The PDVA provides: If a criminal complaint arising out of the same incident which is the subject matter of a complaint brought under the PDVA has been filed, testimony given by the plaintiff or defendant in the domestic violence matter shall not be used in the simultaneous or subsequent criminal proceeding against the defendant, other than domestic violence contempt matters and where it would otherwise be admissible hearsay under the rules of evidence that govern where a party is unavailable.
Despite the stated protection, the last sentence allows a party’s testimony to be used in the related criminal proceeding arising out of the same incident in certain circumstances, such as for impeachment purposes. See State v. Dupree (App. Div. 2012) (“Despite the language of N.J.S.A. 25:29(a) that ‘testimony given by the plaintiff or defendant in the domestic violence matter shall not be used in the simultaneous or subsequent criminal proceeding against the defendant,'” such testimony may be used for the purpose of cross-examination.
Also, the protection afforded to a testifying defendant by the statute is limited to “simultaneous or subsequent criminal proceedings” arising out of the same incident as the domestic violence action, and does not contemplate or protect against the use of that testimony in unrelated proceedings. Therefore, 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. (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 reference to the singular “same incident as the domestic violence action” creates an ambiguity. One reading of this phrase is that it refers to the predicate act underlying a final restraining order case. Another reading is that it can also refer to the history of domestic violence underlying that predicate act.
