It was long believed by many that if a defendant in a domestic violence hearing plead the 5th Amendment (i.e. chose not to testify on the grounds that it might incriminate him/herself), that the court could draw an adverse inference, as is the norm in civil proceedings, which a domestic violence matter is one. In fact, the law even provided that if there was a related criminal proceeding, the testimony could not be used directly in that proceeding for guilt or innocence. But there was never actually a reported case or statement that said that.
That is, until August 5, 2024, when the Appellate Division decided the case of T.B. v. I.W., which was a reported (precedential) decision (written by Judge Berdote Byrne) that definitively held that a trial court may not draw an adverse inference in an FRO proceeding based solely upon defendant’s decision to invoke his Fifth Amendment right to not testify.
In this case, plaintiff obtained a TRO alleging sexual assault. Defendant chose not to testify and there was a colloquy between the trial judge and defense counsel about whether the judge could apply an adverse inference or not. The trial judge believed that he could and in granting the FRO, explained that, “… although it did not “know if every single act occurred,” it was “satisfied given the [adverse] inference that the act did occur….” The trial court further held that, “… “[t]hat inference, the [c]ourt is satisfied is adequate for the [c]ourt to make [its] finding that these horrific acts alleged by the plaintiff occurred.”
In reversing, the Appellate Division held that:
“We conclude, as a matter of law, it is not appropriate for the court to draw an adverse inference solely from defendant’s invocation of his Fifth Amendment right to not testify in an FRO hearing. Despite the remedial nature of the PDVA, and the statute’s language insulating a defendant’s testimony from use in a criminal proceeding relating to the same act, a defendant’s election to not testify cannot give rise to an adverse inference in an FRO hearing.
Because of criminal implications involved in domestic violence cases, such as (1) testifying to address criminal predicate acts alleged and (2) violations of FRO are punishable by criminal contempt proceedings, “… an FRO hearing is distinguishable from other civil proceedings.” Additional rationale for this proposition is that FROs in New Jersey do not expire as they do in other jurisdictions; issuance of an FRO subjects the defendant to fingerprinting and entry into the domestic violence registry; a defendant’s current residence and child custody may also be impacted by an FRO; as well as the surrender of weapons and fire arm ID cards.
The Court noted that the rationale for drawing of an adverse inference when someone invokes their 5th Amendment rights in a civil case is one of fairness noting that, “…”to level ‘the playing field where evidence has been hidden or destroyed” because “… the invocation prevents the opposing party from discovering potentially relevant and probative facts, putting that party at a disadvantage.”
The court that notice that this rationale is inapplicable in DV matters because the plaintiff must prove the two Silver prongs by a preponderance of the evidence – i.e. more likely than not to have occurred. The court further noted that a plaintiff who cannot meet this burden is not entitled to an FRO. The court further stated that, ” The defendant’s testimony is not necessary for a plaintiff to secure the protections of an FRO.” In fact, the court noted that the State of New Jersey Domestic Violence Procedures Manual allows courts to proceed with an FRO hearing and may enter an FRO even without an appearance by the defendant.
With regard to the fact that a defendant’s testimony cannot be used in a related criminal matter, this is not absolute as the protections, on their face, are limited. In fact, the statute specifically provides that a party’s testimony can be used in a related criminal proceeding arising out of the same incident in certain circumstances, such as for impeachment. Further, the limitation is limited to proceedings arising out of the same incident but neither contemplates nor protects against use of that testimony in unrelated proceedings. The Court held that:
“… testimony by a defendant in an FRO proceeding may expose a defendant to charges of other criminal activity not related to the predicate acts raised in the FRO hearing. Finally, although records are sealed, FRO hearings occur in open court, where a prosecutor or any member of the public may attend. N.J. Div. of Child Prot. & Permanency v. S.K., 456 N.J. Super. 245, 275 (App. Div. 2018) (Koblitz, J., concurring). For these reasons, a defendant should not be compelled to testify at an FRO hearing merely to prevent an adverse inference from being drawn.
The interesting is helpful and seemingly legally sound. Many domestic violence complaints amount to a he said/she said scenario. I suppose that if a defendant refuses to testify, then the he said/she said defense goes away and the testimony is unrebutted. The Appellate Division noted that in that case, “… our holding does not prevent a trial court in an FRO hearing from noting the plaintiff’s testimony is uncontroverted when assessing plaintiff’s credibility.” In that situation, arguably the analysis is (1) whether the plaintiff is credible, (2) do the acts alleged or even proven amount to domestic violence and (3) if so, is an FRO required to protect the victim.
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