Bill Cosby sexual assault defense: Challenging the memory of witnesses?

If a Pennsylvania judge permits 13 women who have accused Bill Cosby of sexual assaulting them to testify in another woman’s trial, the defense wants to assess the competency of the women’s memories.

In a motion Mr. Cosby’s lawyers filed Monday, they argue Montgomery County Judge Steven O’Neill should allow competency hearings for any of the 13 women he lets testify because an expert on the malleability of human memory says theirs could be tainted.

“Science tells us that memories are corruptible, vulnerable to suggestion, and change depending on numerous factors,” wrote Brian McMonagle and Angela Agrusa in the motion. The state “has asked the court to bring before the jury 13 individuals to speak of witness-less, evidence-less allegations of misconduct, ranging from hair-stroking to violent assault, that they now claim occurred in eras long passed-indeed, from almost a half-century ago (1967) to over 20 years ago (1996) and all well before Andrea Constand ever spent an evening with the defendant in 2004.”

Competency hearings typically evaluate a defendant or a child’s abilities to be a witness and cooperate in court. Because most adults are presumed competent, this motion could just serve as a preview of the defense’s strategy – discredit the accounts of the accusers. If Judge O’Neill were to grant the motion, however, it could open up a new line of defense against rape, as a number of states have extended or lifted the statute of limitations for rape victims to seek charges in response to dozens of accusations against Cosby.

Though science suggests victims’ memories of rape can change over time, some legal experts and psychologists disagree over whether a competency hearing is the best approach. Instead, they advocate for cross-examination, allowing a judge and jury to assess the totality of the evidence – the witnesses’ memory, physical evidence, and other arguments – to determine which side they believe more.

“That’s the whole justice system – cross-examination,” says Barbara Ashcroft, director of the trial advocacy program at Temple University Beasley School of Law in Philadelphia, and a former prosecutor in the Montgomery Country District Attorney’s Office, where Mr. Cosby is accused of sexually assaulting Ms. Constand. Ms. Ashcroft was not involved in the prosecution’s investigation but has been following the case.

Cross-examination allows jurors to “have a framework of where to put the evidence, and understand the story of whichever side they tend believe more,” she tells The Christian Science Monitor in a phone interview Tuesday. “Because competency is presumed, it’s odd in this particular case.”

The defense submitted the motion on the eve of a two-day, pre-trial hearing, in which O’Neill is expected to rule on several questions. One is whether 13 of the 60 women who have accused Cosby of sexual assault can testify for the prosecution.

The prosecution has said it intends to show a pattern “of prior bad acts” by Cosby, now in his late 70s, and diagnosed as blind, according to the Associated Press. Courts can allow such testimony if it shows a very specific “signature” crime pattern.

Starting in 2014, five-dozen women have come forward to accuse the comedian of sexual assault. But Cosby, once the star of the television show that bears his name, only faces criminal charges for one complaint.

Stemming from a 2004 encounter with Constand, Cosby has been charged with three counts of aggravated, indecent, sexual assault. Constand was a Temple University employee when she came to Cosby’s home outside of Philadelphia. She has said that there Cosby drugged her and assaulted her, an account similar to the accusations of the dozens of other women.

But the defense argues some of the 13 women who could testify will be asked to remember events that occurred nearly 50 years ago, which concerns the defense’s expert on memory, psychologist Elizabeth Loftus.

"In my professional opinion, people’s recollections of events that transpired 20 years ago have a high probability of being tainted by the passage of time alone” she said, according to the motion.

The defense cites the affect the circumstances of an event, the span of time, and media coverage can have on a person’s memory.

“Retrieving memory is not like replaying a video recording of an event that took place, but rather it is process by which people take bits and pieces of the information available to them at the time of retrieval and create what feels like a memory of what happened,” continued Dr. Loftus. “Remembering involves the act of reconstructing what must have happened, using some stored fragment of information.”

Melissa Jenkins Mangili, a neuropsychologist and expert on memory, said it would be appropriate for the court to examine the consistency of facts to see if they have changed over time. But she also says that it should be done through cross-examinations, not competency hearings, she writes to the Monitor in an email. 

Competency hearings shed “little light on the type of autobiographical memory required to recall personally relevant details over long periods of time,” she writes.

“I think judges and juries assess credibility, in part, by the consistency of the accuser's report and the presence of objective information that verifies that report (DNA, eyewitnesses, or other objective data) as well as their own subjective assessment of the credibility of that individual,” she adds. “There's not a perfect solution, so we trust the convergence of data (multiple witnesses reporting the same thing, subjective reports that line up with objective evidence) as the best solution.”

The reliability of memory in the courtroom, especially in rape cases, has been a subject of debate for some time. In 1994, for instance, a Southern California father was the first to successfully sue two therapists for implanting false memories through a type of therapy, recovered memory therapy, that he sexually assaulted his daughter. The debate has intensified in recent years because of the Cosby accusations, rising awareness of sexual assaults in the military, and the alleged, but disproven gang rape of a female freshman at the University of Virginia, as reported by Rolling Stone magazine.

The testimonies of dozens of women who have accused Cosby of rape have inspired several states to pass legislation that extended or lifted the statute of limitations. The laws were significant since only an estimated 344 out of 1,000 rapes are reported to police. But when California lifted its statute of limitations in September, opponents of the law said the span of time the law allows could lead to more wrongful convictions. They were concerned about the reconstruction of events using fallible evidence, such as witness testimony.

But a Washington Post analysis of relevant research found that while victims’ memories of a rape might be hazy, they are rarely false. False allegations make up between 2 to 10 percent of assault cases reported to police, according to a 2010 peer-reviewed study published in the journal Violence Against Women, which the Post cited.

Ms. Ashcroft, the law professor and former prosecutor, says it’s up to O’Neill to decide, then, how much testimony he will allow. Either way, however, the motion is a preview of Cosby’s defense.

“This is the direction the defense is going to go with this case: time has deteriorated the memories of any of these potential witnesses,” she says.