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View Full Version : Hearsay evidence is now admissible in issuing permanent restraining orders


RandyD
02-10-2012, 11:10 AM
As many of you may know, I am an attorney that regularly submits posts pertaining to threads about restraining order. I market myself in seeking clients who need a restraining order and those who need to oppose restraining orders. I have been doing this type of work for over 18 years, and the trend has been to issue restraining orders on less evidence.

I represented a client, Mr. Wilson, in the trial phase of Kaiser Foundation Hospitals v. Jeff Wilson. During the hearing, Kaiser’s evidence consisted entirely of hearsay evidence. I asserted the appropriate objections, which preserved Mr. Wilson’s rights on appeal. In response to my hearsay objections, the judge stated on the record, that unless he accepted hearsay evidence he would never be able to issue a restraining order. At the conclusion of the hearing, the judge imposed a restraining order on Mr. Wilson, and an appeal was filed.

On appeal the Fourth District Appellate Court ruled that hearsay evidence is admissible in restraining order hearings. Below is a paragraph taken from the court’s ruling.

“The language of Evidence Code section 1200 does not convince us that hearsay evidence should not be admitted and considered by a court in hearings conducted pursuant to section 527.8, subdivision (f). Evidence Code section 1200, subdivision (b) provides that hearsay evidence is generally inadmissible, [e]xcept as provided by law.” Subdivision (f) of section 527.8 appears to be one of the exceptions to Evidence Code section 1200, subdivision (b), in that it mandates that the court consider, without limitation, “any testimony that is relevant.” In other words, as long as the hearsay evidence presented at a section 527.8 hearing is relevant, the court is to consider it.”

You can read the case in full at: http://caselaw.findlaw.com/ca-court-of-appeal/1587357.html

This impact of this decision is significant and this adversely affects gun rights throughout this state. The California Legislature established the burden of proof to issue a permanent restraining order as clear and convincing evidence, but now the Fourth District Appellate Court has ruled that unreliable hearsay evidence can be used to persuade the court. I spoke to the appellate attorney this morning, and his intent is to appeal this case to the California Supreme Court.

ptoguy2002
02-10-2012, 11:25 AM
That is bad. I hope he does appeal the case and is successful at the higher court.

RMP91
02-10-2012, 11:32 AM
That's it, no intimate relationships for me then. It's not worth the potential (permanent/non expungable) loss of gun/civil rights to be in a relationship with a girl. Single it is, it's for the guns!

Curley Red
02-10-2012, 11:51 AM
That's it, no intimate relationships for me then. It's not worth the potential (permanent/non expungable) loss of gun/civil rights to be in a relationship with a girl. Single it is, it's for the guns!

Problem is that a girl or guy can accuse you even though you are not going out. Remember it is all hearsay now. You can say that you weren't dating but if she says you were then she would probably win.

So keep dating, either way you can get screwed, so why not screw while you can!

IGOTDIRT4U
02-10-2012, 12:00 PM
I'm wondering if they are confusing the legislative intent of 527.8 (f) with a temporary order versus a permanent one. It would seem the standard for admissible evidence/testimony would be lower for a temp order, and the legislature was quite clear about the higher standard for a perm order.

Deucer
02-10-2012, 12:25 PM
Subscribed...

IVC
02-10-2012, 12:26 PM
Interesting reading. Before bashing, I see the point in "any testimony that is relevant" for something that is really supposed to be just a safety buffer and in no way a judgment, conviction or limitation of rights.

Wouldn't it make more sense to address/challenge the firearm implications of a restraining order based on the fact that it can now be based on the hearsay?

OleCuss
02-10-2012, 12:33 PM
Wow!!

Thank you for the update. I'm glad there is interest in appealing the case as it seems to me that the case would tend to promulgate injustice at an amazing scale.

I've not yet read the ruling, but based on the explanation it sounds particularly dangerous as the logic appears to be that the court should admit whatever evidence is required to obtain a conviction?

If I'm reading that right, I'm curious as to whether that logic could be limited to the restraining order field or will it metastasize into various types of criminal cases and become the norm rather than the exception?

I may be letting my imagination run wild, but I find the judgment almost breath-taking.

But IANAL, so I'm often wrong about such things.

nick
02-10-2012, 12:34 PM
Well, this has been the case in family courts for a while (as they rarely follow the law anyway), it's only natural that, since it wasn't nipped in the bud in family courts, it's now spreading beyond them.

odysseus
02-10-2012, 12:36 PM
Shaking head......

RandyD
02-10-2012, 1:04 PM
Well, this has been the case in family courts for a while (as they rarely follow the law anyway), it's only natural that, since it wasn't nipped in the bud in family courts, it's now spreading beyond them.

I understand your comment about family court. However, this restraining order was not a domestic violence restraining order issued in a family court. It was a workplace harrassment restraining order issued in a civil court.

nick
02-10-2012, 1:10 PM
I understand your comment about family court. However, this restraining order was not a domestic violence restraining order issued in a family court. It was a workplace harrassment restraining order issued in a civil court.

I figured. I just think that if something rears its ugly head, and it's not contained/nipped in the bud, it will spread. And it looks like it's spreading.

RandyD
02-10-2012, 1:13 PM
Wouldn't it make more sense to address/challenge the firearm implications of a restraining order based on the fact that it can now be based on the hearsay?

You make an interesting point. California may not be required to apply the Lautenberg Amendment, which is codified as 18 U.S.C. 922(g)(9), which bans people from owning and possessing firearms after a domestic violence conviction. California broadly imposes a firearms ban on anyone subject to any of the four types of restraining orders issued in California courts.

RandyD
02-10-2012, 1:16 PM
I figured. I just think that if something rears its ugly head, and it's not contained/nipped in the bud, it will spread. And it looks like it's spreading.

Exactly. We all know what is truly happening. This is just another attempt by California to infringe upon our Second Amendment rights using lesser standards that do not apply in other legal proceedings.

Ding126
02-10-2012, 1:17 PM
Witch hunts come to mind........

FABIO GETS GOOSED!!!
02-10-2012, 1:37 PM
In your experience, is it typical for trial judges to overrule hearsay objections at these hearings?

bohoki
02-10-2012, 1:40 PM
wait of course testimony must be heard but testimony that is hearsay is not the testimony of the person giving it it would be the testimony of a third party

RMP91
02-10-2012, 1:43 PM
Wait a minute, this means that some random woman off the streets can say that I raped/assaulted her, despite the fact I've never met her/seen her before? Therefore, automatically losing any and all gun rights for life?!

This just screams "back-door" ban to me.

paul0660
02-10-2012, 1:44 PM
It was a workplace harrassment restraining order issued in a civil court.

Holy Crap. I was about to post about seeing hearsay accepted in DV RO's years ago until I noticed this.

Be nice, everyone. Like it will do you any good.


Edit.........after reading, you have one crazy client, RandyD. I hope his checks clear.

mag360
02-10-2012, 1:51 PM
Problem is that a girl or guy can accuse you even though you are not going out. Remember it is all hearsay now. You can say that you weren't dating but if she says you were then she would probably win.

So keep dating, either way you can get screwed, so why not screw while you can!

Date a girl that is into guns/has her own. It cancels out!

RandyD
02-10-2012, 2:17 PM
Edit.........after reading, you have one crazy client, RandyD. I hope his checks clear.

The case that you read was a synopsis of what occurred. You need to understand that printed cases only contain facts that support the court's ruling. What you did not read, was that my client's wife was terminated by Kaiser after working for them for 22 years, she called her husband and threatened to commit suicide and hung up the phone. The husband, my client, called Kaiser and spoke to the supervisor who just terminated his wife, he informed the supervisor that his wife was suicidal and wanted her assistance. The supervisor, told him it was not her problem and hung up on him. He then called the hospital again and got someone to assist him. He never communicated a threat. My client was in a business meeting when he received the call from his wife, and when he made the two calls to the hospital. Everyone present at that meeting submitted a declaration that my client did not communicate a threat. Despite, this the court found that he communicated a threat.

I should add the comment that my client was angry and yelled at the supervisor when she told him that it was not her problem, and I believe it was his display of anger that resulted in the court issuing a restraining order, but this needs to be viewed in the correct perspective. The second person that he called at the hospital agreed to assist him in locating his wife, and my client personally interacted with the second person when he picked up his wife and there was no confrontation, threat or anger resulting from that contact. Further, anger is not a basis to impose a restraining order, but in this ultra sensitive society that we live in, it is not tolerated.

Gray Peterson
02-10-2012, 2:24 PM
The case that you read was a synopsis of what occurred. You need to understand that printed cases only contain facts that support the court's ruling. What you did not read, was that my client's wife was terminated by Kaiser after working for them for 22 years, she called her husband and threatened to commit suicide and hung up the phone. The husband, my client, called Kaiser and spoke to the supervisor who just terminated his wife, he informed the supervisor that his wife was suicidal and wanted her assistance. The supervisor, told him it was not her problem and hung up on him. He then called the hospital again and got someone to assist him. He never communicated a threat. My client was in a business meeting when he received the call from his wife, and when he made the two calls to the hospital. Everyone present at that meeting submitted a declaration that my client did not communicate a threat. Despite, this the court found that he communicated a threat.

That's outrageous.

nick
02-10-2012, 2:44 PM
That's outrageous.

It doesn't sound unusual. How about this for court logic (and I'm not quoting, for shortness, as this whole thing is spread over about 40 pages of transcripts):

"Because the Defendant's statements did not have any contradictions or proven lies in them, while the Plaintiff's statements had multiple contradictions and proven lies in them, the Court is inclined to believe the Plaintiff, as the Defendant is clearly smart enough not to be caught in a lie. As such, anything the Defendant says that contradicts anything that the Plaintiff says is a further proof of the Defendant's untrustworthiness".

Got another pearl somewhere, from a different judge, who declared that following a court order is optional, and thus is not subject to contempt of the court.

I got many more similar rulings, so the OP doesn't surprise me one bit.

RandyD
02-10-2012, 3:06 PM
It doesn't sound unusual. How about this for court logic (and I'm not quoting, for shortness, as this whole thing is spread over about 40 pages of transcripts):

"Because the Defendant's statements did not have any contradictions or proven lies in them, while the Plaintiff's statements had multiple contradictions and proven lies in them, the Court is inclined to believe the Plaintiff, as the Defendant is clearly smart enough not to be caught in a lie. As such, anything the Defendant says that contradicts anything that the Plaintiff says is a further proof of the Defendant's untrustworthiness".

Got another pearl somewhere, from a different judge, who declared that following a court order is optional, and thus is not subject to contempt of the court.

I got many more similar rulings, so the OP doesn't surprise me one bit.

Most of the time the courts' rulings are correct. Sometimes their rulings are unsound, illogical and are the product of the judge's biases and prejudices.

The experience of litigating in court provides a unique perspective.

IGOTDIRT4U
02-10-2012, 3:27 PM
"Because the Defendant's statements did not have any contradictions or proven lies in them, while the Plaintiff's statements had multiple contradictions and proven lies in them, the Court is inclined to believe the Plaintiff, as the Defendant is clearly smart enough not to be caught in a lie. As such, anything the Defendant says that contradicts anything that the Plaintiff says is a further proof of the Defendant's untrustworthiness".



Holy crap!!!

And I thought I have seen odd reasons (opinions) why a Judge picks one parties witness testimony over another.

stix213
02-10-2012, 3:46 PM
So now your constitutional rights can be eliminated using only Hearsay evicence? I can't image that will hold up over the long term.

Flopper
02-10-2012, 3:48 PM
"Because the Defendant's statements did not have any contradictions or proven lies in them, while the Plaintiff's statements had multiple contradictions and proven lies in them, the Court is inclined to believe the Plaintiff, as the Defendant is clearly smart enough not to be caught in a lie. As such, anything the Defendant says that contradicts anything that the Plaintiff says is a further proof of the Defendant's untrustworthiness".


Now I am in space!

:xwing:

w55
02-10-2012, 3:50 PM
Well, this has been the case in family courts for a while (as they rarely follow the law anyway), it's only natural that, since it wasn't nipped in the bud in family courts, it's now spreading beyond them.

Yep...sad but true. i dropped a cool 75K in family court...awesome place..

nick
02-10-2012, 4:11 PM
Most of the time the courts' rulings are correct. Sometimes their rulings are unsound, illogical and are the product of the judge's biases and prejudices.

The experience of litigating in court provides a unique perspective.

Well, my experience is limited to family court, so I'll defer to you on that. I'll admit that my perception is likely skewed, as I've only dealt with the cases where the judges make precisely those unsound, illogical rulings that are the product of their biases, prejudices, or outright corruption. Lots of that going around though, since I have such cases/rulings from most family court judges in CA, and every family court judge or commissioner in L.A. County in the past 3 years.

nick
02-10-2012, 4:14 PM
So now your constitutional rights can be eliminated using only Hearsay evicence? I can't image that will hold up over the long term.

Let's see what the CA Supreme court has to say. The OP did mention that it's being appealed.

And yes, that's precisely the concern here. While normally you can lose your constitutional rights for being convicted of a qualifying crime (i.e. the "beyond reasonable doubt" standard is supposed to apply), in such cases you can lose many of your rights under the "preponderance of evidence" standard, or, in this particular case, even with hearsay being a valid argument.

vincewarde
02-10-2012, 4:26 PM
Sadly, it seems that when some issues are high on the left wing's priority this different rules apply. In addition to this outrage, there is the fact that "informed consent" for abortions is virtually non-existent. No, I am not talking in any way about any reference to the status of the fetus. If a woman has a D&C in a hospital, she will be informed of nearly every possible complication in exactly the same way as any other surgical procedure. If she has exactly the same procedure in a clinic, for the purpose of abortion, that almost always does not happen. If she is informed of complications the list will be much shorter.

IMHO, the law should be consistent - no matter what the politics are. Hersey evidence should be inadmissible at trial. All practitioners should be held to the same standard for informed consent. I simply do not understand how these inconsistencies can be called justice.

jwkincal
02-10-2012, 4:33 PM
The Second Set of Books (http://www.skepticaleye.com/2011/06/second-set-of-books.html) strikes again.

nick
02-10-2012, 4:57 PM
Holy crap!!!

And I thought I have seen odd reasons (opinions) why a Judge picks one parties witness testimony over another.

Want another one? In one of the cases I've dealt with (and for the record, I'm not a lawyer, I just help out in the cases of gross judicial misconduct. It's a hobby of mine), a permanent restraining order was granted because the defendant MIGHT buy a gun. He wasn't a gun owner at the time, and obviously isn't one now, and there were no arguments presented beyond the fact that without a restraining order he might be able buy a gun and do some unspecified harm. This, by the way, is a guy with a squeaky clean record, very even temper, and with little inclination to even buy a gun (he's not into guns).

Munk
02-10-2012, 5:06 PM
This feels so wrong.

IGOTDIRT4U
02-10-2012, 7:09 PM
Let's see what the CA Supreme court has to say. The OP did mention that it's being appealed.

And yes, that's precisely the concern here. While normally you can lose your constitutional rights for being convicted of a qualifying crime (i.e. the "beyond reasonable doubt" standard is supposed to apply), in such cases you can lose many of your rights under the "preponderance of evidence" standard, or, in this particular case, even with hearsay being a valid argument.

And that's the unconstitutional part.

IGOTDIRT4U
02-10-2012, 7:23 PM
Want another one? In one of the cases I've dealt with (and for the record, I'm not a lawyer, I just help out in the cases of gross judicial misconduct. It's a hobby of mine), a permanent restraining order was granted because the defendant MIGHT buy a gun. He wasn't a gun owner at the time, and obviously isn't one now, and there were no arguments presented beyond the fact that without a restraining order he might be able buy a gun and do some unspecified harm. This, by the way, is a guy with a squeaky clean record, very even temper, and with little inclination to even buy a gun (he's not into guns).

It seems that the (some) courts have departed from conviction, to a bastardization interpretation of law to assign penal law to RO's without the proper verdict of the qualifying act that permits revocation of the right.

big red
02-10-2012, 9:57 PM
if you want to dampen this trend have your attorney standing there with a process server to serve libel lawsuit papers for a minimum of six figures for every witness that gives hearsay evidence in court. they are harming you and as such should be sued. And a complaint should be filed with the state agency overseeing the judges conduct. The final act should be to make everything public including the names of everyone including the judge who issued the order. This should rally the public behind you.

RandyD
02-10-2012, 10:03 PM
The Second Set of Books (http://www.skepticaleye.com/2011/06/second-set-of-books.html) strikes again.

This is an excellent link, and deserving of its own thread.

nicki
02-10-2012, 11:07 PM
Maybe I am naive, but isn't there something in either the 5th or 6th amendment about an accused having the right to exam, confront and challenge information against them.:eek:

Isn't there something about the "presumption of Innocence"?:mad:

This is wrong on so many levels, while guns rights are of prime concern in this forum, without the rest of our rights, our gun rights won't survive.

Sounds like our courts have become "star chambers", the very thing we fought a revolution against.

Nicki

cdtx2001
02-11-2012, 5:05 AM
Hearsay is hearsay and if someone really wanted to screw someone over they could make something up.

I've never heard of "relevant hearsay" until now.

What a bunch of BS, this needs to be stopped.

SanPedroShooter
02-11-2012, 5:59 AM
Rumpole of the Bailey rolls over in his grave....

Sgt Raven
02-11-2012, 11:06 PM
Why am I not surprised this involves Kaiser? Now that my wife is gone I'm glad to shake their dust off my sandals. If I never see them again it will be to soon. :mad: Some of the most incompetent medical care I've been forced to be around.

mud99
02-11-2012, 11:30 PM
IMO, a person should be able to ask another person to stay away from them for ANY reason they feel is sufficient or no reason at all.

The problem here is that a "restraining order" is treated like a crime and has implications outside of simply creating a framework for keeping two people apart.

On a side note, why is it always some *completely innocent* man who's crazy wife/gf gets a restraining order on him? :)

Fizz
02-12-2012, 12:19 AM
IMO, a person should be able to ask another person to stay away from them for ANY reason they feel is sufficient or no reason at all.

The problem here is that a "restraining order" is treated like a crime and has implications outside of simply creating a framework for keeping two people apart.

On a side note, why is it always some *completely innocent* man who's crazy wife/gf gets a restraining order on him? :)

I'd be more inclined to agree with your first statement for two people without a mutual association. Though, how often do two people in such a situation have one person that wants to never see/hear from the other again? Generally there's some mutual factor between the two that necessitates force by law to keep those two apart. It can be proximity of residences, work related, relationship related, mutual contact, etc. that necessitates the intervention of law. Otherwise you just have two strangers that nothing really compelling them together to begin with.

Even outside of the implications of a restraining order on record, there are other practical concerns. In the situation described by the OP.... what if the defendant receives(ed) the majority of his medical care at a Kaiser office? What if that was HIS employer provided insurance contract? Should be he precluded from seeing the doctor of whom knows him and his person best? I skimmed the case and he was forbidden from being near ANY Kaiser employee or office or subsidiary. They're a fairly large network and a Kaiser employee could ostensibly have relations with other medical offices even outside the Kaiser group... he could be precluded from the benefits of insurance or other medical care.

His wife might have medical records pertinent to a future medical condition of his wife which may require contact of the Kaiser facility. Patient record law + restraining order may preclude him from getting pertinent records from a previous provider in a timely manner in the event that his wife isn't able to do so herself. Last time I switched doctors I had to sign a release of records, indicating by what authority I was legally able to release them and had to specify to whom.

I don't know if that's the fact of this case nor am I all that familiar with law as it pertains to medicine, or care for a spourse. Just making the point that as with most matters, government can typically only succeed in making life unnecessarily complicated and having far reaching consequences beyond the problem it purports itself to address.

RandyD
02-12-2012, 5:52 AM
I'd be more inclined to agree with your first statement for two people without a mutual association. Though, how often do two people in such a situation have one person that wants to never see/hear from the other again? Generally there's some mutual factor between the two that necessitates force by law to keep those two apart. It can be proximity of residences, work related, relationship related, mutual contact, etc. that necessitates the intervention of law. Otherwise you just have two strangers that nothing really compelling them together to begin with.

Even outside of the implications of a restraining order on record, there are other practical concerns. In the situation described by the OP.... what if the defendant receives(ed) the majority of his medical care at a Kaiser office? What if that was HIS employer provided insurance contract? Should be he precluded from seeing the doctor of whom knows him and his person best? I skimmed the case and he was forbidden from being near ANY Kaiser employee or office or subsidiary. They're a fairly large network and a Kaiser employee could ostensibly have relations with other medical offices even outside the Kaiser group... he could be precluded from the benefits of insurance or other medical care.

His wife might have medical records pertinent to a future medical condition of his wife which may require contact of the Kaiser facility. Patient record law + restraining order may preclude him from getting pertinent records from a previous provider in a timely manner in the event that his wife isn't able to do so herself. Last time I switched doctors I had to sign a release of records, indicating by what authority I was legally able to release them and had to specify to whom.

I don't know if that's the fact of this case nor am I all that familiar with law as it pertains to medicine, or care for a spourse. Just making the point that as with most matters, government can typically only succeed in making life unnecessarily complicated and having far reaching consequences beyond the problem it purports itself to address.

If you take a look at the footnotes of the case, I worked it out with Kaiser's attorney, so that my client was only restricted from going to the 4th floor of the specific hospital. The judge initially ordered a broad order prohibiting my client from being near any Kaiser facility, and I mentioned that such an order would prevent my client from receiving ongoing treatments, so the judge let us work out the details of the restraining order.

RandyD
02-12-2012, 6:00 AM
IMO, a person should be able to ask another person to stay away from them for ANY reason they feel is sufficient or no reason at all.

The problem here is that a "restraining order" is treated like a crime and has implications outside of simply creating a framework for keeping two people apart.

On a side note, why is it always some *completely innocent* man who's crazy wife/gf gets a restraining order on him? :)

Most people when they have a falling out, voluntarily stay away from the other party. In rare cases, people have to be restrained. The real problem is that restraining orders have lots of ancillary effects. A Domestic Violence restraining order on a parent by another parent will have a significant effect on who gets custody of their children. All restraining orders prohibit the restrained person from owning, possesing and using a firearm and ammunition. Employers seek Work Place Harassment restraining orders, to mitigate their exposure to civil liability. In my opinion, restraining orders and their statutory consequences are a means of the government exercising more and more control over its citizens. A spontaneous outburst of anger can now result in the loss of your Second Amendment rights (despite a lifetime of never having anger issues).

ubet
02-12-2012, 6:43 AM
Its not like restraining orders do anything anyways. They do not make an invisible fence around someone so the person that has the order can not approach them. They person with the RO can walk right up to them, still (albeit not legally).

SilverTauron
02-12-2012, 7:20 AM
This is unfortunate development,but the legal system is gradually trending in that direction.In some parts of America anything the woman says equates to grounds for arrest.There essentially is no burden of proof for a domestic violence charge,as in the case of a gun owning man dating a hoplophobic woman. All she need do to ensure there are no guns in the house is to claim DV and bam,man is hauled off to the slam and so are his firearms,which he will have to retain the services of an attorney to ever have a legal shot of preventing their destruction.

Those of us who conceal carry have an even higher level of disaster to guard against when dating women.I personally have been the target of a false assualt complaint where the lying girl claimed that I tried to sexually assault her with a gun.I went straight to the police with evidence that her claims were bunk and the matter was defused by me going to the authorities first,but if she called them first id be dealing with the fallout to this day.

Decoligny
02-12-2012, 8:50 AM
Wait a minute, this means that some random woman off the streets can say that I raped/assaulted her, despite the fact I've never met her/seen her before? Therefore, automatically losing any and all gun rights for life?!

This just screams "back-door" ban to me.

No, that's the way it is now.

What this means, if taken to the extreme is, someone you never met can say that their friend (who you jever met ) TOLD THEM that you raped her, and the hearsay evidence could be taken as factual.

RandyD
02-12-2012, 9:29 AM
The paradox of this ruling is that hearsay evidence is considered unreliable and inadmissible in almost all courts, but the legislature requires a standard of proof of "clear and convincing evidence" before a court can impose a restraining order on someone. That standard is higher than a preponderance of evidence which is the typical standard in civil courts and lower than beyond a reasonable doubt, which is the standard to convict someone of a criminal offense. The only court hearings where hearsay are allowed, IIRC, is juvenile court, small claims court and criminal preliminary hearings.

Fizz
02-12-2012, 1:46 PM
Its not like restraining orders do anything anyways. They do not make an invisible fence around someone

That's all law. Law does not prevent anything. Contrary to popular opinion law can only CREATE crimes; the government is then enabled to exact punishment.

IMO, it's this perspective that causes those of the liberal mindset to believe that the problem of gun violence can be solved with law. This same mindset is what brought to us the 18th Amendment.... and look what that got us. I have similar sentiments for current drug policy and the alarming proportion of citizens subject to the judicial/'corrective' system.

Fizz
02-12-2012, 1:58 PM
If you take a look at the footnotes of the case, I worked it out with Kaiser's attorney, so that my client was only restricted from going to the 4th floor of the specific hospital. The judge initially ordered a broad order prohibiting my client from being near any Kaiser facility, and I mentioned that such an order would prevent my client from receiving ongoing treatments, so the judge let us work out the details of the restraining order.

Ah, I see that now. I think that's a good example of narrowly tailoring law (or judgement) to address the problem. Not that I think any order should have been issued against him at all. But if there was legitimate evidence, that's how the order should be performed, at least based on my limited knowledge of the case.

Though, I think the problem here is that the judge made that broad judgement without consideration to the implications. His broad ruling sounds good on paper, but it's flawed for the reasons mentioned and you saw as well.

Fizz
02-12-2012, 2:05 PM
The only court hearings where hearsay are allowed, IIRC, is juvenile court, small claims court and criminal preliminary hearings.

Oh let's not forget that statements given to the government can only be used AGAINST you, exculpatory statements given to police are forbidden as hearsay.

IMO people need to stress the 5th and 6th amendments. Not that their influence isn't declining daily.

battleship
02-12-2012, 2:20 PM
They are coming for us all, this is just mind blowing.

IVC
02-12-2012, 2:22 PM
Oh let's not forget that statements given to the government can only be used AGAINST you, exculpatory statements given to police are forbidden as hearsay.

Inadmissible you will find.

The problem is not that a restraining order is easy to get. After all, it is just a "time out" for adults until courts can sort it all out. The problem is that the restraining order has automatic implications on firearm ownership, which until recently has not been considered a fundamental, individual human right. Now that it is, the question is more of whether a restraining order can limit firearm ownership due to its inherent lack of due process, rather than whether a restraining order itself requires a due process.

Fizz
02-12-2012, 2:38 PM
Inadmissible you will find.

The problem is not that a restraining order is easy to get. After all, it is just a "time out" for adults until courts can sort it all out. The problem is that the restraining order has automatic implications on firearm ownership, which until recently has not been considered a fundamental, individual human right. Now that it is, the question is more of whether a restraining order can limit firearm ownership due to its inherent lack of due process, rather than whether a restraining order itself requires a due process.

No objections here. ;)

chiselchst
02-12-2012, 3:35 PM
The paradox of this ruling is that hearsay evidence is considered unreliable and inadmissible in almost all courts, but the legislature requires a standard of proof of "clear and convincing evidence" before a court can impose a restraining order on someone. That standard is higher than a preponderance of evidence which is the typical standard in civil courts and lower than beyond a reasonable doubt, which is the standard to convict someone of a criminal offense. The only court hearings where hearsay are allowed, IIRC, is juvenile court, small claims court and criminal preliminary hearings.

This statement confuses me. So hearsay on it's own can be used to reach a ruling of "clear and convincing evidence"?

Kid Stanislaus
02-12-2012, 6:06 PM
That's it, no intimate relationships for me then. It's not worth the potential (permanent/non expungable) loss of gun/civil rights to be in a relationship with a girl. Single it is, it's for the guns!

It looks like the rolls of PWU (Pud Whackers Unanimous) will increase expodentially!!:eek:

RandyD
02-12-2012, 7:12 PM
Law does not prevent anything. Contrary to popular opinion law can only CREATE crimes; the government is then enabled to exact punishment.

Well said. I have attended legal seminars where we were told that restraining orders work. I disagree and I base my opinion on my experience of representing people who have been served a restraining order. Most cases, that I have dealt with involve minor verbal altercations. This state is now imposing penalties on people for venting their anger. In my experience, many of the clients that I have represented, had already distanced themselves from the person seeking the restraining order, and the service of process of a restraining order reestablishes contact and a continues the conflict.

RandyD
02-12-2012, 7:18 PM
Oh let's not forget that statements given to the government can only be used AGAINST you, exculpatory statements given to police are forbidden as hearsay.

IMO people need to stress the 5th and 6th amendments. Not that their influence isn't declining daily.

Actually, statements made by parties to a civil or criminal action are by statute not hearsay, so anyone who hears a party make a statement can repeat them in court and they are admissible evidence. An attorney introducing such statements will cherry pick what statements are to be introduced, and if the party wants to add the other statements he or she made, will have to testify. This is a typical tactic of prosecutors, they use partial statements made by defendants knowing that most defendants will not testify on their own behalf.

RandyD
02-12-2012, 7:21 PM
This statement confuses me. So hearsay on it's own can be used to reach a ruling of "clear and convincing evidence"?

The answer to your question is, yes. Your statement more clearly reflects the paradox that I mentioned above.

Fizz
02-12-2012, 8:19 PM
Actually, statements made by parties to a civil or criminal action are by statute not hearsay, so anyone who hears a party make a statement can repeat them in court and they are admissible evidence. An attorney introducing such statements will cherry pick what statements are to be introduced, and if the party wants to add the other statements he or she made, will have to testify. This is a typical tactic of prosecutors, they use partial statements made by defendants knowing that most defendants will not testify on their own behalf.

I should have clarified the circumstance.

If a defense attorney on cross examination of an officer asks that the officer repeat and exculpatory statement that was made by the defendant during question the officer's response is inadmissible hearsay.

At least that's my understanding based on one of the most important videos on youtube.@9:20

6wXkI4t7nuc

bubbapug1
02-12-2012, 10:22 PM
Randy do you think this ruling may eventually be reversed during the appeal process? It could be due to one very misinformed or illogical judge.

RO's are a weapon more than a deterrent...but in reality they can't stop 168 grain smks correct?

RandyD
02-13-2012, 7:44 AM
I should have clarified the circumstance.

If a defense attorney on cross examination of an officer asks that the officer repeat and exculpatory statement that was made by the defendant during question the officer's response is inadmissible hearsay.

At least that's my understanding based on one of the most important videos on youtube.@9:20

6wXkI4t7nuc

I watched the segment of the video you cited. The hearsay exception is referred to as an "admission of a party opponent". I have always used this exception to introduce both admissions and exculpatory statements, but (without researching this issue) it may only be limited to admissions as the speaker in the video stated.

RandyD
02-13-2012, 7:47 AM
Randy do you think this ruling may eventually be reversed during the appeal process? It could be due to one very misinformed or illogical judge.

RO's are a weapon more than a deterrent...but in reality they can't stop 168 grain smks correct?

Unfortunately, appellate court prefer to defer to the discretion of a lower court, so overturning this ruling places us in an uphill battle.

You are correct, a RO will not stop a bullet, knife or fist, but laws don't stop murder, burglary, theft, but that does not hinder liberals from passing more laws and making more and more conduct illegal.

Glock22Fan
02-13-2012, 9:57 AM
Wait a minute, this means that some random woman off the streets can say that I raped/assaulted her, despite the fact I've never met her/seen her before? Therefore, automatically losing any and all gun rights for life?!

This just screams "back-door" ban to me.

No, what it means is that some woman off the streets, that you have never met, says that some other woman off the streets (ditto) said that you raped her (the second woman).

Scott Connors
02-13-2012, 10:41 AM
IMO, a person should be able to ask another person to stay away from them for ANY reason they feel is sufficient or no reason at all.

The problem here is that a "restraining order" is treated like a crime and has implications outside of simply creating a framework for keeping two people apart.

On a side note, why is it always some *completely innocent* man who's crazy wife/gf gets a restraining order on him? :)

Because men are culturally conditioned (even in Kalifornia) to stand up for themselves, be self-reliant, and not go whining to mommie, whereas women have been subjected to constant indoctrination since the Sixties that if some evil, swinish, X-chromosome challenged [cue: lightning and Bach Toccata and Fugue in D Minor] MAN :eek: so much as looks at them cross-eyed that he is EVIL and MUST BE DESTROYED (for the children, of course).

POLICESTATE
02-13-2012, 11:11 AM
It would seem then that people could conspire together to file RO's on just about anyone, all they have to do is conspire on the "evidence" and they're more or less going to be successful?

bubbapug1
02-13-2012, 11:39 AM
Unfortunately, appellate court prefer to defer to the discretion of a lower court, so overturning this ruling places us in an uphill battle.

You are correct, a RO will not stop a bullet, knife or fist, but laws don't stop murder, burglary, theft, but that does not hinder liberals from passing more laws and making more and more conduct illegal.

I don't think liberals have a lock on passing laws to make people felons even if they don't do anything. I would venture to guess the assault weapon ban in california created many felons, perhaps in the thousands...without any action required other than owning a gun which was legal the day before.

The Roberti-Roos Assault Weapons Control Act of 1989 or AWCA, enacted by the state of California, banned over fifty specific brands and models of firearms – while mostly rifles, some were pistols and shotguns.


Signed into law by George Deukmejian

The .50 Caliber BMG Regulation Act of 2004 is a law in the state of California that effectively banned all .50 BMG-caliber rifles from being sold in the state. The law took effect on January 1, 2005

Signed into law by the gropenator....

Facts are inconvenient things!!!

The fact is both sides of the political spectrum are equally anti-gun, but one side denies it.

RandyD
02-13-2012, 12:00 PM
@bubbapug1, you are correct some Republicans have supported gun laws and other foolish legislative ventures. Those that have done this are not conservatives, they are RINOs. However, it is the liberal mindset that leads the charge in creating and passing these foolish policies.

NoHeavyHitter
02-13-2012, 12:28 PM
Wow! So in short, rumor and conjecture can now be treated as prima facie evidence in stripping a citizen of their constitutional rights?

Deucer
02-13-2012, 4:16 PM
Wow! So in short, rumor and conjecture can now be treated as prima facie evidence in stripping a citizen of their constitutional rights?

Yes.

ClarenceBoddicker
02-14-2012, 7:52 AM
How about lots of men flooding the courts with BS ROs against women? That would sure get the media's attention. If I get the trend here, all you would have to do is find a woman who looses her temper & yells at you? Could you go to a bar, get yelled at by a drunk woman & then try to get a RO on her? Not that it would be the right thing to do of course. Seems like it's one of those things that is only good for the goose and not the gander. Another reason to flee California, but the rest of the US will follow everything CA does at some point, if the US lasts that long.

randian
02-14-2012, 8:16 AM
How about lots of men flooding the courts with BS ROs against women? That would sure get the media's attention. If I get the trend here, all you would have to do is find a woman who looses her temper & yells at you? Could you go to a bar, get yelled at by a drunk woman & then try to get a RO on her?
You could try that, but judges don't automatically grant ROs for men like they do for women.

jwkincal
02-14-2012, 1:44 PM
You could try that, but judges don't automatically grant ROs for men like they do for women.

What? I thought we had gender equality in this country? What about all those women who fought for... oh, never mind.

Glock22Fan
02-14-2012, 5:09 PM
What? I thought we had gender equality in this country? What about all those women who fought for... oh, never mind.

It is the victim mentality.