Did You Take the 5th Like Billy Cosby?

Were you stopped for a DUI or questioned about an accident over the July 4th weekend? The 5th Amendment allows us all to remain silent when questioned by the police. We have seen this over and over in the movies. As a matter of fact Bill Cosby’s release from prison on his appeal kind of ties into this.

Cosby was promised by one DA that if he appeared and answered questions at a Civil Deposition that no criminal charges would come of it. Had the DA not made that promise, Cosby could have taken the 5th on the civil deposition, and refused to testify on the grounds of what he said/answered to questions on the civil case, which could have incriminated him on a criminal action. To take that argument away, the DA promised not to prosecute………….the NEW District Attorney reneged on that promise.

When another DA took over, he did not honor the promise. The Appellate Court on 6/30/21 reversed the Cosby conviction saying he should not have been prosecuted on the case for which he was sentenced. This is because there was a promise to not prosecute him, which induced him to give up his 5th Amendment to remain silent…and thus testify in the civil matter. Some of what he said implicated him on the criminal case that was later filed.

THERE IS A DIFFERENCE BETWEEN INNOCENT AND NOT GUILTY...........COSBY and OJ SIMPSON WERE FOUND NOT GUILTY. HOWEVER, THAT DOES NOT MEAN THEY WERE INNOCENT.

After the massive media coverage of sexual assault accusations against Cosby in 2015, DA Castor's successors, as Montgomery County D.A., decided to forgo his promise, and charge Cosby criminally.

The Pennsylvania Supreme Court now rules that convicting Cosby on the basis of incriminating evidence he provided when assured of no threat of criminal charges was an unfair violation of Cosby's constitutional rights. It was said "When an unconditional charging decision is made publicly and with the intent to induce action and reliance by the defendant, and when the defendant does so to his detriment (and in some instances upon the advice of counsel), denying the defendant the benefit of that decision is an affront to fundamental fairness, particularly when it results in a criminal prosecution that was foregone for more than a decade," Justice David Wecht wrote in his majority opinion, joined by Justices Debra Todd, Christine Donohue, and Sallie Updyke Murray. "No mere changing of the guard strips that circumstance of its inequity."

As a result, not only is Cosby a free man, he is also barred from "any future prosecution on these particular charges." Remember Double Jeopardy…and not the TV show. Some say he was LUCKY. However, he did spend two years in prison. Of course, if the law was followed there would have been no prosecution and thus no time in custody. That is not to say he did not do what was/is alleged.

Politicians spout the name Abraham Lincoln and quoting him for never telling a lie. However, it is not because he could not tell a lie but rather that he was a President and everyone should try to emulate the integrity of the office.

There is a big difference between telling a lie and not talking, as there is between Innocence and Not Guilty. In that regard, PI/DUI cases have a lot in common, with respect to what clients should or should not do. In both instances “Silence is Golden”. As a rule, the less you talk the better off you are.

Don’t admit fault in an accident or admit guilt with a DUI. It is not always what you say, but what the other side THOUGHT YOU SAID.

If you have to go to court, I advise my clients:

  1. When you are around the courthouse, become the most courteous driver on the road. You don’t know if the driver you cut off or flipped off will be your judge, clerk, or juror. You may not recognize that driver but they will remember you.
  2. Park your car between the lines, do not take 2 spaces.
  3. Do NOT smoke or spit.
  4. Follow the Do Not Walk on the Grass signs.
  5. Hold the elevator door open for whoever is behind you.
  6. Be courteous to everyone in the courthouse.
  7. Dress professionally and cover tattoos with clothes if possible.
  8. Shine your Shoes.
  9. Clean your Nails.
  10. A belt should not be old and worn out.
  11. Ties should not be dirty.
  12. Clothes must be pressed & cleaned.
  13. Do not eat beans the night before.

Most lawyers agree, The Law Wins Every Time and it is often not worth fighting “the law”. HOWEVER, YOU NEVER KNOW WHAT SWAYS A JUROR.

Next week we will pick up where we left off and discuss what you should or should not do after an accident or DUI arrest.


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