It is a well-known legal axiom that an out-of-court statement made by a party-opponent is admissible against that party as nonhearsay in any subsequent legal proceeding. MN Rule Evid. 801D(2). However, a respondent’s OFP testimony cannot be used against him in his subsequent criminal trial. Minnesota law clearly states: “Any testimony offered by a respondent in a hearing pursuant to this section (Domestic Abuse Act) is inadmissible in a criminal proceeding.” Minn. Stat. §518B.01, subd. 15. There is no similar exclusion provision for testimony offered by a petitioner in OFP hearings or by a respondent in HRO hearings.
If a respondent forgoes her right to testify at an OFP hearing because the court (or attorney) incorrectly advised her on the record that her testimony could be used against her in a subsequent criminal trial, the court’s ultimate ruling on the OFP petition could be subject to challenge on appeal.
Whether the court should or should not routinely advise an OFP respondent that his testimony cannot be used against him in a subsequent criminal proceeding is not clear. Although this is not required, many judges believe such an advisory should be given (and, of course, many do not).
10th Judicial District
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