By Christian Smith

The New York District Attorney's office may have a difficult time convicting the disgraced Hollywood producer Harvey Weinstein if prosecutors pursue charges of rape and criminal sex against him, according to a former U.S. prosecutor, Jonna Spilbor.

"It's quite possible that Harvey Weinstein will never see the inside of a jail cell," Spilbor said in an interview Tuesday on Cheddar.

Weinstein was arrested and arraigned last Friday on charges he raped one woman and forced another to perform oral sex. He was released on a $1 million bail as part of a deal his defense lawyer, Benjamin Brafman, negotiated before Weinstein's arrested. The deal requires Weinstein to wear a monitoring device, turn in his passport, and agree not to travel outside of New York and Connecticut.

Brafman has already begun to build his defense case, Spilbor said, by pinning the blame on unsavory ー but not illegal ー Hollywood traditions. Weinstein's behavior may have been deplorable, but the accusers consensually entered into relations with the intent of boosting their careers, in Brafman's defense.

Weinstein has yet to be indicted, and therefore has not entered a plea. A grand jury must convene and determine whether or not to indict Weinstein on the rape charges within six months of his arrest. Spilbor said that "you can indict a ham sandwich," and it is only part of the process.

"There's a good chance that he will be indicted, but an indictment does not mean an actual conviction," Spilbor said.

Spilbor said that to get a conviction, it will take testimony from the dozens of women who have come forward claiming they were sexually assaulted by Weinstein to prove a pattern of criminal behavior, not just a series of consensual relationships.

Prosecutors in Bill Cosby's second trial used a similar strategy. Five women testified against Cosby claiming he took advantage of each woman using drugs. In April, Cosby was convicted of three counts of sexual assault.

For the full interview, click here.