The Answer to This Question May Determine Bill Cosby's Fate

NORRISTOWN, PA - FEBRUARY 03:  Bill Cosby arrives for the second day of hearings at the Montgomery County Courthouse February
NORRISTOWN, PA - FEBRUARY 03: Bill Cosby arrives for the second day of hearings at the Montgomery County Courthouse February 3, 2016 in Norristown, Pennsylvania. Cosby has been accused of sexually abusing several women. (Photo by Ed Hille-Pool/Getty Images)

Bill Cosby and his lawyers were in court Tuesday for a hearing on Cosby's motion to dismiss. The motion is based on an alleged 2005 agreement by the prosecutor not to bring criminal charges if Cosby agreed to testify in a deposition in a related civil case. (My previous post here discusses some of the factual and legal issues underlying Cosby's motion.)

Based on the evidence presented at the hearing, I still think there's a real possibility that Cosby could succeed with this motion, at least in part. The result may turn on some key differences between the two sides' portrayals of what happened back in 2005.

It's essentially undisputed that then-prosecutor Bruce Castor made some statement regarding not prosecuting Cosby, and that this statement had a major effect on Cosby's decision to testify in the civil deposition. (As I've discussed before in a related context, Cosby had a right to invoke his Fifth Amendment privilege and refuse to answer questions in that deposition.)

Cosby's lawyers have described this as an actual agreement, with the prosecutor agreeing not to bring charges in exchange for Cosby's agreement to testify instead of invoking his privilege. Castor denies this; he testified Tuesday that he announced his nonprosecution decision, and recognized that Cosby decided to testify based on that decision, but that there was no quid pro quo deal in place.

The judge's choice between those characterizations could be critical. Basic contract law--which, subject to some exceptions, generally governs agreements in criminal cases--draws a major distinction between unilateral promises and exchanges of promises. The default rule (again subject to exceptions; aren't lawyers great?) is that a unilateral promise isn't legally binding, but if two people exchange promises, either one can enforce the deal against the other. So if I tell you I'm going to give you my watch, I can change my mind, and if I do you can't force me to follow through with my promise. But if you and I agree that I'll give you my watch and in turn you'll give me $10, that's an exchange of promises--in contract terms, there's "consideration" on both sides--and either of us can enforce the deal.

Here's how this applies to Cosby's situation. If in 2005 Castor did no more than unilaterally announce that he had decided not to prosecute Cosby, it's highly unlikely that that would be binding, either on him personally or on the prosecutor's office. A nonprosecution decision is typically non-binding, and the same prosecutor or a different prosecutor can reverse course and bring charges anytime within the statute of limitations. (A version of this happened in the George Zimmerman/Trayvon Martin case.)

The fact that this decision was non-binding has a number of consequences. First, it would have been a highly questionable decision for Cosby to testify in the civil deposition based solely on a non-binding nonprosecution announcement. I've encountered this situation in my own practice, and when I hear from a prosecutor that she's decided not to bring charges, I of course pass that good news on to my client--but I always remind him that that's not a binding decision, and that all of the cautionary advice I've given (such as not talking about the case) still applies.

It also means that Cosby still could have invoked his privilege and refused to answer deposition questions back in 2005-06. Castor apparently disagrees with this--he said that once he announced his decision Cosby no longer faced a risk of prosecution and therefore couldn't have invoked the privilege in the civil case. But that's almost certainly wrong. Cosby could have invoked the privilege as long as there was a non-speculative chance that he could face prosecution. That bar was almost certainly cleared here, given what had happened up to that point and the non-binding nature of the nonprosecution decision.

And that could end up affecting the judge's factual determination as to exactly what happened back in 2005--that is, whether there was an actual agreement, or Cosby simply relied on a nonprosecution announcement in deciding to testify in the deposition.

Castor himself noted that "Cosby would've had to have been nuts to say those things [i.e. testify in the deposition] if there was any chance he could've been prosecuted." But that's the key--if there was nothing more than a legally nonbinding announcement, Cosby's lawyers almost certainly would have known, and advised him, that prosecution was still a possibility and that testifying in the deposition carried serious risks. So the fact that he did testify in the deposition may be circumstantial evidence that the parties really did reach the type of agreement Cosby's lawyers have described.

Of course, there's still another wrinkle. As I discussed here, agreements in criminal cases are governed largely, but not entirely, by ordinary contract law. One major difference is that in a criminal case even a mutual exchange of promises often isn't binding until the defendant "detrimentally relies" on the prosecutor's promise, by doing something in reliance on the promise that he wouldn't normally do and that could end up harming him if the promise isn't kept.

Again, that should be an easy showing to make here--if in fact there was an exchange of promises, Cosby "detrimentally relied" on the prosecutor's promise by answering deposition questions when he could have remained silent. But the detrimental reliance concept could affect the remedy the judge imposes if he does find that some agreement was reached. In detrimental reliance situations, judges will sometimes enforce the promise only to the extent necessary to remove the harm from the reliance. Here, that could mean that even if the judge finds there was an agreement not to bring charges, the "enforcement" of that agreement could be limited to preventing the prosecutors from using Cosby's deposition testimony against him.

Cosby's lawyers will argue that that's not enough--that even if the prosecutors can't use the testimony itself, that testimony may have given them investigative "leads" or other "derivative" evidence they wouldn't otherwise have had. If so, excluding the testimony doesn't truly put the parties back in the position they were in before the promises were made. Accordingly, they'll argue, the only truly sufficient remedy is dismissal.

In short, there's some real merit to Cosby's motion, and whether it succeeds may depend largely on precisely what the judge believes actually happened back in 2005.