Harvey Weinstein at the Manhattan Criminal Court on Feb. 24, 2020, in New York City.

JOHANNES EISELE/AFP/Getty Images

With an appeals court overturning Harvey Weinstein‘s conviction in New York, all eyes are now looking toward the integrity of a California judge’s decisions that led to a Los Angeles jury’s verdict finding him guilty of rape.

Weinstein’s fate may rest on a key distinction between the two states in cases dealing with sexual assault: California allows courts to introduce evidence that demonstrate a defendant’s propensity to commit sex crimes, even when the allegations haven’t led to formal charges. New York, meanwhile, only allows such evidence solely when it’s necessary to provide history on a defendant’s motive, intent or common scheme to carry out the alleged crimes.

If New York prosecutors fail to secure a conviction in a retrial, that subtle difference could swing whether Weinstein, 72, is released from prison or likely spends the majority of the remainder of his life behind bars. Legal observers who spoke with The Hollywood Reporter said that the disgraced movie mogul’s upcoming appeal of a guilty verdict in the L.A. trial faces long odds.

“It’s very hard, almost unheard of, for a case to be reversed on the basis” of the introduction of so-called uncharged bad acts witnesses testifying about a defendant’s inclination to commit sex crimes, says Halim Dhanidina, a former prosecutor for the Los Angeles District Attorney’s Office who served a stint on the California Courts of Appeals.

Joshua Ritter, a criminal defense attorney and former L.A. prosecutor, echoes that sentiment, saying that California law is “much more favorable to the introduction of this type of evidence” that demonstrates propensity. He adds, “Weinstein will raise those same issues on appeal, but he’ll have a more difficult pathway given the landscape of the law.”

On Thursday, New York’s highest court overturned Weinstein’s 2020 rape conviction in a landmark ruling that some may call a referendum of the shortcomings of the #MeToo movement. A seven-judge panel of the state Courts of Appeals, in a 4-3 decision, found that the “trial court erroneously admitted testimony of uncharged, alleged prior sexual acts” in what amounted to an “abuse of judicial discretion.”

In a press conference, defense attorney Arthur Aidala said, “You can’t throw out 100 years of legal precedent because someone is unpopular.” He also stressed Weinstein’s inability to testify because of the introduction of unrelated allegations, some of which dated back decades, that the appeals court found “portrayed defendant in a highly prejudicial light.”

Prosecutors had argued that testimony from the witnesses showed Weinstein’s “state of mind to use forcible compulsion” against his accusers and his “understanding of their lack of consent.”

It remains unknown whether the New York District Attorney’s Office will pursue a retrial. If it doesn’t, he’ll likely be transferred to a California prison, which he could be released from if he succeeds on appeal. He’ll challenge a Los Angeles jury in 2022 finding him guilty of three counts — forcible rape, forcible oral copulation and penetration by foreign object — against Jane Doe No. 1, who has come forward as former Russian model Evgeniya Chernyshova. In a mixed verdict, the jury acquitted him of sexual battery by restraint against another accuser, while it deadlocked on charges related to two others.

The conviction, which resulted in a 16-year sentence delivered by Judge Lisa Lench, largely turned on testimony from the four women who accused Weinstein of raping or sexually assaulting them from 2004 to 2013. During the trial, four others also testified that they were assaulted, though their allegations didn’t lead to formal charges. In total, prosecutors called 44 witnesses to the stand to make their case.

Weinstein’s appeal, which is largely expected to mirror his motion for a new trial, will likely raise arguments on the allowance of so-called uncharged bad acts that he’ll argue improperly biased the jury against him. He’ll have to tackle a statute in the California evidence code explicitly permitting such evidence to support arguments that he had a tendency to commit sex crimes.

During the trial, defense attorney Alan Jackson urged jurors to ignore their testimony. The prosecution “wants to use this evidence to pile onto Harvey Weinstein,” he said. “It has nothing to do with the actual evidence in this case.”

Typically, justices on appeals courts defer to lower courts’ findings on this issue, even when they would’ve barred the evidence if they were overseeing the cases. They only overturn convictions when there’s an abuse of discretion. “Reviewing courts are very deferential,” Dhanidina says.

In Weinstein’s L.A. trial, there were four witnesses who testified about charged crimes, while another four testified about uncharged crimes.

“That’s not uncommon to see in sexual assault cases,” Ritter says. “You’ll even see cases where it’s one charged victim but several uncharged victims testifying of prior bad acts. That’s part of why the L.A. case was so powerful.”

Still, there are cases in which trial courts were found to have abused their discretion. In People v. Jandres (2014), an appeals court found evidence of an attempt to kidnap a child wasn’t relevant to a rape charge. In People v. Harris (1998), evidence of a prior violent rape was inadmissible for the purposes of proving a defendant raped an accuser who couldn’t consent.

Among the controversies with the allowance of uncharged bad acts is that it allows prosecutors to circumvent the grand jury process to convene a trial on charges brought by prosecutors.

Part of the appeals court’s review will consider the subject matter of testimony from the uncharged witnesses. Unlike in the New York trial, they all testified about alleged sexual assaults by Weinstein. Ambra B., who met Weinstein at Radio City Music Hall in 2015 and was urged by her agent to take a meeting with him, said in court that she reported him to law enforcement after he allegedly groped her breasts and put his hand up her skirt.

“There’s broad discretion to decide what 1108 evidence came in,” says David Ring, a lawyer for Chernyshova, referring to the state statute allowing evidence of a defendant’s disposition to commit sex crimes. “We’re highly, highly confident the California conviction will be upheld.”

Dhanidina stresses, “It’s a fairly steep climb for Weinstein in California” and that “there would have to be a different basis to overturn” the verdict.

That could come in the form of the court prohibiting Weinstein to show the jury texts that he said would’ve impeached Chernyshova’s credibility. They were what Jackson called “sexually explicit” messages between her and Pascal Vicedomini, the founder of the film festival she was attending where she was raped by Weinstein. The defense had argued the purpose of introducing the texts into evidence was not to show her “promiscuity,” which is discouraged in sexual assault cases, but rather to establish her whereabouts the night she was assaulted. “You can’t believe her because she was somewhere else,” Jackson said, adding that there were a “cascade of errors that deprived Mr. Weinstein from a fair trial.”

Lench said that she considered the texts but that they don’t “make her testimony false.”

An alternative solution could’ve been to offer an instruction for jurors to ignore whether the texts indicated any sort of sexual behavior and to consider them solely for the purpose of establishing her location during the night she was assaulted.

Another issue that may come up on appeal includes whether Weinstein was improperly barred from cross-examining Chernyshova on alleged financial motives for reporting the assault to law enforcement. Jackson had argued that her “credibility was on extremely thin ice” with jurors.

If Weinstein is able to evade a conviction in New York, he may move to reduce his sentence stemming from the L.A. trial. Lench, who could’ve given him as many as 18 years in prison, sentenced him to the higher end of the maximum term because of his prior guilty verdict. The Los Angeles District Attorney’s also cannot revisit its decision not to retry Weinstein on three charges that had resulted in a deadlocked jury.

Notably, the entirety of Weinstein’s remaining convictions stem solely from Chernyshova amid the dozens of women who’ve accused Weinstein of sexual assault.

“When the L.A. case started out, I told her that when all is said and done, there’s a chance you’re the only victim who got a conviction against Weinstein,” Ring says. “That’s how important this case was.” 

The Hollywood Reporter doesn’t typically name people who say they were sexually assaulted unless they voluntarily come forward. Several of the women who testified against Weinstein have disclosed that they were assaulted.