Court Rules on “Modus Operandi” Witnesses in Bruce Weber Sexual Harassment Case

A recent decision, Boyce v. Bruce Weber and Little Bear, Inc., 19-cv-3825, 2021 WL 2821154 (S.D.N.Y. July 7, 2021), is instructive as to how courts resolve evidentiary issues arising in the context of sexual harassment claims.

In this case, plaintiff (a fashion model) asserts claims for sexual harassment against defendant Weber (a fashion photographer) under the New York State and City Human Rights Laws, and for sex trafficking under the Trafficking Victims Protection Act (“TVPA”), 18 U.S.C. § 1591 et seq.

The court addressed the parties’ motions in limine to admit or exclude certain evidence, namely, (1) the testimony of ten male models who claim that Weber also touched their genitals or otherwise behaved in a sexually inappropriate manner during one-on-one photoshoots between the early 1980s and 2014 (“Non-Party Accusers”), and (2) the testimony of three male models who claim that Weber always behaved appropriately when photographing them (the “Anti-Modus Operandi Witnesses”).

In assessing the admissibility of this evidence, the court applied various Federal Rules of Evidence, namely,

  • Rule 404(b) (which generally governs the admissibility of “any other crime, wrong, or act”),
  • Rule 415 (providing that “[i]n a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation”), and
  • Rule 403 (permitting the court to “exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”).

The court concluded:

[T]he Non-Party Accusers’ testimony as to Weber’s other conduct is admissible under both Rule 404(b) and Rule 415 of the Federal Rules of Evidence to the extent that the conduct is sufficiently similar in nature and close in time to the alleged conduct at issue. More specifically, the Court concludes that, subject to an assessment of cumulativeness at trial, the testimony of Non-Party Accusers Josh Ardolf, Anthony Baldwin, Buddy Krueger, Jake Madden, Mark Ricketson, and Jason Van Oijen is admissible. By contrast, the Court excludes the testimony of Non-Party Accusers Anthony Barbieri, Monty Hooper, Darryl Janney, and Ron Kochevar, as well as the testimony of the Anti-Modus Operandi Witnesses.

As to the latter point, the court cited the “well established” principle that “[a] defendant may not seek to establish his innocence … through proof of the absence of criminal acts on specific occasions.”

It reserved decision on the parties remaining motions in limine, which it will resolve at, or closer to, the final pretrial conference.

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