Bill Cosby, the Lustful Disposition Exception, and the Doctrine of Chances
Washington University Law Review, Forthcoming
Duquesne University School of Law Research Paper No. 2016-01
7 Pages Posted: 21 Jan 2016
Date Written: December 1, 2015
With the filing of criminal charges against Bill Cosby in a case involving one victim, the question attracting a great deal of attention is whether other victims will be allowed to testify for the prosecution. Yes is the likely answer but probably for the wrong reasons. Generally the prosecution is forbidden to introduce other bad acts by a defendant, but there are certain categorical exceptions. Under federal law, any prior sexual misconduct can be admitted in the prosecution of a sex crime case -- a notion that the drafters of the Federal Rules of Evidence borrowed from something called the Lustful Disposition Exception in many states. Other states, such as the one in which Cosby will be tried, never formally had such an exception but had and have a soft version of the exception, very liberally admitting prior sexual misconduct in sex crime prosecutions under the modus operandi exception. The Lustful Disposition Exception has been rightfully criticized as too readily admitting otherwise forbidden character evidence. A rarely invoked principle of evidence law, the Doctrine of Chances, however better explains why the multiple Cosby accusers should be permitted to testify. This principle asks essentially what is the likelihood that the past act could be false and the present charge true. It is highly relevant that many accusers tell essentially the same story about their experiences with Bill Cosby. The Doctrine of Chances better captures why these accusers should be heard than a rule that merely asks, or heavily relies upon the fact that, the prior bad act was of a sexual nature.
Keywords: evidence, testimony, admissibility, sexual misconduct, sexual assault, modus operandi, sex crimes, lustful disposition exception, doctrine of chances, prior acts, propensity, intent exception, victims, rules of evidence
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