Massachusetts Domestic Violence Crimes and 209A Restraining Orders
I’ve Been Charged with Assault and Battery on a Family or Household Member in Massachusetts. What Do I Do?
Boston’s Serpa Law Office has deep experience in defending crimes of domestic violence cases in Massachusetts. A skilled criminal defense attorney is critical to work through the unique rules and polices at work in Massachusetts domestic violence allegations. These cases often allege assault and battery on a family or household member, strangulation, intimidation of a witness, 209A restraining order violations and other offenses. These cases also often occur with related Massachusetts restraining orders (“209A abuse prevention orders”). Serpa Law Office has equally deep experience in representing plaintiffs in 209A restraining orders seeking protection from abuse.
We discuss common Massachusetts domestic violence crimes here
Massachusetts has some of the nation’s strictest laws about domestic violence, including strict penalties and rigid rules of procedure. Domestic violence and domestic abuse create a tragic situation for everyone involved. Families can be shattered and children and spouses can be hurt emotionally. We are Boston criminal defense law firm experienced in exploring every possible avenue to end your case without a conviction, including negotiating dismissal of criminal cases with the district attorney’s offices and spouses or partners. Often, loved ones are willing to move on in the interest of avoiding more painful court hearings and trial. A knowledgeable defense lawyer will navigate the rules of procedure and evidence to ensure that these painful criminal cases are handled with the proper sensitivity.
Massachusetts courts treat domestic violence crimes differently from the beginning of the case to the end. Like all Massachusetts criminal cases, cases alleging domestic violence begin at arraignment, and end at dismissal, a plea (CWOF or guilty) or a trial by jury or, if the defendant chooses, a trial by a judge.
However, the unique importance of these cases creates unique Massachusetts criminal court rules and practices.
Bail and Pretrial Release: Massachusetts’ domestic violence law prevents a person arrested for domestic violence from being released on bail from the police station until six hours after they are arrested. People arrested for non-domestic crimes have no waiting period. The law also requires that a person arrested for a domestic violence offense wait six hours in custody before being arraigned (entering a not guilty plea) in front of a judge. This is a statutory “cooling off” period to prevent further violence in the heat of the moment.
Being Held Without Bail: Massachusetts’ domestic violence law also allows judges to hold people charged with domestic violence to be held in jail without bail while their cases are pending for four months (120 days) if they are found preliminarily to be “dangerous.” The law also allows a judge to hold a person charged with domestic violence to be held for 90 days if that person was charged with domestic violence while they had another criminal case pending against them. These periods are longer than the 60-day detention period for non domestic violence charges.
A judge must hold a hearing before ordering a person arrest for domestic violence to be held without bail as a “dangerous” person. In cases of domestic violence, the accused has far fewer rights in defending him or herself in these hearings. The hearing is a perfunctory pretrial hearing. First, a judge is required to allow the prosecution to prove “dangerousness” using hearsay (second-hand) evidence at this preliminary hearing. Second, the accused cannot require a family member or alleged victim to appear testify without first having permission from the court to require that witness to appear in court by summons.
Solutions to Domestic Violence Prosecutions in Massachusetts
Dismissal: Domestic violence prosecutions in Massachusetts are a high stakes endeavor. Abuse of family members is a grave problem and must be addressed seriously and aggressively by the police and prosecutors’ offices of Massachusetts. Judges also have fewer options in making decisions in pretrial release and bail, plea agreements and sentencing in these cases.
All Massachusetts District Attorney’s Offices have strict policies against voluntarily dismissing domestic violence cases. However, dismissals can still be achieved with an experienced criminal defense attorney. Again, these cases must be defended effectively and aggressively but with due respect for the seriousness at stake for both sides of a prosecution. This is a very difficult balance to strike. Prosecutors office often pursue these cases even where witnesses have no interest in prosecuting a loved one.
Dismissals occur most often on a date schedule for trial but before the jury is empaneled. In Massachusetts, spouses cannot be forced to testify against one another in most cases if they invoke the “marital privilege.” M.G.L. Ch. 233 §20. Also, witnesses who themselves may have committed a crime during an argument or a domestic incident and can refuse to testify because they risk saying things that will incriminate them.
Even in cases where witnesses do not appear for trial, prosecutors can attempt to prove a case to a jury without them under limited exceptions to the rule against hearsay. Sometimes, they will try to present a case to a jury using only police testimony and a recording of a 911 call. Sometimes, they try to prove a case using a transcript of a witness’ prior testimony to the grand jury under limited circumstances. Preventing these trials from going forward requires a Boston criminal lawyer with deep knowledge of the rule against hearsay and the rights of the accused to confront the witnesses against them.
Not Guilty Verdict: Often, trying cases to a jury is necessary. We have tried cases and received acquittals in cases charging domestic abuse, sexual assault and restraining order (209A) violations. We are experts in the rules of evidence, including the rules excluding, and sometimes allowing under limited scenarios, trials to go forward without a live accusing witness but based on hearsay alone. We have successfully argued motions to exclude such evidence and have had cases dismissed at trial for lack of evidence where the only evidence was a 911 call or an out of court statement.
Our Boston criminal defense attorney’s office has defended many clients accused of domestic violence offenses in Massachusetts criminal cases and in restraining order (209A) cases. If you are accused of domestic violence, our Boston criminal defense attorney’s office is here to help you have your case dismissed so you can move on to a better place.
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