September 2016 Update: Prior Bad Acts Motion Filed September 6, 2016 [Bill Cosby now faces a prior bad acts motion by the Montgomery County DA’s Office, DA seeks to call 13 witnesses.]
*For immediate release, Philadelphia, PA
Yesterday, Bill Cosby was arraigned on charges of sexually assaulting a Temple employee over 10 years ago. He faces three counts of aggravated indecent assault, a second degree felony punishable by 5-10 years in prison. The charges were filed just days before the 12 year statute of limitations expired.
Despite dozens of claims of sex assault over the last few decades which have been lodged against him, this case marks the first time Cosby faces criminal charges. In the vast majority of those cases, the criminal statute of limitations periods have expired. Thus, victims have sought the only legal relief possible – filing civil lawsuits. He faces civil lawsuits in three states so far: Pennsylvania, Massachusetts and California. More lawsuits are expected.
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The criminal charges stem from an incident in 2004, when a Temple employee went to Mr. Cosby’s Cheltenham home. It’s alleged that Mr. Cosby drugged the victim and then sexually assaulted her. Shortly afterwards, she reported the assault to police, but then District Attorney Bruce Castor declined to prosecute the criminal case, citing credibility issues.
Cosby’s accuser sought justice by filing a civil lawsuit which resulted in a confidential settlement in 2006. Cosby’s deposition in the civil case was recently unsealed by the Associated Press, sparking the criminal investigation by the Montgomery County District Attorney’s Office, now headed by Kevin Steele. During the deposition, Cosby admitted to giving women Quaaludes before having sex. Cosby also admitted that sexual contact had occurred but stated that the contact was consensual.
Legal Analysis – What are Cosby’s Chances?
The Deposition Testimony
Cosby’s legal team faces a steep uphill battle in the case. First, there is his deposition testimony from the civil lawsuit in 2005. It is fair game and will be admissible in the criminal case. Any statement he made during the deposition can be admitted in the prosecution’s case against him. In addition, should Cosby take the stand in his defense, he will be subject to cross examination about every statement he made in the civil case.
From the viewpoint of Cosby’s legal team, he clearly should have claimed the 5th Amendment privilege at his deposition and refused to answer any questions. This is a fairly common tactic in these types of situations, when a criminal report has been made and a civil case was also filed. Defendants often take the 5th and refuse to answer any questions which may incriminate them.
Prior Bad Acts – Cosby’s Character
In the criminal case, the DA’s Office will almost certainly file a special pre-trial motion known as a Prior Bad Acts Motion. In order to support the motion, the prosecution must present evidence which sufficiently substantiates “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” See PA Rule of Evidence 404(b).
In this case, the prosecution will seek to show that Cosby engaged in a certain modus operandi or pattern of conduct or behavior, i.e., drugging and sexually assaulting women. Assuming the motion is successful, the jury will hear about prior, similar acts.
In a criminal trial, this type of prior conduct evidence is incredibly difficult to overcome and is likely to lead to a conviction. Even if Cosby is convicted of just one of the three counts, he is likely to be sentenced to prison.
About Attorney Brian Kent
Firm partner Brian Kent is a former sex crimes unit prosecutor who served as an Assistant District Attorney at the Montgomery County District Attorney’s Office under both Bruce Castor and Kevin Steele. Since entering private practice, Mr. Kent has focused on representing victims of crime in the civil courts. He has handled multiple high profile cases, including a sexual molestation case against a state court judge.
Mr. Kent is licensed in Pennsylvania, New Jersey and Illinois. His law firm routinely handles matters across the U.S. Please call the firm for more information. Click To Call
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