gave legal instruction to the grand jury

on what constitutes consent to engage in sexual interactions; she testified to data

establishing that most rapes are committed by acquaintances and discussed

offender characteristics in the context of why women might chose not to report a

rape and instead, choose to continue or even commence a relationship with the

perpetrator thereafter and that most women do not physically resist; and she

testified that women engage in self-harm after they have been raped.

On December 5, 2019, the defendant filed a motion to dismiss the

indictment based on this newly disclosed and improper expert testimony before the

grand jury or, in the alternative, to limit or preclude Dr. Ziv’s testimony at trial and

sought a Frye Hearing. On December 16, 2019, the trial court denied defendant’s

motion to dismiss the indictment; refused to limit Dr. Ziv’s testimony at trial,

“[e]ven if it would have been better had the People eliminated or limited the

testimony of Dr. Ziv from their presentation;” adhered to its prior ruling admitting

testimony about sexual assault and rape trauma syndrome; and denied a Frye

Hearing. See Court’s December 16, 2019 Decision. Hence, Ziv’s Grand Jury

testimony proved to be a prelude to her trial testimony.

Not surprisingly, the People’s expert testified at trial as she had in the Grand

Jury, and augmented her testimony with opinions about memory for sexual assault

and voluntary unwanted sex (topics the court had ruled off-limits for the defense

100
experts), and how and how not to evaluate the credibility of alleged victims of

sexual assault. While the People denied that their expert would vouch for anyone’s

credibility, her testimony amounted to just that. Her testimony bolstered the

credibility of the complaining witnesses including the Molineux witnesses and was

utilized to prove that the crimes actually occurred, thereby usurping the traditional

province of the jury. See People v. Knupp, 179 A.D.2d 1030, 1031–1032 (4th

Dept. 1992) (“challenged testimony was improperly admitted, inasmuch as it was

introduced primarily to prove that the charged crimes took place”) Exacerbating

the harm done by this testimony was the trial court’s rulings in connection with the

defense expert testimony which was unfairly limited. These, standing alone,

operated to deprive defendant of a fair trial and thus warrant reversal. People v.

Ruiz, 159 A.D.3d 1375, 1376 (4th Dept. 2018). Together with the Molineux and

Sandoval rulings, these rulings afforded defendant no chance of obtaining a fair

trial consistent with due process.

Magnifying the prejudice to defendant from Dr. Ziv’s testimony was the

prosecutor’s use of it in summation to argue that the women were credible, their

memories inviolable, and that the crimes actually occurred. She repeatedly

directed the jury to supplant its role as factfinder with Dr. Ziv’s “science” (T:

3704), rhetorically asking, “What did Dr Ziv say?” (T: 3704) or “what did the

Doctor say?” (T: 3710) in arguing that the women acted in conformity with the

101
testimony given by Dr. Ziv and that their testimony was therefore credible. (T:

3704, 3710, 3712, 3735, 3745, 3753-4, 3757-3758, 3766, 3768). For example, she

argued that the Doctor said that women have “subsequent contact with their

perpetrator” because, quoting Dr. Ziv, “They want to get on with their lives” (T:

3704); that a memory for a traumatic event does not fade with the passage of time

(T: 3712); that perpetrators make their victims feel stupid and belittled which

causes the victims not to “stick up for themselves” and to “blame themselves” (T:

3735). Discussing Haley’s decision to have sex with the defendant again, the

prosecutor told them that Ziv says she did it because she felt like “damaged

goods.” (T: 3768). She categorically stated that it was a “rape myth” that the victim

has done something to cause this. Echoing Dr. Ziv, she stated, “It is not true” (T:

3735).

She told them to “harken back to Barbara Ziv” to explain why Haley’s

testimony was demonstrably false but was still credible. “When you experience a

traumatic event you remember what’s important because that is stored in a

different part of our brain” (T: 3745); about Wulff, she argued, “Doctor Ziv says

you try to forget but you can’t” (T: 3757) and “what does Dr. Ziv say about core

memory,” “the elements of the trauma are pretty clear” (T: 3758); “Dr Ziv knows

how the brain works and where it stores the memory of a traumatic event and that

it stays with you” (T: 3766).

102
 B. The Court Committed Reversible Error by Permitting Unchecked
Expert Testimony That Bolstered the Credibility of The People’s
Witnesses and Sought to Establish That The Crimes Charged Occurred.

Thirty-one years ago, New York's highest court analyzed the scientific

literature on rape trauma syndrome and held that although “[t]here is no single

typical profile of a rape victim ... the relevant scientific community has generally

accepted that rape is a highly traumatic event that will in many women trigger the

onset of certain identifiable symptoms....” People v. Taylor, 75 N.Y.2d 277, 292

(1990).28 The Taylor case affirmed the propriety of admitting expert testimony in

28
At that time, the Court of Appeals made a temporal assessment of the need
for expert testimony concerning rape trauma syndrome for limited purposes
“[b]ecause cultural myths still affect common understanding of rape and rape
victims and because experts have been studying the effects of rape upon its victims
only since the 1970's, we believe that patterns of response among rape victims are
not within the ordinary understanding of the lay juror.” Taylor at 289. Thus, the
admissibility of such testimony, in the first instance, is predicated on a showing
that certain false beliefs or “myths” abide in the culture today. Notably, the trial
court denied a request for a Frye hearing to determine whether these “myths”
referenced by the Court of Appeals thirty-one years ago in Taylor remain rooted in
any belief system in 2020 America. In fact, there is every reason to believe that
they do not as the past ten years have seen significant transformations in due
process on American college campuses, in courts of law, and the broader culture
that shift the burden of proof to those accused of sexual assault to prove their
innocence. What American today has not heard of date rape or believes that
women cannot be raped by an acquaintance or their intimate partner or even their
spouse? Despite the fact that the admissibility of such testimony is culturally
dependent and that American culture has changed quite drastically since Taylor,
culminating with the hashtags, #MeToo, #Believeallwomen, and the routine public
shaming of public figures on the mere accusation of sexual improprieties, the trial

103
some cases concerning the syndrome at a rape trial to explain unusual conduct of

the victim immediately after the attack. It did not, however, sanction the wholesale

admission of expert testimony on the prevalence, characteristics, and credibility of

all types of allegations of sexual assault, as was permitted here. See People v.

Bennett, 79 N.Y.2d 464, 473 n. 3 (1992) (expressly questioning the admissibility of

expert testimony on the subject of rape trauma syndrome where the instant

allegations concern lesser, non-consensual sexual conduct, as opposed to forcible

rape).

Further, the Court of Appeals held that in evaluating the admissibility of

testimony concerning rape trauma syndrome, the trial court should consider the

reason why the testimony is offered, its relevance and its potential for prejudice.

Taylor, 75 N.Y.2d at 292. The Court of Appeals cautioned that “unchecked

admission of expert testimony in this area has peculiar dangers.” Id. at 282. It may

be admitted under certain circumstances to explain behavior of a victim that might

appear unusual or that jurors may not be expected to understand (People v.

Carroll, 95 N.Y.2d 375, 387 [2000]), but it is not admissible when it inescapably

bears on proving that a rape occurred. Taylor at 293. When it is introduced to

court permitted this testimony without any evaluation of whether and to what
extent it was still warranted.

104
prove the crime took place, its helpfulness is outweighed by the possibility of

undue prejudice. Id.

Case law has recognized two specific sources of unfair prejudice unique to

potential expert testimony regarding rape trauma syndrome and other similar

subjects: (1) the danger that such expert testimony will be used to prove that an

incident in fact occurred; and (2) its use in an attempt to bolster the credibility of

the complaining witnesses. Both are categorically improper. Id. (expert testimony

improper where it “bears solely on proving that a rape occurred”); see Bennett, 79

N.Y.2d at 472 (expert testimony related to complainant’s reaction as the incident

unfolded improper as it does not relate to unusual post-rape behavior); People v.

Mercado, 188 A.D.2d 941, 943 (3rd Dept.1992) (expert testimony improper where

it constituted “an impermissible comparison of the complainant’s behavior with

that commonly associated with victims of these crime”); People v. White, 4

Misc.3d 797, 800-801(N.Y. Sup. Ct. 2004) (George, J.) (expert testimony on

battered woman syndrome improper “because of the profound danger that the jury

will infer from the expert testimony that the defendant committed the crime

charged or that the jury will unduly use expert testimony to improperly bolster the

complainant's credibility”).

The trial court failed to heed the warning of the above precedent and, as a

result, Dr. Ziv’s testimony caused such undue prejudice to Mr. Weinstein that the

105
conviction must be reversed. The following are examples of her impermissible

testimony:

1. Dr. Ziv’s Testimony Constituted Inadmissible Bolstering To Prove the

Crimes Actually Occurred
Dr. Ziv was permitted to deliver a lecture to the jury that encompassed not

merely rape trauma syndrome for the purpose of explaining unusual post-event

behavior, but generalized data about rape that was offered for no reason other than

to bolster the credibility of the witnesses and to prove the crimes occurred. To permit

expert testimony in a rape trial that women do not lie about rape and deny the defense

expert the opportunity to explain the data relied upon for this conclusion constitutes

the most obvious and egregious form of prejudice to the defendant, deprived him of

a fair trial and replacing it with a sham.

a. Women do not lie about rape.

Certainly the single most egregious of Dr. Ziv’s statements was her testimony

that women do not falsely report rape for secondary gain. This testimony was

intentionally elicited by the prosecutor. This was the functional equivalent of her

improper grand jury testimony that it was a “myth commonly held that people lie

about rape.”29 Notably, no New York court has ever recognized any such study or

29
In the Grand Jury, Dr. Ziv testified as follows:

106
opinion as satisfying Frye, nor would it as it clearly usurps the primary function of

the jury in evaluating credibility. (The trial court denied defendant’s request for a

Frye hearing.)

Those concerns aside, this testimony was substantively improper because its

only purpose was to prove incidents in fact occurred by bolstering the credibility of

the complaining witnesses. See, e.g., Taylor at 293; Bennett at 472. The obvious and

only plausible inference to draw from Dr. Ziv’s testimony regarding the infrequency,

if not nonexistence, of false reporting is that when a report is made, it is true. In other

words, its clear design is to prove that an incident occurred, and to bolster the

complainant’s credibility in making an allegation. Suffice to say, this testimony

substantially and necessarily prejudiced the jury, as it originally did the Grand Jury.

Moreover, Dr. Ziv’s testimony on false reporting was highly prejudicial

when coupled with her testimony about her role as a forensic psychiatrist, in which

Dr. Ziv: The other rape myth commonly held is that people lie about rape. It’s not
true. Most people, the rate of false reporting is actually very low depending
on the study, somewhere between two and four percent.
Again, later, when initially brought up by a grand juror, the prosecutor asked the following
question, and Dr. Ziv gave the following answer:
Prosecutor: Doctor, a member of the Grand Jury would like you to just clarify
something, or to just repeat it, perhaps you had indicated how often there is
false reporting in rape cases. You gave a percentage. What was that
percentage for false reporting percentage?
Dr. Ziv: Two to four.
Prosecutor: Percent?
Dr. Ziv: Percent
(Ziv’s Grand Jury at pp. 48-49, 55 is attached as Exhibit A to Defendant’s December 5,
2019 Motion to Dismiss.
.
107
she characterized herself as an expert in credibility and stated that the very data she

was sharing with the jury was what she based her opinion on in her role as a

forensic psychiatrist. And notably, the prosecutor argued to the jury that it was

implausible to believe that the women who testified had any reason to testify

falsely, particularly noting that Haley had no plans to sue for money, although

public court filings demonstrate that her testimony was false. 1:20-cv-09109-JPC

Haley v Weinstein.

b. Women are usually raped by someone they know

Similarly, Dr. Ziv’s testimony regarding the “myth” that victims are usually

raped by strangers is obviously not a feature of rape trauma syndrome. It bears no

relation to explaining unusual post-event behavior of a victim, but invariably bears

on whether the assaults in fact took place and, because each witness who testified

knew Mr. Weinstein, whether Mr. Weinstein assaulted them. The specific statistics

Dr. Ziv cited present additional problems including that the defense was not

provided the data that allegedly supported these statistics and that the defense was

precluded from offering expert testimony to explain to the jury the methodologies

used to create such data and to identify other data reflecting other, better

methodologies. See People v. Keindl, 68 N.Y.2d 410, 422 (1986) (Held that the

range of psychological reactions of child victims who suffer from sexual abuse at

108
the hands of their stepparents is not a subject matter within the ken of the typical

juror, and therefore may be addressed by expert testimony where the defendant

was not prevented from impeaching the People's expert, or from presenting his own

expert).

c. Rape victims engage in self-harm and feel like “damaged goods”

Dr. Ziv also testified that women who have been raped engage in self-harm

and perceive themselves as “damaged goods.” She testified that “[y]ou often hear

women who have been sexually assaulted say they feel like damaged goods, they

feel like I'm used goods anyway, why not” (T:1366). This testimony tracked the

evidence in the case and was used in summation to bolster the credibility of the

complaining witnesses concerning cutting, which was a form of self-harm allegedly

engaged in by Sciorra and Mann, and to explain why Haley had sex with Weinstein

two weeks after she claimed he assaulted her. This area of testimony was again not

disclosed by the state in its notice, nor shown to conditionally satisfy Frye.

Moreover, it is the very sort of evidence found to be inadmissible by the Court of

Appeals. In the companion case to Taylor, People v. Banks—the Court of Appeals

concluded that expert opinion that a person exhibited symptoms associated with rape

trauma syndrome would be inadmissible because it bore solely on proving that a

109
rape had occurred, and defendant would be unacceptably prejudiced by this type of

rape trauma syndrome evidence (Taylor at 293, supra).

Even if this testimony contained some marginal relevance separate from

proof that the crimes occurred, otherwise relevant evidence is improper where it is

outweighed by the danger of undue prejudice. Mazella v. Beals, 27 N.Y.3d 694,

710 (2016). Appeals to sympathy for the alleged victims is one well-recognized

source of undue prejudice.30 See People v. Caruso, 246 N.Y. 437 (1927); People v.

LaValle, 3 N.Y.3d 88, 113 (2004) (“jurors have an obligation to decide the issues

in the case “in a judicial temper . . . . [a]ppeals to sympathy or prejudice can but be

harmful”) (internal citations and quotations omitted). Indeed, Due Process is

violated “when victim impact evidence is introduced that ‘is so unduly prejudicial

that it renders the trial fundamentally unfair.’” United States v. Whitten, 610 F.3d

168, 190 (2d Cir. 2010) (quoting Payne v. Tennessee, 501 U.S. 808, 825 (1991));

United States v. Copple, 24 F.3d 535, 545-46 (3rd Cir. 1994) (evidence of a

victim’s loss should be excluded when it amounts to “victim impact testimony”);

Thus, it follows that expert testimony concerning alleged victims engaging in self-

harm and feeling like “damaged goods” was improper as it was not the proper

30
Dr. Ziv’s testimony, permitted over objection, about a woman’s memory that “her babies were
safe” at the time of a thirty-year old rape was another such instance of an appeal to sympathy (T:
1379).
110
subject of expert testimony and unduly inclined the fact-finder to decide the

relevant matters before it based upon sympathy and passion.

2. Dr. Ziv Addressed Topics Concerning Sexual Assault That Were Not
Beyond The Common Understanding of Lay Jurors
The Court permitted Dr. Ziv to testify on matters even where not beyond the

common understanding of lay jurors. The fact that victims can be raped by people

they know and the reasons why victims might continue to communicate or interact

with someone who sexually assaulted them are simply not, nor have they ever been

found to be, beyond the common understanding of typical jurors. This testimony

was given solely as it pertained to the incidents themselves and not because they

fell within any permissible bounds of “unusual” post-event behavior. Indeed,

counsel argued-and the People never disputed- that there was nothing about the

witnesses’ post-incident behavior that was “unusual,” counterintuitive, or irrational

- and certainly nothing about their behavior that the typical juror is incapable of

understanding based upon his or her day-to-day experiences. Rather, the rationale

behind making a conscious, informed decision not to make a public accusation or

to continue a relationship with the defendant were explained by the witnesses, and

it was for the jury to decide whether it found the complainants’ explanations

credible. There was no need to permit the pathologizing testimony of an expert to

explain something well within the jury’s common-sense and lived experiences.

111
See, e.g., People v. White, 4 Misc.3d at 799-81 (holding, inter alia, expert

testimony regarding battered women syndrome to explain a complainant’s nine-

week delay in disclosing abuse where “none of the facts apparent in this particular

case [were] outside of a jury's common sense and logic” was error).

3. Dr. Ziv’s Testimony About Victim Behavior During The Alleged Assaults
Was Not A Proper Topic For Expert Testimony

Dr. Ziv’s testimony did not simply aide the jury in understanding “unusual”

or counterintuitive behavior, actions, or symptoms of a sexual assault victim after

the fact, but sought to prove that “a rape occurred” by instructing the jury about

victim behaviors during the alleged assault. Taylor at 293; see also Bennett at 472

(expert testimony was improper where it “concerned the victim’s behavior as the

sexual attack unfolded”). In this vein, Dr. Ziv testified extensively regarding the

frequency with which women physically resist perpetrators of rape and sexual

assault. Relying on data derived from incidents of stranger rape, Dr. Ziv gave

statistics regarding the prevalence of various forms of resistance, and told the jury

that victims of acquaintance rape would be even less likely to offer any resistance.

She testified about screaming and kicking specifically, both of which would be a

rare occurrence according to Dr. Ziv. This testimony bore no relation to explaining

unusual post-event behavior, but invariably bore on the taking place of an assault

112
itself by bolstering the credibility of the witnesses who had offered little or no

resistance in the sexual encounters they described.

4. Dr. Ziv’s Testimony Improperly Addressed Perpetrator Behavior.

Dr. Ziv’s commentary on behaviors associated with perpetrators (“the carrot

and the stick” and “how perpetrators gain compliance”-T: 1364) tracked the

victim’s testimony concerning defendant’s conduct, and the prosecutor on

summation urged the jury to conclude that defendant's interactions with

the victim fit the description of a typical perpetrator's conduct as described by Dr.

Ziv. Such expert testimony on perpetrator behavior is only admissible to the extent

it bears on the need to explain victim behavior. People v. Williams, 20 N.Y.3d

579, 584 (2013). Here, it was used for the purpose of proving that the

complainants were sexually assaulted. See People v. Duell, 163 A.D.2d 866 (4th

Dept. 1990) See also People v. Ruiz, 159 A.D.3d 1375, 1376–77 (4th Dept. 2018).

5. Dr. Ziv Supplanted the Role of the Jury By telling The Jury That it Could
Not Determine Credibility, Supplanted the Role of Defense Counsel by
Instructing the Jury that it was “Out of Touch” to Ask an Alleged Victim
to Explain Her Conduct and Bolstered the Prosecution by Suggesting
that the Prosecutor Had Done its Job.

Dr. Ziv instructed the jury that it was a “myth” that “one can determine

whether someone has been raped by her behavior” (T: 1368, 1431). She testified

113
that in her role as a forensic psychiatrist, she evaluated whether alleged victims and

perpetrators were credible and that she based her forensic assessment of whether

someone is credible on “whether the allegations comported with the patterns of

behavior of victims and perpetrators described in the literature” (T: 1439). (Of

course, she had also told the jury that with respect to victim behavior, there were

no patterns; that you could not tell from victim behavior whether the victim was

being truthful; and that rape victims do not lie.) Hence, Dr. Ziv was telling the jury

that their role in evaluating the evidence was circumscribed by an outcome

determinative set of “scientific” parameters that essentially precluded them from

evaluating the evidence and, instead, directed a credibility finding in a purported

victim’s favor. Those parameters included that rape victims give false statements,

change their stories, appear calm, comply, withdraw, become promiscuous, drink

and use drugs, to name a few.

Dr. Ziv stressed that forensic evidence “in a case like this” could be

evidence of perpetrator behavior based on testimony of other women that

experience the same thing, i.e., “a pattern of behavior of the perpetrator that is

consistent with the allegations” (T:1429). This testimony was in direct

contradiction to the instructions given the jury on the use of the Molineux

evidence. See Point II, supra

114
 Dr. Ziv cautioned that to even question why an alleged rape victim acted in a

certain way during the encounter or afterwards was simply “out of touch” because

they don’t do what people think rape victims do (T: 1441). This testimony was a

categorical rejection of the role of cross-examination and jury deliberation in

evaluating the evidence in this case. Dr Ziv went on to explain that any false

information elicited from a victim is the fault of the interviewer not letting the

victim “control their own memory” (T: 1378). This testimony had prejudicial

implications for cross-examination itself as a foundational element of due process

in criminal trials. She stated that even when an alleged sexual assault victim

changes her story over time, this just means she is “testing the water” because she

is ashamed (T: 1431-2).

Dr. Ziv even vouched for the prosecution by stating over objection that she

“assumed” the DA’s office had done its investigation in the case (T: 1439). The

inference was, of course, that the jury could rely upon that assumption, too.

6. Dr. Ziv Was Permitted to Testify About Memory for Sexual Assault,
Voluntary Unwanted Sex, and Consent - Matters as to Which She Was
Not Qualified to Testify And As to Which the Defense Experts Were
Barred
Dr. Ziv also testified extensively regarding memory for sexual assault – a topic

forbidden by the trial court to be explored by the defense experts and a topic as to

which Ziv had not been qualified to testify. She testified that memories of sexual

115
assault do not fade over time. She was even permitted to tell the jury about a case in

which a sexual assault victim had perfect memory recall of the core events around an

incident that had taken place thirty years earlier, tracking the time frame for the Sciorra

allegation perfectly. The People, having not even disclosed this area of Dr. Ziv’s

testimony in its notice, inter alia, had made no showing that these opinions

conditionally satisfy the requirements of Frye or that Ziv was qualified to testify about

them. Moreover, the trial court precluded the significantly more qualified defense

experts, Dr. Davis and Dr. Loftus, from opining on this very topic, i.e., “special issues

of memory specifically for sexual or potentially sexual interactions.” Thus, the

defendant was prevented from impeaching the People's expert, or from presenting his

own (People v. Cronin, supra, 60 N.Y.2d 430, 432 (1983); Selkowitz v. County of

Nassau, 45 N.Y.2d 97, 103 (1978); see, e.g., People v. Benjamin R., 103 A.D.2d 663,

669 (4th Dept. 1984); People v. Keindl, 68 N.Y.2d 410, 422 (1986).

Similarly, the trial court permitted Dr. Ziv to testify on the topic of voluntary

unwanted sex (“a ridiculous concept,”31 in Ziv’s words – T:1425), while precluding

the defense experts from doing so. In this vein, Dr. Ziv instructed the jury on the

31
Of course, there is nothing “ridiculous’ about the concept of consensual unwanted sex. The
prosecutor, herself, described it for the judge in an effort to justify her failure to disclose to the
defense that Mann had admitted to engaging in consensual sex with Mr. Weinstein on numerous
occasions: “They knew that exactly what she testified to, that at some point in time she felt that
she was in a relationship with him and although she didn't want sex, she was not forced to have
sex” (T: 2304) And again, “Judge, she never said she wanted to have sex with Harvey Weinstein.
She said she had sexual contact with Mr. Weinstein that was not coercive. Everyone knew that,
that was clear in everything we handed over to them” (T:2305).
116
definition of consent for sexual encounters just as she had done in the Grand Jury. Her

trial testimony was categorically improper, as was her Grand Jury testimony before it.

Lack of consent is a legal term defined by Penal Law § 130.05. It provides, in relevant

part, that lack of consent results from: 2.(a) Forcible compulsion; or . . . (c) Where the

offense charged is sexual abuse or forcible touching, any circumstances, in addition

to forcible compulsion or incapacity to consent, in which the victim does not expressly

or impliedly acquiesce in the actor's conduct; or (d) Where the offense charged is rape

in the third degree as defined in subdivision three of section 130.25, or criminal sexual

act in the third degree as defined in subdivision three of section 130.40, in addition to

forcible compulsion, circumstances under which, at the time of the act of intercourse,

oral sexual conduct or anal sexual conduct, the victim clearly expressed that he or she

did not consent to engage in such act, and a reasonable person in the actor's situation

would have understood such person's words and acts as an expression of lack of

consent to such act under all the circumstances. Dr. Ziv’s definition of consent is

considerably broader than the definition provided by §130.05. It thus constituted an

erroneous legal instruction, exacerbated by the imprimatur of a purported expert.

7. The Prosecutor in Her Summation Amplified The Prejudice to Mr.

Weinstein Resulting From Dr. Ziv’s Improper Testimony
The prosecutor’s pointed questioning of her expert and her repeated use of the

expert’s testimony in summation further prejudiced the defendant. People v.

Williams, 20 N.Y.3d 579, 584 (2013) (expert testimony exceeded permissible

117
bounds when the prosecutor tailored questions to include facts to the particular case

at trial, having the prejudicial effect of implying that the expert found the testimony

of this particular complainant to be credible—even though the witness began his

testimony claiming no knowledge of the case before the court). As summarized

above, the prosecutor repeatedly argued to the jury the evidence was supported by

Dr. Ziv’s framework in which no alleged victim’s behaviors can ever be questioned

and all roads lead to conviction.

Dr. Ziv was allowed to testify carte blanche before the jury without any regard

to the scope of her disclosure notice, constraints set by the law as to proper areas of

testimony, or regard for the actual law that governed the proposed charges. Her

testimony bore on the ultimate question of whether defendant was guilty which

should have been left for the jury to decide and is not a subject matter beyond the

ken of the ordinary juror, requiring expert testimony.

C. The Trial Court Committed Reversible Error By Precluding the

Defendant From Offering Expert Testimony On Topics Testified To By
The People’s Expert Witness.

“[T]he Constitution guarantees criminal defendants ‘a meaningful

opportunity to present a complete defense’” (Nevada v. Jackson, 569 U.S.505

[2013] quoting Crane v. Kentucky, 476 U.S. 683, 690, [1986]; see Holmes v. South

Carolina, 547 U.S. 319, 324 [2006]; People v. Carroll, 95 N.Y.2d 375, 385

118
[2000] ). People v. DiPippo, 27 N.Y.3d 127, 135 (2016). Mr. Weinstein was

afforded no such opportunity by the trial court here.

The trial court precluded Dr. Deborah Davis and Dr. Elizabeth Loftus from

testifying on certain specified subject areas because it claimed those subjects and

opinions were not demonstrated to be “generally accepted within the relevant

scientific community.” Order, p. 10. On these topics, the trial court should have

held a Frye hearing. See People v. LeGrand, 8 N.Y.3d 449, 457-58 (2007).

Instead, it made a wholesale ruling to preclude the defense experts from testifying

about sexual assault, notwithstanding that it allowed the People’s expert to cover

all the topics about which the defense experts were barred.

The trial court’s decision to preclude expert testimony by the defense on the

topic of memory for sexual interactions was predicated on two sentences quoted

out of context from a scholarly article co-authored by the defendants’ experts. The

sentence read, “Though the circumstances of sexual interactions—and particularly

those involving intoxicated participants—provide fertile ground for memory

failure and distortion, little memory research has directly addressed memory for

sexual interactions. Here, we hope to provide a call to arms for memory

researchers to dive into this complicated, challenging, yet vitally important arena.”

See Court’s Decision on Defendant’s Omnibus Motion, November 26, 2019

quoting Deborah Davis & Elizabeth Loftus, Remembering Disputed Sexual

119
Encounters: A New Frontier for Witness Memory Research, 105 J Crim. L. And

Criminology 810, 816 (2016).

The paragraph preceding this statement referenced by the court, and indeed

the entire beginning of the article makes abundantly clear that its authors are

referring to memory for sexual consent communications specifically, and not to

memory for sexual interactions, generally. Even more specifically, the title of the

article and the content make clear that they are referring to adult sexual assault

allegations, with emphasis on the impact of intoxication on memory for sexual

consent. Regarding memory for sexual interactions, more generally, there is a very

extensive body of research addressing a variety of types of memories and types of

sexual events. The defendant’s proffered experts have both contributed to this

literature extensively, as indicated by their CVs which were filed with the trial

court and which reference the work of many, many other scholars on these topics.

And they have each testified regarding the vast scientific literature on memory for

both child and adult sexual interactions. The trial court’s decision to bar defense

expert testimony on this issue, while permitting the People’s expert to ramble on

about topics without having given notice or establishing its validity under Frye,

was a reversible error.

Moreover, that error was compounded by the fact that the defense experts

were not permitted to explain to the jury the methods used in developing the data

120
that Dr. Ziv relied upon and to introduce data that she had overlooked. Without

expert testimony, the defense was at disadvantage in arguing to the jury that Dr.

Ziv’s sweeping generalizations were not supported by the best science. In that

context, it should be pointed out that science is a method, a process, and not a set

of facts handed down by someone deemed to be sole arbiter of the facts.

Unfortunately, the court’s rulings resulted in the People’s expert being permitted to

pontificate about her opinions, cherry-picking data to comport with those opinions,

and allowing it all to masquerade as “science” or “truth.” By not permitting the

defense to challenge this testimony by allowing its own expert to testify on the

very subjects about which the People’s expert was permitted to testify, the court

denied the defendant his right to present a defense and denied the jury the

information it needed to evaluate fairly the testimony of the People’s expert. This

left the jury little choice but to accept her testimony, thereby ceding its role to the

People’s expert.

D. The Defendant Was Further Denied His Constitutional Right to Present

a Defense When, Inter Alia, the Prosecution Withheld Exculpatory
Evidence, and the Trial Court Precluded the Defense from Calling
Police Officer DiGaudio to Testify.
With the assistance of the New York Police Department, the New York

Attorney General’s Office and the Los Angeles Police Department, the People

undertook a two-year long investigation into every aspect of Mr. Weinstein’s life.

Given the prosecution’s theory, presented to the jury in the form of expert
121
testimony that the defense was precluded from rebutting, that women do not lie

about rape, it was incumbent upon the People to share with the defense any

information that they had that women had come forward with falsifiable

allegations concerning Mr. Weinstein. Indeed, such information was Brady

irrespective of whether they had made a decision not to charge the defendant with

crimes based on such allegations. No such discovery was ever made available to

the defense.

Nevertheless, the conduct of Detective DiGaudio, the lead investigator on the

case, demonstrated that the People were in fact in possession of such evidence.

Detective DiGaudio withheld evidence that Evans had lied about her sexual

interaction with Weinstein, leading the prosecutors to dismiss a charge from the

initial indictment to avoid the trial court granting the defense motion to dismiss.

Proceeding, October 11, 2018. Lucia Evans had alleged that Weinstein forced her

to perform oral sex on him in 2004. Weinstein was charged with criminal sexual

act in the first degree based on her testimony. However, in September 2018,

prosecutors disclosed that a woman who was with Evans at the time of the alleged

assault had given DiGaudio a contradictory account and that DiGaudio had

instructed the woman to keep quiet. “Less is more,” he told the witness.

Then it emerged that Jessica Mann had told DiGaudio that she did not want to

disclose certain information on her cell phones. DiGaudio allegedly told her to

122
delete anything that she did not want the prosecutors to see. Detective DiGaudio

also interviewed Talita Maia, a critical witness that the prosecutor chose not to call

(T: 3361-2). Given DiGaudio’s involvement with the investigation and

prosecution of Mr. Weinstein, the defense had every right to call him to explore

critical issues related to the investigation and the existence of exculpatory evidence

that women had, in fact, lied about Mr. Weinstein having sexually assaulted them

and the prosecution knew it, contrary to their expert’s testimony.

Nevertheless, the trial court ruled that the defense could not call Detective

DiGaudio to testify, thereby preventing the defense from presenting to the jury the

biased nature of the investigation conducted by the law enforcement and the

prosecution from its inception. Following Mann’s testimony, the defense renewed

its motion to call Detective DiGaudio. “Based on Jessica Mann's testimony, I ask

to be allowed to call Nicholas DiGaudio” (T:3269, 3434) The court responded

“Okay. I have ruled on that.”

Defense counsel urged the trial court to reconsider its ruling based on

Mann’s testimony.

[A] New York police detective was improperly attempting to ask Ms. Mann
to either hide evidence or do something inappropriate, we believe that Mr.
Weinstein has a Constitutional Right to call Detective DiGaudio … It is our
position that this is evidence tending to show that Nicholas DiGaudio during
the course of his investigation undertook an effort to, essentially, cover
evidence, hide evidence and it calls the integrity of the investigation into
question…Their lead investigator, who is not testifying, there hasn't been
123
 one police officer in this case to testify and the reason that that is being done
is to hide from the jury to some extent the true scope of this investigation
and what actually occurred. When you have a police officer who is telling
the key witness in this case, it is okay to not turn over evidence to the DA,
we think that's something that goes to the credibility, not only of the state's
case in its entirety but we want to find out if Jessica Mann was being honest
about things…there is no reason why this Court should not allow us to call
Detective DiGaudio, present him before this jury, subject him to direct and
cross-examination regarding the nature of his dealings with Jessica Mann,
telling her to hide evidence…So we think that there is no basis to deny us to
call Detective DiGaudio in order to fully probe what his role was in telling
one of the key witnesses in this case to either destroy or hide evidence.

(T 3434-6)

The court responded, “The application to call him is denied. The application for the

mistrial is denied” (T: 3439-40).

Predictably, the prosecution took full advantage of this limitation imposed

on the defendant by arguing in summation that DiGaudio’s misconduct, about

which defendant was precluded from obtaining evidence by way of Det.

DiGaudio’s testimony or his disciplinary file, was probative of Mann’s credibility:

PROSECUTOR: Now, a New York City detective goes to get the phones
and Jessica expresses fear. She's uncomfortable about all
of her personal information being given away. She
specifically is uncomfortable about naked photos on her
phone. A New York City detective told her something he
probably should not have, definitely should not have. He
said all right, look, delete those things. He never said
delete evidence, he said delete those things, we just won't
tell Joan.
MR. CHERONIS: Objection.
THE COURT: Overruled.

124
 PROSECUTOR: Delete it and we won't tell Joan. After all, Jessica Mann
is providing her phones for evidence with regards to the
defendant. What does Jessica Mann do? A detective is
telling her delete it, don't worry about it. What does she
do? She gets a lawyer, she gives over her phone with full
consent, that is why you are seeing what you are seeing
in this courtroom. She gave you that.
MR. CHERONIS: Objection.
THE COURT: Overruled.

(T: 3772-3)

Defense counsel objected and requested a mistrial, stating, “ For some reason Ms.

Illuzzi decided to actually get into what Mr. DiGaudio probably said or did. As the

Court knows, we asked several times to call Detective DiGaudio, and the State in

their closing argument made representations about what he may have done or

probably did” (T: 3799). The prosecution stated, “what I said about Nick DiGaudio

was that he may have done something wrong, he probably did something wrong,

that is what I said. He was doing something wrong, and that is all I said about

that.” In fact, she said far more, effectively using the court’s shield as a sword.

This is yet one more example in which the court foreclosed the defense from

developing its theory of this case.

The defense was also precluded from presenting evidence to the jury that the

defendant’s impaired physical appearance and his use of a walker was not a ruse

designed to hoodwink the jury as had been suggested in the press and stated by the

prosecutors. Defense counsel stated,

125
 [D]uring jury selection there were some questions about Mr. Weinstein's
physical well-being. It has been reported on incessantly about his walker,
about his ability to stand and walk for extensive periods of time. We may be
seeking to call his surgeon who testified that he did, in fact, have a
laminectomy. That he is, in fact, injured. We are making no argument, nor
will we, that 2013 or 2006 or any of the relevant periods of time throughout
the course of this case that his back or his condition made it impossible for
him to commit the crimes alleged.
(T: 3437)

The court responded, “Stop reading the newspapers.” Defense counsel replied,

“It's got nothing to do with me reading the newspapers. I also asked that you,

during jury selection when they pointed at Mr. Weinstein and said, do you think a

man like this could commit a crime, and they are talking about his physical nature,

they are talking about the fact that he looks [enfeebled] right now. At the end of the

day he is hurt and [enfeebled]. If the jury thinks he is faking it, it could be a

problem. That's why we think it is [relevant] (T: 3438). Even the prosecutor

implicitly acknowledged the relevance of this issue when she stated that the court

should permit her to argue in summation that the walker was a “prop” because

“that is what it looks like” (T: 3505).

The trial court’s decision to run cover for the prosecution when discovery

violations including Brady violations, were uncovered, effectively denied the

defendant his right to present his defense. The prosecutor failed to disclose that

Wulff’s friend, Gloria Busse, recalled that Wulff had gone to lunch with Weinstein

in 2005, contrary to Wulff’s testimony that her association with Weinstein was

126
limited to the two instances she shared with the jury. Although this Brady

violation emerged midtrial and Busse was out of state and refusing to cooperate,

the court denied the defendant even so much as a missing witness charge, merely

allowing the defense to recall Wulff.

More damaging was the prosecution’s failure to turn over Haley’s

roommate’s grand jury testimony before trial, although the court had ruled that the

new discovery rules governed. Thus the defense learned for the first time that Liz

Entin would testify that she was in New York on the night Haley claimed she was

assaulted and that Haley had come directly home to tell her. Obviously, had the

defense known that such testimony was to be given, it would have had the

opportunity to investigate whether Entin, who traveled frequently, was actually in

New York on that date. Again, no consequences beyond the prosecutor’s strategic

advantage followed from this discovery violation.

And, of course, the trial court’s Sandoval ruling was the ultimate denial of

defendant’s right to present a defense, as it deprived him of his right to testify. See

Point II, Supra.

Another example of the trial court’s obstructionist rulings, is the trial court’s

eleventh hour decision not to charge the jury on the tolling provision relied on by

the prosecution to prosecute the defendant for third degree rape, although it had

represented through the entire trial that it intended to do so. Discussed in Point IV,

127
infra, this tolling provision addresses a question of fact as to whether the

defendant, a resident of New York, was continuously outside the state within the

meaning of the statute. By yanking this from the jury, the trial court denied the

defendant his right to present his statute of limitations defense to the jury.

These examples demonstrate the trial court’s unwillingness to permit the

defendant to present any defense to the jury, while permitting the prosecution to

develop a theory of the case that was based on uncharged, salacious allegations and

improper expert testimony.

POINT IV

THE DEFENDANT’S CONVICTION FOR THIRD DEGREE RAPE

SHOULD BE REVERSED AND THE CHARGE DISMISSED AS TIME-
BARRED BECAUSE THE TOLLING PROVISIONS CONTAINED IN CPL
30.10 ARE NOT APPLICABLE TO THE DEFENDANT WHO WAS A
RESIDENT OF NEW YORK DURING THE STATUTORY TIME PERIOD.

Defendant was convicted of Rape in the Third Degree based upon conduct

alleged to have occurred on March 18, 2013. Under the applicable statute of

limitations, the defendant should have been charged with that crime by March 18,

2018. CPL 30.10(2)b. He was not. Rather, the defendant was charged by felony

complaint on May 25, 2018, 68 days after the expiration of the statute of

limitations. The defendant moved to dismiss the charge as time-barred.

128
 The People conceded that the applicable statute of limitations for this

offense was five years, but argued that the tolling provision contained in CPL

Section 30.10(4)a(i) extended the limitations period and justified the filing of the

third degree rape charge. Because the defendant was a New York resident during

the entire pendency of the statutory period, the tolling provision contained in CPL

Section 30.10(4)a(i) did not apply to him. Nor did CPL 30.10(4)a(ii) apply here

because no report of the alleged crime had been made prior to the expiration of the

statutory period and, even if it had been, the defendant’s whereabouts were neither

continuously unknown nor continuously unascertainable with the exercise of due

diligence.

Nevertheless, relying specifically on CPL 30.10(4)a(i), the People claimed

that the defendant “spent over 200 days outside the state” during the applicable

five-year period. People’s Response, September 12, 2018 at page 15. In fact, the

vast majority of those days involved short, roundtrip excursions to and from JFK

airport in New York, where the defendant resided.

The defendant provided the Court with evidence that he was a resident of

New York during the statutory period and argued that CPL 30(4)a(i) does not

apply to New York residents. The Court held that the tolling statute applied

irrespective of Mr. Weinstein’s residence in New York during the applicable

period; the length of travel involved; and the fact there was no attempt to ascertain
129
the whereabouts of defendant during the period at issue. By so ruling the Court

essentially held that all periods of absence (even a day) of a New York resident as

to whom no crime is even reported, toll a statute of limitations in a criminal case.

At trial, the People introduced into evidence defendant’s travel records and

the defense introduced evidence that defendant lived in New York City during the

period of time at issue.32 The Court drafted instructions to the jury concerning the

question of fact as to whether Mr. Weinstein was “continuously” outside the state

within the meaning of the statute, but then decided to remove the instruction from

his proposed charge after the close of the evidence despite a defense objection (T:

3689). In doing so the Court held that the issue was a question of law (T: 3691).

CPL 30.10(4)a(i) is a tolling provision that excludes “any period following

the commission of the offense during which (i) the defendant was continuously

outside this state.” The Court of Appeals has held that this tolling provision

applies to non-residents. People v. Knobel, 94 N.Y.2d 226, 228-230 (1999); see

People v. Cruciani, 63 Misc.3d 226 (Sup Ct NY Co 2019); see also People v.

Chase, 299 AD2d 597, 598-99 (3d Dept 2002); People v. Ferrari, 155 Misc.2d

749, 754 (Co Ct Ulster Co 1992).

“Defendant Weinstein purchased a single family home at 13 Bank Street, New York, New
32

York on July 10, 2006.Weinstein sold the single family home at 13 Bank Street, New York, New
York, on March 27, 2018 (Stipulation T:3485).
130
 The Hon. Mark Dwyer discussed the holding of Knobel in People v.

Cruciani. 63 Misc.3d 226. He noted that CPL 30.10(4)a(i) applies to non-

residents because its intent “is to account for absences that make it difficult to

bring a New York criminal to justice” (Id. at 233), and that it has not been held to

apply to New York residents who depart from New York for even lengthy periods

“that do not, for practical purposes, prevent the authorities from locating them,” or

even New York residents who make only “occasional returns.” Id. Here, the

People’s own submission corroborates the defendant’s status as a resident of New

York and depicts the defendant departing from New York for short periods on

business, often just a couple days at a time, as one who has made New York his

home. Indeed, the People claim that their chart shows that the defendant was not

in New York 264 days over a five year period, an average of about 52 days a year;

traveling accounted for only one-seventh of his time. In all that time, the longest

trip was for no more than 23 days. Only 2 trips were for three weeks (this includes

the 23-day trip); 6 were for about two weeks and the vast majority were for one or

two days at a time. His travel, invariably punctuated by departures and returns to

his home state, do not raise even the specter of the kind of absences that might

convert a resident to non-resident status for purposes of C.P.L. 30.10(4)a(i), and no

New York court has so held. On the contrary, such travel is fairly typical for many

New Yorkers who spend weekends out of state in country homes, and travel for

131
business and pleasure, not to mention those New Yorkers who commute to work in

neighboring states.

In contrast, in Knobel, the defendant was a nonresident of New York and

had only spent 114 days out of 1825 days in New York. The Court emphasized

that “the focus of the tolling provision of C.P.L. 30.10 is ‘the difficulty of

apprehending a defendant who is outside the state.’ Thus, all periods of a day or

more that a nonresident defendant is out-of-State should be totaled and toll the

statute of limitations.” Knobel at 230. This implicitly acknowledges that the

tolling provision presumes an effort by law enforcement that has been frustrated by

a defendant’s absences from the state, as was the case in Knobel. Here, the

defendant is not only a resident, but the vast majority of his trips are for a couple of

days and his travel itinerary depicts a New York resident who leaves and returns to

his residence in New York City. There would have been no difficulty whatsoever

for the People to have apprehended the defendant in the statutory period had they

wanted to. And the People cannot credibly claim otherwise.

For residents of New York, the appropriate tolling provision, if one were to

be applicable at all, is C.P.L. 30.10(4)a(ii) which states that the statute of

limitations can be tolled only when “the whereabouts of the defendant were

continuously unknown, and were continuously unascertainable by the exercise of

due diligence.” But this tolling provision is inapplicable here for two related
132
reasons: (1) The complainant had not reported the alleged crime during the

statutory period and therefore the People cannot credibly claim that they attempted

to locate Mr. Weinstein and were unable to do so during the statutory period; and

(2) The defendant’s whereabouts were neither continuously unknown nor

continuously unascertainable by the exercise of due diligence, especially since Mr.

Weinstein was a public figure whose whereabouts were frequently reported and

whose home address in New York City was a matter of public knowledge.

The Court of Appeals has held that CPL 30.10(4)a(ii) applies to the time

during which the whereabouts or the identity of a defendant remains unknown,

“notwithstanding intense police efforts to identify and find him.” People v. Seda

93 N.Y.2d 307 (1999). However, the tolling provision does not apply during “the

period of time…which the police are unaware of the commission of the offense

itself.” People v Jordon, 43 A.D3d 1076 (2d Dept. 2007); People v. Quinto,

77A.D.3d 76, 85 (2d Dept. 2010) (“CPL 30.10(4)a(ii) does not apply to toll the

statute of limitations for the period of time between when the defendant’s conduct

was alleged to have occurred and the complainant’s report to the police”) . The

statute “carefully balance[s] the general policy in favor of avoiding prosecution of

stale cases against the countervailing policy of ensuring that law enforcement

officers have sufficient time to bring suspected criminals to justice,” by permitting

the People to “benefit from the toll for only those periods during which the

133
defendant’s whereabouts remained unknown and were unascertainable through the

exercise of reasonable diligence.” Seda at 311. Thus, C.P.L. 30.10(4)a(ii) does not

apply here.

Here, the defendant’s whereabouts were known and easily ascertainable

and there was no effort on the part of the People to locate him for the simple reason

that Mann had not made any allegation that a crime had occurred. This is

obviously a different situation from one in which the police are diligently looking

for the perpetrator of a crime either because they cannot locate him or because they

do not know his identity. See People v. Seda, 93 N.Y.2d 307 (1999). And, as

noted above, this was also the case in Knobel in which the police were looking for

the perpetrator of a specific crime (detonating an explosive device) during the

entire pendency of the statutory period. People v. Knobel, 94 N.Y.2d at 227.

In contrast, Mr. Weinstein’s scenario is precisely the situation in which a

statute of limitations is supposed to apply to protect a defendant from stale claims

of alleged criminal conduct never even reported to the police or the People until

after the expiration of the statute. As the Court of Appeals made clear in Seda,

Statutes of limitations serve several purposes -they “protect individuals from

having to defend themselves against charges when the basic facts may have
become obscured by the passage of time”; they “minimize the danger of
official punishment because of acts in the far distant past”; and they
“encourage[e] law enforcement officials promptly to investigate suspected
criminal activity.

134
Seda, citing Toussie v United States, 397 U.S. 112 114-115 (1970).
Even if CPL 30.10(4)a(ii) did apply here, the issue of whether any of Mr.

Weinstein’s trips from New York could be counted as a “continuous” absence

within the meaning of that tolling provision constituted a question of fact for the

jury. The Court’s eleventh hour decision to take this issue away from the jury was,

therefore, error. Accordingly, the third degree rape conviction should be reversed

and that count of the indictment should be dismissed.

POINT V

THE COURT ERRED IN REFUSING TO DISMISS THE PREDATORY

SEXUAL ASSAULT COUNTS THAT WERE PREDICATED ON AN
UNCHARGED, TIME-BARRED SEXUAL ASSAULT ALLEGED TO HAVE
OCCURRED IN 1993, THEREBY PERMITTING EVIDENCE OF THIS
CRIME AND ASSOCIATED MOLINEUX EVIDENCE BEFORE THE JURY
(U.S. CONST. AMEND. VI, XIV; EX POST FACTO CLAUSE)

A. Introduction

As mentioned above, Mr. Weinstein was indicted on five charges. Two of the

counts were Predatory Sexual Assault. In each of those counts, the defendant was

charged with a predicate or aggravating crime. The predicate crime elevated the

severity of the offense to an A-2 felony.

In July of 2018, during an initial presentation to the Grand Jury, the People

went to great lengths to instruct the Grand Jury that it could not consider a first-
135
degree criminal sexual act charge from 2004 as an aggravating crime for purposes

of predatory sexual assault. They likely reasoned at the time that the predatory

assault statute, enacted in 2006, could not be applied retroactively to include

uncharged crimes predating the statute’s passage

By October of 2018, the 2004 charge had been dismissed. The People, in an

effort to bolster their case, bootstrapped a new allegation to an amended bill of

particulars as an “additional offense” for the two counts of predatory sexual assault.

As a result, the new predatory counts were now supported by a 26-year-old rape

allegation by Sciorra, an aging film star—an allegation so old that Sciorra, at trial,

could not remember when it allegedly happened—and so old that the statute of

limitations governing it had expired decades earlier.

Mr. Weinstein, through counsel, moved to strike the amended bill of

particulars on several grounds. The Court agreed that the People had usurped the

function of the grand jury by charging Mr. Weinstein with this crime without having

presented it to the grand jury.

As a result, on August 13, 2019, the People announced that they would be re-

presenting their case to a new Grand Jury so it would have the “benefit of hearing

the testimony of the remaining witness.” By indictment filed 2673/2019 on August

21, 2019, Mr. Weinstein was charged with two counts of predatory sexual assault.

The sole predicate offense for both counts was the 1993 alleged rape of Ms. Sciorra.

136
This course of action left the remaining two counts of predatory sexual assault as

exclusively reliant on the legal propriety of charging the 1993 rape—an allegation

for which there is no dispute that, standing alone, it would be barred by the statute

of limitations. In addition, the crime predates the enactment of the predatory sexual

assault statute, which was June 23, 2006. The defendant again moved to dismiss

these charges as an ex post facto violation because this retroactive application of P.L.

§ 130.95, the predatory sexual assault statute, was improper to revive this time-

barred crime and because the lack of specificity violated due process and fair notice.

The Court denied defendant’s motion, thereby permitting the People to introduce

additional prejudicial evidence that should never have been part of this trial.

The fact that Mr. Weinstein was acquitted of both counts of predatory sexual

assault was small consolation to the defendant. Having heard evidence of a crime

that should never have been permitted at trial in the first place, the jury was thereby

improperly exposed to evidence that most likely led to a compromise verdict.

Sciorra’s testimony was replete with names of famous actors, movies, and

Hollywood lore. Likewise, her friend, Rosie Perez, who testified on her behalf, is

an actress with considerable name recognition.

In sum, these predatory sexual assault charges, like the Molineux evidence

and the first and third degree rapes charges of Mann (insufficient as a matter of law

137
and time-barred, respectively), should not have been part of the trial, and their

admission prejudiced the defendant and denied him a fair trial.

B. Discussion

1. The Predatory Sexual Assault Counts were an Ex Post Facto Violation

Because They Improperly Resurrected a Time-Barred Prosecution.

Article 1, Section 10, Clause 1 of the Constitution to the United States

provides that “no State shall pass any ex post facto law.” For well over two centuries,

the Supreme Court has recognized that the Ex Post Facto Clause applies to criminal

prohibitions. See Calder v. Bull, 3 U.S. 386 (1798). It is equally well-settled that the

Ex Post Facto Clause forbids resurrection of a time-barred state criminal

prosecution. Stogner v. California, 539 U.S. 607 (2003). In Stogner, the Supreme

Court specifically held that “a law enacted after expiration of a previously applicable

limitations period violates the Ex Post Facto Clause when it is applied to revive a

previously time-barred prosecution.” Id. at 632-633.

In Stogner, supra at 612, the Supreme Court also noted that liberty is protected

by preventing governments from enacting statutes with “manifestly unjust and

oppressive” retroactive effects. Citing precedent, it observed that retroactive

application of a recently revised statute of limitations period to time-barred crimes

is “unfair and dishonest,” a denial of “fair warning,” and a failing of the government

“to play by its own rules.” Further, the Supreme Court presciently noted that

138
retroactive laws invite “arbitrary and potentially vindictive legislation,” and “violent

acts which might grow out of the feelings of the moment.” Id. Thus, the Supreme

Court recognized three situations in which retroactive application of a criminal law

is prohibited: (1) where a new criminal limitations period is created; (2) where

prosecutions of previously time-barred crimes are allowed; and (3) where a criminal

statute is passed after the prior limitation periods had expired. Id. at 610; see also

Collins v. Youngblood, 497 U.S. 37 (1990) (recognizing that a statutory increase in

punishment amounts to an impermissible ex post facto law). As will be discussed,

each is present here.

In this matter, the statute criminalizing predatory sexual assault was enacted

on June 23, 2006. In order to satisfy the statute, the People offered proof of a never-

before-charged 1993 first degree rape allegation that had been time-barred since

1998. In plain application, the People used the predatory sexual assault statute as a

means to charge Mr. Weinstein with a crime as to which the statute of limitations

had run. See People v. Burroughs, 108 A.D.3d 1103, 1105 (4th Dept. 2013) (citing

Stogner in recognizing that it is “well established that a change to the statute of

limitations may not be retroactively applied to revive charges that are already time-

barred” and dismissing time-barred sodomy charges).

In 2006, the legislature amended the Criminal Procedure Law to eliminate the

statute of limitations for certain crimes including Rape in the First Degree. In doing

139
so, however, the Legislature specifically provided that this provision only applied to

offenses committed on or after the effective date of the law, i.e., June 23, 2006 (L.

2006, Ch. 3, Sec. 1). The amendment above applied to certain crimes committed

after 2006 and to offenses that were not yet time-barred by the date of its enactment.

Thus, the five-year statute of limitations for Rape in the First Degree (the Sciorra

allegation) that was applicable in 1993 [See C.P.L. § 30.10 (formerly 2(b)], was still

controlling, and required that the charge be brought by 1998. The filing of this

indictment, or even the initial bill of particulars, did not occur until more than twenty

years had elapsed since that benchmark. As such, by attempting to revive a time-

barred prosecution, the predatory sexual assault counts violate the Ex Post Facto

Clause.

Moreover, the additional offense at issue here—the alleged 1993 rape of

Sciorra—is wholly distinguishable from the type of status crimes, aggravating

crimes, or continuing crimes that have historically survived an ex post facto

challenge. To be clear, a conviction for predatory sexual assault in this matter

required the People to prove beyond a reasonable doubt that Mr. Weinstein

committed the predicate crime, i.e., the alleged rape of Sciorra. The statute

indisputably requires that the jury find him guilty of the additional offense—one that

is separate, apart, and entirely distinct from the sex offense formally described in the

indictment itself. See People v Lancaster, 143 A.D.3d 1046, 1048 (3d Dept. 2016)

140
(recognizing that predatory sexual assault requires that the jury find the defendant

guilty of the additional offense).

The New York Criminal Instructions regarding the elements of Penal Law

§130.95(2) cogently recognizes that the additional offense is an individual, isolated,

and indeed separate offense upon which the predatory sexual assault charge is based.

By utilizing this new statutory offense to revive a time-barred charge, these

predatory sexual assault charges amount to an ex post facto violation. The fact that

the statute requires that Mr. Weinstein be proven guilty of an additional, separate

crime as to which there is now no statute of limitations, does not permit the People

to use a time-barred crime to satisfy the requirement of proof beyond a reasonable

doubt of the additional crime. A contrary view would theoretically permit the

criminal prosecution of any time-barred crime, so long as it was prosecuted as a part

of a new law that included additional charges that were not time-barred. There is

simply no precedent for this, i.e., there has not been a single instance in which an

independently time-barred criminal act has been constitutionally revived through the

passage of a new substantive law. And there is simply no justification for allowing

the predatory sexual assault statute to violate this principle.

141
 2. The Predatory Sexual Assault Counts were Applied Retroactively in
the Absence of a Plainly Manifest Legislative Intent, Which Intent
Would Have Been a Constitutional Violation of The Ex Post Facto
Provision.

The crime of predatory sexual assault was enacted on June 23, 2006. See L.

2006, ch. 107, § 1. Nothing in the statute or accompanying legislation indicates a

legislative intent to apply this law retroactively to crimes predating its enactment. It

is a fundamental, axiomatic rule of statutory construction that laws addressing non-

procedural matters cannot be retroactively applied absent a plainly manifested

legislative intent to that effect. As the New York Court of Appeals has stated, laws

dealing with non-procedural matters, such as the provision at issue here, “are not to

be applied retroactively absent a plainly manifested legislative intent to the effect.”

People v. Behlog, 74 N.Y.2d 237, 240 (1989)(quoting People v. Oliver, 1 N.Y.2d

152, 157[1956]).33

33
People v. Weinberg, 83 N.Y.2d 262 (1994) is illustrative of the inapposite scenario where the
New York Legislature did in fact manifest an intent to establish retroactive application. In
Weinberg, the Court of Appeals held that a statute establishing a felony offense of repeated failure
to file a tax return was not applied retroactively and was not an unconstitutional ex post facto law
as applied to a defendant where the first two non-filings occurred before the statute's effective date,
but were not time-barred and, in fact, constituted separate charges in the indictment. Id. at 266-67.
It reasoned that the defendant did not “commit” the offense until the third non-filing, which came
after the effective date of the statute, as the defendant had fair warning that the third non-filing
would result in criminal liability. Id. at 631; see also McKinney's Tax Law § 1802; U.S. Const.
art. 1, § 9, Cl. 3. The Court would not likely have reached this conclusion had the prior filings been
time-barred and had the Legislature not passed a companion bill providing for an immediate, three-
month, one-time-only amnesty period. See id. In other words, even if the tax law was being applied
retroactively, the Legislature’s intent to permit this application was plainly apparent. Indeed, as
the Court noted, the immediate amnesty would have been unnecessary had the new legislature not
intended the new law to apply to the pre-enactment two years of non-filing. Weinberg, 83 N.Y.2d

142
 In People v Partridge, 173 A.D.3d 1769, 1770 (2019), the Fourth Department

provided another clear recognition that the Legislature did not intend to allow for

retroactive application of the predatory sexual assault statute, as it held that

predatory sexual assault crimes are insufficient as a matter of law if the underlying

predicate crime occurred prior to the effective date of the statute.

In sum, the conduct charged in the two counts of predatory sexual assault

consists of an independent crime that is time-barred by the statute of limitations.

This is a distinction that carries critical significance for the retroactivity analysis,

and ultimately, precludes retroactive application of the predatory sexual assault

statute.

Suffice to say, it was manifestly unjust to permit the use of a new statute, i.e.,

predatory sexual assault, to resurrect a long-since time-barred crime. In any event,

retroactive application of the predatory sexual assault statute to revive a time barred

offense violated the Ex Post Facto Clause. The fact that Mr. Weinstein was acquitted

of both counts of predatory sexual assault cannot erase the prejudice that resulted

from the admission of this evidence at trial, especially when combined with the

volume of uncharged bad-act evidence discussed above. Having heard evidence of

at 266. This amnesty bill marks an important distinction between the law at issue in Weinberg and
the instant matter, as no such corresponding manifestation of legislative intent—either by
companion bill or other means—is present here. Moreover, as has been discussed, the prior two
years of non-filings in Weinberg, were prosecuted as separate offenses within the same indictment,
whereas the prior crime at issue here was categorically barred from independent prosecution.
143
a crime that should never have been permitted at trial, the jury was thereby

improperly exposed to evidence that most likely impacted its credibility

determinations concerning the other charges and may well have led to a compromise

verdict.

POINT VI

THE VERDICTS OF GUILT WERE AGAINST THE WEIGHT OF THE

EVIDENCE AND, AS TO THIRD DEGREE RAPE, WAS
INSUFFICIENT AS A MATTER OF LAW

This Court is authorized to review the evidence and reverse a factual

determination on the ground that it is against the weight of the evidence. See CPL

Section 470.15; People v Danielson 9 NY3d 342 (2007); People v Romero, 7 NY3d

633, 636 (2006); People v. Rojas, 80 AD3d 782 (2d Dept. 2011). In performing a

weight of the evidence analysis this Court, while conducting a de-novo review,

sits, in effect, as a “thirteenth juror.” People v Cahill, 2 NY3d 14, 58 (2003).

A review extends not only to the elements of the crime, but also as to questions

relating to credibility. While affording deference to the fact finder’s opportunity to

view the witnesses, hear the testimony and observe demeanor, this Court still must

evaluate the weight, quality and persuasiveness of that testimony and any

conflicting inferences therefrom. In the end, the Court must decide whether, based

144
upon the weight of the credible evidence, the jury was justified in finding the

defendant guilty beyond a reasonable doubt. People v. Danielson, 9 NY3d 342

(2007).

Unlike legal sufficiency, a “weight of the evidence analysis involves a

discretionary balancing of many factors based upon the court’s common sense

reaction to the evidence in light of its collective experience,” People v. Cahill, 2

NY3d 14, 58 (2003), and “if based on all the credible evidence a different finding

would not have been unreasonable, then the appellate court must, like the trier of

fact below, ‘weigh the relative probative force of conflicting testimony and the

relative strength of conflicting inferences that may be drawn from the testimony.’”

People v. Bleakely, 69 NY2d 490, 495 (1987). Moreover, a weight of the evidence

review requires that “even if all the elements and necessary findings are supported

by some credible evidence, the court must examine the evidence further” Id.

quoting People ex rel., McCracken v. Miller, 291 N.Y. 55 (1955), and decide

whether the trier of fact has given the evidence the weight it should be accorded.

People v. Mateo, 2 N.Y.3d 383 (2004).

The defendant was convicted of third degree rape and first degree criminal

sexual act based on the allegations of two women, both of whom had consensual

sexual relationships with the defendant. As it is argued, supra, that the trial court’s

evidentiary and legal rulings concerning expert testimony, Molineux and Sandoval
145
deprived the defendant of a fair trial, it is important to recognize here just how

flimsy the evidence was that resulted in these convictions without considering the

improperly admitted testimony. Accordingly, this weight of the evidence review

will not include testimony by Mann, admitted under Molineux, in which she

alleged that months after the March 18, 2013 incident upon which charges were

based, the defendant raped her in California. Nor will it include the Molineux

evidence permitted by way of minitrials concerning uncharged, non-forceable

sexual interactions with other women, nor, again, the bolstering testimony of the

People’s expert witness, all discussed supra. Instead, the focus here is on

evidence, such as it was, upon which the convictions could have relied.

To begin, the evidence upon which the defendant’s conviction for third degree

rape was based was insufficient as a matter of law, much less did it support the trial

court’s decision to charge first degree rape. These charges and the associated

evidence should never have been part of the trial. Yet, the court denied the

defendant’s motion to dismiss the charges on insufficiency grounds and on statute

of limitation grounds with respect to third degree rape (discussed supra) and,

again, denied the People’s motion for a judgment of acquittal at the close of the

People’s case (T: 2365, 3084). Notably, not even a jury inundated with improperly

admitted, prejudicial evidence was able to find forcible rape based on Mann’s

testimony as none was even alleged.

146
 As for the third degree rape charge which was time barred and for which the

defendant was convicted, the evidence amounted to Mann’s testimony that she had

not wanted to have sex with the defendant on March 18, 2013, but did so anyway.

Mann testified that she was involved in a consensual sexual relationship with the

defendant that began in late 2012 and continued until 2017 – the year negative

reports about the defendant emerged. She decided to have this relationship even

though as early as February 8, 2013, she knew he was married, and Mann thought

a sexual relationship with Weinstein was a good idea because she had “left [her]

religion” and thought he had an “open relationship” with his wife (T: 2327-8).

People who were her friends at the time considered him her “boyfriend” (T: 2335-

6).34 On March 18, 2013, Mann invited the defendant to meet her at a hotel in

New York City. Mann had been seeing the defendant frequently for sex during this

period. When the defendant arrived, Mann met him in the lobby and then

accompanied him to a room in the hotel where they had sex. Incomprehensibly,

she testified that she went with the defendant to the room so that she could

immediately turn around and leave the room and that they quarreled at the door

briefly because she did not want her friends to know about the relationship. She

testified that he told her to take her clothes off and that she did so and then waited

34
None of these people were friends by the time of trial, as Mann was pathologically incapable
of maintaining relationships over time – a symptom of Borderline Personality Disorder. See
below.
147
for him on the bed, unclad, while he went to the bathroom. Upon his return, they

engaged in sexual relations. She did not testify that she resisted by word or deed.

Obviously, she could have simply left while the defendant was in the bathroom,

but chose to remain. Immediately afterwards, they joined friends for brunch in the

hotel (T: 2256-60). This testimony was insufficient as a matter of law to establish

third degree rape, much less first degree rape, which the trial court also charged.

Moreover, the evidence established that Mann’s demeanor immediately after

this triste was nothing if not jovial, as she shared a brunch with the defendant and

two friends in the hotel restaurant. Mann’s former friends, Talita Maia and

Tommy Richards, were not called by the People. Notably neither of these

witnesses had remained friends with Mann, as the evidence reflected that she was

unable to sustain romantic, platonic or familial relationships. Both witnesses

testified that they detected nothing in Mann’s demeanor at lunch that would

indicate that she had just been raped. Indeed, Richards, her traveling companion,

recalled that she asked him if he wouldn’t mind if she stayed on in New York with

the defendant rather than return to California that day with Richards as planned.

Mann’s sexual relationship with the defendant continued unabated. She met the

defendant the very next day before leaving for California at his expense. Less than

a month later, she emailed the defendant, “I appreciate all you do for me. It shows”

(T: 2407-8). Mann, herself, testified that the last sexual encounter she recalled
148
having with the defendant was in 2016 (T: 2383), although she insisted that she

had no memory for dates. The documentary evidence in the form of emails

between the defendant and Mann prove, however, that the relationship continued

through 2017 when Mann, herself, told the defendant that she wanted to be more to

him than a “booty call” (T: 2388, 2299). The People can hardly deny this as they

claim their failure to disclose to the defense that Mann admitted to a long term

consensual sexual relationship involving innumerable, specific incidents of

consensual sex was not a Brady violation because “everyone knew that she had

other sexual encounters with the defendant that were not forced” (T: 2305) from

these very emails. 35 Emblematic of their relationship was an April 27, 2016,

email indicating that Mann met the defendant in a hotel room and another email,

four hours later in which Mann wrote to the defendant, “I feel so fabulous and

35
The defense moved for a mistrial (T: 2387 -88). “What part of the Government's obligations
under Brady don't we understand here. When a witness says I had a relationship with Mr.
Weinstein and describes sexual encounters they are claiming are not forced, how does that not
trigger a duty to turn that over to the defense, and we want that before we begin our cross
examination of Jessica Mann. We are entitle[d] to that and asking for a mistrial based on yet
another discovery Brady violation” (2305-9). The trial court denied the defense motions, refusing
even to require the Prosecutor to disclose Brady material prior to cross-examination of Mann
(2309-10).

And Mann, herself:

Q You never wanted to have sex with Mr. Weinstein.
A No, I did not.
Q Even when you say it was consensual, correct?
A Correct.
Q So you were lying to him every single time you engaged in sexual activity with him that you
didn't want to have?
A There were times where I did pretend to role play with him? (T: 2324-5)
149
beautiful, thank you for everything,” and another in which she told her ex-

boyfriend that the defendant was “everything” to her and referred to having been

raped by someone else! Indeed, there were volumes of emails between Mann and

the defendant during the years of their relationship that depicted a consensual

relationship and none that suggested otherwise (T: 2360). On five separate

occasions over their five year relationship, Mann reached out to the defendant to

give him a new phone number so that he could continue to contact her (T: 2418).

There was compelling evidence that Mann suffered from Borderline Personality

Disorder, that could well explain her trial testimony. Evidence of this fact was

found in her heavily-redacted medical records and her testimony on the stand. In

the fall of 2017, Mann was hospitalized for mental illness. The heavily redacted

medical records of Jessica Mann’s hospitalization indicated that the doctors

believed that a diagnosis of borderline personality disorder was appropriate.

Borderline Personality Disorder is a condition that makes it difficult for a person to

regulate their emotions, and can lead to significant challenges with interpersonal

relationships. A person with Borderline Personality Disorder may lie to distort

reality into something that fits with the emotions they are feeling, rather than the

facts. This describes precisely what Mann did. Angry that the relationship with

Weinstein was not what she envisioned, she distorted it to fit her feelings of

rejection. Mann testified that she thought that her relationship with the defendant

150
was going to be a “real relationship” but it ended up being “degrading “ (T: 2233);

that it became “him wanting to see me and just needing a fix like a drug addict”

(T: 2234-5); and that she felt like she was being “discarded” after she “served her

purpose” (T: 2240). This was also not the first time that Mann had claimed that

she had been raped or otherwise abused, as she also claimed she was raped by

someone in her church in Washington.

Moreover, Mann’s testimony revealed numerous instances of lying and

deceptive behavior toward virtually everyone in her life. Mann hid from her

friends the nature of her relationship with the defendant (T: 2339); hid from

Tommy Richards that she was sleeping with the defendant (T: 2341); lied to her

boyfriend, Eddie, about the nature of her relationship with the defendant; lied to

the defendant about her desire to have sex with him, which she called “role-

playing” (T: 2324-5; 2419); lied to her mother (T: 2439); lied to detectives (T:

2398): pretended to enjoy sex with the defendant, faking orgasms, and telling the

defendant that her orgasm was “the best she ever had” (T: 2343); to name just a

few. These example assume that she was not lying on the stand, of course, which

is a dubious assumption.

Dr. Ziv diagnosed a self-professed rape victim with Borderline Personality

Disorder in her role as a forensic psychiatrist and attributed her finding that the

person lacked credibility directly to that diagnosis. Mann exhibited all the
151
symptoms of this disorder-a long history of failed relationships with friends and

family, self-harm, dissociative behavior (“I do disconnect”), paranoia, emotional

instability (T: 2745-2747), and malingering. This illness seriously calls into

question the propriety of a verdict reliant on the testimony of someone so impaired.

The conviction of first degree criminal sexual act was also based on weak

testimony, that strains credulity. Mimi Haley socialized with Weinstein in the

summer of 2006. In June, Weinstein “kindly offered” to fly her to California. On

July 10, 2006, the evening before Haley was to fly to California, Haley testified

that she went to Weinstein’s apartment. He began kissing her and backed her into

a bedroom (T: 1606) where he engaged in oral sex with her. Haley testified that

she attempted to stop him (T: 1601-02), but then allowed him to perform oral sex

on her, his head between her legs in a vulnerable position. She claimed that she

“endured” it because she thought Weinstein’s driver might be standing guard at the

door ready to prevent her escape. Haley was conveniently unable to recall

important details about her interactions with Weinstein before, during, and after the

incident, that might have shed light on the true nature of the incident, but the

prosecutor’s expert gaslit the significance of Haley’s memory lapses when she

directed the jury that women do not forget what is important or lie about sexual

assault. See Point III, supra. Based on this testimony of a sexual encounter that

occurred 14 years earlier and about which Haley had not come forward until

152
allegations were being made about the defendant in the press, Weinstein was

convicted of first degree criminal sexual act and sentenced to twenty years

imprisonment.

Haley’s subsequent actions do not comport with her claim of assault, nor did

Weinstein’s actions reflect those of a person who had committed a sexual assault.

For her part, her decision less than two weeks later, immediately upon her return to

New York, to meet Weinstein in a hotel room and engaged in consensual sexual

relations with him, was perhaps the most incongruous. Weinstein’s decision to

continue to treat Haley to invitations and amenities reflects that he believed he was

on good, even romantic, terms with Haley. In fact, documentary evidence

demonstrated a consensual relationship between them in which Weinstein was,

inter alia, paying for airline tickets for Haley to travel to California and to London

both before and after these two sexual encounters and efforts by both Haley and

Weinstein to meet up in London later that same summer.

Unlike Mann, Haley had a friend, Elizabeth Entin, who claimed to recall Haley

telling her about the incident in the summer of 2006. Notably, the People did not

turn over Entin’s Grand Jury testimony until after trial had commenced, during the

cross-examination of Haley (T: 1837) and just one day before Entin, herself, took

the stand in violation of the new discovery rules that were in effect and contrary to

the People’s repeated representations to the trial court and in their certificate of
153
readiness that they had met their discovery obligation under CPL 245 and Brady

(T: 1767, 1816-17, 1837).36 Moreover, this late disclosure deprived the defense of

an opportunity to investigate whether Entin’s testimony, that she was in New York

on July 10, 2006, was true.

Entin’s testimony corroborated Haley’s testimony only to the extent that it

mirrored Haley’s public statements about the fourteen-year-old incident. Entin, of

course, had seen Haley in the media doing press conferences and television

interviews with her attorney, Gloria Allred, by her side, so it is not surprising that

her testimony mirrored the story put out by Haley for public consumption in

advance of trial (T: 1814-15). Entin, however, tried to minimize this by claiming

that she didn’t really “pay attention” because she “knew her story” and had friends

who had been on television before (T: 1815).

Beyond the version of events put out by Haley for public consumption,

Entin’s testimony revealed that she knew little, if anything, about Haley’s

relationship with Weinstein and chose to fill in the gaps with details that she

thought would be helpful. For instance, she claimed that Haley worked for

Weinstein for five months (T: 1804) and that Haley told her that she went to the

apartment on July 10, for work.(T: 1800, 1811) In fact, Haley worked for the

36
Entin’s Grand Jury testimony reflected for the first time, inter alia, that Haley had a boyfriend
that summer who stayed in their apartment often.
154
Weinstein Company a mere two or three weeks (T: 1567) and was no longer

working for Weinstein when she initiated further social interactions with

Weinstein. She testified that Haley told her that she went to the defendant’s

apartment and “he started rubbing her shoulders, kissing her, and she said no, no;

and then he wouldn't stop. And she said I'm on my period, and he said I don't care;

at which point he threw her down and she was still saying stop. And he pulled off

her underwear, pulled out her Tampon, and went down on her while she was

saying no” (T: 1800). She testified that she told Haley that it sounded like rape and

that she should call a lawyer (T:1800). This was, of course, the story that Haley

had told in press conferences and on television prior to trial, and therefore one that

anyone could have repeated.

She claimed that Haley changed after this happened, became “withdrawn,”

“more nervous, significantly less vital,” and spent a lot more time in her room (T:

1801-02). In reality, Haley traveled to California the following day, spent two

weeks there (T: 1809), came back, met Weinstein for sex, and almost immediately

left for London for good. Hence, there was no period of time when Entin would

have observed that Haley had changed. Moreover, Entin did not know anything

about Haley’s relationship with the defendant, not that she pursued him and met

him for drinks, not that he flew her to California (T: 1820), not that she slept with

him a second time; not that he flew her to London (T: 1809, 1817). Thus, this

155
witness provided weak corroboration for this version of events, which was well-

publicized prior to trial.

The rest of the evidence at trial involved expert testimony, Molineux

evidence, and evidence of time-barred charges addressed in Points II-V, supra.

Without the voluminous improper and prejudicial evidence, it cannot be said that

the jury would have found the defendant guilty on this thin evidence.

If an appellate court concludes that there has been such error on the part of

the trial court as to have operated to deny any individual defendant his fundamental

right to fair trial, it must reverse the conviction and grant a new trial without regard

to any evaluation as to whether the errors contributed to defendant's conviction.

People v. Crimmins, 36 N.Y.2d 230, 237-238 (1975). In any event, as the evidence

in this case was far from overwhelming, there exists the very real danger that the

jury improperly considered the evidence against the defendant cumulatively. Id.

See People v. Harris, 51 A.D.2d 937 (1st Dept. 1976); see also People v. Littlejohn,

125 A.D.2d 710, 710–11 (2d Dept. 1986). Accordingly, the judgment must be

reversed and a new trial ordered.

156
 POINT VII

THE DEFENDANT’S SENTENCE WAS UNDULY HARSH AND

EXCESSIVE

The defendant was sentenced to consecutive terms of twenty and three years

of imprisonment, as well as, five years of post-release supervision, for his

convictions of Criminal Sexual Act in the First Degree [Penal Law Section

130.50(1)] and Rape in the Third Degree [Penal Law Section 130.35(3)]. We

submit that the sentence was unduly harsh and excessive under all circumstances.

Although trial courts are afforded discretion in imposing sentences for

convicted criminals, “[a]n intermediate appellate court has broad, plenary power to

modify a sentence that is unduly harsh or severe under the circumstances.” People

v. Delgado, 80 N.Y.2d 780, 783 (1992). The court’s sentence review power may be

exercised in the interest of justice, even where a trial court has not abused its

discretion. People v. Suitte, 90 A.D.2d 80,86 (2nd Dept. 1982).

A sentence should reflect the four widely accepted objectives of criminal

punishment: deterrence, rehabilitation, retribution, and isolation. People v. Notey,

72 A.D.2d 279, 282 (2nd Dept. 1980). In addition to the four objectives of

punishment, the trial judge should be guided “by the criterion that a minimum

amount of confinement should be imposed ‘consistent with the protection of the

157
public, the gravity of the offense and the rehabilitative needs of the defendant.’”

People v. Notey, 72 A.D.2d 279, 282-83 (2nd Dept. 1980).

In assessing the proper sentence, the law has consistently recognized the

significance of the defendant’s background, including his or her employment

history, respect for the law, and upbringing. See People v. Kuramura, 148 A.D.2d

331, 331 (1st Dept. 1989) (finding that defendant’s sentence was unduly harsh in

light of the fact that the defendant was 35 years old at the time of sentence, had a

history of gainful employment, and had no prior arrests or convictions). The

defendant’s current circumstances are also relevant; it is widely accepted in New

York that “the punishment should fit the offender and not merely the crime.”

Williams v. New York, 337 U.S. 241, 247 (1949); see People v. Johnson, 252 N.Y.

387, 392 (1930).

Sadly for Mr. Weinstein, the trial court’s sentence reflects not on Mr.

Weinstein, the man, and the conduct for which he was convicted, but on Mr.

Weinstein the media villain. We ask that this Court consider whether a 68 year-old

man by any other name, with no criminal record, a lifetime of professional

contributions in his field; an unparalleled history of charitable work; and serious

medical conditions would have been sentenced so harshly for acts that involved no

violence and no injury to the complainants, and where both complainants

continued to have voluntary sex with the defendant. We think not.

158
 Without rehashing the evidence in this case, it is important to recognize that

in the more than fourteen instances admitted in evidence by the trial court of some

form of sexual conduct by the defendant, ranging from requests for massages and

sex to actual sexual interactions, not a single one involved actual violence or a

threat of violence. Not a single complainant nor any woman who has ever accused

Mr. Weinstein in the press ever claimed physical injuries or sought medical

attention for any such injuries. Moreover, the time-barred third degree rape for

which Mr. Weinstein was convicted is a nonviolent offense and the jury

specifically rejected the charge of first degree rape in connection with that incident,

having obviously determined that there was no forcible compulsion involved. In

addition, the jury rejected the time-barred charge of forcible rape that was

improperly used as a predicate charge, as evidenced by its acquittal on both counts

of predatory sexual assault.

Thus, the sentence of twenty years hinged on the first degree criminal sexual

act conviction against Haley fourteen years ago. A less “forcible” incident of

forcible sex is difficult to imagine. Haley said that she visited Weinstein at his

apartment where he kissed her, maneuvered her into a bedroom and held her down

as he put his mouth on her vagina and that she “endured” it because she thought

Mr. Weinstein’s driver might be standing guard at the door ready to prevent her

escape. Haley met Weinstein at a hotel for sex less than two weeks later. For this,

159
Mr. Weinstein received twenty years imprisonment, fifteen years more than the

minimum sentence permitted and just five years less than the maximum allowable.

We submit that on these facts alone, no man whose name is not Harvey

Weinstein would have been sentenced so harshly. As pointed out by the defense at

sentencing, according to the New York State Corrections and Community

Supervision Division report based on 2018 statistics, the mean sentence for a

conviction wherein the top count is the same as here, is 8 and a half years, and this

mean takes into account sentences for repeat felons whose crimes involve weapons

and injuries (S: 31). Obviously the mean is much lower for first time felons. In

fact, Judge Burke himself had sentenced a defendant, less than eighteen months

earlier, who was convicted of first degree rape based on far more egregious

behavior, to a sentence that was twelve and a half years more lenient than the

twenty year sentence imposed here for first degree criminal sexual act (S: 33-35).

Indeed, Mr. Weinstein was sentenced more harshly than many defendants

convicted of homicide. These facts alone reveal the injustice of this sentence,

more reflective of “mob justice” than it is of any punishment consistent with

fairness.

In addition, Mr. Weinstein’s sentence was excessive given his employment

background, philanthropic efforts, and family history. Mr. Weinstein grew up in a

lower-middle-class family in Electchester, which is a rent-controlled community

160
opposite the city projects of Pomonok, Queens. He attended John Bowne High

School and subsequently began his college education at the University of Buffalo.

When Mr. Weinstein’s father passed away, he dropped out of the University of

Buffalo in order to support his family. Years later, Mr. Weinstein received an

honorary degree from the University of Buffalo.

In his career, Mr. Weinstein produced films that brought exposure to the

difficulties of individuals who were deprived of equal opportunities. For example,

in The Butler (2013), Nelson Mandela’s Long Walk to Freedom (2013), and

Fruitvale Station (2013), Mr. Weinstein raised awareness of racial injustices. Mr.

Weinstein focused on mental illnesses such as bipolar disorder in Silver Linings

Playbook (2012); childhood trauma in Good Will Hunting (1997); speech

impediments in The King’s Speech (2010); and disfigurement in The English

Patient (1996). In 1997, he drew attention to antisemitism and fascism in Life is

Beautiful (1997). Additionally, he was involved in the production of documentary

films that shed light on important societal ills, such as the healthcare crisis (Sicko,

2007); wrongful convictions (Thin Blue Line, 1998); and sexual assault on campus

(The Hunting Ground, 2015). Mr. Weinstein received numerous LGBT awards and

accolades for his film Bully (2011), which exposed the tragic effect of bullying in

schools. In short, Mr. Weinstein’s films engendered empathy and recognition for

those who are victimized by injustices and for those who suffer disabilities that

161
society has stigmatized. Ironically, this case is an example of what can happen

when society chooses to stigmatize an individual and fairness is swept aside.

In addition to producing influential films, Mr. Weinstein has also been an

avid philanthropist, supporting more than 20 charities in New York City and

around the world. In 2001, Mr. Weinstein organized the Concert for New York,

which raised $100 million for firemen, policemen, first responders, and others who

suffered tragic losses as a result of 9/11. When hurricane Sandy hit in 2012, Mr.

Weinstein organized a charitable concert and raised $77 million for its funds for its

victims, including those who lost their homes and businesses. Moreover, Mr.

Weinstein was on the board of Robin Hood, a charitable foundation the mission of

which is to alleviate suffering caused by poverty and disasters in New York City.

That organization raised $2.5 billion dollars for projects, schools, vocational

programs, shelters, help for the homeless, and the provision of care for the poor.

Additionally, Mr. Weinstein donated $1 million of his personal money and was

actively involved in Paul Newman’s Hole in the Wall Gang charity which provides

medically supervised summer camps and programs free of charge to children with

serious illnesses.

Mr. Weinstein’s philanthropic efforts extended beyond borders. He was one

of the early organizers of AMFAR, an AIDS organization that raised over $170

million over the course of twenty-five years at the Cannes Film Festival in France.

162
He also organized two events for Nelson Mandela, raising millions of dollars for

The Nelson Mandela Children’s Fund. The fund seeks to help victims of the AIDS

crisis, focusing its attention on individuals up to age twenty-two, with a special

focus on orphans. Active on issues of poverty, AIDS, juvenile diabetes,

and multiple sclerosis research, Mr. Weinstein dedicated significant efforts to

alleviate suffering, even as he attained enormous professional success in film

production.

Currently, Mr. Weinstein is sixty-nine years old. He was married to his

former wife, Georgina Chapman, for ten years. They have two children, ages seven

and ten years old. Despite their divorce in 2018, Mr. Weinstein continued to share

custody of his young children with Ms. Chapman until he was remanded to state

prison. Mr. Weinstein also has three adult children, ages eighteen, twenty-two and

twenty-five, from his previous marriage of seventeen years to Eve Chilton. Mr.

Weinstein deeply loves all of his children.

Finally, Mr. Weinstein’s sentence was excessive in light of his fragile health

status. Mr. Weinstein suffers from a number of serious medical conditions and has

been under the care of numerous doctors for the past few years. He currently takes

approximately twenty different medications. See Medical Records filed with the

court.

In December of 2019, Mr. Weinstein underwent a bilateral laminectomy as a

163
result of injuries he sustained in an automobile accident in August 2019. The

surgery was unsuccessful. Mr. Weinstein endures spinal stenosis, peripheral

neuropathy, and a drop foot, and requires further back surgery to ameliorate these

afflictions.

In addition, Mr. Weinstein suffers from diabetic retinopathy resulting from

his long-term diabetes. He has wet macular degeneration in his left eye which

requires close monitoring and intravitreal injection every four to eight weeks. Mr.

Weinstein has begun to lose sight in this eye because he has not received the

necessary injections; failure to monitor and treat this condition can result in

blindness. Mr. Weinstein’s also suffers from severely impaired vision in his right

eye, which requires surgery for a cataract.

After the verdict and prior to sentencing, Mr. Weinstein was transferred

from Rikers Island to Bellevue Hospital where he underwent cardiac surgery. He

was given a stent but continues to suffer from an enlarged aorta and an enlarged

prostate.

Mr. Weinstein’s health has significantly deteriorated since incarceration and

it is no exaggeration to say that his current sentence is not merely life

imprisonment, but a death sentence.

164
 CONCLUSION

The foregoing demonstrates that Mr. Weinstein convictions should be

reversed, the third degree rape charge dismissed as time-barred, and a new trial

ordered on the single count of first degree criminal sexual act based on the July 10,

2006 incident. In particular, the evidence that Juror No. 11 repeatedly lied to the

court about matters material and relevant to her fitness to serve on the jury is

indisputable, and deprived Mr. Weinstein of his constitutional right to be tried by an

impartial jury in whose selection he was effectively denied a voice. Nothing is more

basic to the criminal process than that right. U.S.C.A. Const. Amends. 6, 14;

McKinney's Const. Art. 1, § 2. People v. Johnson, 94 N.Y.2d 600 (2000). Moreover,

the plethora of evidence of other alleged crimes and bad acts admitted at trial and

made fair game pursuant to the inclusion of time-barred and legally insufficient

charges and the Court’s Molineux and Sandoval rulings, respectively, violated Mr.

Weinstein’s right to be tried only on the charges for which he was indicted, and to

testify on his own behalf. U.S.C.A. Const. Amends. 5, 6, 14. Finally, the scope of

the expert testimony on rape and the trial court’s refusal to permit expert testimony

by the defense on the very subjects about which it permitted the prosecution’s expert

to testify deprived the defendant of his constitutional rights to a fair trial and to

present a defense. U.S.C.A Const. Amends. 6, 14.. These constitutional violations

mandate a reversal on both convictions and a dismissal of the charge of third degree

rape.

165
Dated: April 2, 2021
New York, New York
AIDALA, BERTUNA &
KAMINS, PC
By:

BAf§g=
JOHN LEVENTHAL, ESQ.
DIANA FABI-SAMSON, ESQ.
Attorneys for Defendant
Harvey Weinstein
546 Fifth Avenue, 6th Floor
New York, New York 10036
(212) 486-0011
judgekamins@aidalalaw.com
judgeleventhal@aidalalaw.com
diana@aidalalaw. com

166
 PRINTING SPECIFICATIONS STATEMENT

I hereby certify pursuant to 22 NYCRR 1250.8(j) that the foregoing brief was

prepared on a computer using Microsoft Word.

Type. A proportionally spaced typeface was used, as follows:

Name of typeface: Times New Roman

Point size: 14
Line spacing: Double

Word Count. By Permission of the Court, the total number of words in this brief,

inclusive of point headings and footnotes and exclusive of pages containing the table

of contents, table of citations, proof of service and this Statement is 43,368.

Dated: April 2, 2021

New York, New York
 STATEMENT PURSUANT TO CPLR § 5531

New York Supreme Court

Appellate Division—First Department

PEOPLE OF THE STATE OF NEW YORK,

Respondent,

– against –

HARVEY WEINSTEIN,

Defendant-Appellant.

1. The indictment numbers of the case in the court below

are 2335/18 and 2673/19.

2. The full names of the original parties are as set forth

above. There have been no changes.

3. This proceeding was commenced in Criminal Court,

New York County.

4. The action was commenced by the filing of an

indictment.
5. The nature and object of the action involves Criminal
Sexual Act in the First Degree and Rape in the Third
Degree.

6. This appeal is from a Judgment of Conviction, rendered

March 11, 2020 which sentenced Defendant to
consecutive terms of twenty and three years
imprisonment and five years post-release supervision.

7. This appeal is on the full original record.

  
 
 
 
 
Notice of Appeal
SUPREME COURT OF THE STATE OF NEW YORK .
APPELLA TE DMSION : FIRST niDICIAL DEPARTM ENT
------- ------- -- ------- --X
THE PEOPLE OF THE STATE OF NEW YORK, •.
NOTICE OF APPEAL
._against-
Ind.: 2335/2018
HARVEY WEINSTE IN, 2673/20l9

Defendant

------ ------ ---X

SIRS:

PLEASE TAKE NOTICE, that the defendant HARVEY WEINSTE IN, hereby
appeals to the Appellate Division ofthe Supreme Court, First Judicial Departmen t from the
judgment of conviction rendered against him on the 11th day of March, 2020, convicting him
of Criminal Sexual Act in the First Degree and Rape in the Third Degree and said defendant
appeals from each and every part of said judgment of conviction and sentence thereon, as
well as from the whole thereof.

Dated: NewYork ,NewYork

March 12, 2020

AIDALA,-ES~.
orney for Defendant
46 sth A venue, ()th Floor
New York, New York I 0036
(~12) 486-0011

TO: CYRUS VANCE

District Attorney
N:ew Yorlc Cmmty

].
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: FIRST JUDICIAL DEPAR1ME NT
--------------------------------------------------------------------){
THE PEOPLE OF THE STATE OF NEW YORK, AFFIDAVIT OF SERVICE

- against- Ind.: 2335/2018

2673/2019
HARVEY WEINSTEIN,

· Defendant.
--------------------------------------------------------------------){
STATE OF NEW YORK )
ss.:
COUNTY OF KJNGS )

I, CHRISTINA PESCE, being duly sworn, deposes and says:

That I am not a party to the action; I am over 18 years of age and reside in Kings County,
New York.

That on April 3, 2020~ I served the within NOTICE OF APPEAL via electronic email
transmission on the following:

NEW YORK COUNTY DISTRICT ATTORNEY

Email address: appealsmtns@dany .nyc.gov

DATED: New York, New York

April 3, 2020

Sworn to before me this

3rd day of April, 2020

DOMENIC K-NAP;;;"
. ~=----
Notary Public St OLETANO
R . · ate of New y k
eg Jstration #02NAso or
O~a/ified In Kin 43030
Comm 1ssion E . gs County
XPires May 1 , 20
  
 
 
 
 
Uniform Sentence & Commitment
 !IN I FORM SENTE NCE & COMM ITMllN T
UCS-854 (1012018)
SJ'ATli OF NEW YORK
Court Part: 99
S(Jl'RE MI' -----·C OURT , COUNTY OF NIC_W YQRI~---·--··---· Courl Heporte r: RANDY BERKO WITZ
l'RI'SfN T: liON JAMFS BIJRI(] i'
' ' - " ..
----- --·
""" -·· -- -- - -- - ' S lpl'rio•· Ct. Cnse #: 2335-2()18
-·-- --- --- --- --
The Peottle of the State of New York
~VSw Aceusato-:_y Instrument Chargc(s):
HARVEY WEIN STEI I CRIVI ~EX ACT I* --
N
2 ---------
l>efendant
M 03/1911952 065811382 4 _ _ _ __
SEX D.O. fl. NYSID NUMIH<:H CHI MIN AL JUSfiC E
TRACKING NUMillm
Date(s) ofOffe11sc: 07/10/2006
to
THE ABOVE NAMED DEFENDANT HAVING BEEN CONVIC
TED BY I 0 I'L!'A OR ®VER DICT I. THE MOST SERIOU
I® n:LON Y OR 0 MISDE MEAN OR OR 0 YIOLA TION S OFFENSE BEING A
I, IS IIEREBY SENTENCED TO:-~---~--
Crim~------ Count La-~ Section n~;-1--- SJ\~1--Mi~-~;;;-;- M:1ximu
rn ----
No. Subdivision Post-Hclensc
Hate ol' Period Term Supervision
Terror
1CRMS EXAC r I*_ _ _ _ _ 2 _ _ _ ! __ _ years _ _ years Years _5__ years
2_llAP~ 3* 5
J ___ _
_____ i ------ years ___ years Years _5__ years
'
4_ _ _ _ _ _ _ _ _ _ _ __ ; - - years _ _ years years
,--ye ars __ye ars years
5·--- ------ ····--- ---·-· ---- __ years ___ years years
** NOTI~:. For CI~~~~-~TESI~NTI~NCl•: imposed, ~~~'::'J
lOI~~ing perio~~~-!.'~ST-ru•:L~Sl~SUPlmVISION ~
1

b~lndie:~ted [PL § 70.45J.

0 Counts ·-···--- ------- shall run CONCUIUU<:NTLY with
each other IZ]count(s) _2____ __ shall run CONSJ<:ClYfiVELY to count(s)
D Sentence imposed herein shall run CONCURRENTLY with ____: __ _
, and/or CONSI~CUTIVELY t o - - - - - · - - - - - - -
0 Sentence imposed herein shnll include a CONS ECUT IVE--
--- term of I 0 PROBATION OR Q CONJ)ITIONAL DISCHA
Interlock Device condition. !hat shall commence upon the defendan RGE/, with an Ignition
t's release from imprisonment fPL § 60.211
0 Conviction includes: WEAPON TYf•E· - - - - - - - - - - - - - - - - - a n d / o
r DRUG TYPE:
0 Charged as: 0 an AOOLiiSCENT OFFENI>Im ICPL § 1.20(44)
I OR 0 a .]{)VENILE OFFENI}I\Jl ICPL § 1.20(42) 1- age
·------
on crime date :----
0 Adjudicated a YOUTHFUL OFFENDER JCPL § 720,20j
0
Court certilicd the Dc!Cndnnt a SI~X OFFENDER JCor. L § 168~dJ
0 Execute as a sentence of PAROL E SUPERVISION JCI>L § 410.91/
0
CASAT ordered (PL § 60,04(6)/
0 Re·sentenced as a PROBATION VIOLATOR JCI)l § 410.70!
0
SHOCK INCAHCERATION ordered IPL § 60.04(7)1
·Os d osccon d osecon d oseeon dDrug oPredic atcSex D~;~?icdateScx
Asa. 'ccon Violent Drug _ _e_~ eyr F()
osecnn dChild OP ..
·.t·! oPcrsis tent FgLON Y
1
w/prior VFO Offender Sexual Assault
wwnor · e•sts en Violent OFFENIJER
Paid Not Paid Oefencd (TfdeH:m:~d. court must lile wriucn order
[C'/'L § •120.40(5)}) Pllid Not Paid Defe1·red (lfdcfem:d. coUl1 must rile w1'itten order
0 ® fCPL § 420.40(5)])
0 Mundatory Surcharge $300 ·~-~--- 0 ® 0 Crime Victim Assistance Fee
0 0 0 $._2_5__.0_0_____
$~ ___ ___ _____ __
5 0 00
Fine 0 0 0 Restitution $.= =-- -
0 ® 0 DNA Fee 0
_'f; ® 0 Sex OITcnder Registration Fee
~O~--O~-~O=._~D~W:I~/00 t,:che'Cr'-''=====~$=====--J~Oc!.___®~·~-~O $50.00

TIIF.IlF.FF.NI)ANT SHALL BE ANI) HEilF.BY IS COMM ilTim

:{. __::S~ulf'!'P:"Ie:"m~e:"nt~ai~S~ex~lft: Victim Fee$T,001l:Oo_ __
TO TilE CUSTOilY OFTIIIC:
® NYS Department of Corrections and Comlmmity Supervision (NYS DOCCS) until
released in accordance with law, and being a person sixteen (16) yNlrs
sentenced to a period ofincurccration in excess o/' one (I) year UQl!lWli.C or older
:n1Lyjn.11.le.c!IS1o.d,}!.DlN.Y..S_OOC£'S, the 10 COUNT Y SHERIF F
CIT\' DEPAHTMENT OF CORRECTION] is directed to deliver OR ®NEW YORK
the defcndnntto the custody ofNYS DOCCS as provided in 7 NYCRR
0 NYS Department of Corrections and Community Supervision (NYS DOCCS) Part 103.
sentenced to u period of incnrccration in excess of one ( 1) year plll.ScntJ until released in accordnnce with law, and being a person sixteen (16)
years or older
yjn .tll!Ud!&o
0 Sheriff to be lodged in a place certified by the Ofncc ofChildrcnnnd Family Servicessly_of.N.YSJ20.CCS.. defendant sha!l remain in the custody ofNYS DOCCS.
detention facility lOr okler youth in accordance with law, being on Adolesce and the State Co111mission on Corrections as o specialized secure juvenile
nt Offender sentenced ton term of incarceration of one (1) year or Jess.
0 NYS Office of Children and Family Services to be lodged inn jwenile detention
l'<lcility for the reception of children, but suQject to transfer to the NYS
Department of Corrections nnd Conlmunity Supervision (NYS DOCCS)
. in accon.luncc with Jaw, being a Juvenile Offender nt the time the
0 crime was committed.
County Jaii/CorrcctiouaJ f-acility
TOllE HELD UNI'IL Til£ JUDGM ENT OF TillS COIIRT Commitment, Order of
IS SATISF IED.
REMARJ<S: !::'fEDICl\J." ATTEN TJON_ REQUI RED Protection & Pre·Sentcnco
Rcporl received by Cmrectitm al
Authority ns indicnltl!J:
--- --- --- --- - --·· ·--- --
· - - - ---
JJre-Scntencc Investig ation Rcpm·t Attache --- --- --- --- --- --- --- --- ---
d: ®YES 0NO 0Amcn dcd Corn Jjtrncnt:
Order of Prote-ction Issued: OYES ®NO
Order of Jlrotcction 1\Uached: 0 YES ®NO
Origmal Sente
!Ju1)<Jte - - -
. '
I
03/1112020 MILTO N TINGL ING
--- --- ---- ---
Dute
SENIOR CT CLERK
Clcr·k of the Court
Title