1

Mark J. Werksman, Esq. (State Bar No. 120767)

Alan Jackson, Esq. (State Bar No. 1 7 3 6 4 7 )

2

Kelly C . Quinn, Esq. (State Bar No. 1 9 7 6 9 7 )

3
Jacqueline Sparagna Esq. (State Bar No. 3 1 5 2 7 5 )

, WERKSMAN JACKSON & QUINN LLP

8 8 8 West Sixth Street, Fourth Floor

5 Los Angeles, California 9 0 0 1 7

Telephone: ( 2 1 3 ) 688-0460
6
Facsimile: ( 2 1 3 ) 6 2 4 - 1 9 4 2

Attorneys for Defendant

8
Harvey Weinstein

SUPERIOR COURT OF THE STATE OF CALIFORNIA

10

COUNTY OF LOS ANGELES -CENTRAL DISTRICT

11

THE PEOPLE OF THE STATE OF ) Case No.: BA483663

12

CALIFORNIA, )
13
) NOTICE OF MOTION; MOTION FOR

Plaintiff, ) NEW TRIAL; MEMORANDUM OF

14

) POINTS AND AUTHORITIES IN

15
vs. ) SUPPORT THEREOF

)
16

HARVEY WEINSTEIN, )
17 Date: February 23, 2023
)
Time: 8 : 3 0 am
Defendant. )
18
Dept.: 110
)

19

20 TO THE HONORABLE LISA B. LENCH, SUPERIOR COURT JUDGE, AND

21 DEPUTY DISTRICT ATTORNEY PAUL THOMPSON AND MARLENE

MARTINEZ:
22

23

24

25

26

27

28
 1 TABLE OF CONTENTS

PAGE(S)
2

3 I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

4 II. MEMORANDUM OF POINTS AND AUTHORITIES. . . . . . . . . . . . . . . . . . . 3

5 A. THE DEFENSE WAS PRECLUDED FROM ADMITTING

EVIDENCE AND ARGUMENT NECESSARY TO THE

6
DEFENSE 4

7 1. EVIDENCE CONCERNING JANE DOE 1 WAS

EXCLUDED AND CROSS EXAMINATION WAS

8
LIMITED 4

9
2. SUMMARY OF THE EXCLUDED EVIDENCE. . . . . . . . . . . . 5
10

a. Pascal Vicedomini and Jane Doe 1 Testified That

11
the Nature of Their Relationship Was Only That

12 of Friends and Coworkers. . . . . . . . . . . . . . . . . . . . . . . . . . 5

b. February 1 2 , 2 0 1 3 Facebook Messages Showing A

13
Romantic/Sexual Relationship Between Jane Doe 1

14 and Pascal Vicedomini . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

15 c. October 26, 2022 Statement of Jane Doe 1 to

Prosecutors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
16

d. May 2 1 , 2 0 13 Facebook Messages Between Jane

17
Doe 1 and Pascal Vicedomini Showing An Ongoing

Romantic/Sexual Relationship After the Alleged Rape . . . 9

18

e. The Court Quashed the Defense Subpoena to Jane

19
Doe 1 Requesting Her Communications with Pascal

20 Vicedomini During the Italian Film Festival 10

21 3. THE EXCLUDED EVIDENCE SHOULD HAVE BEEN

ADMITTED BECAUSE IT WAS RELEVANT,

22
EXCULPATORY,ANDNECESSARYTO

23 MR. WEINSTEIN'S DEFENSE 11

4. THE RULE OF COMPLETENESS REQUIRED

24
ADMISSION OF THE FEBRUARY 1 2 , 2 0 13
25
FACEBOOK MESSAGES 14

26 5. THE EVIDENCE WAS NOT PROHIBITED BY RAPE

SHIELD LAWS 17
27

6. MR. WEINSTEIN WAS PREJUDICED BY THE

28
EXCLUSION OF THIS EVIDENCE 21

-i­
 1 PAGE(S)

2 B. THE JURY WAS IMPROPERLY INSTRUCTED . . . . . . . . . . . . . . . . 24

3 1. THE LAW CONCERNING CALCRIM 3 7 1 . . . . . . . . . . . . . . . 25

4
2. SUMMARY OF THE RULINGS OF THIS COURT. . . . . . . . . 27

5
3. INSTRUCTING THE JURY ON CALCRIM 3 7 1 WAS

6 IMPROPER IN THIS CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

7 4. MR. WEINSTEIN WAS PREJUDICED BY THE

INCLUSION OF THIS INSTRUCTION. . . . . . . . . . . . . . . . . . 30

8
a. THE GOVERNMENT RELIED ON THE
9
PRESUMPTION CREATED BY CALCRIM 3 7 1

IN ARGUING ITS CASE FOR JANE DOE 1 . . . . . . . . . 30

10

b. DECLARATIONS FROM JURORS SHOW THAT

11
THEY GREATLY RELIED ON THE PRESUMPTION

12 CREATED BY CALCRIM 3 7 1 32

13 III. CONCLUSION 33

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-ii­
 1
TABLE OF AUTHORITIES

PAGE(S)
2
FEDERAL CASES

3 Brodie v. United States

(D.C. Cir. 1 9 6 1 ) 295 F.2d 1 5 7 3

4
Brookhart v. Janis

5 (1966) 3 8 4 U . S . 1 5

Chambers v. Mississippi
6
( 1 9 7 3 ) 4 1 0 U . S . 284 4

7 Kelley v. South Carolina

(2002) 5 3 4 U . S . 246 24
8
Pennsylvania v. Ritchie

9 ( 1 9 8 7 ) 480 U . S . 39 4

Pointer v. Texas
10
( 1 9 6 5 ) 3 8 0 U . S . 400 4

11 Washington v. Texas

(1967) 3 8 8 U.S. 1 4 4
12

13 STATE CASES

In re Saunders
14
( 1 9 7 0 ) 2 Cal.3d 1 0 3 3 3

15 People v. Arias

( 1 9 9 6 ) 13 Cal.4th 92 15

16 People v. Bain

( 1 9 7 1 ) 5 Cal.3d 839 3 1 , 32
17
People v. Blackburn

18 (1976) 56 Cal.App.3d 685 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

People v. Burrell-Hart
19
( 1 9 8 7 ) 1 9 2 Cal.App.3d 593 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

20 People v. Cunnings

( 1 9 9 3 ) 4 Cal.4th 1 2 3 3 32
21
People v. Daggett

22 ( 1 9 9 0 ) 225 Cal.App.3d 7 5 1 18

People v. Davis
23
( 1 9 7 3 ) 3 1 Cal.App.3d 1 0 6 3

24 People v. Drake

( 1 9 9 2 ) 6 Cal.App.4th 92 3
25
People v. Edgmon

26 ( 1 9 6 8 ) 267 Cal.App.2d 759 3

People v. Franklin
27
(1994) 25 Cal.App.4th 3 2 8 18, 19

28

-111­
 1 PAGE(S)

People v. Guiton
2
(1 9 9 3 ) 4 Cal.4th 11 1 6 24

3 People v. Hendrix

( 2 0 1 3 ) 2 1 4 Cal.App.4th 2 1 6 29
4
People v. Jackson

5 (1954) 42 Cal.2d 540 . . .. . . . . .. . . . . . . . . . . .. . . . .. . . . . . . . . . . . . . . .. . . 25

People v. Johnston
6
(2003) 1 13 Cal.App.4th 1 2 9 9 4

7 People v. Knutte

( 1 8 9 6 ) 1 1 1 Cal. 453 4
8
People v. Lewis

9 (2001) 26 Cal.4th 3 3 4 4

People v. Lopez
10
(1969) 1 Cal.App.3d 78 3

11 People v. Lucas

( 1 9 9 5 ) 1 2 Cal.4th 4 1 5 4

12 ,People v. Memro

13
( 1 9 9 5 ) 1 1 Cal.4th 7 8 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

People v. Mizchele

14 ( 1 9 8 3 ) 142 Cal.App.3d 6 8 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

15 People v. Perkin

(1948) 87 Cal.App.2d 3 6 5 3, 4

16 ,People v. Ratliff

17 ' ( 1 9 8 6 ) 4 1 Cal.3d 675 31

People v. Saddler

18 ( 1 9 7 9 ) 24 Cal.3d 6 7 1 25

People v. Taylor
19
( 1 9 8 4 ) 162 Cal.App.3d 720 3

20 People v. Tidwell

(2008) 1 6 3 Cal.App.4th 1447 18

21
People v. Thomkins

22 ( 1 9 8 7 ) 1 9 5 Cal.App.3d 244 24

People v. Thompson
23
(1 9 8 8 ) 45 Cal.3d 86 31

24 People v. Whittington

( 1 9 7 7 ) 74 Cal.App.3d 806 3
25
People v. Wilson

26 (2005) 3 6 Cal.4th 309 25

People v. Wims
27
( 1 9 9 5 ) 10 Cal.4th 293 24

28 Rogers v. County of Los Angeles

( 1 9 7 4 ) 3 9 Cal.App.3d 857 3

-1V­
 1 PAGE(S)

U.S. AND STATE CONSTITUTIONS

2
U . S . Const., 5th 4

3 U . S . Const., 6th 4

U . S . Const., 14th 4
4
Cal. Const. Art I, $ 2 8 ( f) ( 2 ) . . . . . . . . . 8 . . . . · · . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

5 Cal. Const., art. I, § 1 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

6
STATE STATUTES

7 Evid. C o d e , § 3 5 0 15

Evid. C o d e , § 3 5 1 5
8
Evid. C o d e , § 3 5 2 15

9 Evid. C o d e , § 3 5 6 15

Evid. C o d e , § 780 17
10
Evid. C o d e , § 780 (h) 5

11 Evid. Code, § 780 (i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Evid. Code, § 782.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 1 8

12 ]Evid. Code, $ 782 subd. ( b ) ( 2 ) . . . . . . . . . . . . . 8 . . . . . . . . . . . . . . . . . . . . . . . 1 9 , 20

13 Evid. C o d e , § 1 1 0 3 , subd. (c)(l) 18

Evid. C o d e , § 1 1 0 3 , subd. (c)(4) 1 7 , 20

14
Pen. Code, § 1 1 7 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Pen. C o d e , § 1 1 8 1 3, 4
15
Pen. C o d e , § 1 1 8 1 , subd. (5) 4, 24

16 P en. C o d e , § 1 3 6 . 1 26

17

18

19

20

2 1

22

23

24

25

26

27

28

-V­
 1
Mark J. Werksman, Esq. (State Bar No. 120767)

Alan Jackson, Esq. (State Bar No. 1 7 3 6 4 7 )

2

Kelly C . Quinn, Esq. (State Bar No. 1 9 7 6 9 7 )

3
Jacqueline Sparagna Esq. (State Bar No. 3 1 5 2 7 5 )

, WERKSMAN JACKSON & QUINN LLP

8 8 8 West Sixth Street, Fourth Floor

5 Los Angeles, California 9 0 0 1 7

Telephone: ( 2 1 3 ) 688-0460
6

Facsimile: ( 2 1 3 ) 6 2 4 - 1 9 4 2

Attorneys for Defendant

8
Harvey Weinstein

SUPERIOR COURT OF THE STATE OF CALIFORNIA

10

COUNTY OF LOS ANGELES - CENTRAL DISTRICT

11

THE PEOPLE OF THE STATE OF ) Case No.: BA483663

12

CALIFORNIA, )
13
) NOTICE OF MOTION; MOTION FOR

Plaintiff, ) NEW TRIAL; MEMORANDUM OF

14

) POINTS AND AUTHORITIES IN

15
vs. ) SUPPORT THEREOF

)
16

HARVEY WEINSTEIN, )
17 Date: February 2 3 , 2023
)
Time: 8 : 3 0 am
Defendant. )
18
Dept.: 110
)

19

30 TO THE HONORABLE LISA B. LENCH, SUPERIOR COURT JUDGE, AND

21 DEPUTY DISTRICT ATTORNEY PAUL THOMPSON AND MARLENE

MARTINEZ:
22

23
PLEASE TAKE NOTICE that on February 23, 2023, or as soon thereafter as the

24 matter may be heard in department 1 1 0 of the above-entitled Court, Defendant, Harvey

25 Weinstein, by and through his counsel of record, WERKSMAN JACKSON & QUINN LLP,

26 will move this Court for a New Trial, or, in the alternative, to reduce the verdict. This

27 Motion is based on the transcripts of the trial, any pre-trial Motions, the Court's file in th

28 instant case, the attached Memorandum of Points and Authorities, the Declaration of
 1
Jacqueline Sparagna and attached exhibits, and any argument at the hearing on this

2
Motion.

4
Dated: January 3 1 , 2023

Alan J. Jackson

8 Kelly C. Quinn

Jacqueline Sparagna
9
Attorneys for Defendant

10 Harvey Weinstein

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2
 I.

INTRODUCTION
2

A New Trial Motion presents a trial court with the rare opportunity to reconsider
3

its rulings at trial in light of how the evidence was actually admitted or used at trial. (See
4

People v. Perkin (1 9 4 8 ) 87 Cal.App.2d 3 6 5 , 3 6 9 (Perkin).) Thus, it vests the Court with

5

the singular responsibility of setting right those prejudicial errors which often become
6

apparent only with the benefit of hindsight by ordering "reexamination of the issue[ s] in
7

the same Court, before another jury." (Pen. Code, § 1 1 7 9 ; see Pen. Code, § 1 1 8 1 . ) Before
8

and during trial in the instant case, the Court heard significant arguments on numerous
9

evidentiary issues. Key pieces of evidence can now be reviewed for how they were
10

admitted, used by the People in closing argument, and ultimately affected the trial.
11

II.
12
MEMORANDUM OF POINTS AND AUTHORITIES

13
Penal Code section 1 1 8 1 provides a list of grounds for granting a new trial. (Pen.

14
Code, § 1 1 8 1 . ) Additionally, a new trial may be granted on grounds other than those

15
listed in Penal Code section 1 1 8 1 : [t]he power to grant a new trial on such nonstatutory

16
grounds obviously is derived from the trial court's constitutional duty to insure an

17
accused a fair trial." (People v. Davis (1 9 7 3 ) 3 1 Cal.App.3d 106, 1 10 , citing In re

18
Saunders ( 1 9 7 0 ) 2 Cal.3d 1 0 3 3 , 1 0 4 1. )

19
"The new trial motion is a powerful weapon in the arsenal of the defense in a

20
criminal case" and is considered essential to the trial process. (People v. Edgmon (1 9 6 8 )

21
267 Cal.App.2d 7 5 9 , 7 6 6 ; see People v. Lopez (1 9 6 9 ) 1 Cal.App.3d 78, 82--83.) A court

22
has broad discretion in ruling on the motion. (See People v. Whittington (1 9 7 7 ) 74

23
Cal.App.3d 806, 8 2 1 , fn. 7 ; People v. Taylor ( 1 9 8 4 ) 1 6 2 Cal.App.3d 720, 724; Brodie v.

24
United States (D.C. Cir. 1 9 6 1 ) 295 F . 2 d 1 5 7 , 1 6 0 . ) In fact, "[t]he determination of a

25
motion for a new trial rests so completely within the trial court's discretion that its

26
decision on the matter will not be disturbed on appeal unless manifest and unmistakable

27
abuse of discretion clearly appears." (Rogers v. County of Los Angeles ( 1 9 7 4 ) 39

28
Cal.App.3d 857, 8 6 3 ; see People v. Drake ( 1 9 9 2 ) 6 Cal.App.4th 92, 9 8 . )

3
 1 A. THE DEFENSE WAS PRECLUDED FROM ADMITTING EVIDENCE

AND ARGUMENT NECESSARY TO THE DEFENSE

2

The list in Penal Code 1 1 8 1 includes where the court "has erred in the decision of
3

any question oflaw arising during the course of the trial." (Pen. C o d e , § 1 1 8 1 , subd. ( 5 ) . )
4

This is a broad category allowing the court to reconsider any error in ruling on matters of
5

procedural evidence, particularly in light of how the evidence was actually used at trial.
6

(See People v. Perkin, supra, 87 Cal.App.2d at p. 3 6 9 . ) In reviewing rulings, the court

7

reweighs the evidence and exercises independent judgment. (See People v. Knutte ( 1 8 9 6 )
8

1 1 1 Cal. 4 5 3 , 4 5 5 ; People v. Johnston (2003) 1 13 Cal.App.4th 1299, 1307 [trial judge

9

may reweigh evidence, even to extent that conflicts with jury findings]; People v. Lewis
10

( 2 0 0 1 ) 26 Cal.4th 3 3 4 , 3 6 4 . ) Here, as set forth herein, significant evidence concerning

11

Jane Doe 1 was excluded, which affected the trial.

12

1. EVIDENCE CONCERNING JANE DOE 1 WAS EXCLUDED AND

13

CROSS-EXAMINATION WAS LIMITED

14
"Few rights are more fundamental [to fair trial and due process] than that of an

15
accused to present witnesses in his own defense." (Chambers v. Mississippi (1 9 7 3 ) 4 10

16
U . S . 284, 302); see U . S . Const., 5th, 6th, 14th Amends.; Pennsylvania v. Ritchie ( 1 9 8 7 )

17
480 U . S . 39, 56 [6th Amendment grants defendant right to put before jury evidence that

18
might influence guilt determination]; Washington v. Texas ( 1 9 6 7 ) 3 8 8 U . S . 14, 1 8 1 9

19
(Washington); see also Cal. Const., art. I, $ 1 5 ; People v. Lucas ( 1 9 9 5 ) 1 2 Cal.4th 4 1 5 ,

20
4 3 6 . ) This right "in plain terms [is] the right to present a defense, the right to present the

21
defendant's version of the facts as well as the prosecution's to the jury so it may decide

22
where the truth lies . . . . This right is a fundamental element of due process oflaw."

23
(Washington, supra, 328 U . S . at p. 1 9 . ) Additionally, the Sixth Amendment guarantees

24
the "right of an accused to confront the witnesses against him[.]" (Pointer v. Texas ( 1 9 6 5

25
3 8 0 U . S . 400, 4 0 3 . ) "There are few subjects, perhaps, upon which this Court and other

26
courts have been more nearly unanimous than in their expressions of belief that the right

27
of confrontation and cross-examination is an essential and fundamental requirement for

28
the kind of fair trial which is this country's constitutional goal." (Id. at p. 4 0 5 . ) The

4
 1
United States Supreme Court has strictly construed the right to confrontation, going so fa

2
as to say that if a criminal defendant is denied cross-examination without first waiving

3
this right, it "would be constitutional error of the first magnitude and no amount of

4
showing of want of prejudice would cure it." (Brookhart v. Janis ( 1 9 6 6 ) 3 8 4 U . S . 1 , 3 . )

5
Additionally, subject to statutory exception, "all relevant evidence is admissible."

6
(People v. Mizchele ( 1 9 8 3 ) 142 Cal.App.3d 6 8 6 , 690, citing Evid. C o d e , § 3 5 1. ) The

7
Right to Truth-in-Evidence Law in the California Constitution clearly provides that

8
"relevant evidence shall not be excluded in any criminal proceeding." (Cal. Const. Art I,

9
§ 28(±)(2).) California Evidence Code section 2 10 defines relevant evidence as "evidence,

10
including evidence relevant to the credibility of a witness or hearsay declarant, having

1 any tendency in reason to prove or disprove any disputed fact that is of consequence to

12
the determination of the action." Furthermore, "any matter that has any tendency in

13
reason to prove or disprove the truthfulness of [ a witness's] testimony at a hearing" is

14
relevant, including: (1 ) "[a] statement made by [her] that is inconsistent with any part-of

15
[her] testimony," and (2) "[t]he existence or nonexistence of any fact testified to by

16
[her]." (Evid., Code, § 780 (h), (i).)

17
2. SUMMARY OF THE EXCLUDED EVIDENCE

18
At trial, the People presented affirmative evidence through the testimony of Jane

19
Doe 1 and Pascal Vicedomini concerning the nature of their relationship. In response, the

20
defense sought to admit impeachment evidence that would/could have been introduced

21
via the testimony of Mr. Vicedomini, Jane Doe 1 , and Facebook messages between the

22
two, attached as Exhibits G and H to the Declaration of Jacqueline Sparagna ("Sparagna

23
Deel.").

24
a. Pascal Vicedomini and Jane Doe 1 Testified That the Nature of

Their Relationship Was Only That of Friends and Coworkers

25

On October 4, 2022, the People took the conditional exam of Pascal Vicedomini,
26

which was later admitted at trial. Mr. Vicedomini is the founder of the Italian Film
27
'

Festival in Los Angeles. He testified that he has been friends with Jane Doe 1 since 2009.
28

5
 1
In February 2 0 13 , the two lived in Italy, and flew to Los Angeles to attend the festival.

2
The People opened the door to the nature of their relationship when they elicited the

3
following from Mr. Vicedomini: "And we became friends, and it was always a

4
transparent friendship. It was always a crystal clear friendship without any moments of

5
crisis." (October 4, 2022, RT 1 8 : 1 9 - 2 4 : Exhibit B of Sparagna Decl.)'

6
On October 26, 2022, during the direct examination of Jane Doe 1 , the People

7
again opened the door by presenting the testimony of Jane Doe 1 , wherein she stated that

8
she was a friend and co-worker ofMr. Vicedomini. (October 26, 2022, RT 2 4 0 8 : 11 - 1 2 :

9
Exhibit B of Sparagna Deel.)

10
b. February 12, 2013 Facebook Messages Showing A

Romantic/Sexual Relationship Between Jane Doe 1 and Pascal

11

Vicedomini
12

After the People presented the testimony concerning the nature of the relationship,

13

the defense attempted to impeach Mr. Vicedomini and Jane Doe 1 with their sexually

14

explicit Facebook messages. On February 1 2 , 2 0 1 3 , j u s t minutes after Jane Doe 1 asked

15

Mr. Vicedomini to come to the festival, and less than a week before they visited one

16
3
another in each other's hotel rooms,2 they communicated as follows:

17

17:05 Jane Doe 1 : Can I come to your festival? . . . .

18 1 7 : 10 Pascal: as soon as you're here . . . I' ll show you right away how

19

1
On cross, Mr. Vicedomini reiterated numerous times that he and Jane Doe 1 were just
20

friends, including: ( 1 ) " .. . [a]s I said we do have a great friendship and this friendship
21
goes back to 2009. We have a very pleasant relationship. It's a fun relationship." (Id. at p .

1 0 3 : 1 0 - 1 3 . ) (2) "it was a great friendship. I had a great friendship with her and with her
22

children over the years I had established a very friendly relationship with her and her
23
family." (Id. at p. 7 9 : 9 - 1 2 . ) And, (3) "I'm always very, as I said, I'm very affectionate

and very open as a human being until we reach a certain level then it remains within the
24

concept of friendship . . . " (ad. at p. 8 8 : 2 5 - 2 8 . )

25

2
Jane Doe 1 testified that Mr. Vicedomini came to her room at Mr. C ' s on February 1 6 ,
26
2 0 13 , and that she went to Mr. Vicedomini's room at his hotel on February 1 8 , 2 0 13 .

27 (October 26, 2022, RT 3 0 2 7 : 2 6 - 3 0 2 8 : 9 : Exhibit B . )

28
3
For the sake of brevity, not every message was included in this summary. The complete

set of messages can be viewed in Exhibit G.

6
 happy I am

1 7 : 10 Jane Doe 1 : ha ha h a ! ! ! Please d o ! ! ! ! .. .

2

17:14 Pascal: just think that while I'm talking to you something is

3
happening to me

17:14 Pascal:
4

17:14 Pascal: whatdoyouwannado

5 17: 14 Pascal: that's what happens to me

17:14 Jane Doe 1 : Wanna do?

6

17:14 Jane Doe 1 : Nothing!

7 17:14 Jane Doe 1 : You wait! .. .

17: 15 Pascal: I' d need your beautiful mouth now

8
17:15 Jane Doe 1 : I think I know how to help you)

9 1 7 : 16 Jane Doe 1 : I was thinking exactly that)

17: 17 Pascal: You know me too well

10
17:17 Jane Doe 1 : Right?

11 17: 17 Jane Doe 1 : Not yet?

17: 18 Pascal: you can just imagine what's happening right now
12
17: 19 Jane Doe 1 : are you touching yourself?!!

13 17: 19 Jane Doe 1 : Or are you with someone?????

17:21 Pascal: guess

14
17:22 Jane Doe 1 : My imagination s o a r s ! ! !

15 1 7 :22 Jane Doe 1 : I'm thinking you're not a l o n e ! ! ! !

16 (February 1 2 , 2 0 13 Facebook Messages: Exhibit G of Sparagna Deel.)

At the conditional exam, the defense requested to question Mr. Vicedomini about
17

18 the messages because 1 ) they show that Mr. Vicedomini lied, under oath, about the nature

19 of their relationship; and 2) the true nature of their romantic relationship establishes that

it would be anathema for Mr. Vicedomini to provide his lover's room number to Harvey
20

21
Weinstein. (October 4, 2022, RT 8 5 : 2 7 8 7 : 5 : Exhibit A.) Counsel offered to point the

22 Court to the specific section that showed the existence of a sexual relationship in the

23
messages, and the Court stopped him by stating, "I can read." (Id. at p. 8 7 : 9 . ) The Court

24
appeared to understand that the defense was referring to the comments about Mr.

25
Vicedomini's arousal ("while I'm talking to you something is happening to me"),

26
masturbation ("are you touching yourself?"), oral sex ("I'd need your beautiful mouth

27
now"), and Mr. Vicedomini's statement that Jane Doe 1 "knows him too well" in

28 that arena. Nevertheless, the Court excluded the messages, stating the messages did not

7
 disprove that the two were only friends, and it did not want to "get into the nitty gritty of

2
the relationship between [Mr. Vicedomini] and Jane Doe I." (Id. at p. 8 8 : 2 - 7 . )

3
c. October 26, 2022 Statement of Jane Doe 1 to Prosecutors

4 After Jane Doe 1 testified on direct examination that she and Mr. Vicedomini were

5 friends and coworkers, she was asked on cross-examination about the relationship:

6 "That's because you and Pascal had a relationship together, didn't you?" and the People

7 objected. (October 26, 2022, RT at 3 0 2 8 : 2 6 - 2 8 : Exhibit B . ) The Court then took a break,

8 and the parties went in chambers to discuss the relevance of Jane Doe 1 ' s relationship

9 with Mr. Vicedomini.

10 During that break, Jane Doe 1 had a conversation with the prosecutors, wherein

11 she informed them that she did in fact have a sexual relationship with Mr. Vicedomini.

12 During the chambers conference, Deputy District Attorney Paul Thompson stated:

13 So a couple things. One is we just had a conversation with her. She's very

concerned that the defense is going to be allowed to ask into her

14
relationship with Mr. Vicedomini. She said there was a sexual encounter

15 with him at one point in time while she was going through a breakup

with her husband.

16

(October 26, 2022 Chambers Conference, RT 1 7 : 1 1 - 1 6 : Exhibit C of Sparagna Deel.

17
(emphasis added).)

18
Thus, by her own admission to the prosecutors, Jane Doe 1 lied when she testified

19
under oath that the extent of her relationship with Mr. Vicedomini was only that of

20
friends and coworkers. The defense, again, pleaded with the Court to admit her admission

21
and the February 1 2 , 2 0 1 3 Facebook messages because, at a minimum: 1 ) evidence of

22
their sexual relationship showed that both she and Mr. Vicedomini lied to the jury, 2)

23
their romance establishes that Mr. Vicedomini would not be inclined to provide his

24
lover's room number to Harvey Weinstein, and 3) the full context would have made the

25
defense's theory that Jane Doe 1 was actually with Pascal at his hotel on the night of the

26 4
alleged rape more plausible to the jury.

27

28
4
Defense counsel requested that the Court review the Facebook messages beginning on

February 1 2 , 2 0 1 3 and argued that if the Court looks "at the continuous conversation . . .