Domestic Violence - Evidentiary Law Change
Before October 2014, the victim of domestic violence had to prove to a very high evidentiary standard that he/she was the victim of domestic violence. The standard was that the petitioner, (the victim of domestic violence) had to prove by “clear and convincing evidence” that the victim’s testimony was clear, unequivocal, and convincing. If a judge, after hearing the testimony of both the victim and the alleged abuser, believed that both the victim and the alleged abuser were creditable (the testimony was believable), then the victim would not receive a final order against domestic violence. If, in the alternative, the judge believed that the victim’s testimony was clear and convincing, the victim would then receive a final order. The final order would require the respondent, the abuser, not to have any contact, direct or indirect, with the victim. There are many sanctions, including criminal sanctions, if the abuser violated the order and made contact with the victim or, worse, attacked the victim again.
The victim not being able to meet the heavy burden of clear and convincing evidence resulted in many abusers escaping previous acts of domestic violence and, frequently, the continuation of domestic violence.
Since October 2014, the law now requires a lesser evidentiary standard called the “preponderance of the evidence”. In domestic violence cases, “preponderance of the evidence” means that the testimony of the victim is such that it shows it is more likely than less likely that the victim was actually a victim of domestic violence. A simple subjective view is that from the testimony of the victim it could be determined to be at least 51% more likely than less likely that the victim was abused.
Additional testimony may be presented and that would be of persons who actually witnessed the abuse.
The next best witness may be the police officer who investigated the incident. Cases can be won or lost on the investigating officer’s testimony about the investigation. Here is one example from an actual case. The husband was served a summons by the police for alleged domestic violence involving an alleged assault against the wife. Fortunately the officer viewed the physical appearance of both husband and wife and saw that the wife was not assaulted but that the husband was the one assaulted and there was clear physical evidence of his injuries. The wife testified that the alleged abuser’s injuries (the husband’s injuries) were self-inflicted, meaning that the husband’s injuries were a result of his own acts. The police officer was called as respondent’s (alleged abuser’s) first witness.
The officer did not witness either party’s acts during the incident, but based on the officer’s educating, training and experience, the officer testified that the injury to the husband could not have been self-inflicted. The judge, who was a former prosecutor, also recognized based on his experience as a prosecutor that the injuries to the husband could not have been self-inflicted.
Please note that in Howard County, Maryland, and other Maryland counties, in order to have the police officer’s required presence at court on the date of trial, you need to subpoena the officer. The officer must receive that subpoena five days before trial. It must be five business days before trial and so weekends or holidays are not included.
So I left the courthouse after the temporary order hearing with a subpoena and went to the Howard County Police Department to serve the duty office with the subpoena for the police officer’s presence at the hearing. Here is where an unrepresented party who is unaware of the requirement to serve the officer within five business days or who is aware of part of the five-day requirement but misapplies the rule and does not have the officer present at trial loses the benefits of the officer’s testimony. This is but one example of why you need an attorney.
Many potential clients before retaining our office will fill out the petition to obtain protection against domestic violence on their own. They are typically upset, angry, and act in ways that harm their chances of getting a final protective order. We encourage potential clients to obtain our assistance in completing the petition. Otherwise in the petition they may create a document that harms them in court.
Fred Antenberg has over 30 years’ experience representing persons who need protection against Domestic Violence in Howard County and other surrounding counties in Maryland. Call Fred for a free consultation at 410-730-4404.