In the District of Columbia, when a person petitions the court for a Civil Protection Order it is the petitioner’s burden to prove that an intrafamily offense occurred. An intrafamily offense means the offender needs to have committed or threatened to commit a crime against a person he shares a relationship with by marriage, blood, a child in common, legal custody, shared residence, or a romantic/dating relationship. Because Civil Protection Orders are unique in that they mix both criminal law and civil litigation, there are specific rules that regulate these matters under the Domestic Violence Division at D.C. Superior Court.
Civil Cases with Criminal Implications
Unlike a criminal case, automatic discovery rules do not apply when a Civil Protection Order is initiated. Rule 8 of the Domestic Violence Division Rules governs discovery practice. If either party wishes to receive discovery prior to the hearing, the party must motion the court and state whether there is a pending criminal case involving the same facts alleged in the Civil Protection Order case and attach proposed interrogatories, requests for production, or requests for admission. This motion must be filed not later than 7 days after the respondent was served with the petition. Even if a party requests discovery, there is no guarantee the court will grant the request if good cause has not been shown and with regard to the nature of the proceedings.
5th Amendment Protections
In some cases, a criminal case rising out of the same facts may be pending simultaneously with a Civil Protection Order case. If the respondent is a defendant in the criminal case, he may believe he can invoke his 5th Amendment right to protect himself against self-incrimination by not testifying and delaying the civil protection hearing until after the criminal case is complete. However, Rule 12(b)(4) of the Domestic Violence Rules prohibits the respondent’s testimony during a civil protection hearing be used against him and is inadmissible as evidence in a delinquency proceeding or criminal trial. The only exception to the rule is his testimony can be used in a prosecution for perjury or false statement. Since this rule exists, it is unlikely a judge will delay the Civil Protection Order hearing until after a criminal case based on a 5th amendment claim.
Reasonable Doubt v. Preponderance of Evidence Standard
Though the judge in a Civil Protection Order hearing needs to find that the respondent committed or threatened to commit a criminal offense against a petitioner, the level of proof required is much lower than what is necessary in a criminal case. As most people know, the government must prove beyond a reasonable doubt that a defendant committed a crime in order for the person to be found guilty. In a Civil Protection Order case, the judge only needs to find that there is good cause to believe the respondent committed the offense. This standard is known as the preponderance of evidence which can be defined as it was “more likely than not” or “more than a 50% chance” that the offense occurred.
Motions to Reconsider and Appeal Rights
If a party disagrees with the court’s findings after a Civil Protection Order hearing, he can motion the court to reconsider its ruling. Rule 7(j) details the following grounds for this motion:
- The court’s failure to consider a material fact or applicable law;
- Newly discovered evidence that, with reasonable diligence, could not have been discovered prior to the court’s ruling, order, or judgment;
- A change of law not previously brought to the court’s attention;
- The absence of a stated reason for the court’s order;
- Fraud, misrepresentation, or other misconduct by the opposing party;
- Mistake, inadvertence, surprise, or excusable neglect; or
- Any other reason that justifies relief.
A motion to reconsider must be filed no later than 28 days after entry of the order. If a party’s motion to reconsider is denied, he then could file a notice of appeal with the Court of Appeals for the District of Columbia. This notice must be filed within 30 days from the denial of the motion to reconsider. However, a party is not required to file a motion to reconsider with the court prior to filing a notice of appeal. After the Civil Protection Order is issued, a party can appeal this order by filing a notice of appeal within 30 days with the Court of Appeals. It is important to note that filing a motion to reconsider or a notice of appeal does not change or suspend the Civil Protection Order while the motion and appeal are pending.
If you are interested in petitioning for a Civil Protection Order or someone has filed a Civil Protective Order against you, contact Bruckheim & Patel to speak with one of their expert attorneys in domestic violence for a free, confidential consultation.