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

Published for NC Criminal Law on June 19, 2017.

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 [...]