Tag Archives: Bill Cosby

Bill Cosby

Bill Cosby Case Featured Prosecution Expert Witnesses

After nearly five full days of deliberations, jurors in the high profile sexual assault trial of comedian Bill Cosby were unable to reach a unanimous verdict before the judge reluctantly agreed with defense attorneys and declared a mistrial. The ruling comes as a disappointment to prosecutors who worked diligently to build a case against the aging star, including use of toxicology and psychology expert witnesses called to bolster testimony from alleged victims.

Cosby Victim Claim Sexual Assault while Drugged

Andrea Constand, the central accuser in Cosby’s sexual assault trial — and the only one who Cosby has been accused of assaulting in these criminal proceedings — testified during the first days of the trial that she met Cosby while she worked for the Temple University women’s basketball team. She told jurors that in 2004 Cosby invited her to his Philadelphia home, where he gave her three blue pills telling her that they were herbal and would help her.

After taking the pills, she claimed she felt nauseous and began to slur her words before having to lie down because she could not see very well. Constand then tearfully testified that after she was drugged, the entertainer forced her to lie down on a sofa, fondled her, and made her touch him sexually as well. She told jurors she was not a willing participant, and wanted the encounter to end but could not move because of the effect of drugs.

Cosby, who did not take the stand during his trial, has, through his attorneys, maintained that the encounter with Constand, like the encounters with other accusers, was consensual and that the pills she took were Benadryl, which would not have had the effect on her that she testified.

Defense attorneys for Cosby hammered Constand during cross-examination, focusing on inconsistencies in her story, her continued communication with Cosby after the alleged incident, and her year-long delay in reporting Cosby’s alleged misconduct to the police. Prosecutors attempted to bolster Constand’s credibility as a witness with testimony from another alleged victim, and with testimony from experts in toxicology and psychology who could address some of the defense team’s substantive attacks.

Expert Witnesses Testify for Prosecution in Cosby Trial

During the last days of the prosecution’s case against the 79-year-old Cosby, the state called two expert witnesses to respond to apparent holes in Constand’s story and support her allegations. Clinical psychologist Dr. Veronique Valliere, an expert witness in sexual assault victim and offender dynamics, took the stand to explain to jurors the psychology of victims which can shed light on their response to sexual assault crimes.

Dr. Valliere told jurors that when an offender makes use of intoxicants during an assault, it is common for victims to experience confusion and guilt, particularly when the victim knows and loves the assailant. The confusion and trauma, which can be enhanced by intoxicants and a relation to the offender, contribute to a distorted memory and can result in inconsistencies when recalling the event.

Dr. Valliere noted further that victims who are assaulted by upstanding or famous members of their community can experience a great deal of fear, self-doubt, and guilt which can result in a delay in reporting the event. Cosby’s defense attorneys challenged Dr. Valliere’s credibility during cross-examination by pointing out comments the psychologist had made online which suggested she was happy that the entertainer was being prosecuted as a result of the allegations.

In an effort too clear up confusion about the type of drug Constand was given by Cosby, prosecutors called Dr. Timothy Rohrig, an expert in forensic toxicology, to discuss the effects of Benadryl, and whether the drug could have produced the effect Constand testified to experiencing.

According to Dr. Rohrig, a central nervous depressant like Benadryl could induce sleepiness, blurred vision, and poor muscle combination but the exact nature of these effects would depend on the dosage. Rohrig told the court that while it isn’t clear exactly how much of the medication Constand took, if she had taken three pills as she testified then she would have consumed 75ml, which is triple the adult recommended dosage of 25ml. Rohrig testified that Benadryl could be used in a sexual assault, pointing to a case in London where an offender used Benadryl and champagne to subdue his victims.

Expert Witnesses Not Enough in Cosby Trial

Ultimately, the prosecution’s use of clinical psychologist and toxicologist expert witnesses proved insufficient to earn a conviction. After close to 5 days of deliberations, jurors returned without a verdict and the case was declared a mistrial. Within minutes of the decision, prosecutors announced they would exercise their right to re-try the case and continue to seek justice for the alleged victims.

Cosby, through his attorneys and PR team, responded by claiming vindication, and calling the prosecution’s efforts to be politically motivated. Should a retrial occur, the process will not begin for several months as both sides prepare to move forward.

Bill Cosby

Bill Cosby Uses Memory Expert to Challenge Accusers

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 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons