Should your CPO/ASO case “trail” your criminal matter?

Domestic violence charges in criminal court are frequently accompanied by a petition for a civil protection order (CPO) or anti-stalking order (ASO).

This is because one incident can lead to two separate cases – one criminal and the other civil. 

The target of misconduct allegations can be simultaneously the defendant in a criminal case and the respondent in a civil case.

The civil case will proceed much more quickly.  This is because, absent consent by both parties, the hearings can only be extended in 14- or 28-day increments while criminal cases can drag for months and even years.

This disparity in timeframe often leads to agreement by the parties that the CPO/ASO case will “trail” the criminal case.  In other words, the criminal case will go first. 

The court definitely prefers this approach because it could save time.  If, for example, the defendant is found guilty on the same set of facts in the criminal case, there is no need to re-litigate the same matter at a CPO/ASO trial.  The court can simply grant the protective order.

The Petitioner prefers this approach.  The Petitioner only needs to testify once – at the criminal trial.  And the Petitioner does not tip the Respondent off to the substance of the Petitioner’s case during the CPO/ASO trial – information that the Respondent would use to prepare for the criminal proceeding.

But how the trailing the criminal matter benefit the Respondent or Defendant? 

The most frequently used justification is that anything the Respondent testifies at the CPO trial can be used against him/her at the criminal trial.

This is wrong.  According to D.C. § 16-1002:  “Testimony of the respondent in any civil proceedings . . . shall be inadmissible as evidence in a criminal trial . . . except in a prosecution for perjury or false statement.”  See also D.C. Superior Court Rule of Domestic Violence Rule 12(a)(4).

In any other words, the respondent can testify at CPO/ASO hearing without fear that the same words can be used against that person during the criminal crime.

And there are tremendous benefits to the respondent of having the CPO/ASO case tried first.  For one thing, you get a first shot at cross-examining the petitioner under oath.  You have a preview of their criminal trial testimony.  And the testimony is under oath and transcribed.  The petitioner/complainant’s credibility can be impeached if the testimony deviates in even small ways. 

Koehler Law has extensive experience dealing with precisely this situation.  In one case, for example, we had extensive phone records and surveillance/CCTV recordings that completely disproved the petitioner’s version of events.  We questioned her under oath at the CPO hearing, thereby locking in her perjured testimony, without using any of our evidence at the CPO hearing.  We then ordered the CPO transcript and were then “locked and loaded” in preparation for the criminal trial in which our client was facing far more serious felony charges.