The Volokh Conspiracy
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Dating Violence Restraining Order Reversed Because Court Relied on Unauthenticated Anonymous Communications
From Adams v. Cox, decided last week by the Florida Court of Appeal (Judge John MacIver, joined by Judges Harvey Jay and Adrian Soud):
Cox petitioned for injunction for protection against dating violence, alleging that Adams had committed acts of violence against her and that she feared imminent future violence. In her petition, Cox described two incidents of past violence by Adams and claimed that she had recently received harassing phone calls and text messages from unknown numbers, which she believed were initiated by Adams….
At the hearing, Cox testified that Adams had physically attacked her two times during their relationship. Adams, in turn, denied ever harming Cox. Cox also testified that over the months preceding the hearing, she had been repeatedly called or texted by three unfamiliar phone numbers. She stated that one voicemail message left by an unknown caller sounded like Adams's voice, and that some text messages contained personal information (such as her home address and her child's school) that led her to suspect Adams was behind them. Yet Cox admitted she was not certain that Adams was the caller, and she did not present the actual voicemail or text messages as evidence.
For his part, Adams tried to introduce documentary evidence—apparently phone records or other proof—to show that the phone numbers were not associated with him, but the trial court declined to admit these documents. The judge told Adams to "hold on" to his papers and explained, "I need to figure out whether two people should legally be separated from one another. That's why I need to talk to you. Your words are what matter." The court did not permit Adams to call any other witnesses or to authenticate his proof regarding the messages.
After briefly questioning both parties, the court found that "there was an active dating relationship; there was violence, by the competent and substantial evidence," and announced that it would grant the injunction….
A trial court may issue an injunction for protection against dating violence only if the petitioner proves both that she was a victim of dating violence and that she has "reasonable cause to believe [she] is in imminent danger of another act of dating violence." {Florida law is clear that to obtain an injunction for protection against dating violence, "[i]t is not sufficient to have been the victim … of dating violence in the past."} … Cox's evidence established the first two statutory elements—a recent dating relationship and an incident of past violence—but failed to establish the critical third element of imminent future violence.
Cox, for example, did not testify that Adams threatened her with further harm after their breakup, and it was unrefuted that the two had no direct contact for several months before the injunction hearing. The only evidence offered to show a continuing threat were the anonymous phone calls and texts that Cox suspected were from Adams.
That said, suspicion alone is not proof. Cox conceded she lacked concrete evidence tying those communications to Adams, and the content of the messages—while disturbing—was not shown to include any direct threats or uniquely identifying information known only to Adams. In fact, Cox herself acknowledged in her petition that she was "almost" certain the messages came from Adams, implying she was not sure. Because the sender of the messages was never authenticated and no other objective evidence of looming danger was presented, Cox's fear of imminent violence rested only on Adams's past conduct…. We thus conclude that the injunction is not supported by the evidence and cannot stand….
Adams was [also] not afforded a full opportunity to defend himself at the injunction hearing. The trial judge prevented Adams from introducing the documents he had brought to refute Cox's allegations about the phone calls. The trial judge also never allowed Adams to call any other witnesses or to cross-examine Cox. Instead, the trial court limited the proceeding to a brief narrative from each party and the court's own questions. By effectively cutting off any evidentiary presentation by Adams, the court denied him a meaningful chance to challenge Cox's evidence or to prove that he did not send the messages at issue. This diverged from the essential requirements of due process….
Martin A. Pedata represents Adams.
