Representing Criminal Defendants with Related Civil Protection Order Hearings.

Representing Criminal Representing Criminal Defendants with Related Defendants with Related

Civil Protection Order Civil Protection Order HearingsHearings

What You Should DoWhat You Should Do

Obtain the transcriptObtain the transcript Seek to represent your client at the Seek to represent your client at the

CPO and cross-examine the CPO and cross-examine the petitioner / complainantpetitioner / complainant

Advise your client about the Advise your client about the consequences of “consent without consequences of “consent without admission” and choosing to testifyadmission” and choosing to testify

Obtain the TranscriptObtain the Transcript

Aiken v. United StatesAiken v. United States, 956 A.2d 33, , 956 A.2d 33, 50 (D.C. 2008)50 (D.C. 2008)

We have no doubt that appellant's We have no doubt that appellant's second claim of ineffectiveness second claim of ineffectiveness sufficiently alleges deficient sufficiently alleges deficient performance. Defense counsel had performance. Defense counsel had an undoubted duty to investigate the an undoubted duty to investigate the complainant's allegations and the complainant's allegations and the possibility of impeaching her …. possibility of impeaching her ….

Obtain the TranscriptObtain the Transcript

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

Represent Your Client at His / Her Represent Your Client at His / Her CPOCPO

Duty to Investigate (Duty to Investigate (AikenAiken)) No better opportunity to question the No better opportunity to question the

complainant complainant under oathunder oath

Advise Your Client About the Advise Your Client About the Consequences of …Consequences of …

““Consent without admission” = Consent without admission” = petitioner / complainant will not petitioner / complainant will not testifytestify

Your client’s testimony Your client’s testimony cancan be used be used against him / her - D.C. Code § 16-against him / her - D.C. Code § 16-1002 1002

D.C. Code § 16-1002 D.C. Code § 16-1002

The prosecution cannot use The prosecution cannot use respondent’s CPO testimony “as respondent’s CPO testimony “as evidence” in a criminal trial or evidence” in a criminal trial or juvenile delinquency trial (except juvenile delinquency trial (except perjury or false statements)perjury or false statements)

The prosecution can use his The prosecution can use his testimony for investigation – it can testimony for investigation – it can lead the government to other lead the government to other evidenceevidence

The Way It Was - The Way It Was - Aiken v. United Aiken v. United StatesStates

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

The Way It Was - The Way It Was - Aiken v. United Aiken v. United StatesStates

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

The Way It Was - The Way It Was - Aiken v. United Aiken v. United StatesStates

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

The Way It Was - The Way It Was - Aiken v. United Aiken v. United StatesStates

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

The Way It Was - The Way It Was - Aiken v. United Aiken v. United StatesStates

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

The Way It Was - The Way It Was - Aiken v. United Aiken v. United StatesStates

By employing the term “fruits,” By employing the term “fruits,” Section 16-1002(c) prohibits Section 16-1002(c) prohibits derivative as well as direct derivative as well as direct evidentiary use by the prosecution of evidentiary use by the prosecution of the defendant's CPO hearing the defendant's CPO hearing testimony.testimony.

NowNow

No more “use” immunity – only No more “use” immunity – only admission of the testimony itself is admission of the testimony itself is prohibitedprohibited

No more “fairness to the defendant”No more “fairness to the defendant”

NowNow

The respondent must choose The respondent must choose between not testifying and between not testifying and having having his / her liberty curtailedhis / her liberty curtailed OR OR giving giving the prosecutor informationthe prosecutor information that can that can lead to a criminal convictionlead to a criminal conviction

Indigent respondents are not Indigent respondents are not entitled to counsel to assist them in entitled to counsel to assist them in making that weighty decisionmaking that weighty decision