1. Each side wants jurors who will form a psychological connection to either Mr. Cosby or Ms. Constand. While demographics alone will not directly predict whether someone starts off favoring one side or the other, the personal characteristics of the key players are noteworthy. It will be interesting to see how each side tries to find and assess jurors who they feel have some overlap with either Cosby or Constand. Keep in mind Cosby is 79, black, male, a successful entertainer, father of 5 and married a very long time. Constand is roughly half his age, white, female, gay, and Canadian. I think they both like basketball however. Also, for those who think being African American would automatically make someone more likely to side with the defense, think again. While African Americans are more likely to question the police and prosecutors, don’t forget Bill Cosby has berated black people (mostly youth) for what he said was ignorance, family abandonment, and other failures.

2. Both sides need to watch out for jurors trying too hard to get on this jury. Whether it seems this kind of juror adores celebrities, craves the limelight, and/or wants a megaphone to convey some type of message, this juror will not keep an open mind, wait for all the facts to come in and then deliberate based solely on the evidence presented. In most cases, this type of juror is obvious. However, sometimes this “sleeper” juror is good at concealing his/her true intentions, which makes it harder for each side to know if this prospective juror is, for example, thinking only of getting a book deal after trial.

3. Mr. Cosby’s recent public statements about not testifying for fear he will misspeak during the cross, as well as suggesting racism may have played a role in the allegations against him, provide insight into his defense strategy. He wants people to see him as a victim, as someone who was going about his life when out of nowhere charges were levelled against him for something that allegedly took place back in 2004. This tactic could appeal to someone who may even be inclined to side with the prosecution and believe Constand’s version of the events. Cosby’s hope is that at the end of the day the jury feels bad for a 79 year old getting pushed around by a system that unfairly put him in the situation he is in. Sympathy can go a long way in helping jurors render a verdict of not guilty.

4. Related, a strong defense juror will be someone who thinks sexual harassment, sexual misconduct, and sexual assault are all over-reported. This juror blames the alleged victim (emphasis on alleged) in these cases, and tends to think women “make things up” to get back at men or get them in trouble. To this person, usually an older white male, women exaggerate and concoct stories of coercion after sexual encounters when they feel things went too far. This juror would blame Constand for being in the married Cosby’s home, and likely couldn’t get past that. This individual would have difficulty in believing the accusations. The good news for the State is that this type of juror should be easy to identify in voir dire.

5. The State should ask potential jurors specifically about the timing and tenor of Constand’s allegations in this case. Some prospective jurors will not be able to get past the fact that she waited roughly a year to go to the police, as well as that repeated nightmares set in motion the process of Constand reporting the allegations. Most people are okay with the notion that post-traumatic stress doesn’t necessarily occur overnight, and that victims of sexual assault do not frequently confront their accusers right after an encounter. However, a small subset of people will not be able to see how anyone who was supposedly a victim of a horrific crime wouldn’t go straight to the police and seek help immediately.

6. A good prosecution juror is someone who tends to think “where there is smoke there is fire.” This is typically a law and order, authoritarian type of juror. This juror may, even subconsciously, shift the burden of proof and expect Cosby to prove he did not do what he is accused of doing. This type of juror may also believe that people all too often blame the victim in sexual assault cases (and recoils when this happens). This type of juror doesn’t blame the victim (that is a defense oriented juror) but believes a lot of other people do and this is not okay. Cosby’s lawyers have little choice but to attack Constand vigorously on cross examination, asking why she waited nearly a year to go to the police, why she willingly returned to his house after he tried hitting on her twice before, as well as meeting up with him after this alleged incident. The good news for the defense is that this type of juror should be easy to identify in voir dire.

7. It will be interesting to see if the Judge automatically lets people go (excused from jury duty) if they have had experience with sexual assault, either being accused of it or victimized by it. He probably will. These may seem like clear cut examples of jurors who should be struck. We saw in the Tennessee mistrial a few years ago of two former Vanderbilt football players that after the verdict, it was revealed the jury foreman was once a victim of statutory rape, and this was not known to the parties at the time of jury selection. When the foreperson was 16 years old he had a consensual relationship with a 23 year old man. After this juror’s parents found out about it, the 23 year old man was charged with statutory rape. Prosecutors in this case insist the juror’s history did not ultimately affect the jury’s decision to convict. However, one report suggests this juror gave different answers during jury selection than he did at the mistrial hearing. The Judge said these inconsistent statements show this juror did not meet the standard required to be a fair and impartial juror. Back to Cosby. Experience with sexual assault will have to be thoroughly (and tactfully) probed during voir dire. This process should have begun on the questionnaires juror filled out prior to coming to court. The key question will be what leads to automatic dismissal for serving versus whether the parties have to exercise peremptory challenges. Sadly, jurors reporting that they or someone close to them were sexually assaulted or accused of sexual assault is not uncommon. In fact, as of today, the same number of people who have formed an opinion of Cosby’s guilt or innocence (roughly one-third) is the same percentage of those who indicated they or someone close have been a victim of sexual assault.

8. The jurors will feel a strong sense of normalcy once they are selected for this trial, even though they will be sequestered roughly 300 miles from their homes. The court personnel will heavily monitor their cellphone use, TV time and reading materials. Nevertheless, they will quickly buckle down and feel like jurors sitting on an ordinary sexual assault case.

9. A key question is whether the parties can find 12 jurors and 6 alternates who do not harbor strong feelings about the case (or know about the dozens of other women accusers out there). Some people may have strong feelings one way or another but not think such substantial feelings would render them unable to be impartial. This is where it gets tricky. People have a tough time admitting they are unable to be impartial, let alone in front of a Judge and attorneys who are trying to find people who can be fair and impartial. I believe 18 people can and will be seated who do not have much of an opinion about this case and about Bill Cosby. The troublesome question then is whether these are the best people who should be deciding this case.

10. Finally, I believe the Judge in this case should not let alternate jurors know that they are in fact alternate jurors. When alternate jurors know they are alternates, even for the most diligent among them, there is a natural tendency to pay less than 100% attention. In this case, for a variety of reasons, there is a fair chance that one of the 12 seated jurors will have to be excused before a verdict is reached.