Bill Cosby

Bill Cosby Uses Memory Expert to Challenge Accusers

Written on Tuesday, December 6th, 2016 by T.C. Kelly
Filed under: ExpertWitness

Defending against charges that he sexually assaulted Andrea Constand in 2004, Bill Cosby’s lawyers have asked the trial judge to decide whether thirteen other accusers who might testify against him are competent to give testimony. Cosby’s lawyer is relying upon an expert witness to suggest that the memories of the witnesses are unreliable.

Charges Against Cosby

Constand reported the alleged assault in 2005, about a year after she claimed that Cosby fondled her without her consent. The district attorney at that time decided that there was insufficient credible evidence to justify filing charges.

Eleven years later, a new district attorney decided to prosecute the case. Cosby’s lawyer contends that the charges are politically motivated in light of the prosecutor’s campaign pledge to prosecute Cosby if elected. The charges came after other women made well-publicized accusations against Cosby of inappropriate sexual conduct.

Cosby’s own admissions might be the strongest evidence against him. After Constand sued him, Cosby admitted in a deposition that he touched Constand in a sexual way after giving her Benadryl when she complained about stress. Cosby also admitted that on other occasions he gave Quaaludes to women before he had sex with them. Cosby maintains that all of the sexual encounters were consensual.

Proposed Prior Acts Testimony

The rules of evidence in most states prohibit a prosecutor from introducing evidence that a defendant committed crimes in the past to prove that the defendant is probably guilty of the charged crime. The rule against “bad acts” evidence is meant to shield a defendant from prejudicial attacks on his or her character that might persuade a jury that the defendant deserves punishment for being a bad person, even if it isn’t clear that the defendant committed the charged offense.

The prohibition against “bad acts” evidence is, however, riddled with exceptions. The prosecutors in Cosby’s case want to call thirteen women as witnesses to testify that Cosby drugged them and then sexually assaulted them. The prosecutors are relying on an exception that allows prior acts to be used to prove that a defendant committed a crime in such a specific way that it constitutes the defendant’s “signature.” That exception usually applies when the identification of the person who committed the alleged crime is doubtful, which isn’t the case here, but the prosecutors nevertheless want to bolster their proof that Cosby assaulted Constand by proving that he previously assaulted thirteen other women in the same way.

Proposed Expert Testimony

Cosby’s attorneys filed an unusual motion asking the court to determine the competency of the thirteen women to testify about acts that Cosby allegedly committed between 1967 and 1996. The defense notes that none of those allegations were reported to the police and most were never mentioned to anyone until the recent media flurry concerning the alleged assault of Constand.

The motion alleges that most of the women did not consider themselves to have been victims of an assault until recently. Many of them have no recollection of any sexual contact occurring. The defense contends that the court should determine that the women are not competent to testify because their memories are unreliable.

The motion is unusual in that witnesses are normally presumed to be competent to testify unless they are very young children or suffer from a mental infirmity. As long as a mentally healthy adult witness has the capacity to observe events, recall those observations, and describe them in court, whether the witness is giving accurate testimony is usually for the jury to decide.

According to the motion, Dr. Elizabeth Loftus, a psychologist who is a leading expert in the field of memory, has reviewed the evidence and concluded that the memories of the thirteen witnesses have been “tainted in the decades since their alleged assaults occurred.” She bases that opinion on:

  • The length of time that has passed since the alleged assaults, which increases the probability that their memories are inaccurate.
  • The likelihood that extensive media coverage has tainted or supplanted the memories of the women who are now accusing Cosby.
  • The likelihood that the close interaction of the women has tainted their memories, as each fed upon and adopted stories told by the others.
  • Evidence of suggestive questioning by police and the media that tainted the memories of the witnesses.
  • Changes in the stories the women have told, which suggests that their memories have changed over time and are therefore unreliable.

A legal memorandum accompanying the motion suggests that the accusers have been encouraged to recall assaults that never happened by a “media frenzy.” Ten of the women are represented by the same lawyer, who in many cases facilitated media attention to publicize their accusations.

Cross-Examination or Exclusion?

In most cases, the reliability of a memory is challenged at trial by cross-examining the witness. Attacks on the reliability of a memory can also be bolstered by calling an expert witness to testify at trial.

It would be unusual for a judge to exclude eyewitness testimony on the ground that an adult, mentally healthy witness is not competent to testify, but this is an unusual case. The fact that the alleged assaults occurred decades ago and only surfaced after extensive media coverage of Constand’s allegations might push this case into uncharted territory.

It could also be true that Cosby’s lawyers expect the motion to be denied, but are hoping for a pretrial hearing that will provide an early opportunity to cross-examine the witnesses. That would give them a chance to preview their testimony and to impeach them at trial if they deviated from their pretrial testimony.

At this point, the judge has not decided whether any or all of the thirteen witnesses will be excluded from testifying under the “bad acts” rule. If the judge decides their testimony is not relevant, the competency motion will become moot. If some or all of the witnesses are permitted to testify at trial, it seems clear that Cosby’s lawyers will rely on expert testimony to challenge the accuracy of their testimony.

Photo Credit: By The World Affairs Council of Philadelphia [CC BY 2.0 (], via Wikimedia Commons

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.