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There seems to be a growing trend in the number of dissolution cases that occur simultaneously with an order of protection hearing.  Sometimes when tensions are high and the relationship has broken down, tempers escalate and the police may become involved.  This can also lead to criminal charges.

In addition to criminal charges, one party may also petition the court for an order of protection (what most people know as a restraining order).  Whether or not a temporary order of protection is granted is based on the allegations of the petitioning party, and the law requires that an order of protection hearing be held within a certain number of days so that the accused has an opportunity to defend his or herself.  And therein lies the rub.  These people are often potentially facing criminal charges, the temptation to defend oneself is great, but the knowledge that anything you do or say can be used against you also reverberates through one’s mind.

The Fifth Amendment of the United States Constitution provides that:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

USCS Const. Amend. 5.  This right is incorporated through the 14th Amendment of the United States.  Montana also has a constitutional provision against self-incrimination. Mont. Const., Art. II § 25 provides that no person shall be compelled to testify against himself in a criminal proceeding. No person shall be again put in jeopardy for the same offense previously tried in any jurisdiction.

To be clear, order of protection hearings are civil in nature.  The burden of the petitioning party to prove their case is much lower than that of a criminal proceeding.  Based on the plain language of the fifth amendment, one might be prone to believe that they might not even be able to assert their fifth amendment rights in an Order of Protection hearing.   However, the United States Supreme Court has found that the Fifth Amendment privilege may be asserted in any proceeding, “be it criminal or civil, administrative or judicial, investigatory or adjudicatory.” In re Commonwealth Financial Corp., 288 F. Supp. 786, 789; citing United States v. Goldsmith, 272 F. Supp. 924, 926 (E.D.N.Y.1967), citing Murphy v. Waterfront Commission, 378 U.S. 52, 94, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964).  The Fifth Amendment privilege against self-incrimination protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.  Kastigar v. United States, 406 U.S. 441, 442.

Thus, an individual that has been summoned to an order of protection hearing could potentially be facing criminal charges in a matter directly related to the order of protection proceeding.  Although this matter is civil in nature, according to Commonwealth and its many predecessors, the fifth amendment right against self-incrimination is to available for a person to invoke.  The accused is able to reasonably believe that any disclosures he or she may make to a court could potentially be used against them.  This is the bar that was set in Kastigar and a person facing an order of protection easily meets that threshold.

Should you invoke your 5th amendment right not to testify at an order of protection hearing?  That is a fact specific inquiry that the attorneys at Bryan, diStefano & Mattingley PLLP would be happy to explore with you.  Contact their office today to set up a consultation.  Know your rights before stepping in to the courtroom.