Criminal case against Cosby could hinge on credibility

31 Dec, 2015 1:40 pm

NEW YORK – Bill Cosby’s sworn statement in 2005 that he used a prescription sedative to seduce at least one woman could be one crack in his defence that the prosecution is likely to exploit in a criminal sexual assault case against the once-beloved entertainer.

The charges that Cosby sexually assaulted a woman in 2004 after plying her with drugs and alcohol filed in a Pennsylvania court on Wednesday mark the first criminal case against the comedian whose reputation suffered from dozens of misconduct accusations.

The case will likely come down to who has more credibility with a jury, criminal defence lawyers said: Cosby, who was once a dominant presence on U.S. television, or accuser Andrea Constand, a former Temple University employee who went to police 11 years ago and then sued Cosby when prosecutors did not initially act.

Cosby’s lawyers intend to mount a “vigorous defence against this unjustified charge” and expect Cosby “will be exonerated by a court of law,” his lead attorney Monique Pressley said in a statement. She could not be reached for further comment.

Prosecutor Kevin Steele also could not be reached for comment.

Police said in court papers on Wednesday that they reopened the sex assault investigation in July this year after learning of Cosby’s 2005 testimony in the civil suit brought by Constand.

The decade-old testimony casts doubt over Cosby’s credibility because he said then that he gave Quaaludes to at least one woman for sex, police said in an affidavit accompanying the criminal complaint against Cosby. Based on the testimony, it was “likely he gave the drugs to other persons, including other women he planned to have sex with,” police said.

Cosby and Constand settled her lawsuit in 2006. The terms were not disclosed.


Police describe many of Cosby’s various statements as full of contradictions on basic questions such as what drug he told people he once gave to Constand.

Prosecutors in the United States are allowed to introduce into court such statements from civil lawsuits as long as the material is relevant to their case, lawyers with expertise in criminal defence said.

Cosby, 78, was charged with aggravated indecent assault on Constand. He appeared at a court hearing where a judge set his bail at $1 million.

Unless Cosby agrees to plead guilty, his case would proceed to a trial in suburban Philadelphia but any trial is probably several months away at least. Most prosecutions in the United States end in plea agreements, in part because of high legal fees, but wealthy defendants like Cosby are sometimes an exception.

As in all U.S. criminal cases, the burden would be on prosecutors to persuade a jury to find Cosby guilty beyond a reasonable doubt. Credible testimony by Constand would be essential to their case, lawyers not involved in the proceedings said.

Undermining an accuser’s credibility could be central to Cosby’s defence, said Tom Mesereau, a California defence lawyer who represented Michael Jackson in his successful defence against sex crime charges.

“A good defence lawyer will dissect all this bit by bit,” Mesereau said. “This woman’s motives have to be challenged, her background has to be thoroughly explored, and the motivations of these other accusers have to be carefully examined.”

Criminal defence lawyers said it was too early to say what role race could play in defending Cosby, who is among the most prominent black entertainers in U.S. history and publicly styled himself as a role model for other African Americans.

Wednesday’s police affidavit seeks to use Cosby’s words against him in several ways. It quotes Constand’s memory of what Cosby said to her on the night in question, statements Cosby made in an interview with police in January 2005, and conversations Cosby had with Constand’s mother in early 2005.

The statements could be important for prosecutors as they try to tease out potential inconsistencies in Cosby’s version of events.

Cosby told Constand’s mother that he gave Constand a prescription medication but told police he gave her only Benadryl, which is sold over the counter, according to the affidavit. Constand’s memory is that Cosby described it to her as “herbal,” which Cosby denies, the affidavit says.

A key question for Cosby would be whether to testify in his own defence at any potential trial. By testifying he would put himself at risk because prosecutor could introduce additional material to try to challenge Cosby’s credibility, but not testifying is risky, too, said Paul Robinson, a University of Pennsylvania law professor.

“It’s rational for jurors to expect the defendant to explain himself, especially in ‘he-said, she-said’ cases. If there’s no ‘he-said,’ because the defendant won’t get on the stand, that’s a problem for the defendant,” Robinson said. -Reuters

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