Question-by-Question Fifth Amendment Privilege in PDVA FRO Hearings: No Adverse Inference

Introduction

The Supreme Court of New Jersey’s decision in M.A. v. J.H.M. (2025) addresses a critical question at the intersection of civil domestic violence proceedings and constitutional criminal protections: whether a defendant in a Prevention of Domestic Violence Act (PDVA) final restraining order (FRO) hearing may invoke the Fifth Amendment privilege against self-incrimination and, if so, whether a court may draw an adverse inference from that invocation. The parties are M.A., the plaintiff seeking protection under the PDVA, and her former husband, J.H.M., the defendant. Following a temporary restraining order and an FRO hearing in which defendant invoked the Fifth Amendment when called as a witness, the trial court compelled testimony and threatened an adverse inference. The Appellate Division denied leave to appeal, and the Supreme Court granted review, aligning its analysis with the contemporaneous Appellate Division decision in T.B. v. I.W. (2024).

Summary of the Judgment

The Court unanimously held that a PDVA defendant may invoke the Fifth Amendment privilege against self-incrimination in response to specific questions that pose a reasonable risk of incrimination.
The Court held that no adverse inference may be drawn from the defendant’s invocation of that privilege in an FRO hearing.
The statutory immunity provided by N.J.S.A. 2C:25-29(a) is limited—it bars use of FRO testimony as direct evidence in a related criminal prosecution but permits its use for impeachment—and is not coextensive with Fifth Amendment “use and derivative use” immunity.
The decision reversed the trial court’s order compelling blanket testimony and threatening a negative inference, remanding for a question-by-question analysis under the Hoffman v. United States framework.

Analysis

Precedents Cited

Hoffman v. United States, 341 U.S. 479 (1951): Established that a witness must show only a reasonable fear of self-incrimination; the trial court must determine if the privilege applies on a question-by-question basis.
Kastigar v. United States, 406 U.S. 441 (1972): Recognized that “use and derivative use” immunity is coextensive with the Fifth Amendment privilege, forbidding the government from using compelled testimony or its fruits.
Griffin v. California, 380 U.S. 609 (1965): Held that in criminal trials, the prosecution may not comment on a defendant’s silence or draw adverse inferences from a defendant’s choice not to testify.
Baxter v. Palmigiano, 425 U.S. 308 (1976): Confirmed that adverse inferences are permissible in civil cases when a party refuses to testify, balancing civil truth-seeking against the privilege.
Mahne v. Mahne, 66 N.J. 53 (1974) and Duratron Corp. v. Republic Stuyvesant Corp., 95 N.J. Super. 527 (App. Div. 1967): Recognized in New Jersey that adverse inferences are standard in civil proceedings absent constitutional constraints.
T.B. v. I.W., 479 N.J. Super. 404 (App. Div. 2024): The Appellate Division’s sound reasoning barring adverse inferences in PDVA FRO hearings under limited statutory immunity.

Legal Reasoning

The Court’s reasoning unfolded in several steps:

Constitutional Foundation: The Fifth Amendment privilege—made applicable to the states through the Fourteenth Amendment—protects any person in “any proceeding” from compelled self-incrimination if answers might subject them to future prosecution.
Distinction Between Civil and Criminal Contexts: While civil cases generally allow adverse inferences if a witness refuses to testify, criminal trials forbid such inferences to avoid penalizing the exercise of the privilege.
PDVA’s Statutory Immunity: N.J.S.A. 2C:25-29(a) prohibits the use of testimony in direct criminal prosecution but permits impeachment; it does not provide “use and derivative use” immunity coextensive with the Fifth Amendment, leaving open the possibility of derivative investigations.
Criminal Overlay of FRO Hearings: Though housed in the Civil Part, FRO hearings focus on criminal predicate acts (stalking, harassment). Compelled testimony thus risks self-incrimination in potential subsequent prosecutions.
Question-by-Question Framework: Invoking Hoffman, the Court mandated that privilege claims be assessed per question. If a direct answer or explanation carries a real risk of incrimination, the defendant may refuse, and no adverse inference can follow.

Impact on Future Cases

This landmark decision will:

Guarantee that Fifth Amendment protections are robustly applied in PDVA hearings, preventing civil courts from undermining constitutional rights.
Require trial courts to conduct on-the-spot privilege analyses under Hoffman, avoiding blanket compulsion or penalizing silence.
Encourage legislators to reconsider the scope of statutory immunity in similar contexts to ensure coextensive protection with the Fifth Amendment.
Guide practitioners to prepare precise privilege objections and to anticipate question-by-question rulings in FRO settings.

Complex Concepts Simplified

Fifth Amendment Privilege: A constitutional right not to answer questions or give testimony that could incriminate oneself.
Use and Derivative Use Immunity: Immunity that prevents compelled testimony and any evidence derived from it from being used in criminal prosecutions; this is as broad as the Fifth Amendment privilege itself.
Transactional Immunity: A broader form of immunity that completely bars prosecution for offenses related to the compelled testimony; more protective than the Fifth Amendment requires.
Adverse Inference: A conclusion drawn by a judge or jury that a party’s refusal to answer indicates the party’s answers would have been unfavorable.
Question-by-Question Analysis (Hoffman Framework): The court must decide for each question whether answering poses a reasonable risk of incrimination, based on context and existing evidence.

Conclusion

M.A. v. J.H.M. establishes a pivotal precedent ensuring that defendants in PDVA FRO hearings retain their Fifth Amendment privilege in full measure. By requiring a question-by-question analysis under Hoffman and prohibiting adverse inferences when invoking the privilege, the Court has harmonized civil protective proceedings with fundamental constitutional safeguards. This decision reinforces the principle that the right against self-incrimination may not be eroded through civil process, particularly when the proceedings hinge on alleged criminal conduct. Going forward, trial courts, litigants, and lawmakers must recognize and respect the careful balance between civil remedies for domestic violence and the enduring protections of the Fifth Amendment.