A pretrial ruling in the Bill Cosby criminal case, had there been a conviction, would have raised an interesting appellate issue relating to the admission into evidence of “complaints” by individuals other than the complaining witness. The prosecution wanted to admit the complaints of numerous other women made against Mr. Cosby, however the trial judge only allowed one to testify. If a court does allow such evidence, a convicted defendant can raise this point on appeal.
Whether he or she will be successful depends on how the judge arrived at that decision. This issue regularly plays out in California courts. The guidelines in California are embedded in the Evidence Code, and have been interpreted by numerous appellate court decisions over the years. The rules governing the admissibility of evidence of “other conduct” are well settled.
Although evidence of prior criminal acts generally cannot be used to show bad character, criminal disposition, or probability of guilt, such evidence may be admissible when relevant to prove some material fact other than the defendant’s general disposition to commit such an act. In other words, such evidence cannot be used to show that a defendant had the “propensity” to commit the charged offense, but can be circumstantial evidence tending to prove, for example, his identity, intent, modus operandi and/or motive in the present crime.
In California an exception to the general rule against admitting propensity evidence provides for the admissibility of evidence of other sexual offenses in the prosecution for a sexual offense, subject to certain limitations. The Legislature’s justiﬁcation for the adoption of this rule was a practical one: By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conﬂicting versions of the event and requires the trier of fact (the judge or jury) to make difﬁcult credibility determinations. Thus, the law provides the trier of fact in a sex offense case the opportunity to learn of the defendant’s possible disposition to commit sex crimes.
However, a trial court must be thorough in its analysis of what and how much of that evidence to allow in at trial. The court must exercise its discretionary powers by weighing, the probative value of the evidence against the probability that its admission will create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. If such evidence poses an intolerable risk to the fairness of the proceedings, renders the trial fundamentally unfair, or tends to invoke an emotional bias against a party as a an individual — while having only slight probative value it should be excluded.
Getting back to Mr. Cosby’s case, the admission of only one other such witness at the ﬁrst trial may have been a big break for the defense. The interesting question will occur if upon retrial the court changes its ruling and allows more than one witness to testify. That decision will raise a real appellate issue.
[Richard D. Rome has been an attorney for over 35 years and has handled over 400 appeals. He can be reached at firstname.lastname@example.org or by phone at 818-994-8761.The information in this article is of a general nature and not intended as legal advice. Seek the advice of an attorney before acting or relying upon any information in this article]