Bill Cosby arrives at the Montgomery County Courthouse in Norristown on July 7, 2016.

Bill Cosby arrives at the Montgomery County Courthouse in Norristown on July 7, 2016.

Jenna Eason / Billy Penn

Bill Cosby’s lawyers: Without testimony from alleged victim, throw out charges

Also, the 78-year-old comedian’s attorneys implied prosecutors’ arguments to avoid re-victimization were invalid.

NORRISTOWN — Bill Cosby’s defense attorneys are arguing their rights to question an alleged victim of sexual assault, implying there was no need for prosecutors to protect her from re-victimization because the incident occurred 12 years ago and she filed a lawsuit against Cosby.

At issue during today’s hearing in Montgomery County: Whether a judge should have sent Cosby’s case to trial following a May preliminary hearing in which the alleged victim didn’t testify. A short break was called at 2:15 p.m.

Defense attorneys for the 78-year-old renewed their call today to force testimony from Andrea Constand, the former Temple University employee who accused Cosby of sexually assaulting her in his Cheltenham home in 2004. Constand didn’t appear at Cosby’s May preliminary hearing, but local police who took her statement in 2005 read it aloud.

“The statement on its face,” defense attorney Christopher Tayback said, “begs more questions than it answers.” He asked the judge to either dismiss sexual assault charges filed against Cosby or require Constand to testify at a new preliminary hearing.

Prosecutors said though Constand didn’t appear for the preliminary hearing because “credibility isn’t an issue” at that stage in the process, she is prepared to testify at trial. They said they didn’t produce her at the preliminary hearing because they wanted to avoid “re-traumatization.” Tayback pushed back, at one point implying Constand didn’t need to be protected by prosecutors because a civil lawsuit was filed in the case and the incident happened more than 12 years ago.

“Is that the individual, the alleged victim who should be shielded or needs to be shielded from answering a question that was so long ago that the detective said she doesn’t have any memory of it?” Tayback said. He was referring to testimony delivered at the preliminary hearing by a detective who said she couldn’t remember the specifics of taking Constand’s statement in 2005.

Judge Steven O’Neill shot back, reminding him that “It doesn’t matter if it was 10 years ago or 10 days ago. The principles and concepts of re-victimization remain the same.”

O’Neill indicated Cosby’s right to confront his accuser wouldn’t be denied throughout the entire process.

“The case will never proceed to a fact-finding without confrontation,” the judge said.

Though dozens of women have accused Cosby of drugging and sexually assaulting them dating back to the 1970s, Constand’s is the only criminal case brought so far against Cosby — the others ran out of time to file charges before the statute of limitations was up.

Hearsay evidence is allowed at preliminary hearings in Pennsylvania, as the hearings are used only establish that there’s enough probable cause to move the case toward trial. However, the state Supreme Court will hear a case later this year challenging the 2011 rule allowing hearsay. Defense attorneys argue a defendant’s right to due process is violated when they can’t question their accuser, even at the preliminary hearing stage.

But some prosecutors say not so and advocate for allowing hearsay testimony at the preliminary hearing stage because witness credibility isn’t determined that early in the process.

“We’re not going to re-traumatize victims,” District Attorney Kevin Steele said.

Constand told local police after the incident that Cosby had given her pills that rendered her “paralyzed” and “frozen.” She said she was unable to stop Cosby when he initiated sexual contact with her.

Cosby’s defense team argues the encounter was consensual, and pointed out Constand had contact with Cosby some “20 times” after the incident.

After former Montgomery County District Attorney Bruce Castor refused to file charges against Cosby in 2005, Constand sued the comedian and the case was later settled. During depositions in the case, Cosby admitted giving pills to women he wanted to have sex with, and those depositions were later used as the basis for charges filed against him in December — just days before the statute of limitations ran out.

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