Representing Victims and Witnesses in Civil and Criminal Cases Commonwealth of Pennsylvania v. William H. Cosby, Jr. Presented by: Gloria Allred and Nathan Goldberg Allred, Maroko & Goldberg 6300 Wilshire Blvd., Suite 1500 Los Angeles, CA 90048 gallred@amglaw.com ngoldberg@amglaw.com National Trial Lawyers – 2017 Trial Lawyer Summit Miami, Florida; February 5-8, 2017

Intro to Commonwealth v. Cosby In 2005, Andrea Constand filed a civil suit against Bill Cosby which resulted in a settlement agreement. In 2015, 10 years later, Cosby was charged with three counts of aggravated indecent sexual assault in Montgomery County, Pennsylvania. Since Ms. Constand’s civil suit, nearly 50 other women have come forward with similar allegations, although for almost all of them it is too late for them to proceed because of the Statute of Limitations. A major legal dispute in the case is whether to allow the testimony of 13 other women who allege Cosby committed similar assaults against them. (Prior Bad Act Witnesses) The admissibility, or lack thereof, of this testimony could have a major impact on the outcome of the criminal case.

Prior Bad Act Considerations The Pennsylvania Rules of Evidence 404(b)(2) states: Permitted Uses: This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice. P.R.E. 404(b)(2) may allow the admissibility of a defendant’s prior bad acts to show a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the other. Commonwealth v. O'Brien, 836 A.2d 966, 969 (Pa. Super. 2003) Prior Bad Evidence is not admissible merely to show a defendant’s general propensity to commit crimes or to prejudice the defendant by showing him to be a person of bad character. Commonwealth v. O’Brien.

Absence of Mistake The Commonwealth’s argument for the admissibility of the Prior Bad Act Witnesses under the Absence of Mistake exception is reliant upon Cosby possessing a signature fashion that appears in Ms. Constand’s allegations as well as in the witnesses’ testimonies. Proving that Cosby had a signature fashion is necessary to prove an absence of mistake. The Commonwealth claims that someone who intoxicates women in a signature fashion over decades cannot then claim that he was mistaken about their consent. The Commonwealth must establish that the manner and circumstances of the crimes need to be “remarkably similar.” Commonwealth v. Tyson, 119 A.3d 353, 359 (Pa. 2015)

Cosby’s “Signature Fashion” The Commonwealth argues that Cosby’s signature fashion is sexually assaulting incapacitated women after he gives them an intoxicant. The Defendant argues that this signature should be unique – like a fingerprint. This signature fashion is necessary for proving a Common Plan, Scheme or Design as well.

Common Plan, Scheme, or Design Under Common Plan, Scheme or Design Exception, the prior bad act evidence must be "distinctive and so nearly identical as to become the signature of the same perpetrator." Tyson. Cosby’s attorneys claim in their brief that there are too many differences between Andrea Constand and the 13 accusers, all of which create a complete absence of a unique signature. The Prosecution argues that under Common Plan, the scenarios need not be identical in every respect, but there are enough similarities for the testimonies to be admissible.

Table of Similarities and Differences Commonwealth - Similarities Defense - Differences Contact from an initiated invitation Geographical Differences Women having feeling of passing out / being rendered incapacitated Types of Sexual Encounters are different Cosby becomes aware of victims being incapacitated Nature of Prior Relationship Cosby engages in sexual contact with women in compromised state Methods and Consent of Intoxication Occurrence Victims are similar ages (18 or 19 – 30)

Remoteness of Time Another issue is Remoteness of Time – The time gap between the prior bad acts and the charged act. Under Pennsylvania law, there is an inverse relationship between the similarities in crimes and the importance of the time difference. Commonwealth v. Luktisch, 680 A.2d 877, 879 (Pa. Super 1996) Commonwealth argues that the many similarities outweigh the importance of the length of time here. The Defense notes that no court in Pennsylvania has ever admitted evidence extending back 20+ years. Because none of the witnesses’ allegations are identical to Ms. Constand’s, they argue there are no grounds to admit this evidence.

Media Exposure The Defense claims the issue of Media Exposure has influenced the case – both by prejudicing the defendant and influencing Prior Bad Act Witnesses stories. The Defendant’s brief states my involvement in representing ten out of the thirteen witnesses is a negative factor. Independent representation of a third party is obviously not illegal. They also claim the media exposure of the case has influenced the similarities that have appeared in the witnesses’ testimonies.

Prejudicial Effect vs. Probative Value The court must balance the probative value of the Prior Bad Act Evidence against its prejudicial impact by taking into account the degree of similarities between incidents, the Commonwealth’s need to present evidence under the common plan exception, and the ability of the court to caution the jury concerning the proper use of such evidence in deliberations. Sherwood. The defense argues that the minimal similarities and the remoteness of time makes the probative value minimal and the prejudicial impact enormous. The Commonwealth counters that even if Prior Bad Evidence is harmful it doesn’t bar admissibility. They note the importance of unfair prejudice. Commonwealth v. Dillon, 924 A.2d 131, 141 (Pa. 2007). Unfair Prejudice is to suggest a decision on an improper basis or to divert the jury’s attention away from its duty of weighing the evidence impartially. Tyson citing Dillon.

Conclusion Most other states, as well as federal law, have laws similar to Pennsylvania’s Prior Bad Act Witness Laws. At the CLE workshop there will be a discussion of the criminal defense tactics of using pending civil lawsuits to take depositions of potential witnesses who may testify in a related criminal case.

News Articles on Cosby Witnesses http://wjtv.com/2016/12/13/cosby-lawyers-complain-about-attorney-gloria-allred/ http://www.montgomerynews.com/timeschronicle/news/lawyers-in-bill-cosby-case-clash-over-testimony-of-other/article_65458ae9-68a4-5231-8bb5-1f617f0dcffe.html http://www.philly.com/philly/news/20161215_DA__Cosby_jurors_to_hear_about__a_lifetime_of_sexual_assault_on_young_women_.html http://www.nytimes.com/2016/12/14/us/bill-cosby-sexual-assault.html