Guideline 5:01
The hearing after notice in a c. 258E action at which both parties appear is an adversarial proceeding in which both parties must be allowed to present evidence. The plaintiff bears the burden of proving the case by a preponderance of the credible evidence. See Guideline 5:04 Standard and Burden of Proof.
The court should ensure an orderly proceeding and should be cognizant of safety issues.
The court should address placement of participants in the courtroom with this in mind. For example, a court officer should stand between the parties. In circumstances where sensitive issues may arise, the judge should consider moving the matter to a less crowded courtroom rather than bringing the parties to sidebar. All parties and witnesses should testify under oath.
Before the hearing begins, the clerk’s office should examine the Warrant Management System (WMS) to see if there are any outstanding warrants against the parties and should provide that information to the court. The clerk’s office should also provide the court with all active or recent prior related harassment prevention orders in that court involving the parties. The probation department should provide the court with the Criminal Activity Record Information (CARI) for both parties and the affidavits from any prior c. 258E orders that are available, as well as dangerousness findings that issued after August of 2014, the date when this information was required to be made available electronically. If the court becomes aware of information about active or recent criminal cases involving either the plaintiff or defendant, the judge may request that those cases be brought into the courtroom.
Both parties have a general right to cross-examine witnesses, but the judge should not permit cross-examination to be used for harassment or intimidation or for discovery purposes. Each side must be given a meaningful opportunity to challenge the other’s evidence. In some circumstances, it may be appropriate for the judge to remind the parties of their rights under the Fifth Amendment. Neither the plaintiff nor the defendant should be compelled to provide incriminating information against themselves.
Both parties should be told that the defendant must comply with the terms of the order unless and until any specific orders are terminated in writing by the court. The plaintiff has no authority to “waive” the orders without going to court to ask to have them terminated, and the defendant may be subject to mandatory warrantless arrest for violating c. 258E orders, notwithstanding the plaintiff’s “consent.”
If the court declines to issue the order after notice, the court should either allow the ex parte order to expire by its own terms, or order it terminated. The court should not vacate the ex parte order if one issued. See Guideline 7:00 Appeal.
Commentary
In many ways, a hearing after notice in a c. 258E matter is like any other contested civil proceeding. The plaintiff presents evidence, the defendant presents evidence, and the court decides if the plaintiff has established “harassment” by a preponderance of the credible evidence. Many of these cases will involve pro se litigants, there are relaxed rules of evidence, and these cases are often heard in the midst of busy court sessions. However, minimum standards of fairness must always be observed. “First, absent serious court congestion or some other emergency, judges should hear and decide scheduled matters if the parties are ready and wish to have a hearing. Second, judges should not issue, or terminate, any part of [an] order, over objection, without hearing the evidence and giving the parties an opportunity to respond. … [E]ach party should be given a fair opportunity to present their case. While a judge surely may exclude irrelevant or inadmissible evidence, or even interrupt an argument or a witness examination that has become repetitious, [the judge] should not terminate a hearing without ensuring that he [or she] has heard all of the relevant and admissible evidence once.” S.T. v. E.M., 80 Mass. App. Ct. 423, 429-31 (2011).
There are unique aspects to hearings under c. 258E, as the statute covers a wide variety of allegations ranging from forcible rape of a child to stalking to neighbor disputes. The court must control the hearing and address any hostility or safety issues that may emerge. Orderly procedure requires, for example, that each participant, including the parties, witnesses, and counsel, address remarks only to the court. Where sensitive issues may arise, the judge may consider moving the hearing to a less crowded courtroom. Many courts position court officers and advocates between the parties during the hearing. In cases that may carry the potential for physical danger to court personnel as well as to the parties, at least one court officer should be present in the session.
In some cases, an ex parte order may have issued against the defendant or a hearing may have been scheduled without an ex parte order issuing. In either situation, the plaintiff still bears the burden of proof at the hearing after notice. Procedural rules governing conduct of the hearing are the same as those governing c. 209A hearings. See, e.g., S.T. v. E.M., 80 Mass. App. Ct. at 429; Jones v. Gallagher, 54 Mass. App. Ct. 883, 890 (2002). Fairness requires that the plaintiff’s case be restated so that the defendant will know what has been alleged. This restatement may take the form of permitting the defendant to read the plaintiff’s affidavit if one is contained within the file, and if the defendant is able to read English. Frizado v. Frizado, 420 Mass 592, 597 (1995). “A defendant or his counsel should be given adequate opportunity to consider any affidavit filed in the proceeding on which the judge intends to rely before being required to elect whether to cross-examine the complainant or any other witness.” Id.
The defendant must then be given an opportunity to respond to the allegations bearing in mind that the defendant does not bear the burden of disproving the allegations or of proving that the ex parte order should not continue or that an order after notice should not issue. The plaintiff may then, in the court’s discretion, be given an opportunity to supplement the allegations in the affidavit and respond to the defendant’s statements.
“‘Each side must be given a meaningful opportunity to challenge each other’s evidence.’” S.T. v. E.M., 80 Mass. App. Ct. at 431, quoting Frizado v. Frizado, 420 Mass. at 598, n.5. A defendant has a general right to cross-examine witnesses against the defendant, but there may be circumstances in which a judge may deny cross-examination or limit it for good cause in an exercise of discretion. See Frizado v. Frizado, 420 Mass. at 597. In a footnote, the Supreme Judicial Court agreed that cross-examination should not be permitted for harassment or discovery purposes in c. 209A actions, but also observed that the “judge’s discretion in restricting cross-examination may not be unlimited in particular situations.” Id. at 598, n.5. See C.O. v. M.M., 442 Mass. 648, 659-659 (2004) (court found that, absent grounds that would justify a limitation on the defendant’s right to present evidence and cross-examine witnesses, the defendant’s right to due process was denied where the defendant was not given the opportunity to present and cross-examine witnesses).
As in any civil proceeding, the plaintiff has the right to call the defendant as a witness. See S.T. v. E.M., 80 Mass. App. Ct. at 429. “An inference adverse to a defendant may properly be drawn, however, from his or her failure to testify in a civil matter such as this even if criminal proceedings are pending or might be brought against the defendant.” Frizado v. Frizado, 420 Mass. at 596 (1995). “While the decision whether to draw an adverse inference based upon (the defendant’s) failure to testify was ultimately one for the judge as fact finder, the judge was obliged to consider whether such an inference was fair and reasonable based on all the circumstances and evidence before him.” Singh v. Capuano, 468 Mass. 328, 334 (2014).
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| Last updated: | October 20, 2025 |
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