The Right to Remain Silent in Domestic Violence Cases

In a recent published decision, our Appellate Court in T.B. v. I.W. clarified that the Court cannot draw any adverse inferences from a Defendant’s refusal to testify at a domestic violence trial held pursuant to the Prevention of Domestic Violence Act. Normally, in non-criminal matters the Court is permitted to draw negative inferences against a litigant who refuses to testify, and these inferences can have a dramatic impact on a trial. However, the Court held that given the incredibly serious and severe consequences that flow from the entry of a Final Restraining Order, that Defendants in this context should be granted the same protections on this issue that exist in criminal proceedings. Thus, in a case where a Defendant has refused to testify the Plaintiff must still present sufficient facts and evidence to meet their burden to obtain a Restraining Order, and the Defendant’s failure to testify cannot be used against them. Whenever a litigant is defending a Restraining Order there are numerous strategic considerations that need to be made, and Defendants should carefully consider having an experienced attorney advise them on whether they should testify. This case also highlights the need for Plaintiffs to be represented by skilled counsel who can ensure that their case is presented clearly and carefully. If you are involved in a domestic violence matter, Maleski, Eisenhut & Zielinski, LLC can help guide you through the process.