If a District Judge denies a protective order and finds there was no family violence, does this act to bar a subsequent prosecution for assault family violence based on the same incident?

Same set of facts, same victim, lower standard (preponderance of evidence?). Sounds like a conclusion to me.

I thought more about it, so I'm editing my answer. A protective order issues on FAMILY violence. You may be able to argue that, absent specific findings that 'no familial relationship occurred' or 'no violence occurred', you may prosecute the matter as an assault without the family violence component.

Did you represent the victim at the PO?

[This message was edited by Beck Gibson on 01-30-04 at .]

I don't think it bars prosecution at all. The Protective order is granted on the basis that family violence occured and is likely to occur in the future. A Judge often requires a continuing fear and a reasonable basis for that fear before the order is granted.

A prosecution for Assault only requires that the act of violence occured, not that without probation more acts will occur.

If criminal law doesn't prevent a civil action for the same act, (wrongful death/homicide) why should a protective order prevent prosecution?

Also, a protective order requires a willing victim to testify on his/her own behalf. A criminal prosecution does not. You can prosecute the criminal action with your 911 tape and testimony from witness who heard the story from your victim if an excited utterance exception applies. Line up your EMT, your MD/nurse team if the victim went to the hospital and toss in your 911 tape. (I had a particularly explicit tape where the perpetrator commands the victim to go clean herself up since the cops were on the way. The cordless phone was still connected to the 911 operator. We heard him order her to get up and strike her when she didn't comply.)

While the elements of the crime and the proof necessary for a protective order are similar, I believe one does not bar the other.

I don't think that it bars criminal prosecution. There could be any number or reasons why the protective order was denied, even if the violence took place. Specifically, I have seen judges deny protective orders on the basis that the judge did not see a fear of future violence, even though they determined that the violence took place.