The Civil Protection filing and litigation although has an expansive reach in enforcing a range of orders, has a limited scope with regards to witness statement under the Jencks Act and generally discovery before the hearing.

Moreover, the threshold burden of proof is rather low.  Specifically, the Statute provides:

If, after hearing, the judicial officer finds that there is good cause to believe the respondent has committed or threatened to commit a criminal offense against the petitioner or against petitioner’s animal or an animal in petitioner’s household, the judicial officer may issue a protection order that:

  1. Directs the respondent to refrain from committing or threatening to commit criminal offenses against the petitioner and other protected persons;
  2. Requires the respondent to stay away from or have no contact with the petitioner and any other protected persons or locations;
  3. Requires the respondent to participate in psychiatric or medical treatment or appropriate counseling programs;
  4. Directs the respondent to refrain from entering, or to vacate, the dwelling unit of the petitioner when the dwelling is:
  5. Directs the respondent to relinquish possession or use of certain personal property owned jointly by the parties or by the petitioner individually;
  6. Awards temporary custody of a minor child or children of the parties;
  7. Provides for visitation rights with appropriate restrictions to protect the safety of the petitioner;
  8. Awards costs and attorney fees;
  9. Orders the Metropolitan Police Department to take such action as the judicial officer deems necessary to enforce its orders;
  10. Directs the respondent to relinquish possession of any firearms;

The Court of Appeals in Green v. Green addressed whether the Jencks Act is applicable to intra family offense matters such as a civil protection hearing or contempt stemming from the order.  In the case, the appellant had contended that his due process rights were violated as the trial judge had denied his request for witness statements pursuant to the Jencks Act.

The DC Jencks Act codified in DC-Rule 26.2 provides:

After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, must order an attorney for the government or the defendant and the defendant’s attorney to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter of the witness’s testimony. 

In short, the court ruled that Jencks Act does not apply to intra family matters and revealing and disclosing of all contemporary statements by the witnesses is not required or warranted.

Civil protection hearings are fast moving with a busy court docket, short notice to appear and very limited time to prepare or to launch discovery.   It is imperative to use the subpoena power to summon all essential witnesses rather than relying on the traditional discovery doctrine and rules.  It is also imperative to engage a seasoned trial lawyer to navigate the case to dismissal or a consent decree with no admission of guilt.

Refer to our Washington DC Civil Protection Lawyer page for more detailed information on this subject.

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