Bill Cosby's Wife Has to Show Up for Deposition, Not Necessarily Say Anything

A judge issues his order on Camille Cosby, mindful of "marital harmony."

The mind-bending Bill Cosby saga has already broken a lot of legal ground from homeowner's insurance to the what publicists and lawyers can and can't say when their clients are accused of doing something rotten. Today's subject is marital harmony.

As Cosby faces a defamation lawsuit from seven female accusers, their attorney is demanding that Camille Cosby — the embattled entertainer's wife — testify in a deposition. On Dec. 31, in an event that was overshadowed by criminal charges filed against Mr. Cosby, a magistrate judge issued a ruling that Mrs. Cosby must submit to a deposition. Cosby's attorneys asked a federal judge to re-examine this. On Thursday, U.S. District Judge Mark Mastroianni overruled what the magistrate judge had decided only in part. Here's where it gets interesting.

In law, there is something called "spousal privilege," which in general means that husbands and wives don't have to testify about their communications with each other in criminal and civil cases.

In his opinion, U.S. District Judge Mark Mastroianni traces the rule all the way back to 1628 when it "barred not just testimony as to private conversations, but all testimony by a spouse either for or against the other spouse, even if both spouses desired the testimony."

Over the years, the rule got narrowed, but it's still an important aspect of law. Notwithstanding, the magistrate judge offered an exception to the general principle that spouses can't be forced to testify about their marital communications. In simplest terms, it ran like this: Yes, Ms. Cosby might not have to testify against Mr. Cosby at trial, but we're not at trial yet. We're in the discovery stage. She must submit to a deposition and if Cosby's attorneys want to have it deemed inadmissible, they can bring a pre-trial motion to preclude it.

Now, Mastroianni offers up an even greater twist in considering what he calls to be a "difficult issue, as there is very little authority directly on the subject."

His conclusion boils down as such: Yes, Ms. Cosby might not have to testify against Mr. Cosby at trial, but we're not at trial yet. She indeed has to show up at a deposition. But she doesn't necessarily have to say anything there if it violates the spousal rule.

And how does he come to this conclusion? Here's the fuller explanation:

"Considering its specific historical development, applying the disqualification rule to deposition testimony effectively protects marital harmony and the confidentiality of marital communications, which are key policies at the heart of the rule," he writes. "A spouse’s deposition testimony regarding private marital conversations would present a legitimate risk of harm to that marriage. Unlike grand jury proceedings, which occur in secret, deposition testimony may be made public (subject to confidentiality provisions) and the spouse of the testifying witness may be physically present at the deposition. Therefore, it would make little sense, in the absence of a statutory directive to the contrary (of which there is none), that the legislature intended the disqualification rule to apply to trial testimony but not deposition testimony. Accordingly, the court concludes that the Massachusetts marital disqualification rule applies to deposition testimony and that Deponent’s counsel, when appropriate, may instruct her not to provide testimony barred by the rule."

This sets the stage for a deposition that's likely to resemble one of those Congressional hearings where witnesses plead the fifth (though in this case, she'll be pleading her undying love of an alleged rapist).

Mastroianni says he is declining to issue a formal protective order limiting the scope of the deposition — meaning he won't guide what's in-bounds and out-of-bounds — given Cosby's wife's right to refuse to answer questions when appropriate. Vague? You bet. Instead, he's kicking it back to the magistrate judge to decide any disputes that come up. One can almost count on this happening. (Then again, Cosby asked the court on Tuesday to pause the civil lawsuit given his pending criminal case.) In fact, if it goes several rounds, the motion papers may provide some clues about what questions are coming her way.

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