Monday, January 4, 2016


Should Bill Cosby ever go on trial and decide to testify, the cross-examination could be a prosecutor’s dream come true. Montgomery County, Pennsylvania district attorney Kevin Steele just recently charged Cosby with aggravated indecent assault upon Andrea Constand that allegedly occurred in 2004.
            Important to the prosecution’s case is the deposition of Cosby taken pursuant to Constand’s civil suit, which eventually settled in 2006. A federal judge released the deposition this past July. And, the media’s emphasis on the deposition as the reason for the re-evaluation of the case and the filing of charges against Cosby has overshadowed the other evidence in the case. A review of the Affidavit of Probable Cause reveals numerous admissions by Cosby that can be used during both the prosecution’s case in chief and the cross of Cosby if he takes the stand (quotations in this piece are from the Affidavit).
            Suppose you were the prosecutor planning the cross-examination of Bill Cosby. Your primary goal would be to elicit concessions supporting your case theory or undercutting the defense case theory. Here, let’s just focus on obtaining information on cross to bolster the prosecution’s case. Utilizing the concession-seeking methodology explained in the Cross-Examination Handbook (Chapters 3 and 4), begin planning with the prosecution’s legal theory, which is aggravated indecent assault under Pennsylvania law, which in pertinent parts provides:

§ 3125.  Aggravated indecent assault.
(a)  Offenses defined.. . a person who engages in penetration, however slight, of the genitals or anus of a complainant with a part of the person's body for any purpose other than good faith medical, hygienic or law enforcement procedures commits aggravated indecent assault if:
(1)  the person does so without the complainant's consent; . . .
(4)  the complainant is unconscious or the person knows that the complainant is unaware that the penetration is occurring;
(5)  the person has substantially impaired the complainant's power to appraise or control . . . her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants . . . for the purpose of preventing resistance; . . .

     Narrowing the focus more, assume you are seeking Cosby’s concessions to facts supporting two elements of the charge: (1) Cosby committed a sexual act that qualifies under the statute and (2) Cosby substantially impaired Constand’s power to appraise or control her conduct by administering or employing without her knowledge, drugs or intoxicants for the purpose of preventing resistance.
            First, regarding gaining concessions from Cosby concerning the sex act he committed upon the victim, what evidence exists that would require him to concede on cross that he did it? It isn’t only what he said during the deposition.  Before the deposition he not only admitted the acts to the police but also to the victim’s mother. The victim told her mother what Cosby had done to her, and her mother called Cosby. The Affidavit of Probable Cause states that Cosby admitted the sex act to the victim’s mother. On January 14, 2005, Cosby was interviewed by the police and he admitted “he touched her bare breast and her private parts (genitalia).” When asked if he had sexual intercourse with the victim, he said “never asleep or awake.” During the deposition, Cosby admitted that he “digitally penetrated the victim’s vagina.” With these prior statements by Cosby, the prosecutor can construct a series of questions to establish the sex act element of the charge. In the unlikely situation that Cosby were to deny committing the act, the prosecutor can impeach him with the prior inconsistent statements (see Chapter 7 in Cross-Examination Handbook for techniques for impeachment with a prior inconsistent statement). It is unlikely that Cosby will deny making the statements, and the defense is probably going to be consent. The defense likely will own the admissions during Cosby’s direct examination in order to pull the sting. Besides, the prosecution will offer Cosby’s admissions during its case in chief.
            Second, the defense is more likely to claim that Cosby did not provide the victim with drugs to prevent her from resisting, that Cosby didn’t substantially impair her or both. What concessions must Cosby provide on cross to the effect that he did these things to the victim? Again, Cosby is locked in by his prior statements to the victim’s mother, the police and in the civil case deposition. He’ll either provide the cross-examiner with concessions or be impeachable with prior inconsistent statements. He gave conflicting stories about the nature of the drugs. He told the victim that the pills were herbal. He told her mother that the pills were of a prescription kind but that he had bad eyesight and couldn’t read the bottle. He promised to write the name of the drug down and mail it to her, but didn’t. Then, Cosby told the police “he gave the victim Benadryl, which is an over-the-counter medicine not dispensed in a prescription bottle as Cosby told Mrs. Constand.” During the deposition, he testified “that after some initial conversation, he went upstairs and got pills, ‘brought them down,’ and ‘offered them to [the victim].’ Cosby testified that he gave the victim three halved pills, which he described as ‘three friends to make [her] relax.’ This is contrary to his statement to police, in which Cosby said he gave her ‘one whole and then one…half.’”
            In addition to Cosby’s inconsistent prior statements  about the pills, which constitute evidence of awareness that he was using drugs to impair Ms. Constand, and his efforts to minimize the nature of the drugs and claim consent, he must admit on cross to statements and actions that are consistent with a person who has committed a wrongful act. He will either admit to them or be impeached, again with prior inconsistent statements. The Affidavit of Probable Cause explains: “Further indicative of Cosby's consciousness of guilt is the fact that, when confronted by Mrs. Constand over the telephone, he apologized to both her and the victim, while offering significant financial assistance. Cosby not only offered to pay for the victim's therapy, but also her graduate school tuition and expenses for travel to Florida. Investigators recognize that individuals who are falsely accused of sexual assault generally do not unilaterally offer generous financial assistance, and apologies, to their accuser and their accuser's family. To the contrary, such conduct is consistent with offenders who are seeking to make amends for wrongful behavior and prevent involvement by law enforcement.” On cross, the prosecutor can extract concessions from Cosby to the effect that he offered to pay and that he apologized. Then, the prosecutor can argue in closing that the admissions prove the defendant committed aggravated sexual assault.
       All in all, Cosby’s prior statements provide plenty of admissions to introduce in the prosecution’s case in chief and harvest again on cross-examination.
       And, then there is the 404(b) evidence, which could provide more concession-seeking content for cross-examination of Bill Cosby.

Afternote: Going back over a year, the Seattle Times on November 10, 2014, under the headline “Prosecutor on Cosby allegation: ‘I thought he did it,’” reported:
“When Bruce Castor, then the Montgomery County District Attorney, decided not to file sexual-assault charges against comedian Bill Cosby in 2005, it wasn’t because he didn’t believe the woman who said Cosby had drugged and groped her.
“’Now I can say I thought he did it,’ Castor said in an interview Wednesday. ‘But back then I would have been accused of tainting the jury that was going to hear the civil case.’”

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