The Constitution gives all of us have the right not to incriminate ourselves. It’s called “taking the fifth.” If someone charged with a crime exercises that right and does not testify, the prosecutor isn’t allowed to comment on the defendant’s failure to take the stand.
Once you leave the criminal courts, the rules are different. A state or federal legislative committee can issue a subpoena, and you have to show up. Back in the early days of television, a gangster named Tony Accardo appeared before the Kefauver Committee and “respectfully” declined to answer 170 questions. In 1986, Oliver North was called to testify before Congress about the Iran-Contra affair, and he took the fifth at least 40 times. Just the other day, a man named Martin Shkreli appeared before a House committee and refused to answer questions about inflated drug costs. After leaving the halls of Congress, he went online and called the committee members “imbeciles,” thereby exercising another constitutional right.
In a civil lawsuit, a party can take the fifth, but it isn’t free. The cost is called an “adverse inference.” If Bill Cosby or anyone else in his position is asked, “Did you force this women (pointing to the plaintiff) to have sex,” and the answer is “I refuse to answer on the grounds that my answer might tend to incriminate me,” the jurors may infer that the answer, if given, would not have been helpful to the witness. What will they think to themselves? “Adverse” may be an understatement.
In civil cases the process leading up to trial includes taking “depositions,” which puts a party under oath in the opposing lawyer’s office. Many years ago, I was taking the deposition of a man who had defrauded my client. I asked him a question, and he took the fifth. I then asked another question, and he took the fifth again. His lawyer suggested I go on to something else since “he’s not going to answer any of those questions.” I told the lawyer I appreciated his interest in moving things along but I was in no hurry, so I continued my line of questions and the witness kept exercising his Fifth Amendment rights. At trial, I told the judge I would be reading portions of the deposition to the jury. Yes, you can do that. After reading the man’s words, “I claim my fifth amendment rights” over and over, I asked the judge to tell the jury about the “adverse inference” rule, and he did. This illustrates Bill Cosby’s likely dilemma.
Ten years ago, the district attorney in Pennsylvania declined to prosecute Cosby on criminal charges. Cosby then gave a deposition in a civil assault case brought against him by Andrea Costand. Instead of taking the fifth, he admitted to repeated wrongdoing, and that case was later settled on a confidential basis. Apparently Cosby believed his criminal problems were behind him, but now the judge in Pennsylvania has ruled that the new DA may proceed with the criminal case.
That judge may keep Cosby’s deposition testimony in the Costand civil case out of the upcoming criminal trial, just as a matter of fairness, but such a ruling won’t get Cosby’s out of the Fifth Amendment woods. Several women have sued him for defamation in Massachusetts federal court, and they have the right to take his deposition. The Massachusetts judge could delay the deposition until after the Pennsylvania criminal case is finished, but that seems unlikely. Cosby will then have to decide whether to testify or take the fifth. It isn’t really much of a choice, and the women will then be able to use that “adverse inference” against him. I assume the criminal prosecutor in Pennsylvania would not be allowed to use it, but who knows?
Bill Cosby’s lawyers have their work cut out for them, and they’re not exactly sitting on their hands. Just recently they filed suit in Pennsylvania against Andrea Costand, her lawyers, and the publisher of The National Enquirer. The details remain under seal, but apparently this latest case it deals with the decade-old confidentiality agreement.
We don’t have secret cases in our courts, so all of this will come out, probably sooner rather than later. It looks like Cosby and his lawyers have decided on a scorched earth strategy, but if they proceed along those lines, there won’t be any Fifth Amendment claims. And it may well be Cosby who ends up getting burned.
One thing is clear. Cosby will have to make some hard choices.