By Charlie Brennan, Rocky Mountain News
August 11, 2004

A trial in civil court over Kobe Bryant's alleged sexual assault of a resort hotel concierge offers far more promise of success for the alleged victim, legal observers said Tuesday.

Former Denver District Attorney Norm Early cautioned, however, that in a case where each surprise seems quickly overshadowed by the next, any assumptions are dangerous.

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"A fortune teller trying to read these tea leaves could lose their license," Early said.

But legal observers agree Bryant's alleged victim could fare better in a civil proceeding for several reasons.

"The first thing you're dealing with is the lesser burden of proof" in civil court, Early said. "The burden that must be met is, 'by a preponderance of evidence' rather than proof beyond a reasonable doubt."

Former Denver prosecutor Karen Steinhauser, now a University of Denver College of Law professor, said, "The burden of proof in a criminal case is the heaviest burden that you can have in our court system. A 'preponderance of the evidence' is a much easier burden to meet."

Also, in a civil proceeding, lawyers for Bryant's alleged victim would be permitted to take his deposition before trial, locking him into sworn testimony that could be used against him on the witness stand.

Bryant could dodge a deposition by invoking his Fifth Amendment right against self-incrimination - but not if the criminal case has been dismissed, a scenario many case observers now believe quite possible.

If Bryant doesn't answer questions from "Jane Doe's" lawyers in a civil case, Steinhauser said, "The jury can be instructed that they can use that as an inference against him, whereas in the criminal context, jurors are instructed that the defendant doesn't have to testify, and they're not allowed to hold that against him."

Dan Recht, past president of the Colorado Criminal Defense Bar, said a jury for a civil trial could be much more inclined to see things the alleged victim's way, in part because the stakes would be much lower than in a criminal proceeding, which could send Bryant to prison for four years to life, upon conviction.

"It's only money at stake and not liberty, not prison, and the jury will know that," Recht said.

"And so while in a criminal case, the jury would be very hesitant to convict Kobe Bryant because they know it would put an end to his career and he would end up in prison, a civil jury would not necessarily be nearly as hesitant, because it's only money - and he has plenty of it."

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