The Connecticut Supreme Court ruled on Nov. 3 that after a trial court issues a protective order in a domestic violence case, it is required to hold an evidentiary hearing, if the defendant requests one. The evidentiary hearing calls for a lower standard of proof typically applied in civil cases and reliable hearsay evidence is admissible. However, the burden remains on the State to show that the protective order is necessary. The 5-2 ruling by the Connecticut Supreme Court upheld the right of the trial court to continue issuing protective orders based on oral arguments and the family services report when the defendant is arraigned.
In March 2008, the ACLU-CT filed an amicus brief arguing that due process requires an evidentiary hearing before a court can issue a protective order that deprives an individual of the fundamental rights of entering their own home and associating freely with their children. According to ACLU-CT staff attorney David McGuire, "The decision strikes the appropriate balance between protecting victims and providing people accused of crimes the due process to submit evidence and refute those allegations."
The ACLU-CT strongly supports the rights and protections afforded to survivors of domestic violence. Additionally, it is clear that the state has a very strong interest in preventing and prosecuting acts of domestic violence. However, the Fifth Amendment right to due process must not be set aside during emotionally charged situations when individuals' fundamental rights and liberties are at stake. The ACLU-CT is encouraged that the Connecticut Supreme Court balanced protection for survivors of domestic violence with the rights of accused persons to submit evidence and cross-examine witnesses in order to effectively rebut allegations.
