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Transcript
Hi, it's Mike Delsignore. I wanted to talk about what happens if you're charged with domestic assault and battery and your case is going be heard in the Stoughton district court.

What happens is your first court date, you're going to be arraigned. The court's going to enter a not guilty plea. Many people think, "Well, this was just a misunderstanding. My wife, my girlfriend, she called the police, but she didn't want to see me get arrested. She just wanted to calm the situation down." Well, that's a common situation and, unfortunately, the cases just don't get dismissed on the first court date. The government takes these cases very seriously. They have a policy that they're going to treat every case the same, so they don't use individual judgment. So while in your case they probably should resolve it on the first court date, they're not going to do that.

What they're going to do is they'll see if there's any independent proof. Can they prove the case without the cooperation of the victim? Let's say it's your wife that's the victim of the case or your husband, as a spouse there's always a right to exercise what they call the marital privilege. If the marital privilege is exercised, then the person's testimony is not available. Often, there might not be enough independent evidence to prove the case against you.

There can be. Here's how there can be. There's a couple ways, two ways usually, where the government can prove a case without the cooperation of the victim. One, if you admitted to the officer that you did what they said you did. If when they came in the house, they asked what happened, you said, "Well, I just got upset. I pushed her. We were arguing." That would be an assault and battery.

Second is if there's a 911 call. The person that's claiming to be the victim calls 911 says, "Hey, my husband just hit me and I need help send a police officer here." You would think that that testimony wouldn't come into evidence if the person didn't testify. It's hearsay. It's Sixth Amendment, your Sixth Amendment right to confront the person. But, the US Supreme Court and there's some Massachusetts cases as well, a case called Commonwealth versus Beatrice, and in the US Supreme Courts, Michigan versus Bryant says that that statement isn't testimonial. That's the key language they use while we're in court when deciding whether a statement comes in or doesn't come in, if it's testimonial or non-testimonial.

They're saying that a woman's 911 call is a call to get help. It's not like giving testimony against somebody in court, but it's more like a cry for help so that means that the person doesn't have the right to confront their accusers or the person that made the call in that situation. If the court puts it in the non-testimonial box, then it could come in without the person actually testifying.

Now, the government doesn't always proceed on that theory. It depends on your record, the seriousness of the case. Sometimes a domestic assault and battery will have other charges like 209A violations if there was a restraining order at the time or a witness intimidation. Witness intimidation typically comes up where the victim is going to grab their phone and call the police. Their phone's ripped out of their hand. That generally will bring a witness intimidation charge, which is a felony charge.

If you're not a citizen, it's important to realize you shouldn't ever admit to a domestic charge. It could have the consequence of deportation exclusion from the country, and it will. We had a case recently where we had to get someone who hired a different attorney, get their plea overturned because they were going to be excluded from the country based on admitting to a continuance without a finding on a domestic charge. While a continuance without a finding is technically not a conviction, it's still considered a conviction for immigration purposes.

Let's say you are a citizen. Generally, there's a way to defend these charges without even admitting to the charge. I wouldn't recommend ever taking a CWOF unless you've really spoken to an attorney and you really understand the defenses and the strength of the case.

I'm Michael Delsignore. You can call me anytime. It's never too early or too late to call. I meet clients in person, zoom meetings, over the phone so whatever communication methods suits you best, I can accommodate that. If you have any questions, don't hesitate to call.

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