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Evidence for a New Jersey Restraining Order Trial

Published: October 14, 2018

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What Evidence Can I Use in a Restraining Order Case?

Evidence in NJ Restraining Order CaseThis is a common question if you are involved in a restraining order case in New Jersey. To answer it, we must first discuss the law and procedures surrounding restraining orders and domestic violence. It’s necessary to understand NJ governing laws and procedures so we know what evidence may be deemed relevant, because only relevant evidence will be considered by the Court. During any court proceeding, whether it be criminal, civil, or administrative, only relevant evidence will be considered by the Court while making a determination.

New Jersey Domestic Violence Governing Laws

We will start by addressing the governing law. Restraining orders are governed by The Prevention of Domestic Violence Act found under N.J.S.A. 2C:25-17 to 33. When drafting the Act, our Legislature did not create a new class of offenses or acts which are classified as domestic violence. Instead, the domestic violence statute simply incorporates criminal offenses set forth in our criminal code that if committed against a spouse, partner, child, household member, or the like, will be deemed an act of domestic violence.

Not every criminal offense in our code will be considered domestic violence. The Act lists the following qualifiying offenses: (1) Homicide, (2) Assault, (3) Terroristic Threats, (4) Kidnapping, (5) Criminal Restraint, (6) False Imprisonment, (7) Sexual Assault, (8) Criminal Sexual Conduct, (9) Lewdness, (10) Criminal Mischief, (11) Burglary, (12) Criminal Trespass, and (13) Harassment.

Also, it is important to note, the drafters of the law did not intend that the commission of any one of the above list offenses to automatically warrant the issuance of a restraining order. The law mandates that acts claimed by the complainant to be domestic violence must be evaluated in light of the previous history of violence between the parties including previous threats, harassment, and physical abuse. Moreover, the underlying claims must also be viewed in light of whether there is immediate danger to the alleged victim or his or her property. This requirement reflects the reality that domestic violence is ordinarily more than an isolated aberrant act and serves the legislative intent behind the statute to protect victims whose safety is threatened from a pattern of abuse and control.

Further, the Act is only directed to protect a select class of individuals. Those people include any person who is 18 years of age or older or a person who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or household member or was at any time a household member. The Act also protects any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, or has had a dating relationship.

Thus, under the Prevention of Domestic Violence Act, the following must be found by the Court in order to issue a restraining order. First, the Court must find the parties fit into one of the protected classes. Second, the Court must then find that an underlying offense or predicate act was committed. Third, the Court must also find that there is a need for protection in order to protect the victim from immediate danger and further abuse.

Lastly, it is also important to note that restraining order hearings are civil in nature. It is not a criminal action. The underlying complaints may result in a criminal prosecution but the restraining order hearing is a civil proceeding. As such, the standard of proof is preponderance of the evidence. Therefore, when the Court is examining the evidence, it only needs to be convinced by a preponderance of the evidence that a predicate act was committed and whether there is a need for protection.

Restraining Order Procedure in New Jersey

The next topic to discuss is the surrounding procedure. To obtain a restraining order, there is a two step process. The first step is reporting the alleged domestic violence. A person can make their report to the Court or the local police. The reporting process is done ex-parte, meaning, one-sided. The Court or police only hear the victim’s side of the story in the beginning. If, after listening to the victim, it is determined that an order of protection is needed, a temporary restraining order will be granted.

When making a report, it is essential that the person express each and every act of domestic violence that has occurred throughout the parties’ history. This is important for two reasons.

One, as outlined above, the Court will need to make a determination of whether there is a need for protection. To assist in this determination, the Court will turn to the history of the parties’ relationship. If there is no history of domestic violence, the Court may deem the underlying incident to be an isolated act and not issue a permanent order of protection. On the other hand, if there is a lengthy history of abuse, it is much more likely that the Court will determine there is a need for an order of protection.

Two, at the hearing, the victim cannot discuss acts or instances that are not listed on the temporary restraining order. It is considered a violation of the defendant’s due process rights if the plaintiff is permitted to testify to matters not included in the temporary restraining order. The temporary order serves not only to protect the victim but also to place the defendant on fair notice of the allegations against him or her.

Following the issuance of the temporary order of protection, the defendant will be served with the order and a hearing will be scheduled within 10-days. The hearing will be held before a Family Judge of the Superior Court. At the hearing, the Judge will hear from both parties, listen to any witnesses, and examine any evidence that is deems admissible. From there, the Judge will decide whether to grant a final restraining order based upon the law outlined above.

If a final restraining order is granted, the defendant is subject the following. A final restraining order is permanent and will last indefinitely unless the victim consents to dissolving it or the Court determines at a later date that the order is no longer necessary. In addition, the defendant will be fingerprinted and placed on the domestic violence registry. He or she will also be subject to a fine, forbidden from owning a firearm, and may also have to undergo counseling and pay the plaintiff’s legal fees.

Evidence for a Restraining Order Trial in NJ

With a basic understanding of the controlling law and procedures, we can now turn to what evidence can be used at a restraining order hearing. To decide what evidence is admitted or excluded, our Courts are guided by the Rules of Evidence. Under the rules, only evidence that is deemed relevant may be admitted. Evidence is considered relevant if it has any tendency to prove or disprove a fact of consequence. Thus, in the context of a restraining order hearing, evidence will be considered relevant if it helps prove or disprove any of the enumerated offenses. Evidence will also be deemed relevant if it proves or disapproves whether there is a need for an order of protection.

Some common types of relevant evidence are text messages, emails, social media posts, pictures, videos, and eye witnesses. A common restraining order hearing consists of the each party testifying about their version of the events as well as introducing any relevant exhibits to support their case. It is also common for each party to call eye witnesses to further corroborate their version of the events.

Knowing what witnesses you want to call and what pieces of evidence you wish to admit is simply the first step. From there, you must understand how your evidence will be admitted. Simply because a witness plans to provide relevant testimony or an exhibit supplies relevant information does not automatically mean the Court will consider it. Not all relevant evidence is admissible and it may be barred from use for a number of reasons.

Is there evidence I can’t use in a restraining order case?

Yes, some evidence is barred from being used in a restraining order trial. One common bar is the use of privileged information. Privileged communications such as lawyer-client communication, patient-doctor communications, or spousal communications shall not be admitted into evidence. Therefore, a witness cannot testify to privileged material and a report consisting of privileged information cannot be admitted into evidence.


Another common bar is the hearsay prohibition. Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Stated simply, you cannot testify about what other people say if you wish to show that the contents of the statement are true. If you desire to admit a statement said by another individual, the person who made the statement must come to court to testify. For example, if you say in court that my friend told me the light was green so I drove through the intersection. That statement is considered hearsay and will not be admitted if you are trying to establish that the light was green. On the other hand, if your friend comes to court and testifies that he saw the light and told you it was green, the statement will be admitted.

Exceptions to the Hearsay Requirement

However, there are many exceptions to the hearsay prohibition. Thus, there are statements you can admit without calling the declarant to court. Many of the exceptions are not regularly used in restraining order hearings but there are some common ones that are regularly utilized that are described below.

The party opponent exception is likely the most widely used hearsay exception. This exception allows a party to testify about what the opposing party said. Therefore, at the hearing, you can testify about what the other party said to you. Moreover, the exception encompasses text messages, emails, social media posts, or any statement or writings made by the opposing party. Thus, if you are the plaintiff and are trying to prove the defendant sent you harassing text messages. You will be able to admit the text messages under the party-opponent exception. On the other side, if you are the defendant and the plaintiff is constantly texting you, you may introduce the messages to show the plaintiff does not fear you and there is no need for an order of protection.

The present sense impression exception is also commonly exercised. This exception holds that a person may testify about another’s person statement if the statement relates to an observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition. For example, if a person calls 911 because they are witnesses first-hand an assault. The operator who heard the description is permitted to testify about what he or she was told. As such, the caller does not have to come to court to testify.

Another commonly used exception is the excited utterance exception. This exception provides that a witness may testify about another individual’s statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. This exception is similar to the present sense exception but does not require the statement to be given while the event is occurring. For instance, if a person is discussing a dramatic domestic violence occurrence to a friend that occurred a few days earlier. The friend is permitted to testify about the conversation if it can be shown that the description was given while the declarant was under the stress of the event.

Business & Public Records

The business record exception is another regularly exercised exception. This rule holds that a statement contained in a writing or other record of acts, events, conditions, made at or near the time of the observation, by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business, and it was the regular practice of that business to make it, may be admitted into evidence. In sum, records made by businesses, during the business’s normal routine, by persons with personal knowledge of the contents of the record, will be admitted into evidence. This exception can be utilized to admit phone records to help demonstrate excessive phone calls. However, please be aware, in order to utilize this exception, you must call a person from the business to the witness stand to establish the proper foundation.

Lastly, similar to the business records exception is the public records exception, which states that a record prepared by a public official, during his or her official duty, of an act done by the official or an act, condition, or event observed by the official, may also be admitted into evidence. Like the business record exception, to utilize this rule, you must call a person from the government agency to the witness stand to establish the proper foundation

Can I submit the police report?

Also, please be mindful, the public record exception does not extend to police reports. Although police reports are drafted by public officials during his or her scope of official duty, the report is not accepted into evidence. The reports are generally excluded because the report is not a memorandum of what the officer observed first-hand. Rather, it is simply a reciting of what the officer was told by other people.

Character Evidence

Relevant evidence may also be barred because it is considered inadmissible character evidence. As a general rule, evidence of a person’s character or character trait is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion. Consequently, a party cannot introduce evidence that a person acted in a certain way in the past and therefore they are acting in a similar manner presently. However, there are a few exceptions to that rule.

As outlined above, under the Prevention of Domestic Violence Act, a restraining order shall not be granted unless the Court is convinced by a preponderance of the evidence that there is a need for protection. To help make this determination, the Court will turn to the parties’ prior history and as such, the Court shall consider any prior history of domestic violence between the parties, including threats, harassment and physical abuse. Thus, a party is free to admit evidence showing either a prior history of abuse or peacefulness. Second, character evidence may also be introduced for the purposes of attacking or supporting a witnesses’s character for truthfulnesses or untruthfulness. Third, evidence of past conduct can also be admitted to show a person’s past habits or routines. Lastly, evidence relating to past conduct may also be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

Get Legal Guidance on Evidence for your Restraining Order Case

As you can see, when it comes to what evidence you can present during your restraining order hearing in New Jersey, the answer is not a simple one. In general, a party may seek to admit any evidence or testimony that is deemed relevant and will not be barred otherwise by our rules. Common bars include privilege, hearsay and inadmissible character evidence. Nevertheless, there are many exceptions to the rules and it’s important to understand the general rules, their exceptions, and be prepared to argue why your piece of evidence falls into the exception and not the general rule.

Please be mindful, this article simply recites the basics surrounding restraining orders and the rules of evidence. Thus, it does not serve as a replacement for an experienced attorney. Hearings are very fast paced and Judges expect even pro se litigants to understand the law. As such, when seeking to admit evidence or raising an objection, the party must think quickly on their feet and be able to articulate why the evidence should be admitted or excluded.

If you have to appear in court for a restraining order in New Jersey, it is essential to seek legal assistance for an experienced restraining order attorney. Whether you need help to file for a restraining order or to defend against a claim of domestic violence, the lawyers at our firm are thoroughly prepared to assist you. Contact our office at 908-336-5008 as soon as possible and get help preparing for your restraining order case.

Filed under: Restraining Order Case Issues

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