When you think about it, how could a jury fail to convict a man who sexually assaulted 60 ( yes, that is SIXTY, or sixty, or OMG s-i-x-t-y) women, almost all of whose stories are eerily similar? That is, he gave them alcohol and drugs, such as Quaaludes, and then sexually assaulted them. Guilty, guilty, guilty.
As we watch the re-trial of the famous Bill Cosby for his sexual assault of Andrea Constand, we have to wonder why he wasn’t convicted the first time (i.e., why did the case result in a mistrial?) and, given the ascent of the #metoo movement, with the accompanying consciousness raising, whether justice will be done in the retrial. The jury hasn’t yet started to deliberate but some lessons can already be learned.
First, of course, the burden of proof is simply higher in a criminal case than in a civil case, and there are good policy reasons for that. We want to be very sure when we put someone behind bars. Second, the jury pretty much never has the entire story. In the first trial, the judge only allowed one other victim to testify, and in the re-trial, 5 victims have testified. In all cases, for reasons both right and wrong, not all evidence is heard by the jury. And lastly, it is unusual for a civil case involving incidents so far into the distant past to proceed, which does provide reasons to sow reasonable doubt, and to question witnesses’ and victims’ memories and motives, in this criminal case.