In T.B. v. I.W., ___ N.J. Super ___, ___ (App. Div. 2024) (slip op. at 2), the Appellate Division held, as a matter of first impression, that a trial court may not draw an adverse inference in an FRO proceeding based solely on a defendant’s decision to invoke his Fifth Amendment right to not testify.

In T.B. the plaintiff obtained a temporary restraining order (TRO) alleging that the defendant sexually assaulted her in his apartment while their son, who was then two years old, was in a separate room. Id. at ___ (slip op. at 2). She later twice amended the TRO to include details regarding the sexual assault, a prior history of alleged domestic violence, and additional acts of harassment and lewdness. Ibid. The amended TRO’s included allegations from prior TRO’s that were dismissed; one by court order and the other at the plaintiff’s request. Ibid.

The plaintiff testified on her own behalf at the one-day trial. Id. at ___ (slip op. at 3). The defendant elected to not testify, and his counsel maintained that “the Fifth Amendment is such a compelling amendment, it is bedrock a part of due process that a defendant shouldn’t be compelled to testify” and moreover, “it forces a defendant to reveal a defense, when they would not have to otherwise.” Ibid.

The trial court granted the FRO, finding that the defendant committed the predicate act of sexual assault. Id. at ___ (slip op. at 4). The trial court found that “when a defendant chooses to not testify, the court may draw an adverse inference to find the alleged acts occurred.” Ibid. The trial court further found that although it did not “know if every single act,” as alleged by the plaintiff, had occurred, it was “satisfied given the [adverse] inference that the act did occur.” Id. at ___ (slip op. at 4-5).

The trial court acknowledged, however, that this was “not an easy case,” noting that the defendant had filed a complaint seeking parenting time with their son, and that the parties had litigated the issue for over two years. Id. at ___ (slip op. at 5). Nonetheless, the trial court made no findings as to the plaintiff’s credibility, noting only that she may have had “an interest” in requesting an FRO “possibly with respect to the issue of parenting time,” citing the previously dismissed TROs between the parties. Id. at ___ (slip op. at 5).

The Appellate Division reversed and remanded, holding as a matter of law, that it was not appropriate for the trial court to draw an adverse inference solely from the defendant’s invocation of his Fifth Amendment right to not testify in an FRO hearing. Id. at ___ (slip op. at 8). The Appellate Division found that “despite the remedial nature” of the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, 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.” Ibid.

The Appellate Division stated that a defendant is entitled to invoke his right against self-incrimination pursuant to the Fifth Amendment, as codified in N.J.S.A. 2A:84A–19, and under N.J.R.E. 503. Id. at ___ (slip op. at 10). 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.” Id. at ___ (slip op. at 10-11) (quoting Baxter v. Palmigiano, 425 U.S. 308, 316 (1976)). However, generally, in a civil action, a court may draw an adverse inference when a party invokes his or her Fifth Amendment right against self-incrimination. Id. at ____ (slip op. at 13).

The Appellate Division found that although a domestic violence complaint is civil in nature, a defendant who elects to testify at a FRO hearing must address the criminal predicate acts alleged, and violations of an FRO are punishable as criminal contempt proceedings. Id. at ___ (slip op. at 11). Additionally, there are other significant “adverse consequences” resulting from the issuance of an FRO, including that: FROs in New Jersey do not expire as they do in other jurisdictions; an FRO subjects the defendant to fingerprinting and entry into the domestic violence registry; an FRO may impact defendant’s current residence, child custody, and employment; and an FRO may result in the surrender of firearms. Id. at ___ (slip op. at 12-13).

Additionally, the Appellate Division stated that the rationale for permitting an adverse inference in civil matters derives from notions of fairness; it exists “to level the playing field where evidence has been hidden or destroyed.” Id. at ___ (slip op. at 13) (quoting Lanzo v. Cyprus Amax Minerals Co., 467 N.J. Super. 476, 519 (App. Div. 2021)). In other words, “[i]f a defendant elects not to testify, the invocation prevents the opposing party from discovering potentially relevant and probative facts, putting that party at a disadvantage.” Ibid. That rationale is not applicable in a domestic violence proceeding because to sustain his burden, a plaintiff in an FRO hearing must prove the two prongs of Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006), by a preponderance of the evidence. Id. at ___ (slip op. at 14). “The defendant’s testimony is not necessary for a plaintiff to secure the protections of an FRO.” Ibid.

Therefore, the Appellate Division 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. . . . For these reasons, a defendant should not be compelled to testify at an FRO hearing merely to prevent an adverse inference from being drawn.” Id. at ___ (slip op. at 16). Further, the Appellate Division stated that “[n]othing in our conclusion today impacts a domestic violence victim’s ability or statutory right to obtain an FRO in the absence of a defendant’s testimony, and accords with the Legislature’s laudable broad, remedial purpose in enacting the statute. Moreover, 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.” Id. at ___ (slip op. at 16).

We specialize in handling domestic violence restraining order cases at the Bianchi Law Group. If you are facing criminal charges or domestic violence charges you should immediately reach out to our team of experienced former prosecutors to schedule a free case review with one of our expert criminal defense attorneys. A complete understanding of criminal law and domestic violence law by your attorney is crucial to your defense. Your rights and freedoms are in jeopardy, and you owe it to yourself to act. We are available to provide immediate assistance and further counsel on your criminal case at 862-315-7929.

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