What to Watch for in the Bill Cosby Depositions

Bill Cosby has had his deposition taken by attorney Gloria Allred in one of the many civil cases pending against him, and she wants another shot at him. We don't know much about the questions and answers because the deposition was taken subject to a protective order, but the order may be lifted sometime in the coming months. The plaintiffs in the other Cosby suits also have the right to have their attorneys depose him. As these depositions continue, what are we likely to learn about Cosby's side of the story?

My guess -- not much, because with Cosby also potentially facing criminal charges associated with certain allegations, his attorneys will likely advise him not to answer any significant questions.

First, some background. A deposition is a standard part of a civil case in which an attorney can require any witness, including the opposing party, to answer questions under oath long before the actual trial. The questions and answers tend to be much more wide-ranging than in trial testimony. They don't have to be of a type that would be admissible in trial, as long as they're "reasonably calculated to lead to the discovery of admissible evidence."

But there's a catch. A deponent (the person being deposed) has a Fifth Amendment right to refuse to answer any deposition question that might tend to incriminate him in a criminal case. The threshold for claiming the privilege is a low one. As long as the deponent can credibly claim that his answer to a question could form a "link in the chain" of evidence needed to convict him, he can decline to answer.

This issue frequently arises for defendants facing "parallel proceedings," the term for a legal situation involving a civil or administrative component along with a criminal one. Such proceedings are relatively common; for example, a white-collar defendant might face a civil SEC suit along with criminal insider trading charges, or a doctor accused of misconduct could face both criminal charges and a medical board action to revoke her license.

Defendants in these situations have difficult decisions to make. On the one hand, most defense attorneys will advise clients facing criminal charges to avoid making any statements relating even remotely to the charged conduct. Supreme Court Justice Robert Jackson once said that "any lawyer worth his salt will tell [a] suspect in no uncertain terms to make no statement to police under any circumstances." That principle applies with equal force to other types of statements, including answers to deposition questions -- all of which "can and will be used against" the defendant in the criminal case.

On the other hand, "taking the Fifth" in response to deposition questions often seals the defendant's fate in the civil case. As a matter of fairness, courts generally don't let civil defendants invoke the privilege in depositions and then testify in their own defense at trial, so refusing to answer deposition questions typically means the defendant will be foregoing the right to testify. This can obviously be a major impediment to mounting a trial defense -- especially given the low burden of proof in a civil case (usually "more likely than not," as opposed to the "beyond a reasonable doubt" burden in a criminal case) and the fact that in some jurisdictions the plaintiff's lawyer is allowed to comment on the civil defendant's refusal to testify and encourage jurors to draw inferences from that refusal.

That said, lawyers advising clients facing parallel proceedings usually recommend treating the criminal case as paramount and making decisions on that basis, even if that ends up sacrificing the clients' interests in the civil cases. The uniformity of position within the profession on this topic was driven home to me a few years ago at a national conference of criminal defense lawyers. We were discussing parallel proceedings, and the specific question of whether clients facing such proceedings should answer deposition questions in their civil cases. The debate was between those who said they'd advise their clients not to answer questions but would continue to represent those clients who didn't take that advice, and those who said they'd advise their clients not to answer questions and would withdraw from their representations if the clients disagreed. No one spoke up in favor of answering questions. Of course, every case has to be evaluated on its own particular facts, but I was struck by how consistent the general view was when we were discussing the issue in the abstract.

Here, Cosby probably has a basis to invoke his Fifth Amendment privilege in response to most relevant questions. Even if a particular set of accusations might be solely in the civil context -- because, for example, the criminal statute of limitations in the relevant jurisdiction has run out--he could plausibly argue that his answers to questions about those accusations could be used against him in a criminal prosecution based on other accusations. For example, it's common in sex crime cases for prosecutors to introduce evidence of the defendant's other sexual misconduct, so Cosby's lawyers could credibly argue that just about any answer to a relevant deposition question could be a "link in the chain" of evidence used to convict him in some case. They'll be able to make this argument as long as there's some legitimate possibility of a non-time-barred prosecution in some jurisdiction. Given the number of accusers and the complexity of limitations periods in sex offense cases, this is likely to be the case for some time.

For all of these reasons, I'll be surprised if it turns out that Cosby has answered a significant number of Allred's substantive questions, or if he answers similar questions in future depositions. The top-notch legal team he'll have advising him will probably recommend that he make liberal use of his Fifth Amendment privilege, and if he's smart he'll take their advice.