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California law allowed prosecutors to establish a pattern in Harvey Weinstein's trial

MARY LOUISE KELLY, HOST:

In our legal system, juries are usually asked to draw only on the facts of the case before them. But in certain states, that does not apply to cases involving sex crimes. California is one of those states where prosecutors may attempt to establish a pattern of past behavior. And yesterday, a Los Angeles jury convicted the disgraced movie mogul Harvey Weinstein of rape and sexual assault, his second trial for sex crimes. Jane Manning applauds that California legal code. She is the director of the Women's Equal Justice Project and a former sex crimes prosecutor. Jane Manning, welcome.

JANE MANNING: Thank you so much, Mary Louise.

KELLY: So the verdict yesterday - Harvey Weinstein convicted on three of the seven charges he faced. What's your broad-strokes reaction?

MANNING: Broad-strokes reaction is that this was a split verdict. And it's important to know that for the three survivors who didn't hear a guilty verdict, who had hung juries, those juries were hung 10 to 2 for conviction, 8 to 4 for conviction. So a substantial majority of the jurors were convinced beyond a reasonable doubt that they did believe these survivors. I think that's important to take note of.

KELLY: So to our central question, as I mentioned, California law did allow prosecutors to bring up past accusations against Weinstein. What impact do you think that may have had?

MANNING: It's hard to say what impact it had in this one particular case. But in general, I think it's a really important rule. New York has a very different rule, which is that if someone is on trial for sexual assault and has a long history of prior even convictions for sexual assault, that evidence almost never is revealed to the jury. In Harvey Weinstein's case, the judge applied a narrow exception that is rarely used, and I think he applied it correctly. It's not available in...

KELLY: In New York, we're talking.

MANNING: That's in New York. And so in most New York state cases, that kind of evidence of the defendant's similar crimes is usually not available. In California, it usually is available. And I think that's a better rule because I think this evidence is important.

KELLY: And why? Why are sex crimes different from other crimes, in your view?

MANNING: Well, in sex crime cases, the victims and the prosecution still face a really uphill battle in the sense that victims aren't just working against the prosecution's burden of proof beyond a reasonable doubt, which applies in all cases. But in sex crime cases, victims are also working against biases and stereotypes. You may have heard these referred to as rape myths - the idea that if someone goes into a guy's hotel room, she must be consenting to sex, even if there are business transactions being regularly conducted by that guy in his hotel room, the idea that a real victim fights back, that a real victim reports to the police right away.

All of these things are false, but they are stereotypes that a lot of people believe. And so victims of sexual assault have an extra hurdle in being believed when they testify in court. For that reason, I think it's fair in a sex crime case and important in a sex crime case to allow the jury to hear what is ultimately very probative evidence, that this person who is on trial has a history of doing the same thing to other people.

KELLY: It's fascinating because as you have, yourself, acknowledged - you just wrote about this in an op-ed for The New York Times - prosecutors are supposed to, and I'll quote your words, "they're supposed to hold people accountable for their bad acts, not their bad reputation."

MANNING: Yes.

KELLY: How tricky is it to draw the line to avoid prejudicing a jury?

MANNING: California has safeguards to make sure that the jury understands how to draw the line. So the jury is told, you shouldn't even consider this prior bad act evidence unless you're convinced that that evidence is true. And once you're convinced of that, you can take it into account, but, ultimately, you still should not convict the defendant unless you are convinced beyond a reasonable doubt of his guilt of the trial charges. And what the Weinstein jury in California showed and also the jury in New York showed is that jurors are very conscientious about following that instruction. Both juries deliberated for many days. They asked for testimony to be read back. And both juries returned verdicts that convicted Harvey Weinstein on some counts and acquitted him on some counts. So they were careful and discerning in their verdict.

KELLY: Right. In the 30 seconds or so we have left, I gather you are hopeful that the outcome in both these trials involving Harvey Weinstein may persuade more states to adopt the California model?

MANNING: I do hope more states will adopt this model. I think it's very relevant evidence. Juries have shown us that they can handle it. And right here in New York, Assemblywoman Amy Paulin has introduced a bill that would do just that. I hope it'll be passed.

KELLY: We've been speaking with Jane Manning. She directs the Women's Equal Justice Project. Jane Manning, thank you.

MANNING: Thank you.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

Mary Louise Kelly is a co-host of All Things Considered, NPR's award-winning afternoon newsmagazine.