Norristown, Pennsylvania - The judge in Bill Cosby's sexual assault retrial said Friday he won't rule on whether the comedian's previous testimony about giving quaaludes to women before sex can be presented to the jury until the testimony is brought up at trial.
But Judge Steven O'Neill hinted during a pretrial hearing in suburban Philadelphia that he could keep the testimony out of the retrial scheduled to begin April 9.
"This defendant is not on trial for what he said in his deposition," O'Neill said.
Jury selection is scheduled to begin Monday as the 80-year-old Cosby faces charges he drugged and molested former Temple University athletics administrator Andrea Constand at his suburban Philadelphia home in 2004.
The quaalude testimony was included in the first trial that ended with a hung jury and prosecutors contend it is more evidence of his prior bad acts.
Cosby admitted in the testimony he gave quaaludes to a 19-year-old before having sex in the 1970s, but his lawyers say it's irrelevant to the trial because there's no evidence he gave his accuser the drug.
"The '70s isn't relevant in this case," said defense lawyer Becky James, calling quaaludes use then widespread. "It was not to assault them. It was not to make them incapacitated. It was never with the purpose or intent of having sex with unconsenting women."
District Attorney Kevin Steele said the testimony, along with the testimony of up to five additional accusers, bolsters their plan to portray Cosby as a serial predator. Those women weren't allowed to testify at the first trial.
Prosecutors say they want O'Neill to allow the testimony, because otherwise they'd only be able to use it to cross-examine Cosby if he testifies. Cosby did not testify in the first trial.
Constand says Cosby gave her three blue pills. His lawyers say quaaludes never came in that color. The comedian contends he gave her the over-the-counter antihistamine Benadryl.
Assistant District Attorney Stewart Ryan argued Cosby's deposition testimony is important because it shows he had an awareness of the effects that central nervous system depressants, such as quaaludes, have on women, and it shows his admitted intent for using such drugs.
"The man sitting right over there said these things and they were typed down," Ryan said.
While O'Neill dealt Cosby's lawyers a blow by allowing the testimony from additional accusers, Cosby's lawyers are counting on him to make rulings critical to their plan to portray the accuser as a greedy liar who framed the comedian.
O'Neill said he will rule Friday on whether the defense can call a witness who claims Constand spoke about falsely accusing a celebrity before going to police.
The judge also has to decide how much jurors will hear about Cosby's financial settlement with Constand. His lawyers say the amount will show "just how greedy" she was.
Prosecutors said the theory that Constand wanted to set Cosby up is undermined by his testimony in a 2005 deposition that she only visited his home when invited and that he gave her pills without her asking.
Cosby's lawyers also argued in court papers Friday that the retrial should be postponed if prosecutors are allowed to bring in more witnesses in a bid to bolster the accounts of the five additional accusers.
They argued that the 14 proposed supporting witnesses, including celebrity doctor Drew Pinsky and book publisher Judith Regan, are irrelevant and would only further confuse and distract the jury.
O'Neill said he'll decide on the supporting witnesses one-by-one during the trial. Prosecutors say they'll be used in a limited role to describe the accusers' demeanor after the alleged assaults and buttress criticism of them for failing to go to the authorities in a timely fashion.
Cosby's lawyers argued none of the potential witnesses were present when the alleged assaults occurred, and many weren't told about them by the accusers until years later.
O'Neill, who presided over Cosby's first trial, remained on the case after rejecting the defense's assertions on Thursday that he could be seen as biased because his wife is a social worker and advocate for assault victims.
The Associated Press does not typically identify people who say they are victims of sexual assault unless they grant permission, which Constand has done.