THE LAW OFFICES OF

DAMON M. CHERONIS
140 South Dearborn, Suite 411
Chicago, IL 60603

(312) 663 4644
(312) 277 1920 Fax
www.cheronislaw.com

January 27, 2020
Via Electronic Delivery
Judge James M. Burke
Supreme Court, New York County
Part 99
jburke2@nycourts.gov
CC: Ms. Joan Illuzi-Orbon, Esq.
New York County District Attorney’s Office
One Hogan Place
New York, New York 10013
IlluzziOrbonJ@dany.nyc.gov
Re: People v. Weinstein: 2673 / 2019, 2335 / 2018
Dear Judge Burke,
I am writing in reference to my client, Mr. Harvey Weinstein, in order to supplement the previous
oral motions for a mistrial and objections made during opening statements and the People’s direct
presentation of evidence beginning on January 22, 2020. It should be noted that the claimed errors
were raised in accordance with C.P.L. § 470.05(2) in that they are being raised “at the time of such
ruling or instruction or at any subsequent time when the court had an opportunity of effectively
changing the same.” See also People v. Cantave, 21 N.Y.3d 374, 378 (N.Y. Ct. App. 2013).
Opening Statement
First, after opening statements, the defense moved for a mistrial on the grounds that the prosecutor
repeatedly and consistently utilized inflammatory rhetoric to describe Mr. Weinstein during the
course of its remarks, improperly utilized headshot photographs of the complainants and Molineux
witnesses, and also improperly placed before the jury a photograph of Mr. Weinstein and former
President Bill Clinton. Counsel reincorporates those arguments by reference. See Tr. 1108.
Lance Maerov
On January 22, 2020, after opening remarks, the People called its first witness, Mr. Lance Maerov.
Prior to his testimony, the People proffered to the defense that Mr. Maerov was simply being called
as an introductory witness to describe Mr. Weinstein’s position in the entertainment industry.
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 Despite that proffer, Mr. Maerov testified over objection, inter alia: that Mr. Weinstein had strong
opinions and was an aggressive businessman who insisted on doing things a certain way (Tr. 109091); that Mr. Weinstein made no secret of his powerful connections, including to presidents,
politicians nationwide, the Clinton family, and that he made a point of discussing those connections
(Tr. 1092-93); that he would regularly threaten litigation, including against Mr. Maerov himself (Tr.
1094-95); that he was a large man, imposing figure, and very loud (Tr. 1095-96); that he was very
charming in public but his private persona was “diametrically opposed” (Tr. 1096); in charge of a
company with an extremely “investor unfriendly” board (Tr. 1097); and that Mr. Weinstein was
angry when Mr. Maerov received authority over Mr. Weinstein in the company (Tr. 1097-98). Based
on this extensive, improper testimony, and the Court’s overruling of all objections thereto, the
defense moved for a mistrial. Tr. 1114; see C.P.L. § 280.10(1) (mistrial must be declared where “an
error or legal defect” prejudices the defendant and deprives him of a fair trial). The prejudicial error
that arose as a result of Mr. Maerov’s testimony was that it effectively—through the People’s very first
witness—allowed the People to introduce a substantial amount of improper proof of other crimes or
bad character evidence.
Where the prosecution seeks to admit Molineux or Sandoval evidence, the procedure outlined by the
Court of Appeals should be followed, in which the “prosecutor seeking to introduce Molineux
evidence should ask for a ruling out of the presence of the jury . . . and . . . any hearing with respect
to the admissibility of such evidence should occur either before trial or, at the latest, just before the
witness testifies.” People v. Lawrence, 141 A.D.3d 1079, 1080 (N.Y. App. Div. 2016) (internal citations
and quotations omitted); see also People v. Small, 12 N.Y.3d 732, 733 (N.Y. Ct. App. 2009); People v.
Ventimiglia, 52 N.Y.2d 350 (N.Y. Ct. App. 1981). Thus, “Molineux evidence is presumptively
inadmissible unless it is relevant to some material issue in the case and the trial court determines in
its discretion that the probative value of the evidence outweighs the risk of undue prejudice to the
defendant.” People v. Frumusa, 29 N.Y.3d 364, 369 (N.Y. Ct. App. 2017) (emphasis added). This
presumption is firmly grounded in strong, centuries-old policy concerns meant to ensure every
defendant’s right to a fair trial:
The Molineux rule is based on policy and not on logic . . . It may be logical to conclude from
a defendant's prior crimes that he is inclined to act criminally, but such evidence is excluded
for policy reasons because it may induce the jury to base a finding of guilt on collateral
matters or to convict a defendant because of his past.
Id. (internal citations omitted); see also People v. Cass, 18 N.Y.3d 553, 560 (N.Y. Ct. App. 2012)
(holding that the trial court must weigh the “potential for undue prejudice to the defendant”).
The above-referenced testimony by Mr. Maerov constituted improper character or propensity
evidence. It lacked probative value entirely, aside from the value it contained insofar as it constituted
proof of Mr. Weinstein’s bad character or propensity to commit crimes. Further, this evidence was
not offered pursuant to the procedural protections required by Molineux, Ventimiglia, etc., as no
application was made prior to Mr. Maerov testifying, no permission was given, and no notice was
provided to the defense in any form before Mr. Maerov testified. And had it been—although the
failure to make a proper application is reason enough for a mistrial—it should have been barred, as
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 again, it contained no inherent value outside of its propensity-based rationales, would otherwise tip
the Court’s prior careful balancing of the proper amount of Molineux evidence as compared to the
charged crimes, and thus prove substantively admissible. A mistrial is therefore required.
Testimony Regarding Complaining Witnesses Childhood Trauma
In its opening statement, the prosecutor made numerous comments referencing the childhood abuse
suffered by some of its complaining witnesses that it intends to elicit over the course of this trial. For
example, the prosecutor was permitted to describe Miriam Haley’s “tough childhood” over
objection, and the fact that “she experiences a lot of domestic abuse, leaving home at an early age to
fend for herself.” Tr. 979. As another example, the prosecutor was again allowed to describe over
defense objection the fact that Jessica Mann was “raised in the evangelical church in a small dairy
town in the state of Washington,” and that “[s]he, like Miriam, had a tough, abusive, childhood and
left home at the age of 16 to fend for herself.” Tr. 994. Prior to Ms. Sciorra testifying, the defense
again moved to preclude the People from eliciting any such testimony. The People’s comments in
its opening statement, and the Court’s denial of the defense objections and application, constitute
further grounds for a mistrial.
“Relevant evidence” is defined as “evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” People v. Davis, 43 N.Y.2d 17, 27 (N.Y. Ct. App. 1977). Evidence is
not admissible unless it is relevant. See People v. Serrano-Gonzalez, 146 A.D.3d 1013, 1015 (N.Y. App.
Div. 2017).
These comments, and with stronger reason the forthcoming evidence, lack relevance, are wholly
prejudicial, and ultimately, entirely improper. Based on counsel’s research, the only situations in
which the prosecutor is generally allowed to put forth prior abuse suffered by complaining witnesses
in sexual abuse cases is those where the defendant was personally responsible for causing that abuse.
See, e.g., People v. Levasseur, 133 A.D.3d 411, 411 (N.Y. App. Div. 2015) (“[t]he court properly
exercised its discretion in admitting limited evidence of uncharged crimes that was probative of
defendant's motive and that tended to complete the victim's narrative, provide background
information explaining the abusive relationship between defendant and the victim, and to place the
behavior of both defendant and the victim in a believable context”); People v. Sanchez, 54 A.D.3d
638, 639 (N.Y. App. Div. 2008) (“[t]he court properly admitted evidence of defendant's uncharged
prior attacks on the victim”); People v. Dunn, 47 A.D.3d 503, 503 (N.Y. App. Div. 2008) (evidence
of defendant’s aggressive and controlling behavior towards victim admissible); People v. Santiago, 295
A.D.2d 214, 215 (N.Y. App. Div. 2002) (probative value of evidence of defendant’s uncharged
crimes towards victim outweighed their prejudicial effect).
Here, the People have already discussed, and with the Court’s continued permission will further
elicit, testimony of abuse and hardship suffered by the complaining witnesses many years and in
cases decades prior to meeting Mr. Weinstein. Such testimony serves only to inspire sympathy for
the complaining witnesses, leading the jury towards deciding the disputed issues based on emotion
rather than logic, constitutes improper bolstering, and ultimately, prejudices Mr. Weinstein to a far
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 greater extent than the probative value it carries, if any. Indeed, it is Mr. Weinstein’s intent that the
jury will ultimately be required to consider. As such, these comments and related evidence are
improper, and constitute further grounds for a mistrial.
Hearsay Concerning Annabella Sciorra’s Contact with Members of the Media in 2017.
During her direct examination, Ms. Sciorra testified to discussions she had with the media in 2017.
For example, in explaining why it was obvious to her that “Seth” was working for Mr. Weinstein,
she stated that, “[b]ecause by that date I had been reached by three other journalists and I knew the
story was coming out and people were trying to find out information.” Tr. 1195. Shortly thereafter,
Ms. Sciorra stated that, in October of 2017, she spoke to a journalist she had previously spoken to
in March of 2017, and that she told this journalist what happened with Mr. Weinstein i.e. the sexual
assault she testified extensively regarding. Tr. 1196. The defense objected repeatedly to this line of
questions, both prior to and during Ms. Sciorra’s testimony, as well as making a further application
at the first break. See Tr. 1198.
Additionally, on her re-direct examination, Ms. Sciorra was permitted to testify that she told
numerous friends what happened over the last 30 years, including Rosie Perez and Joanne
Goulberne. Tr. 1313.
First, Ms. Sciorra’s statements constituted improper hearsay evidence. See Nucci v. Proper, 95 N.Y.2d
597, 602 (N.Y. Ct. App. 2001). Statements made decades after an alleged rape do not in any way
constitute a prompt outcry. See People v. McDaniel, 81 N.Y.2d 10, 16 (N.Y. Ct. App. 1993); People v.
Rosario, 17 N.Y.3d 510, 511 (N.Y. Ct. App. 2011). And it is not even subject to reasonable debate
that these statements could be admitted in Ms. Sciorra’s direct examination in order to rebut a claim
of recent fabrication—Mr. Maerov was the only witness to have been previously cross-examined, and
his testimony made no specific reference to Ms. Sciorra whatsoever. See Rosario, 17 N.Y. 3d at 514.
Furthermore, these references to 2017, a forthcoming “story,” three journalists contacting Ms.
Sciorra, etc. once again implicates the dozens of allegations of sexual misconduct and/or other bad
acts that came to light with respect to the Me-Too Movement that are not at issue in this trial. This
testimony, then, further served as a means for the People to backdoor additional improper other
crimes evidence, and thus, should have been precluded. The erroneous admission of this evidence
thus requires a mistrial.
People’s Exhibit 51 & Related Exhibits
Over objection, the People was permitted to introduce into evidence an email obtained from The
Weinstein Company servers with partial contact information for Ms. Sciorra. Tr. 1297. This exhibit
was introduced during Ms. Sciorra’s re-direct examination, and she was permitted to offer further
comment on this exhibit. Id.1

1

The People were also permitted to move into evidence additional emails with the same concerns over
defense objection. See Tr. 1330.
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 Given the fact that how Mr. Weinstein was aware that Ms. Sciorra lived in a specific 17th floor
apartment unit in that building is at issue, the defense would not dispute the theoretical relevance
of this evidence—on the condition that it were able to establish this email existed prior to the alleged
assault—it had not done so—there was no foundation that this email existed in 1993 or 1994, and
obviously, email communication were not even widely in use until years later.
The parties have also generally stipulated to the business records requirement for any and all emails
tendered in the course of discovery in this matter. That stipulation, allays only hearsay concerns—it
does not in any way satisfy any other applicable rule of evidence.2 In other words, hearsay is not the
only grounds on which an objection can be lodged. Lay witnesses are not allowed to testify regarding
specific matters beyond their personal knowledge. As accurately summarized by the New York Guide
to Evidence Rule 6.07:
Except for an expert witness giving an expert opinion, a witness may testify to a matter
only if the witness has personal knowledge of the matter. Personal knowledge is
knowledge based on the exercise of the witness’s own senses. Evidence of a witness’s
personal knowledge may be apparent from the testimony of the witness or may be
attested to by the witness.
See also People v. Regina, 19 N.Y.2d 65, 68-70 (N.Y. Ct. App. 1966); Hallenbeck v. Vogt 9 A.D.2d 836
(N.Y. App. Div. 1959); Senecal v. Drollette, 304 N.Y. 446, 448-449 (N.Y. Ct. App. 1952); Matter of
Rios v Selsky, 32 A.D.3d 632, 633 (N.Y. App. Div. 2006); Overseas Trust Bank v Poon, 181 A.D.2d 762,
763 (N.Y. App. Div. 1992).
Ms. Sciorra had no knowledge whatsoever of the specific email that was admitted through her and
that she was further testified regarding. Thus, this exhibit and testimony was improperly admitted,
and as a result, requires a mistrial be ordered. In the alternative, counsel requests that the Court
strike these exhibits and related testimony from evidence and the record and provide the jury a
curative instruction that they are to disregard such exhibits and testimony.
Dr. Ziv
On January 24, 2020, the People called Dr. Barbara Ziv as an expert witness. Counsel has submitted
numerous and extensive filings objecting to Dr. Ziv’s testimony in this matter, including a motion
in limine filed as part of Mr. Weinstein’s omnibus pretrial filings, and a motion to dismiss the
indictment based upon Dr. Ziv’s improper grand jury testimony. Those objections are
reincorporated herein by reference.
New York Courts have long and consistently recognized two specific sources of unfair prejudice
unique to potential expert testimony regarding rape trauma syndrome and other similar subjects: (1)
2

As acknowledged by the New York Evidence Guide Rule 1.07(4), and People v. Gary, 26 N.Y.3d 1017 (N.Y.
Ct. App. 2015), to the extent the Court still believes the full evidentiary foundation is covered by the parties
stipulation, the Court may nonetheless provide relief where inadmissible material may have reasonably
escaped attention.
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 the danger that such expert testimony will be used to prove an incident in fact occurred; and (2) its
use in an attempt to bolster the credibility of the CWs. Both are categorically improper. See, e.g.,
People v. Taylor, 75 N.Y.2d 277, 293 (N.Y. Ct. App. 1990) (expert testimony improper where it “bears
solely on proving that a rape occurred”); People v. Bennett, 79 N.Y.2d 464, 472 (N.Y. Ct. App. 1992)
(expert testimony related to complainant’s reaction as the incident unfolded improper as it does not
relate to unusual post-rape behavior); People v. Mercado, 188 A.D.2d 941, 943 (N.Y. App. Div. 1992)
(expert testimony improper where it constituted “an impermissible comparison of the complainants'
behavior with that commonly associated with victims of these crime”); People v. White, 4 Misc.3d
797, 800-801 (N.Y. Sup. Ct. 2004) (expert testimony on battered woman syndrome improper
“because of the profound danger that the jury will infer from the BWS testimony that the defendant
committed the crime charged or that the jury will unduly use BWS testimony to improperly bolster
the complainant's credibility”).
At trial, Dr. Ziv’s testimony failed in both regards; that is, it described subjects tending to prove that
a rape in fact occurred, and constituted a commentary on the complaining witness’s specific
allegations in this matter.
The first “rape myth” Dr. Ziv discussed was the erroneous social belief that most sexual assaults are
perpetrated by a stranger. See Tr. 1361. This topic, under any conceivable set of facts, as here, does
not pertain to explaining unusual or socially misunderstood post-event behavior, but relates
invariably to the taking place of an assault itself. The same is true regarding physical resistance to
the taking place of the assault itself—Dr. Ziv’s second substantive area of testimony—it does not relate to
post-event behavior, but proving that lack of resistance does not translate to the existence of consent.
Tr. 1362. Dr. Ziv further opined regarding victim’s responses “before, during, and after sexual
assault,” Tr. 1368, the function of memory during a sexual assault (“[s] what happens during a sexual
assault . . .”) (Tr. 1373), fight or flight response a victim mentally processes during a sexual assault
(Tr. 1376), the way senses function during a sexual assault (Tr. 1377-78), or how women try to
“navigate”3 their way out of unwanted sexual encounters as they unfold (see Tr. 1435).
Dr. Ziv also testified extensively regarding specific facts concerning the complaining witness’s
allegations at issue in this trial, for example: that they use menstruation as a way out of the situation
(Tr. 1369, 1435); engage in cutting, drug use, and alcohol use after the fact (id.); become withdrawn
(id.); that they stay in relationships due to poor self-worth (Tr. 1370), regarding other specific
questions that were posed to Ms. Sciorra on cross-examination (Tr. 1441), and the specific details
trauma victims tend to remember from the course of an assault. Tr. 1374.
Furthermore, Dr. Ziv’s extensive testimony concerning memory and trauma not only exceeded her
specific area of expertise, but improperly exceeded the scope of the People’s prior notice. See Tr.
1371; C.P.L. § 245.20(1)(f).

3

Miriam Haley specifically testified before the grand jury, and the People further discussed already in its
opening, that she attempted to “navigate” her way out of the charged encounter by telling Mr. Weinstein
that she was having her period on the night in question.
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 For all of these reasons, and those discussed more fully in Mr. Weinstein’s pretrial filings, Dr. Ziv’s
improper testimony requires that the Court declare a mistrial.
Sam Anson
On January 24, 2020, the state called Mr. Sam Anson as a witness in its case-in-chief. Counsel
reincorporates Mr. Weinstein’s previous letters and objections set forth in his October 2019 letter,
and for the reasons stated therein, submit that his testimony was improper and constitute further
grounds for a mistrial.
Rosie Perez
On January 23, 2020, the defense submitted a letter objecting to Ms. Perez’s testimony, primarily on
the grounds that she was being called for the purpose of eliciting improper hearsay testimony.
Counsel reincorporates those objections and now, in light of her improper testimony, and
respectfully further notes that the state failed to establish that the defense had, directly or by
inference, assailed Ms. Sciorra's testimony as a recent fabrication, certainly not within the meaning
of People v. Rosario, 17 N.Y.3d 510 (N.Y. Ct. App. 2011).
Kara Young
For its last witness on January 24, 2020, the state called Kara Young in an effort to corroborate the
fact that Ms. Sciorra engaged in self-harm after the alleged assault. Tr. 1517. For the same reasons
discussed in open court, this testimony was irrelevant, prejudicial in that it was collateral, remote,
inefficient, and further drew the jury’s focus to issues that could only serve to inspire sympathy for
a complaining witness. Moreover, and in addition to improperly permitting Ms. Young to testify in
the first instance, the defense was improperly curtailed in cross-examining Ms. Young, and the Court
did not provide adequate reasons for limiting that cross-examination. That is, the defense properly
inquired what actions Ms. Young took to assist her friend who she claimed was in a state of distress.
These questions pertained to Ms. Young’s credibility, and matters the People elicited in its direct
examinations of both Ms. Sciorra and Ms. Young, but were not permitted by the Court. The defense
further asked proper questions regarding the status of Ms. Young and Ms. Sciorra’s relationship over
the years after Ms. Young testified on direct that she saw changes in Ms. Sciorra’s demeanor.
Cumulative Effect
Finally, to the extent that the Court disagrees that any one single error was substantial enough to
necessitate a mistrial in accordance with C.P.L. § 280.10(1), after no longer considering these errors
in isolation, but assessing their cumulative effect, counsel and Mr. Weinstein submit that a mistrial
must be ordered. See People v. Baron, 133 A.D.2d 833 (N.Y. App. Div. 1987); People v. Philbert, 60
A.D.3d 698 (N.Y. App. Div. 2009); People v. Bonsignore, 21 A.D.2d 309 (N.Y. App. Div. 1964).

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 Based on the foregoing, Mr. Weinstein, through counsel, respectfully requests that the Court declare
a mistrial.
Sincerely,
Damon M. Cheronis

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p. 8