Bill Cosby should testify at his trial

He may not want to, and it may be painful for everyone to watch, but Bill Cosby should take the stand and testify in his trial for aggravated indecent assault — especially if he wants to stay out of prison.

The prosecution finished its presentation last week in the case against Cosby for allegedly committing various acts of sexual assault against Andrea Constand, a former director of operations for the women’s basketball team at Temple University who met Cosby, a powerful Temple alum, back in 2002. The evidence of guilt appears strong.

The jury heard portions of Cosby’s prior testimony where he admitted to giving women Quaaludes (a strong sedative and recreational drug) before having sex with them. The deposition testimony was preceded by the powerful and sometimes emotional testimony of Ms. Constand, the alleged victim in the case, and Kelly Johnson, another woman who claims that she was sexually assaulted by Cosby in a strikingly similar manner.

There was also a behavioral expert who testified about Ms. Constand’s delayed reporting of the incident, and a toxicologist who opined as to how taking a drug (whether it was Benadryl as Cosby claims, or Quaaludes as suggested by his prior deposition testimony) may have affected Constand at the time of the alleged crime.

While the defense was able to point out many inconsistencies in the testimony of Constand and Johnson, and a possible bias on the part of the paid experts, the prosecution’s case appears solid.

Now, it’s Cosby’s turn. His lawyers are expected to start presenting evidence on Monday. I’ve tried dozens of sexual assault cases, and the biggest decision in a case like this is whether the defendant will testify. Will the jury get to hear the defendant’s side of the story directly from his or her perspective?

Defense lawyers know that most jurors want to hear the defendant speak, but sometimes that can be a really bad idea. A defendant who takes the stand may have to admit to facts that are incriminating. By testifying, a defendant may also “open the door” to otherwise inadmissible evidence. In this case, the judge kept out all the other women who have made similar allegations against Cosby except for one — Johnson. If Cosby testifies that he is a great guy, then he is presenting “good character” evidence. Most judges would then allow the prosecutor to rebut that with “bad character” evidence, and that could include testimony from the other dozen or so women who have told stories similar to Constand’s.

This is a delicate balancing act. But making the wrong decision could lead to a decade or more in prison. When I’m advising a client to testify or not, one of the most important factors is how I think the client will appear on the stand. If the client is otherwise presentable and credible, and especially if the client is personable, I usually prefer that the jury hear directly from my client. They need to see my client stand up to hostile cross-examination, and they need to hear my client say he or she didn’t do it.

This is even more of a motivating factor when my client is well-known. Cosby is a celebrity, and celebrities are treated differently in the criminal justice system. While they may suffer from more pretrial publicity than the average defendant, and may see a rush to judgment in the gossip pages and blogs, celebrities tend to have a big advantage when the case goes to trial. Juries don’t like to convict celebrities unless there is overwhelming evidence that they are guilty.

And Cosby is not just another well-known entertainer or sports star. He is a beloved figure in American culture. Cosby was an extraordinarily successful actor and comedian primarily because of his personal charisma and charm. And his most memorable character, Dr. Cliff Huxtable, was truly “America’s Dad” for my generation. Millions of us saw him as a father figure and looked up to him as a role model.

While many people’s perception of him have dramatically changed as a result of the many allegations of sexual assault, a good defense lawyer will make sure Cosby’s testimony goes through his personal history, his many prior accomplishments and his susceptibility to people who may target him because of his wealth and fame.

A conviction or acquittal in a criminal jury trial like this must be unanimous. That means that one juror can determine Cosby’s fate. If just one person on that jury looks at Cosby and sees Dr. Huxtable, or sees the pioneering comedian that he once was, then that one person can keep Cosby out of prison. If one juror is a holdout and refuses to find Cosby guilty, the case will be declared a mistrial and the prosecution will have to decide if they want to try him again. Given the fact that he is getting old and going blind, a reasonable prosecutor may realize that Cosby could become a more sympathetic figure if he has to face multiple trials for an alleged crime that supposedly took place more than a decade ago.

Bill Cosby’s defense in this case appears to be limited to the issue of consent — he claims that Constand knew what she was doing and freely agreed to take the pills and to have sex. The only way the jury will believe that story is if they hear it directly from Cosby.

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