And why she says she doesn’t have to
As any aficionado of crime dramas is aware, Americans generally can’t be forced to testify against their spouses.
But there’s a good reason that Camille Cosby, the wife of scandal-besieged comedian Bill Cosby, is scheduled to be deposed this Wednesday in the civil defamation case against her husband by seven of his accusers, a legal expert tells TheWrap.
“Because the current subpoena seeks to depose Ms. Cosby, not to have her testify at trial, the evidentiary standard is ‘looser,'” New York City-based matrimonial law attorney Jacqueline Newman said. “Her deposition may give rise to material evidence, even if her testimony itself is not admissible.”
U.S. Magistrate Judge David H. Hennessy addressed that issue last week when he denied Cosby’s motion to quash the subpoena for her deposition: “The right to depose a witness and the right to use that testimony in court are separate and distinct.”
But Camille Cosby didn’t attempt to quash the subpoena under a spousal privilege law, but rather the “marital disqualification law” in Massachusetts, which decrees, “In any proceeding, civil or criminal, a witness shall not testify as to private conversations with a spouse occurring during their marriage.”
While that might sound the same to a layman’s ears, Newman points out a legal distinction. “This is not a spousal privilege law. Rather, it is a ‘disqualification’ rule which speaks only to a party’s competence to testify,” she said.
As for why Cosby didn’t use Massachusetts’ spousal privilege law to try to quash the subpoena for her deposition, Newman said, “on its face, [the Massachusetts spousal privilege law] only applies in criminal cases, and only applies to trial testimony.”
Newman added that the fact that Camille Cosby is
Camille Cosby does have the option of invoking the Fifth Amendment against self-incrimination during her deposition, Newman noted, but she will face a number of hurdles if she chooses that option.
“Embarrassment, or even civil liability, is not criminal liability, and the Fifth only applies to reasonable fear of exposing oneself to future criminal liability,” Newman said. “Essentially, could Camille Cosby’s testimony be used against her in a future criminal trial?”
Newman went on to note: “Unless she somehow helped Bill cover up sexual assaults, or helped him engage in them, and it can be shown that there is a legitimate fear of a future criminal proceeding (i.e. the statute of limitations has not run out), Camille could be compelled to answer all deposition questions.”
For what it’s worth, Camille Cosby is still trying to block Wednesday’s deposition. On Monday, she filed an emergency motion to stay the deposition, pending her appeal of the magistrate judge’s order.
In the new papers, Cosby argues, in part, that her husband’s accusers plan to publicize “intimate details of her marital life” that might be revealed in the deposition.
“In his Order, the Magistrate has suggested that the Plaintiffs may ask Mrs. Cosby about the most intimate details of her marital life, including her husband’s sexual ‘proclivities’ … Plaintiffs had made clear that they will publicize all such testimony,” Monday’s court papers read. “A trial objection will do little good if the private and intimate details of her marital life are discussed during the deposition and released to the media thereafter.”
In the case, Cosby is being sued by accusers including Tamara Green, Therese Serignese and others, who allege that the TV legend defamed them with statements denying their claims of sexual impropriety and assault. Cosby has filed his own cross-complaint for defamation against his accusers.
Cosby has been accused of rape or sexual assault by dozens of women. His former attorney, Martin Singer, has denied the allegations in the past.
The former “Cosby Show” star has been slapped with multiple lawsuits in the wake of the scandal. He has also been charged with felony sexual assault stemming from accusations made by former Temple University employee Andrea Constand, who alleges that Cosby assaulted her in 2004.
Constand had previously sued Cosby over the alleged attack, but later settled with him.
Pamela Chelin contributed to this report.