concurring and dissenting.
[¶ 31] Although I agree with much of the majority opinion, because the district court denied the respondent a fair hearing in this case, I respectfully dissent from parts 11(B) and V.
A
[¶ 32] At the hearing on the protection order petition, counsel for Riemers attempted to cross-examine Peters-Riemers regarding the allegations of her petition. The transcript demonstrates counsel apparently sought to elicit evidence about Riemers’ state of mind, prior incidents of domestic violence between the parties, and self-defense. Counsel for Peters-Riemers objected at least eight times in the first few minutes of testimony, with most of the objections sustained by the court. The following exchange then took place:
Q [MR. SIMONSON]: Ever hit Roland in the past?
MR. CHAPMAN: Objection, relevancy to this incident.
THE COURT: Sustained.
MR. SIMONSON: Well, Your Honor, looking at an issue of self defense, obviously he would have to consider—
THE COURT: Sustained, counsel.
MR. SIMONSON: I have no further questions, Your Honor.
Notably, and contrary to the majority opinion, the record clearly demonstrates counsel for Peters-Riemers objected based on “relevancy to this incident” rather than on the notion the questions were in essence beyond the scope of the direct testimony of Peters-Riemers’ affidavit. Even more importantly, the district court sustained the objection on that basis.
[¶ 33] The majority, at ¶ 8, correctly states that testimony concerning Riemers’ state of mind and past incidents of domestic violence was relevant, and that the district court abused its discretion by excluding evidence of past violence by Peters-Riemers and of Riemers’ state of mind. The district court’s abuse of discretion probably was nonprejudicial relative to Riemers’ own testimony, which, though limited, was sufficient. The denial of cross-examination of Peters-Riemers, however, was not harmless error.
B
[¶ 34] The majority, at ¶¶ 12-14, relying on Sandbeck v. Rockwell, 524 N.W.2d 846 (N.D.1994), suggests that Peters-Riemers’ affidavit, rather than the district court, determines the scope of the hearing. The majority concludes, at ¶ 15, “although Peters-Riemers’ testimony about alleged previous incidents of abuse by Peters-Riemers was relevant, it was beyond the scope of the affidavit.” Therefore, the majority concludes, at ¶ 16, that Riemers could address the issues of self-defense and his state of mind only by calling Peters-Riemers “as part of his own case to question her about relevant issues beyond the scope of her affidavit.” The transcript demonstrates that the hearing began with Riemers’ attorney cross-examining Peters-Riemers about the contents of her affidavit. Contrary to the majority’s conclusion, simply including or excluding facts from- an affidavit does not expand or limit the scope of a protection order hearing.
[¶ 35] In Sandbeck, the majority recognized the importance of cross-examination and development of details regarding state of mind and self-defense:
The trial court allowed Rockwell to cross-examine Sandbeck. Rockwell’s questions only developed more details from Sandbeck about times when Rockwell had “[g]rab[bed] my hair,” “[f]orce[d] yourself on me,” and harassed her at her workplace. The court gave Rockwell added time for argument, and then entered a twelve-month protection order that enjoined Rockwell from contacting, harassing, or threatening Sandbeck.
524 N.W.2d at 848. Contrary to the majority’s conclusion, the majority in *92Sandbeck limited evidence “describing Sandbeck’s sexual activities, rather than contradicting threats or mistreatment by him.” Id. at 851. Rockwell attempted to “offer audio tapes and home videos” to show Sandbeck was sexually aggressive. Id. at 848. This Court held the district court did not err in disallowing the evidence. Here, unlike the attempted exploration of the petitioner’s sexual activities in Sandbeck, Riemers attempted to contradict the issues at the heart of Peters-Riemers’ affidavit by cross-examining her to establish self-defense and his state of mind. Sandbeck does not stand for the proposition for which the majority seeks to employ it. Instead, the proper analysis is whether limitation of cross-examination was harmless error.
[¶ 36] The United States Supreme Court has recognized cross-examination is “the ‘greatest legal engine ever invented for the discovery of truth.’ ” Lilly v. Virginia, 527 U.S. 116, 124, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (citing California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)).
[¶ 37] This Court has stated: “The right -[to cross-examine] is absolute and the denial of the right as to material evidence is prejudicial error requiring a new trial.” State v. Bartkowski, 290 N.W.2d 218, 219 (N.D.1980) (citations omitted). The “complete denial of cross-examination” is “constitutional error of the first magnitude.” Id. (citing Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966)). Not only is this right guaranteed in criminal cases, it is also cognizable in civil cases. See Knoepfle v. Suko, 108 N.W.2d 456 (N.D.1961); see also Millang v. Hahn, 1998 ND 152, ¶¶ 8-9, 582 N.W.2d 665 (concluding denial of cross-examination in a remedial or punitive sanction contempt hearing is an abuse of discretion).
[¶ 38] The majority agrees testimony regarding previous incidents of abuse and Riemers’ state of mind is relevant and erroneously excluded if used to support self-defense. This is exactly the type of “material evidence” that when excluded by a limitation on the right to cross-examine, results in “prejudicial error requiring a new trial.” Bartkowski, 290 N.W.2d at 219 (citations omitted).
[¶ 39] Cross-examination is a substantial right in searching for the truth. Although the majority, at ¶ 10, concludes the exclusion of evidence through denial of cross-examination “was not prejudicial and did not affect Riemers’ substantial rights,” I disagree. This Court has held denial of the right to cross-examine “with respect to material evidence is prejudicial error which will require a new trial.” Knoepfle v. Suko, 108 N.W.2d 456, 463 (N.D.1961) (citation omitted).
[¶ 40] The lack of lucidity in the majority’s analysis is striking. A civil litigant is afforded the right to cross-examine. Id.; see also. Millang, 1998 ND 152, ¶ 8, 582 N.W.2d 665. Concluding that Riemers was not prejudiced because his own testimony arguably cured any defect, or because he could call Peters-Riemers for further examination after being denied that right on grounds of relevancy, is illogical in light of our recognition of a right to cross-examine with respect to material evidence. Under the majority’s analysis, a petitioner’s affidavit — instead of the district court — determines the scope of the hearing and the scope and timing of cross-examination. The majority is wrong. See Lilly, 527 U.S. at 124, 119 S.Ct. 1887; Bartkowski 290 N.W.2d at 219; Brookhart, 384 U.S. at 3, 86 S.Ct. 1245; Chambers v. Mississippi 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).
[¶ 41] The United States Supreme Court stated in Chambers, 410 U.S. at 295, 93 S.Ct. 1038:
The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the “accuracy of the truth-determining process.” Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); *93Bruton v. United States, 391 U.S. 123, 135-137, 88 S.Ct. 1620, '20 L.Ed.2d 476 (1968). It is, indeed, “an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.” Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. E.g., Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293. (1972). Bid its denial or significant diminution calls into question the ultimate “ ‘integrity of the fact-finding process’ ” and requires that the competing interest be closely examined. Berger v. California, 393 U.S. 314, ,315, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969).
(Emphasis added). Nowhere does the majority identify any “competing interest,” much less closely examine one.
[¶ 42] Contrary to the majority’s assertion, in ¶ 15, that the district court reached the right result but in the wrong manner, “The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). The standard enunciated in Van Arsdall is fatal to the majority’s result. In this case, if “the damaging potential of the cross-examination were fully realized,” self-defense would have been established and no protection order would have been issued.
[¶ 43] Relying on Van Arsdall, in Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988), the United States Supreme Court held a denial of the right to confrontation was not harmless beyond a reasonable doubt. At trial, the defense attempted to cross-examine Matthews, the alleged victim, about allegations she was living with Russell. Id. at 229-30, 109 S.Ct. 480. The court denied the cross-examination. Addressing this issue, the United States Supreme Court stated:
Here, Matthews’ testimony was central, indeed crucial, to the prosecution’s case. Her story, which was directly contradicted by that of petitioner and Harris, was corroborated only by the largely derivative testimony of Russell, whose impartiality would also have been somewhat impugned by revelation of his relationship with Matthews.
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In sum, considering the relevant Van Arsdall factors within the context of this case, we find it impossible to conclude “beyond a reasonable doubt” that the restriction on petitioner’s right to confrontation was harmless.
Id. at 233, 109 S.Ct. 480.
[¶ 44] Here, like in Olden, Peters-Riemers’ testimony was “central, indeed crucial,” to the district court’s determination of whether to issue a protection order. Id. Peters-Riemers’ testimony “was directly contradicted by that of’ Riemers, and no other witness was offered to substantiate Peters-Riemers’ allegations. Like in Olden, it is “impossible to conclude ‘beyond a reasonable doubt’ that the restriction” on Riemers’ right to cross-examine was harmless.
[¶ 45] None of the cases relied on by the majority stand for the proposition that a party present in court can be denied the right to cross-examine a witness present in court as to material evidence on relevant matters. Indeed, such a denial was the basis for the reversal of conviction in Chambers v. Mississippi, and the standard enunciated in Van Arsdall requires reversal. Further, the majority cites no case to support its proposition that the scope of the affidavit is exceeded and therefore cross-examination can be denied to a party cross-examining a petitioner about mat*94ters, such as self-defense, that lie at the heart of a protection-order affidavit.
C
[¶ 46] Domestic violence is intolerable. Huesers v. Huesers, 1997 ND 33, ¶ 20, 560 N.W.2d 219 (Sandstrom, J., dissenting). There was evidence that both parties engaged in domestic violence. A protection order may well be necessary. But the denial of Riemers’ right to cross-examine substantially limited the ability of the district court to. determine the truth. I would reverse and remand because Riemers was denied due process by the district court’s denial of his right to cross-examine with respect to a significant issue. Knoepfle, 108 N.W.2d at 463.
[¶ 47] As I wrote in Sandbeck v. Rockwell:
We are all concerned about the victims of domestic violence. But their interests can best be served by hearings that are fair to all. Respect for law and human dignity can best be fostered by a process that is fair and just.
Respondents in a domestic violence action have the right to testify and present relevant evidence. Courts can and should restrict the evidence to that which is relevant. Courts should maintain control of the courtroom so the proceedings themselves do not become abusive.
524 N.W.2d 846, 852 (N.D.1994) (Sandstrom, J., dissenting). Parties are also entitled to the reasonable opportunity to cross-examine adverse witnesses.
[¶ 48] By denying fundamental fairness, the majority does violence to our system of justice, and engenders disrespect for courts and the law.
[¶ 49] Dale V. Sandstrom