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 In civil lawsuits in the United States, plaintiffs need only
show that the weight of evidence is on their side, meaning they
have information to tip the scales above 50 percent in their
favor, as opposed to criminal cases in which prosecutors must
prove claims beyond a reasonable doubt.
At least 10 women have pending civil claims against Cosby in
lawsuits filed in California and Massachusetts.
Two have brought claims against the 79-year-old entertainer for
sexual assault. Others, barred from doing so because their
claims were too old, have brought defamation claims against him,
saying he smeared their reputations by publicly denying their
accusations.
The judge in the criminal case against Cosby in Pennsylvania
declared a mistrial on Saturday after jurors said they were
deadlocked and unable to reach a unanimous verdict on charges
that Cosby sexually assaulted Andrea Constand in 2004. At the
time, Constand worked at Cosby's alma mater, Temple University.
David Harris, a professor at the University of Pittsburgh School
of Law who specializes in criminal justice, said the hung jury
did not mean that a civil jury would clear Cosby of liability.
“There may not be enough evidence for a criminal conviction, but
that does not rule out a civil verdict,” said Harris.
Approximately 60 accusations of sexual assault have been made
against Cosby over a number of years, but only Constand's
resulted in criminal charges because the other alleged incidents
were too old to prosecute. Cosby has denied all of the
accusations.
Constand herself sued Cosby in 2005 and settled for an
undisclosed sum.
Women bringing civil cases would also likely find it easier to
introduce testimony from other accusers to support claims that
Cosby engaged in a pattern of assault, said Douglas Wigdor, a
plaintiffs' attorney who represents clients in sexual harassment
cases.
Little testimony about other accusations against Cosby was
allowed in the Pennsylvania trial because of the strict
standards for admitting evidence in criminal cases.
Prosecutors had sought to have 13 other accusers testify in
Constand's case, but the judge allowed only one, finding that
more would unfairly prejudice the jury.
CHALLENGES ALL AROUND
Even with the lower standard of evidence in civil cases, Rodney
Smolla, dean of Delaware Law School, said that plaintiffs
bringing defamation claims faced a significant legal challenge.
In addition to proving that Cosby assaulted them, Smolla said,
they would have to establish that he said something about them
beyond denying the allegations, such as calling them known liars
or promiscuous.
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 “The defamation case is this clever way of saying, If I say
you raped me and you say it didn’t happen, then you’re defaming
me by calling me a liar,” he said. “And that in itself is a
difficult defamation case. It’s not a classic defamation case.”
Smolla said the outcome of any civil case would depend on how
jurors behave in terms of how seriously they take the case, how
they relate to one another and how they deal with holdout
jurors.
“That is the human side of the legal system that can be hard to
predict,” he said.
DAMAGES VS JAIL
Paul Callan, who represented the estate of Nicole Brown Simpson
in a civil case against her ex-husband, former football star O.J.
Simpson, after he was found not guilty of her murder, said
courts are much stricter in excluding evidence in criminal cases
because a conviction could lead to incarceration.
“In civil cases, the battle is over money damages, as opposed to
sending someone to prison," Callan said. "In my experience, the
courts tend to be far more liberal in allowing both sides to
introduce a greater volume of evidence than the stricter rules in
criminal cases."
While Simpson was acquitted in the 1995 criminal case, a jury in the
civil case ordered him to pay $25 million in punitive damages to the
families of Nicole Brown Simpson and Ronald L. Goldman, who were
together when they were killed. The jury also awarded $8.5 million
in compensatory damages to Goldman's family.
Before it could decide the awards, the jury in the civil case had to
determine if O.J. Simpson was the killer.
Callan said the $33.5 million awarded in the case reflected the
jury's reaction to a double homicide and was larger than a potential
award to someone who has civil claims against Cosby.
But in the aggregate, he said, Cosby could face a comparable award
because of the number of alleged victims.
(Story refiles to delete extraneous word in the fifth paragraph.)
(Reporting By Brendan Pierson in New York; Editing by Noeleen Walder
and Toni Reinhold)
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