NORRISTOWN — A judge denied Bill Cosby’s latest maneuver to delay facing sexual assault charges filed against him saying prosecutors didn’t have to produce a live witness during his preliminary hearing.
Attorneys in the case spent the afternoon arguing over the validity of charges filed against Cosby that were approved during a May preliminary hearing when a judge sent the case to trial. But during that preliminary hearing, alleged victim Andrea Constand didn’t appear for questioning. Cosby’s team says their inability to question her was a violation of his constitutional rights.
Prosecutors say they wanted to avoid “re-victimizing” her “over and over again” because hearsay evidence is allowed during preliminary hearing proceedings and she was willing to testify during a later trial.
“[Defense attorneys] want to attack that for their case, they want to re-victimize a person,” Montgomery County District Attorney Kevin Steele said. “Is it to intimidate a person from going forward or cooperating?”
Cosby’s defense attorneys argued Judge Steven O’Neill should either force Constand to testify at a new preliminary hearing or, as they would prefer, drop the charges of aggravated indecent assault completely. They said prosecutors failed to establish probable cause — the judge ultimately disagreed and said the commonwealth met its burden.
Defense attorney Christopher Tayback said the encounter between Constand and Cosby at his Cheltenham home in 2004 was consensual. The alleged victim told police Cosby gave her drugs he said were herbal that ultimately rendered her unable to resist his advances. She told local police after the incident that she felt “paralyzed” and “frozen.” Tayback said Cosby wasn’t trying to drug Constand, but rather to offer her Benadryl to help her relax.
“If you give somebody a pill and they ultimately have adverse reactions,” he said, “if your purpose was to treat them, that’s not actionable.”
O’Neill responded: “It is if you allegedly have sex with them after it.”
Still, Cosby’s defense team said prosecutors relied solely on hearsay evidence to make their case during the preliminary hearing stage. Because Constand didn’t testify, her 11-year-old statements to police were read into the record by detectives during the May preliminary hearing. Hearsay evidence is allowed during preliminary hearings in Pennsylvania to establish a preponderance of the evidence, but it can’t be the only evidence prosecutors use to make their case.
But Steele said supplemental evidence was provided in the preliminary hearing in the form of civil depositions Cosby gave back in 2006 after Constand filed a lawsuit against him. In the depositions, he admitted to giving pills to women he wanted to have sex with.
Defense attorneys indicated they plan to argue those depositions should be suppressed for trial. They were at the center of previous hearings held in the case when Cosby’s defense team argued he was told he would never be criminally charged in relation to Constand’s case, so long as he testified during her civil suit.
O’Neill ruled against Cosby and said the depositions could serve as the basis for charges. Whether or not they can be used at trial has yet to be determined.
After the trial, Cosby’s attorney addressed reporters: