It was impossible to miss when it happened, it's impossible to miss today, it will probably be impossible to miss for months. Will Smith slapped Chris Rock at the Oscars in front of a packed audience, about nine million people watching on TV, and the hundreds of millions on social media who saw it within minutes.

It’s already been broken down frame by frame more times than the Zapruder film.

So, what does a criminal defense attorney whose handled years’ worth of assault cases think? This:

First, it was an assault- Will Smith assaulted (under Washington law, that is) Chris Rock. He hit him and unlike many-if not most- assault cases it was in front of uninvolved witnesses and captured on video.

In Washington, it would be an Assault 4th change - a misdemeanor. It appears it would be the same in California. Will Smith hasn’t been changed-although he’s likely facing repercussions from the Academy.

The media reported yesterday that Chris Rock declined to press charges. Great. They added that it means Will Smith won't be charged with assault. Wrong. This is one of the most common misconceptions out there (it drives defense attorneys crazy): it's not up to the victim.

Prosecutors do not need the victim’s go ahead to change someone with assault. They may consider it, especially when they absolutely need the victim's statement/testimony. But they don't need it in this case-the whole thing is on film from at least a half a dozen angles. Smith could be arrested today, tomorrow, Never.

Let’s say he is, this is what the prosecutor would say:

  • Smith was sitting some fifty feet away from Chris Rock.
  • He laughed at the joke.
  • As Rock went on he apparently changed his mind.
  • He purposely went up on the stageand moved -with intent-toward Rock.
  • He had plenty of time to reconsider his actions.
  • He hit Rock in an attempt to hurtor humiliate him (or both).
  • He went back to his seat and yelled at Rock in a threatening manner(do they add disorderly conduct? Threatening? They could).
  • He partied all night -also on film-showing no remorse.
  • This can't go 'unpunished' because this kind of conduct is a threat to comedians on stages throughout the country.

What the defense would say:

  • Rock incited the incident by insulting Smith’s wife, Jada Pinkett Smith, on national TV.
  • Specifically, his ‘joke' was not only tasteless it centered on the effects of a medical condition Jada suffered from.
  • Rock Knew Jada suffered from it and still made the joke..
  • Chris Rock made the documentary Good Hair in 2007 – he is more than aware of the implications of attacking a Black Woman’s choice of hair style.
  • That made the joke' especially vicious.
  • Rock said something to Smith when Smith reached him (the video clearly shows him whispering something just before the slap) further inflaming the situation.

That's it. That's what would go to the jury-but good luck getting one. Who hasn't seen the video; who doesn’t have an opinion?