For victims of sexual assault who are coming forward with their allegations of wrongdoing, proof of the accused’s other “bad acts” has made it clear that there is truly strength in numbers – that is, the more victims coming forward about the bad acts of a specific person being accused, the more likely that the victims will be believed. For the person accused of the wrongdoing, a wise plan of action is to attempt to exclude as many instances of these other “bad acts” as possible. Whether you are a victim or the accused, an understanding of this environment is critical to navigating it successfully, and that includes knowing what other “bad acts” evidence is.
On Thursday, April 26, 2018, comedian Bill Cosby, who played Cliff Huxtable on “The Cosby Show,” was found guilty of three counts of Aggravated Indecent Assault and faces up to 30 years in prison. Aggravated Indecent Assault used to be known more commonly as rape. This was the second jury trial in Cosby’s matter. Last year, a jury did not come to a unanimous verdict; on April 26, 2018, a different jury did. The two trials involved the same facts and the same accuser (Andrea Constand); but for the proof of other “bad acts” evidence, it was the same case.
In the first trial, there was testimony from a second woman that Cosby had allegedly sexually assaulted, and that incident was used as evidence of “Other Bad Acts.” In the second trial, there was testimony from four additional women. It is not difficult to see why the presentation of increased Other Bad Acts significantly impacted the jury’s decision in reaching a verdict. This begs the question, does repetition make something more true?
Other Bad Acts, also called Prior Bad Acts evidence, also called Other Crimes Evidence, are now the rule in sexual assault prosecutions. Other Bad Acts evidence allows the prosecution present to the jury in a criminal trial evidence of the defendant’s other bad acts. State and federal legislatures have passed laws that provide this exception to the No Character Evidence Rule. Federal Rules of Evidence 404.
In the federal system, evidence of a prior bad act is not admissible to prove a person’s character or to show that because they did the first thing, they probably did the second (or third, or fourth) act. However, (and it’s a huge however) there are exceptions: that same prior bad act can be admitted for other purposes, such as showing motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. These are the same exceptions that Illinois allows, as Illinois rules of evidence are based on the federal rules of evidence.
In Cosby’s first trial, the jury heard about only two women: the Complaining Witness, Andrea Constand, and one other. The jury did not reach a unanimous verdict as to whether or not the prosecution met its burden beyond a reasonable doubt. In Cosby’s second trial, which culminated in a guilty verdict, the jury heard about five women: Andrea Constand and four others. The testimony of and regarding the four other women is what is considered evidence of other bad acts in Cosby’s matter. The majority of states have laws that allow for other bad acts evidence to be presented at trial.
Other Bad Acts evidence creates very important concerns and considerations for both sides. Attorney Gloria Allred, who represents some of the Cosby accusers, noted the difference between the court allowing only one witness regarding other bad acts, versus allowing multiple ones. Testimony that offers repetition of conduct that is similar – as in the Cosby case – has the effect of buttressing the testimony of those that testify, and showing evidence of modus operandi and more. Clearly, in the Cosby matter, the additional witnesses and their testimony about what they experienced made a big difference to the jury.
As stated previously, for victims making allegations of sexual assault, proof of other “bad acts” has made it clear that there is strength in numbers. For people accused of sexual assault, it is important to attempt to exclude as many instances of other bad acts as possible. Whether you are a victim or a defendant in a situation like this, an understanding of the environment is critical to navigating it successfully. Wigell Law Group, is more than familiar with the sexual accusation environment with more than 40 years experience. We will protect your rights and maximize your options.