As of October 1, 2014, it became much easier to get a final peace order or a final protective order in Maryland courts. Earlier in 2014, Maryland lawmakers voted to lower the burden of proof that petitioners must meet in order for courts to issue final orders. There has been some media coverage of this change to the law, but none of it that I’ve seen has looked closely at the new, relaxed evidentiary standard. This blog post is aimed at providing a clearer sense of what the change to the law means for respondents in peace order and protective order cases. Like any blog post, this one is not legal advice and is not a substitute for a consultation with a lawyer. If you have been served with a Maryland peace order or protective order, you should speak with a lawyer right away. Although Maryland peace order and protective order hearings are civil cases, they can bring serious consequences and can look most unflattering in the public record.
Maryland’s old peace order and protective order evidentiary standard
Until October 1, 2014, Maryland law required that a persons seeking a final peace order or a final protective order had to prove that the respondent committed one of the acts described in the statute by a clear and convincing evidence standard. Clear and convincing evidence is technical legal language that describes a burden of proof that is higher than a preponderance of the evidence and lower than beyond a reasonable doubt. The Maryland Court of Appeals, Maryland’s highest law court, has said that in order to meet the clear and convincing evidence standard of proof, a litigant must present a case that is “strong, positive, and free from doubt.” This standard has also been explained as requiring proof that is “full, clear and decisive.”
That was the old standard. In order to meet the old standard of clear and convincing evidence, petitioners typically needed to present something more in court than just their own testimony. Successful petitioners quite often came to court with evidence in the form of photographs of injuries, medical records, phone records, and third party witness prepared to testify. Without this kind of evidence, it was very difficult for petitioners to meet the clear and convincing evidence standard of proof. For this reason, a significant number of requests for final peace orders and final protective orders were denied after contested hearings.
Maryland’s new peace order and protective order evidentiary standard
Beginning October 1, 2014, Maryland law requires that, in order for court to grant a final order, petitioners have to prove their cases by a preponderance of the evidence. This is a much lower standard than the old one. A preponderance of the evidence has been defined as “such evidence which, when considered and compared with the evidence opposed to it, has more convincing force and produces in your minds a belief that it is more likely true than not true.” The preponderance of the evidence standard is often described as requiring a litigant to prove that his assertions are “more likely so than not so.”
For petitioners in peace order or protective order cases, the preponderance of the evidence standard can likely be met simply by telling a more convincing story than the one told by the respondent. Gone is the requirement of presenting a case that is “strong, positive, and free from doubt.” At a practical level, this means that petitioners who come to court without photographs of injuries, medical records, phone records, or third party witnesses, are much more likely to be successful in getting the court to grant a final order. Respondents who could previously base their defenses on legal arguments that the petitioner failed to meet the required burden of proof will now likely need better-developed cases if their defenses are to be successful.
How to successfully defend against a peace order or protective order under the new Maryland law
What can respondents do to defend against a final order under the new law? In general, they will need to take a more organized and careful approach to planning and presenting their defenses. Rather than simply denying or diminishing petitioners’ claims, respondents will have to find ways to disprove those claims by using physical evidence, documentary evidence, and third party witness testimony. Furthermore, respondents should be prepared to directly counter factual representations made by petitioners, either in their petition or in their testimony, that can be objectively proved to be false. It follows that now, under the new Maryland law, it’s more essential than ever that a respondent be represented by a lawyer who is trained in using the Maryland Rules of Evidence and experienced in questioning witnesses in court.
Matthew Baum is an attorney with offices in Baltimore, Catonsville, and Columbia, Maryland. If you or someone you care about has been served with a peace order or a protective order, and you don’t want a final order to issue, you are invited to call Baum Law Offices at (410) 929-3435 to schedule a consultation.