The New York Times recently obtained a copy of Bill Cosby’s 10 year-old deposition taken as part of a civil action against him by one of his alleged victims. I have not read the complete deposition, and confess to having read only The New York Times’ article. Nevertheless, the article caused me to recall the rules surrounding pleading the Fifth in a civil case and ask: Why didn’t Cosby take the Fifth?
The rules in Connecticut are pretty clear concerning pleading the Fifth Amendment in a civil action, or even asserting other privileges such as attorney-client. You are clearly allowed to do so, and the refusal to answer has come up in our commercial litigation matters.
A Connecticut case strikingly similar to Cosby’s illustrates the scenario well. A defendant in a civil lawsuit, who was accused of sexual abuse, refused to answer questions regarding his version of the events during his deposition. That’s fine, but the defendant was not allowed to testify at trial as to those same matters. A witness cannot use the Fifth as a sword, keep silent during a deposition and then expect to testify at trial to those same topics. Also, one cannot willy-nilly plead the Fifth. The witness must be facing the possibility of prosecution for a crime. And if you plead the Fifth, and refuse to answer questions at your depositions, our rules of practice (Practice Book Section 13-14) allow the other side to obtain a court order that, among other things, you be precluded from offering evidence concerning those matters at trial, or even that the substance of those matters are considered established for purposes of that civil action.
Cosby may have not pleaded the Fifth because there was no possibility of prosecution – maybe the district attorney had already chosen not to press charges. That’s risky. Seems there is always the possibility of prosecution until the criminal statute of limitations expires. Or maybe Cosby was confident he had not done anything wrong or criminal.
Take away: Plead the Fifth at your own peril, and analyze all angles and consequences of the failure to answer questions based upon the right not to incriminate yourself.
