Jury selection in sexual-assault cases like Bill Cosby’s present unique challenges | News | Pittsburgh | Pittsburgh City Paper
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Jury selection in sexual-assault cases like Bill Cosby’s present unique challenges 

“You have to get jurors to give up their script and listen to the evidence presented.”

Jurors for the Bill Cosby sexual-assault trial will be selected in the Allegheny County Courthouse next week. - CP PHOTO BY KRISTA JOHNSON
  • CP photo by Krista Johnson
  • Jurors for the Bill Cosby sexual-assault trial will be selected in the Allegheny County Courthouse next week.

At the beginning of jury selection in a sexual-assault trial, many prosecutors have been known to give the following instructions to potential jurors:

“Look at the person next to you and tell them about your most recent sexual experience,” he or she will say.

The potential jurors often stare aghast or even gasp before the prosecutor tells them they don’t actually have to share such a personal experience with a stranger. But, the prosecutor says, that’s exactly what the alleged victim in this trial will be asked to do.

Next week, jurors for the Bill Cosby sexual-assault trial will be selected right here in Allegheny County. Cosby is being tried for the alleged sexual assault of Andrea Constand, a former Temple University employee. The woman claims Cosby, a Temple alum and then-member of the school’s board of trustees, drugged and sexually assaulted her at his mansion in Elkins Park, Pa., in 2004. (City Paper does not typically print the names of alleged sexual-assault victims, however, Constand has spoken out publicly in this case.)

From start to finish, sexual-assault cases are some of the most sensitive tried in court. In sexual-assault trials, jurors come to the courtroom with a set of preconceived notions, and it’s up to legal teams to uncover them in an effort to ensure the case is not hampered by sexual-assault biases. But uncovering these biases presents its own set of problems for potential jurors as the process can be traumatic for those still coming to terms with their own experiences with sexual assault. And, ultimately, according to research into sexual-assault cases, biases are often unavoidable: In cases like Cosby’s, jurors are more likely to base their verdict on what they bring to the courtroom, not what they learn once they’re there. 

“It’s going to be a very complex jury selection,” says Jeffery Frederick, director of jury-research services for National Legal Research Group, Inc. “You have the nature of the case being a he said/she said case, and people’s experiences with sexual assault and rape, not only their own, but people they know. You have Mr. Cosby as a public figure who has taken a great hit on his reputation, but there are still people who are great fans. There’s a lot of different issues that are floating around here.”

The jury-selection process isn’t like picking teams in gym class. Legal teams don’t select the jurors they want; they can only exclude jurors from sitting in a trial. The prosecution and defense each has a set number of preemptory challenges, which can be used for any reason, and an unlimited number of challenges for cause, that are decided by the presiding judge.

In order to decide which jurors to exclude, the legal teams conduct a process called voir dire, a preliminary examination that examines a juror’s background and attitudes toward the case. This is especially important in this case because sexual-assault accusations against Cosby have been at the center of media attention for years.

click to enlarge Bill Cosby - PHOTO COURTESY OF THE WORLD AFFAIRS COUNCIL OF PHILADELPHIA
  • Photo courtesy of the World Affairs Council of Philadelphia
  • Bill Cosby

“For either side, what you’re trying to do is, you’re trying to understand the opinions, viewpoints and motivations of the potential jurors you face,” says Frederick. “In this case there’s a number of avenues you have to consider. One is the substantial publicity of this case and all the information that’s been out there. Some of this information is inadmissible. For example, the 59 or 58 people who claim they have been sexually assaulted by Mr. Cosby, that is not relevant to this case. But the fact that there are indications of other alleged victims, you’ll have issues with that and whether jurors can set that aside.”

Nowadays, some jury analysis is conducted behind the scenes by analysts who pore over a potential juror’s Facebook page. According to Frederick, 70 to 80 percent of people have Facebook pages, and thanks to the social-media site’s interface that allows users to respond to posts with emojis, analysts can uncover how jurors feel about certain topics.   

“You’d have to look at stories and articles related to Cosby on Facebook and look at the comments people have made. You go through to make sure none of the jurors that have come up have expressed their emotions on these posts,” says Frederick. “You want to see if they have certain likes that would indicate that they’d be more receptive to government or the defense. And there are actual Facebook pages that are pro- and anti-Cosby.”    

Uncovering the biases of potential jurors is especially important in sexual-assault cases, says Lynn Hecht Schafran, director of the National Judicial Education Program.

“People come into court with a mental script of what rape is. Rape is a stranger who jumps from the bushes with a knife and there’s a woman walking alone late at night in a provocative dress,” Schafran says. “That’s 180 degrees from reality. The reality is that the vast majority of rapes are committed by someone the victim knows, indoors. It has nothing to do with the clothing you’re wearing. There are no weapons involved. You have to get jurors to give up their script and listen to the evidence presented.”  
The biases jurors bring to sexual-assault trials are especially important in those cases involving scenarios that mirror the Cosby case, where the defendant is known to the victim. And according to research, the preconceived notions jurors have about these kinds of incidents can often determine the verdict in these cases, regardless of the facts presented during the trial.

In the 1960s, Philadelphia researchers Harry Kalven and Hans Zeisel observed jury deliberations and surveyed judges in 3,576 criminal jury trials. In approximately 25 percent of the cases, they found, the jury and judge disagreed on the verdict.



“There was one area of the law where judges were in disagreement with where their juries were coming out, and only one,” Schafran says. “And that area was sexual assaults with one victim and one defendant who knew each other. Where the judges would’ve convicted, the jurors acquitted.”

In the study, there were 42 cases where, much like the Cosby case, there was “one perpetrator, the parties knew each other, no weapon was used, and there was no physical injury extrinsic to the rape.” Of the defendants in this case, only three were convicted.

“What the researchers concluded was that the jurors were making decisions based on their own feelings and assessments about the victim’s lifestyle, the risks they were taking,” Schafran says. “And instead of looking at the defendant and what did he do, they were looking at the victim and what did she do.”

That’s why Schafran says it’s important for the prosecution to take its time during voir dire to uncover sexual-assault-related biases. Thankfully, she says, due to the high-profile nature of the Cosby case, she believes the prosecutor will be given the necessary time. 

“People have very different kinds of questions they ask. Some will ask straight out, ‘Do you think it’s ever possible for a man to rape his wife?’ and there will be people who say no, so then they can be excused for cause,” Schafran says. “Sometimes people have indirect ways of trying to gauge where somebody’s personal convictions and sensibilities are. It really is an art, and even the best are not always able to surmount these really entrenched biases that people have about victims of sexual assault.”

But these questions can also present problems. Schafran says it’s very common during this process for potential jurors to disclose their own experience with sexual assault, sometimes for the first time.  

“The incidence of sexual violence is so high, that in any jury pool, the likelihood that there will be women and men that have been victimized as children or adults is very high,” Schafran says. “We encourage judges to handle this part of the questioning with as much privacy as possible. What happens sometimes is somebody ends up making a disclosure in open court. This questioning can be very rough for people who are survivors, and it’s important to bear that in mind.

“The point is to be respectful of the fact that for many people this may be the first time they’ve disclosed, or that this is going to throw them right back into something they thought they had moved beyond.”

Despite all of the research and analysis that goes into jury selection, there’s great debate about what makes someone a good juror for a sexual-assault case, and many assumptions about jury selection have been challenged. For example, while women might be viewed as more sympathetic to victims, a lot of prosecutors say women are more judgmental because they have difficulty acknowledging their own vulnerability.

“Women sometimes think, ‘I wouldn’t have gone to that fraternity party, I wouldn’t have walked down the street, or I wouldn’t have parked the car there,’ as a way of distancing yourself from the situation,” Schafran says. “And people who have been victimized are not necessarily totally excluded. Judges want all the jurors they can get.”


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