4 Legal Experts Explain Bill Cosby’s Defense Strategy

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Let’s dispel with the fiction that Bill Cosby’s defense didn’t know what it was doing. Photo: Pool/Getty Images

Bill Cosby’s criminal trial began on Monday, June 5, with powerful opening statements from both Cosby’s lawyer, Brian McMonagle, and prosecutor Kristen Feden. It continued for five days, during which the jury heard from Andrea Constand, the woman accusing Cosby of sexual assault, as well as 11 other witnesses, including Constand’s mother and another of Cosby’s alleged victims. And on the sixth day, after calling just one witness, Cosby’s defense team rested its case.

The approach seemed to catch the media (including New York) off guard. Many news outlets expressed surprise that the defense’s argument would focus solely on impugning Constand’s credibility — rather than, say, attempting to bolster Cosby’s by calling big-name character witnesses, or doing anything else to depict him as the harmless mentor figure his lawyer described on day one. Had the defense had simply given up?

But among experts in criminal defense, the actions of Cosby’s team have been much less controversial — in fact, the consensus view is that his lawyers did more or less what was expected. The jury has yet to reach a decision in the case, but in the aftermath of the trial, we asked four legal experts to explain why Cosby’s narrowly tailored defense strategy made more sense than the first wave of headlines may have suggested.

“Often, the defense decides less is more.”

I wasn’t surprised that the trial ended when it did. If there’s no one else present when the incident happens, you’re not swimming in likely defense witnesses. Most people who practice criminal defense were not at all surprised that Bill Cosby didn’t take the stand — that would’ve been an extraordinarily difficult cross-examination to navigate. I don’t have the sense that he is at the height of his faculties, which would’ve made it even more difficult, and there was the chance it could’ve opened him up to questions about dozens of other women. The other powerful reason not to let him anywhere near the witness stand is his deposition — that deposition was very harmful to him and very difficult for him to explain, and when that happens, you often decide that less is more.

I think they didn’t call character witnesses for the same reason: The prosecution would have been able to ask the character witness, “Have you heard about the fact that 60 other women have accused him of essentially the same conduct?” The jury may know that already because they, you know, live in the world, but it’s been kept from them as an evidentiary matter. And if I was a defense lawyer, I would not prefer that question to be asked.

So you rule out character witnesses, you rule out eye witnesses, you rule out him, and you wind up with very little in the way of a defense case. This is a high-profile case, and I think a lot of people think, well what does the other side say? And the answer here is that what the other side had to say, they said in cross-examination.

Paul Shechtman, former New York State Director of Criminal Justice

“Bill Cosby’s testimony could’ve been disastrous.”

Bill Cosby’s testimony could’ve been disastrous. The events happened a very long time ago, the deposition testimony happened a long time ago, and he’s not a young man. If he’d said anything on the stand that was inconsistent with even a minor detail of a prior statement, that would’ve been grist for cross-examination. Inconsistency could’ve been taking the stand and flat-out denying that he had provided quaaludes to partners. But even minor things, like an account of how many times he believed he’d spoken to the victim, or if he characterized their interaction differently, would’ve been grist for cross-examination. And eventually a witness can just start to look bad, even if they’re only being cross-examined about relatively minor aspects of their account.

What’s more — and I think this is something the public can sometimes miss — sometimes the fact that the defendant has not called witnesses is made to suggest that there isn’t a defense. And that’s just a real misunderstanding of what the defense’s burden is. The defense doesn’t have a burden; it’s the prosecution that has to prove the case beyond a reasonable doubt. So equating no defense as a weak defense case misses the fact that a lot of the defense’s work happens in cross-examination.

In sexual-assault cases, it’s not uncommon for the state’s case to rest very heavily on the credibility of the alleged victim. And it’s something that prosecutors are very aware of when they’re deciding whether to bring a case. They know that the victim’s account is going to be at the center of the case, and it’s typically where the defense launches its attack.

Jennifer Laurin, professor, University of Texas School of Law

“If the defense does not put a dent in the credibility of the accuser, they’re going to lose. Other than that, they have nothing to add.”

It would be very unusual to put the client or defendant on the stand. Defendants who take the stand tend to do very poorly; they tend to hurt themselves more than they help themselves. That’s because, first of all, it’s very hard for anyone to testify, period. And secondly, you don’t know how people are going to react to someone’s personality and credibility. So if you’re counting on putting the client on to make a good impression, that’s a huge risk to take. And here you don’t need that, because Bill Cosby’s reputation precedes him.

Right now, the jury only has Andrea Constand’s truthfulness to consider, and the prosecution needs to prove her truthfulness beyond a reasonable doubt — a very high standard. The defense only needs reasonable doubts about her truthfulness — they only need one person to have some questions about whether she’s telling the truth or not. That makes sex crimes very difficult to prosecute precisely because of this type of strategy: The defense prefers to keep all the scrutiny on the complainant testifying.

The only kind of evidence that would’ve been worth putting on for them would’ve been very blatant evidence that would undercut the complainant’s version. But it’s very rare to have evidence in a consent case that’s a quote-on-quote slam dunk. Basically, all of the defense’s work was done in the cross-examination of the complainant and the secondary witness. If the defense does not put a dent in the credibility of the accuser, they’re going to lose. Other than that, they have nothing to add.

Shan Wu, former federal prosecutor specializing in sex crimes

“The question is whether she can be believed beyond a reasonable doubt.”

To me, the defense was entirely predictable. When defense lawyers see a risk that the defendant testifying will open the door to damaging evidence, they keep the defendant off the stand. And there was no way that Cosby could either testify or call a character witness without opening the door for the prosecution to bring in all the other women who’ve accused him.

Instead, the question is whether [Andrea Constand] can be believed beyond a reasonable doubt — that’s Cosby’s entire defense. And here it appears that his lawyer has a very good argument about the credibility of the complaining witness. He’s got her inconsistencies on the date, he’s got her accompanying him to the casino after the event, he’s got some discrepancies in her account to law-enforcement officers, so obviously he’s resting his case entirely on that.

In sexual-assault cases, this is probably more common than any other defense. In fact, in any one-witness case, the most common defense is to attack the credibility of the prosecution. These are difficult cases, and they’ve taken certain precautions to try to protect the complaining witness. But there’s really no way to have a criminal case where a person’s freedom is at stake if you limit the ability of the defendant to challenge the truthfulness of the evidence against him.

Bill Jeffress, trial attorney

4 Legal Experts Explain Bill Cosby’s Defense Strategy