Cosby Case Will Test ‘Prior Bad Acts’ Interpretation

The aggravated indecent assault lawsuit that Andrea Constand has filed against Bill Cosby in Pennsylvania has weaknesses: there are no eye-witnesses to attest to whether the encounter was forced after Cosby drugged her, as Constand claims, or consensual, as Cosby maintains; the incident was many years ago, in 2004, and Constand waited a year to report it to the police; and she received a financial settlement from Cosby years ago. But the prosecution is likely to ask that recent, similar claims made by dozens of other women—that Cosby drugged them and had sex with them against their will—be submitted as “prior bad acts” evidence under Pennsylvania’s Rule 404. “[T]he complexion of the case would change entirely if other accusers were allowed to testify,” Jeffrey Toobin writes in the New Yorker. “The jury would certainly ask, ‘Could they all be lying?’ … The right ruling will not involve a blanket rule to cover all prior bad acts but rather a meticulous examination of each to see if it constitutes a signature, or m.o., that Cosby replicated in the Constand incident.”