A Washington Lawyer’s Perspective on Civil Protection Orders vs. Criminal Charges
Overview
For the majority of individuals, the most important distinctions between a civil protection order and a criminal charge are the direct potential ramifications of a criminal case vs a civil case. A criminal charge can produce a criminal conviction that carries a record, jail, fines, probation, restrictions on future on conduct and a criminal record. On the other hand, a civil protection order is simply a civil finding issued by a judge that telling you to do or not to to do things. In a civil protection order hearing, the other side is another citizen: there is no prosecutor in the room advocating for jail or to punish you and no “criminal” record of a charge or conviction. That said, what used to be a simple civil order issued by a judge has blossomed into more trouble these days because the legislature keeps adding things judges can order and these orders keep finding themselves put in a growing number of databases … which have made these civil orders have farther reaching implications and consequences then we as lawyers, who have handled these cases, though likely or possible. There are now real reasons to fight Civil Protection Orders beyond just not liking a judge telling you what to do … these orders now show up now in police warrant databases that keeps track of them for purposes of alleged violations … which means your flagged for border crossings in federal databases, they are showing up as flagging in gun possession databases, and of course there is the civil court’s database. We have had individuals call us upset as their dating profile was flagged because the dating websites now check the court’s civil databases. Our point? The consequences of the civil orders appear to be growing as the databases grow so be careful ignoring them.
So What is the Difference?
Practically, the most important distinction between a civil protection order and a criminal charge from a lawyers prospective is the fact one is a civil case and the other is a criminal case. This difference in classification results in three key technical differences between these types of cases: burden of proof, evidence and declarations.
- Burden of Proof. A civil protection order case must be proven by a “preponderance of the evidence” burden of proof while a criminal case must be proven “beyond a reasonable doubt”.
- What this means is the burden of proof in a civil case is much lower and easier for a petitioner to reach. The petitioner must only prove their case by 50.1%. On the other hand, a prosecutor in a criminal case has to prove there is no reasonable doubt which is the highest burden of proof required by the court system. Civil protection orders are much easier to get.
- Evidence. The Washington Rules of Evidence are generally not applied in civil protection orders as the court is considered sufficiently knowledgeable to give evidence its proper weight. In criminal cases, all evidence is subject to the Rules of Evidence which are designed to keep false or misleading information out of the courtroom so people cannot just say whatever they want in a courtroom. In short, Protections Orders functionally allow a “free for all” of evidence to be presented while criminal cases still remain highly formalized because … the rules of evidence are not directly applied in a civil protection order hearing … because your liberty, via jail, is not directly at issue. This means a lot of evidence which could never be heard in a courtroom can be considered by a judge in a protection order hearing.
- Declarations. Civil protection order cases are to rely on declarations to speed up the process of the hearing, with light testimony as the judge allows meaning … civil protection judge can consider sworn written statements in lieu of live testimony and often does. This type of evidence would not be admissible in a criminal case unless it fell under one of several limited hearsay exceptions and can limit the ability to discern the truth. Criminal cases almost never allow this to happen.
Despite all of these differences, it is also important to remember the two cases can impact one another. Each case does not live in its own universe. Statements made in one case could potentially be brought into evidence in the other case … and often do. As lawyers, we find this is especially important for people responding to civil protection orders to understand. If a Respondent in a protection order hearing writes a declaration, that declaration can and will be used against him or her in a criminal case. For this very reason, it is extremely important for respondents in civil protection order hearings to consult with a knowledgeable attorney before responding to a petition. We advise the same thing in criminal investigations. This extra bit of caution could potentially change the course of a case or be the difference between being criminally charged or not
If you are the concerned about a civil protection order or a criminal investigation or charge, it is important to consult with an experienced firm of lawyers who can help you navigate these difficult waters. The Rhodes Legal Group has collectively decades of experience representing the accused and victims in these kind of civil and criminal cases.
