The "evidence" is supposed to be ONLY the material cited in the petitioner's petition.
But our blogger's personal experience and observation is that judges always allow the petitioner to introduce new evidence at your hearing, evidence you've never seen before and so aren't prepared to defend against. (In fact, in one case, cheating Judge Mary Hamm and a court clerk allowed a petitioner to slip documents into the court file! A felony!) This is violation of your Fourteenth Amendment right to Due Process, as codified in the Arizona Rules of Civil Procedure.
A professional attorney might object to new evidence not being disclosed beforehand, citing the Rules of Evidence and Rules of Civil Procedure. But dumb pro se's don't know all that, and judges don't listen to dumb pro se's anyway.
So might as well head 'em off at the pass. File this Motion. Even if it's denied, when your accuser tries to slip in new accusations against you, and you object, this will help your appeal.
Defendant files this Motion under protest, holding that Arizona Injunction law is patently unconstitutional when applied ex parte (as here), as it violates defendant's right to due process as codified in the Fourteenth Amendment and Article 2, Section 4 of the Arizona constitution.
This Motion should not be necessary, since, technically, a plaintiff in an Injunction hearing is only allowed to enter material presented at petition as evidence.
Nevertheless, it is defendant's personal experience, reenforced by numerous observations of other injunction hearings, that the courts in Arizona routinely allow plaintiffs to present new evidence at a challenge hearing than originally presented in the Injunction petition.
Naturally, it is impossible for a defendant to rebut new material that has not been disclosed beforehand and this practice violates the spirit of Rule 301 of the Rules of Evidence, if not the Rule itself. It also violates Rule 26.1 of Rules of Civil Procedure (Duty to Disclose). And of course, this practice violated a defendant's Fourteenth Amendment right to due process, as also guaranteed by Article 2, Section 4 of the Arizona constitution.
Nevertheless, since this is the state of affairs in Arizona courts, defendant moves the court to order plaintiff to disclose all material to defendant since petition that she intends to introduce as evidence at the challenge hearing.
As this court allowed before, defendant will lodge an extra copy of this motion with the court to serve on plaintiff, since defendant has been threatened in the past by Judge Markham for complying with Rule 5(a).
DATED this 18th day of August, 2012
MEMORANDUM AND POINTS OF AUTHORITY
This Motion should not be necessary, since, technically, a plaintiff in an Injunction hearing is only allowed to enter material presented at petition as evidence.
Nevertheless, it is defendant's personal experience, reenforced by numerous observations of other injunction hearings, that the courts in Arizona routinely allow plaintiffs to present new evidence at a challenge hearing than originally presented in the Injunction petition.
Naturally, it is impossible for a defendant to rebut new material that has not been disclosed beforehand and this practice violates the spirit of Rule 301 of the Rules of Evidence, if not the Rule itself. It also violates Rule 26.1 of Rules of Civil Procedure (Duty to Disclose). And of course, this practice violated a defendant's Fourteenth Amendment right to due process, as also guaranteed by Article 2, Section 4 of the Arizona constitution.
Nevertheless, since this is the state of affairs in Arizona courts, defendant moves the court to order plaintiff to disclose all material to defendant since petition that she intends to introduce as evidence at the challenge hearing.
As this court allowed before, defendant will lodge an extra copy of this motion with the court to serve on plaintiff, since defendant has been threatened in the past by Judge Markham for complying with Rule 5(a).
DATED this 18th day of August, 2012
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