In the Court of Common Pleas of Montgomery County, Pennsylvania – Criminal Division

Montgomery County Clerk of Courts Received 3/28/2018 6:55 PM IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA – CRIMINAL DIVISION COMMONWEALTH OF PENNSYLVANIA : NO. CP-46-CR-0003932-2016 : v. : : WILLIAM H. COSBY, JR. : : DEFENDANT’S OPPOSITION TO COMMONWEALTH’S MOTION IN LIMINE TO PRECLUDE EVIDENCE FROM THE CONSTAND v. CASTOR AND CASTOR v. CONSTAND MATTERS I. Introduction On October 26, 2015, Ms. Constand filed a civil complaint against former Montgomery County District Attorney Bruce Castor in federal court in the Eastern District of Pennsylvania. In it, Ms. Constand alleges claims for defamation and invasion of privacy/false light based upon Mr. Castor’s public statements regarding her allegations against Mr. Cosby. See Exhibit A (Complaint in Constand v. Castor, Case No. 2:15-cv-05799 (E.D. Pa. 2015)). Mr. Cosby and the Montgomery County District Attorney’s Office both moved to intervene, and the Hon. Risa Ferman is listed as a respondent. See Exhibit B (Docket of Constand v. Castor, Case No. 2:15- cv-05799 (E.D. Pa. 2015)). As recently as March 10, 2017, the Montgomery County District Attorney’s Office has been engaged in that litigation and has actively opposed Mr. Castor’s discovery requests for Ms. Constand’s statements related to this case that are in its possession. See Exhibit C (Montgomery County District Attorney’s Office’s Opposition to Bruce Castor’s Motion to Compel Discovery). The D.A.’s Office acknowledges in its filings in the Constand v. Castor matter that the success of Ms. Constand’s civil claims depends upon a finding of the truthfulness, or lack thereof, of her criminal allegations against Mr. Cosby. See id. In October 2017, Mr. Castor filed a civil complaint against Ms. Constand and her civil attorneys Dolores Troiani and Bebe Kivitz, who represented Ms. Constand in her 2005 Constand v. Cosby and 2015 Constand v. Castor cases. See Exhibit D (Complaint in Castor v. Constand, et al, Case No. 171000755 (Pa. Common Pleas, Nov. 1, 2017). In his Complaint, Mr. Castor brings claims for relief for civil conspiracy and abuse of process related to Ms. Constand’s civil complaint. Again, at the core of this lawsuit is the truthfulness of Ms. Constand’s criminal allegations against Mr. Cosby. Litigation in both matters is ongoing. The Commonwealth now moves this Court to exclude any evidence of these two pending lawsuits, apparently including the fact of their very existence. II. Argument A. Evidence of the Pending Civil Lawsuits is Relevant and Admissible The Commonwealth’s sole argument in opposition to the admission of evidence of both pending lawsuits is that the evidence is irrelevant. To the contrary, the evidence is clearly relevant, and both the United States and Pennsylvania Supreme Courts have explicitly recognized that a defendant has the constitutional right to elicit evidence demonstrating a witness’ bias and motive to testify. Relevant evidence is described as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Pa. R. Evid. 401. Evidence is relevant if it “logically or reasonably tends to prove or disprove a material fact in issue, tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact.” Commonwealth v. Davis, 554 A.2d 104, 108 (Pa. 2 Super. 1989) (citations omitted). If the evidence “advances the inquiry and thus has probative value” it is relevant. Commonwealth v. Story, 383 A.2d 155, 158 (Pa. 1978). “All relevant evidence is admissible, except as otherwise provided by law.” Pa. R. Evid. 402. Thus, the threshold for relevance is very low. Evidence of the civil lawsuits between Ms. Constand and Mr. Castor is highly relevant because it demonstrates Ms. Constand’s continuing motive to lie. As described above (and in the Commonwealth’s motion) at their core, these two lawsuits center around the very same allegations for which Mr. Cosby is on trial here. In particular, Ms. Constand’s claim for defamation against Mr. Castor requires a showing that her allegations of assault are truthful. See, e.g., Chicarella v. Passant, 494 A.2d 1109 (Pa. Super. 1985) (discussing truth as a defense to a defamation claim). Mr. Castor’s claims against Ms. Constand are based upon Ms. Constand’s civil suit, and by extension spring from her allegations against Mr. Cosby. A conviction of Mr. Cosby would materially advance Ms. Constand’s position in both lawsuits with Mr. Castor. With respect to her affirmative action, truthfulness is a defense; a conviction would support her position that she told the truth, and conversely an acquittal would support Mr. Castor’s position that he told the truth. With respect to her defensive action, should she lose, she would be liable for damages and potentially attorney’s fees. The Commonwealth asserts that evidence of the existence of these civil suits is irrelevant despite fact that, in a separate motion, it wrote “[g]enerally, if evidence of a pending civil suit in a criminal trial involving the same parties can reveal a witness’s bias and interest in the outcome of the case, a court can deem it relevant, admissible evidence.” See Commonwealth’s Motion in Limine to Admit Evidence of Settlement Negotiations from Constand v. Cosby, at p. 5, ¶ d (emphasis in original). The Commonwealth even provided case authority for this proposition, 3 namely Commonwealth v. Butler, 601 A.2d 268 (Pa. 1991) and Commonwealth v. Constant, 925 A.2d 810 (Pa. Super. 2007) for the principle that, in the Commonwealth’s own words, a “pending lawsuit is relevant.” See Commonwealth’s Motion in Limine to Admit Evidence of Settlement Negotiations from Constand v. Cosby at p. 12(2). The Commonwealth is correct. Given the subject matter of the pending civil suits, Ms. Constand maintains a strong motive to testify falsely. Mr. Cosby is entitled to cross-examine her regarding her bias attributed to the pending suits, as the constitutional right to confrontation “includes the right to cross-examine witnesses about possible motives to testify.” Commonwealth v. Sullivan, 402 A.2d 1019, 1020 (Pa. 1979). The Pennsylvania Superior Court has noted that “[i]t is well established that a criminal defendant has a right to cross-examine any adverse witness . for the purpose of impeaching his credibility. The credibility of a witness may be impeached by evidence which tends to show that the witness had an interest in the outcome of the trial, Commonwealth v. Sullivan, 485 Pa. 392, 402 A.2d 1019 (1979), or that the witness' testimony may be untruthful, Commonwealth v. Updegrove, 413 Pa. 599, 198 A.2d 534 (1964); or that the witness may possess a bias which colors his testimony, Commonwealth v. Collins, 519 Pa. 58, 545 A.2d 882 (1988); Commonwealth v. Hamm, 474 Pa. 487, 378 A.2d 1219 (1977).” Commonwealth v. Butler, 601 A.2d 268, 271 (Pa. 1991). The Pennsylvania Supreme Court has held that, in a criminal case, the introduction of evidence of a parallel civil lawsuit is relevant to show a witness’ bias, prejudice, or vindictiveness. See Butler, 601 A.2d 268 (Pa. 1991); see also United States v. Abel, 469 U.S. 45, 50-51 (1984) (emphasis added) (“Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’s testimony.”). That a party can show 4 bias, prejudice, or vindictiveness through means other than the existence of a contemporaneous civil lawsuit is irrelevant. Butler, 601 A.2d at 269-70. The Butler court also rejected the same argument the Commonwealth advances here, that is, that the civil suit is not at issue but is instead collateral matter that could confuse the jury. Id. at 271. To the contrary, Ms. Constand is embroiled in ongoing civil litigation that is a direct result of her allegations for which Mr. Cosby is on trial here. That overlap “provide[s] a legitimate basis for the jury to infer bias on the part of” Ms. Constand, “particularly where the outcome of the [criminal] trial could materially affect the probability of success in the civil action.” Butler, 601 A.2d at 271. Should the jury find Mr. Cosby guilty beyond a reasonable doubt, such a liability finding (especially under the much higher standard of proof) would undoubtedly be used in the pending civil lawsuits. If the jury here knows that a criminal conviction can advance the probability of success in Ms. Constand’s civil lawsuits, it could “diminish [Ms. Constand’s] credibility in the eyes of a jury.” Id. To deny Mr. Cosby to cross- examine her with evidence of the civil lawsuit would be reversible error. Id. The Butler court’s decision was founded on the more general principle that criminal defendants enjoy a constitutional “right of confrontation which includes the right to cross- examine witnesses about possible motives to testify.” Commonwealth v. Sullivan, 402 A.2d 1019 (Pa. 1979) (citing Commonwealth v. Dawson, 405 A.2d 1230, 1231 (Pa. 1979). Commonwealth v. Cheatham, 239 A.2d 293 (Pa. 1968)). The United States Supreme Court has recognized that the exposure of a witness’ motivation in testifying is an essential function of cross-examination: A more particular attack on the witness’ credibility is effected by means of cross- examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.

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