Bill Cosby To Move To Suppress Critical Deposition and Dismiss Charges In Light of Prior Prosecutorial Assurances

ht_bill_cosby_booking_photo_float_jc_151230_16x9_608I recently wrote about the criminal case against Bill Cosby for his alleged sexual assault of one of a number of women accusing him of rape or other criminal conduct. Now there appears an added wrinkle: the defense is claiming that a key deposition of Cosby occurred with an understanding that it would not be used in a criminal prosecution. However, there does not appear to be a formal immunity agreement.

The defense are citing an email in which former Montgomery County district attorney Bill Castor promised Mr Cosby’s deposition in a 2005 civil case would not be used to bring criminal charges. It was in that deposition that Cosby admitted to giving pills to women before having sex with them. As discussed in the earlier column, that deposition is the basis for the charges over the alleged assault of Andrea Constant in 2004.

Castor later wrote to his successor, Risa Vetri Ferman, and said

“I can see no possibility that Cosby’s deposition could be used in a state criminal case, because I would have to testify as to what happened, and the deposition would be subject to suppression . . . I cannot believe any state court judge would allow that deposition into evidence. … Knowing this, unless you can make out a case without that deposition and without anything the deposition led you to, I think Cosby would have an action against the County and maybe even against you personally.”

The issue will be made all the more difficult by the absence of a formal immunity agreement. Moreover, Andrea Constand’s lawyer said she never knew of such an agreement. That will make for a very interesting suppression hearing on any constructive immunity from the agreement.

40 thoughts on “Bill Cosby To Move To Suppress Critical Deposition and Dismiss Charges In Light of Prior Prosecutorial Assurances”

  1. Should the various women, who accuse Cosby of assault and rape, be allowed to testify, this case will not necessarily be a slam dunk against Cosby. It’s interesting to note that several of the women, who appear, on camera, in tears as they recount appalling and devastating episodes, which, purportedly, occurred decades ago, also admit to having continued contact with Cosby after those alleged assaults transpired. The continued contact with Cosby, after these incidences, will only add to the suspicion that these interludes were, in fact, consensual. It’s one thing to claim that one was too ashamed, too frightened or too embarrassed to pursue a celebrity, like Cosby, after such an encounter. It’s another thing to have documented proof that contact between the parties did not cease after these assaults.

  2. JT wrote: “absence of a formal immunity agreement”.

    Another attorney-at-law once told me, “If you did not get it in writing, it never happened”.

    Regardless, how can Cosby get a fair trial? A period of time has passed so that witnesses and evidence on his behalf – or that of his accusers – might have disappeared.

  3. This doesn’t do much to refute the commonly held notion that black men are sexual predators, does it?
    Between stories like this, your nightly news, and FBI crime statistics, what is one to think?

  4. Stevegroen: That rule is interesting. I will set it out. I do not know what rules are applicable in this particular jurisdiction. But this Rule 413 looks interesting on the overall Cosby topic. I am sure he will be facing various suits and prosecutions. But here is that Rule:

    Rule 413. Similar Crimes in Sexual-Assault Cases

    (a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.

    (b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.

    (c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.

    (d) Definition of “Sexual Assault.” In this rule and Rule 415, “sexual assault” means a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513) involving:

    (1) any conduct prohibited by 18 U.S.C. chapter 109A;

    (2) contact, without consent, between any part of the defendant’s body — or an object — and another person’s genitals or anus;

    (3) contact, without consent, between the defendant’s genitals or anus and any part of another person’s body;

    (4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or

    (5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)–(4).

    (Added Pub. L. 103–322, title XXXII, §320935(a), Sept. 13, 1994, 108 Stat. 2135; Apr. 26, 2011, eff. Dec. 1, 2011.)

    Effective Date

    Section 320935(b)–(e) of Pub. L. 103–322, as amended by Pub. L. 104–208, div. A, title I, §101(a), [title I, §120], Sept. 30, 1996, 110 Stat. 3009, 3009–25, provided that:

    “(b) Implementation.—The amendments made by subsection (a) [enacting this rule and rules 414 and 415 of these rules] shall become effective pursuant to subsection (d).

    “(c) Recommendations by Judicial Conference.—Not later than 150 days after the date of enactment of this Act [Sept. 13, 1994], the Judicial Conference of the United States shall transmit to Congress a report containing recommendations for amending the Federal Rules of Evidence as they affect the admission of evidence of a defendant’s prior sexual assault or child molestation crimes in cases involving sexual assault and child molestation. The Rules Enabling Act [ 28 U.S.C. 2072 ] shall not apply to the recommendations made by the Judicial Conference pursuant to this section.

    “(d) Congressional Action.—

    “(1) If the recommendations described in subsection (c) are the same as the amendment made by subsection (a), then the amendments made by subsection (a) shall become effective 30 days after the transmittal of the recommendations.

    “(2) If the recommendations described in subsection (c) are different than the amendments made by subsection (a), the amendments made by subsection (a) shall become effective 150 days after the transmittal of the recommendations unless otherwise provided by law.

    “(3) If the Judicial Conference fails to comply with subsection (c), the amendments made by subsection (a) shall become effective 150 days after the date the recommendations were due under subsection (c) unless otherwise provided by law.

    “(e) Application.—The amendments made by subsection (a) shall apply to proceedings commenced on or after the effective date of such amendments [July 9, 1995], including all trials commenced on or after the effective date of such amendments.”

    [The Judicial Conference transmitted to Congress on Feb. 9, 1995, a report containing recommendations described in subsec. (c) that were different than the amendments made by subsec. (a). The amendments made by subsec. (a) became effective July 9, 1995.]

    Committee Notes on Rules—2011 Amendment

    The language of Rule 413 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.
    ‹ Rule 412. Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition up Rule 414. Similar Crimes in Child Molestation Cases ›

    1. I’m a little disheartened that sexual assault under FRE 413 includes S&M regardless of consent. 🙂

      Do you know if an criminal order suppressing evidence is subject to immediate appeal?

  5. PCS, Allow me to rephrase that. Hurray!!! The Arizona Cardinals are going to the NFC Championship Game this weekend. I guess I just meant all you folks in the Valley of the Sun. I should have included every Arizonan. I don’t like heat but I love Carson Palmer. After Coach Coward had his goon do knee surgery on CP 10 years ago, he has paid some serious dues and really deserves this shot.

    BTW, have you ever seen this summary of the contemporary, remnant shell of America directed by the shadow government:

  6. Here is a good treatise from wikipedia on Estoppel:

    Estoppel is a collective name given to a group of legal doctrines in common law legal systems whereby a person is prevented from asserting certain matters before the court to prevent injustice – the person is said to be “estopped”.[1] Estoppel may operate by way of preventing someone from asserting a particular fact in court, or exercising a certain right, or from bringing a particular claim. Black’s Law Dictionary defines estoppel as a “bar or impediment raised by the law, which precludes a man from alleging or from denying a certain fact or state of facts, in consequence of his previous allegation or denial or conduct or admission, or in consequence of a final adjudication of the matter in a court of law.”[2]

    There are many different types of estoppel which can arise, but the common thread between them is that a person is restrained from asserting a position where it would be inequitable to do so. By way of illustration:

    If a landlord promises the tenant that he will not exercise his right to terminate a lease, and relying upon that promise the tenant spends money improving the premises, the doctrine of promissory estoppel may prevent the landlord from exercising a right to terminate, even though his promise might not otherwise have been legally binding as a contract.

    If a person brings legal proceedings in one country claiming that a second person negligently injured them and the courts of that country determine that there was no negligence, then under the doctrine of issue estoppel the first person will not normally be able to argue before the courts of another country that the second person was negligent (whether in respect of the same claim or a related claim).

    The word is derived from the 16th century French word estouppail meaning “bung”.[3]

    Estoppel is an equitable doctrine. Accordingly, any person wishing to assert an estoppel must normally come to the court with “clean hands”.

    The doctrine of estoppel (which may prevent a party from asserting a right) is often confused with the doctrine of waiver (which relates to relinquishing a right once it has arisen). It also substantially overlaps with, but is distinct from, the equitable doctrine of laches.


    1 Etymology and usage
    2 Overview
    2.1 Examples
    2.2 Major types
    3 Reliance-based estoppels
    3.1 Estoppel by representation of fact (Law of England and Wales)
    3.2 Equitable estoppel (American law)
    3.3 Promissory estoppel
    3.4 Equitable estoppel (English law)
    3.4.1 Proprietary estoppel
    3.4.2 Promissory estoppel
    4 Other estoppels
    4.1 Pais
    4.2 Convention
    4.3 Acquiescence
    4.4 Contractual
    4.5 Deed
    4.6 Conflict estoppel
    4.7 Issue estoppel
    5 In other countries
    5.1 Australia
    5.2 India
    6 See also
    7 Notes
    8 References
    9 External links

    Etymology and usage

    The verb is estop, which comes from Middle English estoppen, itself borrowed from Old French estop(p)er, estouper, presumably from Vulgar Latin *stuppāre ‘to stop up with tow, caulk’[4] The noun form estoppel is based on the Old French estoupail ‘stopper, bung’, a derivative of estouper.

    Where a court finds that a party has done something warranting a form of estoppel, that party is said to be estopped from making certain related arguments or claiming certain related rights. The defendant is estopped from presenting the related defence, or the plaintiff is estopped from making the related argument against the defendant. Lord Coke stated, “It is called an estoppel or conclusion, because a man’s own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth.”[5]

    Estoppel is essentially a rule of evidence[6] whereby a person is barred from denying a fact that has already been settled.

    The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day-to-day transactions.[7] It is also related to the doctrines of variation and election. It is applied in many areas of contract law, including insurance, banking, and employment. In English law, the concept of legitimate expectation in the realm of administrative law and judicial review is estoppel’s counterpart in public law.

    Promissory estoppel is often applied where there is an agreement without a consideration, or the consideration is future based (as a promise). When applied in defense by a defendant it may be called a “shield”, and where applied by a plaintiff it may be called a “sword”.[8][9] It is most commonly used as a shield,[10] with some commentators stating that it can only be used as a shield, although this varies with jurisdictions.[11]

    Estoppel can be understood by considering examples such as the following:

    A city entered into a contract with another party. The contract stated that it had been reviewed by the city’s counsel and that the contract was proper. Estoppel applied to estop the city from claiming the contract was invalid.[12]
    A creditor unofficially informs a debtor that the creditor forgives the debt between them. Even if such forgiveness is not formally documented, the creditor may be estopped from changing its mind and seeking to collect the debt, because that change would be unfair.
    A landlord informs a tenant that rent has been reduced, for example, because there was construction or a lapse in utility services. If the tenant relies on this statement in choosing to remain in the premises, the landlord could be estopped from collecting the full rent.

    Major types

    The main types of estoppel under English, Australian, and American laws are:

    Reliance-based estoppels: These involve one party relying on something the other party has done or said. The party who performed/spoke is the one who is estopped. This category is discussed below.
    Estoppel by record: This frequently arises as issue/cause of action estoppel or judicial estoppel where the orders or judgments made in previous legal proceedings prevent the parties from relitigating the same issues or causes of action.
    Estoppel by deed: Situations where rules of evidence prevent a litigant from denying the truth of what was said or done.
    Estoppel by silence or acquiescence: Estoppel that prevents a person from asserting something when he had the right and opportunity to do so earlier, and such silence put another person at a disadvantage.
    Laches: Estoppel after a litigant deliberately and avoidably delays an action so as to disadvantage an adversary.

    Reliance-based estoppels

    Reliance-based estoppels (at English law) include:[13]

    by representation of fact, where one person asserts the truth of a set of facts to another;
    promissory estoppel, where one person makes a promise to another, but there is no enforceable contract; and
    proprietary estoppel, where the parties are litigating the title to land.

    Both Halsbury’s and Spencer Bower (see below) describe these three estoppels collectively as estoppels by representation. More simply, one party must say or do something and see the other party rely on what is said or done to change behavior.

    All reliance-based estoppels require the victimised party to show both inducement and detrimental reliance, i.e.:

    there must be evidence to show that the representor actually intended the victim to act on the representation or promise, or
    the victim must satisfy the court that it was reasonable for him or her to act on the relevant representation or promise, and
    what the victim did must either have been reasonable, or
    the victim did what the representor intended, and
    the victim would suffer a loss or detriment if the representor was allowed to deny what was said or done—detriment is measured at the time when the representor proposes to deny the representation or withdraw the promise, not at the time when either was made, and
    in all the circumstances, the behavior of the representor is such that it would be “unconscionable” to allow him or her to resile.

    Simply put, promissory estoppel has four necessary elements which the plaintiff must prove:

    there was a promise
    that was reasonably relied upon
    resulting legal detriment to the promisee
    justice requires enforcement of the promise

    Estoppel by representation of fact and promissory estoppel are mutually exclusive: the former is based on a representation of existing fact (or of mixed fact and law), while the latter is based on a promise not to enforce some pre-existing right (i.e. it expresses an intention as to the future). A promissory estoppel operates only between parties who, at the time of the representation, were in an existing relationship, while this is not a requirement for estoppel by representation of fact.

    The test for unconscionability in the English and Australian courts takes many factors into account, including the behavior, state of mind and circumstances of the parties. Generally, the following eight factors are determinative:[14]

    how the promise/representation and reliance upon it were induced;
    the content of the promise/representation;
    the relative knowledge of the parties;
    the parties’ relative interest in the relevant activities in reliance;
    the nature and context of the parties’ relationship;
    the parties’ relative strength of position;
    the history of the parties’ relationship; and
    the steps, if any, taken by the promisor/representor to ensure he has not caused preventable harm.

    But in Cobbe v Yeoman’s Row,[15] Lord Scott of Foscote stated the following:

    the ingredients for a proprietary estoppel should include, in principle, a proprietary claim made by a claimant and an answer to that claim based on some fact, or point of mixed fact and law, which the person against whom the claim was made could be estopped from asserting. To treat a “proprietary estoppel equity” as requiring simply unconscionable behaviour was a recipe for confusion. The remedy to which, on the facts as found by the judge, the claimant was entitled could be described neither as based on an estoppel nor as proprietary in character. His Lordship’s present view was that proprietary estoppel could not be prayed in aid to render enforceable an agreement declared by statute (s. 2 of the Law Reform (Miscellaneous Provisions) Act 1989) to be void. A claim for the imposition of a constructive trust to provide a remedy for a disappointed expectation engendered by a representation made in the course of incomplete contractual negotiations was misconceived and could not be sustained by reliance on unconscionable behaviour. The claimant was, however, entitled to a quantum meruit payment for his services in obtaining the planning permission.

    1. BarkinDog, good thought. I don’t know much about criminal procedure, so I have no idea if an estoppel argument is a winner in the land of the fruit of the poisonous tree and due process which I would think covers an estoppel argument in the abstract.

      And, I don’t know if Pennsylvania (or wherever this prosecution is going on – I haven’t been following this case closely, obviously) uses the equivalent of Federal Rule of Evidence 413, but if it does then prior similar acts are admissible for any relevant purpose including to prove propensity for sexual assault.

      Ultimately, I’ll bet there’s some dispositive or at least persuasive case law on this issue, but I can see Cosby taking this one up to Justices Scalia, Thomas, and Citizens United if he loses his suppression motion. Then again, I have no idea if a suppression motion is appealable.

  7. There is defense which we on the blog should explore. Estoppel. That is a doctrine which says that I can assert that the person attempting to introduce this piece of evidence is estopped or stopped from having it admitted. There are several branches of this doctrine: estoppel by deed, estoppel by judgment, estoppel by consent, estoppel by law, estoppel by conduct.
    I am going to go look that doctrine up. I may report back.

  8. What’s wrong with handing out BC pills before sex, they hand out condoms to school children don’t they?

  9. PCS, if you read the Law of Nations, it says “…a natural born citizen is born in the country of parents who are citizens…” Really quite simple and straightforward if you think about it, which is what the Founders did when they wrote that in the Constitution. Nothing hinky there.

    Allow the deposition in based on the preponderance and quality of evidence and let the whole thing go to appeal.

    The ref calls the touchdown knowing it will be reviewed.

    P.S. I know ALL Phoenicians are watching football right now.

    1. John – why would Phoenicians be watching football now, our game was Sat.

  10. PCS, thank you. Now the court doesn’t need the testimony of any of the women. Cased closed.

    I thought the subject was deal-making, which very often is followed by deal-breaking. Certainly this court can find a way out of a ridiculous, probably criminal, informal “bargain.” How about some of that good old “plausible deniability” with a dose of “I don’t remember.”

    You know something along those lines so that the truth is revealed and justice is served. Maybe America could do that for once. Just like America could have enforced the law against Obama that says in the Law of Nations that he is not a “natural born citizen” which Jay/Washington put in the Constitution to place a “strong check” against foreign allegiances.

    Another day in the “goofy” factory.

    1. John – if you read the email by the prosecutor, there is something hinky going on with the acquisition of the deposition, thus they would have trouble using it.

  11. Who was Cosby’s attorney at the time of this depo , and was he asleep ( or just incompetent )?

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