Providing Legal Services For More Than 125 Years

Domestic Violence And The Fifth Amendment Privilige

On Behalf of | Jun 1, 2015 | Divorce & Family

Frequently, when a victim of domestic violence files a petition under RSA 173-B there is a chance that the local police, if they are alerted to the event, will bring criminal charges against the respondent. If such a situation occurs, there is a strong likelihood that the domestic violence trial will take place before the criminal trial.

Respondents faced with that situation are often put into a “catch 22 situation.” Specifically, if they testify in response to the domestic violence trial they will have waived their Fifth Amendment right against self-incrimination. A prosecutor can then use the respondent’s testimony in a domestic violence petition to support the pending criminal charges. However, if the respondent does not testify in the domestic violence trial, there is an increased likelihood that the victim’s allegations will be unchallenged and a trial court will find abuse has occurred and issue final domestic violence protection order.

In the recent case of Achille v. Achille, the New Hampshire Supreme Court was asked to decide whether a trial court abused its discretion in denying a defendant’s request for a continuance of a domestic violence final hearing. In that case, the defendant alleged that a criminal case was pending against him, and he would be unable to testify in response to the domestic violence action without jeopardizing his right against self-incrimination. The trial court denied the request for the continuance and the Supreme Court affirmed the decision. The Supreme Court decided that there is no constitutional right to continue a civil proceeding, such as a domestic violence final hearing, so that a pending criminal case can be resolved. Moreover, the Supreme Court stated that in a domestic violence proceeding, there is a strong policy in favor of prompt in resolution of the case.

Persons accused of domestic violence, therefore, are well advised to seek the advice of an attorney before testifying at a final hearing. Specifically, if they choose to take the witness stand in their own defense, their testimony, which will be under oath, is recorded and is available to a prosecutor for use in any criminal action. As a domestic violence action and criminal action are two entirely separate proceedings, it may be of little value to defeat a domestic violence in the family division court only to find that in so doing the defendant has sealed her/his fate in the criminal case.

If you have any questions regarding a domestic violence case, please do not hesitate to contact an attorney at Hamblett & Kerrigan to discuss. The attorneys at Hamblett & Kerrigan have experience in handling such situations. Let Hamblett & Kerrigan use their experience to your advantage.

Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].