New Jersey Supreme Court Finds That Defendants in Restraining Order Court Do Not Have Blanket Immunity to Invoke The 5th Amendment Right to Remain Silent
Docket No. A-1-24
Decided May 27, 2025
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark
In a recent decision the Supreme Court of New Jersey reversed a Final Restraining Order (FRO) decision, finding that the 5th amendment does not apply blanket immunity to a defendant in restraining order hearings.
In M.A. v. J.H.M., Plaintiff, M.A., and defendant, J.H.M., were married in 2019 and have one son together. Plaintiff and her son moved out of the marital home in January 2023, and she initiated divorce proceedings in March 2023. In April 2023, police arrested defendant and charged him with various weapon offenses after he used a handgun to threaten the process server who was attempting to deliver divorce papers to him. Defendant’s weapons were seized and he was granted pre-trial release. In July 2023, plaintiff filed a civil complaint, pursuant to the PDVA, seeking a temporary restraining order (TRO), alleging that defendant committed the predicate offenses of stalking and harassment. The court issued plaintiff a TRO prohibiting defendant from having any contact with her, granting her temporary custody of their son, and denying defendant parenting and visitation time until further notice.
The FRO hearing took place over several days, and plaintiff called defendant as a witness. Defense counsel invoked the privilege against self-incrimination on behalf of defendant, claiming defendant could rightfully refuse to provide any testimony. Over defense counsel’s objections, the trial court ordered defendant to take the stand, swear an oath, and undergo direct examination. Defendant gave his name when asked but invoked the Fifth Amendment in response to the next question — whether he was married to plaintiff. Counsel for plaintiff and defendant argued over whether the Fifth Amendment could properly be invoked and to what extent. Plaintiff’s counsel proffered that he intended to ask questions about driving by plaintiff’s house and calling her at work, the alleged acts on which plaintiff’s complaint was based. Defense counsel insisted that the Fifth Amendment protected defendant because he could still be charged with harassment and stalking at a later time, as the statute of limitations had not yet expired. The court ruled in favor of plaintiff but stayed the matter pending defendant’s decision to appeal.
This matter made its way to the Supreme Court of New Jersey where it found that although the Fifth Amendment does not afford a defendant in a PDVA FRO hearing blanket immunity, a defendant may invoke the privilege against self-incrimination in response to specific questions that raise reasonable risks of self-incrimination, and no adverse inference may be drawn from the exercise of that right. The PDVA immunity provision contained in N.J.S.A. 2C:25-29(a) is not coextensive with the privilege against self-incrimination and is therefore insufficient to safeguard a defendant’s rights under the Fifth Amendment.
This opinion is important because often times a defendant in a restraining order hearing is also faced with criminal charges stemming from the same incident that lead to the filing of the Temporary Restraining Order (TRO). You are not provided an attorney by the Court when a restraining order is filed against. Instead, you must hire your own or represent yourself. If you choose to represent yourself and are also facing criminal charges, the failure to understand your rights could significantly compromise your criminal defense if you choose to testify given that you cannot invoke the 5th amendment like you can in the criminal matter.
If you have a TRO against someone else or against yourself, and are also facing criminal charges, contact the experienced attorneys at Hark & Hark today. At Hark & Hark, we help clients with domestic violence temporary restraining orders, final restraining orders, criminal charges, indictable offenses, disorderly persons offenses, petty disorderly persons offenses, divorce, custody, alimony, child support, appeals, and more.
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We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing domestic violence charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Mercer, Ocean, and Salem counties. We represent clients in all towns in New Jersey, including Newark, Jersey City, Paterson, Elizabeth, Edison, Woodbridge, Lakewood, Toms River, Hamilton, Trenton, Clifton, Camden, Brick, Cherry Hill, Passaic, Middletown, Union City, Old Bridge, Gloucester Township, East Orange, Bayonne, Franklin Township, North Bergen, Vineland, and Union.
