The next battle in the criminal case against Bill Cosby will be whether prosecutors can use his lurid deposition testimony about giving pills and alcohol to a string of women before sex — material that may be disallowed at his trial since the judge ruled most of the women themselves can't testify.
Judge Steven O'Neill must resolve the seeming conflict between two key pretrial rulings he made in recent months: One lets the deposition in, while the other excludes most of the accusers Cosby discusses.
The two sides will slug it out in briefs being filed in the coming weeks. The case is set for trial June 5 in suburban Philadelphia.
Cosby, 79, is accused of drugging and molesting former Temple University employee Andrea Constand at his home in 2004. The TV star whose reputation as America's Dad has been destroyed by a barrage of sexual assault allegations could get 10 years in prison if convicted. He has said the sexual contact was consensual.
The comedian gave the damaging testimony more than a decade ago as part of a lawsuit filed against him by Constand, who later settled for an undisclosed sum.
Some veteran trial lawyers doubt prosecutors can get in any of his testimony about other women, since that would amount to a backdoor way to bring in evidence the judge has blocked.
"It should all be excluded," said Alan Tauber, a defense attorney who faced a similar issue in a Philadelphia priest-abuse trial. Otherwise, Tauber said, the ruling barring several other women from taking the stand would be rendered "entirely an academic gesture, with no meaning."
If the material is excluded, the jury won't hear Cosby admit giving quaaludes to a 19-year-old he met in a hotel gift shop before having sex with her; describe giving three drinks to a teen actress at his New York townhouse during a supposed acting lesson before moving to the couch where, she says, he sought oral sex; or deny knowing a Las Vegas masseuse or a Sausalito, California, waitress who say they were drugged and attacked.
"I doubt if any of that comes in," said David Rudovsky, a criminal lawyer and University of Pennsylvania law professor.
Prosecutors had hoped to call 13 other accusers to try to show Cosby had a pattern of drugging and molesting women that spanned 50 years.
In a victory for Cosby that could prove even bigger at trial, O'Neill ruled last month that the jury can hear about only the most recent of those allegations, involving a woman who worked for Cosby's agent at the William Morris Agency. She said Cosby drugged and sexually assaulted her during a lunch meeting in 1996.
Cosby was not asked about her in the deposition because she had not yet come forward.
However, the judge could still allow Cosby's more general testimony about the use of quaaludes. In the deposition, Cosby said he obtained about seven prescriptions of the powerful sedative from his doctor in the 1970s.
"When you got the quaaludes, was it in your mind that you were going to use these quaaludes for young women that you wanted to have sex with?" Constand lawyer Dolores Troiani asked him.
"Yes," Cosby replied.
Joseph Cammarata, the attorney for the accuser who met Cosby in the Las Vegas gift shop, said the quaalude testimony should be allowed because it's not specific to his client or anyone else.
"He talks about his approach to sexual contact with women. His approach is, 'I've got quaaludes that are not for my own use. ... I'm going to use them to have sex with young women.' That's pretty powerful, important admissions," Cammarata said.
When Cosby was asked during the deposition if he had any quaaludes or similar drugs on hand when he met Constand, his lawyer intervened before the actor could answer.