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.

A BOSTON CRIMINAL LAWYER EXPLAINS WHAT TO EXPECT IF YOU ARE BEING INVESTIGATED OR CHARGED WITH MASSACHUSETTS DOMESTIC VIOLENCE (PART 1 OF 2)

The week has not been particularly good in terms of Massachusetts domestic violence cases. It seems a good idea to spend this Attorney Sam’s Take going through some nuts and bolts of what to expect if you are being accused of domestic violence.

First of all, understand that domestic violence cases are really cases about other crimes. It is domestic violence simply because of the setting in which the violence takes place. The actual charge could involve assault, battery, threats, destruction of property, etc. The fact that there is a domestic relationship between the parties is what gives the accusation the added title of “domestic violence”.

Second, domestic violence cases are one of the most sensitive types of cases. Particularly to police officers, prosecutors and judges. As discussed in my blog on Monday, there is a fear that the alleged violence will continue and the complainant will wind up dead. Nobody wants to be on the receiving end of “if you had only taken the claim seriously, she wouldn’t be dead now!”

Case in point? A particular murder case that came to light today. But we will get to that later.

In certain cases, a defendant has the right to a clerk magistrate’s hearing before an actual complaint is issued. This is important to the defendant because if the case resolves at this hearing, which takes place before there is an arraignment, the charge never shows up on his or her criminal record. In domestic violence cases, however, there is no right to such a hearing. In some instances, fancy legal footwork might be able to get a domestic violence defendant a clerk’s hearing. However, absent that, whether the defendant receives a summons or is actually arrested, the next step is going to be an arraignment.

Also, in most cases, the defendant will be arrested instead of simply receiving a summons. There is generally an understanding among law enforcement in these cases. Basically, if they have to come to the scene, somebody is going to be carted off in custody.

I have handled many cases where the complainant in the case says that she simply called the police not because she was afraid or even that the actual violence took place. Rather, she was angry and/or wanted to teach her loved one a “lesson”. Unfortunately, the upcoming lesson will be a painful one for both of them in such a case.

Law enforcement does not see itself as simply a tool to slap someone across the face, say “naughty” and then forget about the whole thing. Complainants who believe they still have control over the situation once that call is made next experience a rude awakening. Once charges are brought, it is not longer the complainant’s case. The complainant is a primary witness, true, but that may not matter until the time of trial perhaps a year down the road. It is the Commonwealth of Massachusetts, personified as the prosecutor, who now controls the case. There are many cases in which a complainant will want to drop charges as soon as they have been brought. However, because this is sometimes done out of fear or Battered Spouse Syndrome, such a request is not generally honored unless and until absolutely necessary.

“Well, what about the judge? Can’t the judge just dismiss the charges if the complainant wants to do that?”

No. Believe it or not, the judge does not really have the power to do that lawfully. Even if the judge did have the power, though, she would likely be as reluctant to do it as is the prosecutor…for the very same reasons.

“Well, what if I explain to the prosecutor that I think I over-reacted and am not in danger?”

The prosecutor is not likely to take your word for it.

“What if I explain that having to defend this case is screwing up our whole family, costing a lot of money, stress, etc.?”

The prosecutor is likely to show you a sympathetic face. And then tell you that she is not going to dismiss the charges. After all, as she will explain, her main priority is keeping you safe.

“What if I tell her that I lied and that he did not do anything?”

Then you will be confessing to committing one or more crimes. Even then, though, the prosecutor may not believe you and still prosecute the case.

“If I am legally married to the defendant, don’t I have a right not to testify against him?”

You usually do (unless the case involves danger to a child). However, as mentioned above, that issue may not become ripe until the time of trial…perhaps a year down the road.

“So…all is lost?”

Never. Stay tuned to Part 2 of this blog.

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

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