Weinstein must tread carefully in rape trial defense, experts say

[January 21, 2020]    By Brendan Pierson

NEW YORK (Reuters) - Former Hollywood producer Harvey Weinstein will face the challenge of defending himself in his rape trial as he tries to undermine his accusers' credibility without appearing callous to jurors, according to several legal experts.

Still, if Weinstein's defense team can persuade the jury that the accusers engaged in consensual sexual activity to gain an edge in the entertainment industry, that could result in an acquittal or hung jury, other experts said. All 12 jurors must agree in order for prosecutors to secure a conviction.

Weinstein, 67, has pleaded not guilty to charges of assaulting two women in New York, and faces life in prison if convicted on the most serious charge, predatory sexual assault.

Weinstein has said that any sexual encounters he has had have been consensual.

Donna Rotunno, Weinstein's lead lawyer, told Reuters last month that his defense team had "a slew of witnesses ready to go," and that they would offer emails showing that his accusers had maintained friendly relationships with him after the alleged assaults.

Rotunno did not respond to requests for comment on the defense strategy.

Bennett Gershman, a former Manhattan prosecutor, said that consent would likely be the heart of Weinstein's defense.

"I think he’s going to try to show that these women were trying to ingratiate themselves with this powerful Hollywood mogul, that they were not victims, that they were willing participants in various sexual encounters," said Gershman, a former prosecutor who is now a law professor at Pace University.

As many as four additional women are expected to testify for the prosecutors, who are trying to establish a consistent pattern of misconduct, according to court papers.

Eric Tennen, a criminal defense lawyer in Boston who has handled sexual assault cases, said it could be difficult for Weinstein to convince a jury that several women had motive to lie about him.

"That's a hard pill to swallow," he said.

Experts said the challenge is intensified by the #MeToo movement, in which numerous women have gone public with misconduct allegations against powerful men, increasing potential jurors' awareness of sexual abuse and making them more likely to believe accusers.

Since 2017, more than 80 women have accused Weinstein of sexual misconduct dating back decades, helping to fuel the movement.

One of the two main accusers in the case, former production assistant Mimi Haleyi, has said publicly that Weinstein forced oral sex on her in his Manhattan home in 2006. The other, who has not been identified, was raped by Weinstein in 2013, prosecutors allege.

Daniel Hochheiser, a New York-based criminal defense lawyer who has handled sex crime cases, said the defense might call witnesses who observed the relationship between Weinstein and his accusers to bolster a defense of consent.

"If there are witnesses who can testify that the behavior of the complainant after the alleged sexual assault was inconsistent with someone who had been assaulted, that could be very powerful," he said.

Weinstein's lawyers will likely try to show inconsistencies in his accusers' past statements through cross-examination, which experts said could be persuasive evidence for the defense. They will, however, have to be careful not to appear too aggressive.

"If the defense lawyers are perceived as being too aggressive and challenging, it’s going to make the witnesses more sympathetic," said Daniel Medwed, a professor of criminal law at Northeastern University School of Law.

Weinstein could also argue the encounters were consensual but with the passage of time the accusers' perspectives and memories of the event changed, said Tennen.

Weinstein's lawyers have said in court papers that they intend to call Deborah Davis, a psychologist and professor at the University of Nevada at Reno, to testify about how memories can be distorted. Davis said she was "still on tap" to testify and declined to comment on the case.

Gershman said such testimony has been successful in cases involving alleged sexual abuse of children, who have been shown to be susceptible to false memories.

Weinstein also has a right to testify in his own defense, but that is generally considered risky.

By testifying, Medwed said, Weinstein would open himself to a "broad-based character attack" about his honesty that could backfire.

(Reporting by Brendan Pierson; Additional reporting by Gabriella Borter; Editing by Noeleen Walder and Rosalba O'Brien)

[© 2020 Thomson Reuters. All rights reserved.]

Copyright 2020 Reuters. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.  Thompson Reuters is solely responsible for this content.