How strong is the criminal case against Bill Cosby?

Story highlights

  • Philip Holloway says there are important weaknesses in the criminal case
  • But he notes the odds are that Cosby's own words will convict him

Philip Holloway, a CNN legal analyst, is a criminal defense lawyer who heads his own firm in Cobb County, Georgia. A former prosecutor and adjunct professor of criminal justice, he is former president of the Cobb County Bar Association's criminal law section. Follow him on Twitter: @PhilHollowayEsq The opinions expressed in this commentary are his.

(CNN)Bill Cosby's lawyers moved Monday to get a judge to throw out the criminal charges against him in a sexual assault case brought by the district attorney in Montgomery County, Pennsylvania.

And it is true that If the state's case against Cosby had to stand on its own, without the benefit of the comedian's own words, it would be weak -- very weak. In fact there likely would not be a case at all. Here's why:
Cosby is presumed to be innocent and the criminal accusation charging him with aggravated indecent assault is just that, an accusation. It is not evidence. The state must prove his guilt beyond a reasonable doubt, which is the highest standard of proof known to law throughout the United States.
On its face, the case against Cosby is essentially a swearing contest between the only two people who know what, if anything, happened between them on some unknown date from mid-January to mid-February all the way back in 2004.
Do you remember what you were doing during that time frame 12 years ago? If you do, could you prove it beyond a reasonable doubt based on your memory alone?
Sexual assaults seldom occur in the presence of witnesses and frequently juries hear the insistence of a victim that the assault happened and the insistence of the accused that it either didn't happen or, if it did, that it was consensual. Since the accused is presumed innocent, a tie goes to the defendant and an acquittal is required.

Challenges by the defense

In the criminal complaint itself there are several things the defense could conceivably use to challenge the account of Andrea Constand:
1. Delayed reporting. It was fully a year after the alleged assault that Constand made the first allegation against Cosby. She allegedly told her mother on January 13, 2005, that Cosby had sexually assaulted her. While it is true that delay in reporting is not unusual in sexual assault cases and a jury might understand why she might have been reluctant or afraid to come forward, there's little doubt that this one-year delay would be an argument the defense would make.
2. There were allegedly at least two occasions when Cosby is accused of having sexually assaulted or battered Constand before the 2005 alleged assault. The first instance allegedly happened a few months after the two first met in late 2001 when Cosby is claimed to have touched her pants, waist and inner thigh. The second was on an unspecified date sometime later when Cosby allegedly unbuttoned Constand's pants and began touching her.
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Nevertheless, despite the claim of having been sexually battered by Cosby twice, Constand maintained an active relationship of some sort with Cosby that included dinners at his Cheltenham home, visits to his New York home, and meeting at a casino in Connecticut. This ongoing relationship with Cosby, which she admits was voluntary, could be interpreted by Cosby (or any juror) that she consented to whatever happened in 2004 and this was an ongoing courtship by both parties.
3. The police affidavit explains something that criminal lawyers know quite well -- that intoxication, which is the primary basis for the allegation that the encounter in question was nonconsensual, diminishes a person's ability to accurately perceive an event and to accurately recall it at a later date. We are now 12 years out from the alleged sexual assault, which, ordinarily, would give a skilled cross-examiner quite a bit to work with just on Constand's memory.
4. Constand admits to voluntarily taking unknown pills. According to police, she stated she trusted Cosby (despite his prior alleged sexual advances or assaults) and willingly swallowed three blue pills described to her merely as "herbal" after being told "these will make you feel good." Here again is fertile ground for a skilled cross-examiner to plant the seeds of reasonable doubt.
If that were the end of things, the case would never see the inside of a courtroom. However, that is not the end of things but only the beginning -- and it gets worse, a lot worse -- for Cosby. The allegations of Constand do not have to stand on their own and Cosby has only himself to thank (or blame) for why it is that he will very likely be convicted.

Bill Cosby's own words will likely convict him

We've all heard it many times: Everything you say can and will be used against you in court.
1. Every single word Cosby uttered to police investigators and in the depositions will be used against him, and his own words prove at least 95% of the state's case. For reasons known only to Cosby and his attorney at the time, he actually sat down with police on January 26, 2005, and essentially admitted -- with only minor variation -- to everything Constand claimed happened, except he told police it was a consensual sexual encounter. He had an absolute right to remain silent. Why he didn't avail himself of that right remains one of the real mysteries of this case.
Despite Cosby's insistence the encounter was consensual, he provided ample corroboration of a claim that would otherwise be very difficult to prove. According to police, Cosby admitted giving her pills, touching and kissing her, touching her bare breasts and touching her genitalia.
2. According to the prosecution account, nobody but Cosby knows for sure what sort of pills he gave Constand. He says it was Benadryl (diphenhydramine), the same chemical used in over-the-counter sleep aids, and even Cosby admits that those pills put him to sleep "right away." This means that on the issue of consent, this is the most damning evidence against him -- and he (with his lawyer present) provided it to the police. The presence of his counsel during police questioning all but guarantees his statement to police will be deemed voluntary and therefore admissible in his trial.
3. When directly asked if he had intercourse with Constand, Cosby allegedly replied "never asleep or awake." The police found this answer to be "unusual," perhaps suggesting Cosby might know something about intercourse with unconscious victims.
4. Even if Cosby's own words fail to prove the encounter was nonconsensual, the words of other accusers will likely make that case. The state will be able to use testimony from at least some, if not many, other accusers even though he is not facing criminal charges in connection with other accusers.
Why? Well there's a rule of law for just this purpose: Pennsylvania Rule of Evidence 404(b), which is nearly identical to a comparable Federal Rule of Evidence, says that although someone's bad character cannot normally be used against them in a criminal trial, it may be used to show "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident."
In other words, if the prior bad acts are so similar that they prove the defendant's "criminal signature," the court can and most likely will allow this testimony, so long as the relevancy of the testimony outweighs the danger of unfair prejudice to Cosby.
Regarding other women, Cosby reportedly admitted under oath in a civil deposition that he gave Quaaludes to other young women he wanted to have sex with. Indeed, this deposition testimony is specifically relied on by the police and prosecution in the criminal complaint as are "public claims by women who alleged Cosby had assaulted them under circumstances similar to those reported by ..." Constand.
The bottom line is that testimony of the potential parade of dozens of other alleged victims who tell remarkably similar stories will provide the prosecution with ample evidence the victim did not consent to any sexual activity due to her alleged incapacitated state.

What can we expect pretrial

1. Vigorous attempts by the defense to limit or eliminate testimony by other accusers. To this end the defense can be expected to argue that any allegations by other accusers are not reliable, too old to be relevant, and that the admissibility of this testimony would be unfairly prejudicial to the defense.
2. Predictably, the defense has now asked a judge to remove the prosecutor, because he campaigned in part on a platform that he would reopen the Cosby case and that this therefore is a political prosecution.
3. We can expect vigorous litigation on the question of whether the prosecutor in 2005 granted Cosby blanket immunity from prosecution as has now been alleged. It stands to reason that the prosecutor would have examined this issue before announcing charges. This may be Cosby's best hope for avoiding conviction.
4. A constitutional due process challenge based on lengthy prearrest delay. The idea behind this argument would be that Cosby is not able to mount an effective defense due to the lengthy delay. However, he would have to show that his defense has been actually prejudiced by the nearly 12-year delay. Given that he has been in civil litigation with Constand and others for quite some time over similar claims, he will be hard-pressed to show the delay has hampered the defense that he's had 12 years to craft, specifically the defense of "consent."
In the final analysis, if the prosecution can prove the claims made in the initial charging affidavit, Cosby faces a steep uphill legal fight.
Cosby, like all criminal defendants is presumed innocent and the prosecution's burden is a high one. Only time will tell if he will be convicted by a jury. Both sides have promised vigorous litigation, but if the charging affidavit is true, one thing is certain: Bill Cosby's very own words -- words that he did not have to utter -- have seriously jeopardized his defense and his freedom.