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 ON THE CONTINUATION OF MASSACHUSETTS DOMESTIC VIOLENCE CASES

Hello and happy July 4th! I hope you are enjoying the celebration of liberty.

In celebration of the festivities, the Boston Criminal Lawyer Blog is discussing one instance where a number of people lose their freedoms and both they and, often, their complainants are shocked about the process.

On Monday, we began discussing Massachusetts domestic violence cases. When we left off, our fantasy couple, Lilly and Lou Loud had had a rather loud verbal argument which the neighbors overheard. The neighbors called the police. Police came, the Louds denied that anything violent was going on and Lou ended up with criminal charges nonetheless. That is where we left off.

The question on the table was what was likely to happen next in today’s Commonwealth criminal justice system.

We established that Lou was going to be going to arraignment and have the criminal charge entered onto his criminal record.

“Sam, you established that Lou was not entitled to a Clerk Magistrate’s Hearing. Is there any way to prevent the arraignment so that the charge does not get entered upon his record?”

He does not have an absolute right to the hearing. However, as in the case with comic book heroes, when they are looking certain death in the eyes and it seems like the end, “There’s just one chance! If I can just…!”

I am constantly surprised that more criminal defense lawyers do not even make an attempt to save their client’s record at this point. I do. You see, in our scenario, Lilly Loud is on her husband’s side. She has been saying all along that no crime was committed.

“So, she can just stand up in court, explain it all to the judge and the arraignment will not take place?”


No. In fact, while one can never say “never” in the criminal justice trenches, that approach will almost never works.

What I usually do in these cases, is request that the complainant (Mrs. Loud in this case) come to the arraignment and I appear with a motion to dismiss the case so that the matter can be remanded to a Clerk’s Hearing.

“But you said that Lou Loud does not have a right to a Clerk’s Hearing in this case.”

He doesn’t…necessarily. However, judges often do not want to waste the court’s resources and sometimes even prosecutors will see the wisdom in that. I argue that the complainant is right there in the courtroom for the court or prosecutor to question and that she has said from the beginning that there was no assault. My argument is that not that the case is entirely without merit, because, although it is the truth, neither the judge nor the prosecutor will go for that. However, they may agree (or, at least the judge may agree which is all that is needed) to send the matter to a Clerk’s Hearing because it will likely be resolved there without a complaint needing to be issued.

After all, the judge does have the discretion to send the matter back for said hearing.

“Why wouldn’t the prosecutor always agree with doing that? Just to be mean?”

No, while I have disagreed with many prosecutors, they are seldom motivated by simply wanting to be “mean“. They have a perspective that is legitimate to them. They will argue that because complainants in these types of cases are sometimes brow-beaten, manipulated and suffering from battered spouse syndrome, the protestations of the complainant may not be legitimate and could be a result of fear.

“Is there any difference in these cases if the complainant and defendant are not legally married?”

Yes. If they are married, then the complainant cannot be compelled to testify against the defendant. However, no such spousal privilege applies if they are not legally married. The complainant, in those cases, can be forced to testify.

” ‘Forced’ to testify? But I thought the whole point was to protect the complainant and rescue her from being ‘forced’ to do anything”.

Sorry, it is not that simple. You must remember that technically, the complainant is merely a witness to the Commonwealth. An important witness, of course, but simply a witness. What many people do not realize is that this is not the complainant’s case and the prosecutor is not the complainant’s lawyer. It is the Commonwealth’s case and the client of the prosecutor is the Commonwealth (assuming that the matter is in Massachusetts state court).

“Can the complainant hire her own lawyer?”

Sure, but that lawyer will be limited in what he or she can do. The lawyer can act as a “go between” with the prosecutor and look out for the complainant’s interests…particularly if there may be a civil suit forthcoming. However, that attorney has no real standing in the case unless a role truly pops up for him or her to play…such as representing the complainant in asserting her rights not to testify.

“Is it necessary for the complainant to hire a private lawyer?”

Not usually. The complainant does not really need counsel to assert the spousal privilege. However, if there were a Fifth Amendment issue (right not to testify if it will incriminate oneself) then she will need one. Usually, in such cases, if she does not have her own lawyer, one will be appointed solely for that purpose.

“Anything else we should know about these types of cases that folks often do not know?”

Oh, yes.

“See” you Friday. Happy 4th!

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