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

[desquire]

If TH is not arrested/charged with the MFH but is charged for Kyron's disappearance, if the DA wanted can they still used the MFH as a pattern?

If TH goes to trial can the DA reference the MFH plot if she isn't arrested/convicted/on trial for it, at any point during a trial over Kyron's disappearance?

If TH is not arrested/charged/convicted with the MFH, and that is what was partly used in the restraining order can she contest the restraining order/make it void/counter claim it because of that?

Thank you for all your help!

Good questions.
First, evidence of prior bad acts is not admissible if it's merely offered to show that the person is of bad character and has a history of doing bad things. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, an element of the crime, etc. I could see factual scenarios where the MFH plot could be deemed relevant and admissible to prove motive or intent but there are definitely problems with that. First, although, she doersn't have to be arrested/charged/convicted of it, the DA would have to prove that the murder solicitation happened and that TH was culpable - you'd end up with a mini bench trial within a trial. So far it doesn't sound like they have solid evidence on the MFH. Second, this is an area that provides defendants with good ammunition on appeal so, if I were the DA and I had direct evidence that put Kyron's disappearnce at TH's feet, I would avoid the MFH if at all possible.

The RO was based on attempted or threatened bodily harm. The burden of proof necessary to obtain the RO is lower than that required to convict for a crime (preponderance of the evidence vs. beyond a reasonable doubt). So KH can still use the MFH allegation to uphold the RO even if TH is never charged - and even if she were charged and acquitted. TH would have to rebut the substance of the allegations, she couldn't merely say "look, I was never arrested/charged/convicted."

 

[JustToSeeYouSmile]

A question about OR law involving obstruction. Any thoughts appreciated!

A hypothetical situation:
If a home/land owner has property that becomes the focus of a criminal investigation (not the owner or residents, but the land itself) and as a result is altered, damaged, rendered temporarily unsuable- that sort of thing... and the reasons for the land becoming the focus of the criminal investigation and therefore its' disturbance are tips received by LE from a person or persons who are later said to be obstructing justice or the course of an investigation by say, leading the investigation in the wrong direction.... and if those tips are given under sworn testimony-
Can the home/land owner then sue this person for damages? Hope that makes sense.
TIA.....

 

[AZlawyer]

A question about OR law involving obstruction. Any thoughts appreciated!

A hypothetical situation:
If a home/land owner has property that becomes the focus of a criminal investigation (not the owner or residents, but the land itself) and as a result is altered, damaged, rendered temporarily unsuable- that sort of thing... and the reasons for the land becoming the focus of the criminal investigation and therefore its' disturbance are tips received by LE from a person or persons who are later said to be obstructing justice or the course of an investigation by say, leading the investigation in the wrong direction.... and if those tips are given under sworn testimony-
Can the home/land owner then sue this person for damages? Hope that makes sense.
TIA.....

I'm not familiar with anything specific about Oregon law, but it sounds like a good claim to me!

 

[AZlawyer]

Desquire, thank you so much for being here!! This thread is too active for me to keep up sometimes.

 

[JustToSeeYouSmile]

I'm not familiar with anything specific about Oregon law, but it sounds like a good claim to me!

Thank you, Az!

 

[Calliope]

Oh! Sorry for taking the easy out on that question. You always do your homework thoroughly, so I should have known there was more to it. I think the DA might be able to use such juror misconduct as a reason for getting the court to give him a second bite at the apple with a new grand jury if the "bad" jury returns a no-bill. If the "bad" jury returns an indictment, however, the DA would still be free to prosecute on it. Also the improper disclosure of grand jury testimony would not affect the DA's ability have that witness/testimony admitted at trial. Finally, maybe some of the other lawyers here feel differently, but it's hard for me to picture a realistic scenario under which the improper disclosure of grand jury testimony would form the basis of an appeal of the trial unless it ties with a subsequent error of the trial judge (e.g., the improperly disclosed testimony is so outrageous that it prejudices the local jury pool and the trial judge refuses to take any action to remedy that situation).

Oh goodness, no need to be sorry ! I wasn't clear in my post (what?? you're not a mind-reader??? outrageous!!!).

Thanks so much for taking the time to answer

 

[palladore]

Is there any upside or downside to LE in naming someone a "Person of Interest?"

Is there any liability in treating persons as "Persons of Interest" without naming them as such? (For example, LE distributing a flier with pictures of Terri and DeDe asking if anyone had seen them in the vicinity of Kyron's school on June 4.)

Thanks

 

[eyes4crime]

If Kaine and Desiree signed a release of Kyron's medical records for review by LE and/or themselves, could the GJ request the physician/records for review at the hearing? TIA :blowkiss: Thanks so much for your time

 

[Calliope]

Now here are some REALLY stupid questions:

Is there anything that compels the DA to use grand jury testimony? Can he pick and choose what he feels best presents his case and ignore testimony that might show favor to the defense? When it comes to trial, is the DA required to give the defense the testimony of people who appeared before the grand jury, even if it hurts the State's case? Discovery? Is that the term? If the defense is entitled to know what evidence the State has against their client, wouldn't grand jury testimony apply? Am I completely off base? If so, I blame My Cousin Vinny

And along those lines, what happens if a witness he believes is going to shore up his case ends up telling the grand jury stuff that weakens it? Either by altering or adding to what they told LE OR through additional information revealed when questioned by the jurors?

Is the DA allowed to step in and stop the witness from saying anything else? Toss 'em out on their ear, so to speak?

I guess I'm not really clear on who runs the show. Is it the DA or the grand jury? Why is the sky blue?

 

[desquire]

Desquire, thank you so much for being here!! This thread is too active for me to keep up sometimes.

Happy to contribute. I was feeling a little guilty just lurking while you did all the work.

 

[desquire]

Is there any upside or downside to LE in naming someone a "Person of Interest?"

Is there any liability in treating persons as "Persons of Interest" without naming them as such? (For example, LE distributing a flier with pictures of Terri and DeDe asking if anyone had seen them in the vicinity of Kyron's school on June 4.)

Thanks

In the federal system, there specific guidelines and procedural implications involved when designating an individual as the "subject" or "target" of an investigation or grand jury proceeding; I'm not aware that Oregon has anything analogous. Naming someone as a "Person of Interest" has absolutely no legal significance in any system. It's just a phrase used with the press.

The only upside of naming someone a "Person of Interest" would be in furthering PR goals or some investigative strategy to turn up the heat on the individual. The downside would be the real impact it has on the life of the person named. The most famous examples are Richard Jewell and Steven Hatfill, who were named by the FBI as "persons of interest" in the 1996 Olympic Park bombing and the 2002 anthrax mailings, respectively, but never officially made it to the level of subjects or targets. Nevertheless, their reputations and lives were ruined and they ended up getting multi-million dollar settlements from the government. (MOVING INTO EDITORIAL TERRITORY HERE) Thus, the use of the term "person of interest" is controversial and viewed as a weaselish move by LE - if they have a solid reasonable basis to suspect an individual, they should be willing to say that, otherwise they should keep quiet. What LE is doing in this case is even a step further - using KH and DY to point the finger so that LE can plausibly deny ever having defamed TH.

 

[desquire]

Now here are some REALLY stupid questions:

Is there anything that compels the DA to use grand jury testimony? Can he pick and choose what he feels best presents his case and ignore testimony that might show favor to the defense? When it comes to trial, is the DA required to give the defense the testimony of people who appeared before the grand jury, even if it hurts the State's case? Discovery? Is that the term? If the defense is entitled to know what evidence the State has against their client, wouldn't grand jury testimony apply? Am I completely off base? If so, I blame My Cousin Vinny

And along those lines, what happens if a witness he believes is going to shore up his case ends up telling the grand jury stuff that weakens it? Either by altering or adding to what they told LE OR through additional information revealed when questioned by the jurors?

Is the DA allowed to step in and stop the witness from saying anything else? Toss 'em out on their ear, so to speak?

I guess I'm not really clear on who runs the show. Is it the DA or the grand jury? Why is the sky blue?

In a trial, the DA could use all, some or none of the testimony put before the grand jury. Remember, there is no defence lawyer involved in the grand jury proceeding to object and no judge to rule on admissibility, so all of the testimony put before the grand jury may not even be admissible at trial. Similarly, there is no defense to rebut or impeach the grand jury testimony, so testimony/evidence that worked with a grand jury might be too shakey for the DA to want to use at trial. In a criminal trial, the defence must have advance notice of all evidence that the prosecution intends to admit and the prosecution has an absolute duty to provide the defence with any exculpatory evidence that it is aware of. Now, prosecutors often operate in murky territory between "the concept of due process requires me to disclose any evidence that is favorable to the defense" and "I'm only required to disclose materially favorable evidence when there is a reasonable probability that the not doing so would change the result of the trial."

In a grand jury, the DA definitely runs the show. You've probably heard that the DA exercises so much influence over a grand jury that "they'd indict a ham sandwich if he wanted them to." There's truth to that.

 

[desquire]

If Kaine and Desiree signed a release of Kyron's medical records for review by LE and/or themselves, could the GJ request the physician/records for review at the hearing? TIA :blowkiss: Thanks so much for your time

Absolutely. Nothing would prevent the disclosure of medical records pursuant to a subpoena, even without the parents' consent.

 

[Calliope]

In a trial, the DA could use all, some or none of the testimony put before the grand jury. Remember, there is no defence lawyer involved in the grand jury proceeding to object and no judge to rule on admissibility, so all of the testimony put before the grand jury may not even be admissible at trial. Similarly, there is no defense to rebut or impeach the grand jury testimony, so testimony/evidence that worked with a grand jury might be too shakey for the DA to want to use at trial. In a criminal trial, the defence must have advance notice of all evidence that the prosecution intends to admit and the prosecution has an absolute duty to provide the defence with any exculpatory evidence that it is aware of. Now, prosecutors often operate in murky territory between "the concept of due process requires me to disclose any evidence that is favorable to the defense" and "I'm only required to disclose materially favorable evidence when there is a reasonable probability that the not doing so would change the result of the trial."

In a grand jury, the DA definitely runs the show. You've probably heard that the DA exercises so much influence over a grand jury that "they'd indict a ham sandwich if he wanted them to." There's truth to that.

Ah, I did not know that! I thought it was just the evidence they planned to use against the defendant that had to be revealed.

Thanks

 

[Calliope]

If polygraph results are inadmissible in trial, are they allowed to be presented to the grand jury?

I guess I could take it a bit further and ask if any evidence that would not be allowed at trial could still be used to obtain an indictment?

Are there any rules the DA must follow as far as what type of evidence he can present to the grand jury?

 

[AZlawyer]

If polygraph results are inadmissible in trial, are they allowed to be presented to the grand jury?

I guess I could take it a bit further and ask if any evidence that would not be allowed at trial could still be used to obtain an indictment?

Are there any rules the DA must follow as far as what type of evidence he can present to the grand jury?

The evidentiary rules are looser at the grand jury stage. A lot of hearsay, for example, might come in. But not polygraphs, IMO, because polygraph results just don't prove much. They might give LE a reason to want to check out a person's story, but of what relevance is it to the grand jury why LE checked out TH's story? The question is what did they find out, not why did they go looking?

 

[cypress]

Is it common for a Grand Jury to request evidence? Would they pursue evidence that would offer another explanation for the actions of the person the prosecutor is seeking to indict?

 

[CASH]

This is probably a silly question but.....

If by chance TH had Kyron stashed and if she told her attorney about it, is he bound by client confidentiality to keep that a secret?

I know that if TH murdered Kyron and told her attorney that she did it, he could not reveal that. But what about in this case where the body would still be missing? Can a lawyer know where his body is and not reveal it?

 

[SmoothOperator]

This is probably a silly question but.....

If by chance TH had Kyron stashed and if she told her attorney about it, is he bound by client confidentiality to keep that a secret?

I know that if TH murdered Kyron and told her attorney that she did it, he could not reveal that. But what about in this case where the body would still be missing? Can a lawyer know where his body is and not reveal it?

HI CASH.

I AM NOT A LAWYER but did ask this exact question of AZLawyer a few days back(as did Ruby Red)

Here is AZ's reply which will also answer your question

Originally Posted By AZLawyer
No, the attorney could not reveal his client's confession or information about where the body is, and certainly would not have to withdraw from the representation. The vast majority of criminal defendants are, in fact, guilty, so a criminal defense lawyer who insisted on representing only innocent people would get hungry pretty fast. My understanding is that defense attorneys discourage their clients from telling them such information, however, and focus on ensuring procedual fairness and getting the lowest possible sentence for a client who is obviously guilty.

This is why I could never be a defense attorney. The ethics are too complex for me lol. I prefer to sleep at night.

Hope that helps

 

[AZlawyer]

Is it common for a Grand Jury to request evidence? Would they pursue evidence that would offer another explanation for the actions of the person the prosecutor is seeking to indict?

I don't know if it's common or not, but it is permitted. I suppose it would depend on the group personality of the grand jury whether they would actively seek an alternative explanation for the accused's behavior.