When “Hearsay” Became the “Law of the Land”

Hillary Clinton and Bill Cosby

This article is in reference to what went on in Bill Cosby’s trial on July 7th, 2016. DA Steele argued and Judge O’Neill agreed that it was okay to use hearsay at a preliminary hearing against Dr. Cosby because it was “the law of the land.” This was an assault (sexual assault?) on the Sixth Amendment right of all Americans to confront their accusers at trial. This has been a right since 1791, at least until now.

Bill Cosby Returns to Court Seeking Dismissal of Sex Assault Charges

Bill Cosby Loses Bid to Get Criminal Case Dismissed

This is from the first “Daily Times News”article above: “While the state Supreme Court is currently reviewing the Superior Court’s decision in Ricker, Steele said “it is still binding precedent” and argued unless the rule is overturned, “this is the law of the land.”

Is the allowing of “Hearsay” testimony at preliminary hearings instead of readily available witnesses, really the “law of the land?” Have Sixth amendment  rights to cross examine witnesses really been eliminated from preliminary trial hearings?

This is what Steven F. Fairlie, the chair of the Montgomery County Criminal Defense Committee writes about the ruling Steele and Judge O’Neill cited. PA Superior Court: Hearsay Enough for Prima Facie Case?

Hearsay is an out-of-court statement used to prove the matter asserted. Generally, hearsay is excluded from legal proceedings because it is deemed unreliable, subject only to explicit and carefully defined exceptions (i.e. a “dying declaration” is admissible to prove the identity of the assailant and a “present sense impression” is admissible because statements made simultaneously as the information conveyed is perceived by the declarant is more likely to be accurate).   Hearsay not otherwise considered reliable is excluded because a fact-finder cannot assess the credibility of the declarant through her own perception. In other words, the prohibition of hearsay prevents “he said; she said” situations from being given too much undue credence.

However, hearsay is admissible at preliminary hearings in Pennsylvania. The preliminary hearing is an initial stage of the criminal adversarial process whereby the prosecution must prove that it has the specific evidence necessary, if later proved true beyond a reasonable doubt at trial before a jury, for the defendant to be convicted of the crime charged.   Preliminary hearings are held in front of a magisterial district judge, an elected position that does not require a law degree.

The admissibility or inadmissibility of hearsay in a criminal case is an especially important decision for the reliability of certain statements to be considered. As anyone who has ever sat for jury duty will note, one of the first questions a defense attorney or a prosecutor may ask is whether or not the potential juror will be especially swayed (for better or worse) by the testimony of a police officer. Preliminary hearings are generally considered to be prosecution-friendly, where the Commonwealth has a low burden. Nevertheless, the hearing serves an important role in holding the prosecution accountable.

This reality is what makes the intermediate appellate court’s decision in Ricker all the more alarming, and, perhaps, suspect. As the decision in Ricker stands, a prosecutor can in essence “phone it in” by having some different officer read the notes of the investigating officer, or worse yet, an officer provide his version of what the complaining witness said. There are absolutely no safeguards to such a system.

Certainly, we should be “alarmed” at a system where “there are absolutely no safeguards.

This is from the 2010 University of Illinois Law Review article entitled “THE CONFRONTATION CLAUSE AND PRETRIAL HEARINGS: A DUE PROCESS SOLUTION” by Christine Holst (pg 1614). She is talking about a 1987 Supreme Court Decision in “Pennsylvania V. Ritchie,” the last Supreme Court Decision in a case such as this.

“Predictably, in navigating the muddled Supreme Court precedent laid out above, courts came to different conclusions about the applicability of the Confrontation Clause prior to trial. The analysis of these courts roughly falls into two categories: those that applied the Confrontation Clause to a pretrial hearing because it was a “critical stage” of the criminal prosecution process, and those that held the Confrontation Clause is only a trial right and does not apply to pretrial hearings.”

“Pennsylvania vs. Ritchie” seems to be the important Supreme Court Decision here: Hoist notes this about it:

“Some would say that Ritchie settled the issue: the Confrontation Clause applies only to trial. Once again, however, this seems to be reading the Court’s opinion too broadly. The first flaw in this reading of the Court’s opinion is that the key passage about the Confrontation Clause (Part III-A of the opinion) was signed by only four justices, making this section a plurality opinion and not part of the majority opinion.65 Justice Harry Blackmun, who joined the Court on the rest of the opinion, wrote a concurring opinion where he stated that he refused to join Part III-A because he disagreed with the plurality’s conclusion “that the Confrontation Clause protects only a defendant’s trial rights and has no relevance to pretrial discovery.”66 Instead, Justice Blackmun argued that “there might well be a confrontation violation if, as here, a defendant is denied pretrial access to information that would make possible effective cross examination of a crucial prosecution witness.” Because Justice Blackmun disagreed with this portion of the Court’s opinion, the conclusion that the right to confrontation is a trial right and only a trial right is not one endorsed by the Court.”

The last sentence is important here — “Because Justice Blackmun disagreed with this portion of the Court’s opinion, the conclusion that the right to confrontation is a trial right and only a trial right is not one endorsed.”

DA Steele is arguing that the right to confront a witness is a trial right and only a trial right and not applicable at a preliminary trial hearing as this one was. However Supreme Court Justice Blackmun and the majority of the Supreme Court said in 1987 it was a right in a pretrial hearing. He was therefore incorrect when he said that Commonwealth vs. Ricker was “the Law of the Land” The law of the land was expressed in Blackmun’s statement that “there might well be a confrontation violation if, as here, a defendant is denied pretrial access to information that would make possible effective cross examination of a crucial prosecution witness.”

Certainly, DA Steele, introducing a hearsay statement by accuser Andrea Constand, instead of introducing her was a violation of Dr. Cosby’s Sixth Amendment right to confront his accusers. Sadly, Judge McHugh and Judge O’Neil ignored the law of the land and went along with Steele’s false and mistaken interpretation of the law of the land. If Andrea Constand had taken the stand and given testimony and the defense given a chance to cross-examine her, she may have repudiated the hearsay evidence Steele presented.

DA Steele claimed that she would have been attacked under cross-examination. He says: “Defendant wants to cross-examine the victim that he is charged with sexually assaulting in 2004 and attack her credibility.” Steele makes a false and malicious statement regarding Dr. Cosby here. Perhaps, Constand now sees differently than she did nearly 12 years ago. Perhaps, she now remembers events that she had forgotten at the time. Perhaps, she was under the influence of drugs or other people and she now knows the things she said aren’t true any more. If this was the case, and she admitted her mistake, the defense would not have attacked her credibility at all. By not putting her on the stand, Steele denied her an opportunity to correct her old testimony, either to add or subtract things.

In the second article, Cosby’s lawyers noted that hearsay cannot be a substitute for a live witness:

“We’re talking about an allegation of assault that happened over 11 years ago,” said one of Cosby’s defense lawyers, Christopher Tayback, arguing to the court that the statement read during the preliminary hearing was taken so long ago that the officer who recorded it has no recollection of it. It should not stand in for the witness herself, Tayback argued.

“You know what a witness can do?” he asked the court. “A witness can recant.” He reiterated the point, saying that a witness can do and say all kinds of things that a piece of paper can’t.

Part 2 – The Re-traumatization Excuse

According to the second article above, DA Steele also said, “It’s our position that we’re not going to re-traumatize victims,”

It is amazing that he can bring up the idea that Andrea Constand could be re-traumatized talking about this event:

1. Andrea Constand did worry about being re-traumatized when she again met with Cosby at four different times after the alleged incident and never talked with him about it.
2. Ms. Constand did not seem re-traumatized when she gave an expensive sweater to Dr. Cosby as a gift after the incident.
3. She did not seem re-traumatized when she asked him for free tickets to a concert Cosby gave in Toronto and took her parents to see him eight months after the alleged drugging and assault.
4. She did not seem re-traumatized when her mother repeatedly called Cosby over a five month period after the concert in order to establish a friendship with him.
5. In 2005, Ex-professional basketball player 31 year old Andrea Constand was not re-traumatized when she told her parents about the event.
6. Andrea Constand was not re-traumatized when she told a set of lawyers about the event.Ms. Constand was not re-traumatized when she told a second set of lawyers, Troiani and Kivitz, about the event.
7. Ms. Constand was not re-traumatized when she told the Toronto Police about the event.
8. Ms. Constand was not re-traumatized when her parents went to the Toronto Star and did an interview revealing her name just one week after she reported to the Police. Apparently her parents did not worry about her being re-traumatized by this.
9. Ms. Constand was not re-traumatized when she told detectives from the Montgomery Country DA’s office about the event.
10. Ms. Constand was not re-traumatized when she talked with detectives a second time from the Montgomery County’s DA’s office.
11. 8. Ms. Constand was not re-traumatized when she gave or sold an interview to the National Enquirer about the event, just a week after talking to the detectives.
12. Ms. Constand did not worry about being re-traumatized when she filed a lawsuit against Bill Cosby in March 2005.
13. Ms. Constand’s lawyers Troiani and Kivitz did not worry about 12 women they found to testify against Cosby that they would be re-traumatized by telling their stories.
14. Ms. Constand did not worry about being re-traumatized when she sued Cosby’s lawyer Martin Singer for negotiating a newspaper interview for Bill Cosby.
15. Ms. Constand was not re-traumatized when she was deposed at the time of the lawsuit.
16. Ms. Constand was not re-traumatized when Judge Robreno released bits and pieces of her sealed testimony and Cosby’s sealed testimony to the public in the Summer of 2015.
17. Ms. Constand was not re-traumatized when the Washington Post and CNN and the N.Y. Times and hundreds of other sites released out of context bits and pieces of Cosby’s sealed testimony.
18. Ms. Constand was not re-traumatized when DA Steele ran campaign ads reminding people that his opponent DA Castor did not prosecute Cosby in her case.
19. Ms. Constand was not re-traumatized when she communicated with a number of other Cosby accusers on the internet in 2015, if not earlier.
20. Ms. Constand was not re-traumatized when she decided to countersue Cosby in the Summer of 2015 for breaking his legal settlement with her.
21. Ms. Constand did not worry about being re-traumatized when she agreed to help Montgomery County D.A. Steele reopen the case against Cosby that had been closed 11 and a half years before.
22. Andrea Constand was not re-traumatized when she talked again about the case with Montgomery Country detectives in 2015.
23. Ms. Constand was not re-traumatized when she talked a second time with Montgomery County detectives in 2015. That would be a total of four times, at least talking to the police.
24. Ms. Constand did not worry about being re-traumatized when she sued DA Attorney Castor for not believing her in 2005.
25. Ms. Constand was not re-traumatized when DA Steele released bits and pieces of her testimony about the event repeatedly over the last seven months.
26. Ms. Constand was not re-traumatized when DA Steele released written statement by her from 2005 at the Preliminary trial hearing.

Only when taking away Dr. Cosby’s Sixth Amendment Rights does Steele express fears about her re-traumatization

Besides the amazing hypocrisy of this statement, one has to consider that a person has to be traumatized before they can be re-traumatized and no proof has been presented except her own claims that she ever was traumatized by the original incident involving a few minutes of mutual masturbation between a 30 year old college graduate and a 65 year old man who had been friends for over two years at that point.

Psychiatrists are divided about the nature of traumatization and if talking about something re-traumatizes a person. Rather, the whole basis of modern Freudian psychiatry seems to be that talking about traumas helps to cure them. That is why Freud’s technique was known as “the Talking Cure” and was not known as “the Talking Re-traumatization”.

Should we also close down all 1300 so-called Rape clinics in the United States, as they urge women to talk about rape and therefore could cause re-traumatization? Should we shut down all Woman’s Gender Studies courses as they talk often about rape and could cause re-traumatization.

Hopefully, the Supreme Court of Pennsylvania will agree with the Supreme Court of the United States and not take away Sixth Amendment rights to its citizens. The life and liberty of not just Bill Cosby, but every citizen of Pennsylvania, and possibly the United States, is at stake.