The admissibility of prior bad acts complicates Bill Cosby’s defense
By: Dee Wampler
There are now thirteen women that want to testify to the same thing – that comedian Bill Cosby gave them a pill (or some other intoxicant) sometimes hidden at the bottom of a fizzy glass of champagne, a glass of wine, or soda. When they awoke hours later, they had been sexually abused. Prosecutors in Pennsylvania announced that thirteen women have agreed to come forward and testify at his long-anticipated criminal trial in June 2017.
Prosecution’s cases are bolstered by their ability to bring forth accuser after accuser with accounts similar to that charged in order to prove criminal behavior. This evidence is not often admitted in criminal cases; accusations of prior bad acts or behavior is often viewed as prejudicial for a jury as it sifts through the facts of the case that is actually before it.
Missouri, for instance, does allow such evidence in some cases where it shows conduct so similar that it can be argued that it demonstrates a common scheme or plan, a kind of unique fingerprint of criminal behavior.
Efforts by prosecutors to introduce “prior bad acts” evidence are limited because they can backfire. Even in cases where the defendants are convicted, there is a chance the decision will be reversed on appeal when an appellate court rules that the evidence was too prejudicial.
State and federal law allow evidence of “prior bad acts” if it is material and the court makes a preliminary finding that the acts are similar and that the probative benefit is not outweighed by undue prejudice to the accused.
Missouri cases allow that prior sexual conduct by a defendant towards a victim is admissible. It tends to establish motive of the defendant’s sexual desire.
It is never admissible for the purpose of demonstrating the defendant’s propensity to commit the crime but is admissible for alternative purposes…motive and intent, absence of mistake or accidents, common scheme or design for a court to present. The evidence must be inextricably intertwined.
Missouri voters decided overwhelmingly (2014) to allow relevant evidence of prior criminal acts (also known as “propensity evidence”) to be admissible in court in prosecutions of sexual crimes involving victims under 18 years old.
The constitutional amendment is as follows:
“. . . in prosecution for crimes of a sexual nature involving a victim under 18 years of age, relevant evidence of prior criminal acts, whether charged or uncharged, is admissible for the purpose of corroborating the victim’s testimony or demonstrating the defendant’s propensity to commit the crime with which he or she is presently charged. The court may exclude relevant evidence of prior criminal acts if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.”¹
It is important when law enforcement officers are investigating cases that they gather, whenever possible, such propensity evidence which sometimes ends up being a “trial within a trial” and tends to complicate the defense of an accused person who is there to consider the likelihood they committed the crime for which they are on trial.
Of course at the end of the day, a jury must decide whether a defendant committed the criminal act on a specific date and time. Did it or did it not occur and can it be proven beyond a reasonable doubt?
The courts (and apparently Missouri citizens) believe that this a reasonable and necessary measure to help sexually abused children and to put dangerous offenders behind bars and is an added tool to fight sexual abuse.
¹Art.1, 18(c) Constitution of Missouri
Dee Wampler – learn more
At the Law Offices of Dee Wampler & Joseph Passanise, Dee Wampler draws from more than four decades of legal experience in defending clients accused of an array of crimes throughout southwestern Missouri, including Springfield, St. Louis and Kansas City. As a Springfield native, Mr. Wampler understands the nuances of the Missouri court system, but he is an equally formidable criminal trial attorney in high-profile federal cases involving serious charges. His work has earned him recognition across the country and even internationally. Several nationally syndicated television shows, including “Saturday Night with Connie Chung,” “Inside Edition” and ABC’s “Primetime” have featured his cases, and Missouri Lawyers Weekly has showcased his work approximately 20 times.