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I read that a key piece of evidence against Bill Cosby in his recent criminal trial was testimony he gave in a deposition in response to a civil suit filed against him by one of his accusers. In the deposition, he stated that he had given quaaludes to women.

So, if he was compelled to give this testimony in the civil trial, then it would appear to be an end run around the constitutional protections against self incrimination. Either that or was he just foolish to voluntarily give the deposition. Which was it?

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  • Another possibility: perhaps he was shrewd to have given the deposition (for unrelated reasons), but foolish to have answered the question that led to his statement about Quaaludes. – phoog Apr 26 '18 at 18:46
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    To answer the titular question, from Lefkowitz v. Cunningham, 431 U.S. 801 "since the test is whether the testimony might later subject the witness to criminal prosecution, the privilege is available to a witness in a civil proceeding, as well as to a defendant in a criminal prosecution. Malloy v. Hogan, 378 U. S. 1". – user6726 Apr 26 '18 at 19:29
  • It could be interesting for you to keep an eye on the Cohen Stormy thing going on right now. One of Cohens tactics is that testimony in the Stormy suite could violate his 5th in any possible litigation with other possible criminal investigations. – Jon May 16 '18 at 12:19
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The Fifth Amendment right against self-incrimination applies only in criminal trials, but it permits a witness to refuse to answer a question in either criminal or civil cases, including in a deposition.

If he had committed crimes or thought that his answers might have incriminated him, he should have declined to answer. I'm not terribly familiar with this case, but it occurs to me that a lot of the allegations against Cosby go pretty far back; it could be that he was talking about something so far back that he wasn't exposed to any criminal liability. In a case like that, it may even be that a judge had already ordered him to answer the question.

Assuming that he voluntarily answered the question, he has waived his right against self-incrimination and the testimony is generally admissible.

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  • Note that if he had claimed the 5th in a deposition in a civil case that this would have led to an adverse inference against him in the civil case that would probably have resulted in him being found liable for the civil claims. So, he was not necessarily simply foolish. He weighed two separate risks and decided to care more about the immediate threat of civil liability than the future threat of criminal charges. – ohwilleke Apr 26 '18 at 20:19
  • @ohwilleke I believe that depends on jurisdiction, though it's true in most of them. I think in Maryland you cannot make adverse inferences from an invocation of the 5th in a civil trial, but I'm not certain. – zibadawa timmy Apr 27 '18 at 9:01
  • @zibadawatimmy It is certainly not required under the federal constitution and is certainly the majority rule. I've never seen a comprehensive survey of every U.S. state's ruling on the subject. – ohwilleke Apr 27 '18 at 14:44
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Trials are public in the United States and as such, all information is available for public review by anyone who seeks it. 4th Amendment Protections do not protect evidence in "plain view" or where the individual can reasonably not expect privacy under ordinary circumstances.

Furthermore, since copies of depositions are given to both sides in a civil suit, without a gag order, there is nothing preventing the plaintiff from discussing evidence with anyone they see fit, including police. This is again, not a violation of fourth amendment, as the Police did not "search" anything of Cosby's but were given evidence by a witness to a potential crime.

While not familiar with the timeline of events, the civil case preceded the criminal case, so the possibility of it being used as evidence against him in the criminal case was not yet there. They have the legal force of sworn testimony so 5th amendment rights attach, but so do perjury charges if a statement is made. Under Civil Proceedings, a lower burden of proof is needed to secure a victory for the plaintiff, so Cosby pleading to the 5th about his use of Quaaludes would make him look just as guilty (if not more so... what does he have to hide that could be criminal?) than if he just testifies that he did use them. Lying about them while under oath is a crime if evidence is found prove that he was lying.

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