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Comedian Bill Cosby and his legal team are headed back to court Thursday for another attempt to get his case dismissed or force his accuser to testify in a pretrial hearing. Cosby’s petition argues that Cosby should have had the opportunity to cross examine accuser Andrea Constand in a pretrial hearing. A judge ruled that the case could move forward to trial. Given all of the legal maneuvering, we thought now was as good a time as any to update you on the status of the case.
Where are we on this case?
In March, Bill Cosby’s defense team faced off against Montgomery County District Attorney Kevin Steele at a pretrial hearing in Norristown PA. The purpose of the hearing wasn’t to evaluate Cosby’s guilt, but was simply to force the prosecution to show its hand and have the court rule on whether there was enough evidence to justify an actual trial about whether Cosby sexually assaulted Andrea Costand. Sidebar: for felonies, there’s always a threshold step to determine whether there is sufficient evidence to proceed to trial. Sometimes, that step is a grand jury proceeding, and other times, it’s a preliminary hearing. The rules of the two are different, but the purpose is the same.
Cosby lost at the preliminary hearing, and Judge Elizabeth A. McHugh ruled that the prosecution had shown enough evidence to justify holding Commonwealth of Pennsylvania v. William Henry Cosby Jr. over for trial.
What’s the current hot issues in the case?
McMonagle has filed an appeal, arguing that Judge McHugh’s ruling wasn’t fair to Cosby, because Andrea Costand herself did not testify at the preliminary hearing. The prosecution relied on police reports containing a victim’s statement by Ms. Constand, detailing how Bill Cosby sexually assaulted her. According to McMonagle, the police reports aren’t good enough to justify dragging Cosby into the courtroom.
Sidebar: victims of violent crimes rarely testify at pretrial hearings, particularly in sexual assault cases. Rape victims often make terrible witnesses. Their nervousness and discomfort when speaking publicly about an emotional and embarrassing event can appear as though they are unsure about what actually happened. Aggressive cross-examination by a professional courtroom jouster can be confusing and upsetting to a victim who is already in a fragile emotional state. For those strategic reasons, along with the more obvious goal of minimizing the trauma to victims of violent crimes, prosecutors generally try and minimize the use of victims as witnesses.
The Cosby team now argues that the police report was hearsay, and that allowing hearsay evidence alone to form the basis for the ruling at the preliminary hearing was unconstitutional, because it violated his rights under the 6th Amendment.
A little background on hearsay: “hearsay” is a widely misused legal term. In common conversation, people usually use “hearsay” to mean “something someone said about someone else.” In a courtroom, the definition of hearsay is actually far more complex. The rules about the admissibility of hearsay are extensive and intricate, based on the nature of the proceeding, the circumstances under which the hearsay statement was made, and the availability of the witness to testify. Evidentiary rules about the use of hearsay take into account the inherent lack of credibility of second-hand statements, as well as the disadvantage created when a litigant is unable to directly confront the source of unfavorable evidence.
Why did Cosby’s defense team bring up this hearsay issue now?
They’re trying to poke a hole into a recent Pennsylvania legal issue that’s wide enough for Bill Cosby to fall through.
Recently, in Commonwealth v. Ricker, the Pennsylvania Superior Court (an intermediate appellate judiciary) heard an appeal about the very issue Cosby’s lawyer raised. In Ricker, like in the Cosby case, the prosecution relied solely on hearsay evidence during a preliminary hearing. The case was held over for trial and Ricker appealed, arguing that his rights under the 7th amendment’s confrontation clause had been violated.
Ricker’s argument is also Cosby’s argument: allowing hearsay alone to meet the legal standard for will encourage lazy and unfair prosecutorial conduct. If someone is going to be put on trial, the decision to do so should be based on real (and not second-hand) evidence. While that argument may have some merit, it’s important to keep in mind that preliminary hearings are not trials. No one can be convicted on the basis of a preliminary hearing—so it makes sense that the rules might be more relaxed at that stage of the proceedings. Slippery-slopists will certainly argue that any rule allowed to govern a preliminary hearing will lead to a widespread lack of due process for criminal defendants.
Although there is no question that hearsay is admissible in preliminary hearings, the constitutionality of using nothing but hearsay at this early stage raises a novel issue for the Pennsylvania courts. Relying solely on victim accounts in police reports is a relatively new trend in Pennsylvania prosecution. While the Ricker appeal is pending in Pennsylvania Supreme Court, the Superior Court’s ruling is the law of the land – and accordingly, Judge McHugh’s decision to follow that ruling was correct. But given that there is potential for Ricker to be overturned before the Cosby trial begins, Cosby’s lawyers almost certainly were obligated to raise the issue in his defense.
If this was already an issue, why didn’t the prosecutor just have Andrea Costand testify?
Kevin Steele, the prosecutor handling the Cosby case, knows how much rests on this case; his risky decision to keep Andrea Constand off the witness stand at the preliminary hearing was undoubtedly strategically motivated. This isn’t Steele’s first rodeo. He knows that sexual assault victims don’t make the best witnesses. He also knows that if Costand testified at a preliminary hearing and then again at trial, McMonagle would exploit every inconsistency in a quest to discredit her, no matter how minute or irrelevant.
Timing will be critical here. If the Ricker appeal is decided first, then the outcome there could affect the outcome in Cosby. If the PA Supreme Court drags its feet on Ricker, then Judge McHugh’s order will likely stand, and Cosby will proceed to trial.