commonwealth v. william h. cosby, jr....2017) (saylor, c.j., concurring); see sitler, 114 a.3d at...

Commonwealth v. William H. Cosby, Jr.

TABLE OF CONTENTS

I. Pennsylvania Prior Bad Act Evidence ..................................................... 2

II. The Use of Experts to Dismiss and Contextualize Common Rape Myths .. 3

III. Temporary Admission to the Bar .......................................................... ..4

IV. #MeToo……………………………………………………………………………….....6

Appendix "A"……………………………………………………………………………7

STEELE PROSECUTING COSBY

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I. PENNSYLVANIA PRIOR BAD ACT EVIDENCE A. General Proscription

1. Other act evidence is inadmissible against a defendant to show his

bad character and his propensity for committing criminal act. Pa. R.E. 404(b)(1).

B. Exceptions

1. Other act evidence is admissible in certain circumstances where it

is relevant for another purpose, “such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Pa. R.E. 404(b)(2).

a. This list is not exclusive. Commonwealth v. Lark, 543 A.2d

491, 497 (Pa. 1988); see 1 McCormick, Evidence § 190 (7th ed.) (stating that the enumerated exceptions to the general rule is “neither mutually exclusive nor collectively exhaustive”).

2. Other act evidence is also admissible to show a “common scheme,

plan, or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the other.” Commonwealth v. O’Brien, 836 A.2d 966 (Pa. Super. 2003).

3. A determination of whether prior bad act evidence is admissible is

to be made by the trial court “on a case-by-case basis in accordance with the unique facts and circumstances of each case.” Commonwealth v. Frank, 577 A.2d 609, 614 (Pa. Super. 1990).

4. Absence of Mistake

a. Prior bad act evidence is admissible to show a defendant’s

actions were not the result of a mistake or accident where the manner and circumstances of the acts are “remarkably similar.” Commonwealth v. Tyson, 119 A.3d 353, 359 (Pa. Super. 2015).

b. There must be a “close factual nexus to sufficiently

demonstrate the connective relevance of the prior bad act to the criminal act at issue.” Commonwealth v. Sitler, 144 A.3d 156, 164 (Pa. Super. 2016).


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1) Lesser degree of similarity between the acts needed than under the common plan or scheme exception. Commonwealth v. Hicks, 156 A.3d 1114, 1132 (Pa. 2017) (Saylor, C.J., concurring); see Sitler, 114 A.3d at 164 (noting that under the absence of mistake exception there need not be a “unique signature,” but rather a “close factual nexus”).

c. A defendant does not have to actually forward a formal

defense of accident or mistake—or even present arguments along those lines—before the Commonwealth may introduce evidence to exclude the theory of accident.

1) The Pa. Supreme Court has expressly rejected the

notion that proof of accident or mistake is only admissible for responsive purposes. Commonwealth v. Boczkowski, 846 A.2d 75, 88 (Pa. 2004).

II. THE USE OF EXPERTS TO DISMISS AND CONTEXTUALIZE COMMON RAPE MYTHS

A. Pennsylvania

1. Expert Testimony in Criminal Proceedings: 42 Pa. C.S. § 5920

(a) Scope.--This section applies to all of the following:

(1) A criminal proceeding for an offense for which registration is required under Subchapter H of Chapter 97 (relating to registration of sexual offenders).

(2) A criminal proceeding for an offense under 18 Pa.C.S. Ch. 31 (relating to sexual offenses).

(b) Qualifications and use of experts.

(1) In a criminal proceeding subject to this section, a witness may be qualified by the court as an expert if the witness has specialized knowledge beyond that possessed by the average layperson based on the witness's experience with, or specialized training or education in, criminal justice, behavioral sciences or victim services issues, related to sexual violence, that


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will assist the trier of fact in understanding the dynamics of sexual violence, victim responses to sexual violence and the impact of sexual violence on victims during and after being assaulted.

(2) If qualified as an expert, the witness may testify to facts and opinions regarding specific types of victim responses and victim behaviors.

(3) The witness's opinion regarding the credibility of any other witness, including the victim, shall not be admissible.

(4) A witness qualified by the court as an expert under this section may be called by the attorney for the Commonwealth or the defendant to provide the expert testimony.

2. Myths

a. Most rapes are committed by strangers

b. Rape victims report immediately

c. All victims are able to report a coherent chronology of events

d. Victims will never speak to the perpetrator again

e. Sexual assaults do not have a tremendous impact of subsequent functioning

See Appendix A (Dr. Ziv resume and report)

III. TEMPORARY ADMISSION TO THE BAR

B. Pennsylvania: Rule 301

1. General Rule


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a. An attorney, barrister or advocate who is qualified to practice

in the courts of another state or of a foreign jurisdiction may be specially admitted to the bar of this Commonwealth for purposes limited to a particular case. An attorney, barrister or advocate admitted pro hac vice in a case shall not thereby be authorized to act as attorney of record in the case.

2. Procedure

The general requirements for applicants seeking admission pro hac vice are: (1) Applicants shall provide such information and pay such fee

to the Pennsylvania Interest on Lawyer Trust Account (IOLTA) Board as is required by the regulations concerning pro hac vice admission that have been adopted by the IOLTA Board and approved by the Court.

(2) Upon an applicant’s compliance with the administrative

requirements of paragraph (b)(1):

(i) The applicant’s candidacy for pro hac vice admission shall be made by motion by a sponsor, who is member of the bar of this Commonwealth in accordance with Pennsylvania Rule of Civil Procedure 1012.1 (Admission Pro Hac Vice. Motion. Content);

(ii) The motion for the applicant’s candidacy for pro hac

vice admission shall be filed by the sponsor with the clerk of the court in which or with the magisterial district judge before which the case is pending at least three days prior to the appearance before the court or magisterial district judge by the attorney, barrister, or advocate seeking pro hac vice admission; and

(iii) In capital cases, wherein the applicant seeks pro hac

vice admission as defense counsel, the requirements of Pennsylvania Rule of Civil Procedure 1012.1(c) shall be


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supplemented to demonstrate compliance with the requirements of Pennsylvania Rule of Criminal Procedure 801 (Qualifications for Defense Counsel in Capital Cases).

(3) The oath shall not be required.

III. #METOO

A. Jury Selection

1. Question posed to the jury in voir dire: “Do you have any knowledge, or have you heard, read or seen anything about the “Me Too” movement or allegations of sexual misconduct in the entertainment industry?


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Appendix “A”


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commonwealth v. william h. cosby, jr....2017) (saylor, c.j., concurring); see sitler, 114 a.3d at...

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