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Abuse and Harassing Restraining orders and Due Process

On Behalf of | Apr 12, 2022 | Abuse |

Massachusetts has laws that allow for speedy issuance of restraining orders for domestic abuse or harassment. The laws allow for an initial order to be issued without notice strictly on the sworn affidavit and testimony of the complainant. This is followed by a hearing within 10 business days in which the defendant is given notice. The 10 day hearing should be treated as a trial and not as a summary hearing.

In the past, many judges have treated the 10 day hearing was a summary process in which “shortcuts” were taken. Judges frequently relied on representation of attorneys instead of testimony. Judges read doocuments submitted and did not even inform the defendant of the existence of these documents. Many defenfendants complained that they never had the opportunity to tell their side of the story.

It is now clear that restraining order hearings should resemble trials and not short hearings. Idris I. v. Hazel H. No. 21-P-570 (Mass. App. Ct. 2022). Defendants have the right to notice and an opportunity to be heard. This means that they have the right to know the allegations against them before the hearing. They have the right to present evidence on the contested facts. They can testify, present evidence, call witnesses to testify, and to cross examine witnesses called by the plaintiff. A judge must hear evidence from both sides before making a decision and can’t cut a witnesses testimony short unless it is repetitive. Attorney’s representations are not substitutes for testimony of witnesses. A judge cannot consider evidence unless the defendant has an opportunity to review the evidence and challenge the evidence.

Abuse and harassment restraining orders start with an affidavit filed by the Plaintiff. Defendants are not served a copy of the affidavit but have the right to go to the court and get a copy. If the Plaintiff offers additional documents for the judge to consider, the Defendant should have an opportunity to examine the documents. If the documents are offered at trial and the judge accepts them, the Defendant should consider asking for a continuance to review the documents to obtain and present evidence to challenge the contents of the documents. While there is no court decision that treats the affidavit as a complaint and prohibits evidence that is not within the four corners of the documents the defendant should object to any evidence that is outside the affidavit. An objection can be made on the grounds that the Defendant had no notice.

The rules of evidence don’t apply to this type of hearing but the judge can’t admit evidence over defendant’s objection unless the judge finds the evidence is reliable and it is fair to admit the evidence. When an objection is made to evidence as not complying with the rules of evidence, judges frequently just rule that the evidence will be admitted. A second objection should be made that the judge failed to make a finding that the evidence is reliable and fair.

Restraining orders can have significant consequences to people and violation of a restraining order can result in criminal charges. This is a complicated area of law and both parties to a restraining order should seek the advice of an attorney who understands the nature of these hearings.

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