How Can “Pleading the 5th” Affect Domestic Violence Hearings? A New Court Decision Sheds Light On 5th Amendent Rights

At domestic violence hearings on final restraining orders (FROs), defendants sometimes choose to invoke their 5th Amendment rights instead of testifying. If you have ever found yourself on either side of a domestic violence dispute, you may wonder exactly what this means and how “taking the 5th” could impact the outcome of a hearing. A new appellate court decision sheds some light on these questions. 

The 5th Amendment to the U.S. Constitution is part of the Bill of Rights and protects several important personal legal rights. Notably, it ensures that individuals cannot be forced to incriminate themselves, meaning they have the right to remain silent if their testimony might implicate them in a crime. “Pleading the 5th” in court refers to invoking this right to avoid answering questions that could lead to self-incrimination.

When someone invokes the 5th Amendment in certain legal situations, there can be repercussions in the form of an “adverse inference,” or conclusion that a person refusing to testify has something to hide. The general rule regarding invocation of the 5th amendment is that it allows a factfinder (a judge or a jury) to draw an adverse inference against a defendant in a civil matter, but not in a criminal matter. This is because criminal convictions generally involve far more significant penalties and consequences.

Domestic violence hearings are civil proceedings. The New Jersey domestic violence statute protects defendants from the use of either party’s testimony in criminal proceedings arising out of the same incident. The prevailing assumption has therefore been that it would not be improper for a judge in an FRO hearing to draw an adverse inference against a defendant based on the defendant’s refusal to testify.

The appellate court’s decision in T.B. v. I.W. changes this assumption. 

Trial Court Opinion 

This case began when the plaintiff, T.B., obtained a temporary restraining order (TRO) alleging sexual assault by the defendant, I.W. The plaintiff later amended her complaint to include details of the sexual assault, a prior history of alleged domestic violence, and additional acts of harassment and lewdness. The trial court granted the FRO, concluding that the defendant had committed at least the predicate act of sexual assault and that such act would also “cover such acts as harassment [and] lewdness.”

In reaching this conclusion the court relied in part on the defendant’s decision not to testify. Drawing an adverse inference, the court found that substantial abuse had occurred, even if it could not determine whether that included every single act alleged by the plaintiff. The court did not specifically address the plaintiff’s credibility but did note that there were several previously dismissed TROs and civil restraint agreements, and that the plaintiff may have had an interest in requesting an FRO based on an existing parenting time dispute.

Appellate Court Opinion 

On appeal, the court determined that the trial judge erred by failing to make specific credibility determinations, factual findings, or conclusions of law, and by not addressing the critical question of whether the FRO was necessary to protect the plaintiff from future harm.

The court also determined that the trial court should not have drawn an adverse inference solely from the defendant’s invocation of his 5th Amendment right. Acknowledging that this was a departure from the usual rule in civil cases, the court pointed out the uniqueness of FRO hearings: The New Jersey Domestic Violence Act is grounded in offenses defined by the criminal code, and an FRO has the potential to expose a defendant to criminal liability and other severe consequences. Among these are fingerprinting and entry into the domestic violence registry, surrender of weapons and firearm ID cards, and potential impacts on current residence and child custody matters. In addition, FRO violations are punishable as criminal contempt, and FROs in New Jersey do not expire on their own as they do in other jurisdictions. 

Regarding the law that a defendant’s testimony cannot be used in a related criminal matter, the court pointed out that this protection is limited. A party’s testimony can be used in a criminal proceeding arising out of the same incident for impeachment, and it can also be used in unrelated proceedings. Even though domestic violence records are sealed, the hearings take place in open court, which could result in a prosecutor learning about other criminal activity.

The court also noted that a judge can issue an FRO without testimony from the defendant. A judge can consider the fact that a plaintiff’s testimony is uncontroverted when assessing credibility. At the same time however, the judge cannot draw an adverse inference against a defendant simply due to the defendant’s silence.

The appellate court vacated the FRO, reinstated the TRO, and remanded the case for a new hearing before a new judge.

Should an FRO Defendant Testify?

What does this all mean in practical terms? If you find yourself accused of domestic violence, should you testify? The answer to that question depends on all the facts in your case. While a refusal to testify cannot be used against you, testifying may allow you to present facts in your favor that would not come before the court in any other way. It is imperative for anyone facing an FRO hearing as a defendant to obtain advice from an attorney with experience in such matters.

Do you need legal assistance in a domestic violence matter? Have questions about restraining orders and FRO court hearings? Learn how to protect your rights by scheduling a consultation with one of our highly experienced family law attorneys. Call us today at 888-888-0919, or please click the button below.

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