Navigating a Criminal Case with a Protective Order
How do you proceed if there’s a criminal case and a protective order against you in Oklahoma? I’m Tulsa Attorney James Wirth, and that’s the question that we have. There’s a little more details to the question. It also says, to protect the criminal case, if you remain silent, can your attorney still present evidence there that can help the judge make a better determination to drop the protective order? And unfortunately, it’s not quite that simple.
Okay, so the criminal case obviously is criminal. So you’ve got a presumption of innocence. You cannot be compelled to testify. In the civil case, it’s not the same. The burden of proof is lower as well. It’s clear, it’s beyond a reasonable doubt in the criminal case. It’s preponderance of the evidence, more likely than not in the protective order case.
So if you move forward on the protective order case, you can try to remain silent, and you can have your attorney make arguments, cross-examine the other side, get things entered in the evidence, call other witnesses. You can do all of that. However, that doesn’t prevent the other party from calling you to the stand, in which case you could, you know, elect to use your Fifth Amendment rights not to testify. You can’t be compelled, because there’s a criminal case there, you can’t be compelled in the civil case, the protective order case, to testify.
Understanding the Impact of Pleading the Fifth
But if you plead the Fifth in a civil case, then they can take a negative inference from that. Essentially, the judge can say, well, he refused to answer that, so I’m gonna assume that that was something bad, and I’m gonna decide based on that. And when we have a burden that’s low, preponderance of the evidence, that essentially means if you’re called to the stand, you plead the Fifth, you’re probably gonna lose that case. So that’s not the best strategy.
Generally speaking, the best strategy if we’re representing you is we do wanna get some discovery out. We’re entitled to discovery. We can do interrogatories, requests for productions, requests for admissions. And in some cases, we might do a deposition to the other side. We can do those things and get some information there that could be helpful in the criminal case, but ultimately, we want the protective order case to trail the criminal case so that we don’t run into this issue of negative inferences from a Fifth, pleading the Fifth. So that’s normally how we handle those, but each case can be different.
Contact Us for a Strategy Session
So if you’re dealing with a circumstance, you’re gonna wanna talk to an attorney privately and confidentially to get legal advice. If you’d like to schedule that with somebody at my office, you can go online to MakeLawEasy.com. We offer an initial strategy session to discuss your specific situation and provide guidance on how to proceed.
