First, an overview of why Cosby's case is unique in many ways:
1. It is a prosecution based primarily on evidence from a "settled" case;
2. It is against a very wealthy, influential and famous celebrity;
3. There is a dearth of physical "hard" evidence, as almost all evidence will be based on testimony past and present;
4. The stakes are very high -- if he is found guilty, Cosby may well spend the rest of his life in jail, but if he is acquitted, then it would be a black eye against the prosecution and the Commonwealth;
5. Cosby has hired a very talented former prosecutor (and also a celebrity attorney from California with primarily civil practice experience) to defend him;
6. It involves issues that have rarely or never been explored before.
In many ways, I believe the Cosby case is legally much more interesting than even the "Trial of the Century" against O.J. Simpson, when Simpson was acquitted despite overwhelming evidence against him.
Today, however, it is the that last aspect of Cosby's case that I will once again be exploring: The unique issue of whether Cosby's decades-old jokes can be used as evidence against him?
First, what does his lawyers want to keep out? Bill Cosby made jokes back in the day about spiking food and drink with Spanish Fly to get girls to have sex with him (fictionally, Cosby argues):
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.
To me, whether to allow the Spanish Fly routine evidence in or out of Cosby's trial is a hard call to make, and likely ultimately a judgment call for the trial judge. Both sides present compelling reasons. For lay persons who think this material is relevant, let me say it this way: everyone has said things that they might not have been proud of in their lives, and if whatever one has said years ago is brought up again in an irrelevant context, then it is only human to cry foul over drawing such a connection (e.g. talking about killing somebody, even as a joke, and then being prosecuted for that person's actual death with your prior discussion being a key piece of evidence).
In the end, and practically speaking, however, I believe the trial judge will most likely permit the prosecution to introduce the Spanish Fly routine, albeit with a cautionary statement of sorts to the jury that they should not regard this as evidence of Bill Cosby being a bad person because he joked about raping women through the use of chemicals, but they should only regard it as potential evidence that Bill Cosby had a plan for raping women through the use of chemicals.
Whether the jury will actually grasp and apply the nuances of Rule 404(b) is anyone's guess.