Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

“I HAVE BEEN SERVED WITH A BOSTON RESTRAINING ORDER – WHAT DO I DO?”

Well, Attorney Sam’s Take gave the short answer to that question yesterday. The first thing I suggest you do is consult experienced counsel. This will most likely be a criminal defense attorney.

We have discussed how the restraining order came into being. We left off looking at your chance to defend yourself (hopefully with your attorney). Approximately ten days has passed since you were served. What is coming now is your opportunity to have the restraining order lifted.

“Sam, if I really want nothing to do with the complainant, why should I care?”

Because even in situations in which you want no contact with the complainant, there are still repercussions to having a permanent restraining order issued against you. Understand that it will go on your CORI. It is not a criminal case, but it certainly does not look too good there. It gives a certain flavor to your past or present that you do not need. For example, if you are looking for certain employment which requires a high security clearance or contact with children, the restraining order will be considered a “red flag”. Second, if you are ever accused of a crime, the authorities will run your CORI and see it. They will interpret this as a sign of a violent past. Lastly, the restraining order puts you in a rather sensitive position when it comes to the complainant. Should that person pick up the phone at some point and allege that you tried to have any contact with him/her, you will be arrested for violating the restraining order. That type of charge is taken quite seriously.

“So, what is going to happen at this upcoming hearing?”

Understand that the odds are not in your favor. These orders are given away quite liberally as described yesterday. One thing that you will want to have your attorney do is get a copy of the affidavit the complainant had to file in order to get the temporary restraining order. This will prepare you somewhat for the specifics of the allegations.

Unfortunately, the complainant is not going to be limited in what he/she says at the upcoming hearing by what was written in the affidavit. New allegations can be added right there at the upcoming hearing.

“Wait! I thought that the accused had the right to advance notice of the allegations against him before any final hearing!”

Yes, that is the concept. Particularly in criminal matters. However, this is not a criminal matter (yet). While it is true that “trial by ambush” is not even allowed in civil cases anymore…they are with these hearings. So the best you can do is find out what was said already, prepare for that and search your mind for anything else that might be floating out there. Something that may have upset the complainant.

Of course, if there were actually acts of abuse you remember inflicting or threatening to inflict on the complainant, you have a head start here.

At the hearing, the matter will be called in whichever courtroom is handling this type of matter as well as other criminal matters.

Oh, I’m sorry. I should not have said “other” criminal matters…because this one is not criminal (yet), right? It is a mere coincidence that this is being heard by the same judge and courtroom who is assigned to handle criminal cases.

When your case is called, you, your attorney and the complainant will approach the bench. If the complainant has brought an attorney (which some folks do), then that attorney will approach as well. If not, the victim/witness advocate will be lending support to the complainant.

Understand where everyone stands realistically when all the formalities and ceremonial lip service to impartiality are over. The complainant has sought protection from the court. Just like when we have discussed how the police behave when determining who is the “good guy” and who is the “bad guy”, the court believes that the complainant is the “victim”. You are therefore presumed to be the “bad guy”.

The judge will allow the complainant to give his/her side of the story. The judge may or may not follow up with questions. Usually, the judge will allow your attorney to ask her a few questions. I must tell you, however, that not every judge will do this. Those that do severely limit any cross-examination.

“But why? I thought I had the right to fully confront my accuser!”

First of all, she is more a “victim” than “accuser” at this point. Further, that is more in criminal cases. Did I mention that, all signs to the contrary, this is not a criminal matter?

In any event, you/your attorney will have a chance to be heard next. How that is handled differs from judge to judge. The judge may follow up and ask you a few questions.

“Can I bring witnesses with me?”

Absolutely. However, the judge may or may not allow them to give testimony. After all, this is not a criminal matter and there is a very busy courtroom here. It is expected that each of these hearings will last between five and fifteen minutes each.

And then the judge will decide.

Specifics of the hearing vary, as I have mentioned. I have seen hearings when defendants (unwisely, without counsel) are simply turned to by the judge after the complainant’s testimony and asked, “Do you have any objections with my continuing my order that you cannot have contact and/or abuse the ‘victim’?”

The befuddled defendant answered, “N-no. I don’t intend to abuse her and I do not want to be in contact with her anymore.”

“Good! I will mark this ‘by agreement’ then”, the judge smiled as he renewed the restraining order which will now hang over the defendant’s head for a year…until it can be renewed again just as easily.

Now, what I have described is not the way it is supposed to work. nor the way the statute was enacted. However, in reality, it is how it usually works. No, not every judge. Not all the time. Some judges really take the defendant’s rights seriously and hold the complainant to some sort of burden of proof.

Sometimes.

Have a great, safe and law-abiding weekend!

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