Am I entitled to see a chapter 209A complainant’s evidence submitted to the judge, cross-examine the complainant, and offer my own evidence before a judge issues a 209A against me?
18 April 2022
Yes, yes, and yes, at least at the second “extension hearing” that a defendant is required to have notice of.
The case of Idris I v. Hazel H. recently decided by the Massachusetts Appeals Court is a good example of a defendant being denied basis due process rights by a trial court. 100 Mass. App. Ct. 784 (2022). In Idris I v. Hazel H. the appeals court outlined three ways in which the defendant’s rights were violated, vacated the order, and ordered a new hearing occur (in front of a different judge). Id. at. 791. Here we will focus on the three specific rights in Idris I v. Hazel H. that the appeals court found were violated.
We start with a practical tip. As a general matter, when defending against an allegation of abuse, etc. and facing the possibility of a restraining order being issued against you under Mass. General Law chapter 209A, one should take every step to learn the information given to the judge prior to the hearing. This is more than common-sense, it is needed. Chapter 209A complaints are not handled with much thought for the defendant’s due process rights. So you must ensure your own, and this takes many forms and usually proactive steps. In practice, many times, the author has observed basic information is not provided, despite the law, so, gather, prepare, and do it quickly.
Regarding evidence the law is that a defendant is entitled to be provided a copy of written evidence submitted for consideration by the plaintiff. Id. at. 789. In Idris I, this was trampled on and the violation stark; the defendant learned of the written evidence submitted and relied upon during the hearing itself. Id. at 789-90. And was not provided a copy of same despite defendant’s attorney’s informing the court of same. Id. This was grounds to vacate the order.
One practical point to understand one (hopefully) unique situation in Idris I; it was during the pandemic and both sides had submitted written evidence prior to the hearing held virtually/remotely. Usually, the clerk would be charged with supplying these documents to both sides, which did not happen. If this does not happen, a responsible judge should the defendant has a chance to review, albeit briefly, the documents before continuing. Even when this happens it gets close to unfairness as is it really fair to expect a quality response within minutes? This is why one should not rely on the clerk’s office to take affirmative steps but rather anticipate mistakes and take their own affirmative steps to obtain the evidence. In Idris I it was an extreme violation and was remedied by a reversal on appeal. But the author submits usually it is not an extreme violation, but marginally unfair without being violative enough to prevail on appeal. Hence the need to take care of yourself.
The second issue the appeals court found in Idris I is that the defendant did not get a meaningful opportunity to cross examine the plaintiff. The appeals court noted “[a trial judge] should not terminate a hearing without ensuring that [it] has heard all the relevant and admissible evidence once.” Id. at 790 quoting S.T. v. E.M., 80 Mass. App. Ct. 423, 430-31 ( 2011). In Idris I, the trial court just interrupted the cross examination of the plaintiff and moved right to legal argument, skipping any presentation from the defendant, which was improper.
Lastly, the appeals court found that the fact the trail court did not provide the defendant the ability to testify and present evidence on her behalf as a violation of due process. This was because the trial court, again, just went straight to legal argument from the defendant’s cross examination of the plaintiff, skipping over the entirety of the defendant’s case. Although the rules of evidence need not be followed, a defendant must be provided a meaningful opportunity to be heard. C.O. v. M.M., 442 Mass. 648, 657 (2004). Not being allowed any opportunity is certainly not meaningful opportunity.
Overall, the trial court just railroaded the defendant in Idris I v. Hazel H. but it took the defendant to pursue and win (a likely costly and stressful) appeal to remedy same. Usually there are not stark violations, but less egregious yet practical unfairness that raises the question of whether due process was satisfied. It is in this gray matter that most of the law lives. In the event that you are facing such a question or want to avoid one, feel free to contact the author.