New Weinstein Trials: The MeToo Dilemma

Former film producer Harvey Weinstein was convicted of sexual assault and rape by the New York Supreme Court, Criminal Term in 2020. This specifically concerns two cases: a rape in 2013 and a sexual assault in 2006.

In the spring it became known: Harvey Weinstein’s “appeal” – in German terms more of an appeal – against his conviction in New York for sexual assault and rape was successful. The New York Court of Appeals overturned the decision because of serious procedural errors by allowing testimony and questions about unindicted acts and moral lapses. From the prosecution’s perspective, these additional statements were intended to demonstrate a pattern of abusive behavior by Weinstein and to clarify his propensity for these acts.

Both judgments also caused considerable excitement in Germany. Weinstein’s 23-year prison sentence was initially celebrated as a breakthrough and milestone in the fight against sexual violence. After the appeal ruling, one could read that the #Me Too movement had “failed,” that the justice system had “failed to protect the victims,” and that #Me Too criminal cases could not actually be won in testimonial-versus-testimony situations . It will now be very difficult to protect yourself against abuse of power in relationships of dependency.

For many reasons, these fears seem remote for the German #Me Too movement – why?

What happened?

The first instance court (New York Trial Court) had admitted so-called Molineux witnesses, i.e. witnesses who reported sexual assaults by Weinstein, but those that were not the subject of the accusation (for example because they were time-barred facts or non-criminal behavior). ). Four of the seven judges of the New York Court of Appeals saw this as a violation of the so-called Molineux rule, a principle based on a ruling from 1901. According to this rule, witness statements about acts not accused in the proceedings are only permitted in exceptional cases. In the Weinstein trial, the jury was unduly influenced by hearing such witnesses; You appreciated evidence that shouldn’t have played a role here. This in turn violated Weinstein’s right to a fair trial.

What relevance can be given to witness statements on matters that have not been indicted?

Essentially, it is also about the question of whether statements from witnesses who cannot provide any information about the accused crimes can be used as evidence of the accused crime. In other words: the accused is an incident in the hotel room in 2020, testified by witness A. May I hear witnesses B, C and D about incidents in the hotel room from 2015, 2018, 2019 and include them in the assessment of evidence because the events are similar and could show a recurring pattern of behavior and certain tendencies?

The peculiarities of the US jury system

This is viewed differently in New York than it is here. Why?

According to the American understanding of the state, it is not a judge, but a jury of citizens – unforgotten: “the twelve jurors” – who should make the decision about the guilt of a defendant. The collection of evidence – that is, evidence that is presented to the jury as a basis for its decision – is the responsibility of the prosecution and defense. In the US trial, the public prosecutor’s office appears as a “pure” accuser, that is, only with an interest in incriminating the case, while the defense presents exculpatory evidence as the opposing party. Both aim to convince the jury of “their version of the truth”. The judge, in turn, is “only” an arbitrator here; His job is, among other things, to accept evidence as admissible or not and thus ensure a fair trial. It is intended to ensure that the lay jury is not unduly influenced by a partisan prosecution and defense – against this background, strict and very formalistic rules of evidence emerged, including the Molineux rule.

The criminal trial in Germany

A lot of things are different in Germany. German criminal procedure law relies on the objectivity and expertise of the judge. He is solely responsible for researching the truth and he basically decides what evidence is to be collected. If additional evidence is required from the public prosecutor’s office and defense, they can submit corresponding applications, the admissibility of which will be decided by the court. In contrast to US criminal proceedings, the German public prosecutor’s office acts as a neutral body in the administration of justice; it also has to take into account and present evidence that exonerates the accused.

Consideration of “negative character witnesses” in German criminal proceedings?

The court is obliged to clarify the facts as best as possible and to use all possible evidence – with increased due diligence in testimonial-versus-testimony situations. And in Germany – in clear contrast to the Molineux rule in New York – there is no question that it may not only be permissible, but even mandatory to hear witnesses about similar, unaccused events or, for example, to indirectly acknowledge a relevant previous life . And of course – always assuming that the evidence is validly collected – it can make a difference and must be taken into account accordingly whether someone is accused by one or more people of having committed an assault in a hotel room.

At the end of the main hearing, the court decides on the guilt of the defendant “according to its free conviction drawn from the entirety of the trial”.

In Germany, the subject of a review by an appeal court cannot be directly whether the court should have admitted certain evidence, but rather only whether the reasons for a judgment were presented in a comprehensible and consistent manner and whether other obvious sequences of events were not overlooked. Against this background, a verdict could also be reversible if, for example, a court were to base a conviction solely or largely on previous convictions for similar crimes – a very unlikely constellation given real court practice.

Impact of the New York ruling on the #MeToo movement in Germany?

Given all this, does the ruling of the New York Court of Appeals have any impact or consequences for the #Me Too movement in Germany?

No. As is well known, the USA and Germany have different jurisdictions, in, as explained in detail above, very different legal systems, with very different rules. For this reason alone, it is not clear why a judgment from the USA should have any concrete impact on court practice in Germany. Regardless: There is no Molineux rule in Germany – on the contrary, evidence of “side events” can and sometimes even has to be collected.

Fears that the #Me Too movement has “failed” because of the New York ruling are also rather unfounded.

What’s next for Weinstein?

In New York, the public prosecutor’s office would like to reopen the case against Weinstein in November – despite the current lack of clarity about his health. According to press reports, not only the crimes accused in the original proceedings will be the subject of the proceedings; New/additional witnesses are also said to have agreed to testify.

Molineux witnesses will probably not be able to be heard in the new trial; But that doesn’t mean that this trial has to end in an acquittal. On the contrary: the public prosecutor’s office will present new charges and new witnesses. Things could end even worse for Harvey Weinstein.

Especially with a view to another trial in California. Here, a court of first instance sentenced Weinstein to 16 years in prison in February 2023; He also appealed this, citing, among other things, the New York annulment ruling. A decision on this is still pending – the Molineux Rule definitely does not apply in California. In fact, the American states have very different procedural regulations – there is no uniform US criminal procedure law. It remains to be seen whether Weinstein’s lawyers in California can raise other grounds for an annulment.

Dr. Simone Kampf is a partner in the areas of white-collar defense and global investigations and head of the white-collar criminal law department for the Central Europe region at Freshfields Bruckhaus Deringer

Jennifer Loeb is a partner in White-Collar Defense and Global Investigations at Freshfields Bruckhaus Deringer in Washington DC and Silicon Valley

Dr. Lea Babucke is an associate in the areas of white-collar defense and global investigations at Freshfields Bruckhaus Deringer in Düsseldorf and New York