• Show Notes

By Asha Rangappa

Dear Listener,

Last week, the Pennsylvania Supreme Court handed down a decision that shocked many -- it threw out the conviction of Bill Cosby, who was found guilty in 2018 of three counts of aggravated indecent assault against his victim, Andrea Constand. The decision was a punch in the gut for all victims of sexual assault, both in Cosby’s case and others. But the principle that the Pennsylvania Supreme Court was vindicating -- which was about due process, not the weight of the evidence demonstrating Cosby’s guilt -- has implications that go even further: The case serves as both a warning and a reminder for Congress not to compromise future potential criminal prosecutions as it investigates the events of January 6.

In its ruling, the Pennsylvania court was primarily concerned with whether prosecutors had improperly used Cosby’s self-incriminating statements in order to prove the criminal case against him. This is because in 2005, then-District Attorney of Montgomery County, Bruce Castor, had made a public decision not to prosecute Cosby after investigating Constand’s allegations of sexual assault against him. Castor believed that he did not have enough evidence to prove the case against Cosby in criminal court. However, Castor felt that by publicly stating that he would not be prosecuting Cosby, he would help Constand’s case in civil court, which has a lower burden of proof. Specifically, without any threat of prosecution, Cosby would be unable to invoke his Fifth Amendment right against self-incrimination to avoid answering questions in any civil depositions -- if there is no realistic way Cosby could be prosecuted for his statements, the Fifth Amendment protections would no longer be applicable. Cosby in fact went on to answer questions in his depositions that were self-incriminating -- and a decade later, Castor’s successor in the D.A.’s office used those statements to prove the criminal case against him. Because Cosby had relied on Castor’s assurances of non-prosecution in making these statements, the Court reasoned, using them as evidence to prove a criminal case against him violated due process.