Questions for our VERIFIED LAWYERS*~*~*NO DISCUSSIONS*~*~*

Anything she communicates in any fashion can be used against her. Of course, the prosecution would have to prove that it was Terri who made the statement. It's very difficult to conclusively attribute a web posting to any individual but it's not impossible.

Ah thanks for your answers. I was trying to decipher this to see if postings made on the interwebs would be excluded from this http://www.law.cornell.edu/rules/fre/rules.htm#Rule801 , but having no luck at all lol.
 
Not necessarily. If Terri never contests the RO (and at this point you have to figure that she doesn't care about being restrained from approaching Kaine and she wouldn't want to live in the house) the judge's decuision in the divorce proceeding regarding division of custody of the baby would supercede the RO. So it's unlikely there will be any further hearings or rulings regarding the RO.
Thanks. That's kinda what I was getting at. Sorry I wasn't clear.

If Terri stipulates to giving Kaine sole custody of the baby and waives all visitation and other rights with respect to the baby, she most likely would not need to testify about anything other than finances and employability. If she wants to have any interaction with the baby going forward she will have to answer Kaine's accusations. If she takes the 5th, the judge can draw an adverse inference and would most likely rule against her on custody. If she refuses to testify at all, she not only gets the same result on custody but would also face contempt charges.
She'd face contempt if she takes the 5th? I know Houze was present at the last hearing; do you see him being there in the future to protect her interests as far as a possible criminal case? Would the judge in the divorce case allow Houze to 'object' or otherwise participate if he thinks it's headed down that path, or would it be a matter of Houze advising her divorce attorney?

She can't take the 5th with respect to a question if her answer would not incriminate her or lead to incriminating evidence. So if she's innocent, all she can do is deny. If Kaine has any evidence or testimony to rebut that denial, you'd expect him to present it. So you would end up with a mini trial on criminal accusations in a civil court the rules of civil prodcedure and lower evidentiary standards.
I'd think that most anything she says (like you post above) can be used to incriminate her ... or help convict her, thus she'd be able to take the 5th. But even so, that really bothers me; I guess that goes to my follow-up question. Are there any precedents that you're aware of? I can't imagine a defense attorney allowing this to happen.

The judge will have to weigh the prejudice to Terri in proceeding under the current circumstances against the prejudice to Kaine in delaying. The longer the Kyron investigation drags out with no visible progress towards resolution, the harder it will be to maintain an abatement.
I agree. Again, do you see Houze becoming involved in this and arguing for her interests regarding probable (IMO) criminal trial? I'm really confused at how the lines separating criminal and civil are so blurred in this case and how the judge(s) will manage to keep them separate, if that's even possible.
 
Can a proviso be attached to a TPR (voluntary or otherwise) making provisions for ongoing contact between the biological parent and child .....
 
Anything she communicates in any fashion can be used against her. Of course, the prosecution would have to prove that it was Terri who made the statement. It's very difficult to conclusively attribute a web posting to any individual but it's not impossible.

Should be fairly easy if she's using her parent's computer OR one that is in the home and her parents testify that it WAS NOT them posting. They can track the IP address back to her & I'm sure that even if she got a new computer from a 'friend' that they already know about it...I'm sure she's being watched in every way manageable. If I were her parent and I suspected her, I'd be frightened for my own safety and maybe give in to the request to give her a computer. If I suspected that she was innocent, I may do the same... figuring she needed SOME outlet since she can't go out in public. Either way, if Terri's parents have given her access to their computer or know that she is using one are they going to be held responsible in some way since Terri is not obeying her lawyer's orders? Or is Terri SOLELY responsible for her own actions on this one?? Even a smartphone would be accessable and probably even MORE traceable!!
 
I would also assume that it's just as hard to take what a friend or her mom says and attribute it to Terri, though one could reasonably assume a conversation between a friend or her mom did take place. Many people say "Carol said this, or Finster said this, and it contradicts what Terri says" and holds Terri's own words as lies ...... in a court, which would weigh more .... is the word favorably? for Terri's case?

I'm not sure I understand what you are getting at.

If Terri testifies or is on record as saying X. The prosecutor could impeach Terri's testimony by putting on a witness, such as Terri's mom, to testify "In our conversation, Terri didn't say X, she said Y." The judge or jury would need to decide who was more credible under the circumstances. The rules of evidence would not, however, permit the prosecutor to put a third-party who did not hear the original conversation on the stand to testify that "Terri's mom told me Terri did not say X, she said Y" - that's inadmissible hearsay.

Was I even close?
 
I'm not sure I understand what you are getting at.

If Terri testifies or is on record as saying X. The prosecutor could impeach Terri's testimony by putting on a witness, such as Terri's mom, to testify "In our conversation, Terri didn't say X, she said Y." The judge or jury would need to decide who was more credible under the circumstances. The rules of evidence would not, however, permit the prosecutor to put a third-party who did not hear the original conversation on the stand to testify that "Terri's mom told me Terri did not say X, she said Y" - that's inadmissible hearsay.

Was I even close?

bbm

Does that mean if Terri doesn't testify or go on record as saying X, another could not testify as you describe?
 
Can a proviso be attached to a TPR (voluntary or otherwise) making provisions for ongoing contact between the biological parent and child .....

The judge can amend the restraining order at any time to change the terms. Given the uncontested abuse claim, however, it would be pretty unusual to grant anything more than supervised visitation.
 
bbm

Does that mean if Terri doesn't testify or go on record as saying X, another could not testify as you describe?

I'm afraid of getting swallowed up in hypotheticals here. If custody of baby K is the issue and Kaine wants to show that Terri is unfit to have custody because she (a) tried to have him killed or (b) was involved in the disappeasrance of Kyron, Kaine could introduce whatever evidence or testimony he has to support those claims regardless of whether Terri testifies or not.
 
As a follow-up to my above post, are you aware of any cases where a criminal investigation or trial was so entwined with an ongoing civil case? Where the civil matter had such potential to impact the criminal prosecution or defense?

It happens fairly frequently, because a very large number of criminal acts can also result in civil liability and/or affect one's rights in a divorce, probate, etc. If a defendant does not want to testify in a civil case due to potential criminal liability, he is free to refuse to testify. However, he has to accept the fact that the judge in the civil case will assume he had nothing helpful to say for himself and likely rule against him.

Examples that come to mind from my practice are:

(1) Three defendants in a civil case for theft of their employer's property, who refused to testify due to an ongoing criminal investigation for the same acts. The judge presumed that the answers they refused to give would have been admissions, and granted judgment in favor of the employer.

(2) An heir in a probate case was accused of having killed the decedent, which would mean he could not receive his inheritance. He refused to answer any questions about the alleged murder, and the judge disinherited him.
 
She'd face contempt if she takes the 5th?
No. Sorry if I was unclear. She'd face contempt if she simply refused to testify without invoking her 5th Amend. rights. (Remember the 5th Amend. doesn't provide a blanked right to avoid testifying, it only permits you to refuse to answer specific questions when your answer may be incriminatory.)

I know Houze was present at the last hearing; do you see him being there in the future to protect her interests as far as a possible criminal case?
Absolutely

Would the judge in the divorce case allow Houze to 'object' or otherwise participate if he thinks it's headed down that path, or would it be a matter of Houze advising her divorce attorney? [SNIPPED]Again, do you see Houze becoming involved in this and arguing for her interests regarding probable (IMO) criminal trial?
I expect Bunch would maintain the lead and Houze would just advise, since it seems that's the way they have operated so far. But there's no reason that Houze couldn't take a more active role in the proceedings.

help[/i] convict her, thus she'd be able to take the 5th. But even so, that really bothers me; I guess that goes to my follow-up question. Are there any precedents that you're aware of?
Concurrent criminal and civil cases arising out of the same factual situation happen regularly. I'm not aware of any quite like this but I'd be shocked if no precedent existed. Maybe one of the other lawyers here have experience with something similar.
 
It happens fairly frequently, because a very large number of criminal acts can also result in civil liability and/or affect one's rights in a divorce, probate, etc. If a defendant does not want to testify in a civil case due to potential criminal liability, he is free to refuse to testify. However, he has to accept the fact that the judge in the civil case will assume he had nothing helpful to say for himself and likely rule against him.

Examples that come to mind from my practice are:

(1) Three defendants in a civil case for theft of their employer's property, who refused to testify due to an ongoing criminal investigation for the same acts. The judge presumed that the answers they refused to give would have been admissions, and granted judgment in favor of the employer.

(2) An heir in a probate case was accused of having killed the decedent, which would mean he could not receive his inheritance. He refused to answer any questions about the alleged murder, and the judge disinherited him.

Thanks !

Do you know if those civil cases impacted the prosecution or defense of their criminal trials?
 
The judge can amend the restraining order at any time to change the terms. Given the uncontested abuse claim, however, it would be pretty unusual to grant anything more than supervised visitation.

I ask this question in reference to Desiree and her relationship with Kyron. Is it possible for a biological parent to consent to a revocation, declining to contest full custody and guardianship being awarded to the other biological parent, WITH the proviso that the Court stipulate to some sort of ongoing contact...

My only frame of reference for this is the Family Relations Act (Canada) wherein
upon revocation, any subsequent custodial parent - be that the Director, the other biological parent, or an adoptive parent - is under no obligation to honor any sort of promises for ongoing contact.
 
Thanks !

Do you know if those civil cases impacted the prosecution or defense of their criminal trials?

No, because a civil finding of liability is only a finding by a preponderance of the evidence (or sometimes "clear and convincing" evidence). Civil findings therefore hold no water in a criminal case.
 
I ask this question in reference to Desiree and her relationship with Kyron. Is it possible for a biological parent to consent to a revocation, declining to contest full custody and guardianship being awarded to the other biological parent, WITH the proviso that the Court stipulate to some sort of ongoing contact...

My only frame of reference for this is the Family Relations Act (Canada) wherein
upon revocation, any subsequent custodial parent - be that the Director, the other biological parent, or an adoptive parent - is under no obligation to honor any sort of promises for ongoing contact.

What do you mean by revocation? Relinquishment of parental rights? In that case, I would say that any stipulation for ongoing contact would have to be by private agreement between the parents. But did Desiree actually relinquish her parental rights? Seems unlikely.
 
No, because a civil finding of liability is only a finding by a preponderance of the evidence (or sometimes "clear and convincing" evidence). Civil findings therefore hold no water in a criminal case.

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?
 
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. ;)
 
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?
 
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.
 
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?
 
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?
 

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