To testify or not to testify? That is the question. To paragraph from the Immortal Bard, that is the issue that confronts many a practitioner when he is representing a client who is charge with domestic battery and also is the respondent in an order of protection case where an emergency OP has been issued. You come to court with your client on the return date for the OP hearing and the complainant is present. Does your client testify or not? Do you risk subjecting him to cross-examination which could come back to haunt him/her in the criminal case or risk having a two year plenary order entered. If there are children involved, do you risk having your client be barred from contact with the children for two years? What do you do? What are the implications if the client does not testify? How will the court treat the situation? A recent decision by the Second District in the case of Peo. v. Houar 1 gives us great guidance in this area.
Factually in Houar, the Petitioner and Respondent were divorced. There were four children of the marriage and per the judgment for dissolution, Petitioner was granted custody with the Respondent having visitation, although not overnight. During a visitation, an incident occurred which resulted in the Petitioner seeking an emergency order of protection, ex parte and without notice. She claimed in her petition that the Respondent Father struck one of the children with a rod, causing a welt on her leg. She also caused a criminal charge of domestic battery to issue with the Respondent Father being arrested and posting bail with the criminal case pending at the time of the return on the order of protection.
When the hearing commenced, the trial court inquired whether Respondent would be testifying and the court was advised by his counsel that he would not, although the Respondent was present in court. The hearing then commenced with the Petitioner testifying that on July 2, 2005, their children spent the day of approximately 10-11 hours with Respondent at this residence. Upon returning home, one of the daughters was shaking, crying and extremely upset. She had a raised red welt on her leg that was approximately two inches long and 1/4 inch wide. The girl did not have the welt before spending the day with her Father. Petitioner took the daughter to the police department and Respondent was subsequently arrested. The Petitioner testified that seeing the welt on the daughter’s leg made her "extremely fearful" that "there’s more physical and sexual abuse." There was no cross-examination of the Petitioner and the State then rested its case. Counsel for the Respondent did not move for directed finding, call any witnesses or testify on his behalf. Both sides waived closing and the court then entered a two year plenary order of protection with no contact between the Respondent and his four children.
The Court’s ruling was as follows: The standard of proof here is preponderance of the evidence. The respondent has refused to testify, which is his right under the fifth amendment. The court, in a civil proceeding, can make certain inferences from the refusal to testify. The testimony of the witness Denise Houar is that the child, Aubrey, 13, was in the care and custody of the - the exclusive care and custody of the respondent for a period of 11 hours, at which time she returned to her home with a welt on her leg. The burden of preponderance of the evidence, not proof beyond a reasonable doubt. A plenary order of protection will issue.
Immediately after the court’s ruling objection and exception were taken to the court’s ruling and its application of any negative inference. The court respondent that it was permissible for a court to draw negative inferences in a criminal case where a party failed to testify. Thereafter, a motion to reconsider was timely filed and argued, with the trial court maintaining its position and a timely notice of appeal was filed with a motion to expedite the appeal later filed and granted.
The Appellate court viewed this case not by whether or not the Petitioner had made out a prima facie case, as was argued by the Respondent, but whether or not the evidence met the standard of preponderance of the evidence and the application of the concept of the negative inference.
As to the negative inference, the Court recognized the Fifth Amendment against self-incrimination and that it can be invoked in any proceeding, civil or criminal in which the witness reasonably believes that the information sought or discoverable as a result of the witness’s testimony, could be used in a subsequent criminal proceeding against him or her, citing Allen v. Illinois 2 The court further indicated that the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties in civil actions when they refuse to testify in response to probative evidence offered against them, citing Peo v. $1,124.95 USC & One 1988 Chevrolet Astro Van 3
However, the court stated that its research did not find cases addressing the application of negative inference against a respondent who refused to testify in a civil order of protection hearing when criminal charges, based on the same alleged conduct, are simultaneously pending.
The court found instruction in Giampa v. Illinois Civil Service Commission 4 where negative inferences were deemed to be proper, but also cited its own ruling in Peo ex rel Sherman v. Cryns 5 indicating that while a negative inference is permissible, it is not required. While conceding that a defendant/respondent is in a difficult position of choosing between risking self-incrimination on one had and the loss of visitation or custody on the other, it declined to carve out a different rule in order of protection cases. The court then went on to address the application of the negative inference to the instant case.
The court found that a fifth amendment invocation cannot on its own, constitute the basis of a guilty finding. LaSalle Bank v. Seguban 6 . The Federal Appellate Court held that "Silence is a relevant factor to be considered in light of the proffered evidence, but the direct inference of guilt from silence is forbidden." The Second Dist. Court then went on to hold that the general rule is that a negative inference may be drawn when a party in a civil proceeding fails to testify in response to probative evidence. (Emphasis original) An accusation of misconduct is insufficient to satisfy the probative evidence requirement; the complainant must produce evidence in support of allegations. So, if the court has other evidence of alleged misconduct, the court may then constitutionally consider the party’s silence as additional supporting evidence.
In this case, the Court found that the requisite probative evidence was missing. There was a verified petition for emergency order of protection alleging that the Respondent struck Aubrey with a rod, causing a welt on her leg, but at the hearing on the plenary order, the State put forth no evidence to support those allegations. Its only witness established only that Aubrey, after being in Respondent’s exclusive control, was upset and injured. There was no evidence or testimony regarding how the injury occurred or whether Respondent in fact inflicted the injury. Therefore, the trial court’s application of the negative inference was effectively the same as deeming the Respondent’s silence as an admission of the allegation. To quote the court, "In other words, Respondent’s silence was not additional evidence pointing to abuse, it was the only evidence. The direct inference of guilt from silence is improper."
As a caveat, the Court also advised that there may be times when a negative inference is the final piece that tips the scales in the State’s favor and the State should not be required to meet the preponderance burden before a negative inference may be applied. However it cautioned that there must be some probative evidence proffered that supports the allegations before a negative inference may be applied.
As a note for strategy, this matter arose due to the circumstances where the incident occurred while the Respondent has custody of the children. Since only the mother/petitioner was going to testify, there was the issue of hearsay in trying to prove the case. The State could have tried to call the Respondent as an adverse witness but made no attempt to do so. The State could have tried to call the Respondent as an adverse witness but made no attempt to do so. As a tactic, may one consider trying to ascertain if there is only a hearsay witness who will testify in support of the petition for order of protection? If so, if the Respondent is not in the courtroom, is he "choosing not to testify" so as to get into the issue of negative inference? May the court draw the negative inference by the Respondent’s failure to appear at the hearing or not? Can you have your client present in the courtroom and then leave before the hearing starts? Or, can you have your client present, advise the court that you have not made up your mind if your client will testify and then make the call after the State has rested? Those may be appellate issues for another day. However, for the present, be sure to make a motion for directed finding at the close of the Petitioner’s case and do not get caught up on the court trying to move on to your defense and arguments when the issue of prima facie case has not even been decided.
1 People v. Houar 2-05-993.
2 Allen v. Illinois, 478 US 364, 368 92 L.Ed 2d 296, 303-04, 106 S.Ct. 2988, 2991 (1986); Peo v. James, 304 Ill. App 3d 52, 59 (1999).
3 Peo v. $1,124.95 USC & One 1988 Chevrolet Astro Van, 17 Ill. 2d 314 332 (1997) quoting Baxter v. Palmigano, 425 US 308, 318 47 L.Ed 2d 810, 821, 96 S.Ct. 1551, 1558 (1976).
4 Giampa v. Illinois Civil Service Commission, 89 Ill. App. 3d 606 (1980) and Jacksonville Savings Bank v. Kovack, 326 Ill. App. 3d 1331.
5 Peo ex rel Sherman v. Cryns, 327 Ill. App. 3d 753, 756 (2002).
6 LaSalle Bank v. Seguban, 54 F. 2d 387, 390 (7th Cir., 1995).
Thomas J. Laz is a former public defender in private practice since 1987. He is currently a sole practitioner in Naperville with a general practice, concentrating in criminal defense, traffic, juvenile.