Thursday, May 9, 2013

Sometimes Less Is More-Peace Orders

A temporary peace order was placed against my client. The petitioner was claiming that my client had harassed them as well as cause malicious destruction to their property.

My client gave me background information not only as to the event but significant back story regarding matters which were not directly related to the event.

On the trial date I approached the petitioners in an effort to resolve the case to everyone's satisfaction. They wanted the judge to resolve the matter and I let it go.

The case was called for trial and the judge inquired whether the respondent (that would be my client) would be willing to enter into a consent order agreeing not to have any unlawful contact with the petitioners. Even though there is always a risk of going forward with trial my client declined. Consenting to a peace order leaves a permanent record on public websites against you. Also, I have seen where the petitioner after obtaining a peace order fabricates events which then puts the respondent in jeopardy of not only contempt of court but a secondary criminal prosecution. In other words, the petitioner makes things up and all of a sudden my client is looking at jail time. You cannot get jail time for losing at the initial peace order hearing.

The judge began examining the two petitioners as to the basis for the request for a peace order. They told the judge that my client had been shouting at them, had been telling them to leave the premises, had sent rude e-mails and texts. Never did the petitioners bring up the subject of the alleged destruction of their property. Also, at the beginning of the questioning by the judge, he wanted the address of the petitioners. I immediately objected and advised the judge that we did not want to know the address of the petitioners because that was part of our defense. In a peace order hearing the petitioner must prove that past events which are grounds for the peace order are likely to occur in the future. If my client has no idea where the petitioner lives then that reduces the likelihood of such a violation.

When the judge was done, my client through counsel had an absolute right to cross-examine the petitioners as to this story. I declined to ask any questions.

At that point the judge wanted to ask my client questions about the case. Again I objected. My client has a Fifth Amendment right not to incriminate herself and that right trumps the courts right to ask questions. The judge sustained the objection and stopped the questioning of my client immediately. I did not offer any evidence in our case in chief.

When it came time for argument I was able to establish to the judge that no harassment has occurred. In order to prove harassment the petitioner needed to establish several facts including a reasonable request to stop the texts and/or e-mails. The record was completely silent on that matter. Further, the petitioners could not prove that this behavior was going to likely occur in the future.

The judge denied the request for the peace order which was the proper result.

I did not ask a single question and I did not put on any evidence. That is somewhat unusual because we lawyers like to talk. But in this case it was the right call.

Because the peace order petition was denied my client has a right to request that the matter be sealed or shielded. The court does not charge for this request and the court has a form which needs to be filled out. After the form is filled out and assuming that the respondent qualifies under the requirements of law, the court will have a hearing down the road to consider whether to shield the public record.

If you need help with a peace order case I would be happy to help you.

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