Harvey Weinstein’s Upcoming Retrial Takes Form as Judge Decides on Jury Evidence

NEW YORK—Harvey Weinstein’s retrial set for next month will be primarily a streamlined version of the original trial, featuring one significant addition: a new charge stemming from allegations made by a woman who was not involved in the initial case.

During a crucial pretrial hearing on Wednesday, Weinstein’s defense team warned that since his 2020 conviction for rape and sexual assault was annulled, prior events hold little relevance.

“We can take that transcript and all the judge’s rulings and throw them in the garbage,“ argued Arthur Aidala, Weinstein’s lawyer. “That trial was deemed illegal by the highest court in this state.”

Last year, New York’s Court of Appeals nullified Weinstein’s conviction, paving the way for a retrial in Manhattan. In September, an additional charge was introduced following claims from a third accuser. The trial is poised to commence on April 15, with prosecutors estimating it will last around five weeks.

On Wednesday, Judge Curtis Farber began to outline how the retrial might unfold, ruling on various outstanding matters, including expert testimony and terminology pertaining to the accusers.

What Issues Were Before the Judge?

Farber approved a prosecution request to call psychologist Dawn Hughes as an expert witness regarding the psychological and traumatic aftermaths of rape and sexual assault. Hughes had previously provided testimony for actress Amber Heard during Johnny Depp’s libel trial in 2022 and served as a prosecution witness in R. Kelly’s federal sex trafficking trial in Brooklyn in 2021.

The judge also granted a defense request to disallow the use of the term “survivor” when discussing Weinstein’s accusers. He instructed prosecutors to ensure that any police officers testifying refer to the women as “complaining witnesses” instead.

Even though Weinstein’s convictions from the prior trial were overturned, his acquittals on the most serious charges—two counts of predatory sexual assault and first-degree rape—remain valid.

In light of this, Farber instructed the prosecution to advise one of the accusers not to use the term “force” when recounting her alleged assault.

The Manhattan district attorney’s office sought to keep references to Weinstein’s acquittals and the overturned conviction out of the proceedings, but Farber indicated he may need to include them depending on the accuser’s testimony.

“Does she have to use the word force? She can describe what happened and let the jury draw its own conclusions?” the judge inquired. “I am not asking her to alter her previous testimony. I am requesting that she abstain from using the word force.”

Several decisions were made behind closed doors, as Farber conducted private discussions with the prosecution and defense for over an hour. Topics included a prosecution motion to permit two of the three accusers to testify about separate alleged encounters with Weinstein and deliberations over the accusers’ sexual histories, which prosecutors argue should be excluded under New York’s Rape Shield Law.

Weinstein in Court

Weinstein, 72, attended the court session on Wednesday, arriving in a wheelchair and suit, holding a collection of documents. Before the public hearing commenced, he observed as Farber spent a few minutes attending to another matter that arose from their private discussions.

In his last court appearance in January, Weinstein urged Farber to expedite the retrial.

He expressed to the judge, “I don’t know how much longer I can hold on,” citing his ongoing cancer treatment, heart issues, and difficult conditions at New York City’s Rikers Island jail complex. Farber noted that he may conduct jury selection a few days earlier if a murder trial he is managing concludes ahead of schedule.

Weinstein faces retrial concerning charges that he forcibly performed oral sex on a production assistant in 2006 and raped an aspiring actor in 2013. The new charge, filed last September, claims he forced oral sex on a different woman at a Manhattan hotel in 2006.

Prosecutors stated in court filings that the unnamed woman contacted them just days before the commencement of Weinstein’s first trial but was not included in that proceeding. They did not pursue her allegations after Weinstein was convicted and sentenced to 23 years in prison, but revisited them and obtained a new indictment after his conviction was overturned.

In October, Farber ruled to consolidate the new indictment with the existing charges for a single trial.

Weinstein’s defense asserts that the prosecutors acted to prejudice him by delaying nearly five years to present the new charge, suggesting that they chose not to include this allegation in his earlier trial so they could utilize it later should his conviction be annulled.

Weinstein has consistently denied any accusations of rape or sexual assault.

In vacating Weinstein’s prior conviction, the Court of Appeals determined that trial judge James M. Burke improperly permitted testimony against him related to allegations from other women not involved in the case. Burke has since been removed from the bench, and such testimony will not be included in the retrial.

Weinstein was additionally convicted in Los Angeles in 2022 for another rape, resulting in a 16-year prison sentence, which remains intact; however, his legal team appealed in June, claiming he did not receive a fair trial.