Weinstein Verdict: Takeaways from the Courtroom to the Conference Room
Rarely can one name so uniformly evoke recognition, and an understanding of the context. But across the globe, one name can: “Harvey.” Harvey Weinstein has become the poster figure for the #MeToo movement. Of course, he was preceded and succeeded by hundreds of other powerful figures who gained notoriety for their actions.
On February 24, 2020, a jury found Hollywood movie mogul Harvey Weinstein guilty on two of five counts — a criminal sexual act in the first degree and third-degree rape. The jury acquitted Weinstein of the remaining three counts — first-degree rape and two counts of predatory sexual assault, charges that could have seen him jailed for life.
At the heart of Weinstein’s criminal trial is a scenario employers and workplace investigators have seen before — a powerful man using his position of authority to manipulate the consensual nature of sexual activity with those less powerful. The dynamic, as we saw in Weinstein’s trial, often leads to a similar sequence of events: fear of retaliation, fear of reporting, and ultimately, a lack of action and accountability against the person in power.
So, how can employers and workplace investigators break this cycle moving forward, taking into consideration the impact and context of the Weinstein verdict? Employers need to ensure employees understand the evidentiary standard used in workplace investigations compared to that of the criminal trial; preponderance of the evidence and beyond a reasonable doubt, respectively. In providing the distinction, employers create a safe space for employees to come forward with complaints long before they rise to the level of criminal conduct, and even if the evidence might not stand up in a criminal courtroom. Additionally, workplace investigators have the unique ability to probe deep into particular types of evidence that would otherwise be inadmissible in criminal trials, giving a distinct value to the content of their investigations. In reaching these takeaways, we take a closer look at the two evidentiary standards and underscore the salient differences that impact workplace investigations.
In reaching their verdict in the Weinstein case, the jury used the criminal evidentiary standard, beyond a reasonable doubt. The standard is defined as follows:
[…] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. (CALCRIM 220)
Obtaining a guilty verdict in a criminal court of law is difficult. This is true because prosecutors must overcome significant hurdles before presenting evidence to a jury. These evidentiary hurdles exist because the standard dictates that only certain evidence be admitted in court.
By contrast, the evidentiary standard of proof in workplace investigations is a preponderance of the evidence, meaning that the evidence on one side outweighs, or is more than, the evidence on the other side. Or, more simply put, fifty percent and a feather. Although administrative workplace investigations do not benefit from subpoena power, warrants, penalty of perjury for untruths, and judges’ orders on disputes as exist in the criminal arena, workplace investigators have more freedom and more leeway when considering evidence. Here are three prime examples to keep in mind:
Hearsay/Indirect Corroboration: A workplace investigator is not bound by the strict evidentiary rules of hearsay. In the context of workplace investigations, “hearsay” is referred to as indirect corroboration. Workplace investigators are free to consider, and rely upon, indirect corroborating statements from witnesses. As an example, if a Complainant told her best friend the Respondent sexually assaulted her shortly after it occurred, a workplace investigator could rely on the best friend’s statement. In the criminal context, the best friend’s statement is likely inadmissible as hearsay, notwithstanding applicable exceptions. In workplace investigations, the key consideration is whether the indirect corroboration is sufficiently reliable and credible. If the investigator determines the indirect corroboration is reliable, the investigator should consider it as part of the overall evidence available. This kind of freedom, of course, is not given to criminal prosecutors who are bound by the strict rules of the Evidence Code. The lesson is to speak with witnesses with direct and indirect knowledge of the incident, even if they would be considered “hearsay witnesses” in the criminal court context.
Documentary Evidence: A workplace investigator can more easily obtain and rely upon documentary evidence than a criminal prosecutor. In a courtroom, documents need to be authenticated by witnesses, and prosecutors often must demonstrate a proper chain of custody. Depending on the kind of document, it might ultimately be rendered inadmissible by hearsay rules as well. In contrast, workplace investigators have the ability to gather documents on their own and consider them without the burdens of these evidentiary rules. Similar to a hearsay statement, the key consideration is whether the particular document is sufficiently reliable and credible. The lesson is to gather documentary evidence that relates to the incident and ask questions about how the document was created and by whom.
Character Evidence: Although there are some limited exceptions, in general, criminal prosecutors cannot introduce evidence of bad acts a criminal defendant committed in the past to prove they committed the crime being charged. This is typically referred to as a rule forbidding “character evidence.” These limitations do not bind a workplace investigator. Instead, workplace investigators should interview witnesses who could speak to someone’s reputation, character, and past bad acts. The key consideration is whether the information obtained is sufficiently reliable, credible, and relevant to the scope of the investigation.
Ultimately, the Weinstein trial and verdict exemplify the important role employers must play by explaining the workplace investigation evidentiary standard to employees and thereby creating a space that encourages timely reporting. In doing so, any misperception that a workplace investigation will take the form of a criminal trial will be dispelled and the fear of retaliation or reporting may be assuaged. Just as importantly, investigators should feel empowered to probe deep into complaints without worry about the evidentiary restraints imposed by courtroom rules.
Lauren Becker and Matthew Rose are Associate Attorneys with Van Dermyden Maddux Law Corporation. Their practices focus on conducting workplace and Title IX campus investigations.
[1] Initially, New York prosecutors brought charges involving six women against Weinstein. The trial ultimately focused on charges involving two women.
The foregoing is for informational purposes only and is not legal advice, nor should it be construed as such.
