The Bill Cosby trial has started and no doubt the media coverage will be non-stop throughout the course of the estimated 2 weeks that it will take to conclude. The first witness of the trial was not the victim in this case, Andrea Constand. The first witness to testify was an alleged prior victim, Kelly Johnson. Johnson will be the only alleged prior victim to testify pursuant to a court order that limited the State’s witness list from 13 alleged victims to only Johnson.
The public were led to believe that the unprecedented number of victims would be able to testify at the Cosby trial. However, most trial attorneys are quick to point out those prior victims or prior bad acts unrelated to the case at the Constand trial will not be heard. Surprising, given the similarity in the details of all of the alleged victims, we have rules of evidence that do not allow evidence that is unfairly prejudicial to be admitted to trial -- no matter how important that information appears.
When deciding if a witness can testify in a rape trial about another rape from another instance, courts will look at key factors to determine if the testimony is relevant and overly prejudicial. Those factors include whether the prior bad act was formally reported to the police or other equivalent agencies and the timing of when the incident was reported, and how long ago it happened (laws on timing as to juveniles are different as to statute of limitations and timing).
Looking at these factors, the Court may bar that testimony because it is unreliable, not credible, or prejudicial. In the Cosby case, Johnson did formally report the Cosby sexual assault incident. She did so during her worker’s compensation testimony cited the Cosby assault as the reason why she was unable to work, stating it was due to the debilitating stress caused by Cosby. This testimony may not have been a formal report, indictment or conviction by the police, but was enough to allow the court to open the door and admit her testimony at trial.
The judge could have easily ruled that because there was no police report or criminal conviction in Johnson’s case that her testimony could be barred. Courts are wary of allowing in evidence of prior bad acts unrelated to the trial at hand because those incidents have the ability to become a mini trial in the middle of the actual trial.
In the Cosby case, Johnson’s mother was next to testify -- in order to corroborate her daughter’s testimony -- even though the matter is unrelated to the Constand, the actual victim that is being heard.
Even one corroborating witness to a prior rape has the ability to devastate Cosby’s defense. Two women explaining similar acts who are unrelated can negatively impact jurors as to the guilt of Cosby. The most vital lesson that we gleam from this issue is the significance of women reporting sexual assault. It has been reported that sexual assault is known to be grossly underreported in the U.S. It is estimated that only 344 out of every 1,000 sexual assaults are reported to police. That means about 2 out of 3 go unreported.
The reasons for not reporting often include embarrassment, shame, and lack of privacy. If Johnson was not strong enough to report the alleged sexual assault of Cosby in her Worker’s Compensation testimony, she may not have been able to testify more than 20 years later and be the only other victim to speak for dozens of others that were barred as witnesses at trial. It is inspirational that the women in the past that have been victimized by Cosby are publicly supporting Constand and the other alleged victims but in court their statements and stories will have not be heard.