Will We Now Hear Bill Cosby's Side of the Story? Maybe Not.

The California Supreme Court has denied Bill Cosby's petition in the case filed against him by Judy Huth, so it looks like that case is going forward. Huth's lawyer, Gloria Allred, has announced that she intends to take Cosby's deposition within the next month. So have we finally reached the moment where Cosby will break his silence and give his own account of what happened?

Maybe not. Cosby may have the right to refuse to answer most relevant questions, and although it'll be a very difficult decision, that may well be what his attorneys advise him to do.

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."

So if Allred ends up deposing Cosby, we can expect hours upon hours of probing, relentless questioning--not only on the specific alleged conduct regarding Huth, but also on just about anything else she thinks might help her case. But here's the catch--because answering those questions could potentially subject Cosby to criminal exposure, he may have a Fifth Amendment right to refuse to answer.

The Fifth Amendment generally gives a person a right to refuse to answer any question that might tend to incriminate him in a criminal matter. So if Cosby were charged in a criminal case, the prosecutor couldn't call him to the stand (although if he voluntarily testified he could be cross-examined), and outside the courtroom setting the police couldn't force him to make statements that could then be used against him.

There's no corresponding right to refuse to give answers that could harm the defendant in a civil case, and in a civil deposition a witness can often be forced to make admissions that seal his fate (this is one reason why the vast majority of civil cases settle before trial). But here's where another wrinkle comes in: if giving answers in a civil case could harm the defendant's interests in a criminal case, the defendant has a right to refuse to answer in the civil case.

Could Cosby claim this privilege in the California case? Possibly. There doesn't have to be an existing criminal case or even an active investigation in order to claim the privilege; the witness just has to be able to make a plausible claim that a case could someday arise in which the answers from the civil case could end up being harmful. And the privilege isn't limited to obvious guilt-or-innocence questions such as "did you drug her without her knowledge?" As long as the answer could form a "link in the chain" of evidence needed to convict the witness, he can refuse to answer. And the witness doesn't have to implicitly acknowledge guilt in order to claim the privilege; it's entirely permissible to both claim innocence and simultaneously argue that answering questions could create criminal problems.

So if Cosby wanted to claim the privilege and refuse to answer questions in the California case, he'd have to establish that there exists some reasonable probability that he could be prosecuted for something somewhere, and that answering Allred's questions could reasonably end up harming him in such a criminal case. I believe his attorneys will be able to make this case if they want to. Given the huge number of accusations and the complexity of the laws governing limitations periods, it's likely that at least one potential criminal case against Cosby in some jurisdiction is still "live." And because in a sex case a wide range of evidence is typically admissible against the defendant--including, in many jurisdictions, evidence that the defendant has engaged in other sexual misconduct--Cosby will likely have a solid argument that virtually anything Allred could ask him, other than basic biographical details, could plausibly hurt him in an ensuing criminal case.

There are, however, significant disadvantages to claiming the Fifth Amendment privilege in civil litigation. In a criminal case, a defendant's invocation of the privilege can't constitutionally be used against him. So if Cosby were charged in a criminal case and didn't testify, the prosecutor couldn't suggest to the jury in closing argument that he must be guilty because an innocent person would have taken the stand.

That constitutional rule, however, doesn't apply in civil cases, so as a matter of constitutional law it's permissible for a plaintiff's attorney to trumpet to the jury the fact that the defendant has "taken the Fifth." Some states, regardless of the constitutional rule, forbid such arguments under their ordinary evidentiary rules. California is one of these states, which obviously benefits Cosby. Still, invoking his self-incrimination privilege would still significantly hamper his legal defense. He couldn't, for example, invoke the privilege in response to Allred's deposition questions and then take the stand at trial when it would benefit him.

And of course, regardless of the legal consequences the public will likely assume guilt from silence. That this tends to happen as a general matter is unfortunate. Virtually every competent criminal lawyer tells her client to keep his mouth shut when there's potential criminal exposure--regardless of whether the client is innocent, guilty, or something in between--so it's generally unfair to draw any inferences from such silence. (Of course, in Cosby's case most observers have already made up their minds one way or the other, so whether he answers deposition questions may not have much of an effect on public opinion.) Anyway, we'll soon see which way this is going to go.