The issue concerning whether an adverse inference can be drawn against a defendant in a domestic violence trial who chooses to invoke his Fifth Amendment right to not testify has now been resolved. The Appellate Division in a reported decision, T.B. v. I.W., decided on August 5, 2024, held that a court may not draw an adverse inference in a Final Restraining Order hearing based solely upon the defendant’s decision to invoke his/her Fifth Amendment right to not testify.
In T.B. v. I.W., the plaintiff obtained a Temporary Restraining Order alleging defendant sexually assaulted her based upon the predicate act of sexual assault, and the prior history of alleged domestic violence and additional acts of harassment and lewdness. At the Final Restraining Order hearing, the defendant chose not to testify, invoking the Fifth Amendment, with his attorney claiming that his client should not be compelled to testify. After plaintiff concluded her testimony, the trial court granted the Final Restraining Order, ruling that defendant committed the predicate act of sexual assault.
The court further opined that, due to the defendant’s decision to not testify, the court could draw an adverse inference to find that the alleged acts testified to by plaintiff actually occurred. The trial court judge concluded that, although it did not “know if every single act occurred,” it was “satisfied given the [adverse] inference that the act did occur. The substantial abuse did occur, and that would be on the level of the [s]exual [a]ssault.”
The Appellate Division held that the trial court failed to make sufficient findings of facts and conclusions of law, and vacated the Final Restraining Order, reinstated the Amended Temporary Restraining Order, and remanded for a new Final Restraining Order hearing. Significantly, the Appellate Division held that a trial court may not draw an adverse inference in a Final Restraining Order proceeding based solely upon the defendant’s decision to invoke his Fifth Amendment right to not testify at the hearing.
The court noted its review of a Final Restraining Order as “generally limited” and one which accords substantial deference to Family Part judges. The Appellate Division acknowledged that no reported case in New Jersey addressed whether an adverse inference may be drawn in a Final Restraining Order hearing based solely on the defendant’s decision to not testify. The court explained that a defendant is entitled to invoke the Fifth Amendment and his right against self-incrimination pursuant to N.J.S.A. 2A:84 A-19 and New Jersey Rule of Evidence (N.J.R.E.) 503. The court further noted that the United States Supreme Court has recognized that the Fifth Amendment “protects a person not only in criminal prosecutions, but also in answering ‘official questions put to him [or her] in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings’.”
The court delineated how the entry of a Final Restraining Order could be characterized as an adverse consequence of a civil proceeding that could be “as devastating as those resulting from a criminal conviction.”
The court stated that the defendant’s testimony is not necessary for a plaintiff to obtain a Final Restraining Order pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The court commented that the testimony provided by a defendant in a Final Restraining Order trial may expose a defendant to charges of criminal activity not related to the predicate act raised at the trial. Therefore, a defendant should not be compelled to testify in a Final Restraining Order hearing merely to prevent an adverse inference from being drawn. The court noted that, although the records are sealed, these hearings occur in open court where a prosecutor or any member of the public may attend.
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.