On August 5, 2024, a three-judge appellate panel decided the Camden County case of T.B. v. I.W. The principal issue under N.J.S.A. 2C:25-29 concerned the adverse inference that the trial court drew against the defendant for not testifying at the Final Restraining Order hearing.
Judge Berdote Byrne wrote for the panel in relevant part: 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. State, Dep’t of Law & Pub. Safety, Div. of Gaming Enf’t v. Merlino (App. Div. 1987). 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.'” Lanzo v. Cyprus Amax Minerals Co. (App. Div. 2021) (quoting Rosenblit v. Zimmerman (2001)). If 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. See Baxter, 425 U.S. at 318; Duratron Corp. v. Republic Stuyvesant Corp., (App. Div. 1967).
In a domestic violence proceeding, such rationale is inapplicable. To sustain his or her burden, a plaintiff in an FRO hearing must prove the two prongs of Silver by a preponderance of the evidence, presenting evidence and testimony to establish the burden, notwithstanding the defendant’s rebuttal. Because the PDVA “tests a victim’s entitlement to relief in accordance with the preponderance of the evidence standard, consistent with the lowered burden of proof appropriate in a civil proceeding,” J.D., a plaintiff who cannot meet this burden is not entitled to an FRO. The defendant’s testimony is not necessary for a plaintiff to secure the protections of an FRO.
And, although the PDVA affords defendants certain protections by preventing testimony given in an FRO hearing from being used against that defendant in a related criminal proceeding, that protection is circumscribed and does not encompass the broader protection afforded by the Fifth Amendment and N.J.R.E. 503.
A prosecutor can use a criminal defendant’s testimony from a final restraining order (FRO) hearing for impeachment if the defendant testifies in a criminal case. A prosecutor cannot use the FRO testimony as part of their case in chief.
