Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Attorney Sam’s Take: Arrest For Domestic Violence In Boston

Earlier in the week, I began a blog posting reminding you that, although you may think it could never happen, the criminal justice finger of accusation can suddenly arrive at your doorstep. This is true anywhere in the country. It is certainly true here in Boston where the dial of a cell phone can easily result in the need for a lawyer.

Today, I am referring to the type of matter which seems to most surprise my clients when they are suddenly face to face with law enforcement and the Commonwealth Bracelets of Shame. It involves the category of crime now known as “Domestic Violence“.

In days past, these crimes, like drunk driving, were not taken seriously enough. The police would hear of a wife-beating and the courts would basically treat the problem as a simple “family issue”. Few people were sent to jail; more people ended up dead. Usually the battered spouse. Our legal system has fixed that…and…as is common…gone over to the other extreme.

Where you aware that when the police come to your home after a report of domestic violence that, in their words, “someone is going to jail”? Now, true, there are a few exceptions, but the procedure these days is that one of the occupants in the reported disturbance is about to be the guest of the Commonwealth, even if only for a short time. Rest-assured, however, a criminal prosecution is coming. In fact, in most cases, a Clerk Magistrate’s Hearing to determine probable cause is not even available. The case goes right to arraignment and bail arguments…which means right to the defendant’s criminal record.

“What’s the problem, Sam?”, you are asking. “If there is violence in the home and someone is fearful enough to call the police, somebody should be going to jail!”

If it were that simple, I would probably agree with you. However, someone from the home need not be the person who calls the police. What if a couple are arguing and someone overhearing the fight calls the police? Neither of the two verbal combatants are fearful, although it sounds like they should be. Maybe even something was broken during the argument.

“Well, then, the police come, find out there is no real problem, and they go away, right?”

Sure. Usually with one of the verbal opponents.

You see, we have become so sensitive to the situation that even if both arguers are unafraid and unhurt and indicating to the police that there is no problem…someone is usually going to jail. Perhaps someone knocked something over. Perhaps someone blocked someone’s way. Perhaps there was even a gentle push from a socked-foot in “get away from me” style. These are the types of matters I have handled…in court.

“But Sam, surely the one not arrested can explain the situation to the police or the prosecutor and get the whole thing thrown out, right…?”

You would like to think so, particularly in a situation where the prosecutor is an attorney charged with the responsibility to “do Justice”….but no.

In most cases, the prosecutor will not even speak to their “victim” about dropping charges until the case has made its way to trial. Then, if the “victim” is a spouse, the marital privilege will apply and the spouse can refuse to testify. Then, the matter may be dismissed.

The case remains on the defendant’s record. The defendant has paid for the criminal defense lawyer. The defendant has gone through months of fear of what might happen…not to mention time lost at work.

Now, just to spruce it up alittle, let’s say an angry neighbor just called the police because he or she does not like the arguing couple and decides to embellish alittle on what was actually heard? This witness will be at the trial date, ready to testify, now trapped in what he or she has reported to the police.

Sound absolutely hopeless?

Well, it is scary, but not hopeless.

What do you do if you are found in that situation?

You know the answer, don’t you? You do not out-reason, out-fight or out-run the police. You go along quietly and get an experienced criminal defense attorney as soon as possible. What lies ahead is a road that may make no logical sense to you. But someone used to dealing with these cases, knows the “alternate logic” that rules this terrain.

If the sanctity of your home has been invaded with this type of situation, and you want to discuss the case with me, feel free to do so by calling me at 617-492-3000.

In the meantime, have a good, safe and law-abiding weekend!

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