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Dr. Huxtable, say it isn’t so! Or at least say something.

Over the last few weeks, more and more women have been coming forward, accusing Dr. Huxtable also known as Bill Cosby with rape.  Every day there seems to be a new accuser giving a statement to some media outlet. The recount of events is pretty consistent among his accusers, i.e. he drugs them and then rapes them while they are defenseless.

Earlier this week I was reflecting on Cosby’s professional career and how it didn’t seem to be taking a hit.  His public negatives were low, and unlike other actors and sports figures accused of similar crimes, none of his projects seemed to be in jeopardy.  Oh, how things can change in 24 hours.  Since Janice Dickerson made her claims public, Cosby’s positives have gone south quicker than the temperature in the upper Midwest this past week.   First Netflix delayed the release of his upcoming comedy special. Then NBC nixed a series that was being negotiation, and then reruns of the Cosby show have been pulled from the airwaves.  Seems even America’s iconic father isn’t immune from the public’s distain of such accusations.  Remember, Cosby has not been tried and convicted in a court of law, in fact he hasn’t even been charged.  It appears he is being found guilty in the court of public opinion.

Scott Simon host of NPR’s Weekend Edition Saturday questioned Cosby about the allegations.  Cosby remained silent.  According to Simon’s commentary, Cosby just shook his head no.  The only word from the Cosby camp was a statement posted on his website by his attorney John P. Schmitt which claimed the allegations were nothing new, that they had been “discredited” and  that just “being repeated does not make them true.”  However, Schmitt’s statement was removed only two days after it went up.

Originally it seemed that the public was willing to accept silence on the issue, however that too has now changed.  Silence is no longer a prudent course of action for Cosby.   Now, generally, a defense attorney will tell his client to keep his mouth shut.   I almost always tell my clients, “you have a right to remain silent.  Use it.”  But so far, all of the allegations against Cosby seem to be outside California’s statute of limitations.  I say seem to be because in California the Statutes of Limitation (“SOL) depend on the act, the age of the victim, and what the law was at the time of the incident.

Currently in California the SOL on rape is 6 years from the date of the alleged incident.  However, an old case can still be prosecuted if there was DNA collected but not analyzed.  Then the SOL is one year from discovery of a DNA match.  If the victim is a minor the SOL becomes even fuzzier.  The SOL states prosecutors have 10 years from the date of the incident, or within 1 year of when a victim tells police of the incident.  This last provision seems to invalidate the 10 year limitation, opening it up to anytime an alleged victim decides to come forward.

New York law is a bit different.  There isn’t a SOL per se. In New York the statute doesn’t start to run until the prosecutor has obtained either DNA or fingerprint evidence which establishes the identity of the suspect.   The DNA and/or fingerprint evidence must be matched to physical evidence before it can be deemed to ID a suspect.  In Cosby’s case, none of the woman came forward at the time of the alleged incident, thus it would be expected no fingerprint or DNA evidence was collected putting Cosby out of reach of the District Attorneys’ Office.

Cosby’s silence might become an issue if any new allegations are made that are not time-barred.  If prosecutors brought a case to trial, the prosecution could use Cosby’s silence against him.  The prosecutor most likely would argue that an innocent man would be protesting his innocence at the top of his lungs, not remaining silent.

Now, you might be wondering how the prosecutor can use Cosby’s silence against him.  Doesn’t the Fifth Amendment to the Constitution guarantee our right to remain silent?  Well, yes and no.  The familiar MIRANDA warning everyone knows from TV, does state you have the right to remain silent.  But that right only applies once you are in custody.  In addition, the Supreme Court in 2010 rendered a decision that actually limits your right to remain silent even when in custody and have been given the MIRANDA warning.  The Court ruled you have to actually tell the police you are exercising your right to remain silent.  If you just sit there and say nothing, the prosecutor can now use that and argue “consciousness of guilt.”  Basically, an innocent man would have protested his innocence.

That’s what could happen to Cosby. If charges are ever filed, if he remains silent, the prosecutor could argue an innocent man would have been shouting his innocence, and since Cosby remained silent, it shows “consciousness of his guilt.”  Of course, as of now, none of the allegations are within the Statutes of Limitation, so Cosby only has to worry about his public image and how much his image will tarnish if he continues to remain silent.

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About The Author

Los Angeles-based, celebrity criminal defense attorney, Lonnie McDowell, Esq of McDowell & Associates, Attorneys recognized with the Top 100 Trial Attorneys Award; shares his insight into the legal system in this series of commentaries.

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