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Case 1:20-cr-00330-PAE Document 310-1 Filed 07/02/21 Page 44 of 80 use of the same with the [prior bad acts] witnesses, were essential to resolving the otherwise he-said-she-said nature of [Constand’s] allegations.” /d. The Superior Court added that the trial court did not err in determining that the probative value of this evidence outweighed its potential for unfair prejudice, inasmuch as, “in a vacuum, Cosby’s use and distribution of a then-legal ‘party drug’ nearly half a century ago did not appear highly prejudicial,” and “only becomes significantly prejudicial, and fairly so, when, in the context of other evidence, it establishes Cosby’s knowledge of and familiarity with central nervous system depressants for purposes of demonstrating that he was at least reckless” in giving Constand such a drug before having sexual contact with her. /d. at 420-21 (emphasis in original) (cleaned up). The court added that any potential for unfair prejudice was mitigated substantially by the court’s cautionary instructions, and that, accordingly, there was no error in the admission of this evidence. /d. at 421. Turning to Cosby’s claims relating to the enforceability of the non-prosecution or immunity decision rendered by then-District Attorney Castor, the Superior Court viewed this as a challenge to the denial of a motion to quash a criminal complaint, which would be evaluated under an abuse-of-discretion standard. /d. at 410. Like the trial court, the panel found no “authority suggesting that a district attorney ‘may unilaterally confer transactional immunity through a declaration as the sovereign.” /d. at 411 (quoting T.C.O. at 62). Therefore, the court opined, “it is clear on the face of the record that the trial court did not abuse its discretion in determining that there was no enforceable non- prosecution agreement in this case.” /d. The court added: “Even assuming Mr. Castor promised not to prosecute [Cosby], only a court order can convey such immunity. Such promises exist only as exercises of prosecutorial discretion, and may be revoked at any time.” /d. The court discussed the immunity statute and observed that it provides that “a district attorney may request an immunity order from any judge of a designated [J-100-2020] - 43 DOJ-OGR-00004856