Criminal defense attorney weighs in on Cosby case

NORRISTOWN, Pa. (WPVI) -- The civil case between Bill Cosby and Andrea Constand was already been settled years ago.

This criminal trial, however, will require a higher burden of proof.

"It's very difficult to prosecute a case from that long ago, most of the time," Criminal Defense Attorney Jack McMahon said.

McMahon is a former prosecutor in the Philadelphia District Attorney's Office.

He says the critical question a judge will have to determine is whether to allow prior alleged bad acts or would that be seen as prejudicial to defendant Bill Cosby?

"In a vacuum, that case is not a very good case, Bruce Castor many years ago decided not to prosecute because he didn't think he could get a conviction. Nothing really changed in 10 years other than these multiple other allegations," McMahon said.

All along, Cosby has claimed the encounter was consensual, but the alleged victim has claimed she was plied with drugs & alcohol:

"She may have been high, she may have been drunk, she may have had some influence of drugs that lowered her defenses but to say that she was totally non compos mentis, had no idea what was going on, I think that's very problematical for anybody, a juror particularly, to accept or believe," McMahon said.

Under the law, the case has to be proven beyond a reasonable doubt, and the jury's decision must be unanimous.

Is that a high bar to reach when you're trying to convict an icon like Cosby?

"He doesn't have the same gravitas that he had 10 to 12 years ago, but he's still Bill Cosby and he's still an icon and that's going to be a hurdle for the prosecution," McMahon said.

Meanwhile, at the Women's Law Project, Carol Tracy says it's about time Cosby has been charged in the case.

"We have both police and prosecutors, judges and jurors, that are frankly polluted with bias and the cultural bias is that rape victims are liars. I think we are now seeing a significant paradigm shift," Tracy said.