Fifth Amendment | TALKING BACK to restraining orders

In “How the Fifth Amendment Impacts Family Court in Domestic Violence Cases” (2013), family attorney Tracy Duell-Cazes offers the following counsel against self-incrimination (it’s directed to Californians but may be applicable generally):

To make this easier to read, I will use Respondent when referring to the person who is accused of committing a domestic violence offense and Petitioner for the person against whom the violence was alleged to have been committed.

The Respondent has the right not to make [self-]incriminating statements in any proceeding. This includes discovery, hearings, and any other place where statements may be made. The general rule is that the Respondent cannot be required to testify at the restraining order hearing. The Respondent does not have to produce any discovery regarding the domestic violence issue if the Respondent timely claims the privilege against self-incrimination in response to the discovery request.

Courts usually grant a continuance until the criminal action is concluded. The temporary restraining orders stay in effect. Once the criminal action is concluded, then the hearing in Family Court can go forward. Usually the criminal case is dispositive of whether or not permanent restraining orders in Family Court are issued. If there is a conviction, the permanent restraining orders will almost always be ordered.

The Respondent must make sure that s/he doesn’t say anything to anyone but his/her attorney. (It is usually a good idea in these kinds of cases to have an attorney who practices family law and knows something about criminal law.) If any discovery is sent to you to answer, you need to assert your privilege against self-incrimination in a timely fashion. If you do not, you will lose this right and be required to testify against yourself and be required to respond to the discovery request. This means that the court can compel you to answer the questions, or sanctions will be imposed. Sanctions can be anything from your paying money to the other side to the issue being decided with only the other person’s information.

In order for [the] Respondent to give up his/her right to remain silent, s/he must knowingly and intelligently waive that right. This means that s/he has to know the consequences if s/he talks about the facts and that s/he understands that whatever s/he says can (read will) be used against her/him in the criminal case. If you are ever unsure of whether or not you have a “right to remain silent,” you should immediately consult with an attorney. It is best to consult with an attorney who practices both family law and criminal law or who handles domestic violence cases.

*The Fifth Amendment guarantees you don’t have to say anything against yourself. To enjoy this privilege, however, you have to say you don’t intend to say anything against yourself (e.g., “I decline to answer on the grounds that it may tend to incriminate me”). You can’t, in other words, be completely silent. (See Ms. Duell-Cazes’s next to last paragraph above.)

I’ve written before about “due process,” a constitutional privilege that’s universally denied to restraining order defendants. Recently I was contacted by an intelligent 17-year-old girl who wanted to know what her rights were under the law. She didn’t stand accused of anything. Rather her adult boyfriend had been issued a mandatory (criminal) restraining order in California “on her behalf” that she didn’t seek, and she wanted to know what she could do about it.

She has a tough row to hoe, and I couldn’t provide her with much solace.

In hunting around for resources to direct her attention to, though, I came across a page prepared by the Virginia Office of the Attorney General titled, “Legal Rights of Juveniles.”

Its summation of defendants’ due process entitlements under the Constitution is worthy of the attention of anyone who’s being or who’s been put through the restraining order ringer, as well as of anyone who’s paid to craft laws that honor civil rights. Past posts on this blog have focused on the Fourteenth Amendment. This synopsis covers the Fifth and Sixth Amendments, also.

Contrast:

Restraining orders are issued ex parte, which means penalty is imposed upon a defendant without the court’s even knowing a thing about him or her other than his or her name—and in some jurisdictions, s/he’s not granted even the opportunity to be heard unless s/he applies for that opportunity (and the window to apply may be brief) = Sixth Amendment.
A defendant is deprived of liberty and often property, besides, without compensation and in accordance with manifestly unfair procedures concluded in minutes = Fifth Amendment.
A defendant is subject to criminal sanctions, including incarceration, without benefit of a trial by jury and consequent to a hasty civil adjudication (half an hour) that requires him or her to hire private counsel if s/he’s to be represented at all, that may not allow him or her to face his or her accuser in court, and whose pretrial preparation period affords too little time for witnesses to be gathered (two to 10 days) = Sixth Amendment.
Defendants are discriminated against generically, and male defendants are discriminated against specifically to mollify the special interest groups that motivated enactment of restraining orders in the first place = Fourteenth Amendment.

The restraining order process isn’t merely abusive on an epidemic scale; it treats the Constitution with contempt.

TALKING BACK to restraining orders

THEY’RE NOT JUST ABUSED BUT ABUSIVE

Tag Fifth Amendment

Invoking the Fifth Amendment Protection against Self-Incrimination in “Domestic Violence” Cases

Mocking the Constitution for 35 Years: A Summary of Defendants’ Due Process Rights under the American Charter and How Restraining Orders Treat Them Contemptuously