Burden of Proof for Domestic Violence in New Jersey

Aggressive NJ Lawyers Challenge the Burden of Proof for Domestic Violence in NJ

In civil cases, the plaintiff has the burden or standard of proof to present evidence proving a claim, for example, that someone injured them by operating a car negligently, which led to damages. In criminal cases, the prosecution has the burden of proof to present sufficient evidence to prove that an accused committed a specific crime. The burden or standard is the amount of evidence to reach a threshold of adequate proof.

Burden of Proof for NJ Civil vs. Criminal Domestic Violence Cases

In most civil cases, the standard is a preponderance of the evidence, meaning more likely than not. In criminal cases, the burden of proof is beyond a reasonable doubt, which amounts to near certainty. However, other standards apply, such as clear and convincing evidence in fraud cases and reasonable belief to support probable cause to obtain a warrant. For domestic violence cases, the burden of proof varies depending on the circumstances, since domestic violence actions may have both criminal and civil components.

Burden of Proof for Domestic Violence Criminal Trials in NJ

In a criminal domestic violence case, an arrest may be the beginning of a domestic violence action. The police may come out to a residence or other location to investigate a claim of injury and violence. The accused may be arrested and face criminal charges for one of the underlying crimes that constitute domestic violence, such as sexual assault, aggravated assault, criminal mischief, or terroristic threats.

Whichever predicate act of domestic violence specified in the Prevention of Domestic Violence Act of New Jersey the accused faces, the prosecution has the burden of proving beyond a reasonable doubt that the accused committed a crime or crimes. While some cases are more obvious, others are less so. For example, when the police arrive at a residence and find one spouse holding a gun and the other on the floor bleeding from a gunshot wound, the proof may be more compelling than in different scenarios.

The mere he-said-she-said stories of alleged criminal activity may be more challenging to prove to a jury at the criminal standard, as any doubt the defense raises can result in a not-guilty verdict. However, not all domestic violence cases begin with a criminal action. The state may not press charges when insufficient evidence exists to meet the high burden of proof. In those and other cases, an alleged victim may seek protection from domestic violence in the family court.

Burden of Proof for a Restraining Order in NJ

When the police come out to a scene of domestic violence but the county prosecutor decides not to press charges, an individual may still seek protection from a civil court. Likewise, an individual may go first to the superior court family division seeking a temporary restraining order. A temporary restraining order (TRO) is a civil matter that requires a preponderance of the evidence to prove domestic violence occurred and that a restraining order is necessary. The TRO becomes a final restraining order (FRO) ten days later when the plaintiff satisfies a civil standard of proof.

Does the Evidence Meet the Standard of Proof for Domestic Violence in NJ?

In either a criminal or civil domestic violence case, the jury or judge weighs evidence such as photographs of injuries or scenes of domestic violence, for example, broken windows, punched-out holes in the wall, or bullet holes. Other evidence includes the witnesses who saw the domestic violence occurring, such as roommates or bystanders. Medical records are necessary to prove injuries, as may be police reports. Additionally, the victim’s testimony on what occurred is also evidence.

This same physical, documentary, and testimonial evidence may support a prosecutor’s criminal complaint against a defendant and a restraining order petition by the victim against the accused abuser. However, the evidence supporting a criminal prosecution must be far more compelling as proof of guilt. The evidence in a restraining order domestic violence action need only be 51% more convincing than the defendant’s proof of their defense to the need for a restraining order.

In other words, a judge can have doubts about the need for a restraining order and still grant a restraining order when the evidence points slightly to confirm that a plaintiff needs protection against someone who committed a domestic violence crime. The same is not valid for a criminal prosecutor’s case. Any doubt that a juror or jurors may have means the verdict must be a not guilty decision for the defendant.

Challenging the State’s Case Against a Domestic Violence Defendant in New Jersey

Our criminal defense lawyers at The Tormey Law Firm know that challenging the state’s case hinges on creating doubt. Ways to develop doubt include cross-examining witnesses to expose inconsistencies in their testimony to discredit them or an underlying motive of revenge to raise suspicion. Our attorneys may also challenge the state’s case as insufficient due to weak evidence that is not convincing beyond a reasonable doubt. With 100 years of combined experience and former domestic violence prosecutors on our team, our domestic violence lawyers may introduce evidence to prove that our client did not do the crime by questioning the sufficiency of the state’s evidence or by supporting affirmative defenses. One defense to a domestic violence crime is self-defense. When the alleged victim’s injuries are the result of the accused’s self-defense, such as restraining the attacker’s arms to prevent them from punching or stabbing, a jury may doubt the state’s account of what occurred.

Proving that the alleged victim lied about their injuries out of spite or revenge is another defense to domestic violence charges. False accusations of domestic violence require proof of the accuser’s true motive through witnesses or writings exposing threats to the accused to take revenge. In addition, a witness to the alleged victim’s creating self-inflicted wounds or accidental wounding is powerful support to the defense. The insufficiency of the evidence against the accused may also support a defense of a false accusation.

Other defenses include the wrong person defense. Evidence that the accused was out of town when the alleged incident occurred is strong evidence for an acquittal. Also, police misconduct or incompetency in a domestic violence investigation may supply evidence for the defense. An incomplete investigation or a violation of the accused’s right during an arrest may support a reason that also challenges the sufficiency of proof. Evidence that the police obtained in violation of the accused’s constitutional rights may be excluded from reaching the jury with a successful motion to suppress evidence.

Disputing a Plaintiff’s Case at a Final Restraining Order Hearing in NJ

In a civil matter, the same defenses may be used as compelling proof. For example, proving that the alleged victim had an ulterior motive for seeking a restraining order, such as winning a child custody battle with the accused, may cause a judge to deny the FRO. The hearing on the FRO is where a defendant can present evidence to convince a judge to deny the FRO. However, their case must be more compelling than the plaintiff’s. In essence, it is the defendant’s goal to show that it is more likely than not that domestic violence did not occur and there is no need for protection. It is the plaintiff’s task to show that domestic violence occurred and the need for a restraining order is true by a preponderance of evidence. Fortunately, the defendant simply has to invalidate the sufficiency of the plaintiff’s evidence or show that one of the necessary criteria for a final restraining order has not been met.

We Aggressively Fight Domestic Violence Accusations in New Jersey

Since an FRO is permanent and a criminal conviction goes on your criminal record, you must get help from an attorney to fight both when you are accused of domestic violence. An FRO can disrupt your life in untold ways, such as innocently violating the restraining order that lands you in the criminal justice system for contempt. You also lose your ability to have firearms. And a criminal record can affect your life economically and otherwise when you are denied employment, education, professional licenses, or housing.

An aggressive domestic violence attorney is crucial to your defense in a criminal trial or FRO hearing. At The Tormey Law Firm, our lawyers are also essential for behind-the-scenes negotiations with the prosecutor or opposing counsel in a civil matter. Sometimes, we litigate both cases, disputing the sufficiency of the evidence at a domestic violence trial in criminal court and fighting the need for a restraining order in civil court. When only a restraining order has been filed, our lawyers are well-equipped to negotiate civil restraints if applicable to protect your professional license or other employment and prevent criminal charges for violating a restraining order in the future.

No matter what the case may be, we examine every single fact to determine the best approach for defending our clients in Bergen County, Middlesex County, Monmouth County, Union County, Hudson County, Passaic County, and other counties throughout New Jersey.  If you face domestic violence accusations, contact us immediately to talk the a lawyer on our team who can protect you in the criminal and civil arenas. You can reach us online or call (201)-556-1570 for a free consultation.


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With unmatched knowledge and experience in the practice of law, the seasoned attorneys at The Tormey Law Firm are committed to serving their clients and tenaciously confronting the allegations against them.

We will examine every facet of your case in order to defend your constitutional rights and reputation. With a dedicated legal advocate to assist you, our attorneys will ensure that you are never forced to navigate the complex legal process on your own.

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