I’m writing this two days after the diverse group of Maryland jurors who were asked to decide the Bill Cosby Case decided that they couldn’t decide.
They were a hung jury.
I followed the Cosby case pretty closely. The complex combination of a sexual assault allegation, celebrity, power, race and the age-old dichotomy of two different stories arising from the exact same night fascinated me.
It’s frequently said with either frustration, indignation, incredulity and even fear, that most sex assault cases come down to “he said” – “she said”.
In other words, the implication is that it’s an apparently simple matter for the jury to hear two sides of a story and decide who’s lying.
Of course, because the burden of proof in criminal cases is always on the State, the two-sided story is very often told through the alleged victim’s own testimony on direct examination, followed by the defendant’s story being told through his attorney’s cross examination of the alleged victim.
We’ve been involved in the defense of sex assault cases and a wide variety of other criminal and civil cases.
Trials are where stories are told and then tested.
The test is long. It’s difficult. The test is in the cross examination, but it’s also in the testimony of other witnesses. It’s physical evidence. It’s very often some version or even a piece of a version of the story seen from another angle. And, sometimes, for whatever reason – maybe because the witness is nervous or insecure – the story blows up because the witness says something that’s not true. Sometimes, it has nothing to do with the main story line.
In the end, if the primary story teller can’t tell their story – if there are inconsistencies, then doubt begins to grow in the courtroom.