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Confidentiality – What Bill Cosby’s Release From Prison Tells Us About the Importance of Confidential Statements

Last week, Bill Cosby was released from prison following a decision from the Pennsylvania Supreme Court overturning his 2018 sexual assault conviction. The Court found that Cosby’s agreement with a previous prosecutor should have prevented criminal charges from ever being filed.

For context, this case began in 2004 after Andrea Constand accused the comedian of drugging and assaulting her at his home in Pennsylvania after she came to him for career advice. When Ms. Constand first wanted to pursue a criminal action against Cosby, she was told that there was not enough evidence to do so. Therefore, she was urged to file a civil suit instead- which is exactly what she did.

In 2005 while the civil case was ongoing, Cosby was assured by the District Attorney of Montgomery County at the time that he would not be criminally charged for anything he disclosed in the civil suit. In fact, the district attorney had even encouraged Cosby to testify in the civil case brought by Ms. Constand. In that testimony, Cosby had admitted to giving quaaludes to women he was pursuing for sex. Eventually, Ms. Constand settled her civil case against Cosby for more than $3 million.

However, when this damaging evidence came to light over 10 years later, the new District Attorney decided to use Cosby’s statements in the civil trial to convict him of sexual assault in 2018. This evidence was crucial to his conviction.

In their 79-page opinion, the Pennsylvania Supreme Court wrote that a “non-prosecution agreement” that had been made between Mr. Cosby and the previous prosecutor back in 2005 meant that Cosby could not have been charged in the subsequent criminal case and that he should be discharged. The judges found that this agreement opened the door for Cosby to speak freely in a lawsuit against him and that testimony was wrongly used in his conviction in 2018.

How Does This Apply to Family Law?

Confidentiality is vital to the success of any family law case. It exists to ensure that civil case litigants can safely conduct settlement discussions. In family law when parties attend a mediation or discuss settlement offers, there is an outer protection of confidentiality. Specifically, California’s mediation confidentiality laws are laid out in Sections 703.5 and 1115 to 1129, inclusive, of the Evidence Code. Those laws establish the confidentiality of mediation and limit the disclosure, admissibility, and a court’s consideration of communications, writings, and conduct in connection with a mediation. On the other hand, confidentiality protection in settlement negotiations comes from Evidence Code Section 1152. The protections of Section 1152 extend to conduct and statements made in negotiation of an offer, but admittedly, these protections are somewhat limited.

The purpose of having the protection of confidentiality is to encourage open communication between parties and to allow them to speak freely and honestly. If a party knows that what they say can be used against them later on in the proceeding, they might be more hesitant to disclose crucial information. The protection and enforcement of confidentiality is key in settling family law disputes because it promotes this unabridged communication. It is a clear violation of the family code and evidence code to submit evidence that is protected by confidentiality, it simply cannot be used.

If you have questions or concerns regarding confidentiality concerns in your litigation matter, please call our office to schedule a consultation.  Here at Mello & Pickering, LLP we have extensive experience settling and litigating family law matters and can guide you as needed to ensure a successful resolution.

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