On January 2, 2016, I appeared on Fox News’ America’s News Headquarters (@ANHQDC) with Host Patti Ann Browne (@pattiannbrowne) and colleague Mercedes Colwin (@MercedesColwin) to discuss the latest legal issue in the Bill Cosby case where a Federal Magistrate judge in Massachusetts ordered that Camile Cosby, Bill Cosby’s wife, testify at a civil deposition in his civil case.
It is important to understand that the Spousal Privilege is recognized in all 50 states and in the federal courts. The Spousal Privilege can have two different protections: it can be a spouse’s right not to be called as a witness against their spouse and it can also be the protection of confidential communications between spouses during the course of a marriage. Not all States honor both types of protections so the law will depend on the jurisdiction where the case is being heard.
As discussed in the Fox News’ appearance, Bill Cosby has two separate cases. There is a civil case in a Massachusetts Federal Court for defamation where 7 accusers alleged that Cosby defamed their name by denying that they were ever victims of sexual abuse. Additionally, there is a criminal case in Pennsylvania state court where Cosby was arrested and charged with sexual assault relating to another victim. Absent a stay from the Massachusetts Federal Judge in the civil case, these cases will both proceed concurrently which will have very significant legal consequences relating to the Spousal Privilege and some other rights.
As mentioned above, the Spousal Privilege law depends on where a case is being heard. In Massachusetts, the state where Cosby’s civil defamation case is being heard, a spouse’s confidential communications are protected and a spouse can’t be called as a witness in a criminal trial but that right is not protected in a civil case. In Pennsylvania, the state where Cosby’s criminal case is being prosecuted, a spouse’s confidential communications are protected and a spouse cannot be called as a witness against their spouse in any case.
This is the rationale why the Massachusetts Federal Judge recently ordered Bill Cosby’s wife to testify as a witness in her husband’s civil case. However, while she must appear, the scope of testimony does have some limitations and Camile Cosby can successfully invoke the Spousal Privilege as an objection to certain questions at the deposition to protect any confidential communications with her husband made during the marriage. Additionally, Camile Cosby can only answer questions that she has the answers for. She can’t answer questions based on speculation.
The Massachusetts Federal Magistrate’s ruling does not mean that Camile Cosby has to testify as a witness against her husband in the criminal trial in Pennsylvania. Pennsylvania’s state honors the Spouse’s right not to be called as a witness in any case and therefore she cannot be compelled to testify as a witness against her husband in a criminal prosecution for sexual assault.
Camille Cosby will not be deposed Wednesday as United States Magistrate Judge David H. Hennessy allowed her emergency motion for a stay. The judge granted the stay so that Camille Cosby can appeal a recent decision requiring her to be deposed by attorneys of the seven accusers.