The 209A burden – to prove or not to prove

Posted on May 30th, 2007, by Dmitry Lev

I often have 209A defendant clients insist that roommate Bob or best friend John testify at the 209A hearing. After all, “they can prove that there was no abuse!” But can they? Can anyone? Should anyone have to?

In any civil proceeding, including a 209A hearing, the burden of proof lies on the plaintiff, and this burden is called “preponderance of the evidence.” In theory, this means that after taking into account all the evidence, the finder of fact, which in a 209A case is the judge, is left to believe that it is more likely than not that the plaintiff was “abused.” Sometimes this is also referred to as the “more than 50% standard.” (As a point of reference, consider the standard of proof in a criminal matter: “beyond a reasonable doubt” — a much tougher burden to meet.) Now, at the initial 209A ex-parte hearing there is only one set of facts for the judge to consider — the plaintiff’s. Here, a 10 day restraining order will almost always be granted, unless the plaintiff’s facts are so unbelievable and so out of this world, that the story cannot add up even if unchallenged. On the other hand, at the 10-day hearing, if the Defendant appears, objects to the extension of the order, and cross examines the plaintiff (through an attorney or without) or gives his/her own testimony, the judge would then be left with having to weigh two sides of a story, and this is where it becomes crucially important whether the plaintiff has met the burden of proof.

The reality is that few judges are strict enough to hold the plaintiff to the true “preponderance of the evidence” standard. The majority of judges work off a foggy case-by-case approach that rests almost entirely on hunches, one-sided conclusions, and some outright illegal assumptions. I have seen examples of the following in our courts:

* Judge will grant a 209A any time the Defendant owns firearms, even if 100% legal, and even without evidence that the guns have ever been used or threatened to be used
* Judge will grant a 209A on uncorroborated statements by the plaintiff alleging abuse that took place a year or more prior to the hearing
* Judge will grant a 209A restraining order on testimony that the plaintiff is afraid (afraid of what??) but without inquiring into whether the fear is rational, reasonable, or based on some concrete facts as opposed to general apprehension
* Judge will limit, or outright disallow, the cross examination of the plaintiff or the testimony of the defendant or defendant’s witnesses. How, then, can there be two balanced sides to the story? Good question.

In essence, the burden seems to fall on the defendant and the burden becomes a negative one: to disprove abuse or fear thereof. This burden is compounded by the limited legal options that the defendant has before and at the hearing. Unlike a usual civil proceeding, the defendant could not have subjected the plaintiff to a deposition-style interrogation ahead of time in order to prepare for the court hearing, and there is usually no time and no set procedure for obtaining documents or issuing subpoenas. Defendants are also often shocked to find out that their opportunity to present their story, their “day in court” that they were expecting at the 10-day hearing, usually becomes a rushed 5 minute showdown where the defendant is lucky to get the chance to fully and thoroughly address the court, let alone to cross examine or to call witnesses.

Faced with the task of having to prove a negative, let us revisit that defendant who wanted to call his roommate as a witness, because that roommate could “prove” that there has never been any abuse. That roommate may testify that he has lived with the defendant for the entire applicable time period, that there has always been peace in the home, and that this roommate has never seen the defendant raise his voice, let alone his hand, at anyone. But it is easily established on cross examination or by judge’s inquiry that the roommate was not at home 24/7, and was not with the defendant 24/7. The roommate likely stepped out to the bathroom for at least 5 minutes at some point! And this already leaves a window where potential abuse could have taken place. The rest of the roommate’s testimony to attempt to disprove abuse becomes almost irrelevant.

The above example is, of course, very black and white. It is entirely possible that the roommate’s testimony could be considered by the judge as evidence of other issues in the case, like motive, bias, past behaviour, etc. But it is rather clear that proving lack of abuse through eyewitness testimony is next to impossible. There was always that minute, hour, second, or evening when the witness was not there. And who knows what could have happened then… Or so thinks the court.

As for judges who misplace the burden of proof and incorrectly place it upon the defendants, essentially requiring them to prove a negative, these judges must be sternly but respectfully reminded of the law which dictates that the plaintiff carries the burden. And when that fails, there is always appeal, but that was a topic of another day’s discussion.

But there is no evidence of any abuse!

Posted on May 18th, 2007, by Dmitry Lev

Not so fast. Let’s talk about evidence. First of all, what is evidence? Contrary to popular TV and CSI-shaped beliefs, evidence is not just DNA, blood, documents, or photos taken by a private eye from a car with tinted windows. In a strictly legal sense, evidence is anything that makes an assertion of a fact more or less probable. There are two main types of evidence used in the courts: witness testimony and exhibits. The first focuses on the senses of the witness: what s/he saw, heard, smelled, touched, tasted, etc. The latter is more demonstrative and must usually be supported or authenticated through a witness (ie. the photographer to who took the photos, the scientist who conducted a test, etc). Evidence can further be broken down into direct and circumstantial. In simplest terms, circumstantial evidence involves inferences in order to connect the dots. For example, if you went to sleep in the evening, and the grass on the outside lawn was green, and in the morning when you woke up the grass was covered in snow, it could be inferred that it snowed overnight. You did not see the actual snowfall, but there is strong circumstantial evidence to that effect. Contrary to popular belief, the law does not consider direct evidence any more credible or circumstantial evidence any less credible than the other.

What does all of this have to do with 209A Restraining Orders? Simply this. Let us say the Plaintiff testified that there has been ongoing physical abuse. The testimony, the Plaintiff’s words, THAT IS EVIDENCE. There need not be bruises, police reports, or photographs. The Plaintiff’s mere story IS EVIDENCE. Now, naturally, some evidence could be more believable than other. In law this is called “indicia of reliability.” And, of course, the Defendant can present his/her own evidence to the contrary through the Defendant’s own testimony, through the testimony of witnesses, or perhaps with exhibits. The Judge, who acts as the finder of fact in a 209A case, will then weigh all the evidence, decide what degree of credibility to assign to what, and make his/her decision accordingly. The Judge’s assessment of credibility of the Plaintiff, the Defendant, and the witnesses usually comes from merely observing their demeanor and the manner in which they answer questions. Obviously if someone contradicted himself or got caught in a lie while testifying, it is a safe bet that their credibility with the judge is shot.

While in a Criminal matter certain types of evidence are not allowed (generally to protect the Defendant on various constitutional grounds), in a 209A Restraining Order matter the customary rules of evidence are not followed strictly; and the rules, if any, are generally very loose and up to the judge’s individual tastes. This, while making the Plaintiff’s testimony a bit less predictable, can at times help the Defendant, because certain kinds of evidence, for instance, hearsay, is actually allowed (with some limitations) in a 209A matter.

I have seen numerous Defendants who have attempted to represent themselves in 209A Restraining Order matters lose their cases abysmally by standing before a judge and proclaiming that “there is absolutely no evidence of abuse, please do not extend this order,” mistakenly assuming that absence of photographs or hospital records means that there is no evidence. And this could be after the Plaintiff just finished a 15-minute tirade about all the abuse that has allegedly taken place. Which way will the judge decide? The judge has heard actual evidence only from the Plaintiff. The Defendant’s arguments, while perhaps appropriate at some other point during the hearing, did not actually contain any new evidence for the judge to evaluate. These Defendants learned their lesson on evidence in a very raw way.