Attorneys tussle as judge considers allowing Cosby accusers to testify at June trial [updated]

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     Bill Cosby, left, leaves the courtroom during a break in the pretrial hearing in his sexual assault case at the Montgomery County Courthouse in Norristown, Pa., Tuesday. Lawyers for Cosby will battle in court to try to limit the number of other accusers who can testify at the comedian's sexual assault trial. (David Maialetti/The Philadelphia Inquirer via AP, Pool)

    Bill Cosby, left, leaves the courtroom during a break in the pretrial hearing in his sexual assault case at the Montgomery County Courthouse in Norristown, Pa., Tuesday. Lawyers for Cosby will battle in court to try to limit the number of other accusers who can testify at the comedian's sexual assault trial. (David Maialetti/The Philadelphia Inquirer via AP, Pool)

    A Montgomery County judge will continue hearing arguments Wednesday on whether 13 women who have accused comedian Bill Cosby of sexual assaults dating back to the 1960s can testify during the entertainer’s criminal trial in June.

    Court watchers say the evidence is important for establishing the prosecution’s case, that a sexual encounter between Cosby and then 31-year-old Andrea Constand was not consensual.

    Montgomery County District Attorney Kevin Steele Tuesday laid out about a dozen similarities between the ongoing criminal case and these prior accusations, which he says show intent and a “common scheme” that supports Constand’s claims.

    Constand, who met and was mentored by Cosby during her time with Temple University’s basketball program, said he gave her pills and assaulted her at his Cheltenham mansion in 2004.

    “In each case the victim is a young woman,” Steele said, listing some of those cases. “Each of the women was with the defendant on the day in question as a result of him inviting her out.”

    Also in each case, according to court documents supplied by the prosecution, Cosby gave the women pills or alcohol laced with an intoxicant than made them unable to consent to ensuing sexual acts.

    Under Pennsylvania law on the rules of evidence, prior bad acts otherwise barred from consideration during a criminal trial can be allowed if that evidence is not used simply to damage a defendant’s character.

    In practice, that means prosecutors may bring in this evidence if it answers a particular question in the case and outweighs the concern of potentially biasing a jury against the accused.

    In 2005 deposition testimony, Cosby described his sexual relationship with Constand as a consensual one.

    Throughout the day, attorneys for the prosecution and defense shouted at one another over evidence the defense wanted to bring in to challenge the women’s accounts, including personal information about the 13 women.

    Eleven of the accusers have previously come forward with claims of assaults — two have not. The defense has included the women’s names in some of its court filings.

    “What they are doing here is an attempt to intimidate people,” said Steele.

    “Most of them have been to press conferences, many have given interviews,” countered lead defense attorney Brian McMonagle, highlighting the public profile of some of the unnamed accusers. “Some have been interviewed for books, some have gone on tours.”

    “You don’t raise your voices and shout at each other in this court,” said Judge Steven T. O’Neill. “That isn’t civil.”

    Other evidence the prosecution said will show the women’s accounts do not pass the legal test necessary to be admissible include police interviews, press clippings and Facebook messages.

    O’Neill Tuesday tossed out testimony by a memory expert and a copy of Andrea Constand’s 2005 civil deposition as incompatible with the scope of the hearing.

    O’Neill could choose to allow all, some or none of the proposed witnesses to testify during the upcoming criminal trial, scheduled for June.

    In the courtroom, Cosby appeared to have difficulty getting into a chair at the defense table and was helped by lawyer Angela Agrusa, the newest member of his team.

    Largely quiet during previous court proceedings, Cosby Tuesday jested with guards in the hallway, saying “Don’t tase me, bro” while chatting with courthouse security, according to the Associated Press.

    During the afternoon session, Cosby chimed in to fill holes in the record and even offered a correction to the prosecution’s misstatement that a certain alleged assault took place at a New York Hotel.

    “No, the Drake [Hotel] is in Chicago,” he said.

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