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Position Paper on State v Fernando A

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Memorandum that DVCC legal advocates drafted and submitted to our criminal justice partners, including our local criminal court judges and prosecutors, in response to the decision handed down in State v. Fernando A.

Note: What follows is a Memorandum that DVCC legal advocates drafted and submitted to our criminal justice partners, including our local criminal court judges and prosecutors, in response to the decision handed down in State v. Fernando A.

The Domestic Violence Crisis Center (DVCC) is a full-service agency with a professional staff dedicated to assisting individuals impacted by domestic violence in the communities of Stamford, Norwalk, Westport, Darien, New Canaan, Wilton, and Weston.  The DVCC maintains legal staff in the courthouses  within our catchment area, both in Stamford and Norwalk.

We are writing to your honor because we are very concerned about the recent Connecticut Supreme Court decision, State v. Fernando A., concerning Criminal Protective Orders in Family Violence cases pursuant to Sections 54-63c (b) and 46b-38c, and its implications for victims of domestic violence.  Our primary concern is that an undue burden may be placed on our clients, the victims of domestic violence, through the compulsion of complainant testimony at these “Fernando Hearings.”  It is our belief that an interpretation of the Fernando case exists which both stays true to the spirit of the case—to afford the defendant more process—and also protects the safety of our victims. 

In the most relevant part, the Fernando case holds that:

“…the trial court is required to hold, at the defendant’s request made at arraignment, a subsequent hearing within a reasonable time wherein the state will be required to prove the continued necessity of that order by a fair preponderance of the evidence, which may include reliable hearsay, and the defendant will have the opportunity to proffer relevant evidence to counter the state’s case in support of the criminal protective order through his own testimony or that of other witnesses.”

The DVCC interprets this to say that: 1) the court must grant a defendant a hearing on the order of the protection when requested at the initial arraignment; 2) this hearing must take into account a greater breadth of information than at the initial hearing; 3) the state bears the burden of proving the “continued necessity” of the order by a  preponderance of evidence standard; 4) the hearing is not a formal adjudicative hearing—the rules of evidence do not apply and evidence by the state may include reliable hearsay; and 5) the defendant does not have a right to present evidence, but may proffer it.[1]

As a result of this interpretation, we believe that the case law does not require the court to compel the complainant to testify.  The state may proceed exclusively by proffer; this may include reliable hearsay, such as the police report or perhaps the testimony of the family relations counselor who spoke with the defendant and/or victim before making recommendations to the court.  It is then up to the defendant to proffer evidence showing there is good reason to question the veracity or reliability of the State’s proffered evidence.  If the trial court accepts the defendant’s proffer, it may then permit testimony from the complainant or other witnesses, including the defendant, in its discretion, if such testimony is needed to determine the continued necessity of the order. 

In no case, however, should the complainant be subpoenaed as a matter of course for each hearing.  This practice has the unintended consequence of endangering the safety of the complainant.  As we have already seen in the Norwalk Courthouse, the subpoenaed complainant may feel compelled to agree to a modification of the protective order, even if it may not be in his or her best interest, in order to avoid taking the stand and subjecting themselves to a rigorous cross examination in the hands of their abuser’s attorney, in front of their abuser.

To support our belief that the complainant should not be subpoenaed as a matter of course, we would direct your honor’s attention to Fernando, Footnote 25, which states in relevant part:

“We … emphasize that the state is not required to call a family violence complainant to testify at the subsequent hearing, and the trial court retains considerable discretion about whether to grant such a request by the defendant. To the extent that a defendant does ‘proffer a highly damaging challenge’ to a complainant’s account, ‘virtually compelling the state to call victims in order to prove the necessity of continuing the order,’ that concern is dependent solely on the trial court’s assessment of the credibility of defense.”

We submit to your honor that this language suggests that a best practice in addressing a defendant’s request for a Fernando Hearing, which would comply with the due process requirements outlined in Fernando, yet only require a complainant’s testimony in rare cases, would be for a member of the judiciary to meet with defense counsel and a representative from the State Attorney’s Office to examine and consider each party’s proffer. If the judicial representative believes that the defendant’s challenge appears credible and highly damaging to the State’s proffer, a more formal adjudicative hearing could be scheduled and only at that time would a subpoena for the complainant be issued.

Many times, unfortunately, our client’s first call to the police, which results in the first court case, is not the first incidence of violence—rather it is the culmination of many years of abuse.  An abusive relationship may go on for years before the victim finds the incredible strength to speak out against the abuse and involve law enforcement.  We believe that as a part of the criminal legal system which is entrusted with the great responsibility of keeping victims safe, it is our obligation to continue to protect the complaining parties in these Fernando hearing as much as the countervailing interest—the defendant’s due process—allows.  It is for these reasons why we believe that it will be a rare exception, rather than a general rule, where the defendant can proffer sufficient evidence to necessitate the subpoena of a complainant.

We thank you very graciously for your time, and would be very happy to discuss our position on this matter with you at your convenience.  Advocates can be reached daily at our courthouse offices, or at our headquarters in Stamford at (203) 588-9100.   

Yours Respectfully,

Andrea Dahms, J.D.                                       Katie Pawlik, J.D.

Victim Advocate, DVCC                                Victim Advocate, DVCC

[1] In formulating this interpretation, we rely heavily upon the memos issued on this topic from the Honorable Patrick J. Clifford, Chief Administrative Judge of the Criminal Division, and the Office of the Chief State’s Attorney (both attached).