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Watch 'Legally Speaking': Breaking down Bill Cosby's appeal of his 2018 sexual assault conviction

3News Legal Analyst Stephanie Haney breaks down the issues Cosby's legal team will argue during his appeal of his felony sexual assault conviction
Credit: Mark Makela/Getty Images
Bill Cosby is taken away in handcuffs after being sentenced to 3-10 years in his sexual assault retrial at the Montgomery County Courthouse on September 25, 2018 in Norristown, Pennsylvania.

Legal Analysis: On Tuesday, the Supreme Court of Pennsylvania granted Bill Cosby an appeal of his felony sexual assault conviction, opening the door for review of two issues that were raised during his criminal trial.

Cosby, 82, was convicted in 2018 on three felony counts of sexual assault for the 2004 drugging and molestation of Andrea Constand, now 47, who publicly came forward against Cosby.

In a nearly 300-page brief, Cosby's lawyers argued for multiple issues to be brought up on appeal, and two of those issue were granted review by the highest state court in Pennsylvania, where the actions that gave rise to his conviction took place.

The two issues that the court will consider include whether allowing evidence in of prior statements made by Cosby amounted to violating his constitutional right against self-incrimination coupled with whether a deal that Cosby said he had not to be prosecuted was binding, and also whether allowing other Cosby accusers to testify at trial improperly turned the jury against him.

Issue 1: Did Cosby rely on a deal not to be prosecuted when he made incriminating statements, and should those statements have been discussed at trial?

Cosby's publicist Andrew Wyatt called his client's conviction a "false conviction," but at least part of Cosby's appeal isn’t based on claiming he is innocent. It’s actually counter-intuitive to the idea that Cosby did not commit the acts for which he now sits in prison.

The first issue to be taken up on appeal is based in part on Cosby making statements that he feels incriminated him, that he says should not have been discussed at trial.

Cosby's legal team will argue that the trial judge improperly allowed in testimony about a civil court deposition (which is a sworn statement under oath) that Cosby gave before his criminal trial where he admitted to giving women drugs before sexual encounters. Cosby contends he was promised by an earlier district attorney that he would not be prosecuted, so he felt free to answer questions during that deposition.

Those statements being introduced at trial brings up the question of whether that violates his constitutional right against self-incrimination. However, Cosby could have invoked his right against self incrimination during that deposition, so that may be a tough issue to win for his legal team.

The other aspect of this issue is whether any alleged deal with the previous district attorney was binding, and there never should have been a criminal trial in the first place. That question is more complicated.

Issue 2: Should other Cosby accusers have been allowed to testify at his trial about allegations that were never tried in a court of law?

The second issue to be addressed on appeal is whether the trial judge's decision to allow other accusers to testify about allegations against Cosby was more prejudicial than probative, meaning whether it did more to harm Cosby just by suggestion than it did to help the jury by providing valuable evidence.

We usually see additional accusers testify at sentencing after a conviction, but that was not allowed in Cosby's case, even though they did testify at trial.

Now, Cosby's attorneys will argue here that allowing that testimony took away the presumption of innocence in the jury's mind, and as we all know, here in the United States (at least in theory) we are all assumed innocent until proven guilty.

Cosby's future following the appeal of his sexual assault conviction

If successful in his appeal, Cosby could be granted a new trial where one or both of these pieces of evidence may not be admitted into the record. 

As of now, the disgraced actor has already had two trials, because his first trial ended in a mistrial when the jury couldn't agree on a verdict. During his second trial in 2018, he was convicted, and is now serving a three-to-10-year sentence in state prison. 

Cosby will likely remain in state custody throughout this appeal, but if successful, he could be granted release pending a new trial. Wyatt told USA TODAY on Tuesday that this case is about more than his client. 

"The false conviction of Bill Cosby is so much bigger than him — it’s about the destruction of ALL Black people and people of color in America," he said. "We’re extremely thankful to our attorneys for their tenacious efforts in fighting for the vindication of Mr. Cosby."

Stephanie Haney is licensed to practice law in both Ohio and California.

The information in this article is provided for general informational purposes only. None of the information in this article is offered, nor should it be construed, as legal advice on any matter.

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