Legal Experts: Weigh in on the Cosby Criminal Case

So does this mean Cosby’s answers in the civil case can now be used to convict him in the current criminal case or is that an entirely separate matter?

The two issues are related in the sense that if no agreement existed at all, then Cosby’s answers in the deposition are hearsay. But there’s an exception to the hearsay rule in which admissions against one’s own interest are nonetheless admissible, and that’s what these answers are.

If an agreement existed not to prosecute Cosby, then the matter is moot: no trial, so no question of whether the evidence is admissible at trial.

Finally, I speculated above that the judge might find that an agreement existed that exceeded the prosecutor’s powers – he might find that the state could prosecute Cosby, but not use the deposition testimony. That didn’t happen.

I imagine Cosby’s team will preserve this issue for appeal.

I don’t think they even have to show they are statements against interest, since Cosby is a party and since the statements were sworn, both of which make the statements non-hearsay (or, actually, hearsay exceptions in PA).

True – not hearsay under the FRE.

I take no position on whether there was a deal or not. I wasn’t there and the evidence seems to be at least slightly conflicting.

However, if I were representing Cosby and I had not confirmed any such deal in writing I would be expecting to receive a malpractice complaint right about now.

Here’s a question for you, Bricker: can ineffective assistance of counsel claims be raised based on events that occurred outside the scope of the underlying criminal proceeding (such as a civil case based on similar or the same facts, as in this case)?

If memory serves, Cosby’s criminal counsel from that time is now dead.

This is presumably one reason why the Cosby team offered no evidence of its own of any agreement.

Presumably that guy had an inventory attorney, or whatever they’re called in Pennsylvania.

That’s a damn good question.

I don’t think so.

I don’t see how there can be a Strickland violation when the right to counsel never attached.

A minority of courts have found that the right to counsel attaches pre-indictment at some critical stages, including plea bargaining. But the majority of courts to have considered the issue have rejected such analysis.

I understood RNATB’s question to be slightly different.

Cosby couldn’t claim ineffective counsel regarding his criminal case attorney even if he was alive, because to the extent that you don’t believe there was ever a valid immunity deal, then there was nothing to get in writing (& no reason to believe any such offer was available). So any such claim would be rejected for the same reason the immunity claim itself was rejected.

ISTM that the only claim for ineffective counsel was that he was improperly represented in his civil case, in that the lawyer should not have allowed Cosby to freely testify based on a mistaken notion that he had immunity (whether the mistake was in relying on an oral agreement or on a non-existant one). The lawyer who allowed that is still alive and testified yesterday.

But that was a case of ineffective counsel in the civil case coming back to hurt him in the criminal case. Which is what RNATB seemed to be asking. The criminal attorney being dead has nothing to do with that issue.

I guess I was responding to your suggestion that the guy should be expecting to receive a malpractice complaint. He is beyond the reach of the disciplinary committee.

More broadly, too, that’s why Cosby’s team didn’t produce testimony this week from his prior lawyer. I imagine you’re right that someone should have the guy’s written records, though, and the fact that they didn’t have any memos or notes from the prior lawyer’s files just further suggests that there was never any agreement.

He was given immunity in the criminal case so that he couldn’t take the 5th in the civil case. The standards of proof are lower in civil case and the prosecution might have felt that they did not have enough proof to convict on a criminal case but that the plaintiff might have enough proof to prevail in a civil case if Cosby could be compelled to testify.

First, tell me what you have so I know if you have anything worth the immunity?

And this wasn’t an immunity deal it wasn’t “give me evidence against John Gotti and I’ll give you immunity on the murder and extortion” This was “You will not be prosecuted so you cannot take the 5th in the civil case”

LOL, nice.

AFAICT, it was more than mere prosecutorial discretion not to prosecute AT THAT TIME. It was a prosecutorial commitment not to prosecute EVER.

The law generally does not like to play gotcha games with criminal defendants.

I tend to agree with you. I’m not a trial lawyer but this seems like a case where the deposition and anything that comes out of the previous trial cannot be admitted but the crime itself might still be the subject of prosecution.

If there was a meeting of the minds, I don’t know how much it matters what assumption were made as long as there was no deceit or fraud involved.

The impression I get is being an idiot does not equal immunity whether defendant, defense attorney or prosecutor. I have been involved in a couple of civil cases and even I know if you don’t have a piece of paper signed by a judge you don’t have anything.

Why can’t they be admitted? They’re party admissions. Plus, the point of the hearsay rule is to keep out testimony that the adverse party has no opportunity to cross-examine. The prosecution is hardly going to argue that the testimony is inadmissible on those grounds.

And yet there are cases where courts have held up immunity despite the absence of this signed piece of paper.

Do you think it would be fair if we used Cosby’s testimony used in the civil case? Ultimately, I think THAT is what a judge should be concerned with. If Cosby reasonably relied on immunity to testify in a civil case (based on the words and actions of the prosecutor), then, even if he didn’t actually have immunity, the testimony he gave in reliance of that reasonably held belief should not be held against him.