Court relies on Professor Imwinkelried's writing in affirming Cosby conviction

  • by Carla Meyer

On May 14, the Criminal Division of the Court of Common Pleas of Pennsylvania affirmed the judgment of conviction in Commonwealth v. William H. Cosby Jr.  In Bill Cosby's case, there was only one named victim, Andrea Constand.  The defense argued that the trial judge had erred in admitting testimony from five other alleged victims.  The Criminal Division rejected the defense contention.

In doing so, the court relied in part on Professor Emeritus Edward Imwinkelried's analysis of the doctrine of objective chances.  The character evidence prohibition forbids the prosecution from introducing testimony about an accused's uncharged crimes to prove an accused's personal, subjective bad character and then treat that character as circumstantial proof of the accused's commission of the charged offense.  In a series of articles, Professor Imwinkelried has contended that it does not violate that prohibition to admit uncharged misconduct under the doctrine of objective chances.  According to the doctrine, without violating the character prohibition, the prosecution may introduce uncharged misconduct evidence to "establish the objective improbability of . . . the defendant becoming innocently enmeshed in [similar] suspicious circumstances so frequently."  Citing Imwinkelried, Chief Justice Saylor of the Pennsylvania Supreme Court endorsed the theory in his concurring opinion in Commonwealth v. Hicks, 638 Pa. 444, 156 A.3d 1114 (2017).  In Cosby, the Criminal Division cited Saylor's concurring opinion and included an extended quotation from Professor Imwinkelried.

Imwinkelried has written at length about the doctrine in his treatise, Uncharged Misconduct Evidence (rev. 2018).  In particular, he addressed the application of the doctrine to fact situations such as the Cosby case in "The Evidentiary Issue Crystalized by the Cosby and Weinstein Scandals:  The Propriety of Admitting Testimony About an Accused's Uncharged Misconduct Under the Doctrine of Objective Chances to Prove Identity," 48 Southwestern Law Review 1 (2019).