Is Kevin Spacey Going To Choose A Trial, or Plead His Case Down To Avoid Risk Of Conviction?

Now that summer is here and people are again flocking to Cape Cod & the Islands, a lot of people have been looking at news on actor Kevin Spacey.  As most everyone who knows this name knows, Spacey (real name:  Kevin Fowler), was charged last January in Nantucket District Court on Massachusetts Indecent Assault & Battery charges, accused of sexually assaulting an 18 year-old boy in the summer of 2016.  Spacey, of course, has pleaded not guilty, and recently, his attorneys have ramped up their legal defense, asking a judge to order that the alleged victim produce his cell phone to determine if relevant messages & data were deleted after the alleged incident.   The judge has granted the defense’s motion, and that phone will now be forensically scoured to determine if any data was deleted between the date of the alleged incident, to present.

Thus, more than a few people have asked me whether or not I think Spacey is going to seek a trial in this matter to seek a Not Guilty verdict, or possibly plead the case out to a less serious offense (such as ‘simple’ assault & battery), to avoid risking a conviction – and the publicity that would go with that.

Right now, it appears to me that Spacey may well elect to go to trial on this case.  The reasons that I sense this are primarily legal.  (However, Spacey put out a rather strange video on YouTube last December, in which he spoke in the voice of his now-famous “House of Cards” character, Frank Underwood, inferring that he would never admit to a crim he didn’t commit.  Regardless of this video, as a Massachusetts sex crimes defense lawyer, I think there are good reasons why Spacey should consider seeking a trial in this case (vs. “pleading it down”, to avoid both the public spectacle  of a trial, and the possibility of a guilty finding and potential jail time.)  Most of these reasons relate to evidence – specifically its veracity and admissibility.

If it is discovered that key data was deleted from the alleged victim’s phone after the incident, Spacey’s attorneys will likely file something called a Motion To Dismiss.  There is a fair chance that such a motion would be granted by the judge, but no guarantee.  More promising for Spacey may be inconsistencies between the alleged victim’s reported statements and actions following the incident.  Specifically, it has been reported that the alleged victim told police that he texted his girlfriend a photo or video of Spacey’s hand allegedly on the victim’s inner thigh, however, it is not presently clear if that photo currently exists – and even if it does exist, it may be quite difficult to prove that the hand is Spacey’s.  It’s also been reported that the young man did not report this incident to his mother, Heather Unruh, for perhaps a year after the incident, which is when Ms. Unruh called a press conference to seek charges against Spacey.

It’s important to understand what the legal elements of this charge are – Indecent Assault & Battery On A Person Aged 14 Or Older –  and what the prosecution must prove, in order to secure a conviction on the charge.

  1. That the defendant committed an assault and battery against the alleged victim
  2. That the defendant intended to touch or engage in physical contact with the victim
  3. That the assault and/or battery was “indecent” in nature
  4. That the victim was 14 years of age or older when the alleged incident occurred
  5. That no justification existed for the indecent contact (such as suddenly catching someone who was slipping or falling.)

Critically, the prosecution must prove each of these elements beyond a reasonable doubt.  The Commonwealth cannot merely present “strong” evidence – they must convince a jury or judge that there exists no reasonable doubt in the matter.

As a Massachusetts sex offenses attorney who has tried many of these cases, I can assure readers that satisfying this standard of evidence is not, legally speaking, an easy task.  A jury might suspect that the defendant committed the accused crime, but if there is any reasonable doubt, they are required to acquit the defendant.  That’s the way our criminal law system works.  I am not saying that I don’t believe that, on a factual level, Mr. Spacey committed this offense.  I am saying that on a legal level, this case may be quite winnable.

I’ll keep an eye on this case and will update legal developments on it in the future.