At issue in Monday's pretrial hearing is the cell phone on which the accuser texted his girlfriend and sent a video during the alleged assault. The prosecution says it obtained data from the phone, which it shared with the defense, and then the phone was returned to the man's family. Spacey's defense team wants to examine the phone itself, claiming that exculpatory evidence may have been deleted before it was given to police and prosecutors.
Spacey, 59, faces criminal charges of indecent assault and battery in connection to the alleged July 2016 incident. The former "House of Cards" star has pleaded not guilty. He could face up to five years in prison if convicted.
Judge Thomas Barrett ruled in June the defense was entitled to inspect the phone. However, the accuser and his family have said they don't have it and don't know where it is.
Barrett extended the deadline for turning the phone over until Monday and said that if it's not found, the accuser, his attorney and his mother must appear in court to testify about its whereabouts.
Surprise move
Meanwhile, in an abrupt about-face Friday, the alleged victim's lawyer announced that a civil lawsuit filed against Spacey a week earlier had been dropped.
Spacey's accuser, who was an 18-year-old busboy at a Nantucket bar at the time of the alleged assault, filed the civil complaint on June 26. In it, the accuser said Spacey bought him "multiple alcoholic beverages" before he then forcibly touched and fondled his genitals -- the same allegations he made in the ongoing criminal case.
CNN is not naming the accuser because he is an alleged victim of sexual assault.
The accuser's attorney, Mitchell Garabedian, told CNN via email Friday that he and his client voluntarily dropped the lawsuit and that he would have no further comment.
The civil lawsuit accused Spacey of explicit sexual behavior and infliction of mental distress. It demanded judgment in an amount to be determined by a jury, including costs, interests and attorney fees.
What happened to the phone?
The accuser and his mother -- Heather Unruh, a former TV news anchor in New England -- have told the court through Garabedian that the last time the accuser saw his phone was before his mother delivered it to prosecutors in approximately December of 2017. His mother says she also never saw the phone after that. According to Garabedian, police say their notes reflect the phone was returned to the accuser's father, but he says he doesn't remember ever getting it.
Spacey's defense team hopes the accuser or his family can solve the dilemma because it believes the device holds the key to whether the alleged victim is telling the truth.
In legal documents, the defense has alleged that potential evidence was deleted before the phone was handed over.
"Access to the underlying databases is necessary to perform a proper analysis, including whether messages may have been deleted or to attempt recovery of deleted data," defense expert Sankara Shanmugam wrote in an affidavit.
Legal filings by the defense say that during the alleged assault, the accuser sent text messages to his girlfriend from the phone, including a short video, and that the screenshots of the messages appear to begin mid-conversation. Some of the texts include the accuser telling his girlfriend: he got my number, he asked me to come out with him, he pulled my zipper down... he reached down my pants. The accuser also asks for help several times in the texts.
Spacey's lawyers argued that the screen shots and a report by police leave no question evidence was deleted, and they should be allowed to try to recover it.
"He and or his mother deleted the exculpatory texts that were on the phone," defense attorney Alan Jackson said in a hearing this month. "They deleted information that they didn't want the police to have, they deleted information they didn't want us to have."
When asked about possible missing text messages, Garabedian told CNN he had no comment.
The judge ruled in June that the defense should have access to the phone.
Since it's possible the phone may not be produced, Garabedian said they're trying to find backups of what was on it.
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