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 DISCUSSES LAWYER’S WEEKLY ARTICLE ON DOMESTIC VIOLENCE MATTER

When I was first approached by Massachusetts Lawyers Weekly to comment on the ruling in Commonwealth v. Dossantos, I did not understand why this case was considered noteworthy.

Upon further reflection, though,I realized that it could have been quite noteworthy.

You see, back in 2014, there were changes made to the Massachusetts domestic violence laws. A part of this was General laws chapter 276, section 56(a). This mandated that when a criminal defendant is arrested and charged with a crime against a person or property, the court must inquire of the prosecutor as to whether the Commonwealth alleges that the matter was a domestic violence incident. Should the prosecutor answer in the affirmative, the statute necessitates that the judge “make a written ruling” that the Commonwealth so alleges. In such an event, the defendant’s name is added to a domestic violence registry, “DVRS”.

Let me present that another way. The Charges are read. The judge asks the prosecutor whether it is alleged that the matter involves domestic violence. The prosecutor answers the question (as he or she is also required to do in writing). The issue addressed in this case involves exactly how the court is to react before it reacts…affirming what the prosecutor has just said both orally and in writing.

Now, let’s review what this statute is not. It is not a change in the crime charged, which, at the time this event happens, has already been decided. While this “hearing”,
must take place before bail is addressed, there is no indication that the answer to the question will affect the question of bail. Other than the act of adding the defendants name to the DVRS, there is nothing new for the judge to do upon making the finding in a case where, for example, the defendant is charged with striking his spouse over the Head with a baseball bat. Simply echo that the defendant is charged with a crime of domestic violence.

Well, kinda-sorta. Keep reading.

You realize, of course, at this point, the defendant is still presumed innocent. However, onto the list his name goes unless and until he is either found not guilty by a jury where there is a finding of no probable cause Buy a grand jury.

That’s right, should the matter simply be dismissed… The defendants name remains on the registry.

While not available to the public or to prospective employers, the DVRS is open to judges and law enforcement. That means entries can be taken into account in connection with a “whole host of proceedings” implicating important rights, as pointed out by another criminal defense lawyer.

“For example, the entry can affect a person’s right to be heard in opposition to the issuance of a criminal complaint against him or her in District Court, a person’s right to remain in his or her marital home, [or] a person’s right to see or even contact his or her children…If you consider the very real possibility that the allegation may, in the end, turn out to be inaccurate, it’s incredibly scary to think that it can nevertheless haunt someone for the rest of his or her life and that it can do tangible harm to his or her rights.”

Scary? I would say so. But such issues were not the subject matter of this particular court opinion.

No, in this case the court simply dealt with the issue of whether, upon producing the domestic violence proclamation echo, the judge could enter the defendants name onto the list without first making a finding that the Commonwealth had the adequate allegations to support that the matter is a matter of domestic violence.

Incidently, the answer turns out to be “no”.

The judge must make his or her own ruling as to whether or not the factual allegations fit as a domestic violence matter.

This apparently protects us should the prosecutor ever, for example, produce a case involving allegations of drug distribution, and claim that it is a domestic violence incident. Likewise, should a defendant be charged with producing a handgun on the street and robbing a stranger at gun point, the judge, upon hearing the allegations, Will tell a prosecutor who might somehow think he has a domestic violence matter that he is incorrect. However, should a prosecutor tell the judge that the defendant, who is charged with beating all of his children with a pool stick is domestic abuse, the court will agree with that assessment.

But, thanks to this new case, we know that the court cannot just simply take the prosecutors word for it….But must make sure the prosecutor knows what he or she is doing.

Attorney Sam’s Take On Much Ado About …Not Too Much

Just as an inside…I have not met many prosecutors who do not know the difference between a domestic violence matter or, say, a drunk driving case.

Any, actually.

Let’s take a look at how this matter might have actually MEANT something…in my next posting which will be posted later today.

(promise!)

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