Trump will mimic Harvey Weinstein’s successful appeal to fight his own sexual assault verdict Friday. It won’t be as easy.

Similar testimony doomed the Weinstein case.

New York state’s top court ruled the prosecution’s prior-bad-act witnesses — the trio who testified Weinstein sexually assaulted them but whose claims weren’t part of the criminal indictment — should never have taken the stand.

In Trump’s appeal brief, his lawyers argue testimony from Leeds and Stoynoff and the “Access Hollywood” tape should have never been allowed in the trial, and they cite a federal rule that is similar to the state-level one that foiled the Weinstein prosecution.

The jury particularly should have never heard highly prejudicial testimony from Leeds recalling that Trump told her, “You’re that cunt from the airplane,” and Stoynoff saying Trump insisted “we’re going to have an affair,” Blanche and Bove argue.

Diane Kiesel, a New York Law School professor and former state trial judge, told Business Insider she believed the evidence met the criteria for being included in the trial. The “Access Hollywood” tape and testimony from Leeds and Stoynoff helped demonstrate Trump’s “motive, intent, and opportunity” in his encounter with Carroll, as allowed under federal evidence rules, she said.

“The fact that you’ve got E. Jean Carroll saying, ‘He did this to me in Bergdorf’s.’ And he says, ‘You can do it at any time to women, they let you do it,'” she said. “And then two other women climb out of the woodwork from 50 years ago and said he did the exact same thing — to me, I think it goes straight to motive, intent.”

Kaplan, the judge, wrote in his ruling that the evidence was allowed in the trial under different federal rules of procedure as well. Those include rules that allow for testimony about “similar acts” in sexual assault cases.

“As their testimony shows, Trump engaged in a pattern of abruptly lunging at a woman in a semi-public place, pressing his body against her, kissing her, and sexually touching her without consent, and later categorically denying the allegations and declaring that the accuser was too unattractive for him to have assaulted her,” Carroll’s lawyers wrote in a brief.

Civil cases like Carroll’s have different standards

Friday’s courtroom battle will feature Carroll’s lawyer Roberta Kaplan, who oversaw the two verdicts in favor of Carroll. In the May 2023 verdict, the jury found Trump liable for sexual abuse and defamation and awarded Carroll $5 million in damages. In the second trial, earlier this year, a separate jury said Trump owed Carroll an additional $83 million in defamation damages.

Kaplan (who is not related to the trial judge) will face off against Sauer, who recently won a resounding victory for Trump before the US Supreme Court, which recognized sweeping presidential immunity in the criminal election interference case against him.

Trump’s best chance in Friday’s appeal may be to continue to argue that the two other accusers who testified, Leeds and Stroynoff, described assaults that were far too distant in time from Carroll’s to have been relevant, said Weinstein attorney Arthur Aidala.

While federal rules of evidence for civil sexual assault trials are far more expansive, a judge still can’t go too far, he said.

“It has to be reasonable, and the appellate court can take into consideration the distance in time between the accounts of the plaintiff and these ‘propensity’ witnesses,” he said.

Crucially, the jury in Carroll’s case didn’t need to reach their conclusion that Trump sexually abused Carroll “beyond a reasonable doubt” — the standard in criminal trials.

Instead, they needed to find it was “more probable than not” that Trump sexually assaulted Carroll, a standard far more common in civil cases.

Even if the appeals court finds that some of the trial testimony shouldn’t have reached the jury’s ear, the standard gives some room to allow the verdict to be upheld anyway, according to Hamilton, the architect of the Adult Survivors Act.

“It’s not unusual that in a civil case, you’ll have the defendants try arguments from the criminal law to try to strengthen their arguments,” she said. “But in the end, it’s just apples to oranges. They’re not the same thing.”