Will judge in Cosby criminal case allow similar rape claims as evidence?

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Prosecutors who charged Bill Cosby with rape last month have some difficulties to overcome.

The New Yorker points out the weaknesses. The case is old—the alleged rape occurred in 2004. The accuser waited a year to report the incident to police. The defense could argue she had a financial motive to lie, given the financial settlement she got from Cosby. There were no witnesses besides Cosby, who said sex was consensual, and his accuser, who said Cosby gave her pills and wine that paralyzed her and left her unable to consent.

The case could improve, however, if the judge agrees to admit testimony of other women who say Bill Cosby raped them in a similar manner—by drugging them first. The judge’s decision on whether to admit evidence of prior bad acts “may well be the most important factor in the outcome of the trial of this one-time icon,” the New Yorker article says.

The issue in the Cosby case, the article says, is whether prior sexual incidents reveal a modus operandi that Cosby allegedly used in the charged incident.

The judge will have to interpret Pennsylvania’s Rule 404, which is “roughly consistent with a federal rule known by the same number,” the article says. The rule generally bars evidence of a person’s character or trait to prove the charged conduct, though it can be used as impeachment on cross-examination.

But the ban on prior bad acts as evidence may not apply if those actions show “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Judges can admit such evidence in criminal cases “only if the probative value of the evidence outweighs its potential for unfair prejudice.”

Subsequent article:

ABAJournal.com: “Bill Cosby won’t be charged in Los Angeles”

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