Is it time to file a civil suit over the disappearance of Kyron Horman? This post discusses the possibilities.
We all remember that O.J. Simpson was acquitted in criminal court but held responsible in a civil case. The reason, of course, is a lower burden of proof. For criminal cases, the state must prove its allegations beyond a reasonable doubt; in civil court the "preponderance of the evidence" is enough.
Typically, I advise crime victims hold off on any civil lawsuit until the criminal prosecution concludes. However, in this situation, the issue is not monetary compensation; it is discovering the truth.
Who could sue for what?
If we assume that Kyron is alive, then a conservator or guardian ad litem (definitions here) must be appointed to assert any claims for Kyron. The conservator or guardian for litigation does not need to be the father, Kaine, and, probably should not be the father. Kyron could assert claim for negligence against his stepmother if there is evidence to show that she failed to act as a reasonable parent on the day Kyron disappeared, and her actions caused him to disappear.
If, more likely that not, Kyron has died, then the court could appoint a personal representative of his "estate," who could file a lawsuit against Terri Moulton Horman for wrongful death under Oregon law. Once again, the question is whether there is enough evidence to believe, in good faith, that Terri was responsible for Kyron's death. Police and the District Attorney's office would need to cooperate with the lawyer for Kyron's estate to determine whether sufficient evidence exists to file the lawsuit.
Benefits of a civil lawsuit?
In a civil lawsuit, the lawyer for the plaintiff (the person suing) could require Terri Moulton Horman to appear for a deposition, which is questioning under oath. Terri would have to show up. The court could order her to answer any non-incriminating questions. Terri could assert her 5th Amendment Right and refuse to answer any question that she reasonably believed could subject her to criminal prosecution.
Then what?
The judge could order Terri to answer incriminating questions or lose rights in the civil lawsuit up to and including losing the entire lawsuit and owing a lot of money. In Lefkowitz v Cunningham, the Supreme Court noted that if a State compels testimony by threatening to inflict "potent" penalties, then that violates her constitutional rights. Some courts have held that requiring a person to decide between losing a civil case and answering incriminating questions violates the 5th Amendment.
If the judge ordered Terri to answer incriminating questions under the penalty of losing by default, then a very interesting question arises: If Terri testified that she killed Kyron, would she then be immune from prosecution? At a minimum, it is likely that the prosecution could not use Terri's deposition testimony against her if it was compelled in violation of the 5th Amendment.
So, is it time for a civil suit? The answer depends on following:
Q. Will the DA share enough evidence to support a good faith belief that Terri either (a) was negligent in the way she dropped off Kyron or (b) was legally responsible for Kyron's death.
Q. Are there non-incriminating answers that could be extracted from Terri at a deposition that would advance the investigation?
If so, then a civil lawsuit might make sense. However, it unlikely that Terri will answer any useful questions at a deposition.
Jeff Merrick, Oregon Trial Attorney
PediatricLaw.com
503-665-4234
