Massachusetts Domestic Violence Legal Questions

Hi there Stephanie, What a crazy situation.  The father of your child absolutely broke the law by secretly recording your fight.  His conduct is a felony and you should seek the assistance of an experienced criminal attorney in seeking a cross-complaint against him. Mass. G. L. c. 272, s 99: provides that "any person who— willfully commits an interception ... of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment." Also, the dissemination or use of the recording constitutes a separate crime (a misdemeanor) under the same statute: "any person who ... willfully discloses ... to any person the contents of any wire or oral communication, knowing that the information was obtained through interception; or ... willfully uses ... the contents of any wire or oral communication, knowing that the information was obtained through interception, shall be guilty of a misdemeanor punishable by imprisonment in a jail or a house of correction for not more than two years or by a fine of not more than five thousand dollars or both." The secret audio recording itself is categorically inadmissible in court against you. G.L. c. 272, s. 99 further provides, as here relevant, "any person who is a defendant in a criminal trial in a court of the commonwealth may move to suppress the contents of any intercepted wire or oral communication or evidence derived therefrom, for the following reasons ...  That the communication was unlawfully intercepted [or] That the evidence sought to be introduced was illegally obtained." While a silent recording may have been lawful, that the recording contained an audio feed renders it inadmissible.  That the recording was made may also call into question the admissibility of your kid's dad's testimony about the incident itself.  To the extent that he referred to or relied on the recording in any way to aid his testimony may render his testimony inadmissible.  Of course, your kid's father would also be wise to refuse to testify pursuant to his 5th amendment right against self-incrimination.     Suffice it to say, the decision to secretly record you was highly unlawful, and a skilled attorney can make use of this fact to seek dismissal of the charges against you.     Let me know if you would like to discuss further.... Read More

I'm so sorry to hear about the terrible circumstances of your home life.  The answer to your question is no, beating your wife for twenty years is not "ok."  Physical aggression is never "ok."  You should immediately seek the protection of the court by seeking an emergency restraining order, commonly referred to as a  "209A."  You can request an order by contacting the police if you are in an emergency situation - at any hour of the day.  You can also request an order at the courthouse.  The court has the authority to issue a ten-day order on the spot, following which it will notify your husband to appear at an extension hearing.  Although no attorney is required, many people choose to retain an attorney in order to help with this process.  The restraining order laws provide strong protections for individuals in your situation.  Violation of a restraining order is a crime and your husband will be arrested if he violates the order.   Given the extensive and pervasive nature of the violence you have suffered, you should contact the police department in the city or town in which these incidents occurred.  You should furnish all the details of the incidents you have suffered, together with any evidence you might have to corroborate your report, including medical records, or witness statements. You should understand that none of that corroboration is legally required.  However, the presence of confirming circumstances may aid in building a case.  Your husband should be prosecuted for hurting you.  What he has done is not ok.   There are various resources available for individuals who suffer from domestic violence.  Check out the Commonwealth's website which provides various crisis phone numbers, contact information for transitional living facilities, and a list of support groups that can help you.  https://www.mass.gov/service-details/domestic-violence-programs-for-survivors.... Read More

Hi there,  I would like to give you some information in response to your question.  Would you be able to provide a bit more context and describe your case in some more detail?  Any useful answer to your question will depend on the particular circumstances of the case. For purposes of clarity, please answer the following questions: Have you been charged with a crime?  If so, please list the specific charges. If you have not been charged with a crime, please describe the facts and circumstances of the incident with which you are concerned. As a starting point, I can say this in response to the specific offenses you have cited.  Simple domestic assault and battery is a misdemeanor punishable by up to 2.5 years in the county jail.  There are various aggravated forms of this offense which constitute penalties with much more severe sentencing exposure. Assault with a dangerous weapon is a felony punishable by up to 5 years in state prison. The crime of larceny over $1,200 is a felony punishable by up to 5 years in state prison.  If the  charge is larceny under $1,200, the offense is a misdemeanor punishable by up to 1 year in the county jail. The crime of burglary (unarmed) is a felony punishable by not less than 5 years not more than 20 years in state prison.  An armed burglary is punishable by up to life in prison, with a minimum term of imprisonment of 10 years.... Read More

Dear Anonymous,    Based on the information that you provided you may be able to file for divorce in Massachusetts for cause. Depending on when you returned to India, Massachusetts may or may not have jurisdiction over the children to determine custody matters.   ... Read More

What you are experiencing is common among all courts and District Attorney's offices in Massachusetts. No one will permit you to speak on the record (with a few notable exceptions) until the day of trial, and even if you can get someone to listen to you, it seems like they don't care. The reason is that all prosecutors have instructions to pursue domestic violence cases even when the alleged victim wants to see them go away. There are a few reasons for this, that don't really matter to you (they think your reluctance is a symptom of domestic violence; etc).  The point is, what you are describing is very common. The bottom line is, if your testimony would conflict with what the police report states you told the police; if your testimony would include an admission that you hit him at some point; if your testimony would include an admission to use of drugs on the day/evening in question; and in any number of other circumstances, then you will be permitted to decline to testify. Ordinarily, if the state wants to call you as a witness, you don't get to decline, but where your testimony could potentially implicate you in a crime, you can decline. On the day of trial, if you show up, the court should appoint an attorney to explain your rights, and to decide whether you have a right not to testify. If you chose not to, the case may or may not continue to proceed against him or not, depending on what other evidence they have, and whether the judge decides that it is admissible. Good luck!... Read More

If there is a warrant for your arrest, you should turn yourself into the court, not the police. Do not go to court without an attorney.  By turning yourself in on the warrant with an attorney, you are less like to face any significant bail. If the facts of the case involve serious injury or you have a long default history on prior cases you will need an attorney to argue bail for you. Understand that just because the victim does not wish to prsue the case, it does not mean that the prosecutor will drop the case. You will need an attorney to assist you in getting the case dismissed. For further information on warrants and domestic violence see the blog section of my website listed below.... Read More

Based on the facts you described the case does not sound serious.  I assume neither you nor your girlfriend were arrested for domestic violence. I would contact an experienced criminal attorney.  It may be the kind of case that could be dismissed on court costs without any guilty plea.  I certailnly would not walk into court and plead guilty without consulting an attorney to review the police report and your version of the facts.... Read More

From the facts presented I suspect that the police filed charges against both parties. The parties do not control who is charged; the police do.  The assistant district attorney will have difficulty proving the case if neither party testifies against the other.  Both parties have a 5th amendment right to remain silent and not testify even if called as a witness. Unless there are independent witnesses I suspect the cases against both parties will be dismissed. For further information about domestic violence offenses and assault and battery cases see my website and blog page at www.johnedevito.com... Read More

You should consult an experienced criminal attorney before any hearing. If you were ordered to appear for a Clerk Hearing you may be able to stop the criminal process before a complaint issues and avoid a criminal record.  If you are ordered to appear for a criminal arraignment then it will be more difficult to stop the criminal process. As for the facts, if they are as you described, then you can claim self-defense at a trial. There are other ways to stop the process without litigating a self-defense issue at trial. For a more detailed explanation consult an attorney or review materials on my website, www.johnedevito.com.... Read More