Experts urge Trump's hush money judge not to replicate Harvey Weinstein trial missteps

The judge overseeing former President Donald Trump's criminal hush money trial received a warning Tuesday centered on another high-profile New York City defendant: Hollywood mogul Harvey Weinstein.

The warning to Judge Juan Merchan issued by Brennan Institute analysts Brianna Seid and Lauren-Brooke Eisen of the New York Court of Appeals decision to overturn Weinstein’s sex-crimes conviction and what it might mean for Trump's trial.

According to the legal analysts, both cases hinge on the question of "past bad acts."

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"The court said that [Weinstein's] trial judge made two critical errors," Seid and Eisen write. "First, he allowed the jury to hear too much about Weinstein’s alleged prior sexual assaults, which were not among the charges and tainted the jury’s opinion. Second, by allowing the prosecutors to question Weinstein about certain alleged prior misconduct if he chose to testify, the trial judge created an unfair disincentive for the movie mogul to take the stand in his own defense."

This of course drew a swift comparison to Trump's trial which parallels Weinstein's in several ways.

Both cases were brought by Manhattan District Attorney Alvin Bragg to tried in New York City and both feature powerful male defendants and allegations of their sexual encounters.

The Brennan institute analysts drew another comparison: "As in the Weinstein case, mention of prior misconduct could play an important role in the trial."

Seid and Eisen both conclude that Weinstein's 2020 case "hinged on whether the jury believed that that the victims of his sexual assaults did not consent."

Prosecutors, they argued, went too far calling several Weinstein accusers claiming he sexually assaulted them "even though Weinstein wasn’t being charged for these encounters."

That's why scholars applauded Merchan's "carefully calibrated" rulings, such as his decision not to let into evidence the wholesale "Access Hollywood" recording.

"In Trump’s case, the prosecutors will not call witnesses to testify about his past misconduct — the judge has only permitted them to question Trump himself on prior bad acts, if he chooses to testify," they write. "Even if an appeals court decides this decision is erroneous, it will be just one erroneous decision with less prejudicial effect on the jury, compared to the Weinstein case, which had two."

Ultimately, the analysts argued Merchan's decisions could have a long lasting impact on criminal law.

"While the Trump trial is ongoing, if he is convicted it is likely that the former president will appeal," they conclude. "Nevertheless, the ruling will likely have a lasting impact on how prosecutors, defense attorneys, and judges handle prior acts of misconduct — charged and uncharged — for years to come."

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