Key Considerations for Pleading the 5th in NJ Domestic Violence Trials

The Fifth Amendment of the United States Constitution protects a defendant’s right to avoid self-incrimination, among other protections. Specifically, it gives defendants the right to plead the 5th, or refuse to answer questions that may prove their guilt. This right has long been an important one in ensuring that those on trial for criminal activities receive a fair trial. Providing these individuals with a way not to have to say something that could immediately result in their being found guilty has been necessary to ensure that prosecutors prove their case and that those accused of a crime are not forced to admit it, but domestic violence cases are different. Because these cases are unique, it begs the question: can someone accused of domestic violence plead the 5th? How does it impact their case if they do, and perhaps most important, should they exercise this right?

Recognizing the Criminal and Civil Components of Domestic Violence Matters in New Jersey Courts

There are two separate proceedings for domestic violence cases: criminal and civil. The criminal proceedings are the process of arresting, arraigning, and eventually trying the defendant for domestic violence. The civil proceedings are the process of determining whether the plaintiff, or the alleged victim, should be granted a temporary and/or permanent restraining order against the defendant. While the two are connected due to the same incident, the actual court cases are separate and not handled the same way. This means that a defendant invoking their Fifth Amendment right in one case may or may not impact the other. Additionally, the invocation of this right may have a different impact in a criminal case than in a civil case.

The criminal and civil trials for domestic violence cases in New Jersey are two separate proceedings arising from the same incident. Because of the nature of the civil trial, and the fact that the victim is requesting a restraining order, these trials tend to occur very quickly after the incident and before the criminal trial. The criminal trial may not take place until weeks or months after the incident. As the defendant in one or both of these proceedings, it is imperative to secure legal representation and build the most compelling defense.

Legal Insights into the Fifth Amendment in NJ Domestic Violence Cases

Pleading the Fifth Usually Doesn’t Apply at a Temporary Restraining Order Hearing

There are two stages of a civil domestic violence case, the temporary restraining order (TRO) hearing and the final restraining order (FRO) hearing. A TRO hearing occurs very quickly after the incident, while the FRO does not take place until a future date after the defendant has been served and notified of the date of that hearing. For the TRO, many times, the defendant is not present for this hearing. Therefore, they often do not have the option of pleading the 5th, as the plaintiff’s version of events is the only one heard. Since these decisions are often made based solely on the plaintiff’s claims when the defendant is not present, the defendant pleading the 5th would essentially be the same as if the defendant were not present at all. Mostly, they are not given the opportunity to respond to the plaintiff’s allegations until the final restraining order hearing.

Implications of Pleading the 5th at an FRO Hearing in New Jersey

Final restraining order hearings are a little different than TRO hearings and are different than FRO hearings in many other states. New Jersey FROs do not expire. This means that when a FRO is issued against a defendant, it will remain in effect for the rest of their life unless the plaintiff petitions the court to have it dismissed. Because of this, the impact of a FRO can be incredibly significant, as it requires the defendant to surrender their firearms, be fingerprinted, be placed in the Domestic Violence Registry, and may also impact child custody and visitation, child support, or require the defendant to pay fines.

Because of these impacts, the defendant is usually present at the FRO hearing. If they are not, and they have not been served, the judge will reschedule the FRO hearing for another date to allow the defendant to be served. At this hearing, the defendant will have the opportunity to present their version of events or, if they choose, to plead the 5th. Many defendants want to invoke the right to avoid self-incrimination, particularly if they know that a criminal case is pending against them for the same incident.

In a typical civil case, the judge would be allowed to draw an adverse inference from the defendant’s decision to plead the 5th. In other words, normally, the judge would be allowed to believe that the defendant’s decision to be silent is an indication of the truth of the plaintiff’s claims. However, because of the very heavy consequences an FRO can have, the judge cannot draw this adverse inference in these cases. Instead, they must consider the plaintiff’s credibility, combined with the presented facts, such as photos showing evidence of abuse and previous calls to law enforcement to report violence, and apply the law based on these factors.

What Defendants Should Know about Pleading the Fifth in Domestic Violence Criminal Proceedings

As mentioned, a single domestic violence incident or accusation can result in both civil proceedings for a restraining order and criminal proceedings to charge and convict the defendant for a criminal offense. Crimes that fall under the NJ Prevention of Domestic Violence Act are known as “Predicate Acts of Domestic Violence.” These crimes can be charged and adjudicated in either municipal court or superior court, depending on the degree of the charges. In these criminal proceedings, many defendants will consider “pleading the 5th.” Their concern is that if they acknowledge guilt or make any statement that may be misconstrued as admitting guilt, this testimony will be used against them in their criminal case.

While this is an understandable concern, defendants should always consult with their criminal defense lawyer before deciding on the best approach to invoking their Fifth Amendment rights, especially considering the evidence and the strength of the state’s case, which may not be sufficient to convict the defendant in the related criminal case. This applies to any related criminal case for the domestic violence incident, whether it is for simple assault, harassment, terroristic threats, sexual assault, or something else.

Comparing Civil vs Criminal Consequences in Domestic Violence Cases

While both the civil and criminal cases have potential consequences, they are very different. Some consequences may overlap. For example, a final restraining order and a criminal conviction for aggravated assault may both mean that the defendant can no longer possess a firearm. However, many of the consequences are unique to the civil or criminal case.

In the civil case, the defendant can be ordered to surrender and no longer possess firearms, to stay a certain distance away from the plaintiff and places the plaintiff is known to be, to avoid contact with the plaintiff, to pay for damages done as a result of the domestic violence, attend domestic violence counseling, or report to court to monitor that they are following the terms of the order, among other things. However, this also grants the defendant the freedom to continue living their life much as they did before, going to work, spending time with friends and family, and enjoying hobbies and activities.

In the criminal case, however, the consequences can be much more severe. Depending on whether the charge is a disorderly persons offense or an indictable offense (similar to a felony), the defendant may be ordered to pay a fine, attend mandatory domestic violence or anger management classes, and face probation. They may also face from six months in jail (for a disorderly persons offense) to 18 months to 20 years in prison for a fourth degree, third degree, second degree, or first degree offense. Both jail and prison time are more likely to cost the defendant their job, and possibly their home, among other significant losses. This time spent incarcerated will also impact their life going forward, as it can make it more difficult to find employment and housing. Because of this, the consequences of pleading the 5th can also be drastically different in a civil case and a criminal case.

Fifth Amendment Choices and Their Effects in NJ Domestic Violence Courts

Pleading the 5th, or invoking the right not to incriminate themselves, is every defendant’s right. However, it is important to consider the potential consequences or benefits of doing so, as it may not be the easy escape hatch that it may appear to be at first.

Adverse Inferences

In a criminal case or a civil case for domestic violence, the judge or jury cannot directly assume the defendant is guilty if they opt to plead the 5th. Further, what the judge or jury cannot do is draw adverse inferences from this refusal to testify. In other words, they cannot assume the defendant is guilty, and they cannot take the defendant’s silence to mean that they do have something to hide. If they do that, they may come to negative conclusions about the defendant, which may impact their decision later when determining whether the defendant is guilty or whether to issue an FRO.

Impact on Credibility

One of the negative conclusions a judge or jury may draw about the defendant if they invoke the 5th is that the defendant may not be credible. Many people hold the opinion that if an individual has nothing to hide, they should simply answer any questions asked of them. With that opinion, their assumption is that if the defendant is refusing to testify, then the defendant is hiding something, and that calls their credibility into question. The judge or jury may wonder what it is the defendant is hiding, and if they are hiding this, how do they know the defendant has been honest in the things they have said? Doubts about the defendant’s credibility can lead to a guilty verdict in a criminal trial or weigh in the judge’s mind when deciding whether a final restraining order should be granted in a civil case. Remember, though, the judge in a civil restraining order case cannot draw an adverse inference due to the defendant’s invoking of their 5th amendment right.

Weakening the Defense

In both the criminal and civil cases, the defendant needs to present a solid case to avoid having a restraining order granted against them or being convicted and facing incarceration. Refusing to provide testimony can weaken this defense by leaving weak areas for the judge or jury to wonder about. When they look at those weak areas, it creates doubt about any strong arguments that may have been made, calling those potential arguments into question. When a defendant is willing or even eager to defend themselves, it serves as evidence that the defendant may actually be innocent. It gives the judge or jury reason to more thoroughly examine the evidence presented by both sides, as both sides then have a strong argument.

Impact on Child Custody

In cases where the plaintiff and defendant have children together, pleading the 5th may have a significant impact on the defendant’s ability to see and spend time with those children. As previously stated, invoking the 5th creates space for judges and juries to question the defendant’s credibility and assume that the defendant has something to hide. When the case involves children, the judge and jury will not just consider how any alleged domestic violence impacted the plaintiff but also what it might have done to the children if they witnessed it. They will also question whether the defendant may have abused the children or whether the defendant might abuse the children at some point in the future if the children are not protected.

If the defendant is found guilty in a criminal proceeding and sentenced to time in jail or prison, they will lose physical custody for at least the time they are incarcerated and perhaps after they are released. If they also have a restraining order against them, this can impact their ability to have parenting time (visitation), whether they are incarcerated or not. Additionally, a restraining order can prevent the defendant from being able to have joint legal custody and have a say in their children’s upbringing since the order would prevent them from communicating with the children’s other parent.

Another important consideration is when the defendant has children with other people. A restraining order or incarceration may also impact those relationships, as the other parents of those children may also use this information to return to court and try to reduce or remove the defendant’s custody and visitation rights or even their parental rights entirely.

Strategic Decisions on Use of the 5th Amendment in Domestic Violence Matters

Invoking their right to avoid self-incrimination is the defendant’s right, but they should take some strategic considerations into mind before deciding to invoke or not to invoke that right. There are advantages and drawbacks to both and because of the significant consequences the defendant may face, they should carefully weigh all their options.

Balancing Risks and Benefits

The defendant should first consider balancing the risks and benefits of invoking the 5th. The benefits include avoiding self-incrimination and preventing double jeopardy (being tried twice for the same crime). If a defendant invokes the 5th in a restraining order hearing, there is a possibility that the judge will pause the proceedings until the criminal trial is over. However, this is not guaranteed. The risks of invoking the 5th include calling the defendant’s credibility into question and potentially influencing the legal options available for the defense. Additionally, though the records from the hearing are sealed, the restraining order hearings are in open court. This means that there is a risk in not invoking the 5th as well.

Alternative Strategies

While defendants in domestic violence cases may be tempted to invoke the 5th and remain silent so they do not incriminate themselves, they may want to consider alternative strategies that may allow them to defend themselves without incriminating themselves. Ideally, the defendant would consult with an attorney to determine the right strategies for their case. Some alternative options to consider include limited testimony and offering alternative evidence.

Providing limited testimony allows the defendant to provide information that may help prove they did not do what they are accused of without incriminating themselves. This particular strategy may work best when working with an attorney who can offer guidance about what testimony to provide and how to provide it.

Offering alternative evidence allows the defendant to offer evidence that disputes the plaintiff’s evidence but, again, without incriminating themselves. This may include phone records or receipts that indicate the defendant was not with the plaintiff when the alleged incident occurred, witnesses who state that the alleged violence did not take place, or evidence such as photos or videos that indicate the plaintiff was the aggressor.

Importance of Seek Legal Counsel Before Fifth Amendment Decisions

Deciding whether to plead the 5th is not a spur-of-the-moment decision. It should be a carefully thought out and fully informed decision. The consequences of a final restraining order and/or a domestic violence conviction that results in incarceration are too significant and long-lasting to make this decision alone. Defendants who are considering pleading the 5th should always consult an experienced domestic violence attorney who can review the unique circumstances of their case and offer personalized advice about how the decision to invoke the 5th may impact their case.

Understand Your 5th Amendment Rights and Make the Best Choice for Your Domestic Violence Case with a Skilled New Jersey Attorney’s Assistance

Our team of seasoned domestic violence attorneys at The Tormey Law Firm, LLC, have extensive knowledge of New Jersey domestic violence laws and the rules of evidence. We can help you assess the risks and benefits of pleading the 5th in your specific case so you can make an informed decision. With decades of experience, our lawyers are committed to protecting your rights and achieving the best possible outcome for your circumstances. Don’t make the decision to invoke the 5th on your own. Let us assist in your defense, whether in a civil restraining order trial or criminal domestic violence prosecution, so your life doesn’t have to be permanently affected by a single incident or false accusation. As dedicated domestic violence and restraining order attorneys, we serve clients in Atlantic, Bergen, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Hudson, Hunterdon, Mercer, Middlesex, Monmouth, Morris, Ocean, Passaic, Salem, Somerset, Sussex, Union, Warren County, and all across New Jersey.  Contact us at (908)-336-5008 today for a free consultation.