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Case 1:20-cr-00330-PAE Document 310-1 Filed 07/02/21 Page 67 of 80

is indisputable that, in Constand’s civil case, Cosby was entitled to invoke the Fifth
Amendment. No court could have forced Cosby to testify in a deposition or at a trial so
long as the potential for criminal charges remained. Here, however, when called for
deposition, Cosby no longer faced criminal charges. When compelled to testify, Cosby
no longer had a right to invoke his right to remain silent.

Cosby was forced to sit for four depositions. That he did not—and could not—
choose to remain silent is apparent from the record. When Cosby attempted to decline
to answer certain questions about Constand, Constand’s attorneys obtained a ruling from
the civil trial judge forcing Cosby to answer. Most significantly, Cosby, having maintained
his innocence in all matters and having been advised by a number of attorneys, provided
critical evidence of his recurring history of supplying women with central nervous system
depressants before engaging in (allegedly unwanted) sexual activity with them—the very
assertion that undergirded Constand’s criminal complaint.

The trial court questioned whether Cosby believed that he no longer had a Fifth
Amendment right to invoke during the civil proceedings, or whether he would have
invoked that right had he still possessed it. The court noted that Cosby voluntarily had
submitted to a police interview and had provided the police with a consent-based defense.
Cosby repeated this narrative in his depositions. The court found no reason to believe
that Cosby would not continue to cooperate as he had, and, thus, discerned no reason
for him to invoke the Fifth Amendment. In other words, it was not that the trial court
surmised that Cosby had no privilege against compulsory self-incrimination to invoke, but
rather that Cosby simply chose not to invoke it.

The trial court’s conjecture was legally erroneous. The trial court surmised that,
although Cosby repeatedly told an exculpatory, consent-based version of the January
2004 incident, he naturally would have been willing to offer inculpatory information about

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