The Supreme Court of Pennsylvania recently overturned Bill Cosby’s 2018 conviction for crimes of sexual assault. Most have focused on the justness of this outcome. But the court’s 79-page opinion also has implications for how witnesses in civil cases navigate the potential risk of self-incrimination—including witnesses testifying on behalf of a corporation as a corporate designee under Federal Rule of Civil Procedure 30(b)(6).

As we discussed in our blog on invoking the Fifth Amendment in a civil deposition, the privilege can only be claimed if the deponent’s answer to the question may render them vulnerable to prosecution for a crime. The question must require the witness to confront a “substantial and ‘real,’ and not merely trifling or imaginary, hazar[d] of incrimination.”[1] Whether the risk of incrimination is substantial and real is the very issue that has resulted in why Cosby is free today.

Cosby’s legal issues started with a criminal investigation in 2005 by then Montgomery County District Attorney Bruce Castor after an alleged victim reported she was sexually assaulted by Cosby in 2004. For a variety of reasons, District Attorney Castor determined that he did not have enough evidence at the time to prosecute Cosby. Prosecutors weigh similar decisions every day, and typically, a prosecutor’s decision to not proceed with charges is not binding and is subject to reconsideration at a later date. But District Attorney Castor wanted to help the victim seek some justice in a civil case, so he made a promise he could not keep—he publicly promised not to prosecute Cosby for that particular crime. Cosby’s attorneys then determined that, because he had no reasonable fear of prosecution, he could not invoke his Fifth Amendment right against self-incrimination at a deposition in his civil case. Cosby made multiple admissions of guilt in the deposition—in reliance on the promise that he would not be criminally prosecuted.

Whether this promise was enforceable and valid was a hotly litigated issue in the case—but the Supreme Court of Pennsylvania held that whether the promise was properly executed and / or enforceable was irrelevant since Cosby detrimentally relied on it. There was no way to un-ring the bell of his testimony and restore him to a position where he would not have incriminated himself had he utilized his Fifth Amendment protections. So, when District Attorney Castor’s successor later decided to charge Cosby and used his admissions in the civil deposition against him in the criminal trial, the court held that Cosby’s rights to due process and protection from self-incrimination were violated. “When an unconditional charging decision is made publicly and with the intent to induce action and reliance by the defendant, and when the defendant does so to his detriment (and in some instances upon the advice of counsel), denying the defendant the benefit of that decision is an affront to fundamental fairness.”[2]

The civil and criminal justice systems interweave and collide in many circumstances, and some conduct, even negligent omissions, can raise both criminal and civil consequences. The complex circumstances of Cosby’s conviction and subsequent release serve as an ominous reminder that your attorney needs to understand all aspects of potential incrimination and liability.

Members of PilieroMazza’s Litigation & Dispute Resolution Group and False Claims Act and Audits & Investigations Teams are well versed in adapting their civil litigation strategy to address any potential criminal exposure.

If you have questions about Fifth Amendment rights or managing any risk of self-incrimination, please contact Megan Benevento, the author of this blog, or a member of PilieroMazza’s Litigation & Dispute Resolution Group or False Claims Act and Audits & Investigations Teams.

[1] Marchetti v. United States, 390 U.S. 39, 453 (1968).

[2] Pennsylvania v. Cosby, Supreme Court of Pennsylvania Case No. 39 MAP 2020 (June 30, 2021).