Judge: Recorded Cosby phone call is admissible at trial
NORRISTOWN >> Entertainer Bill Cosby has lost his pretrial bid to prevent a jury from hearing a recorded phone conversation during which he allegedly made incriminating remarks to the mother of the woman who accused him of sex assault.
In a six-page order issued Friday, Montgomery County Judge Steven T. O’Neill ruled in favor of prosecutors, determining a January 2005 phone conversation Cosby had with the mother of alleged victim Andrea Constand can be used as evidence against Cosby at his trial next June.
During the alleged Jan. 17, 2005, call, “Cosby not only offered to pay for the victim’s therapy, but also her graduate school tuition and expenses for travel to Florida,” detectives alleged in court documents. Prosecutors contend the recorded conversation is important evidence “indicative of Cosby’s consciousness of guilt.”
Defense lawyer Brian J. McMonagle could not be reached Friday for comment about O’Neill’s ruling.
“The judge’s ruling applying the relevant law will allow us to put important evidence before a jury. We remain ready to present our case in court,” District Attorney Kevin R. Steele reacted to the judge’s decision.
Cosby, 79, faces a June 5, 2017, trial on charges he allegedly had inappropriate sexual contact with Andrea Constand, a former Temple University athletic department employee, at his Cheltenham home between mid-January and mid-February 2004.
During the legal battle over the phone call, McMonagle argued Constand’s mother, who was in Canada at the time, recorded the telephone call “without (Cosby’s) consent” in violation of both Pennsylvania and California wiretap laws, which require two-party consent for a recording, and that the recording should be suppressed as trial evidence. Cosby allegedly was in California at the time of the call.
McMonagle argued Cosby and Andrea Constand were res-
idents of Pennsylvania at the time of the alleged assault and that the acts that form the basis for the criminal charges allegedly took place in Pennsylvania and therefore questions involving the admissibility of evidence must be analyzed under Pennsylvania law.
But Steele said if a judge found that the recording does fall within the purview of wiretap laws, then Canadian law, which requires only one-party consent for a recording, should be applied.
O’Neill, after reviewing case law, found that Canadian law is applicable in the case.
“Therefore, because Canada has a greater interest in the ability of their citizens
to legally record phone calls with one-party consent, this court finds that Canadian law is applicable to this issue and the phone call was legally recorded,” O’Neill wrote in the court order, denying Cosby’s motion to suppress the call.
Steele also maintained the recording made by Constand’s mother did not violate Pennsylvania’s Wiretap and Surveillance Act, which prohibits interception of oral communications believed to be private. Pennsylvania’s wiretap laws do not apply to the recording at issue because Cosby had no reasonable expectation of non-interception or privacy, Steele maintained.
During the alleged Jan. 17, 2005, phone conversation, Cosby “apparently suspected” Constand’s mother was recording the call and questioned her about “a persistent beeping” he heard
on the phone, according to Steele. Cosby believed he was being recorded and he still talked to Constand’s mother and made admissions that should be heard by a jury, argued Steele, who is being assisted by coprosecutors Kristen Feden and M. Stewart Ryan.
Judge O’Neill found the recording at issue does constitute a “wire communication,” under the law.
“Therefore … the defendant’s expectation of privacy in the non-interception of the call is irrelevant and the admissibility of the recording hinges on a conflicts of law analysis,” O’Neill wrote in the order, referring to the conflict of law existing between the laws of Canada and Pennsylvania.
William Henry Cosby Jr. as his name appears on charging documents, faces charges of aggravated indecent assault in connection with allegedly drugging and sexually assaulting Constand. The criminal charges were lodged against Cosby on Dec. 30, before the 12year statute of limitations to file charges expired. Cosby has contended the sexual contact was consensual.
In charging documents, prosecutors alleged Constand returned to her native Canada in March 2004 and later in January 2005 confided in her mother that “Cosby had sexually assaulted her.”
“Shocked and devastated upon hearing details of the
sexual assault of her daughter, Mrs. Constand called Cosby on the telephone to confront him … and instead left a voicemail message,” prosecutors alleged in the criminal complaint.
Prosecutors contend Cosby returned the call on Jan. 16, 2005, and that during a 2 ½ hour conversation Mrs. Constand questioned Cosby about what he had allegedly done to her daughter and what medication he had given to her. During the conversation, Cosby allegedly admitted fondling Constand and “apologized and offered to cover any expenses associated with therapy,” according to the criminal complaint.
But prosecutors contend Cosby called Mrs. Constand again on Jan. 17 and she recorded that call. During that call, Cosby allegedly offered to pay for the victim’s therapy, her graduate school tuition and expenses for travel to Florida, detectives alleged.
The newspaper does not normally identify victims of sex crimes without their consent but is using Constand’s name because she has identified herself publicly. Cosby, an entertainment icon who remains free on 10 percent of $1 million bail, faces a possible maximum sentence of 15 to 30 years in prison if convicted of the charges.
Bill Cosby departs after a pretrial hearing in his sexual assault case at the Montgomery County Courthouse in Norristown.