Cosby case: The challenges both sides will face

Bill Cosby (top, left) has been charged - for the first time - with aggravated indecent assault. Among his accusers over the years is Ms Andrea Constand (top, right).
Bill Cosby (above) has been charged - for the first time - with aggravated indecent assault. Among his accusers over the years is Ms Andrea Constand.PHOTOS: AGENCE FRANCE-PRESSE, REUTERS
Bill Cosby (top, left) has been charged - for the first time - with aggravated indecent assault. Among his accusers over the years is Ms Andrea Constand (top, right).
Bill Cosby has been charged - for the first time - with aggravated indecent assault. Among his accusers over the years is Ms Andrea Constand (above).PHOTOS: AGENCE FRANCE-PRESSE, REUTERS

Legal experts assess obstacles the prosecution and defence will have to contend with during trial

NEW YORK • For years, as Bill Cosby and his lawyers rebutted accusations that he was a sexual predator, his defenders could point to one incontrovertible fact: He had never been charged with a crime.

Now that has changed, with a Pennsylvania prosecutor charging Cosby, 78, with aggravated indecent assault on Wednesday.

The case is likely to be a media sensation, and legal experts, quoted by the New York Times, have already begun assessing what is in store for both sides in court.

FOR THE PROSECUTION

Legal experts say the prosecution will perhaps be bolstered by a deposition from Cosby in a previous civil suit by the woman at the centre of the case, Ms Andrea Constand, in which he acknowledged giving other women quaaludes as a party drug in his efforts to have sex - which he insisted was always consensual.

Cosby's lawyers are trying to have a deposition he made from the 2005 civil case resealed. But investigators, who obtained the full transcript legitimately from the office of Ms Constand's lawyer, are almost certain to be able to introduce it at the criminal trial with or without a seal, legal experts say.

The deposition could prove damaging, they say, because it could reinforce an image of Cosby as an unapologetic seducer of young women who relied on fame and wealth as levers in his sexual conquests

The experts also say the wave of accusations against Cosby by dozens of women over the past year strengthened the prosecution's case even if the women are not permitted to testify because their denunciations have resonated broadly.

The charges, and a potentially lengthy trial that is bound to be a media spectacle, would put Cosby under a microscope like never before.

FOR THE DEFENCE

Legal experts say that in Cosby's favour is the fact that there is a lack of forensic evidence related to Ms Constand's decade-old allegation, and the decision by a previous district attorney not to prosecute based on the evidence at the time.

One expert points to the presence of a new district attorney in Montgomery County, where Cosby was charged, after a heated election in which the actor was a central issue. Once elected, the new district attorney had a limited time period to file charges, because the 12-year statute of limitations expires in January. Cosby's legal team has already seized on this political aspect.

Lawyers say Ms Constand will also have to explain why she returned to Cosby's house on the night she said he assaulted her, a visit that she told investigators came after two previous unwanted encounters - including one when she said he unbuttoned her pants and began touching her. The jury will have to decide whether the relationship was consensual or predatory, says Mr Stuart Slotnick, a former prosecutor in the Brooklyn district attorney's office. He asks: "Despite these two horrendous meetings she continues to trust Bill Cosby and returns to his house again?"

THE WILD CARD

Cosby's legal team is expected to fight to bar testimony from other women who have accused him of sexual misconduct over many years, and to stop the introduction of the entertainer's own testimony from Ms Constand's earlier lawsuit.

In Pennsylvania law, there is a general rule against admitting evidence from other cases in which no crime has been charged because it could prejudice the trial.

But such evidence can be allowed under certain circumstances, lawyers say - for instance, if the other behaviour is so similar that it can be said to demonstrate a "common scheme or plan", a kind of unique fingerprint of the defendant.

Seating a jury will also be difficult, experts say; the publicity over Cosby's suspected acts will make it hard to find jurors who have not already made up their minds.

A version of this article appeared in the print edition of The Straits Times on January 02, 2016, with the headline 'Cosby case: The challenges both sides will face'. Print Edition | Subscribe