Cosby lawyer plans new appeal on question of hearsay evidence

Brian McMonagle

Brian McMonagle

Bill Cosby’s lawyer has outlined the next appeal he plans to file in yet another attempt to sidetrack the first sexual assault charges leveled against the 78-year-old entertainer.

The new appeal has an ambitious goal — changing the rules governing criminal proceedings in Pennsylvania, said defense attorney Brian McMonagle.

“At this point in time, it’s obvious that Mr. Cosby’s rights have been violated by the abuses that were predictable after the Ricker decision,” said McMonagle, referring to the case Commonwealth v. Ricker, which is expected to go before the state Supreme Court sometime this fall.

The case concerns whether second- and third-hand testimony, also known as hearsay, should be admissible during a preliminary hearing. Skeptics say it’s unconstitutional, depriving defendants of the opportunity to confront an accuser; supporters say it spares victims from having to take the stand before a trial.

McMonagle said his next appeal, to be filed as a petition for habeas corpus relief, is intended to change state court rules and trigger a new preliminary hearing for Cosby.

“Because now, once you’re arrested, you’re going to trial. Think about it this way, if you got probable cause for a warrant, then why do we even need preliminary hearing under these standards today?” McMonagle said.

During Cosby’s preliminary hearing last month in Montgomery County, two detectives and a police chief read police reports and other testimony after prosecutors decided not to put accuser Andrea Constand on the stand.

“We’re simply going to allow a detective to walk into the courtroom, read a statement that’s 12 years old, and rely on that to put a man on trial for serious charges?” McMonagle said. “I don’t believe when the Supreme Court granted that rule, it had that in mind.”

McMonagle admits that in some situations, prosecutors have a good reason to rely on hearsay evidence at a preliminary hearing instead of putting a direct witness, under scrutiny. Yet the way the hearsay rule has been exercised in Pennsylvania, making first-hand testimony unnecessary is problematic, he said.

McMonagle said defendants are constitutionally guaranteed the right to a face-to-face confrontation with accusers. 

“I’ve seen time and time again when people come to preliminary hearings where the right of confrontation was upheld. Come in, look at the guy sitting in the courtroom, and say, ‘I know I identified a photograph, but that’s not the guy who committed the crime,'” he said. “Is that what we want? Put someone on trial under those circumstances?”

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