With a possible indictment looming in New York and separate investigations under way in Los Angeles and London, legal experts are weighing in what it will take for Harvey Weinstein to be criminally charged — and whether he could go to prison.
The disgraced movie mogul, 65, who is currently in treatment in Arizona, has been accused of sexual misconduct by over 50 women since The New York Times and The New Yorker documented his decades of alleged sexual misconduct and assault.
A spokesperson for Weinstein previously told PEOPLE in a statement, “Any allegations of non-consensual sex are unequivocally denied by Mr. Weinstein. Mr. Weinstein has further confirmed that there were never any acts of retaliation against any women for refusing his advances.”
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Weinstein is under investigation for rape by the Los Angeles Police Department after an Italian model-actress gave a detailed account of an alleged sexual assault involving the producer in 2013. That was the first case against Weinstein to be made public in California.
Los Angeles police are also investigating Weinstein for “lewd conduct” stemming from an incident in 2015, while a similar investigation is underway in Beverly Hills.
Meanwhile, police in the United Kingdom have widened their investigation into Weinstein to include allegations of sexual assault by seven women.
In New York City, detectives interviewed Boardwalk Empire actress Paz de la Huerta — who claims Weinstein raped her twice in 2010 — and found her story to be “credible,” a spokesperson for the department previously confirmed to PEOPLE.
The Manhattan district attorney is expected to approach a grand jury to seek an indictment for Weinstein based on de la Huerta’s allegations, WNBC reported Tuesday. However, a spokesperson for Weinstein said Wednesday that they “do not believe” an indictment is imminent. “A formal presentation will be made on Mr. Weinstein’s behalf in the appropriate course of the investigation, and we strongly believe we will demonstrate that no criminal charges are warranted,” Weinstein’s spokesperson said.
What Does an Indictment Mean?
“An indictment usually means a grand jury has reviewed the testimony of the witnesses and decided that there’s enough to charge him or her,” L.A.-based criminal defense attorney and former prosecutor Dmitry Gorin, who’s not involved in the Weinstein case, tells PEOPLE.
“But defense attorneys do not participate in grand juries,” Gorin adds. “This is where the old saying ‘you can indict a ham sandwich’ comes from because the burden of proof is so low.”
L.A. criminal law attorney Lou Shapiro, who also has no relation to the case, says it’s important to keep in mind that an indictment is not necessarily an indication of guilt.
However, given the media attention surrounding Weinstein, Gorin says the district attorney will most likely not want to seek an indictment without a solid case. “Anytime you have a high-profile case, the district attorney’s office know they’re going to be under the microscope,” he explains.
“They don’t want to have an O.J. Simpson mess on their hands where they lose a high-profile trial. So I think, especially in these types of cases, the prosecution will be crossing their T’s and dotting their I’s. By that I mean they’re going to interview as many witnesses as possible and obtain all evidence before they jump to a decision to press charges.”
What Will It Take to Get an Indictment?
Gorin says prosecutors will assess the strength of the victim’s statement, any physical evidence, the level of contemporaneous corroboration and whether they can find other alleged victims willing to testify.
In addition to finding de la Huerta’s account “credible,” a spokesperson for the NYPD said that they have been able to corroborate aspects of her story. The actress’s therapist also confirmed to Vanity Fair that de la Huerta told her that she felt coerced into having sex with Weinstein at the time.
While there is likely no physical evidence given that the alleged incident occurred seven years ago, Gorin says, “In most states, you can use propensity evidence to argue that the person is a sexual deviant — or somebody who assaults women. In other words, you can present other alleged victims’ testimony in the jurisdiction, even if those women aren’t charged as victims in that particular case.”
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What Happens If an Indictment Is Issued?
If a grand jury does grant Manhattan D.A.’s office an indictment for Weinstein, it’s not likely the producer will be hauled away in handcuffs.
“You can bet that his attorneys are in constant communication with the Manhattan D.A.’s office to find out when and if an indictment is coming down, and if it is, rather than them arresting and creating a whole circus, he’ll be able to just professionally and politely surrender,” Shapiro says. “He’ll have a bondsman with him in the court room to post bail, and then shortly thereafter he’ll be released.”
Gorin agrees, adding, “Besides the media frenzy that will follow, he’s going to have to surrender himself, be arrested, be booked and he’ll have a fairly substantial bail set given his resources. I’d expect something in the seven-figure range. So he’ll post the bail bond in whatever jurisdiction he’s indicted in and then basically prepare his defense and await a trial date.”
What Happens If Multiple Jurisdictions Want to Charge Him?
Shapiro notes that if the Manhattan D.A. gets an indictment for Weinstein, other agencies in California and London will be “watching from the bleachers.” He explains, “If another jurisdiction has a strong case or at least a medium case, they might bring an indictment concurrently along with New York. If they feel like they have a weaker case, they’ll probably sit it out to see how this one goes, because if he is convicted, they can use a prior conviction to bolster their weak case.”
What Is the Prosecution’s Strategy?
If Weinstein goes to trial, Gorin says prosecutors will try to create a simple narrative to show a pattern of behavior to a jury.
“The most compelling aspect is the number of women and the similar details of their stories,” he says. “They’re going to argue that Weinstein has a very strong position in the Hollywood community, and that he uses that position of trust to lure the women in, attacks them when they’re least expecting and then offers them work essentially in exchange for their silence.”
Prosecutors will then rely on the strength of their victim’s statement, any corroborating evidence and potential statements from other victims to help make their case.
Media reports concerning Weinstein’s behavior will not be taken into account, Shapiro explains. “If he goes to a jury trial and the prosecution wants to present other witnesses to show a pattern of bad behavior, then they’d have to bring in the actual complaining witnesses.” Those witnesses would also be open to cross-examination by Weinstein’s defense.
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How Will Weinstein Defend Himself?
“Probably the most basic argument is going to be that this was all consensual, that maybe it was immoral to use his power as a producer to have sexual relationships, but it was consensual,” Gorin says.
Secondly, Gorin says, “The defense points are going to be, after the alleged attacks, what did the victims do? Did they still spend time with him? Did they remain friendly with him? Did they communicate with him?”
If Weinstein is charged in New York, Shapiro says that defense attorneys will be quick to point out the fact that de la Huerta went back into a room with him after the first alleged attack. Although she claims she was drunk and frightened at the time, Shapiro explains, “They’re going to argue that it’s very uncharacteristic of a rape victim to go back into a room with her rapist.”
Both Gorin and Shapiro point out that using de la Huerta’s therapist as corroboration could be a Pandora’s box for the prosecution. “If the prosecution uses her therapist’s notes for corroboration, all her medical records are then going to be put on the table,” Shapiro says. Once the defense has access to those records, they will scour them for any evidence that could suggest de la Huerta was not in a sound mindset at the time.
Finally, Shapiro says, “They’re going to ask why it took so long for her to come forward, especially if she’s saying this happened to her twice.”
Gorin adds, “They’re going to say these accusers are coming out to kick a guy while he’s down and jump on the bandwagon to try and get some sort of financial settlement out of him.”
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Could Weinstein Go to Prison?
Jail time is a possibility for the highest-level charges, but if Weinstein is prosecuted for a lower-level charge, “it would be very likely he would plead to some type of action that would possibly keep him out of jail but on very strict probation,” attorney Angela Reddock-Wright, founding and managing partner of the L.A.-based Reddock Law Group, previously told PEOPLE.
But Shapiro says prosecutors likely have a tough battle ahead of them.
“As a fellow attorney, I don’t envy the position the prosecution and the NYPD are in right now,” he explains.
“While they probably can get an indictment, if you’re the prosecutor or police, you’re also thinking long term about proving a case beyond a reasonable doubt, especially with all the media pressure. They don’t want to bring a case they can’t prove down the line.”