But there is no evidence of any abuse!

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.