Bill Cosby and the Statute of Limitations
Bill Cosby and the charges leveled against him.
United States prosecutors have accused Bill Cosby, former star of the "Cosby Show", of aggravated indecent assault. The charges relate to allegations of certain acts performed on former Temple University employee, Andrea Constand. Should Cosby be found guilty, he could be sentenced to an imprisonment term of between 5 and 10 years and/or the option of a $25,000.00 fine.
But what is a statute of limitation?
A statute of limitation is essentially a law which prohibits the prosecution or the State or the District Attorney (these terms are used interchangeably), from charging someone with an offence which was committed more than a specified/legislated number of years ago. On the expiry of such stipulated years, the accused or the alleged perpetrator, if you will, may no longer be charged with the said crimes. The primary purpose of these provisions is to ensure that evidence is credible and it is also further aimed at preventing a situation where evidence becomes diluted, compromised or reduced. It would be safe to say that such statutes appear to be aimed at extending some sort of mercy to accused persons.
Which crimes are governed by the statutes of limitation?
It is not in respect of all crimes that the provisions of the statute of limitations becomes applicable. Certain crimes fall outside the ambit of these statutes. Examples are sexual offenses, especially those with minors. Crimes which have an element of violence for example kidnapping and arson generally have no statutes of limitation. The complication in the United States is that their public national/municipal or domestic law, is not uniform throughout all states and it thus becomes important to research the relevant law of such applicable state. The United States, unlike South Africa, does not have a statute of limitation for forgery in a number of states. California and Arizona are examples of states where crimes involving the theft of public monies or manipulation/forgery of public records, have no statute of limitation. In Colorado, it is treason which has no statute of limitation.
The position in South Africa
Whilst South Africa does not have a statute of limitation, Section 18 of our penal code (Criminal Procedure Act 51 of 1977), regulates the lapsing of the right of the State to institute a prosecution. Offences which are excluded and which never prescribe are murder, treason committed when the Republic is in a state of war, robbery with aggravating circumstances, kidnapping, child-stealing and rape. The said section also prohibits prescription in instances where the allegations relate to the crimes of genocide, crimes against humanity, and war crimes as contemplated in Section 4 of the Implementation of the Rome Statute of the International Criminal Court Act of 2002. The right to prosecute all other crimes, except for those mentioned above, expires after twenty years.
What then happens to the multiple allegations from over 30 women?
The leading of character evidence is normally prohibited. In the United States ‘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 said person acted in accordance with the character.’ There is thus a real possibility that the other women who have come forward with similar accusations, might never see their cases prosecuted and they might also never have the opportunity to testify about their own experiences in the trial of Constand.
What then is character evidence?
Character evidence refers to that evidence which is tendered for the sole purpose of proving that an accused (or a defendant as they are referred to in the United States) acted in a particular way, on a particular occasion, based on the character of that person. In the United States, Federal Rule of Evidence 404 sets out the permissible and prohibited uses of character evidence in trials. Three factors usually determine the admissibility of character evidence. The first being the purpose for which the character evidence is being tendered, further, the form in which it is offered or tendered and lastly, whether or not the proceedings are civil or criminal in nature. Character evidence may further take the form of opinion evidence (generally inadmissible unless it is expert opinion), reputational evidence and evidence of specific instances of conduct (the latter two being applicable in the case against Bill Cosby).
Character evidence is inadmissible in a criminal trial in instances where it is first offered by the State or Prosecution or District Attorney as circumstantial evidence for the sole purpose of showing that the accused is likely to have committed the crime or crimes with which he is being charged. However, whilst the prosecution is generally prohibited from initiating character evidence (and this is the situation in South Africa as well), immediately the defence or the accused or the defendant introduces evidence of his good character, the door becomes wide open for the prosecution to rebut that evidence by leading evidence of his bad character.
Conclusion
It will be interesting watching this trial to see exactly how justice will unfold in the United States.
Happy New Year to you all. You can visit my website www.brendawardle.com or www.wardlecollege.co.za or follow me on Twitter @BrendaWardle, Instagram Brenda_Wardle and Brenda Wardle on Facebook. I have a campaign on www.publishizer.com for my upcoming book To Kill A Fragile Rose: The State’s Case Against Oscar Leonard Carl Pistorius, feel free to pre-order. You can also view my profiles on LinkedIn and WhosWho South Africa.
United States prosecutors have accused Bill Cosby, former star of the "Cosby Show", of aggravated indecent assault. The charges relate to allegations of certain acts performed on former Temple University employee, Andrea Constand. Should Cosby be found guilty, he could be sentenced to an imprisonment term of between 5 and 10 years and/or the option of a $25,000.00 fine.
But what is a statute of limitation?
A statute of limitation is essentially a law which prohibits the prosecution or the State or the District Attorney (these terms are used interchangeably), from charging someone with an offence which was committed more than a specified/legislated number of years ago. On the expiry of such stipulated years, the accused or the alleged perpetrator, if you will, may no longer be charged with the said crimes. The primary purpose of these provisions is to ensure that evidence is credible and it is also further aimed at preventing a situation where evidence becomes diluted, compromised or reduced. It would be safe to say that such statutes appear to be aimed at extending some sort of mercy to accused persons.
Which crimes are governed by the statutes of limitation?
It is not in respect of all crimes that the provisions of the statute of limitations becomes applicable. Certain crimes fall outside the ambit of these statutes. Examples are sexual offenses, especially those with minors. Crimes which have an element of violence for example kidnapping and arson generally have no statutes of limitation. The complication in the United States is that their public national/municipal or domestic law, is not uniform throughout all states and it thus becomes important to research the relevant law of such applicable state. The United States, unlike South Africa, does not have a statute of limitation for forgery in a number of states. California and Arizona are examples of states where crimes involving the theft of public monies or manipulation/forgery of public records, have no statute of limitation. In Colorado, it is treason which has no statute of limitation.
The position in South Africa
Whilst South Africa does not have a statute of limitation, Section 18 of our penal code (Criminal Procedure Act 51 of 1977), regulates the lapsing of the right of the State to institute a prosecution. Offences which are excluded and which never prescribe are murder, treason committed when the Republic is in a state of war, robbery with aggravating circumstances, kidnapping, child-stealing and rape. The said section also prohibits prescription in instances where the allegations relate to the crimes of genocide, crimes against humanity, and war crimes as contemplated in Section 4 of the Implementation of the Rome Statute of the International Criminal Court Act of 2002. The right to prosecute all other crimes, except for those mentioned above, expires after twenty years.
What then happens to the multiple allegations from over 30 women?
The leading of character evidence is normally prohibited. In the United States ‘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 said person acted in accordance with the character.’ There is thus a real possibility that the other women who have come forward with similar accusations, might never see their cases prosecuted and they might also never have the opportunity to testify about their own experiences in the trial of Constand.
What then is character evidence?
Character evidence refers to that evidence which is tendered for the sole purpose of proving that an accused (or a defendant as they are referred to in the United States) acted in a particular way, on a particular occasion, based on the character of that person. In the United States, Federal Rule of Evidence 404 sets out the permissible and prohibited uses of character evidence in trials. Three factors usually determine the admissibility of character evidence. The first being the purpose for which the character evidence is being tendered, further, the form in which it is offered or tendered and lastly, whether or not the proceedings are civil or criminal in nature. Character evidence may further take the form of opinion evidence (generally inadmissible unless it is expert opinion), reputational evidence and evidence of specific instances of conduct (the latter two being applicable in the case against Bill Cosby).
Character evidence is inadmissible in a criminal trial in instances where it is first offered by the State or Prosecution or District Attorney as circumstantial evidence for the sole purpose of showing that the accused is likely to have committed the crime or crimes with which he is being charged. However, whilst the prosecution is generally prohibited from initiating character evidence (and this is the situation in South Africa as well), immediately the defence or the accused or the defendant introduces evidence of his good character, the door becomes wide open for the prosecution to rebut that evidence by leading evidence of his bad character.
Conclusion
It will be interesting watching this trial to see exactly how justice will unfold in the United States.
Happy New Year to you all. You can visit my website www.brendawardle.com or www.wardlecollege.co.za or follow me on Twitter @BrendaWardle, Instagram Brenda_Wardle and Brenda Wardle on Facebook. I have a campaign on www.publishizer.com for my upcoming book To Kill A Fragile Rose: The State’s Case Against Oscar Leonard Carl Pistorius, feel free to pre-order. You can also view my profiles on LinkedIn and WhosWho South Africa.
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