Most people are familiar with the concept of the 5th Amendment privilege against self-incrimination (i.e. “pleading the fifth”) from TV shows or parlance. This is a paramount Constitutional right which means that criminal defendants cannot be forced to testify against themselves in a criminal case or give statements which may expose them to criminal liability.
The New Jersey Supreme Court’s ruling in M.A. v. J.H.M., that trial courts cannot draw an adverse inference against a defendant in a civil domestic violence trial who invokes the privilege against self-incrimination when refusing to answer a specific question that reasonably raises the risk of self-incrimination, is critical to protecting the Constitutional rights of defendants in domestic violence matters. While New Jersey domestic violence trials are civil matters, we refer to these matters as “quasi-criminal” because the consequences of a final restraining order are severe and are comparable in many ways to a criminal conviction.
Before today’s ruling, trial courts were empowered in some situations to draw an adverse inference, or a negative conclusion against a defendant, from their invoking of the privilege against self-incrimination and refusal to testify in a domestic violence trial. This created an unconstitutional dilemma for defendants to either risk getting a final restraining order entered against them or risk criminal liability, which would not have been the case had the defendant been in a criminal trial. Today’s holding provides an important safeguard for our clients who are defending against a plaintiff’s application for a final restraining order against them.
Jason L. LeBoeuf submitted a brief on behalf of amicus curiae Association of Criminal Defense Lawyers of New Jersey (Ziegler Law Group, attorneys; Jason L. LeBoeuf and Kristen E. Blucher, on the brief).
See below to read the complete Supreme Court Decision.
https://www.njcourts.gov/system/files/court-opinions/2025/a_1_24.pdf
