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  1. #276
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    Quote Originally Posted by Calliope View Post
    Thanks again ... does this mean that civil findings are not allowed to be mentioned at all in a criminal trial? If so, and since this is being played out in the media, would the jurors be instructed not to consider that in their deliberations?
    Civil findings could not be mentioned in a criminal case because they would be irrelevent and confusing to the jury.

    The jury might be asked in voir dire if any of them followed the related civil case, whether or not they could set aside whatever they knew about the civil case in making their determination, etc. They would not be given any instruction about it at the end of the case, though, because in theory they wouldn't know about it because it wasn't mentioned during the trial.

    "It would seem to me that June 16, 2008 was the last time that the victim was viewed by her grandparents. It became quite evident that from the OS of the Defense that the 16th was a date of great importance and that a so called time line of activities dealing with CA, LA, GA and ICA on the 16th and what, if any, activities took place on the 15th, 16th and 17th of June on 24 hour cycles would have been, at least, of a minimal requirement of review. I take it at some point you had a computer expert look at that data?" HHJP, 6/21/11
    http://www.websleuths.com/forums/sho...139910&page=94

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  3. #277
    Does a person only need to plead the 5th if they are guilty? Can someone who is in fact innocent, but may have an answer that might make them look guilty plead the 5th? Or does the right not to incriminate yourself only apply to actually being guilty?

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    Quote Originally Posted by rnmif View Post
    Does a person only need to plead the 5th if they are guilty? Can someone who is in fact innocent, but may have an answer that might make them look guilty plead the 5th? Or does the right not to incriminate yourself only apply to actually being guilty?
    Pleading the fifth does not necessarily apply only to someone who is actually guilty. But it does mean that if they were to testify, in an honest manner, what they said could be used to show they committed a crime. So in general, I would imagine that most people who plead the fifth have done something they could face criminal prosecution for.
    For Travis Alexander, a human being. Justice will prevail.


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  6. #279
    Quote Originally Posted by gitana1 View Post
    Pleading the fifth does not necessarily apply only to someone who is actually guilty. But it does mean that if they were to testify, in an honest manner, what they said could be used to show they committed a crime. So in general, I would imagine that most people who plead the fifth have done something they could face criminal prosecution for.
    There might be a legal nuance here I'm missing, but is there a reason that a wrong place/wrong time situation, where a good attorney knows the client looks guilty wouldn't advise them to plead the 5th?

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  8. #280
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    Quote Originally Posted by rnmif View Post
    There might be a legal nuance here I'm missing, but is there a reason that a wrong place/wrong time situation, where a good attorney knows the client looks guilty wouldn't advise them to plead the 5th?
    I'm not sure what you mean. Are you asking is there a circumstance when a client looks guilty but the attorney advises them to testify anyhow for some reason? Like the person was at the wrong place at the wrong time and thus could be pegged for a crime he or she did not actually commit? But there is some reason the attorney wants them to testify in a civil setting? Is that basically what you're asking?
    For Travis Alexander, a human being. Justice will prevail.


    *Gitana (means "Gypsy girl"). Pronounced "hee tah nah."

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    How much information could Terri's defense lawyer get right now about the evidence, even though she's not been charged? I am wondering not only from a completely "legal" perspective of what he can get, but as a lawyer, can you sometimes find things out through connections?

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  11. #282
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    Quote Originally Posted by tragco View Post
    How much information could Terri's defense lawyer get right now about the evidence, even though she's not been charged? I am wondering not only from a completely "legal" perspective of what he can get, but as a lawyer, can you sometimes find things out through connections?
    I'd like to add to this, if I may.

    It's my understanding that once a person is charged and going to trial, the DA must allow the defense access to their evidence to be used against the defendant. Do any legal requirements of that sort exist before a person is arrested and charged? Would Houze have any access to all that the DA and LE have on Terri, beyond what they choose to tell / show him?

    http://www.leg.state.or.us/ors/040.html (not sure that's the correct source to answer this question; it makes me dizzy just reading it, though this is a bit creepy: any person who, having organs of sense can perceive, and perceiving can make known the perception to others, may be a witness.)
    Last edited by Calliope; 09-07-2010 at 06:48 PM.

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  13. #283
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    Quote Originally Posted by Calliope View Post
    I'd like to add to this, if I may.

    It's my understanding that once a person is charged and going to trial, the DA must allow the defense access to their evidence to be used against the defendant. Do any legal requirements of that sort exist before a person is arrested and charged? Would Houze have any access to all that the DA and LE have on Terri, beyond what they choose to tell / show him?
    Once the accused has been arraigned (formally charged in court), the defense is entitled to discovery of all witnesses and evidence that the prosecution intends to introduce. The prosecutor doesn't need to turn over everything they have, just everything that they may use at trial. The exception to this would be any exculpatory evidence that the prosecutor may be aware of even if he, obviously, would not be introducing it at trial.

    Until she's arrested and charged,Terri isn't entitled to know anything. Unless Houze is sleeping with and/or paying off someone within the sheriff's or prosecutor's office who doesn't care much about retaining their employment, it's unlikely that he has any better idea of what the prosecution's case may be than we do. The only inside window he probably has at this point is knowledge of the lines of questioning LE has taken with Terri and the assumptions to be drawn from that.
    Last edited by desquire; 09-08-2010 at 12:38 PM.

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  15. #284
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    Quote Originally Posted by desquire View Post
    Once the accused has been arraigned (formally charged in court), the defense is entitled to discovery of all witnesses and evidence that the prosecution intends to introduce. The prosecutor doesn't need to turn over everything they have, just everything that they may use at trial. The exception to this would be any exculpatory evidence that the prosecutor may be aware of even if he, obviously, would not be introducing it at trial.

    Until she's arrested and charged,Terri isn't entitled to know anything. Unless Houze is sleeping with and/or paying off someone within the sheriff's or prosecutor's office who doesn't care much about retaining their employment, it's unlikely that he has any better idea of what the prosecution's case may be than we do. The only inside window he probably has at this point is knowledge of the lines of questioning LE has taken with Terri and the assumptions to be drawn from that.
    Is it true that the prosecution might even hold off an arrest so that the defense doesn't have this information right away? I mean, if they believe Kyron is not alive, then what's the rush?

    Or have I been reading too many Kate Wilhelm novels?
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  17. #285
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    Quote Originally Posted by Kimster View Post
    Is it true that the prosecution might even hold off an arrest so that the defense doesn't have this information right away? I mean, if they believe Kyron is not alive, then what's the rush?

    Or have I been reading too many Kate Wilhelm novels?
    That's a possibility, if there is some limited-term situation that needs to be addressed (e.g., they need to do more work on building a case against a second perpetrator and that effort could be hurt by premature release of information to the accomplice). Otherwise, the judge will give the defense as much time as they need to prepare for the case, so, although there is no rush, there's also not much benefit in delaying when the defense gets access to the information.

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  19. #286
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    Quote Originally Posted by desquire View Post
    Once the accused has been arraigned (formally charged in court), the defense is entitled to discovery of all witnesses and evidence that the prosecution intends to introduce. The prosecutor doesn't need to turn over everything they have, just everything that they may use at trial. The exception to this would be any exculpatory evidence that the prosecutor may be aware of even if he, obviously, would not be introducing it at trial.

    Until she's arrested and charged,Terri isn't entitled to know anything. Unless Houze is sleeping with and/or paying off someone within the sheriff's or prosecutor's office who doesn't care much about retaining their employment, it's unlikely that he has any better idea of what the prosecution's case may be than we do. The only inside window he probably has at this point is knowledge of the lines of questioning LE has taken with Terri and the assumptions to be drawn from that.
    Thanks for all your unbiased and professional answers -

    Does discovery also include findings from the FBI? (FBI was involved with this case). How about collected findings from the CARD team?

    Is the FBI obligated to turn over all its evidence? Do they put together a final report for the DA? TIA
    Please think long and hard before calling a child a 'run-a-way':
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    Quote Originally Posted by eyes4crime View Post
    Does discovery also include findings from the FBI? (FBI was involved with this case). How about collected findings from the CARD team?

    Is the FBI obligated to turn over all its evidence? Do they put together a final report for the DA? TIA
    You know, that's a very interesting question and it's not one I have ever thought about or encountered. Clearly, if the FBI developed any evidence that was shared with the sheriff and that the prosecutor might use at trial, that evidence would be available to the defense in discovery. In theory, you would assume that the FBI shared everything it developed - since the whole purpose of the CARD team is to assist state and local police - and the sheriff would include the FBI evidence in the case file it prepares for the DA. But it's possible (and some local cops might say probable) that the FBI might not share everything. If the FBI didn't share, obviously the DA is not obligated to turn over evidence it doesn't even know exists. The interesting question is what happens if the FBI develops evidence favorable to the defendant (often referred to as "Brady information") in a state criminal case but does not share that with the state authorities, does the FBI have any obligation to notify the prosecutor so that it can be provided to the defense? I think the answer has to be yes. Courts have clearly said that exculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it, where an investigating agency does. I'm just not aware of any decisions involving federal investigators and state prosecutors. Maybe my colleagues on this board know of a precedent.

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  22. #288
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    I know in the Casey Anthony case, the defense had many motions over getting info and depos from an FBI lab. The issue was that they wanted the info from the state, and the state kept saying, no, you have to get that info and depos directly from the lab. The judge ruled in favor of the state. So I take that to mean that yes, the info would be available, but the defense would have to request it directly from the FBI. Is that how it would work if the FBI had info the state didn't have as well?

  23. #289
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    Quote Originally Posted by Kimster View Post
    Is it true that the prosecution might even hold off an arrest so that the defense doesn't have this information right away? I mean, if they believe Kyron is not alive, then what's the rush?

    Or have I been reading too many Kate Wilhelm novels?
    Hi, Kimster. I did some research on this about a month ago. The short answer is that there has to be a formal indictment, or suspect must be in jail pending charges, before "speedy trial" due process rights begin.

    But what about, say, a DA who purposefully postpones an inevitable indictment? A defendant's primary protection against before-indictment delay are statutes of limitations.

    The long answer is contained in this Oregon apelate court decision:

    http://www.publications.ojd.state.or.us/A120479.htm

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  25. #290
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    If Terri's older son's adoptive father wanted to relinquish his parental rights and allow the son's bio-dad, who is now raising him, have his parental rights back, how would that legal process flow?

    Would Terri have to consent to this? Would the real-bio-dad have to adopt his own son back again?

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  27. #291
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    Quote Originally Posted by Aedrys View Post
    I know in the Casey Anthony case, the defense had many motions over getting info and depos from an FBI lab. The issue was that they wanted the info from the state, and the state kept saying, no, you have to get that info and depos directly from the lab. The judge ruled in favor of the state. So I take that to mean that yes, the info would be available, but the defense would have to request it directly from the FBI. Is that how it would work if the FBI had info the state didn't have as well?
    Yes, exactly. The only wrinkle is that discovery under the rules of criminal procedure is more restrictive than under the rules of civil procedure. Unlike a civil case where the lawyers can write broad subpoenas requesting just about everything under the sun, the criminal rules discourage fishing expeditions by allowing only specific subpoenas of relevant, admissible, evidentiary information. In other words, you have to have a good idea of what you are going to get before you ask for it.

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  29. #292
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    Quote Originally Posted by desquire View Post
    Yes, exactly. The only wrinkle is that discovery under the rules of criminal procedure is more restrictive than under the rules of civil procedure. Unlike a civil case where the lawyers can write broad subpoenas requesting just about everything under the sun, the criminal rules discourage fishing expeditions by allowing only specific subpoenas of relevant, admissible, evidentiary information. In other words, you have to have a good idea of what you are going to get before you ask for it.
    I just gotta say .... reading the responses here leave me in awe of all of you. How in the world do you all keep this stuff straight? The videos posted numerous times ('don't talk to the police') speak of tens of thousands of statutes and regulations. Then you add in all the rules and procedures and protocols ... I don't know how y'all do it. Growing up, I used to think it would be cool to become a lawyer. But now I know better. Frankly, I'd be overwhelmed and terrified lol.

    Holy cow.

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  31. #293
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    Quote Originally Posted by OneLove View Post
    If Terri's older son's adoptive father wanted to relinquish his parental rights and allow the son's bio-dad, who is now raising him, have his parental rights back, how would that legal process flow?

    Would Terri have to consent to this? Would the real-bio-dad have to adopt his own son back again?
    It would be handled like any adoption, IMO. The adoptive father would be treated as a "real" father, and the "bio-dad" would have to adopt his son back. I'm not familiar with the state laws, but I suspect Terri's consent (or a court order ruling it unnecessary for some reason) would be required.

    "It would seem to me that June 16, 2008 was the last time that the victim was viewed by her grandparents. It became quite evident that from the OS of the Defense that the 16th was a date of great importance and that a so called time line of activities dealing with CA, LA, GA and ICA on the 16th and what, if any, activities took place on the 15th, 16th and 17th of June on 24 hour cycles would have been, at least, of a minimal requirement of review. I take it at some point you had a computer expert look at that data?" HHJP, 6/21/11
    http://www.websleuths.com/forums/sho...139910&page=94

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  33. #294
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    If the GJ suspends itself, does this mean that not enough relevant, admissible evidentiary information was presented for an indictment? Will it resume again, with more information, or does the prosecution have to start all over again?

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    Quote Originally Posted by Jo in Calif View Post
    If the GJ suspends itself, does this mean that not enough relevant, admissible evidentiary information was presented for an indictment? Will it resume again, with more information, or does the prosecution have to start all over again?
    I'm not sure what you mean by "suspends itself." In Multnomah County, grand juries are empaneled for a one month term and during that term, the DA basically controls their work flow. If the DA already had all the evidence he needed to try someone, we'd have an indictment. Instead, it's safe to assume that they are still trying to build a case and they are bringing whatever witnesses they have before the grand jury to get the testimony on the record before memories fade or stories change. That process could continue on and off indefinitely. If and when the evidence adds up to a triable case, the DA will present the necessary evidence and transcripts (which will likely be only a small fraction of the testimony actually taken before previous grand juries) to whatever grand jury is seated at the time and obtain an indictment. That could be a month from now, a year, 5 years, or never.

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  36. #296
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    It was stated that a GJ is always required in Oregon to get an indictment? But it seems that there have been cases where an arrest is made and charges brought right away-what is the difference? I'm thinking, in part, of the couple charged with killing the young man's parents recently-I believe they were charged at once?
    Just my opinion, of course.

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    Quote Originally Posted by cluciano63 View Post
    It was stated that a GJ is always required in Oregon to get an indictment? But it seems that there have been cases where an arrest is made and charges brought right away-what is the difference? I'm thinking, in part, of the couple charged with killing the young man's parents recently-I believe they were charged at once?
    I'm not familiar with the case you mention. Was it in Oregon? Some other states allow for an alternative to grand jury indictment where the prosecutor simply files what is referred to as an "information" or "accusatory document" with the court setting out in particularity the facts supporting the charge that the prosecutor intends to prove at trial. Or if the accused in that case were juveniles who were not to be tried as adults there would be no grand jury indictment.

    Another possibility is that there actually was a grand jury indictment in that case. In most cases (particularly where there are eyewitnesses, a confession or physical evidence), a DA can obtain an indictment from a sitting grand jury in well under an hour.

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  39. #298
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    http://www.portlandonline.com/oni/in...=41382&c=39641 (Organizatinal chart of court)

    As always, thanks in advance...

    Rod Underhill is the Chief Deputy DA and seems to be running this case. When I look up his profile it says Rod is -

    as of 01/15/09 he is a veteran domestic violence prosecutor with over 1400 DV prosecutions.

    He is in three divisions:

    1. Family violence
    2. Family justice
    3. Misdemeanor court


    Seems unusual to me that a DA with Rod's expertice in family justice/violence would be in charge of a high profile criminal missing child case? His experience is with crime, but within the family. Am I completely off base here?

    Are DA's usually switched between the different courts to direct cases? Or does this indicate a determination was made that Kyron is a victim of family violence?

    Is there usually one DA managing and directing a case - working with LE, obtaining search warrants, deciding what information goes to family court for the RO, MFH, custody? Or are there several DA's working together on a case. Sorry for the many questions. TIA
    Please think long and hard before calling a child a 'run-a-way':
    You might be giving a 'perk' to the 'perp'.


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  41. #299
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    Is it possible that there is a sealed indictment on this case and that LE just hasn't acted on it?

    I ask this because of another case the Haleigh Cummings case where there is speculation that LE may have sealed indictment(s) and have not actually brought the charges yet. Speculation that instead they are working leverage on those in prison to obtain more evidence or even some sort of confession.

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  43. #300
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    Piggybacking on Grandma J's question, could the news that the GJ has suspended itself mean that LE got a sealed indictment yesterday?

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