Representing Criminal Defendants with Related Civil Protection Order Hearings

1. Representing Criminal Defendants with Related Civil Protection Order Hearings

2. What You Should Do • Obtain the transcript • Seek to represent your client at the CPO and cross-examine the petitioner / complainant • Advise your client about the consequences of “consent without admission” and choosing to testify

3. Obtain the Transcript • Aiken v. United States, 956 A.2d 33, 50 (D.C. 2008) • We have no doubt that appellant's second claim of ineffectiveness sufficiently alleges deficient performance. Defense counsel had an undoubted duty to investigate the complainant's allegations and the possibility of impeaching her ….

4. Obtain the Transcript …. Counsel's duty to conduct a reasonably thorough investigation presumptively would have obliged her to obtain and review the readily available transcript of Parker's testimony at the CPO hearing, which previewed much of her testimony at trial.

5. Represent Your Client at His / Her CPO • Duty to Investigate (Aiken) • No better opportunity to question the complainant under oath

6. Advise Your Client About the Consequences of … • “Consent without admission” = petitioner / complainant will not testify • Your client’s testimony can be used against him / her - D.C. Code § 16-1002

7. D.C. Code § 16-1002 • The prosecution cannot use respondent’s CPO testimony “as evidence” in a criminal trial or juvenile delinquency trial (except perjury or false statements) • The prosecution can use his testimony for investigation – it can lead the government to other evidence

8. The Way It Was - Aiken v. United States When a complainant seeks a civil protection order based on allegations of intrafamily offenses that are, or may also be, the subject of a criminal prosecution, the respondent is confronted with a potentially difficult choice - whether to testify in opposition to the petition for the CPO. The respondent has a Fifth Amendment privilege against compelled self-incrimination.

9. The Way It Was - Aiken v. United States But remaining silent in the civil case may mean foregoing a defense to the petition and effectively conceding issuance of the CPO. This may result in drastic curtailment of the respondent's liberty [e.g. orders to stay away from respondent’s own children, out of respondent’s own home, or requiring respondent to undergo psychiatric treatment].

10. The Way It Was - Aiken v. United States The respondent thus may be under considerable pressure to testify in the civil proceeding. Yet if he testifies, and in effect waives his Fifth Amendment privilege in that proceeding, he runs the risk of furnishing the prosecutor with evidence out of his own mouth that could be used to convict him.

11. The Way It Was - Aiken v. United States [T]o ensure fairness to the defendant in the concurrent criminal and civil proceedings that henceforth would be authorized, the Council also added an immunity provision. This provision, the second sentence of D.C. Code § 16-1002(c), states that …

12. The Way It Was - Aiken v. United States … “[t]estimony of the respondent in any civil proceeding under this subchapter [including a CPO hearing] and the fruits of that testimony shall be inadmissible as evidence in a criminal trial except in a prosecution for perjury or false statements.”

13. The Way It Was - Aiken v. United States By employing the term “fruits,” Section 16-1002(c) prohibits derivative as well as direct evidentiary use by the prosecution of the defendant's CPO hearing testimony.

14. Now • No more “use” immunity – only admission of the testimony itself is prohibited • No more “fairness to the defendant”

15. Now • The respondent must choose between not testifying and having his / her liberty curtailed OR giving the prosecutor information that can lead to a criminal conviction • Indigent respondents are not entitled to counsel to assist them in making that weighty decision