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Prior Bad Act Evidence one of the key legal issues in the Bill Cosby Indecent Assault Trial

Key to Cosby’s success at upcoming jury trial will be the judge’s ruling on numerous motions in liming defining what evidence the jury will get to hear at trial.

A judge has ruled that prosecutors can use a phone call that was taped without Bill Cosby’s consent as evidence in his sexual assault trial.  Cosby argued that because he did not know the call was being taped, that it should be excluded from evidence under a two party consent law.  However, the judge denied the request according to a report by Fox News.

The case raised some interesting legal issues, include whether the Court will allow prior bad acts of uncharged conduct into evidence at trial.  Generally, prior bad act evidence would be inadmissible at trial, but can be admitted if it shows a common plan, scheme or method of operation.  A judge has to determine whether the probative value of this evidence out weights its unfair prejudice to the defendant.  A jury is instructed that the defendant is not charged with committing any prior bad acts and that it cannot consider those prior bad acts as proof of the current charge. But prior bad act evidence to be used to show motive, state of mind, intent, common scheme, absence of mistake or identity.  In Aaron Hernandez’s recent murder trial where he was convicted, the judge did not permit the Commonwealth to offer into evidence that the victim knew that he was allegedly involved in a 2012 shooting.  The Court ruled that this testimony would have been unfairly prejudicial.  Accordingly, the defense was allowed to argue that he had no motive to commit the crime.  The reason that the judge declined to allow this evidence to come into evidence at trial is that it would have been too difficult for the jury to keep the alleged prior bad act separate from the criminal conduct that the defendant was on trial for.

In the Cosby trial, I would not expect the judge to permit prior bad act testimony of other victims saying they were also drugged by Cosby.  The prior bad act evidence would be too similar to the charged conduct and create a risk that the jury would not use the prior bad act evidence for the limited purpose for which it is admissible.  The testimony of these witness would be unfairly prejudicial to the defense.

An in-depth preview of the trial was written by John Hurdle and Graham Bowley in the New York Times.

At 79 years old, Bill Cosby, once known for his family-friendly vibe and comedic tendencies, is facing criminal charges as he awaits trial. On September 6, 2016, CNN announced the court date for the once-loved celebrity: June 5 of 2017. While there are dozen of suspected victims surrounding the Cosby case, he is ultimately being charged with a total of three counts of felony aggravated indecent assault in regards to a 2004 case. This case involves an employee at his alma matter- Temple University, Andrea Constand. While Cosby has consistently pleaded not guilty to all three alleged charges, Constands’ story remains the same: she was given a combination of pills and wine, and was unable to consent to the concurring sex.


Facts of the Case: 

  1. This is the first time Cosby is facing criminal charges of any sort.
  2. With this being said, more than 50 women have come forward in the past several years with allegations of sexual assault against him.
  3. However, most of these alleged assaults took place outside of the statute of limitations.
  4. The DA is asking the judge to allow the testimony of 13 women in trial.
  5. The allegations against Cosby date all the way back to 1964.


The success of Cosby’s defense will hinge heavily on the Judge’s pretrial rulings.  As a criminal defense lawyer in Massachusetts, these issues frequently come up in my practice and if you have questions about the Cosby case or any issues relating to defending a sexual assault, feel free to contact Attorney DelSignore at 781-686-5924.

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