Once a Judge Denies a Motion to Sever Charges Can You Ask Him to Do It Again?
Law is never easy. Practicing law tin can be even less and then. How about going it on your own without an attorney? Not everyone may know that a "pro se" litigant acting on his or her own behalf is expected to know all of the rules and law that apply to their given case. Even so, going through the process of litigation, let solitary actualization in court and proceeding through a trial, can be overwhelming for even the near knowledgeable of cocky-represented litigants (not to mention some licensed attorneys).
What happens, and so, in a case where the self-represented litigant is denied the ability to question a witness and present his case? That was the scenario in C.H. 5. J.S. , a newly unpublished (not precedential) conclusion from the Appellate Division where a final restraining order entered against a defendant in a domestic violence matter was vacated due to a lack of sufficient evidence and based on a finding that the "procedures employed at trial deprived defendant of fundamental due process."
The known facts are sparse. The plaintiff asked for a final restraining club based on her alleging that accused (her former dating partner) engaged in criminal harassment by sending plaintiff a serial of "vi or seven ranting text messages" calling her names and suggesting that he intended to mail private videos of her on the Net. She farther claimed that he had made such threats earlier, wanted to cease the conduct and, when questioned by the trial judge during the final hearing, indicated that "once something goes on the Net it doesn't come off the Net."
The estimate asked the defendant if he had any questions for the plaintiff, to which the defendant responded to the effect that he did not know. The estimate then asked the defendant if he disputed having the declared chat with the plaintiff and sending the field of study emails, to which defendant responded that he was hurt by the plaintiff breaking up with him a third fourth dimension, said things he didn't mean, merely that she knew he would never exercise such things to her. The judge then concluded the hearing, accounted the defendant's response to his question an admission of harassment, and implemented the last restraining order.
Notably, while the trial judge was detailing on the record the provisions of the FRO, the defendant objected and indicated that he was unable to ask several questions that he had (to which the judge responded such questions could exist posed afterward the Order was issued), and that he was unable to cross-examine the plaintiff as to her allegations and his defenses.
On appeal, the Appellate Segmentation first concluded that in that location was insufficient show that the defendant had committed an act of criminal harassment and, more specifically, that he had a purpose to harass the plaintiff. It is at that point where the decision gets interesting, every bit the Appellate Division strongly concluded that the defendant was denied his fundamental due procedure rights by what transpired:
Even more important, we conclude defendant's fundamental rights to be heard were trampled by the hearing procedures employed. A litigant in civil proceedings is entitled to a fair hearing, imbued with the protections of due process. See A.B. five. Y.Z., 184 Northward.J. 599, 604 (2005); H.E.S. v. J.C.S., 175 North.J. 309, 321-23 (2003). The due process guarantee expressed in the Fourteenth Amendment to the United States Constitution requires balls of primal fairness during legal proceedings. U.S. Const. improve. Xiv, § i. This includes the opportunity to be heard and requires "procedural safeguards including the right to cross-examine adverse witnesses and the right to call witnesses . . . ." Peterson five. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005).
It is clear from this hearing transcript accused was not given the take chances to meaningfully respond to plaintiff'south allegations and was never permitted to nowadays evidence, including witnesses or documents he believed supported his defense. Rather, the judge concluded the hearing when he understood accused's response amounted to an admission that satisfied plaintiff'due south elements of proof.
We recognize these matters are summary in nature, which may be accompanied by some relaxation of formal trial procedures, such every bit requiring a political party to stand when addressing the court or requiring witnesses to take the stand. We are also aware of the limited need of trial judges to assist the trial procedure past initiating examination. However, nosotros will non disregard the relaxation in trial formalities that deprive due process.
Many litigants who come up before our courts in domestic violence proceedings are unrepresented by counsel; many are unfamiliar with the courts and with their rights. Sifting through their testimony requires a loftier degree of patience and intendance. The pressures of heavy calendars and volatile proceedings may impede the court'due south willingness to beget much leeway to a political party whose testimony may seem disjointed or irrelevant. But the rights of the parties to a full and fair hearing are paramount.
[M.D.F., supra, 207 N.J. at 481.]
Defendant was non afforded a "full and fair hearing," which must exist provided earlier entry of something as serious as a final restraining gild. The July 9, 2014 order must exist vacated.
The Court'southward findings and conclusions as to due process were in the context of a domestic violence affair, merely are not express to that type of matter. While self-represented litigants are, thus, expected to know the law, rules and procedure that apply to their matter, this determination guides trial courts and practitioners to ensure that such procedures are properly followed and notions of due process maintained in all types of litigation.
Source: https://njfamilylaw.foxrothschild.com/2015/08/articles/domestic-violence/trial-court-found-to-have-denied-due-process-rights-to-pro-se-litigant-in-domestic-violence-matter/
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