It is unlikely Constand will testify Tuesday. A detective can read her statement to authorities instead.
Todd Korol / The Toronto Star / ZUMA
Both sides were keeping mum about what’s expected to happen at the hearing. Prosecutors only have to make a so-called prima facie case to send the case to trial. Cosby, who denies Constand’s allegations as well as similar allegations from more than 50 women, could also decide to waive Tuesday’s hearing.
“It’s fairly easy to meet the burden of proof requirements to send the case to trial,” former Montgomery County sex crimes prosecutor Rich DeSipio, who is now a Philadelphia criminal defense attorney, tells PEOPLE.
“They just have to have some evidence that Bill Cosby likely committed a crime that meets the elements of the Pennsylvania statute,” he says. “It’s a very low, low standard.”
In previous statements to authorities and in depositions he gave for Constand’s civil suit against him, which he settled in late 2006, Cosby, 78, insisted the sexual contact between the two was consensual.
Constand, who revealed she was gay in court filings last summer, says it was not and that she as in a relationship with a woman at the time.
Attempts by Cosby to Dismiss Case
In February 2005, then-Montgomery County District Attorney Bruce L. Castor Jr. declined to file criminal charges against Cosby in Constand’s case, citing “insufficient credible and admissible evidence.”
After Steele charged Cosby in December, Cosby’s attorneys filed a motion saying the case should be dismissed because Castor had an agreement with Cosby that he would never be prosecuted in her case if he cooperated with the civil suit Constand was expected to file against Cosby.
On Feb. 3, after a two-day hearing that included seven hours of testimony by Castor, Montgomery County Judge Steven O’Neill refused to dismiss the case. Cosby’s attorneys have been unsuccessfully trying to overturn O’Neill’s decision ever since. The Pennsylvania Supreme Court rejected his most recent attempt Monday afternoon.
Cosby Deposition Compels Prosecution to Reopen Case
The case re-emerged in the public eye last summer after Cosby’s deposition in Constand’s case became public. In that deposition, Cosby admitted to giving women Quaaludes to women he wanted to have sex with. Those revelations prompted the Montgomery County district attorney’s office, by then led by a new prosecutor, to reopen Constand’s case.
Here’s what Cosby said in his 2005 and 2006 depositions, according to the Associated Press, which edited some of the exchanges between Cosby and Dolores Troiani, one of Constand’s attorneys:
Q. When did you first develop a romantic interest in Andrea?
A. Probably the first time I saw her (at Temple’s arena).
“On the night in question:
Q: Can you tell me … what you recall of the night in which you gave the pills to Andrea?
A: Andrea came to the house. I called her. … We talked about Temple University. We talked about her position. And then I went upstairs and I got three pills. I brought them down. They are the equivalent of one and a half. The reason why I gave them and offered them to Andrea, which she took after examining them, was because she was talking about stress.
Cosby describes a several-minute sexual encounter that followed.
Q: So, you’re not telling us that you verbally asked her for permission?
A: I didn’t say it verbally, I said. The action is my hand on her midriff, which is skin. I’m not lifting any clothing up. This is, I don’t remember fully what it is, but it’s there and I can feel. I got her skin and it’s just above the hand and it’s just above where you can go under the pants.
Q: Then what happens?
A: I don’t hear her say anything. And I don’t feel her say anything. And so I continue and I go into the area that is somewhere between permission and rejection. I am not stopped.
Troiani asks Cosby about a phone call a year later between Cosby and Constand’s mother, Gianna Constand, who told him something was wrong with her daughter, who was also on the line.
Q: What was the thing that you did not want to talk about?
A: I didn’t want to talk about, “What did you give her?”
A: Because we’re over the telephone and I’m not sending anything (the pill bottle) over the mail and I’m not giving away anything.
Q: Why didn’t you simply tell her … that you had given her daughter an over-the-counter drug called Benadryl?
A: I’m not going to argue with somebody’s mother who is accusing me of something. And then when I apologize she says to me, “That’s all I wanted to know, Bill.” … And I’m apologizing because I’m thinking this is a dirty old man with a young girl. I apologized. I said to the mother it was digital penetration.
Q: When she sat here and cried (Constand, during her deposition), how did you feel?
A: I think Andrea is a liar and I know she’s a liar because I was there.
Cosby testified that he had gotten quaaludes from his doctor in Los Angeles in the 1970s. He said he was given seven prescriptions for the now-banned sedative, ostensibly for a sore back.
Q: Why didn’t you ever take the quaaludes?
A: Because I used them.
Q: For what?
A: The same as a person would say, “Have a drink.”
Q: You gave them to other people?
Q: Did you believe at that time that it was illegal for you to dispense those drugs?
Q: How did (the doctor) know that you didn’t plan to use (them)?
A: What was happening at that time was that, that was, quaaludes happen to be the drug that kids, young people were using to party with and there were times when I wanted to have them just in case.
Q: 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?
Cosby acknowledges having a sexual relationship with accuser Therese (Picking) Serignese starting around 1976, when she was 19. Serignese, who has gone public with her accusations, has said the first time she met Cosby at a Las Vegas hotel in 1976, he gave her quaaludes and a glass of water before they had sex.
Q: Did you give her quaaludes?
Q: What effect did the quaaludes have on her?
A: She became in those days what was called high.
Q: She said that she believes she was not in the position to consent to intercourse after you gave her the drug. Do you believe that is correct?
A: I don’t know. … How many years ago are we talking about? 197(6)? … I meet Ms. Picking in Las Vegas. She meets me backstage. I give her quaaludes. We then have sex.
Q: Why didn’t you ever take them yourself?
A: I get sleepy.
Q: How would you know that if you never took them?
A: Quaaludes happen to be a depressant. I have had surgery and while being given pills that block the nervous system, in particular the areas of muscle, the back, I found that I get sleepy and I want to stay awake.