Articles Posted in Domestic Assault and Battery

Should criminal accusations regarding domestic assault and battery subject someone to losing their job? No! Mere accusations of criminal activity does not constitute guilt. So what is behind the public outcry demanding the automatic suspension of football players accused of domestic assault and battery? Obviously not due process.

Due process is a fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one’s life, liberty, or property. Also, a constitutional guarantee that a law shall not be unreasonable, arbitrary, or capricious.

Domestic Assault & Battery Defense

Domestic Assault & Battery Defense

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If you or someone you love is facing a criminal domestic assault or battery charge, it is crucial that you seek counsel to evaluate your case.  Gaining the experience of a legal professional is the only way to protect yourself from an onslaught of legal ramification.  Knowing your options will help you achieve the best possible outcome for your case and avoid serious long-term loss, both personally and professionally. Massachusetts domestic assault and battery defense attorney Kathleen McCarthy is the person you want to contact if you are charged with one of these cases.

Massachusetts Domestic Assault and Battery Defense Attorney

Massachusetts Domestic Assault and Battery Defense Attorney

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As previously discussed in part 1 of this blog series, if children are present when police come to your home in response to a domestic assault and battery report, they will report the instance of the domestic assault to the Department of Children and Families (DCF) by submitting a 51A report of potential child abuse and neglect, as there is a concern that there may be child abuse in the home as well.

Domestic Assault and Battery Defense

Domestic Assault and Battery Defense

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Any close living situation may eventually cause agitation and strife between those people living together. And in some cases, the situation reaches a boiling point and people start to lash out, sometimes even violently. When violence occurs within the home, it is considered domestic assault. In the middle of a heated moment, it can be hard to keep sight of the fact that you love your family members or your children.

Child Abuse and Neglect Defense

Child Abuse and Neglect Defense

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The Seattle Times reported that two time soccer Olympic gold medalist Hope Solo was recently arrested and charged with two counts of domestic assault and battery.  The alleged victims are Solo’s sister and seventeen year old nephew.

Domestic Assault and Battery Defense Lawyer

Domestic Assault and Battery Defense Lawyer

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A twenty-one year old man faces serious assault and battery charges on the three-year child of his girlfriend.  According to the Salem News, Christopher Declid pleaded not guilty in the Salem District Court to a charge of domestic assault and battery causing serious bodily injury after Declid’s sister called the police to report abuse. The police responded to an Extended Stay America in Danvers midafternoon and found the child alone in the corner on a mattress.  Apparently, the other family members went out and the child was left behind because he was “bad.”  Declid and his girlfriend, mother of the child, both face child abandonment charges.Assault and Battery Defense Lawyer Continue reading

What is Domestic Assault and Battery?

Assault is the threat of violence, and battery involves unlawful physical violence or intentional touching of another person that was nonconsensual. When assault and battery occurs in the home or in a domestic situation between those in a familial relationship, it is referred to as domestic assault and battery in Massachusetts. Domestic disputes can and often do arise between significant others, family members and those who live together. There does not have to by any physical injury for a charge of assault and battery to be lodged against another person.Massachusetts Domestic Assault Defense Continue reading

In many Massachusetts criminal cases, particularly domestic violence cases, a witness asserts a privilege not to testify at a trial. The most common privileges that are asserted are the marital privilege and the privilege against self-incrimination. Simply stated, in most circumstances the government cannot force a spouse to testify against his or her spouse–this is referred to as the marital privilege. Also, a witness cannot be forced to testify if some of the testimony will incriminate him or her.

If the Commonwealth plans to go to trial and cannot call this witness it may try to call a witness that heard the person make the statement that incriminates the client. In this situation the trial attorney must file a motion to exclude the statement of the witness who is reiterating what a non-testifying witness stated. This is generally done as a “Motion In Limine” filed prior to trial. Depending on the court, this can be done on a date prior to the trial date or immediately before trial. One of the seminole cases in this area is Commonwealth v. Gonsalves, 445 Mass. 1 (2005).

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Although recently acquitted of first-degree murder, George Zimmerman has not been able to stay out of the police log or the public eye and was recently involved in an alleged case of domestic assault. The Washington Times reported that back in early September, 2013, Zimmerman’s wife accused him of stealing items, including a large flat screen television valued at over $2,000 and furniture, from the home the couple previously resided in. The former Zimmerman residence is owned by the wife’s parents. Apparently, things went down hill for the happy couple after she filed for divorce. The estranged Mrs. Zimmerman accused her husband of becoming violent during an argument, threatening her with a gun and smashing an i-pod.

This type of incident that occurs between family members is often referred to by law enforcement as a case of Domestic Violence. In this case, it appears that the police investigated the allegations of Mrs. Zimmerman and although George was initially taken into police custody he is not facing any criminal charges. According to the Washington Times, Mrs. Zimmerman recanted her initial story.

In Massachusetts, cases of domestic violence are taken very seriously by the police and the District Attorney’s office. It is the usual course that following a call to the police for any type of assault or argument to a home, someone will be arrested. The authorities preferred method of response in these situations is to separate the fighting parties, even if the complainant does not wish to have anyone arrested. In their minds this will avoid a tragedy of having someone severely injured or killed after they leave the scene.

In Zimmerman’s case, Mrs. Zimmerman made very serious allegations. Threatening an individual with a gun is the crime of assault with a dangerous weapon and stealing the described property is the crime of malicious destruction of property over $250.00. Both of these crimes are felonies and are punishable by possible state prison sentence.

It is not unusual for a spouse or family member to decide not to pursue charges against a defendant after an arrest has been made. Unfortunately for them, it is not their decision. Once there is an arrest the complaining witness is not a “party” to the case but a witness. The case is captioned Commonwealth v. Defendant, thus the final decision relative to how a case will proceed is up the the prosecutor NOT the victim.

In Massachusetts, the prosecution cannot force a spouse to testify against his or her spouse, unless certain conditions are present such as the safety of the children. In the event the the only two people that were present during the incident was a husband and wife and there is NO other evidence the exercise of the marital privilege can often result in the dismissal or nolle pross of the criminal case. However, it is important to note that this privilege can only technically be exercised on a trial date and not for a motions hearing or a grand jury presentment–as these are not considered “trials.” Furthermore, there is no privilege that prevents a mother or father from testifying against a child or a sibling from testifying against a sibling. The only privilege relates to the marital privilege and often the court will require that a marriage certificate be presented to the court.

The 911 call is closely examined in the event that a spouse exercises his or her privilege. The cases of Melendez-Diaz and Crawford counsels that a statement made out of course is hearsay and is inadmissible if it is testimonial and the witness was not previously subjected to cross examination. An exception to this principle in Massachusetts is if the police or 911 operator are responding to an “ongoing emergency” because the interview of the “victim” is not considered “testimonial.”

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The Boston Globe recently reported that a six person jury sitting in Concord District Court convicted the former Waltham police chief of domestic assault and battery. The prosecution secured conviction despite the fact that the defendant’s wife testified that the defendant never attacked her. Based on newspaper reports, it appears that the Commonwealth introduced statements that the defendant’s wife made to a long time friend on the night of the incident indicating that the chief did strike her. Additionally, it seems that there was evidence from the medical records in which the wife stated that she was pushed and pulled. Thus, despite the fact that the “victim” did not testify for the prosecution, the defendant was still convicted.

Defending cases of alleged domestic abuse in Massachusetts requires knowledge of the law and skill. In this case, it appears that the Massachusetts Defense Attorney did a very good job as the chief was acquitted on charges of witness intimidation and threats made to his wife and one of her friends and Commonwealth witness. Thus, it appears that despite the presentation of a strong defense. the jury credited the testimony of the witness claiming that in the aftermath of the incident the victim stated that her husband struck her. The prosecution apparently argued that the victim’s stake in the defendant’s income and pension were motives for her to testify on behalf of her husband.

In Massachusetts a spouse cannot be forced to testify against his or her spouse. However, that does not mean that the Commonwealth will necessarily dismiss the charges. In courthouses across Massachusetts, including Concord, Lawrence and Lowell, the District Attorney’s office makes an assessment of the evidence independent of the spouse’s statements to determine whether to proceed to trial. This case of the Waltham police chief in the Concord District Court is an example of a case that went to trial even though the wife/victim did not want the case to go forward.

A collateral consequence of someone being charged with domestic assault and battery is that if a child was present the Department of Family Services will be notified and an investigation is conducted relative to the safety of the child or children. It is important for anyone charged with a crime to remember that any statements made to this agency are discoverable and could be used against him or her in the event that the case goes to trial. Similarly, in the event that one spouse gets a 209A restraining order and an evidentiary hearing takes place, it is important to remember that any statements made can be used in court during the trial.

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