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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