The retrial of Bill Cosby, on charges of sexually assaulting Andrea Constand in 2004, ended yesterday with a guilty verdict. Cosby has been convicted of three felony counts of aggravated indecent assault: for penetration without consent, penetration while the victim was unconscious, and penetration after administering an intoxicant. He stands to be sentenced to as much as ten years for each conviction. The first prosecution of Cosby, last June, for the same crimes, ended in a mistrial, owing to a hung jury. Because the trial and the retrial divided neatly into pre- and post-#MeToo events, Cosby’s case promised to show, in real time, the legal impact of a young social movement. Anticipating the decision was like girding for a verdict on the movement itself.
Trial lawyers often say that cases are won or lost in jury selection. Judge Steven O’Neill, who also presided over the first Cosby trial, explicitly questioned the hundred and twenty potential Cosby jurors on whether they knew of the #MeToo movement and sexual-misconduct allegations in the entertainment industry—nearly all did—and, related, whether they could be impartial in assessing the trial evidence. The judge seemed to acknowledge that the effects of social shifts on ordinary sensibilities and common sense are features of the conscious design of our jury system. The twelve-person jury on the second trial was reportedly identical to that of the first in terms of racial and gender composition, but the second appeared to skew a bit younger, with more millennials in the mix—which was perhaps significant, given the much-noted generation gap in levels of support for #MeToo.
The prosecution and the defense typically battle over what, among the available evidence, should be shown to or kept from the jury. A #MeToo effect could perhaps be seen here, as well: in the second trial, the judge permitted the jury to hear much more evidence than he did in the first. Constand’s account of Cosby assaulting her after he gave her pills that immobilized her was consistent across the two trials. On retrial, the new jury heard testimony from five additional women, who told similar stories of Cosby drugging and then assaulting them in the nineteen-eighties, whereas the first jury heard from only one other victim. Dozens of women have come forward to accuse the entertainer of sexual assault, with the alleged incidents spanning a period of fifty years. Cosby has never been charged, and likely never will be, for these additional alleged crimes, because their statutes of limitations ran out before they came to light.
In 1991, William Kennedy Smith, President John F. Kennedy’s nephew,was acquitted on a rape charge, with the jury presumably swayed by Smith’s claim that the sex was consensual. The case was widely thought to have turned on an evidentiary ruling: the trial judge’s exclusion of accounts by three additional women who each accused Smith of raping or attempting to rape them in the past. The jury was not permitted to hear this evidence because of the legal principle that the accused in a criminal case is to be tried only for the crime charged, not for his character or other conduct; “prior bad acts” are generally supposed to be inadmissible as evidence.
Yet, during Cosby’s trial on charges of assaulting Constand, the jury did hear testimony from multiple additional alleged victims. (The prosecution originally wanted to introduce testimony from nineteen women.) The judge allowed the evidence under two interrelated possible exceptions to the rule excluding prior bad acts. First, the additional victims’ testimony could show a common plan or scheme, in which there is a logical connection between the alleged prior assaults and the charged crime—they are considered parts of a whole, overarching goal. Second, the additional testimony could show that Cosby did not think that Constand was consenting to sexual penetration. The remarkably similar accounts of multiple women, who said that Cosby gave them pills that rendered them unconscious or semi-conscious and then penetrated them, tended to disclose Cosby’s signature method, which showed his intent to penetrate Constand without consent in that instance—as distinct from a mere propensity to commit sexual assault.
Given the bedrock principle of trying defendants only for the charged (and not uncharged) conduct, applying these exceptions is tricky. But it is difficult to imagine a situation more suited for their application than one in which more than fifty women have described a very similar modus operandi in a period spanning five decades.
More broadly speaking, exceptions to the prior-bad-acts rule have particular significance in the #MeToo era. Beginning with the sheer number of women alleged to be victims of Harvey Weinstein, Charlie Rose, Matt Lauer, and countless others, in the course of decades and generations, a basic concept of #MeToo is the power of numbers across time: the difference between a single victim, whose lone account might not be believed, and the choruses of “me too” that make each individual’s account that much more believable. When it comes down to it, #MeToo itself constitutes an evidentiary claim of sorts: what you say happened to you happened to me, too, and so it is more likely that we are both telling the truth.
That logic may now find a counterpart in evidentiary decisions at trial. And that connection may find more support in the traditional, “doctrine of chances,” which the Cosby prosecutor pushed but the judge did not invoke. The doctrine of chances reasons that evidence of prior bad acts might be relevant enough to introduce at trial on a theory that goes something like, What are the chances that an innocent person would be repeatedly involved in such similar, abnormal circumstances?
The Cosby case is, in the end, an emblem of #MeToo, not just because it ended in a guilty verdict but because of the exceptional if controversial evidentiary procedure that enabled a chorus of witnesses—witnesses who would generally be excluded—to back up the main complaining witness, which could well have made the difference between a juror having a reasonable doubt and not having it. It remains to be seen how broadly the legal workarounds for uncharged prior misconduct will be construed by trial courts in future sexual-assault cases, ones in which defendants are not alleged to have such a distinctive signature in the commission of their crimes—or so many victims. But, if we do see a robust #MeToo effect on evidence rules in court, it will likely include more, broader attempts by prosecutors to push the limits of using alleged past misconduct to bolster proof of crimes.
