Bill Cosby and the Lack of Rule 404(b) Evidence

Over the weekend, the judge presiding over Bill Cosby’s sexual assault trial declared a mistrial after the jury was unable to reach a unanimous verdict. I hadn’t followed the case very closely and my knee-jerk reaction was, “wait, fifty women have accused this guy of sexual assault and he didn’t get convicted?” As I thought more about it, I began to wonder how many accusers — other than Andrea Constand, the alleged victim in the case — were allowed to testify against Cosby. It turns out that it was only one.

Many women have accused Cosby of sexual assault. Wikipedia says that is is more than 100. CNN says that it is more than 50. Slate lists 51 who have made public accusations.

Only one criminal case has been brought. The only criminal prosecution that has resulted is pending in Montgomery County, Pennsylvania, where Cosby is alleged to have drugged and sexually assaulted Constand at his home in 2004. Other reports have not led to charges for various reasons. Some cases are barred by statutes of limitations, as some of the alleged assaults date back to the mid-1960s. In others instances, prosecutors have declined to bring charges for lack of evidence corroborating the alleged victims’ stories.

Evidence of other misconduct is sometimes admissible. Could the many accusations against Cosby be used to bolster the one criminal case against him? That was the $64,000 question during the pretrial phase of the case.

Generally, the prosecution can’t introduce evidence that a defendant has committed bad acts other than the ones for which he or she is being prosecuted. So, for example, it can’t introduce evidence that a defendant charged with drug possession has possessed drugs in the past. There are two reasons for this rule: (1) so that the jury doesn’t leap from the fact that the defendant did bad things in the past to the conclusion that the defendant probably committed the charged offense, and (2) so that the jury doesn’t vote to convict the defendant as a way of punishing the defendant for the bad things he or she did in the past, regardless of whether he or she committed the charged offense.

However, the rule isn’t absolute. In North Carolina, and in most jurisdictions, this issue is addressed in evidence rule 404(b). Our rule is typical and is similar to the rule in Pennsylvania. Here’s how our rule reads:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.

So evidence of other bad acts can’t be used just to show that the defendant has bad character and is prone to criminality, but such evidence can be used to show things that are more specifically relevant to the charged offense. In sexual assault cases, prior sexual assaults are often used to show that the defendant had a specific “plan,” strategy, or modus operandi in effecting sexual assaults. I wrote a bit about the use of 404(b) evidence in sexual assault cases in this paper.

The prosecution sought to call a dozen other accusers to testify against Cosby. Back to the Cosby case. Constand alleges that Cosby gave her three pills that he said would relax her but in fact rendered her unconscious, then assaulted her. The prosecution wanted to call thirteen other accusers, many of whom also alleged that Cosby used drugs or alcohol to facilitate his assaults. The issue that judge had to decide was: would the other accusers’ testimony merely impugn Cosby’s character, by showing that he’s a bad guy who is prone towards sexual assault? Or would the testimony establish a distinctive scheme or plan that matched Constand’s testimony? Cornell evidence professor Sherry Colb analyzed the issue before trial in this piece; she concluded that the other accusers’ testimony was probably admissible. Yale evidence professor Stephen Carter thought it was coming in, too.

The judge excluded all but one. The judge didn’t see things the way the professors did, and excluded the testimony of all but one witness. The one witness who was allowed to testify described a 1996 assault that was very similar to what Constand alleged: Cosby gave her pills, encouraged her to take them, then sexually assaulted her as she floated in and out of consciousness. Some of the other accusers would have testified to older assaults, or to ones that were less similar to what Constand alleged. If you’re interested, Cosby’s brief on the 404(b) issue is here.

The ruling made a big difference. Reasonable minds might differ about whether the ruling was right or wrong, but it was almost certainly impactful. I doubt that the trial would have come out the same way if a dozen other women had testified that they had been assaulted by Cosby. CNN Legal Analyst Danny Cevallos wrote this piece as the trial began, arguing that “the outcome of this trial has already been decided” by the judge’s decision to exclude most 404(b) evidence.

What will happen on retrial? The prosecution has already announced that it will try Cosby a second time. I suspect the prosecution will make a push to get more 404(b) evidence in on retrial, whether by asking the judge to reconsider his ruling on the twelve accusers, or by identifying additional accusers whose allegations are more recent or more similar to Constand’s. It will be interesting to see how the judge responds.