FAQ on the Kobe Bryant case
ESPN.com asked legal expert Roger Cossack to answer the most pressing questions about the Kobe case.
Since Kobe Bryant was charged with felony sexual assault on July 18, information has slowly trickled out about the case.The flow of rumors, innuendo and disinformation, however, has been simply overwhelming over the last few weeks. To get some reliable answers to many of the frequently asked questions about the Kobe case, ESPN.com went to legal analyst Roger Cossack, who has covered the trials of O.J. Simpson and Marv Albert as well as President Clinton's impeachment proceedings. Here's Cossack's overview of what to expect at Wednesday's pre-trial hearing and beyond.
Wednesday is in a sense called the First Presentation. That's when the defendant has to make his first appearance in court to hear the charges that have been lodged against him. Kobe is not required to make a plea, but he does have that option. The hearing will be televised so he might want to take advantage of that and one more time, say "not guilty", just because it will be seen by so many people. But he's not required to do it, and he doesn't have to do it. One of the things the judge will do is set some motion dates. He will set a date for the preliminary hearing, probably about 30 days in the future.
Does being a star make it likely Bryant will be able to delay a trial until next summer, as Chris Webber seemed to be able to do?
Right now, what are the odds of this case actually going to trial?
I think this case will go to trial. The stones have been cast if you will. It's too late for either side to back off. This prosecutor charged him with forcible rape (sexual assault), and there is really no place else to go. Either you are guilty of forcible rape or you are not. The alleged victim has said she was raped. Either she was raped or she wasn't. There is no place else to go.
So you don't foresee Bryant possibly pleading to a lesser charge?
I don't see how Bryant could plead to a lesser charge.
Under Colorado law, what does it mean to be a registered sex offender?
It means what it says. You are a registered sex offender. He would have to register with the local police department and the state roster of convicted sex offenders. Every time there is a horrible sex case that goes on in the area, all registered sex offenders become, if not a suspect, what is termed a "person of interest".
I think the defense will try very hard to get those things into evidence. Remember, there is only one defense in this case: that the alleged victim is lying. That is Kobe Bryant's defense. So the defendant and the defense will do everything they can to discredit the alleged victim. The fact that she at some time in the past -- and we don't know if this is true or not true -- attempted suicide, the question is, does that make her a less-reliable truth-teller than if she hadn't done that? A judge will have to decide that.
There is a theory in law called "probative but prejudicial". That means yes, it proves something, but it is so prejudicial that it outweighs whatever proof it shows. This is the argument they will make. What does it really show? Does the fact that she tried to kill herself five months earlier mean she is lying about this? That is what the judge will have to decide.
How important are witnesses who claim they saw the victim immediately after the attack?
The keystone to the criminal justice system in America is cross-examination. We hear a report about a guy who says he saw her shortly after the attack and described what he thought were bruises. But no one knows what he saw, no one has tested his memory under cross-examination, no one knows how good his eyesight is, so you have to take all these things with a grain of salt until you hear them in the courtroom from the witness stand.
If the case goes to trial, is it a sure thing that Kobe will testify?
Maybe, maybe not. There is no requirement that he testify. He has the privilege of the Fifth Amendment to the Constitution that says no defendant in a criminal case can be compelled to testify against his will. At the press conference he held, he stated that he was innocent. I'm not sure what else he has to say after that. So we can't assume that he would testify.
Is this a classic case of "he-said, she-said"? How difficult are those cases to prove?
It could be he-said, she-said. But we don't know. We don't know what the evidence is. I tend to believe that this prosecutor has more evidence than he-said, she-said. These cases are very hard to prove if you do not have good evidence. There is rape like in the case of the woman jogger in Central Park being attacked, beaten up and raped. Then there is another kind of case where the rape comes after some kind of consensual sex. That could be the case here. "No" always means "no" in the law. If a woman says "no" at any time, it's rape. But there is the real world and the jury world. In the real world, "no" means "no." But in the jury world, the jury has a much more difficult time of convicting people when there was some consensual sex involved. We just have to wait and see what the evidence is.
That's a decision that he and his lawyer have to make. Kobe Bryant is 100 percent presumed innocent at this stage of the procedure, as all criminal defendants are. Until he is found guilty beyond a reasonable doubt in a court of law, he is innocent. He says he is not guilty. Under that reading of the fact, you can argue he has nothing to hide. As for how it will affect public opinion, we have to wait and see.
Will it be possible to find an impartial jury? Do you think the trial will be moved out of Eagle County?
Impartial jury under the law means they will come into court and say "we can set aside any preconceived notions that we might have about this case and judge it based solely on the evidence that comes to the witness stand." I think they will find 12 people, good and true, that will be able to say that, along with a few alternates.
I think there is very little chance this case gets moved out of Eagle County.
How much should be made of the DA's relative lack of experience in high-profile trials vs. the high-profile pasts of the defense attorneys?
I think Kobe Bryant's defense team is a really well-respected group of wonderful lawyers with a great deal of experience. But, the prosecution has experience also, maybe not as much, but they also have an unlimited amount of assistance. Prosecutors and experts all over the state have volunteered their time and effort to help in this case. I don't see this as being an unlevel playing field one way or the other.
How does the fact that the crime scene is a hotel room affect the collection and value of the evidence?
It's not like a crime scene that was immediately sealed off. But remember, there is only one real issue here. Is this girl telling the truth? Will the jury believe this girl is telling the truth and therefore believe the evidence beyond a reasonable doubt? And what other corroboration is there? We know there was an agreement for her to be in the room, we know there was an agreement that sexual intercourse was done. The issue is was it done with or without her consent? It's not a question of needing DNA or a lot of other things ... the facts are the facts. The only question is who is telling the truth?
Do you believe race will become an issue in this case?
It's a hard question to answer. I don't really know. Kobe Bryant is a person who had a wonderful reputation prior to this. Most of the people I have spoken to are giving him the benefit of the doubt. This is a small town. Vail is an international ski area that people come to from all over the world. It's not like it's a bunch of hicks up here. I think this case will try out on the merits.