By Michael L. Crowley
On June 30, 2021, the Pennsylvania Supreme Court reversed the sexual assault convictions of comedian-actor Bill Cosby, and he was released from prison. He was serving a 10-year sentence. News accounts often referred to the reversal as one involving a “legal technicality”. But, in fact, the decision was based on one of the United States most cherished right, that is, the right to remain silent in the face of criminal prosecution. The case provides some important ethical considerations for both criminal and civil practitioners.
For civil practitioners, one of the lessons is that any time there is any possibility of criminal liability of your client, consult a competent criminal defense practitioner for guidance. For criminal practitioners, memorializing and perfecting an agreement of non-prosecution is critical in properly and ethically serving your client. It should be noted, that rarely do prosecutors ever give an unequivocal agreement of non-prosecution. The high-profile nature of this case had an effect.
The basis of the court’s 6-1 majority holding (there was a closer margin as to whether the remedy was a bar to any further prosecution) was that former Montgomery County District Attorney Bruce L. Castor Jr. (who subsequently gained notoriety as one of the attorneys who defended former President Donald Trump during his second impeachment trial) had decided not to bring criminal charges regarding rape and drug allegations. He made that decision, in part, to allow a civil case for the alleged victim. Both Castor and Cosby’s criminal counsel agreed Cosby now lacked the right to assert his Fifth Amendment rights in a civil case. He testified in four depositions and gave incriminating testimony that was used against him in his trial brought by a new prosecutor several years later.
For the civil practitioner, asserting Fifth Amendment rights can be tricky. Some courts in some situations will invoke some form of sanction for refusing to provide discovery that may be incriminatory. An older case from our own Fourth Appellate District, Division One, can be of some help in this regard. It is Pacers v. Superior Court (1984) 162 Cal. App. 3d 686. In that case, defendants asserted their Fifth Amendment rights during depositions. The trial court barred their testimony at a civil trial for their failure to answer questions without being granted immunity from their answers being used against them. The court of appeal reversed the sanction stating: “A party asserting the Fifth Amendment privilege should suffer no penalty for his
silence.” Id. at 689. The court suggested a remedy would be “an order staying discovery until expiration of the criminal statute of limitations would allow real parties to prepare their lawsuit while alleviating petitioners’ difficult choice between defending either the civil or criminal case.” Id. at 690.
The ethical lessons, therefore, are for the civil practitioner is to make sure you assess any possibility your client may have of criminal liability in a civil matter. That does not just mean that there have been inquiries from a prosecuting agency, but rather a holistic appraisal of potential criminal prosecution. I have been involved in cases in which there was little hint of criminal prosecution until there was a civil judgment that caught the eye of prosecutors. The criminal liability assessment should be as broad as is reasonable and may require a court to decide whether the Pacer case is applicable.