Prior Bad Acts: Who Can Testify in Bill Cosby's Criminal Trial?

By Ephrat Livni, Esq. on May 26, 2016 | Last updated on March 21, 2019

Bill Cosby is the elder statesman of American comedy whose life has turned into a bad drama, now including a criminal case. Next month, Cosby will return to criminal court in Pennsylvania for pretrial proceedings on three charges of felony indecent assault of Barbara Constand and faces ten years in prison if convicted.

Despite the dozens of accusations of abuse that have surfaced from women all over the country, this is Cosby's first criminal prosecution. The case was filed just two days before the 12-year statute of limitations on such claims in Pennsylvania expired, according to USA Today. It raises many interesting legal questions, all complex. Today, let's consider prior bad acts and whether Cosby's other accusers can testify against him.

Prior Bad Acts

Generally speaking, a crime cannot be proven based on a defendant's behavior in other situations. While a criminal record informs sentencing, each crime must be proven based on the facts of the case at hand and not based on evidence of similar acts in the past .

But for every rule in the law, there are important exceptions because a foolish consistency is the hobgoblin of small minds. That is to say, sometimes it makes sense to consider external evidence if it is highly relevant to the matter at hand. In a case like this one, where there are about 50 women saying that Cosby drugged and touched them without their consent, the prosecution will no doubt argue that it's relevant.

Prosecutors will seek to admit evidence from other women whose stories are consistent with Constand's. To the extent that there are questions about the alleged victim's credibility because she waited a year to report the crime and thus there is no physical evidence, a slew of witnesses telling the same story would certainly support her claim that Cosby drugged and touched her against her will.

Admitting the Evidence

Admitting evidence of prior bad acts is not a given, however. The defense will no doubt fight it, relying on precedent to show that the stories would not be considered consistent evidence. The burden of proof on prosecutors is high -- they must show the evidence is more relevant than prejudicial.

Dennis McAndrews, a former prosecutor, who teaches criminal law at Villanova University explained to reporters, according to USA Today: "It's very challenging because courts are reluctant. They hold the prosecution to a tight burden to establish that (the testimony) is highly relevant, that the facts of other cases are close to the case (on trial), and that the probative value significantly outweighs the prejudicial effect."

In light of this, it is not yet clear that the judge will allow the testimony of other women to prove Bill Cosby assaulted Barbara Constand, But it's certain the Cosby's defense lawyers will challenge admission of that evidence at every turn. If he is convicted, admission of prior bad acts will be a major issue in the inevitable appeal.


If you have been accused of a crime, don't delay. Meet with a criminal defense attorney today. Many lawyers consult for free or a minimal fee and will be happy to discuss your case.

Related Resources:

Copied to clipboard