The Intersection of Domestic Violence, Criminal, and Family Law Matters
Aug 14, 2024 | Written by: | Share
It is not uncommon in certain domestic violence situations for there to be criminal complaints/charges issued. For example, in a case where there is an assault, there may not only be a restraining order issued, but also a criminal complaint in the local municipality where the event occurred or even in the Superior Court, depending on the severity of the crimes alleged.
It is also not uncommon for domestic violence matters to be heard before the criminal case. Restraining orders are heard in summary fashion, with a hearing take place often in as little as two weeks, whereas criminal proceedings may take months to conclude, or longer.
If your domestic violence matter is being heard before the criminal case, it is important to know and appreciate that testimony given in the family law matter can be used against you in the criminal case for purposes of impeachment, such as on cross examination. Therefore, if you are defending a domestic violence case, your criminal attorney should be in constant contact with your family law attorney (or whomever is handling the domestic violence matter) to ensure that you are protected.
Although the Prevention of Domestic Violence Act (PDVA) provides defendants with 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.
In the recent case of T.B. v. I.W., a published Appellate Division decision, the court addressed the trial court’s error in drawing an adverse inference on the defendant’s decision to invoke his Fifth Amendment right not to testify.
The plaintiff in that case alleged the defendant sexually assaulted her and a TRO (temporary restraining order) was granted. During the trial, the defendant elected not to testify, claiming he should not be compelled to testify as “it forces a defendant to reveal a defense, when they would not have to otherwise.”
The trial court relied upon the defendant’s decision not to testify, stating that the court may draw an adverse inference to find the alleged acts occurred. The court concluded that “these horrific acts alleged by the plaintiff occurred.”
The Appellate Division held that reversal of the trial court opinion was necessary because it relied upon an adverse inference based on the defendant’s Fifth Amendment privilege not to testify, which is not appropriate. In fact, the Appellate Division makes clear, “despite the remedial nature of the PVDA, and the statute’s language insulating a defendant’s testimony from use in criminal proceeding relating to the same act, a defendant’s election to not testify cannot give rise to an adverse inference in an FRO hearing.”
Whenever the Appellate Court seeks to publish a decision, it is noteworthy, and this is no exception. Practitioners and litigants handling domestic violence matters must be aware of and consider this decision when strategizing about how to present their case, regardless of whether they represent the victim or the defendant.
Diana N. Fredericks, Esq., devotes her practice solely to family law matters. She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters from 2015 through 2021, to the NJ Super Lawyers list in 2023 and 2024, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015. Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.