Guideline 8:09
If a defendant is arraigned for a crime, and there is no existing c. 258E order, and the named victim is present in court seeking a harassment prevention order, the court should hold a hearing on the harassment prevention order at the same time as the arraignment. If the court decides to issue a harassment prevention order, since both parties are present, the order may be issued for up to one year. If such order is issued, a copy should immediately be provided to the defendant.
If the named victim is not present at arraignment, the defendant should be given in-hand a copy of any harassment prevention order recently issued by the court and still in effect at that time that has not been served, and such in-hand notice is to be recorded on the docket of the c. 258E case. While court officers would most commonly serve the order, any member of the court staff may provide the order to the defendant.
Whenever notice is accomplished in court, the notice should be noted on the order and the police should be notified that service has been accomplished.
Commentary
If both parties are present in court, and the named victim in the criminal case involving abuse also seeks civil relief as a plaintiff in a c. 258E action, there is no reason to require either the plaintiff or the defendant to return in ten days for another hearing. If both parties are present, the court should hold a hearing with both parties and issue any appropriate order for a full year or, at the plaintiff’s request, for a lesser time.
The pending criminal matter is not a basis to continue the c. 258E hearing, and the judge may, but is not required to, draw an inference adverse from the defendant’s failure to testify. Singh v. Capuano, 468 Mass. 328, 333 (2014) (defendant’s refusal to testify on the ground of self- incrimination does not bar the taking of an adverse inference). The assertion of the privilege against self-incrimination is to be considered and weighed as part of the evidence in the case and a judge is “required to carefully consider all the circumstances of the case when making the decision whether to draw an adverse inference.” Id. at 333-34 (improper to categorically refuse to consider (or always consider) adverse inference against non-testifying defendants).
If an attorney has been appointed in the criminal case, it is appropriate for the attorney to inform the defendant of their Fifth Amendment rights, but further participation should be limited unless the attorney files a notice of appearance. A notice of appearance must be filed for the attorney to cross-examine the plaintiff or any witnesses as the defendant, like the plaintiff, is not entitled to appointed counsel. See S.T. v. E.M., 80 Mass. App. Ct. 423, 429 (2011) (despite informality of c. 209A proceedings in a busy court, certain minimum standards of fairness must be observed). Whether cross-examination is by an attorney or a party, the judge should not permit cross-examination to be used for harassment or intimidation or for discovery purposes. Frizado v. Frizado, 420 Mass. 592, 596 & n.5 (1995) (judge may limit cross-examination for good cause). See also Silvia v. Duarte, 421 Mass. 1007, 1008 (1995). See Guideline 5:01 Conduct of Hearings After Notice When Both Parties Appear: General.
In-hand notice of harassment prevention orders can be critical to proper enforcement of those orders. Whenever a defendant appears in court, any current harassment prevention orders against the defendant in that court should be brought into the courtroom and a check should be done to determine whether in-hand service has been made on each order. If in-hand service has not been made, the defendant should be given a copy of the order in-hand by a court officer who should fill out the return of service. Even when a harassment prevention order has previously been served on a defendant, such service may have been made at last and usual address or by alternate means. Providing in-hand notice to the defendant while the defendant is before the court ensures that the defendant has actual notice of the terms of the order.
Similarly, at arraignments, the judge should note whether there are any open temporary orders from another court (i.e., an order issued within the past ten days), and should attempt to determine whether the defendant has been served (e.g., having clerk contact the issuing court, or asking the defendant if he is aware of the order). If there is a question of service, efforts should be made, to the extent practicable, to effect in-hand service. At the very least, the judge can give notice orally of the existence of the order, the next hearing date, and of any orders that appear on the defendant’s Court Activity Record Information (CARI).
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| Last updated: | October 20, 2025 |
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