The case against actor and comedian Bill Cosby recently brought one of the most controversial issues in criminal law into the forefront of the public’s mind. That is, whether a jury should hear about someone’s past conduct at trial? The Pennsylvania Supreme Court will hear arguments on Tuesday in Cosby’s case, focusing on this very question. As highlighted by this article (Link: http://detroitnews.mi.newsmemory.com/?publink=0d36ccde8) this debate has been central to the high profile prosecutions of Cosby, Harvey Weinstein, and other public figures. Importantly, however, it frequently becomes an issue in the average, run of the mill criminal case.
“Prior acts” evidence, also known as “prior bad acts,” or “404B” evidence, is a central issue in a significant percentage of criminal prosecutions. It is particularly highlighted in allegations of sexual assault, child abuse, and child sex crimes. Prosecutors argue that the evidence is important to show a criminal signature, or a pattern; while defense lawyers counter by pointing out that the evidence is nothing more than character assassination designed to convict a defendant for being a bad person rather than having committed this particular offense.
By 2017, dozens of women had come forward to say that Cosby had also sexually assaulted them in a manner similar to the initial complaining witness, a Temple University employee. At the first trial, the trial judge allowed just one of these several women to testify about the evidence of this prior act. It ended with a hung jury. At the second trial the following year, the trial judge allowed five other accusers to testify against Cosby that they had also been drugged and sexually assaulted in a manner similar to the initial complaining witness. Not surprisingly, at the second trial, Cosby was famously convicted of the original allegations.
The trend in most states and jurisdictions throughout the country has been to allow prosecutors to expanded the use of these prior bad acts evidence. While this has certainly led to more convictions in sexual assault, child abuse, and child molestation cases, critics argue that it has also caused a substantial increase in false allegations and wrongful convictions. The Pennsylvania Supreme Court will address this important issue. The question becomes will the Court continue to allow the trend towards the free admission of this evidence against defendants or tighten up the rule so that the added evidence must pass a more restrictive test as to the relevance and potential prejudice.
This remains and will continue to remain, one of the most critically important issues in criminal law. Stay tuned, as we watch whether future developments swing the pendulum back in favor of defendants, and thereby strengthen the due process guarantee to a fair trial.
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