Your past can haunt you!  That’s true in life, and it can be true in the courtroom.  Take Bill Cosby as an example.

Bill Cosby is facing trial on sexual-assault charges related to one alleged victim.  As part of that case, the prosecution wants to call 13 other women as witnesses who allege that Cosby also assaulted them before the time of the instant assault he is on trial for.  This type of evidence is commonly referred to as “prior-acts evidence.”

Pennsylvania, like the majority of states and the federal government, has a general rule of evidence that prohibits this type of evidence.  It is Rule 404(b).  That rule reads:

Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.  

Pa.R.Evid. 404(b)(1).

However, like any good “general rule” there are always exceptions to the rule, and when it comes time for trial these exceptions are a favorite tool for prosecutors.  Cosby’s prosecutor, Montgomery County District Attorney Kevin Steele, makes the point.  An article quoted DA Steele making the following pitch in court: “We ask the court to look at the remarkable similarities through each of these actions.  Prior act evidence is needed in this case to prove that our victim did not consent to the sexual assault by the defendant.”  Steele continued by noting that these past allegations “establish[] modus operandi or a pattern of behavior that is so distinctive.”

These remarks track the exceptions set forth in Rule 404(b).  They read as follows:

This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

Pa.R.Evid. 404(b)(2).

Again, notably, these exceptions can be a favorite prosecutorial tool, and a good prosecutor will push the limits of the exceptions.  So, it is not only important that you mind your past so that it does not come back to haunt you in life, but you should seek the counsel of an experienced criminal defense attorney to protect you from your past if you should find yourself on the opposite end of a prosecution.