Here's a situation that my office sees pretty frequently: A & B have a contentious relationship. They might be neighbors, coworkers, romantic partners or even spouses. Both parties blame the other for causing the conflict and accuse each other of harassment (or worse).
At some point, the conflict boils over. A calls the police and B is arrested (for assault, battery, domestic violence, inflicting injury on a spouse, vandalism, threats, etc.). While B's criminal case is slowly working its way through the justice system, B files a restraining order against A in civil court. B claims that A is the abuser and that B is the one who actually needs protection.
Is this a smart move? Will filing a restraining order against his accuser somehow shift the narrative, put A "on the defensive", and give B a tactical advantage in defending his criminal case?
I almost always advise clients against seeking restraining orders while they are currently fighting criminal charges. There are several risks inherent in initiating one case while fighting another, and doing so does not necessarily confer the advantages that many clients imagine.
The first and most obvious issue in this situation is the 5th Amendment. As the defendant in a criminal case, B has one key advantage -- he has the right to remain silent. He does not need to prove himself innocent, the prosecutor needs to prove him guilty. The prosecutor bears the burden of presenting evidence and trying to convince a jury of the defendant's guilt beyond a reasonable doubt. After the prosecutor has shown his hand and presented his evidence, the defendant in a criminal case has the choice of whether or not to share additional evidence and / or testify on his own behalf. He cannot be forced to answer questions if the answers to those questions might be used against him.
The opposite is true if B decides to seek a restraining order against A. If B files a petition to seek the legal protection of a restraining order, he is the Petitioner. In any restraining order hearing, the Petitioner bears the burden of proving his / her case. The threshold of proof depends on the type of order that the Petitioner is seeking. In Domestic Violence cases, for instance, the Petitioner must prove the allegations "by a preponderance of the evidence". In restraining order cases based on Civil Harassment, the Petitioner must meet a higher burden of proving the case "by clear and convincing evidence". It will be extremely difficult -- nearly impossible -- for any Petitioner to prove the facts necessary to win a restraining order while simultaneously remaining silent and refusing to answer questions that might be used against him / her.
Even if B is successful in his petition, winning a restraining order against A might not be as valuable as B imagined. Having a restraining order against his accuser will not absolve him of the charges he is facing in criminal court. Even though the restraining order case and the criminal matter might involve the same people and many of the same facts / allegations, they are not related. The restraining order court and the criminal court are applying different laws and different rules of evidence to address different issues. The outcome of one case will not necessarily affect the outcome of the other.
If B is not successful in his restraining order petition, he could be in a world of hurt. Courts have the power to sanction litigants who abuse the system by wasting time and resources for improper purposes. If the judge finds that B acted vindictively or that he filed a frivolous petition with the intent to harass A or waste A's time, the court can order B to reimburse A for any expenses that A incurred, including time missed from work and attorneys' fees.
By pursuing a baseless restraining order, B doesn't just waste the court's time and resources, he wastes his own. That's money and energy that could have been spent fighting his criminal case. In my experience, the risks of seeking a restraining order almost always outweigh any benefit if the Petitioner is simultaneously defending himself against criminal charges related to the same allegations.
If you have questions about restraining orders or domestic violence charges in Southern California, call for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
No comments:
Post a Comment