Vail Daily column: Bill Cosby and the Fifth Amendment | VailDaily.com

Vail Daily column: Bill Cosby and the Fifth Amendment

What were they thinking?

"Who?" you may reasonably be thinking.

Bill Cosby's lawyers, that's who.

Let's set three things straight at the beginning: Bill Cosby has not been charged with any crime and has certainly not been convicted of one; our laws presume a person's innocence; and one may not be convicted of a serious crime except upon evidence of guilt beyond a reasonable doubt; what Bill Cosby is accused of doing — if true — is morally reprehensible and legally wrong. Setting aside the statute of limitations issue, which I'll come back to in a sec, if Bill Cosby did what his accusers say he did, then he should be thrown in a dank cell and forgotten.

Even if he were to be tried, it would be a very, very difficult prosecution.

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But first things first.

ACCUSATIONS AGAINST COSBY

As you likely know, Bill Cosby, the beloved comedian, educator and moralist, has been accused of drugging and sexually abusing what every day seems to be a growing number of women. More than 40 have now come forward to accuse him. A common theme among them is that Cosby said he'd mentor them, or help launch their careers, only to take sexual advantage of them instead. It is a sad, strange and allegorical fall for "Cliff Huxtable."

Recently, a deposition was released wherein Cosby, many years ago, apparently admitted that he gave sedatives to at least one woman he wanted to have sex with. After months and months of strident denials from the Cosby team, the deposition — taken in the discovery phase of a civil lawsuit — gave traction to the mob of his accusers. When it came to light, even his most faithful supporters largely fell off the Cos bandwagon. It was impossible to defend him anymore.

But here's the thing: However wrongful Cosby's actions seem to have been, what were his lawyers thinking?

'FISHING EXPEDITION'

OK, a couple of things to explain.

First, a deposition is a fishing expedition. But it is most definitely not catch and release. A deposition consists of taking sworn testimony out of court in preparation for a trial. The testimony is given under oath and subject to the penalty of perjury. You, in other words, are sworn to tell the truth, the whole truth and nothing but the truth. But, just like in a court of law, you are not obliged to incriminate yourself in a crime.

The reason I say that a deposition is a "fishing expedition" is that, unlike at trial where, in order to be admitted, evidence must clear the hurdle of "relevance" (that is, the evidence offered must have direct bearing on an issue to be proved), at deposition, questions may be asked which may lead to relevant evidence. Rather than being relevant themselves, the questions must only bear a relationship to ultimately relevant information.

RIGHTS OF 5th AMENDMENT

But here's the other thing. Even at trial one preserves the right against self-incrimination. Look no further than the Fifth Amendment of the United States Constitution which holds, in part, that " … (no person) shall be compelled in any criminal case to be a witness against himself … " In other words, neither you, I, nor Bill Cosby may be compelled to bear witness against ourselves when it comes to a criminal matter in which one stands suspected or accused.

Now, you may be saying to yourself, "Hold on now. Doesn't the 5th say criminal matters? And didn't you say the deposition in which Cosby incriminated himself was in a civil matter?"

Indeed.

But you see the 5th is broad. One need not incriminate themselves in any statement, in any context whatsoever, if so doing may lead one to be accused or convicted of a crime. For example, before a cop may question you, he/she will read to you the Miranda warning (given the name in recognition of the landmark 1966 United States Supreme Court case of Miranda vs. Arizona) which includes that "you have the right to remain silent."

So, despite the indigestion it may have caused them, Cosby's lawyers should not have let him answer. Instead, they should have counseled Cosby about his right to decline to answer, to his right to "invoke the 5th." However distasteful it sometimes is, an attorney's role, in substantial part, is to minimize risk to his client. In short, either Cosby or his lawyers failed in not keeping his lips buttoned when asked what he was asked.

STATUTE OF LIMITATIONS

I promised you a quickie on the statute of limitations which has come into consideration in the Cosby matter.

First, a "statute" is a legislatively enacted law rather than "common law" which is the law of precedent developed over time and founded on prior cases. A statute of limitations is a law that says, in order to be actionable, a matter has to be brought within a certain time or else the opportunity to bring it before the court expires. It's sort of like a legal parking meter; once your time runs out, no pleading to the meter maid.

In almost (but not all matters — capital murder is an example), there is a set time to either bring a case or not. And in the Cosby case, the crimes he may have committed are, at least in the main, so old, that the applicable statute of limitations has expired. Even if he did what he is accused of doing, because time has run on the legal parking meter, he cannot and will not be tried for the alleged crime.

Even if he were to be tried, it would be a very, very difficult prosecution. Whatever evidence there may once have been has likely faded. Without forensics (toxicology, a rape kit, etc.), it would be a Herculean challenge for the prosecution to prove its case "beyond a reasonable doubt.

Sad, sad, sad, is all I can say. Both for what appears to be the many victims and for a man who was once held in such high esteem.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, robbins@slblaw.com and robbins@colorado.net.