The scheme at the heart of the charges against Donald Trump in New York is well-known: To keep allegations of an affair with the adult-film actress Stormy Daniels from becoming public, Trump is accused of agreeing to pay her $130,000, camouflaged as payments to Michael Cohen for legal services. It’s in the camouflaging that Trump is charged with committing the 34 felonies at issue before a jury starting Monday.
But the jury, and the country, are going to hear a lot of evidence of Trump’s other allegedly wrongful acts — and a virtual avalanche of such evidence should the defendant decide to testify. That will paint a broader and more damning portrait of Trump.
Manhattan District Attorney Alvin Bragg’s team can introduce information about Trump’s other alleged misconduct under New York’s rules of evidence, which mirror the federal courts’. Known in New York as “Molineux evidence,” after the case that defined it, it’s generally considered a bonanza for prosecutors and a bane of defendants.
It’s an axiom of criminal law that jurors should assess guilt or innocence based on the defendant’s conduct in the case before them. That means they shouldn’t make their decision based on judgments about the defendant’s character — for example, that the defendant is a “bad person” who, having done bad things in the past, probably did them again. So it would be improper to introduce the fact that an alleged bank robber previously robbed a bank to show that he is a “bank-robbing kind of person” and therefore likely committed the bank robbery he’s now charged with.
New York’s rule generally prohibits the prosecution from relying on “character” or “propensity” evidence to urge conviction. But it’s riddled with exceptions that permit prosecutors to offer evidence of prior bad acts for many purposes other than character, including to show “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident” — more or less anything other than the forbidden character inference.