On May 27, 2025, the New Jersey Supreme Court decided the Passaic County case of M.A. v. J.H.M. The principal issue under N.J.S.A. 2C:25-29 concerned whether a trial court can draw an adverse inference from a defendant’s refusal to testify at a Final Restraining Order trial.
Justice Noriega wrote for a unanimous Court in relevant part: We therefore disagree with the trial court and hold that in 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.
The trial court erred here by focusing narrowly on defendant’s exposure to prosecution only as it related to the separately pending weapons charge, without adequately considering the Fifth Amendment implications of compelling defendant to testify about the predicate acts underlying the domestic violence allegations. Such an approach overlooks the real and substantive risk of self-incrimination posed by such testimony and risks creating a chilling effect that may deter individuals from exercising their constitutional rights in proceedings with serious legal consequences.
Our holding today does not permit a defendant to invoke a blanket privilege as to all testimony in a PDVA hearing. Instead, the privilege must be asserted on a question-by-question basis, and the defendant must “have reasonable cause to apprehend danger from a direct answer.” Hoffman, 341 U.S. at 486.
The U.S. Supreme Court provides a clear framework for evaluating the proper invocation of the Fifth Amendment privilege: The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself — his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, Rogers v. United States, 340 U.S. 367 (1951), and to require him to answer if “it clearly appears to the court that he is mistaken.” Temple v. Commonwealth, 75 Va. 892, 899 (1881). However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim “must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.” See Taft, J., in Ex parte Irvine, 74 F. 954, 960 (C.C.S.D. Ohio, 1896).
Accordingly, it is the responsibility of the trial judge to determine whether, in the specific context of the question posed, a direct answer — or even an explanation for refusing to answer — may present a real danger of self-incrimination. See Nat’l Life Ins. Co. v. Hartford Accident & Indem. Co., 615 F.2d 595, 598 (3d Cir. 1980) (holding that when a witness invokes the Fifth Amendment, “the juridical responsibility of objectively assessing whether the silence is justified rests with the court”).
By way of guidance, we illustrate how those principles apply to the present case. Defendant initially identified himself and then invoked the Fifth Amendment privilege in response to a question regarding his marital status with plaintiff. The court could have placed on the record that the privilege did not apply to that question because it pertained solely to the issue of whether the parties were married. Thus, the court could have permitted the question and required the defendant to answer, or taken an adverse inference if defendant refused. However, the court then stated that defendant would also be required to answer a question like “did you place the phone call to my client on July 5, 2023?” But answering such a question could possibly expose the defendant to criminal liability.
Upon remand, if plaintiff chooses to call defendant to testify, the court is to conduct an analysis each time defendant invokes the privilege — should he choose to do so — to determine whether the question posed requires defendant to speak to a criminal matter. If so, the court must permit defendant to refuse to answer and must not draw an adverse inference from that choice. This approach comports with the Fifth Amendment. The trial court’s ruling is reversed and the matter remanded for proceedings to continue in accordance with this opinion.
Interesting questions will arise if a Final Restraining Order trial Court errs in compelling an answer that should have been protected by the defendant’s Fifth Amendment assertion. Could that question and answer still be used in the related criminal proceeding? If so, could they be used as substantive and/or impeachment evidence? Could a related error by the FRO trial court be a basis for the reversal of the related criminal conviction?
