January 2017 Update: Trial court expected to rule on “prior bad acts” motion after an extensive hearing. Defense argues that there are too many differences between the women’s accounts and the victim’s account.
December 2016 Update: Cosby moves to change venue. Trial judge rules against Cosby on admissibility of prior deposition testimony. Cosby’s 2005 deposition testimony is admissible.
Original Article, Posted on September 12, 2016
Kevin Steele, Montgomery County’s District Attorney, has filed a motion to include prior acts of alleged sexual abuse by Cosby. In a motion filed on September 6, 2016, the DA’s office has indicated it will seek to admit so called “prior bad acts” evidence against Cosby. 13 women are expected to testify about alleged sex assault committed by Cosby dating back to the 1960s. The DA has argued that each of the situations are similar to the one alleged in the criminal case against Cosby–use of drugs and acts of sex assault that were similar in nature.
Under Pennsylvania’s Rules of Evidence, the prosecutor in a criminal case cannot admit evidence that the defendant has committed bad acts prior to the one being alleged. However, in some instances, prosecutors can seek to admit prior bad acts evidence to show a pattern of behavior. This is only allowed in certain situations, such as where a defendant argues that a crime was committed by mistake or due to a misunderstanding, as is often the case in sex assault cases.
Related: Bill Cosby Charged with Sex Assault in Montgomery County, PA – Analysis by a Former Sex Crimes Unit Prosecutor
The standard for admitting this type of evidence is a balancing test. Judges must balance whether the probative value (i.e., what the evidence shows) is outweighed by prejudice to the jury. Courts will look to the evidence itself and the extent of the similarity to the alleged criminal conduct. There must be striking similarities. A common example is a bank robber who wears a distinctive mask during multiple bank robberies. At a trial for bank robbery, evidence of prior robberies committed by a perpetrator who wore the same mask may be admitted to prove the identity of the robber.
In Cosby’s case, a hearing on the prior bad acts evidence will be scheduled. At that hearing, the DA will present the testimony of the 13 women. Whether the court decides in the DA’s favor will depend on the nature and extent of the similarities between testimony of the 13 witnesses and the criminal conduct alleged against Cosby. If there are substantial similarities, the court may allow any or all of the 13 witnesses to testify in Steele’s case against Cosby.
The recent prior bad acts motion is the third one in the case which could have a substantial effect on the outcome of the case. Cosby has filed two motions to suppress evidence: 1. a motion to suppress a recorded telephone call with the victim’s mother, and 2. a motion to suppress his deposition testimony in the civil case brought by the victim over 10 years ago.
The stakes are high. Cosby faces three counts of aggravated indecent assault, a second degree felony. A single conviction of any one of the counts can result in a 10 year prison sentence. The outcome of these three motions is likely to create multiple appealable issues. Stay tuned.
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