Famed actor and comedic celebrity Bill Cosby will be retried on three charges later this year. Last month Judge O’Neill declared a mistrial after jurors said they were unable to come to a unanimous verdict on any of the charges. Cosby, 79, did not testify in his own defense during the trial. One juror said that a retrial would be a “waste of money” because “there is no new evidence.” Is this juror right in that a retrial (assuming the State doesn’t get a “better” jury) would be a waste of time and money? The Cosby retrial raises the general question of the relationship between first trials and retrials.
Acquittal rates in criminal trials are significantly higher after hung juries than during original trials. While the actual numbers vary by state and county, as well as by state and federal criminal courts, convictions are more difficult to attain during retrials because the prosecution is mostly locked into its position by virtue of the first trial strategy. The defense has more flexibility.
In criminal cases there is only one pleading: the indictment. Presumably at the first trial, the prosecution produces its best possible case to prove the factual allegations in this pleading. If the case ends up with a hung jury, the second time around the prosecution must either proceed with the same exact case or go with what was originally considered the “B Team” or an inferior method of proving guilt beyond a reasonable doubt. As an example, say that in a bank robbery case there are 6 eye witnesses. One would think the State would call the best, let’s say 3 witnesses during Trial #1. Any change at Trial #2 would therefore not be an improvement and the defense knows this. The State will either call the same 3 witnesses or would have to call the “second rate” others.
The defense is not similarly restricted since it has not filed a factual pleading. It has simply entered a not guilty plea. If a defendant presented a case at the original trial and was not pleased with how it went, the defense can then simply not put on a case at the retrial or the reverse is true: not having presented a case at the first trial, it is free to present a defense at the retrial. Again, more options.
How else can the defense change strategy more freely during a retrial? If the defendant did not testify during Trial #1 the defense may then decide to call the defendant at Trial #2 if it appears that the failure to testify hurt the defendant at Trial #1. Conversely, if the defendant did testify at Trial #1 and didn’t do well, the defendant may not be called at Trial #2. (The prosecution can always place into evidence the transcript of Trial # 1 but that doesn’t capture essential parts for the jury.) In addition, defense cross-examination of a certain witness may have backfired at Trial #1. This would suggest either no cross at Trial #2 or a different kind of cross. At the same time, the prosecution can’t do much to change the direct examination. For example, our bank robber witness in Trial #1 said the suspect was 5’9, 200 pounds and about 45 years of age. At the retrial he cannot deviate from this testimony, and if he does the defense will have a field day on cross eliciting that he changed his testimony after strategizing with the prosecution.
Post-trial interviews of Trial #1 jurors can give the defense helpful ideas which can be implemented while there is not much the prosecution can change. Perhaps jurors were not impressed with an argument the defense made. It can be omitted in Trial #2 and something else substituted for it. Or, post-trial jury interviews might reveal that pro-defense arguments rejected by the lawyers were articulated by jurors, pointing to a better Trial #2 strategy. The State has the burden of proof so it has probably made its best arguments. Theoretically, information learned during post-trial interviews can be an advantage to both sides but more likely it benefits the defense because it has more flexibility.
Another advantage for the defense is that it essentially gets the kind of discovery that the rules of criminal procedure do not allow but is normal in civil litigation. This is an enormous advantage. In civil cases, witness lists are exchanged, and the parties depose all witnesses during the discovery stage of the case. In a criminal retrial, the defendant has the transcript of prosecution witnesses from Trial #1, the kind of discovery ordinarily limited to civil litigation.
Back to Cosby. There was seemingly enough in Cosby’s defense to hang the first jury. It is likely on retrial the defense will be stronger.