- Harvey Weinstein’s trial has finally seated a jury of 12 New Yorkers, and experts say the case’s outcome is far from clear.
- Much of the case is likely to rest upon the preconceived notions about sexual assault and rape the jurors bring to court and how convincing they find the accusers.
- Experts said that for Weinstein to be convicted, the jury would most likely need to have a relatively sophisticated understanding of sexual assault and the various ways victims behave in the aftermath.
- The defense is likely to vigorously cross-examine the accusers on their behavior toward Weinstein, including by bringing up friendly texts and emails between Weinstein and the accusers from after when they say they were attacked.
- Visit Insider’s homepage for more stories.
Harvey Weinstein’s criminal trial in New York City just selected its 12 jurors, but the public has already been subjected to weeks of theatrics and courtroom scuffles.
Since the trial began on January 6, there has been no shortage of newsworthy moments – celebrities and protesters have congregated outside the courthouse, a flash mob chanted slogans that could be heard from the courtroom 15 floors up, Judge James Burke threatened Weinstein with life in jail if he continued to use his cellphone in court, and a famous supermodel was dismissed as a prospective juror.
Though the raucous protests and media attention – as well as immense pressure from the #MeToo movement – might indicate that the odds are against Weinstein, legal experts have warned that both the defense and the prosecution face an uphill battle as the trial unfolds over the next two months.
On Friday, the jury was finalized, composed of six white men, three black women, two white women, and one black man. Three alternate jurors were also selected: one white man, one black woman, and one Latina woman.
The group of New Yorkers will decide whether Weinstein is guilty of raping one woman in 2013 and sexually assaulting another in 2006.
Experts told Insider the outcome of Weinstein's case was far from certain and would most likely hinge upon the jurors' preconceived notions about sexual assault and rape as well as how open they are to changing their minds.
Weinstein's defense team will try to cast doubt on whether his accusers 'behaved' like victims
Cheryl Bader, a former prosecutor and law professor at Fordham University, said the prosecution can make or break its case based on whether the group of jurors understands the concept of rape beyond common stereotypes.
In other words, they want jurors who are "receptive to looking at rape as not just what we think of as the classic, typical image of rape - as in, stranger jumps out from a dark alley with a knife to someone's throat," Bader told Insider.
Instead, prosecutors will try to convince the jury that sexual assault and rape are riddled with complexities, and involve victims who know their attackers well, and may be too reluctant or afraid to fight back or report to authorities.
Many of Weinstein's dozens of accusers outside the criminal case have said they maintained ties with Weinstein after being harassed or assaulted by him purely because they feared damage to their careers and believed confronting or ignoring him would cause them to be blacklisted in the entertainment industry.
That will likely be a major point of contention during the trial. Weinstein's defense team is not arguing that the accusers invented the 2013 and 2006 encounters - rather, they're arguing that those encounters occurred, but were entirely consensual, and the accusers' behavior proves it.
The defense will likely try to demonstrate that in part by bringing up friendly texts and emails between Weinstein and the accusers after the alleged attacks, and by vigorously cross-examining the accusers on their behavior toward Weinstein.
For instance, one accuser emailed Weinstein after the alleged 2013 rape: "I love you, always do. But I hate feeling like a booty call. :)."
The second accuser, Mimi Haleyi, texted a Weinstein associate months after the alleged 2006 sexual assault, saying "Hi! Just wondering if u have any news on whether Harvey will have time to see me before he leaves? X Miriam."
For a juror to look past such exchanges and determine that Weinstein did indeed attack the women, Bader said they will need to have a relatively sophisticated understanding of sexual-assault survivors' coping mechanisms, as well as the power dynamics that affect victims' choices and behaviors.
The prosecutors will need to make the case that "there can be a rape by somebody that you know, and that the relationship can then be normalized in some way," she said.
"Social science research has shown us that we sort of overestimate our own prediction about our ability to extricate ourselves from a situation like that," she continued. "And so we sort of impose that view that we would be able to do that. We'd find a way out. Prosecutors are looking for jurors who can resist that temptation to blame the victim."
Jurors have been told to ignore the dozens of other public allegations against Weinstein. There's no guarantee they'll listen.
The defense team, on the other hand, will also have to bust jurors' preconceived notions - about Weinstein himself.
Of the hundreds of prospective jurors summoned to court over the last two weeks, dozens of them were immediately dismissed after saying they couldn't treat Weinstein fairly and impartially. Of the 140 who were summoned for voir dire questioning on Thursday and Friday, the vast majority of them knew Weinstein's name and were familiar with the public allegations that have dogged him for two years.
Weinstein's lead defense attorney, Donna Rotunno, told Insider earlier in January she's confident that the jurors will see Weinstein differently after realizing that dozens of celebrities aren't testifying in his trial.
Instead, the criminal case against him is much more narrow: just two women's claims have resulted in criminal charges in New York, and only a small number of other accusers will be allowed to testify at trial to show what prosecutors say is a pattern of criminal behavior.
But experts said Rotunno's plan could backfire if she underestimates the pressure jurors will be under in the context of the #MeToo movement.
Lara Yeretsian, a criminal-defense attorney based in Los Angeles, cautioned that jurors might still consider Weinstein's reputation and the negative media coverage, despite being explicitly warned by the judge against doing so.
"My concern has always been, in these cases, jurors as human beings keeping in the back of their minds all this stuff they've read - 80+ complaining witnesses," Yeretsian told Insider. "It'll be subconsciously."
She continued: "You'll never know what they did. You'll never know what they considered. You can't go inside someone's mind and read it. That's what concerns me."
Yeretsian knows all too well the challenges of defending high-profile and widely hated clients - she previously represented Scott Peterson, who was convicted in the gruesome 2002 murders of his wife and unborn son.
She lamented how the #MeToo movement has moved the discourse from the courtroom to the court of public opinion.
"We have a legal system, one of the best in the world, where people are supposed to be in the courtroom, listening to evidence and deciding - based on the evidence presented - whether you're guilty or not," she said. "What the has done, unfortunately, is it's allowed people to come out screaming. And people who haven't been convicted have had their lives and careers destroyed by just someone saying, 'He or she did this to me.'"
Yeretsian said Weinstein's defense team risks spending weeks trying to force feed the jury various facts and pieces of evidence that exculpate Weinstein, but have it all go out the window when the jurors consider what it'll be like to face their friends, family, and the broader public after acquitting Weinstein.
"Can you imagine being a juror? You tell me how they're gonna feel when they walk out of that courtroom," Yeretsian said.
- Read more:
- The judge in the Harvey Weinstein case told potential jurors it's 'not a referendum on the #MeToo movement'
- Harvey Weinstein's lawyers want the judge to recuse himself from his trial, arguing that scolding the mogul for texting in court proves he's biased
- How Harvey Weinstein became one of the most powerful figures in Democratic politics before his career was rocked by a sexual harassment scandal
- Los Angeles prosecutors announced new sex crime charges against Harvey Weinstein just as his criminal trial began in New York
