In a landmark and unanimous decision issued Tuesday, the New Jersey Supreme Court held that individuals facing Final Restraining Order (FRO) hearings under the Prevention of Domestic Violence Act (PDVA) cannot be penalized for asserting their Fifth Amendment right against self-incrimination - even if it means refusing to testify.
The ruling in M.A. v. J.H.M. overturns a lower court’s decision that had compelled a defendant to testify during his FRO hearing and warned that his refusal to answer questions could result in an adverse inference - that is, that the court could assume the worst from his silence. The high court firmly rejected that approach.
Writing for the unanimous Court, Justice Noriega stated, "Although the Fifth Amendment does not afford a defendant in a PDVA FRO hearing blanket immunity, a defendant may invoke the privilege against self-incrimination in response to specific questions that raise reasonable risks of self-incrimination, and no adverse inference may be drawn from the exercise of that right."
The case arose from a 2023 domestic violence complaint filed by a woman identified as M.A. against her estranged husband, J.H.M., following his arrest on unrelated weapons charges. During the FRO hearing, M.A.’s attorney sought to compel J.H.M. to testify about alleged stalking and harassment - the criminal predicate acts for the restraining order. His lawyer objected, arguing that the pending criminal charges and unexpired statutes of limitations exposed him to self-incrimination.
The trial court disagreed and ordered J.H.M. to testify, warning that invoking the Fifth could lead to a negative inference. The Appellate Division refused to intervene, but the Supreme Court took the case after its significance became even clearer with the Appellate Division's 2024 decision in T.B. v. I.W., which addressed similar constitutional issues.
Tuesday’s ruling confirms that PDVA hearings - although civil in form - frequently revolve around alleged criminal behavior. The Court emphasized that because testimony about these predicate acts could be used directly or derivatively in a later prosecution, constitutional protections must apply fully.
Notably, the Court rejected the idea that the limited statutory immunity provided in the PDVA (N.J.S.A. 2C:25-29(a)) is sufficient to override the Fifth Amendment. That provision prohibits the direct use of testimony in a related criminal trial but does not prevent its use for impeachment or from being a source of investigative leads - exposing defendants to substantial legal risk.
“In the unique setting of an FRO hearing,” Justice Noriega wrote, “the traditional civil-criminal dichotomy must yield to the realities presented.”
While the ruling stops short of granting blanket immunity from testifying, it requires courts to evaluate each question individually to determine whether it poses a realistic threat of criminal exposure. If so, the defendant may remain silent, and the court must not draw any negative conclusions from that silence.
The decision is expected to reshape how trial courts handle domestic violence hearings involving defendants with pending or potential criminal charges and reaffirms the primacy of constitutional rights, even in emotionally charged civil proceedings.
The ruling takes immediate effect statewide.
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