The Pennsylvania Supreme Court overturned Bill Cosby’s conviction for sexual assault. After three years in prison, he was released.

A fundamental right, the protection against self-incrimination, was at the heart of the court’s decision. Popular culture has made us aware of this constitutional provision. The Miranda warnings are based on it. From an earlier era, many remember witnesses at congressional hearings droning that they would not answer questions because of the possibility of self-incrimination. Fictional and real trials teach that criminal defendants cannot be forced to take the stand in their criminal trials because of their rights against self-incrimination.

 However, if witnesses are given immunity against prosecution, they can be forced to testify in criminal trials even if their testimony implicates them in crimes. This is because immunity is a governmental promise that the witness will not be prosecuted or that their forced testimony will not be used against them in a criminal prosecution. If this promise is followed, the testimony cannot legally incriminate the witness, and the prosecution can force the witness to testify.

Civil cases are different. They are not prosecutions, and the parties can be forced to testify. The usual practice is for the defendant in a civil case to take the deposition of the plaintiff and often to call the plaintiff to testify at trial. The plaintiff has the same right to have the defendant testify at a deposition or trial. Even though private parties are the litigants, such testimony is forced by the government because it is the court that orders the testimony. The required testimony can be enforced by contempt sanctions carried out by government officials.

Normally a civil proceeding does not raise self-incrimination problems because the civil case raises no criminal issues. However, a problem arises when a civil case potentially intertwines with a criminal prosecution. That was the Bill Cosby situation. He was sued civilly for a sexual assault that could lead to criminal charges. Under accepted self-incrimination law, he could be forced to testify in the civil case, but he had the right to refuse to answer any question that might incriminate him in a criminal prosecution. The state prosecutor who had jurisdiction over the potential criminal matter stated that he would not prosecute Cosby for the sexual assault. With that promise of immunity, Cosby did not have a self-incrimination right to assert in the criminal case, and he testified.

Years later, a new prosecutor, who, if memory serves, campaigned promising a Cosby prosecution, disregarded the former prosecutor’s decision and criminally charged Cosby with the sexual assault Moreover, he used Cosby’s damaging statements from the civil proceeding in the criminal trial. At the time, I and many others thought that this was a due process violation, and now the Pennsylvania Supreme Court has agreed.

Cosby’s release,of course, brought reactions about sexual violence, black lives matter, and unjust convictions (so far I have not seen anyone trying to tie this outcome into defunding the police).  His release for me, however, dredged up memories of Oliver North, a frequent commentator on conservative news outlets. North was a key figure in the Iran-Contra affair of the 1980s. This is not the time to rehash those scandals, but I urge all to read about it. It was a dangerous time for the country as members of the Reagan administration worked to subvert the Constitution by secretly selling arms to Iran, our supposed enemy, and using the proceeds to fund groups fighting in Nicaragua, violating a congressional mandate. In the Iran-Contra aftermath, many high officials were indicted, including North, who was convicted of several felonies. He appealed, and something I have not heard North mention on his many television appearances on Fox and elsewhere, his appeal was supported by the ACLU.

Before North’s trial, he was called to testify by a joint congressional committee in a televised hearing. In order to compel his testimony, the Committee gave him immunity. Congress, the legislative branch of government, does not have the authority to prevent prosecutions, which are done by the executive branch. Instead, as Supreme Court cases had made clear, a grant of congressional immunity, while not preventing a prosecution, does prevent a prosecutor from using the compelled testimony or anything derived from that testimony. However, a prosecution that did not rely on the immunized testimony was permissible. Hoping to bring a criminal prosecution against North and to satisfy the self-incrimination clause, the prosecutors in the North case insulated themselves from North’s compelled testimony. They did not watch North’s congressional testimony, did not read a transcript, and refrained from being exposed to the news outlets reporting it. They segregated the evidence they had gathered before the testimony to show that this evidence was not influenced by the congressional hearing.

None of the congressional testimony was used at trial and nothing at the trial revealed that the prosecutors were in any way influenced by it. Even so, the Fourth Circuit Court of Appeals, then known as one of the most conservative federal courts, reversed the conviction. The court concluded that witnesses at the trial may somehow have been affected by the televised public proceedings, even though there was not a scintilla of proof of such influence. This court standard, new at the time and (I don’t think) ever applied again, meant that there was no way for the prosecution to establish that North’s immunity would not be violated in a new trial. All charges against him were dismissed. The other Iran-Contra participants who had also been convicted but did not have their convictions reversed, were later pardoned by President George H.W. Bush.

Oliver North did not spend one day in prison.

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