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

Can Terri legally plead the 5th in the divorce hearing before being charged with an actual crime?

For example: If I witness an auto accident and am called to testify, I can't plead the 5th can I?

Sure you can. You can "plead the 5th" in any context at any time. The only requirement is that you have some basis for believing that your testimony may tend to incriminate you. A common misconception is that this means you actually have to be guilty of some crime but the "incriminate" in this context simply means to make it more likely that you would be prosecuted for a crime. The Supreme Court has affirmed that the 5th Amendment's privilege against self-incrimination exists, in part, “to protect innocent men … who otherwise might be ensnared by ambiguous circumstances.” Accordingly, it would defeat the purpose of the protection if you could only use it after you had been charged and put on trial.

To build on your example, let's say you witnessed that car accident because you were out taking a late night walk - something you ate earlier was keeping you awake. Coincidentally, a house down the block was robbed that night and the police are looking for a perpetrator based on a description that could easily fit you. You had nothing to do with the robbery but you don't have a verifiable alibi for the relevant time period either. When called to testify as a witness in civil litigation regarding the car accident, you would be entitled to plead the 5th because going on record to declare that you were in that location at that time might make it more likely that you could be prosecuted for the robbery.
 
I'm a bit confused about reciprocal discovery. No charges have been filed, and all we have right now are civil actions. LE has given Kaine info. LE has given Terri/her attorneys the texts, but what about other info? Is there no obligation for LE/the state to give the same info to Terri's attorneys? Were they obligated to give the texts to her attorneys? Or were they just being nice?

TIA
 
I'm a bit confused about reciprocal discovery. No charges have been filed, and all we have right now are civil actions. LE has given Kaine info. LE has given Terri/her attorneys the texts, but what about other info? Is there no obligation for LE/the state to give the same info to Terri's attorneys? Were they obligated to give the texts to her attorneys? Or were they just being nice?

TIA

This is a really interesting topic.
We may never find out but I'd love to know what the rationale was for divulging the texts to any third-party. Hopefully they can point to some legitimate law enforcement pupose for showing those texts to Kaine, otherwise the release of that information would appear to violate the ethical code of most police agencies that I am aware of. There certainly doesn't appear to be any affirmative obligation that LE was under to divulge the information to either party. At least they gave the transcript to both parties so that they can retain some argument of acting impartially but whenever I think about this I can't help but think about that September press conference where Staton alluded to issues that would be addressed with other agencies after the case was behind them (i.e., someone screwed up).

According to Kaine, he has received other information implicating Terri from LE, at least verbally. LE has no obligation to give the same information to Terri. She could subpoena the Sherriff's department for that information but it's safe to assume that the Sherriff would move to quash any such subpoena, invoking the common law "law enforcement privilege" and claiming that any release of the requested information would jeopardize an ongoing criminal investigation. Of course, this may not really put Terri at a disadvantage because one would assume that such information/testimony would be equally denied to Kaine and Kaine's own account of what he was told is inadmissible hearsay that doesn't appear to fit into any of the established exceptions. If the police actually gave documents or reports to Kaine, those might be admissible under a hearsay exception but the availability of such evidence would also weigh in Terri's favor in the judge's decision whether or not to uphold the law enforcement privilege.

I probably just made your confusion worse, didn't I?
 
Could LE use the "ongoing investigation" as reason not to give Terri the same information it already released to Kaine, if they themselves did not honor the "ongoing investigation" when releasing that to Kaine? Yeah, I'm down with the whole "he needed to be warned about the MFH" and all......but still, releasing that information once......doesn't that open up a door they didn't want opened?
 
In Kaine's filing today, he's asking the court to consider Terri's silence as guilt (in essence).

But I thought the court was not permitted to consider a person's silence as guilt?

Help.

Here's today's filing:
http://images.bimedia.net/documents/kaine+horman+court+1112.pdf

ETA: The short form:

In the papers filed Friday, Kaine asked the court to consider Terri's "silence as an admission regarding Father's factual allegations."

Kyron Horman was 7 when he disappeared from Skyline elementary on June 4. The largest missing person search in Oregon's history has so far turned up no suspects.

In court papers, Kaine Horman characterized Terri as an 'emotionally unstable' and 'unfit' mother -- claims she refuted in her initial plea for visitation.

snip

"The fact that Mother's own attorney has told the Court that Mother intends to plead the Fifth speaks volumes about what mother has to hide," attorneys said.

"One can only infer that Mother will not speak because her testimony will lead to criminal liability for Kyron's disappearance."

Kaine and his attorneys said until Terri denies the accusations, no other conclusion can be made.

http://www.kgw.com/news/local/Kaine-Horman-Terris-silence--107562544-kyron-missing-portland.html
 
To further clarify my question, if Terri remains silent in regards to Kaine's allegations regarding criminal matters, for example, his allegations of the MFH and Kyron's disappearance, can her silence be deemed by the court to be an admission of guilty involvement in the MFH or Kyron's disappearance?

I understand that in a civil matter, silence can be deemed by the court as an admission, such as in the RO, which she didn't contest, so that now the court considers her to be a domestic abuser.

I am specifically curious about her silence in regards to the criminal matters, and whether the court can consider her guilty in the MFH and/or Kyron's disappearance, if she remains regarding them silent in the civil matter.

Thank you again!
 
To further clarify my question, if Terri remains silent in regards to Kaine's allegations regarding criminal matters, for example, his allegations of the MFH and Kyron's disappearance, can her silence be deemed by the court to be an admission of guilty involvement in the MFH or Kyron's disappearance?

I understand that in a civil matter, silence can be deemed by the court as an admission, such as in the RO, which she didn't contest, so that now the court considers her to be a domestic abuser.

I am specifically curious about her silence in regards to the criminal matters, and whether the court can consider her guilty in the MFH and/or Kyron's disappearance, if she remains regarding them silent in the civil matter.

Thank you again!

Taking the 5th in a civil matter can be considered an admission as to whatever questions you wouldn't answer. Taking the 5th in a criminal matter cannot be considered an admission.

But an "admission" by silence in a civil matter would not be admissible evidence against the person in a related criminal matter.
 
Taking the 5th in a civil matter can be considered an admission as to whatever questions you wouldn't answer. Taking the 5th in a criminal matter cannot be considered an admission.

But an "admission" by silence in a civil matter would not be admissible evidence against the person in a related criminal matter.

Thanks, AZ. It was the admissibility I was missing. :)

:blowkiss:
 
I don't know if this has been asked, but could Rackner argue that the divorce case is separate from the criminal investigation? Seems like Houze and Bunch want to get something for nothing because of the ongoing criminal investigation. I'm not saying it should be ignored, but it seems like if you take that away, there's no reason for her to not testify anymore. I guess I'm just curious if there's any legal way to take that card away from Terri and her lawyers.
 
I don't know if this has been asked, but could Rackner argue that the divorce case is separate from the criminal investigation? Seems like Houze and Bunch want to get something for nothing because of the ongoing criminal investigation. I'm not saying it should be ignored, but it seems like if you take that away, there's no reason for her to not testify anymore. I guess I'm just curious if there's any legal way to take that card away from Terri and her lawyers.

The divorce case is separate from the criminal investigation, and both lawyers and the judge are completely aware of that fact. TH has no "right" to a stay of the divorce case until the criminal case is resolved (or even started!), but the judge in the divorce case is trying to make sure her 5th Amendment rights in the criminal case are not watered down by forcing her to testify in the divorce case first.
 
Case delayed until Jan. 6th per the judge:

http://www.kptv.com/news/25902944/detail.html

"The judge says it is in Kaine Horman’s best interests to move forward now, but it does not benefit the ultimate goal of finding Kyron. He says handling the divorce proceedings now carries the risk of compromising the criminal investigation."

I'm moving the article snip and url from another thread to seek "help" for these questions, if possible. (No rush...I no everyone is busy, busy right now!)

Does this relate to TH's withdrawn motion? What does "NOW" mean? Right at this moment or until the criminal case results in someone's arrest or ???

What are Kaine's legal obligations concerning TH? Once they are legally separated,he's no longer responsible for her debts, etc., correct?

I guess this should be on the "Questons for Attorney" thread. I put it over there also.
 
Does the phrase "Certificate of an Address Search" on a court docket mean a search warrant?
 
This may be law 101, but is it possible for Houze to be talking to LE without anyone else knowing? For instance, could Houze be working with LE to refute some things that are seen as common knowledge (and damning) at his point? Would it be in the defense atty's interest to avoid a trial by refuting evidence or providing a tighter alibi, or suggesting a different suspect, while still keeping TMH from speaking directly to LE?

I assume Houze could be talking to LE about a plea deal without anyone else being privy. Could he stay under the radar if he was trying to prove her innocence as well? Does the fact that she hasn't been charged with anything make a difference? Would Houze bother to speak on her behalf to LE before that happened?

I'm just very bothered that TMH appears to be making no effort whatsoever to defend herself, still. I wonder if there are defensive moves that we don't know about.
 
I'm moving the article snip and url from another thread to seek "help" for these questions, if possible. (No rush...I no everyone is busy, busy right now!)

Originally Posted by SurfieTX View Post
Case delayed until Jan. 6th per the judge:

http://www.kptv.com/news/25902944/detail.html

"The judge says it is in Kaine Horman’s best interests to move forward now, but it does not benefit the ultimate goal of finding Kyron. He says handling the divorce proceedings now carries the risk of compromising the criminal investigation."


Does this relate to TH's withdrawn motion? What does "NOW" mean? Right at this moment or until the criminal case results in someone's arrest or ???

What are Kaine's legal obligations concerning TH? Once they are legally separated,he's no longer responsible for her debts, etc., correct?

I guess this should be on the "Questons for Attorney" thread. I put it over there also.

I'm not keeping up on this case enough to know what "TH's withdrawn motion" was. IIRC, she did a motion to delay the case, and this is the order granting that motion, but AFAIK that motion was not withdrawn--was it?

As far as "now," I suppose the judge means "from now until it shakes out whether TH is really a suspect and in legal trouble or not." As January 6 approaches, I would expect TH to ask for another delay if nothing has changed.

I'm not sure about Kaine's legal obligations. I am neither a divorce attorney nor an Oregon attorney lol. But I believe in AZ you are not responsible for the spouse's debts incurred after the divorce petition is filed.

Does the phrase "Certificate of an Address Search" on a court docket mean a search warrant?

Which court docket does this appear on? It sounds more like a certificate you would file to explain why you couldn't serve something in person but had to serve by mail/posting.

This may be law 101, but is it possible for Houze to be talking to LE without anyone else knowing? For instance, could Houze be working with LE to refute some things that are seen as common knowledge (and damning) at his point? Would it be in the defense atty's interest to avoid a trial by refuting evidence or providing a tighter alibi, or suggesting a different suspect, while still keeping TMH from speaking directly to LE?

I assume Houze could be talking to LE about a plea deal without anyone else being privy. Could he stay under the radar if he was trying to prove her innocence as well? Does the fact that she hasn't been charged with anything make a difference? Would Houze bother to speak on her behalf to LE before that happened?

I'm just very bothered that TMH appears to be making no effort whatsoever to defend herself, still. I wonder if there are defensive moves that we don't know about.

Yes, Houze could definitely be working behind the scenes to convince LE they have the wrong idea about TH. Or she could, for example, be talking to and cooperating with LE 100% but giving the public impression that she is not, in order to fool more dangerous people involved in the crime into thinking that she is not turning on them.
 
Do you think that the RO against Terri Horman will be extended since she has never been charged with the murder for hire which was one of the main reasons for the RO, also she has never even been named as a person of interest in the disappearance of Kyron Horman which was the other reason for the original RO.
 
Do you think that the RO against Terri Horman will be extended since she has never been charged with the murder for hire which was one of the main reasons for the RO, also she has never even been named as a person of interest in the disappearance of Kyron Horman which was the other reason for the original RO.

The judge in the RO case is unlikely to consider the fact that criminal charges have not been brought, because there is a much higher level of proof needed in criminal court than to get a RO. The question will be whether there is any reason to believe that Kaine or the baby will be in danger if the RO is lifted.
 
Not sure if this should be posted here or not; but is there anything LEGALLY binding TH from leaving the country, moving out of state...anything really? Does the pending divorce keep her from leaving the state? And if so, is it possible that the divorce delays are being orchestrated by KH and his team in order to prevent said event from occurring?
 
The judge in the RO case is unlikely to consider the fact that criminal charges have not been brought, because there is a much higher level of proof needed in criminal court than to get a RO. The question will be whether there is any reason to believe that Kaine or the baby will be in danger if the RO is lifted.

AZ -
your Casey Anthony quote struck a nerve with me and got me thinking a little different on her motive.
Has there ever been a paternal match to Caylee??
or has anyone come forward?
Given Casey's lifestyle choices I wonder if the father was willing to risk his own lifestyle and step up to the plate and petition for custody of his daughter...
your quote seems almost like a response to this potential scenario.
it seems logical to me...if he was cleaning his side of the street and preparing or threatening for custody, her actions may have seemed justified in her mind. no one can love her the way she does...it happens too often.
 
Not sure if this should be posted here or not; but is there anything LEGALLY binding TH from leaving the country, moving out of state...anything really? Does the pending divorce keep her from leaving the state? And if so, is it possible that the divorce delays are being orchestrated by KH and his team in order to prevent said event from occurring?

Nope.

AZ -
your Casey Anthony quote struck a nerve with me and got me thinking a little different on her motive.
Has there ever been a paternal match to Caylee??
or has anyone come forward?
Given Casey's lifestyle choices I wonder if the father was willing to risk his own lifestyle and step up to the plate and petition for custody of his daughter...
your quote seems almost like a response to this potential scenario.
it seems logical to me...if he was cleaning his side of the street and preparing or threatening for custody, her actions may have seemed justified in her mind. no one can love her the way she does...it happens too often.

I'll send you a PM since this is off topic. :)
 

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