Cosby is charged with Aggravated Indecent Assault of Andrea Constand from an incident in 2004. A preliminary hearing is set for January 14 and Cosby was released on $1 million bail and surrendered his passport.
From both a legal and public perception standpoint, there is much at play. Dozens of women have claimed Cosby drugged them and then had sex with them without their consent. It remains to be seen if their testimony will be permitted in this case.
Noted attorney Gloria Allred represents 29 women alleging they are victims of Cosby and both U.S. Sens. Kirsten Gillibrand and Claire McCaskill and victims’ rights groups are calling for President Barack Obama to revoke the Presidential Medal of Freedom, the nation’s highest civilian honor, bestowed upon the comedian. That's according to information from national non-profit PAVE: Promoting Awareness | Victim Empowerment.
Each of these elements comprise the equation of Cosby’s trial in the court of public opinion, but legal experts, counsel, the judge and jury, who will likely have heard of or formed a professional opinion of Cosby, must be cognizant of where the line is in the court of criminal law.
Wesley M. Oliver, Associate Dean for Faculty Scholarship, Criminal Justice Program Director, and Professor of Law at Duquesne University recently penned “Bill Cosby, the Lustful Disposition Exception, and the Doctrine of Chances” where he parsed the legal appropriateness of allowing the testimony of Cosby’s other alleged victims.
“Immediately after the charges were announced … the media’s attention turned to the question of whether these other accusers would be permitted to testify to bolster Ms. Constand claims," he wrote. "For the wrong reasons, the law is likely to get the answer to this question right in the Cosby case.”
Oliver says the courts have tried to balance the need to allow the jury to make decisions independently and unbiasedly of a defendant's past transgressions with the exception that “signature” criminal behavior can be useful and admissible in determining one’s guilt. Cosby has been accused of using pills to subdue his accusers before having sex with them.
In order for a defendant’s other accusers to be allowed to testify, “there has to be something that looks like modus operandi,” he says. But, while the rule is supposed to exclude admitting prior criminal behavior and subsequent testimony, with specific targeted exceptions, in practice the courts application of where to draw the line has been far more liberal. “In practice there is an extraordinary low threshold,” he says.
He says there is an apparent contradiction in legal doctrine, where a defendant’s propensity to commit crime may not be used as evidence the defendant committed a particular act, but a propensity of intent can be used to show intent in another instance.
“The drafters of the various evidence codes surely hedged their bets with a litany of exceptions to the general prohibition on the introduction of other bad acts. On the one hand, the Federal Rules of Evidence, largely adopted by most states provide that ‘[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with that character.’ But in the next breath, these same rules provide that ‘[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of consent.’”
Oliver argues the “doctrine of chances” which, essentially, considers the volume of prior misdeeds to rule out coincidence that another act was committed with innocent intentions, may be the most logically consistent legal doctrine in the Cosby cases and others like it.
The doctrine of chances would allow juries to weigh the likelihood all of Cosby’s accusers have similar negative experiences because, in fact, Cosby had bad intentions in each instance.
“The odds that Andrea Constand is telling the truth about Cosby giving her a pill that rendered her incapable of consent, or even escape, are dramatically higher if a number of other women have almost exactly the same story," he wrote. "The odds of unfair prejudice from these prior bad acts decrease both with the similarity and number of misdeeds.”