In all civil proceedings under the Abuse Prevention Act, G. L. c. 209A, the rules of evidence should be applied flexibly by taking into consideration the personal and emotional nature of the issues involved, whether one or both of the parties is self-represented, and the need for fairness to all parties.
Introduction. This section is derived from G. L. c. 209A; Frizado v. Frizado, 420 Mass. 592, 597–598, 651 N.E.2d 1206, 1210–1211 (1995); and S.T. v. E.M., 80 Mass. App. Ct. 423, 429–430, 953 N.E.2d 269, 274–275 (2011). Civil proceedings under G. L. c. 209A are commenced by filing a civil complaint. G. L. c. 209A, § 3A. Violations of orders issued under G. L. c. 209A are punishable as crimes. G. L. c. 209A, § 7. The remedies that may be ordered by the court are set forth in G. L. c. 209A, § 3. Initially, a temporary order may be issued, ex parte, if the plaintiff demonstrates a substantial likelihood of immediate danger of abuse. G. L. c. 209A, § 4. When courts are closed, emergency relief is available to any person who demonstrates a substantial likelihood of immediate danger of abuse. G. L. c. 209A, § 5. Whenever a court issues a temporary order, the defendant has a right to be heard no later than ten business days after such order. This hearing constitutes a civil, jury-waived trial. At the temporary hearing and at any subsequent trial or hearing, the Supreme Judicial Court has observed that “the rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on.” Frizado v. Frizado, 420 Mass. at 597–598, 651 N.E.2d at 1211. For additional information, see Guidelines for Judicial Practice, Abuse Prevention Proceedings, available at http://www.mass.gov/courts/209a/guidelines-2011.pdf.
Evidentiary Principles Applicable in G. L. c. 209A Proceedings. In determining whether and how to apply the law of evidence, the Supreme Judicial Court in Frizado v. Frizado, 420 Mass. 592, 651 N.E.2d 1206 (1995), offered the following guidelines.
“[First, t]he burden is on the complainant to establish facts justifying the issuance and continuance of an abuse prevention order. The court must on request grant a defendant an opportunity to be heard on the question of continuing the temporary order and of granting other relief. That opportunity, however, places no burden on a defendant to testify or to present evidence. The defendant need only appear at the hearing.” (Quotation omitted.)
Frizado v. Frizado, 420 Mass. at 596, 651 N.E.2d at 1210, quoting G. L. c. 209A, § 4.
Second, the plaintiff’s burden of proof is preponderance of the evidence. Frizado v. Frizado, 420 Mass. at 597, 651 N.E.2d at 1210.
Third, an adverse inference can be drawn by the court from the defendant’s failure to testify in a G. L. c. 209A proceeding. The fact that the defendant may refuse to testify on the ground of self-incrimination does not bar the taking of an adverse inference. However, the adverse inference alone is not sufficient to justify the issuance of an abuse prevention order. Frizado v. Frizado, 420 Mass. at 596, 651 N.E.2d at 1210. See also Smith v. Joyce, 421 Mass. 520, 523 n.1, 658 N.E.2d 677, 680 n.1 (1995) (a judge may not issue a restraining order “simply because it seems to be a good idea or because it will not cause the defendant any real inconvenience”). The plaintiff is still permitted to call the defendant as a witness even though the defendant is able to assert the privilege against self-incrimination. S.T. v. E.M., 80 Mass. App. Ct. 423, 429, 953 N.E.2d 269, 274–275 (2011).
Fourth, “[b]ecause a G. L. c. 209A proceeding is a civil, and not a criminal, proceeding, the constitutional right to confront witnesses and to cross-examine them set forth in art. 12 of the Declaration of Rights has no application.” Frizado v. Frizado, 420 Mass. at 596 n.3, 651 N.E.2d at 1210 n.3.
Fifth, “[t]he right of the defendant to be heard includes his right to testify and to present evidence.” Frizado v. Frizado, 420 Mass. at 597, 651 N.E.2d at 1210–1211. It is not sufficient to hear from the defendant’s attorney and to deny the defendant the opportunity to present evidence. C.O. v. M.M., 442 Mass. 648, 657, 815 N.E.2d 582, 590–591 (2004). The plaintiff has a corresponding right to present evidence prior to the judge vacating any part of an abuse prevention order. S.T. v. E.M., 80 Mass. App. Ct. at 429–430, 953 N.E.2d at 275.
Sixth, with respect to cross-examination, “[t]he judge’s discretion in restricting cross-examination may not be unlimited in particular situations.” Frizado v. Frizado, 420 Mass. at 598 n.5, 651 N.E.2d at 1211 n.5. The Supreme Judicial Court cautioned against “the use of cross examination for harassment or discovery purposes. However, each side must be given a meaningful opportunity to challenge the other’s evidence.” Id. See C.O. v. M.M., 442 Mass. at 656–658, 815 N.E.2d at 589–591 (defendant’s due process rights were violated when the court refused to permit him to cross-examine witnesses or to present evidence).
Harassment Prevention Proceedings (G. L. c. 258E). The considerations set forth above regarding the conduct of a G. L. c. 209A proceeding also apply to proceedings conducted pursuant to G. L. c. 258E. See O’Brien v. Borowski, 461 Mass. 415, 961 N.E.2d 547 (2012).