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#MeToo likely to impact Cosby retrial, experts say

March 31, 2018

But in the summer of 2015, a judge released court documents from a deposition in a 2005 civil case and the Montgomery County prosecutor brought the case just before the 12-year statute of limitations was set to expire. Constand’s case is the only one to have resulted in a criminal trial since the majority of cases have exceeded the statute of limitations.

Tuerkheimer says #MeToo has made the passage of time more understandable.

“Her delay in reporting this, the way she did it, in a staggered sequenced manner — we see a lot of that in stories surfacing now,” she said.

Graves likened Constand’s description of wanting to continue contact with Cosby, a powerful entertainer, to the alleged experiences shared about movie mogul Harvey Weinstein.

“The power differential, between the person doling out the next job opportunity and the person who is trying to establish themselves, sets the stage for how people have reacted in the aftermath,” Graves said.

Jury selection will be key

One initial test of #MeToo’s impact will be jury selection.

Ken Broda-Bahm, of Persuasion Strategies, a Colorado-based jury consulting firm, says #MeToo has led to what social scientists call “disinhibition,” the idea that it is more acceptable for people to come forward and share their experiences about sexual assault.

“In a way it can make things better for the defense because you’re having more people express it and getting it out in the open as opposed to something that’s closed off,” he said.

Laurie Levenson, a professor at Loyola Law School, Los Angeles, believes both sides will likely bring up the #MeToo movement during jury selection but that a judge would probably prohibit discussing the movement at trial. But, she said, there are still implicit ways to remind jurors of the movement.

“You want that to be a very conscious aspect of their decision-making,” she said. “They’ll be more open to the victim’s claims realizing that this is not an isolated event.”

Five additional witnesses could boost prosecution

Earlier this month, Judge Steven O’Neill decided to allow five additional witnesses, from the 19 offered by the prosecution, to testify about their sexual assault allegations against Cosby. In the first trial, only one additional witness was permitted to testify.

Alan Tauber, a Philadelphia-based criminal defense attorney, thinks the judge’s decision to allow additional accusers to testify swings the pendulum heavily for the prosecution because it makes Constand’s testimony seem credible.

“The inclusion of more people testifying is really some of the most damning evidence — this is the worst thing for a defense team,” he said.

Carol Tracy, executive director of the Pennsylvania-based Women’s Law Project, said she agrees with Tauber that Constand’s testimony will be more credible but added that does not necessarily indicate a definite advantage for the prosecution. In fact, historically, the bias has run the other way.

“What underlies all of this is the depth of bias against rape victims, where they have been presumed to be liars,” Tracy said. “I think we’re at the dawn of really a greater social understanding that rape is very frequently committed by serial perpetrators, and these victims have been denied justice for so many years.”