Officially released August 20, 2019.
In Short: An adverse inference can be drawn from exercise of right against self-incrimination, although the inference itself cannot provide the proof of a fact absent other evidence. Not much else here.
The Facts: Defendant appealed from the judgment of the trial court granting Plaintiff’s application for relief from abuse pursuant to § 46b-15.
During the hearing, Plaintiff testified to intimidation, threats and stalking. She testified that Defendant struck her on two occasions, in 2010 and 2015. She offered an eighteen-minute audio recording of a “verbal rant.” Defendant exercised his right against self-incrimination as to the recording and the trial court stated it inferred “that there is stuff on that tape he doesn’t want this court to hear.” There was testimony of a social worker corroborating some of the claims.
The First Issue on Appeal was whether the court improperly determined that there was evidence of immanent physical harm or threat. The standard of review was abuse of discretion. The Appellate Court held that there was sufficient evidence to support the finding of a continuous threat of physical harm.
The Second Issue on Appeal was whether the court improperly took an adverse inference from Defendant’s exercise of his right against self-incrimination. The claim involves a question of law over which review is plenary. The Appellate Court held that the self-incrimination prohibition does not apply to civil matters. Although an adverse inference cannot itself provide proof of a material fact, there was other evidence to support the findings.
The Third Issue on Appeal was the claim that the court applied the wrong standard, by using the expression “just tipping the scales” in entering its order. This too was a question of law subject to de novo review. The Appellate Court held that this colloquialism was often used by courts to refer to the preponderance of the evidence standard of proof and found no error.
