Not without advice from a lawyer who knows both cases. You can refuse to answer questions that could incriminate you, even at a civil or family court hearing, but anything you do say there can generally be offered against you in the criminal case. The special protection the California Supreme Court created for probation revocation hearings does not, by its terms, reach a restraining order hearing.

You can claim the privilege against self-incrimination at the hearing

To the extent the United States and California Constitutions protect it, a person has a privilege to refuse to disclose any matter that may tend to incriminate them (Evidence Code section 940), and the Evidence Code’s privilege rules apply in all proceedings unless a statute provides otherwise (Evidence Code section 910). So at a restraining order hearing you can decline to answer a question whose answer could incriminate you in the pending criminal case. That is narrower than your protection in the criminal case itself, where a defendant has a privilege not to be called as a witness at all (Evidence Code section 930).

If you do claim the privilege, neither the judge nor the lawyers may comment on it, and the judge may not draw any inference from it about your credibility or any issue in the case (Evidence Code section 913). The court still decides the request on the evidence it hears, though, so staying silent can leave the other side’s account unanswered. Weighing that cost against the risk to the criminal case is the real decision.

What you say can be used in the criminal case

If you testify, the hearsay rule will not keep your own statements out of the criminal case: a statement is not made inadmissible by the hearsay rule when it is offered against the person who made it in an action to which that person is a party (Evidence Code section 1220). The same goes for a written response or declaration you file in the restraining order case. Treat anything you say or file there as something the prosecutor may see and try to use.

The probation revocation rule does not cover this hearing

In People v. Coleman (1975) 13 Cal.3d 867, the California Supreme Court addressed the “hard testimonial choice” facing a probationer whose revocation hearing comes before the criminal trial on the same conduct. It declared a judicial rule of evidence: on timely objection, the probationer’s revocation hearing testimony, and evidence derived from it, cannot be used against them at the later trial on the related charges, except for impeachment or rebuttal when their trial testimony is so clearly inconsistent that the court admits it. The court said the rule does not apply to “any proceedings other than the formal, dispositive probation revocation hearing.” It also described the choice a defendant faces when ordinary civil litigation runs alongside a criminal case as generally “one of strategy rather than desperation.” A restraining order hearing is not a probation revocation hearing, so do not assume anything you say there will be protected the same way.

A continuance can buy time to get advice

You do not necessarily have to decide on the first hearing date. In a domestic violence restraining order case, the respondent is entitled, as a matter of course, to one continuance for a reasonable period to respond to the petition, and either party can ask for a continuance of the hearing, which the court must grant on a showing of good cause (Family Code section 245). Civil harassment cases follow the same rules (Code of Civil Procedure section 527.6). Whether a pending criminal case is good cause for more time is up to the judge. If the court grants a continuance, any temporary restraining order stays in effect until the end of the continued hearing unless the court orders otherwise, so asking for more time does not lift the temporary order’s restrictions on you.

What this means in practice

  • Tell your criminal defense lawyer about the restraining order hearing before it happens, and make sure whoever handles the restraining order matter knows about the criminal case.
  • Do not file a written response or declaration without that advice; it is a statement too.
  • If you need time to get coordinated advice, ask for a continuance in writing before the hearing or at the hearing itself.
  • Do not contact the other person about either case, especially if a temporary restraining order or a criminal protective order limits contact.

Next steps

Facing a civil protective order hearing while a related domestic violence charge is open means two proceedings can affect each other. The Law Offices of David S. Chesley can review both matters together and help you decide how to approach the hearing. Call (800) 755-5174 to discuss your case.