Defending Sexual Assault Charges and the Bill Cosby Trial

The Bill Cosby trial enters its third day today as the comedian faces three counts of aggravated indecent assault, which are felonies under Pennsylvania law.  Things are moving along.  The jury is in the box, and witnesses are taking the stand in the Montgomery County courtroom.

Accuser on the Stand

This morning, the testimony of accuser Andrea Constand continues with more defense cross-examination of the woman who alleges Bill Cosby drugged her and then sexually assaulted her back in 2004.  Defense questioning of Ms. Constand began yesterday afternoon.

What many people may not realize is how much of this sexual assault trial has already been decided, it’s all over on many issues.

Think a Bill Cosby Guilty Verdict is a done deal?  Maybe it is, maybe it’s not.

Importance of Pre-Trial Motions

Lots of defense work takes place weeks and months before trial.  Motions are made, and lots of decisions made by the judge happen long before jury selection.  These pre-trial rulings can be extremely important in the outcome of the case.

As discussed in past posts, the sooner a defense lawyer gets to work on a felony case, the better.  It’s not uncommon for someone under suspicion by the police for a serious felony like sexual assault or rape to have their defense attorney working during pre-arrest investigations.  For more on this issue, read “Pre-Arrest Criminal Investigations.”

February Pre-Trial Motions in Cosby Sexual Assault Trial

In the Bill Cosby case, there were lots of motions presented to the trial judge back in February.  The defense scored several victories in these hearings.  One of the biggest was moving to limit the number of accusers who would testify.

This means that the scope of the evidence to be presented at trial this week was decided back in February.   That’s the power of the pre-trial motion in defending sexual assault cases. 

Limiting Evidence in Prosecution’s Case

In February,  Judge Steven O’Neill ruled that only two accusers would be allowed to testify against Bill Cosby in the trial.  This was a defense argument, to limit the number of women taking the stand to point the finger at the defendant.

The prosecution wanted 13 women claiming to be victimized by Cosby; it got Andrea Constand and one other woman, Kelly Johnson.

The defense’s winning argument here?  It would be prejudicial, especially since these witnesses would be testifying on events that happened decades ago and for which no criminal charges were ever filed.

Importance of Minimizing Trial by Media

Not every criminal trial gets local media coverage, much less the international scrutiny of the Bill Cosby sexual assault case.  However, anytime there is media coverage of a pending criminal matter, there is the danger of “trial by media.”

Having news reporters and news cameras in the courtroom or even having reporters “live-tweeting” the courtroom events as they transpire can be so powerful that it’s been given a name: the “trial by media.”

Trial by media has the public (and possibly the potential jurors) making decisions on guilt or innocence long before the actual evidence is presented to the jury.  Trial by media doesn’t abide by the rules of evidence or the admonitions of the judge.  Gossip is considered; bias can be formed.  See, Phillipson, Gavin. “Trial by media: The betrayal of the First Amendment’s purpose.” Law and Contemporary Problems 71, no. 4 (2008): 15-29.

In the Bill Cosby case, the defense has a major win because much of this case – and this trial – will be kept out of the media.

Cameras are not allowed in the courtroom.  Media coverage of the trial is basically limited to recapping at the end of the trial day.  That’s standard practice under Pennsylvania law.

However, the trial judge has also banned reporters from “live-tweeting” or otherwise engaging in social media in the courtroom.  Anyone who disobeys this order risks jail as the bailiff can arrest them for being in contempt of court.

In any sexual assault case, gossip and innuendo at any level can harm the accused.  While all defendants are innocent until proven guilty, allegations of sex crimes can ruin careers and destroy relationships even if no one is charged, much less convicted.  

He Said, She Said

In many sexual assault cases, the evidence boils down to two versions of the event:  what the accused says happened, and what the accuser claims.  The jury must decide who is telling the truth, and if a crime occurred for which there should be a conviction and a sentencing.

Bill Cosby’s defense team has told the media that Cosby will not testify in this trial.  However  his prior deposition testimony in the civil case filed against him by Andrea Constand may be heard by the jury.

Constand was one of the first witnesses called by the prosecution.  Before her came the only other alleged victim the judge has allowed to take the stand.

Kelly Johnson testified on Monday.  In cross-examination, discrepancies in her testimony were challenged by the defense and a witness was called from her workers’ compensation case to show Johnson’s chronology of events was different when she filed her compensation claim from what she had testified on the stand.

The defense team in cross-examination will have to challenge the accuser’s version of events with other evidence.  Which it is doing; yesterday, Constand had to answer in cross-examination questions about why phone records showed 72 phone calls between her and Cosby over the year between the alleged assault and the date that she called the police about it.  There will be more cross today.

He said, she said: who will the jury ultimately believe?  That is the crux of the sexual assault case and demonstrates the importance of having a prepared and experience defense cross-examination. 

Make-Up of the Jury

During jury selection, many of the possible jurors admitted that they already had opinions formed on whether or not Bill Cosby was guilty of sexual assault.  That was a third of those called for jury duty in the case.  Another two-thirds said it would be “difficult” to be a juror in the case.

The Bill Cosby jury was chosen last month.  The defense is arguing that the prosecution has exhibited a “systematic exclusion of African-Americans” and that the jury will be racially biased against the defendant.

From a defense perspective, the reality is that race does play a part in any criminal trial, especially a sexual assault case where the defendant is a person of color.  Race must be considered as part of the defense case. 

Trial of Sexual Assault Cases

We will know soon enough whether or not Bill Cosby will be found guilty of sexual assault in his Pennsylvania criminal trial.  If he is convicted, then he faces years behind bars because these are serious felony charges.

Using this proceeding as an example, anyone who may be facing charges of rape or sexual assault can see how important it is to begin an aggressive defense as soon as possible.  Rumors and gossip in any sex crime allegation erupt early on and they never seem to fade away.

Moreover, police and prosecutors will be investigating to try and build a case for charging the most serious felonies that their evidence can support.

Any sexual assault allegation needs to be dealt with proactively and fast.  Not every case will be as intense as the Bill Cosby Sexual Assault trial, but his case demonstrates how fast someone’s life and career can be shattered before any jury even begins to deliberate. 

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, TOP 10 MISTAKES IN SEXUAL ASSAULT AND INDECENCY WITH A CHILD CASES.