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Either party to an Order for Protection may call witnesses at the evidentiary hearing where allegations are being contested. If the individual is reluctant to testify they may be compelled to do so by having them served with a subpoena.
Unfortunately, most domestic abuse occurs behind closed doors outside the view of the public. That means witnesses are often limited to the parties involved in the case and, in some instances, police officers who responded to the call for help.
It is important to recognize that the evidentiary hearing in an OFP is meant to be an expedited hearing. That means the court will generally focus on the narrow allegations of the Petition. That can result in frustration for parties who find a Judge limiting the testimony of their witnesses. A Court may limit witness testimony for a number of reasons.
First, any witness must testify regarding relevant details and events. That means the witness must testify regarding the events listed in the Petition or affidavit. Collateral details are often irrelevant. For example, character evidence of either the Petitioner or Respondent would not be allowed.
Second, any witness must also have direct knowledge of the allegations in the petition. If the witness does not have direct knowledge of the allegations in the petition, the testimony can be excluded. Direct knowledge means the witness observed, heard or, in some way directly experienced the event. They may have observed abuse. They may have heard a sound that is consistent with abuse. They may have observed an injury or the demeanor of the alleged victim or abuser. Except in very limited circumstances, the testimony cannot be based on something the witness was told by another person. That is not direct knowledge and would often fall into a category of inadmissible hearsay.
Third, a witness may also be limited by a Judge if the testimony is redundant in nature. In other words, many witnesses testifying to the same thing may be considered duplicative.
Generally, a court will exclude any witnesses from the courtroom until they have testified. This prevents the witnesses from hearing the testimony of others and conforming their statements to the evidence already presented. If the This is called sequestering the witness. If the Judge does not sequester witnesses prior to the commencement of the evidentiary hearing, a request by either may be made to do so.
This is a tricky question. There is nothing in Minnesota Statutes that prevents a child from being a witness in an Order for Protection Proceeding. Often allegations of familial abuse occur between parents and spouses or between parents and minor children. That may mean that minor children were the only witnesses to the alleged abuse. Nonetheless, Judges are often reluctant to have children testify fearing that they may be re-traumatized by the experience or believing it improper to place the child in the middle between two feuding parents. Where the Court is reluctant to allow the testimony of children, there may be other options available.
Where domestic abuse is alleged to have occurred against a child, the Court may appoint Guardian Ad Litem (GAL). A Guardian Ad Litem is a person appointed to advocate in court for what they believe to be in the child’s best interests. As part of that role, they may speak with the minor child and/or review relevant records related to the matter being resolved by the court. The GAL will then present their findings and recommendations to the court and a later hearing.
The Court may also allow into evidence some out of court statements made to other witnesses by minor children. Generally, this would be considered inadmissible hearsay, but there are a number of exceptions to the rule against allowing hearsay and the use of out-of-court statements may be a way to avoid requiring children to testify and traumatizing the children through the process.
Minnesota Rule of Evidence 807 is a residual or “catch-all” exception to the hearsay rule. It provides that if certain procedures involving notice are followed and the Court finds sufficient guarantees of trustworthiness, out-of-court statements may be admissible as evidence regardless of the availability of the declarant.
Similarly, two Minnesota statutes expressly provide for the admission of the out-of-court statements of children under the age of 10 regarding child abuse committed on them or committed on another child but observed by them. Minn.Stat. Sec. 260C.165 covers out-of-court statements regarding either abuse or neglect and applies to any CHIPS, foster care, or domestic child abuse proceeding or proceeding for termination of parental rights and Minn.Stat. Sec. 595.02, Subd. 3 applies to any court proceeding involving child abuse but requires that there be other corroborative evidence of the act if the declarant (child under 10) is unavailable as a witness.
A Judge may also elect to conduct an in-camera interview with the child witness. That means the Judge will speak to the child, often in chambers or in a closed courtroom where the only person allowed to be present are the attorneys. If any. This is rarely used and Judges are not often equipped with the training necessary to make such inquiries.
A party or even another witness may sometimes seek to claim their constitutional right against self-incrimination. The rights against self-incrimination may only be raised if the testimony that is requested has the potential to subject the speaker to criminal prosecution.
In a case for an Order for Protection, there is some protection offered by the Domestic Abuse Statute. Minn. Stat. Sec. 518B.01, subd. 15 states that “any testimony offered by a respondent in a hearing...is inadmissible in a criminal proceeding.” Nonetheless, there are times when a witness, other than a party, offers testimony that might result in criminal prosecution. When that occurs, the witness may invoke the Fifth Amendment in order to protect themselves from criminal prosecution. That does not mean, however, their silence cannot be used against them in the civil proceeding. Though that may be true in a criminal case, when a party asserts the Fifth Amendment in a civil action, the Court may make an adverse inference when that party refuses to testify.
Attorney Maury D. Beaulier is recognized as a successful aggressive and experienced litigator in proceedings for an Order for Protection. Flat fees for representation are available in most counties. Call for a FREE consultation.