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Who are prior bad acts witnesses, and how can they warp a trial?

We all know someone who’s been accused of something that took us by surprise. Maybe it’s a friend. Maybe it’s a co-worker or a celebrity we’ve idolized. Whoever it is, the accusation doesn’t seem to fit. “My favorite celebrity would never do that,” we think. But then other people come out of the woodwork and make additional accusations. They add up, and we think, “Maybe he did it after all.”

In the case of Harvey Weinstein, who is likely no one’s favorite celebrity at this time, we may soon see a lot of these additional accusations made at trial. As ABC News reported, Weinstein has been charged with sexually assaulting two different women, but the jury may hear from as many as six. The prosecution likely hopes the extra witnesses will reveal patterns in Weinstein’s behavior. But there’s a good chance they’ll do more than that. They might also warp the trial.

Helping or harming the cause of justice?

You don’t have to like Weinstein or doubt his accusers to ask if the trial judge would be serving the cause of justice by allowing all six women to speak. In fact, the testimony presented by the four “prior bad acts” witnesses could easily tilt the outcome. The odds are that’s the goal, and ABC notes that both the prosecution and defense have likely learned from Bill Cosby’s conviction.

In Cosby’s case:

  • He faced charges from just one woman
  • When only one prior bad acts witness testified, the jury deadlocked, unable to find him guilty beyond a reasonable doubt
  • When five prior bad acts witnesses testified at his retrial, he was convicted

ABC said the jury was asked to consider the accuser’s credibility, and each of them found her credible. It’s unclear how much the prior bad acts witnesses added to her credibility.

The problem is that even when defense attorneys can point to the lies and patterns of falsehood among these different witnesses, their testimony can add up. Especially in sexual assault cases. Jurors might doubt one or two, but they’re likely to think, “They can’t all be lying.” And that’s not necessarily justice. Justice should be based on the facts of the case and an evaluation of the charges.

The importance of character witnesses

Weinstein’s defense reportedly plans to challenge his accusers’ statements by revealing emails that showed warm feelings after the alleged assaults. This means the prosecution will want witnesses to support the accusers’ credibility, but if the jury convicts Weinstein, will it be for the two assaults of which he’s accused? Or would it be for the six assaults the jury might hear about?

At Kammen & Moudy, our attorneys understand the importance of witness testimony. We understand the ways testimony—even bad testimony—can affect a jury. No innocent person should be convicted of a crime due simply to the number of people giving testimony, so we use every tool at our disposal to keep the playing field level.

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