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- Now, I just explained why Bill Cosby is going free because the Pennsylvania Supreme Court thinks that his Fifth Amendment rights were violated, but that doesnt mean that the district attorney, Bruce Castor, didnt royally screw up. The original deal not to prosecute Cosby was to get him to testify in the civil suit. If Cosby wasnt going to be prosecuted, he could waive his Fifth Amendment rights and give deposition testimony, which is under oath in the civil suit. But the Fifth Amendment is different in a civil context. In a criminal trial, you can never be forced to testify, but, in a civil trial, you can say youre not going to testify, but the judge can take a negative inference. So, if that had happened in the civil suit, the victims attorney could have tried to depose Cosby, he would have taken his Fifth Amendment right and then the judge would say, Well, since youre not going to testify, were going to take a negative inference and assume that you probably did the things