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No Blanket Rule Against Live Testimony and Cross-Examination in Washington Protection Order Cases

Courts in Washington protection order cases do not always have to allow live testimony or cross-examination, pursuant to the Domestic Violence Prevention Act.  The trial court or commissioner should perform a balancing test, weighing the value of cross-examination against the potential harm to the witness.  The Washington Supreme Court has stated that courts must conduct “individual inquiries” to determine if live testimony or cross-examination is appropriate in the particular case. Courts are not allowed to issue a “bright line rule” to prohibit testimony or cross-examination in protection order hearings.

A man recently challenged the denial of his request to cross-examine the petitioner and present his own testimony in a protection order hearing.  The petitioner petitioned for a domestic violence protection order against the respondent.

A temporary protection order was entered.  At the hearing, the commissioner allowed the petitioner to speak to “add to her declaration.”  The commissioner denied the respondent’s attorney’s request to cross-examine the petitioner and present testimony.  The commissioner stated, “I’m not going to take testimony at these hearings” and referenced Gourley v. Gourley.  The respondent’s attorney argued that case did not hold that cross-examination was always inappropriate in protection order cases.  The commissioner stated that the respondent could testify only by submitting a declaration.  The respondent agreed to a continuance so he could submit documentary evidence.

In the respondent’s declaration, he conceded the parties had argued but denied the other allegations in the petition.  He claimed the petitioner hit him in the face with a cell phone while he was sleeping.  He stated she thought he was cheating on her and was “out of control.” He stated he demanded she leave, but did not assault her.  Both parties submitted photographs and additional documentary evidence.

At the subsequent hearing, the commissioner asked the petitioner to describe the relationship and the events leading up to the incident.  The commissioner did not ask the respondent to speak.  The respondent’s attorney renewed his objection.  The commissioner ultimately let the respondent respond to some of the allegations the petitioner made at the hearing.

The commissioner entered a protection order for one year.  The respondent moved for revision and the petitioner objected.  The superior court denied the motion, finding the commissioner had considered “a substantial body of information from both sides…” The respondent appealed.

The petitioner attempted to distinguish the current case from the Washington Supreme Court cases Gourley v. Gourley and Aiken v. Aiken.  In this case, the witness to be cross-examined was an adult who could sign an affidavit.  In the other cases, the witnesses were minors, but the appeals court noted they were teenagers who could also write statements.

In those cases, the courts exercised their discretion based on the specifics of the cases.  In this case, the commissioner indicated live testimony and cross-examination were not allowed in any protection order hearings.  In considering the respondent’s revision motion, the superior court even recognized that Aiken would not allow a blanket rule against live testimony and cross-examination in protection order hearings. The superior court had not conducted the required balancing test.  The appeals court found that the record suggested the petitioner could testify and respond to questions by counsel.

The appeals court found the superior court did not apply the appropriate standard, abused its discretion, and denied the respondent his right to be heard. The appeals court reversed.

Whether you are seeking or opposing a protection order, a skilled Washington civil protection order attorney will fight for you and protect your rights.  Call Blair & Kim, PLLC, at (206) 622-6562 to schedule an appointment.

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