Legal Question in Criminal Law in California

In a situation where there are no criminal charges, what standard of proof should be used in a civil evidentiary hearing in family court for a domestic violence long-term restraining order? There is no specific language written in the CA civil codes to address this area. One assumption is that this follows civil court procedures, therefore, preponderence of evidence is used. However, DV is encompassed by both criminal and civil codes. And placing a person on trial for DV allegations is more severe than resolving other civil disagreements. Therefore, what standard of proof should be used?


Asked on 1/28/12, 2:07 am

1 Answer from Attorneys
Edward Hoffman Law Offices of Edward A. Hoffman

The correct standard is preponderance of the evidence. There is "no specific language" about this in the code because there is no reason for it. A restraining order case is civil and, with limited exceptions, is subject to the same rules as other civil cases.

That the same acts may also be covered by the Penal Code doesn't matter. If the same defendant is prosecuted for the same acts, the prosecutor will have to prove that case beyond a reasonable doubt. That has no bearing on how the civil restraining order case will be decided.

Many acts are actionable in both civil and criminal cases. Remember O.J. Simpson? He was acquitted in his murder trial because the jury was not persuaded beyond a reasonable doubt that he was the killer. But he subsequently lost a civil wrongful-death case when a different jury was persuaded by a preponderance of the evidence that he was. The cases were about the same alleged conduct, which was both a crime and a civil wrong. The same is often true of the allegations in a domestic violence restraining order case.

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Answered on 1/30/12, 12:50 pm


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