Three Types of Evidence to Avoid at Your Restraining Order Hearing

By Veronica T. Barton, California domestic violence defense attorney and creator of DEFEAT the DVRO

The short answer

There are three types of evidence that people commonly try to use at a restraining order hearing that the judge is not supposed to review: your own statements, police reports, and medical records offered to prove what is in them. All three are usually hearsay. If the other side tries to use them, you can say "objection, hearsay," and you should not count on using them yourself.

Why you need to know this before you gather your evidence

If you have been served with a restraining order, you are probably gathering any evidence you may have to show the judge, whether you are the petitioner or the respondent. But certain types of evidence are not supposed to be brought in front of the judge. Know this in advance so that you can stop the other side from using it. It is also very important that you don't rely on this type of evidence in court.

Here are three types of evidence that people commonly try to use in restraining order court that the judge is not supposed to review. If the other side tries to use them, you can object. You also don't want to expect to use them and then have the judge shut you down.

Number 1: Your own statements

Let's say you have text messages that you sent, or you want to testify to the judge about things that you said to other people or to the other party. You very likely can't use those statements, because they are considered hearsay.

Hearsay is something that someone said outside of court that you are trying to quote in court. There are exceptions to it. One exception is bringing in the other side's statements. But typically (and again, there are some exceptions), you can't give the judge the things that you said as evidence. Don't rely on emails or text messages that you sent the other party as evidence in front of the judge.

Why this rule makes sense

Setting aside the complicated legal part of this, a statement that you made is not necessarily persuasive. You can write anything you want in an email or in a text message to the other side. You can say, "I'm really upset about how you hit me earlier today. That wasn't nice of you." It's not good evidence and it's not reliable, and that's one of the reasons for this rule.

Get better evidence. Maybe you don't have hard, irrefutable physical evidence, proof, or a witness. Better evidence is your testimony in court, explaining to the judge what happened.

Number 2: Police reports

Recently someone on YouTube commented that they were trying to use police reports in their restraining order hearing and were surprised that they could not. Typically, police reports are hearsay in restraining order hearings. A police report is a police officer writing a statement, not just what they observe but what people tell them. It isn't reliable.

In fact, I don't just do restraining order hearings. I do criminal defense, and I get the police report first. Later on I get the body worn video, so I see word for word what the witness or the victim or my client said to the police. Often it differs significantly from what is in the police report.

Imagine the police officer's night. They go to one house call and then the next, maybe making some notes, but they have to write up all these reports. It won't be word for word. They'll summarize, and they'll get some details wrong.

It makes sense that using a police report against someone else wouldn't work. In criminal cases it doesn't work against the alleged victim either. Say the police officer writes in the report that the alleged victim said something to the officer, and then they say something different on the stand. Their explanation will be, "I didn't write the police report. That's not what I said to the officer. I don't know why they got it wrong." Police reports are therefore typically not admissible in restraining order hearings.

Number 3: Medical records, to prove what is in them

There are some exceptions to this, but petitioners often try to show medical records that have a statement from a doctor or a diagnosis. The problem, again, is that if the doctor or whoever wrote it is not there, we can't ask them questions about it. We can't poke holes in it. We can't even rely on it. Maybe they got something wrong. We can't even have them authenticate it and say, "I wrote this down, and here is why." That is also not admissible.

You can try, but don't rely on it

If you want to admit one of these things (your own statements, police reports, or medical records), you can try in court. But I'm warning you that they are not supposed to be admissible. You wouldn't want to think, "I have the police reports, I have the medical records, and everything is fine here," because that's not true. You wouldn't want to rely on bringing it in.

Even so, you can try. Some judges will let hearsay in unless the other side objects. They don't really care. Other judges will say, "I can't look at that police report because it's hearsay. I can't look at the medical records, because they're hearsay."

If you are on the other side: object

This video is a brief overview. I go into much more detail in the course that I teach. If the judge seems willing to accept this and look at it, you can say, "Objection, Your Honor, this is hearsay."

In general, you shouldn't interrupt the other party or the judge while they are speaking during a hearing. The one exception is an objection, which is what lawyers do too. You see it on TV. I'm not saying to do it gratuitously like you would on TV. But if the other side is giving a long speech about something they said, or is trying to show the judge a police report or a medical record, say, "Objection, hearsay."

The judge may be relieved by the objection, and they may sustain it. Now they don't have to listen to any of that. Or they may have a policy of treating all the litigants as though they had attorneys, and if you don't object, that's your problem.

Secondly, they may be a bit shocked at first that you objected, because most people in court don't know how to object. As a result, everything comes in unless the judge says it can't.

If they realize that you know what you're talking about, you could potentially keep evidence out. You could also gain some credibility with the judge, because you know a lot more than 99% of the people who represent themselves in court (probably even higher than that). You have shown the judge that you are a smart person, and you have probably impressed them a little bit.

These restraining order hearings are all about credibility. The judge only has to find for one side slightly more than 50%. If they feel that you are a credible person, a smart person, a diligent person (and getting an objection sustained is one way to get them to agree), that will definitely cut in your favor.

I teach exactly how to object, including on hearsay, in Step 5 of DEFEAT the DVRO.

Frequently asked questions

Can I use my own text messages and emails as evidence at a restraining order hearing?

You very likely cannot use them, because they are considered hearsay. There are some exceptions, but typically you cannot give the judge the things that you said as evidence. A statement that you made is also not necessarily persuasive, because you can write anything you want in an email or a text message. Better evidence is your testimony in court, explaining to the judge what happened.

Can I use a police report at my restraining order hearing?

Typically, police reports are hearsay in restraining order hearings. A police report is a police officer writing a statement, not just what they observe but what people tell them, and it will not be word for word. Police reports are therefore typically not admissible in restraining order hearings.

Can the other side use medical records against me?

There are some exceptions, but petitioners often try to show medical records that have a statement from a doctor or a diagnosis. If whoever wrote it is not there, we can't ask them questions about it, we cannot challenge it, and we can't even have them authenticate it. So that is not admissible, and you can say, "Objection, Your Honor, this is hearsay."

Can I object during the other side's testimony at a restraining order hearing?

In general, you should not interrupt the other party or the judge while they are speaking. The one exception is for an objection. If the other side is giving a long speech on something they said, or trying to show the judge a police report or a medical record, say, "Objection, hearsay." Do not do it gratuitously like you would on TV.

What if the judge lets the evidence in anyway?

I'm warning you that these types of evidence are not supposed to be admissible, but you can try. Some judges will let hearsay in unless the other side objects, and other judges will not look at it. That is why you don't want to rely on bringing it in.