In Sex Crimes Cases, New York Weighs Allowing Evidence of Prior Bad Acts

When New York’s top court threw out Harvey Weinstein’s conviction on felony sex crime charges last month, the ruling hinged on a strategic decision by the prosecution: using testimony from women who said that they were sexually assaulted by Mr. Weinstein, but whose allegations were not part of the trial.

The goal was to use Mr. Weinstein’s so-called prior bad acts to establish that he was a serial sexual predator. But the move backfired. The court ruled that Mr. Weinstein, who had been sentenced to 23 years in prison, had been denied a fair trial because the witnesses had served to “diminish defendant’s character before the jury.”

Now, a group of New York lawmakers wants to change state law to explicitly allow prosecutors to use evidence of prior bad acts in sex crimes cases.

The lawmakers, Michael Gianaris, the Senate deputy majority leader, and Amy Paulin, an assemblywoman, announced the proposed legislation at a news conference on Thursday. The bills would allow evidence of previous sex crimes to be admitted in court to show a defendant’s “propensity to commit that act,” Mr. Gianaris said.

The legislation would go into effect immediately if passed during this session, Mr. Gianaris said, which means it could be applied to Mr. Weinstein’s retrial, which prosecutors said could take place this fall.

In 1994, Congress passed a statute that allowed federal prosecutors to use similar testimony in sexual misconduct cases. Evidence related to past conduct was no longer inadmissible, but it could still be found to be hearsay or prejudicial, according to Stephen Schulhofer, a criminal justice lawyer and professor at N.Y.U. Law School.

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