A prior blog which was posted on August 12, 2024 entitled “Can a Defendant Invoke a Fifth Amendment Right to Not Testify at a Final Restraining Order Hearing?” addressed this issue based upon the Appellate Division holding in the reported decision of T.B. v. I.W., 479 N.J. Super. 404 (App. Div. 2024) decided on August 5, 2024. In that decision, the court held that an adverse inference may not be drawn in a final restraining order hearing based solely upon the Defendant’s decision to invoke his/her Fifth Amendment right to not testify. In the Supreme Court decision of M.A. v. J.H.M., Docket No. A-1-24 (2025) decided on May 27, 2025, the trial court ruled that the Defendant, J.H.M., could not invoke the privilege and that his refusal to testify would result in an adverse inference.
In this matter, the court issued Plaintiff a Temporary Restraining Order, and the Final Restraining Order took place over several days. During the hearing, Plaintiff testified and presented the testimony of her coworker and her brother and sought to introduce into evidence a video recording of Defendant’s altercation with the process server. The court deemed this inadmissible, however, the court permitted Plaintiff to testify concerning the impact that the incident had on her state of mind and the reasonableness of her fear of Defendant. When Defendant was called as a witness and invoked his privilege against self-incrimination, the trial court ordered Defendant to take the stand, swear an oath, and undergo direct examination.
Counsel for Plaintiff and Defendant argued regarding whether the Fifth Amendment could properly be invoked, and if so, to what extent, with Plaintiff’s counsel arguing against blanket immunity. Defendant’s attorney insisted that the Fifth Amendment protected Defendant because he could still be charged with harassment and stalking at a later date. The trial court ruled in favor of Plaintiff. At Defendant’s request, the court stayed the matter pending Defendant’s decision to appeal. While Defendant’s Motion for Leave to Appeal was pending before the court, the Appellate Division published T.B. v. I.W., and the Superior Court of New Jersey granted leave to appeal.
The Supreme Court of New Jersey agreed with the reasoning of T.B. but held, instead, that the applicability of the Fifth Amendment privilege against self-incrimination in the context of a Prevention of Domestic Violence Act Hearing does not hinge on the statutory penalties associated with a Final Restraining Order.
The Court indicated that:
Rather, the privilege is triggered because the testimony sought necessarily implicates underlying conduct that is criminal in nature. It is the criminality of the predicate acts -- not the civil remedies or collateral consequences -- that give rise to the constitutional protections of the Fifth Amendment.
The Supreme Court disagreed with the trial court and held that in Prevention of Domestic Violence Act (PDVA) FRO hearings, “the court may not draw an adverse inference against a defendant for invoking the privilege against self-incrimination when refusing to answer a specific question that reasonably raises the risk of self-incrimination.”
Further, the court indicated the privilege must be asserted on a question-by-question basis, and the Defendant must “ha[ve] reasonable cause to apprehend danger from a direct answer.” Endorsing the “clear framework for evaluating the proper invocation of the Fifth Amendment privilege” as set forth by the United States Supreme Court, the court concluded that the trial court must conduct an analysis each time Defendant invokes the privilege to determine whether the question posed requires the Defendant to speak to a criminal matter, in which case, the court must permit the Defendant to refuse to answer and must not draw an adverse inference from that choice. The trial court’s decision was reversed and the matter was remanded for further proceedings consistent with the opinion.
If you are involved in a domestic violence matter and proceeding to trial, we can assist you in navigating the complex legal issues. Schedule a consultation with a member of the Family Law team at Cohn Lifland to discuss trial strategy in the context of the specific facts of your case.