Massachusetts Guidelines for Judicial Practice Abuse Prevention Proceedings Guideline 8:09

If a defendant is arraigned for a crime involving domestic abuse, and there is no existing c. 209A order, and the named victim is present in court seeking an abuse prevention order, the court should hold a hearing on the abuse prevention order at the same time as the arraignment. If the court decides to issue an abuse prevention order, since both parties are present, the order may be issued for up to one year. If such order is issued, it should be served immediately on the defendant.

If the named victim is not present at arraignment, the defendant should be served with any abuse prevention order recently issued by the court and still in effect at that time that has not been served, and such in-hand service recorded on the docket of the c. 209A action. While court officers would most commonly serve the order, any member of the court staff may serve the order.

Whenever notice is accomplished in court, the notice should be noted on the Order and the police should be notified that notice has been accomplished. The order should still be provided to the police to effectuate the gun surrender order.

If both parties are present in court, and the named victim in the criminal case involving abuse also seeks civil relief as a plaintiff in a c. 209A action, there is no reason to require either the plaintiff or the defendant to return in ten days for another hearing. If both parties are present, the court should hold a two-party hearing and issue any appropriate order for a full year or, at the plaintiff's request, for a lesser time.

The pending criminal matter is not a basis to continue the c. 209A hearing, and the judge may, but is not required to, draw an inference adverse from the defendant's failure to testify.Singh v. Capuano, 468 Mass. 328, 333 (2014) (defendant's refusal to testify on the ground of self-incrimination does not bar the taking of an adverse inference). The assertion of the privilege against self-incrimination is to be considered and weighed as part of the evidence in the case and a judge is “required to carefully consider all the circumstances of the case when making the decision whether to draw an adverse inference.” Id. at 333-34 (improper to categorically refuse to consider (or always consider) adverse inference against non-testifying defendants).

If an attorney has been appointed in the criminal case, it is appropriate for the attorney to inform the defendant of the defendant's Fifth Amendment rights, but further participation should be limited unless the attorney files a notice of appearance. A notice of appearance must be filed for the attorney to cross-examine the plaintiff or any witnesses as the defendant, like the plaintiff, is not entitled to appointed counsel.See S.T. v. E.M., 80 Mass. App. Ct. 423, 429 (2011) (despite informality of c. 209A proceedings in a busy court, certain minimum standards of fairness must be observed). Whether cross-examination is by an attorney or a party, the judge should not permit cross-examination to be used for harassment or intimidation or for discovery purposes.Frizado v. Frizado, 420 Mass. 592, 596 & n.5 (1995) (judge may limit cross-examination for good cause).See also Silvia v. Duarte, 421 Mass. 1007, 1008 (1995).See Guideline 5:01 Conduct of Hearings After Notice When Both Parties Appear: General.

In-hand service of abuse prevention orders can be critical to proper enforcement of those orders. Whenever a defendant appears in court, any current abuse prevention orders against the defendant in that court should be brought into the courtroom and a check should be done to determine whether in-hand service has been made on each order. If in-hand service has not been made, the defendant should be served with the order and the court officer (or court staff member who served the order) should fill out the return of service. Even when an abuse prevention order has previously been served on a defendant, such service may have been made at last and usual address or by alternate means. Serving the defendant in-hand while the defendant is before the court ensures that the defendant has actual notice of the terms of the order.

Similarly, at arraignments, the judge should note whether there are any open temporary orders from another court (i.e., an order issued within the past ten days), and should attempt to determine whether the defendant has been served (e.g., having clerk contact the issuing court, or asking the defendant if he is aware of the order). If there is a question of service, efforts should be made, to the extent practicable, to effect in-hand service. At the very least, the judge can give notice orally of the existence of the order, the next hearing date, and any orders that appear on the defendant's Court Activity Record Information (CARI).