NANTUCKET, Mass. — A judge said on Monday that a sexual assault case against the actor Kevin Spacey could be dismissed after the young man who accused Mr. Spacey of fondling him invoked the Fifth Amendment during a hearing over his missing phone.
The man was asked to testify on Monday regarding text messages he sent and received on the night in July 2016 that he encountered Mr. Spacey at a Nantucket restaurant. Mr. Spacey’s lawyer contends that the young man had deleted text messages that could back up Mr. Spacey’s assertion that whatever happened that night was consensual flirtation.
After the lawyer, Alan Jackson, told the man that he could be charged with a felony for deleting evidence, the man invoked his constitutional right to protect himself from self-incrimination.
Judge Thomas S. Barrett of Nantucket District Court then said the case “may well be dismissed” if the accuser continues to refuse to testify.
“The case revolves around this individual and without him the commonwealth will have a tough row to hoe,” Judge Barrett said. He did not dismiss the case on Monday, but gave prosecutors a chance to decide how to respond to the accuser’s invocation of the Fifth Amendment.
Mr. Spacey, 59, who was not in court on Monday, faces one count of indecent assault and battery. He is accused of rubbing the young man’s penis at a Nantucket restaurant called the Club Car, where the man, who was 18 at the time and is now 21, was working as a busboy.
In trying to prove Mr. Spacey’s innocence, the defense lawyer has sought access to the man’s phone, but last month, the man’s lawyer, Mitchell Garabedian, told the court that the phone was missing. Judge Barrett had ordered that if the phone could not be located by Monday, the young man and his parents would have to appear in court to explain its whereabouts.
On the night of the encounter, the accuser had told the police, he was star-struck and eager to get a photo with Mr. Spacey, and texted his girlfriend throughout the night to update her on what was happening. At one point, according to court documents, he texted her that Mr. Spacey had grabbed his penis “like eight times.”
Mr. Jackson used records of these text messages to conclude that parts of conversations with his girlfriend, and from another group chat, had been cut out.
In the courtroom on Monday, Mr. Jackson grilled the accuser about the missing messages. The young man said he had noticed that a part of a text conversation was missing but that he did not know how it disappeared, saying, “I did not manipulate any of that.”
Mr. Jackson then asked the young man whether he realized that altering evidence that could be used in a prosecution is a felony punishable by prison time.
“I was not previously aware of that law,” the young man replied.
Mr. Jackson doubled down, asking, “Deleting text messages from your phone before you give them to police would be a felony, right?”
The hearing then went into a break. Afterward, it was announced that the accuser would be pleading the Fifth.
Brian Glenny, a prosecutor with the Cape and Islands district attorney’s office, seemed taken aback by the sharp turn of events, and asked the judge for time to decide how to respond.
“I’m not prepared today to say what we’re going to do,” he said.
Mr. Garabedian wrote in a court filing that the accuser’s mother, Heather Unruh, delivered the smartphone to the police in December 2017, toward the beginning of the investigation. The police said that the phone had been returned to the young man’s father, Mr. Garabedian wrote, but the father did not remember receiving it.
The family had searched “all the places where such a phone may have been stored,” Mr. Garabedian wrote, but they were not successful. At Monday’s hearing, Mr. Garabedian said they had recovered a backup of the accuser’s phone on his laptop that covered the time of his encounter with Mr. Spacey. It was not immediately clear if the backup preserved any of the potentially missing messages.
After being given the opportunity to follow her son’s lead and plead the Fifth, Ms. Unruh, a former television news anchor in Boston, waived that privilege and took the stand.
“I have nothing but the truth to tell,” Ms. Unruh told the judge, her voice cracking.
Ms. Unruh testified that she had looked at her son’s phone before she gave it to the police and deleted some content that “concerned” her as a mother. The state trooper who received the phone from Ms. Unruh testified that Ms. Unruh had told him that she had deleted some content regarding “frat boy activities” that she did not want investigators to see.
She said that she had never instructed her son to delete any messages, and never deleted any messages herself from the conversations that Mr. Spacey’s lawyer was concerned about.
“I didn’t touch anything that was relevant to the case,” Ms. Unruh said.
The accuser’s father also took the stand, testifying that he did not remember ever getting the phone back from police. (The New York Times is not identifying the father, who has the same surname as his son, to avoid naming an accuser in a sexual assault case.)
He denied that he, his wife or his son had gotten rid of the phone. The questioning by Mr. Spacey’s lawyer quickly grew tense, with the father snapping, “I think you have had way too many questions that have gone way too far.”
That prompted a terse response from Judge Barrett, who threatened to hold him in contempt if his confrontational behavior continued.
Judge Barrett scheduled the next hearing for July 31.
Brittany Bowker reported from Nantucket, Mass., and Julia Jacobs from New York.
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