New Law = New Trouble for the falsely accused

Posted on February 10th, 2010, by Dmitry Lev

A new Massachusetts law passed unanimously by the state legislature and signed by the Governor today is said to “close the loophole” of 209A restraining orders.  Until now, the infamous 209A Abuse Prevention Order could have been obtained only against persons falling into certain categories of relationships, like relatives, members of household, persons who are or were dating, etc.  Also, a certain pattern of “abuse” had to be demonstrated for the restraining order to be granted, namely: actual or attempted physical abuse, forced sexual relations, or fear of imminent serious physical harm.

This Blog and others like it have demonstrated in our discussions over the years the various avenues for potential abuse of the system, and how 209A Restraining Orders obtained upon false or unsupported allegations have been misused to create substantial problems for Defendants — everything from losing their homes, their belongings, their children, to being incarcerated.

The new law, closing the so-called loophole, EXPANDS the reach of restraining orders in Massachusetts substantially.  First and foremost, the relationship limitation is lifted.  Under the new law, it does not matter how the parties are related or even that they know each other.  It will now be possible to get a restraining order against a neighbor, store clerk, taxi driver, mailman, you name it.  Second, the new orders greatly expand the actions upon which the order may be granted.  As if “fear of imminent serious physical harm” under the old law wasn’t vague enough, the new law allows anyone who “suffers from harassment” to obtain the restraining orders.

In turn, harassment is defined as “3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.”  The definition of abuse in essence carries over from the old law: actual physical harm, attempted physical harm, or placing someone in fear of imminent serious physical harm.  As evident, in addition to acts of actual abuse, ANY three instances of ANY conduct that cause fear or intimidation will now meet the standard of the new law.  Unwanted sex acts, sex crimes, and acts of stalking are specifically listed as automatically qualifying acts requiring only a single instance.

The new law, which will be called Chapter 258E, is not meant to replace Chapter 209A.  It is meant to offer a separate and additional avenue of protection (or attack, depending on which side you are on).  The procedure of the 258E Orders is written to mimic the 209A procedure almost exactly: there are still the two stages of the hearing with a notice to the Defendant in the interim, the order has various degrees of intensity (no abuse, no contact, stay away, etc), the first extension of the order cannot exceed one year, but later a permanent order may be entered, the criminal punishment for a violation of the new orders is exactly the same as for a violation of a 209A order — up to 2.5 years in jail and/or a $5,000 fine, and the new orders will still end up in the State Domestic Violence Registry with ongoing uncertainty about exactly who is allowed to look at it.  It does not appear, however, that surrender of firearms to the police can be ordered under the new law.

The 258E Orders (I don’t actually know if that’s how they will come to be known) are civil proceedings, however violations of the orders are serious crimes.  This is a huge step up from the previous “equitable restraining orders” offered in the Superior Court, which, until now, were the only remedy available against a non-relative or against someone who is not a dating partner.  Those equitable orders were difficult to obtain, hard to navigate without attorneys, little or no assistance was available, and a violation of those orders merely resulted in a civil contempt of court, which rarely if ever meant jail time.

That was then.  258E is now.

As the new law takes effect and courts are able to flush out and streamline the procedures associated with issuing and litigating these orders, I will be able to offer a better front-line perspective that is more than mere theory.  Unfortunately, some day in the near future in some court in this Commonwealth someone will learn the hard way that even three text messages saying “boo” might just be enough to land someone in jail under the new law.  Now, we wait.

Raising the bar on the horrors of 209A

Posted on October 12th, 2008, by Dmitry Lev

Last Monday’s episode of the new TNT courtroom drama “Raising the Bar” briefly put into spotlight the potentially disastrous consequences of domestic restraining orders imposed upon families by the prosecutors and the courts. Before launching into the story, I must remark that of all the courtroom shows on TV these days, I find Raising the Bar to be the most realistic portrayal of the challenges encountered in the day-to-day life of criminal defense attorneys, especially public defenders and those who accept court-appointed cases.

As the episode goes, one of the several interweaving plot lines was that of an alleged domestic assault and battery by a husband upon his wife. The allegation was that the husband threw a mug at her; a neighbor heard the commotion and called the police. We come to find out that the couple are artists and that this mug-throwing is accepted by both as a form of expression that is not only normal, but even necessary for their art.

At arraignment, the judge orders the husband not to return to the marital apartment and to have no contact with the wife at least during the pendency of the case. The wife is present in the audience during the hearing, and when she tries to speak up in her husband’s defense, the judge tells her to be quiet.

Just a few minutes after the conclusion of the hearing we find the husband and wife chatting it up in the hallway of the courthouse happy to be reunited after the husband’s overnight arrest. The husband’s defense attorney runs over, separates the two, and sternly warns her client that should the prosecutor learn of their contact, more trouble would be on the way. She advises him to stay at a men’s shelter, which he says might as well be prison.

The wife makes a good faith attempt to speak to the prosecuting attorney in an effort to persuade him to drop the case. In turn, he lectures her about battered women and asks for her cooperation before handing to her the complaint for her signature. In the wife’s words to the prosecutor, “Screw cooperation and screw your complaint!” She walks out without signing it.

The next morning we find the husband arrested again, this time for punching a police officer. It turns out that someone, likely the prosecutor, suspected that the husband might return to the apartment, thus violating the restraining order imposed by the court, so the police are sent to the apartment to check up on who might be there. When the husband is discovered at home, a struggle ensues, and the husband is arrested not only for a violation of the restraining order, but also for assaulting a cop.

The husband is held on a $10,000 bail which neither he nor his family are able to post. He tries to have a frank conversation with his attorney, but she must break the bad news to him that he is likely looking at a 4 year sentence for assaulting the cop, and that the restraining order would remain in effect the entire time, meaning his wife would not even be able to visit him in jail. To add massive insult to an already painful injury, the restraining order would remain in effect for three additional years after his release from jail. In short, the reality is that he would be unable to be with his wife for seven years… his wife, who begged the police not to arrest him both times, and who begged the prosecutor to drop the case — which he flatly refused to do.

We learn that the husband hanged himself in the jail cell the very next day.

The episode ends with a heated exchange between the prosecutor and the defense attorney about the destroyed lives and tragedies that arise out of the state imposing blanket rules on couples that never asked for help; rules that are heftily and swiftly punishable when violated, and all according to the prosecutor’s own version of “justice.” “All I care about is the odds,” said the prosecutor, implying that while in this particular case the husband might not have been abusive per se, in the vast majority of other similar assault cases the woman would have been better off with the court’s protection. In other words, the prosecutor thought he did the right thing.

Sadly the story is not at all unrealistic, and while the New York version of these domestic restraining order laws has its differences from our own 209A Orders here in Massachusetts, the destruction wreaked by them is very real, just as damaging and just as permanent as the seemingly fictional story portrayed on the show — a story that pull at the heart strings of all too many in Massachusetts whose lives took tragic turns for the worse thanks to the “help” of the prosecutors who in their blind and naive ignorance seem to think that they know better.

209A: When wishes don’t come true

Posted on December 20th, 2007, by Dmitry Lev

In 209A Restraining Orders proceedings the Plaintiffs usually get exactly what they ask for. If the Plaintiff wants “no contact” — the judge is likely to order no contact. If the Plaintiff wants the Defendant to stay away 100 yards from the Plaintiff’s workplace — it will most probably be so ordered. When the Plaintiff is not sure what he/she wants, the judges will use their experience and their usual practice to determine what the terms of the restraining order should be. One way or another, the Plaintiff gets what she wants.

But what of that remorseful Plaintiff, or the couple that reconciled on Valentine’s Day, or that girlfriend who within a week realized that her boyfriend wasn’t really cheating and all those cell phone calls he was making in fact were to his mother?? Well, these Plaintiffs are encouraged to take a trip to the Clerk’s Office of the Court where the 209A order was granted, ask to go before a judge, and ask the judge to vacate (meaning: cancel) or at least modify the 209A Order. Strictly formally speaking, this kind of a request should be done via a written motion that is supported by an affidavit, but because of the relaxed procedural rules of 209A proceedings, many courts will allow a sympathetic Plaintiff to go before a judge without these formalities. Sometimes the Clerk will instruct the Plaintiff to write up a paragraph on a pre-printed form stating the reasons why s/he wants the order vacated, though the Clerk is only allowed to explain procedure as opposed to providing legal advice.

If the Plaintiff got this far, only two more barriers remain before the order can be modified or dismissed. The first will surely appear in the form of a Victim Witness Advocate (VWA). These folks are state employees who are usually not licensed to practice law, and they are available on hand at most courthouses. Their at least theoretical purpose is evident from the title: they are supposed to help victims and witnesses of crimes. In practice, however, these VWA’s instead of taking the victim’s side will at times take the side of the 209A Order itself, meaning they will advocate for the issuance and extension of the order whether the Plaintiff wants it or not. VWA’s, like Clerks, are not supposed to give legal advice and they are not supposed to play lawyer and try to represent the Plaintiff before a judge — that in itself would be a violation of a totally different set of laws. During the hearing, they are literally supposed to stand next to the Plaintiff and no more. However many times their services end up taking the form of poorly formed or outright wrong legal advice which leave Plaintiffs with an incorrect understanding of the procedures and the law, or needlessly worried about some nonexistent consequence.

In our example, when the Plaintiff comes to court wanting to have the 209A order vacated, the Victim Witness Advocate may get in the way and, through various tactics that could rise to intimidation or even threats, would talk the Plaintiff into turning around and leaving the restraining order in place. If the Plaintiff gets through this barrier, the second barrier will be the judge. Here, just as at the beginning when the order was first being sought, the Plaintiff will generally get her way and the order will be vacated or modified accordingly after a short hearing. The judges will usually inquire whether anyone has threatened or forced the Plaintiff into making a request to vacate the order, but in the end they will most often do as the Plaintiff asks. There is one situation, however, where judges will generally not abide by the Plaintiffs’ wishes but instead will leave the restraining orders in place unchanged. This situation is where there is an open criminal case against the Defendant, and especially so where the open criminal matter concerns the restraining order in some way: either an accusation of a violation of the order, a charge of assault and battery against the Plaintiff, or any other alleged criminal conduct towards the same person or persons who are involved in the restraining order case. Here a judge will either outright deny Plaintiff’s request to vacate the order, or advise the Plaintiff to return at some later date.

There is no law that prohibits the judge from vacating a restraining order during the pendency of a related criminal case, but judges tend to stick by this unwritten rule as a matter of practice. A reasonable approach for the Plaintiff in such a case would be to work with the Defendant’s criminal defense attorney who represents the Defendant in the open criminal matter, and to make that attorney aware of the parallel 209A issues. Some defense attorneys are hesitant to speak with 209A plaintiffs thinking that they are placing their client in violation — this is not the case. Defense attorneys are allowed, even obligated by their affirmative duty to fully investigate their clients’ criminal cases, to interview and speak to as many witnesses as possible, including the Plaintiff, if necessary. In certain cases it may be wise for the attorney to “put it on the record” and inform the court that the attorney intends to have contact with the Plaintiff in the 209A matter. All of these details are for the attorney to sort out. It is important to note, however, that the attorney is not allowed to serve as a conduit for communications in cases where the 209A order prohibits direct or indirect contact. In other words, the attorney may ask the Plaintiff what happened on a certain date and time or the attorney may provide certain information about the Defendant’s ongoing criminal matter, but the attorney may not say to the Plaintiff, “Joe Defendant told me to tell you that he’s sorry.” If the police are notified, that would almost certainly be prosecuted as a violation of the 209A prohibition against indirect contact if this prohibition is a part of the order. Simpler still, the Plaintiff may simply refuse to speak with the Defendant’s attorney. But for that remorseful Plaintiff, a speedy resolution of the Defendant’s criminal matters is the key to getting a hesitant judge to act to vacate a 209A restraining order.

Buyer’s Remorse: I didn’t want that 209A order!

Posted on October 24th, 2007, by Dmitry Lev

Many remorseful plaintiffs, those who at one time obtained 209A Restraining Orders against their husbands, girlfriends, mothers, etc, but have long since had the order vacated or expired, are now coming around to realize the amount of future damage that they caused to those on the receiving end. That damage may mean being denied a future job opportunity, or having to undergo an extra thorough investigation when attempting to purchase a firearm, or an unfavorable determination of bail in an unrelated criminal matter — the list goes on and on. These remorseful plaintiffs are seeking ways to make peace with their mistakes, and at the same time help the defendants clean up their records. These remorseful plaintiffs, at times joined by their once hated defendants, are on a pilgrimage to expunge. Encouraged without a doubt by the often incorrectly quoted case law that allows a limited opportunity to expunge the records of certain fraudulently obtained 209A Orders, the remorseful plaintiffs are calling lawyers, court clerks, and the evening news looking for that magic button that they can push, or that magic motion that they can file, to expunge those records for good.

For a more detailed overview of the relatively new law allowing expungement of 209A Orders, see Green Light to Expunge. In short, expungement may only be had in cases that where “fraud on the court” was perpetrated. This fraud must be proven by “clear and convincing” evidence, which is a rather high standard of proof, though not as high as “beyond a reasonable doubt.” The plaintiff coming forward a year later, saying “I made a mistake, I shouldn’t have gotten this restraining order” is not going to meet the expungement requirement. Nor will the plaintiff saying “my husband’s future career prospects are now at risk” be sufficient to expunge. This type of buyer’s remorse may be enough to get an existing order vacated, which is usually done in any event at the request of the plaintiff, but buyer’s remorse will not be enough to expunge.

What, then, is fraud? The legal definition used in Massachusetts courts is, “where a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense,” taken from a 1994 case of Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598, 638 N.E.2d 29. Well, Gesundheit! In a 209A case, let us take two extremes and allow the splendid variety of real life cases to fill in the rest. If the plaintiff accused the defendant of throwing the family cat at the plaintiff on December 5, 2004, but in fact many people can testify that the family never had a cat, on top of that the judge can observe that the defendant has no arms due to a birth defect, and on top of that there are plane tickets showing that the defendant was in Morocco on that date — here there is an excellent chance of establishing that the 209A order was obtained by fraud on the court. An extreme case, no doubt. On the other hand, the plaintiff merely failing to show up to the 10 day hearing will never in itself be sufficient to establish fraud.

But what of buyer’s remorse? If a plaintiff admits to lying in her affidavit or testimony, will that be sufficient to meet the fraud standard? While there has been no case law discussing this exact situation, it is more than likely that the plaintiff’s outright admission to having lied will suffice to establish fraud. (This is very different than the plaintiff saying that she merely exaggerated, and that the defendant did not punch her but merely pushed her — there is still physical abuse here!) Should every remorseful plaintiff run to court and admit that they may have lied? Consider the risk to the plaintiff. Affidavits in support of restraining orders are signed under oath. All testimony in 209A proceedings is taken under oath as well. Perjury, of course, is the act of lying under oath in a judicial proceeding, which in Massachusetts is a felony punishable by up to TWENTY YEARS in the state prison. Is every little lie made during the course of a restraining order hearing going to be prosecuted to the fullest extent, or even prosecuted at all? As a practical matter, no. But that risk, that exposure is out there, and must be carefully weighed.

On a slightly different note, on the bottom of the second page of a 209A order in the section that is checked when the order is vacated there is a statement to the effect that “all records of this orders will be destroyed by law enforcement agencies.” THIS IS NOT EXPUNGEMENT. This is merely something that police departments do internally to avoid falsely arresting someone for a violation of a 209A order that no longer exists. This does not apply to the Statewide Domestic Violence Registry, and does not affect CORI records or what appears on certain types of background checks. Sure enough, there forever lives a record of even a vacated 209A order unless it is expunged for fraud or until our legislature designs a better system.

Validity of 209A orders that were not served

Posted on August 2nd, 2007, by Dmitry Lev

Brief note on this important issue.  The order is “in effect” as soon as the judge enters it. The fact that the Defendant was unaware of it does not go to the effect of the order, but it may be a defense if there is an accusation of a violation. Note the difference between being served and being aware. The law only requires the latter, that the person is aware of the order. Obviously the easiest way for the prosecution to prove awareness is if the person was served, but awareness can be proved by other means, like testimony from someone who informed the defendant of the existence of the order.

The 209A burden – to prove or not to prove

Posted on May 30th, 2007, by Dmitry Lev

I often have 209A defendant clients insist that roommate Bob or best friend John testify at the 209A hearing. After all, “they can prove that there was no abuse!” But can they? Can anyone? Should anyone have to?

In any civil proceeding, including a 209A hearing, the burden of proof lies on the plaintiff, and this burden is called “preponderance of the evidence.” In theory, this means that after taking into account all the evidence, the finder of fact, which in a 209A case is the judge, is left to believe that it is more likely than not that the plaintiff was “abused.” Sometimes this is also referred to as the “more than 50% standard.” (As a point of reference, consider the standard of proof in a criminal matter: “beyond a reasonable doubt” — a much tougher burden to meet.) Now, at the initial 209A ex-parte hearing there is only one set of facts for the judge to consider — the plaintiff’s. Here, a 10 day restraining order will almost always be granted, unless the plaintiff’s facts are so unbelievable and so out of this world, that the story cannot add up even if unchallenged. On the other hand, at the 10-day hearing, if the Defendant appears, objects to the extension of the order, and cross examines the plaintiff (through an attorney or without) or gives his/her own testimony, the judge would then be left with having to weigh two sides of a story, and this is where it becomes crucially important whether the plaintiff has met the burden of proof.

The reality is that few judges are strict enough to hold the plaintiff to the true “preponderance of the evidence” standard. The majority of judges work off a foggy case-by-case approach that rests almost entirely on hunches, one-sided conclusions, and some outright illegal assumptions. I have seen examples of the following in our courts:

* Judge will grant a 209A any time the Defendant owns firearms, even if 100% legal, and even without evidence that the guns have ever been used or threatened to be used
* Judge will grant a 209A on uncorroborated statements by the plaintiff alleging abuse that took place a year or more prior to the hearing
* Judge will grant a 209A restraining order on testimony that the plaintiff is afraid (afraid of what??) but without inquiring into whether the fear is rational, reasonable, or based on some concrete facts as opposed to general apprehension
* Judge will limit, or outright disallow, the cross examination of the plaintiff or the testimony of the defendant or defendant’s witnesses. How, then, can there be two balanced sides to the story? Good question.

In essence, the burden seems to fall on the defendant and the burden becomes a negative one: to disprove abuse or fear thereof. This burden is compounded by the limited legal options that the defendant has before and at the hearing. Unlike a usual civil proceeding, the defendant could not have subjected the plaintiff to a deposition-style interrogation ahead of time in order to prepare for the court hearing, and there is usually no time and no set procedure for obtaining documents or issuing subpoenas. Defendants are also often shocked to find out that their opportunity to present their story, their “day in court” that they were expecting at the 10-day hearing, usually becomes a rushed 5 minute showdown where the defendant is lucky to get the chance to fully and thoroughly address the court, let alone to cross examine or to call witnesses.

Faced with the task of having to prove a negative, let us revisit that defendant who wanted to call his roommate as a witness, because that roommate could “prove” that there has never been any abuse. That roommate may testify that he has lived with the defendant for the entire applicable time period, that there has always been peace in the home, and that this roommate has never seen the defendant raise his voice, let alone his hand, at anyone. But it is easily established on cross examination or by judge’s inquiry that the roommate was not at home 24/7, and was not with the defendant 24/7. The roommate likely stepped out to the bathroom for at least 5 minutes at some point! And this already leaves a window where potential abuse could have taken place. The rest of the roommate’s testimony to attempt to disprove abuse becomes almost irrelevant.

The above example is, of course, very black and white. It is entirely possible that the roommate’s testimony could be considered by the judge as evidence of other issues in the case, like motive, bias, past behaviour, etc. But it is rather clear that proving lack of abuse through eyewitness testimony is next to impossible. There was always that minute, hour, second, or evening when the witness was not there. And who knows what could have happened then… Or so thinks the court.

As for judges who misplace the burden of proof and incorrectly place it upon the defendants, essentially requiring them to prove a negative, these judges must be sternly but respectfully reminded of the law which dictates that the plaintiff carries the burden. And when that fails, there is always appeal, but that was a topic of another day’s discussion.

But there is no evidence of any abuse!

Posted on May 18th, 2007, by Dmitry Lev

Not so fast. Let’s talk about evidence. First of all, what is evidence? Contrary to popular TV and CSI-shaped beliefs, evidence is not just DNA, blood, documents, or photos taken by a private eye from a car with tinted windows. In a strictly legal sense, evidence is anything that makes an assertion of a fact more or less probable. There are two main types of evidence used in the courts: witness testimony and exhibits. The first focuses on the senses of the witness: what s/he saw, heard, smelled, touched, tasted, etc. The latter is more demonstrative and must usually be supported or authenticated through a witness (ie. the photographer to who took the photos, the scientist who conducted a test, etc). Evidence can further be broken down into direct and circumstantial. In simplest terms, circumstantial evidence involves inferences in order to connect the dots. For example, if you went to sleep in the evening, and the grass on the outside lawn was green, and in the morning when you woke up the grass was covered in snow, it could be inferred that it snowed overnight. You did not see the actual snowfall, but there is strong circumstantial evidence to that effect. Contrary to popular belief, the law does not consider direct evidence any more credible or circumstantial evidence any less credible than the other.

What does all of this have to do with 209A Restraining Orders? Simply this. Let us say the Plaintiff testified that there has been ongoing physical abuse. The testimony, the Plaintiff’s words, THAT IS EVIDENCE. There need not be bruises, police reports, or photographs. The Plaintiff’s mere story IS EVIDENCE. Now, naturally, some evidence could be more believable than other. In law this is called “indicia of reliability.” And, of course, the Defendant can present his/her own evidence to the contrary through the Defendant’s own testimony, through the testimony of witnesses, or perhaps with exhibits. The Judge, who acts as the finder of fact in a 209A case, will then weigh all the evidence, decide what degree of credibility to assign to what, and make his/her decision accordingly. The Judge’s assessment of credibility of the Plaintiff, the Defendant, and the witnesses usually comes from merely observing their demeanor and the manner in which they answer questions. Obviously if someone contradicted himself or got caught in a lie while testifying, it is a safe bet that their credibility with the judge is shot.

While in a Criminal matter certain types of evidence are not allowed (generally to protect the Defendant on various constitutional grounds), in a 209A Restraining Order matter the customary rules of evidence are not followed strictly; and the rules, if any, are generally very loose and up to the judge’s individual tastes. This, while making the Plaintiff’s testimony a bit less predictable, can at times help the Defendant, because certain kinds of evidence, for instance, hearsay, is actually allowed (with some limitations) in a 209A matter.

I have seen numerous Defendants who have attempted to represent themselves in 209A Restraining Order matters lose their cases abysmally by standing before a judge and proclaiming that “there is absolutely no evidence of abuse, please do not extend this order,” mistakenly assuming that absence of photographs or hospital records means that there is no evidence. And this could be after the Plaintiff just finished a 15-minute tirade about all the abuse that has allegedly taken place. Which way will the judge decide? The judge has heard actual evidence only from the Plaintiff. The Defendant’s arguments, while perhaps appropriate at some other point during the hearing, did not actually contain any new evidence for the judge to evaluate. These Defendants learned their lesson on evidence in a very raw way.

Attorney Lev’s Blog featured on Inter Alia

Posted on March 29th, 2007, by Dmitry Lev

This blog has been featured as “Blawg of the Day” on March 27, 2007, by Tom Mighell’s Inter-Alia website.

Attorney Mighell is truly a blogging pioneer with Inter-Alia nearing its fifth anniversary as of this writing. Tom is also the publisher of the well known Internet Legal Research Weekly newsletter that as of today is entering its seventh year of publication.

In addition to numerous contributions to the world of legal technology, Attorney Mighell is involved with the American Bar Association TECHSHOW, legal industry’s premier technology conference and expo. In 2008, Tom will be serving as TECHSHOW’s Chair.

Who is in charge of charges?

Posted on February 15th, 2007, by Dmitry Lev

“We reconciled. We’re in love again. Can’t she simply drop the charges??” No. At least not simply.

For the sake of consistency, let us say that the alleged “victim” in a criminal domestic assault and battery case is named She. Let us also identify the remaining cast of characters and the powers that they hold. In a criminal matter, She is not a party to the case. The parties are the Commonwealth and the Defendant, thus the reason all criminal cases are entitled Commonwealth v. whoever. It is the Commonwealth aka the government aka the District Attorney’s Office aka the prosecution that pursues a criminal case against the Defendant. She is simply a witness whom the prosecution hopes to use to meet its goals.

When it is said that She is “pressing charges,” this could mean one of two things. Either she requested that the Commonwealth seek a criminal complaint against the Defendant (this is done via an Application for Criminal Complaint, which results in a Clerk’s Hearing), or, if the complaint had already issued because of an arrest or a police report, “pressing charges” may mean that She is cooperating with the prosecution, probably by agreeing to testify against the Defendant.

Only the Commonwealth can truly “press charges” by acting on and pursuing a criminal complaint. But only the Court can “drop the charges” by dismissing the case. The Commonwealth can ask the Court to dismiss the case, and the Court usually follows the Commonwealth’s request. All She can do is make the Commonwealth aware of her wishes and intentions with regards to the case. The Commonwealth may or may not abide by her wishes.

In a scenario most favorable for the Defendant, She will ask the Commonwealth and the Commonwealth will ask the Court and the Court will agree to dismiss the case. If the Commonwealth refuses to ask the Court to dismiss the case, She could make the Commonwealth aware that She does not wish to testify against the Defendant. Here, the Commonwealth can do several things. The Commonwealth can attempt to force her to come to court via a subpoena. A disregard for a subpoena could land her in more trouble than the Defendant. If She comes to court, but refuses to testify, the Court may find her in contempt, which could lead to fines or even jail time. There are at least two legal ways for her to get out of testifying. She could plead the 5th Amendment, but only if certain aspects of her testimony (such as lying to the police) could reasonably incriminate her. In addition, if She and the Defendant are married, She has the right to refuse to testify against the Defendant under the law of spousal privilege, codified in Massachusetts General Laws Chapter 233 Section 20(2).

There has been much ongoing academic debate about whether the spousal privilege applies where one spouse is the Defendant and the other is the alleged victim. Many prosecutors and even a few judges are confused by another similar provision of Massachusetts evidence law that concerns only conversations between spouses, and this portion of the law contains exceptions in cases of certain crimes, including domestic assault and battery. On the other hand, the section of the law described in the preceding paragraph, the one that gives the spouse a choice of whether or not to testify, applies only to criminal cases, and the few exceptions focus on cases of child abuse and incest. There is no exception for domestic assault on the spouse. This means that if the alleged victim and the Defendant are married at the time of the trial, the victim spouse has the right to refuse to testify and neither the prosecution nor the Court can force her to do so.

Clearly, without the testimony of the main witness, the Commonwealth doesn’t have much of a case. Police reports are not evidence, they are hearsay, and the police likely arrived on the scene too late to have witnessed anything. The Commonwealth can attempt to find other witnesses, perhaps neighbors or children (to whom the spousal privileges do not apply) and subpoena them to testify to what they saw or heard. From a practical perspective, these subpoenas are a lot more likely to be issued if the case is in Superior Court rather than in District.

Sometimes, and more frequently in Norfolk County, the Commonwealth may decide to pursue a case without the cooperation of the alleged victim. The prosecution may be able to introduce into evidence sworn testimony from a prior hearing, such as the dangerousness hearing in the same case, or a parallel 209A hearing. This is where the Defense Attorney would argue that the evidence should not be admitted, and there may be several legal bases for that argument. Two recent Supreme Court cases also allow usage of 911 tapes, but only if the call was made while the “emergency” was taking place, as well as statements made to the police in the heat of the moment. I will save the legal background of these Supreme Court cases and the discussion of the 6th Amendment Confrontation Clause for a later date.

Finally, if the Commonwealth is out of witnesses and there are no more legal rabbits to pull out of the prosecutor’s hat, the Commonwealth has no choice but to ask the judge to dismiss the case. There is simply no evidence to put before a jury, and in Massachusetts this is called “nolle prosequi,” which is Latin for “we shall no longer prosecute.” But the Commonwealth won’t give in quickly and will likely pressure the Defendant to accept a plea under the threat of an imminent trial. This is where the experience of the Defense Attorney comes in handy to help the Defendant decide whether or not to call the prosecutor’s bluff.

I witnessed this exchange take place not so long ago in the Boston Municipal Court:
Rookie Prosecutor: “Your Honor, I am going to dismiss this case.”
Judge: “You’ve promoted yourself to a judge?”
Rookie Prosecutor: “Pardon?”
Judge: “You’ve given yourself power to dismiss cases?”
Rookie Prosecutor: ….
Judge: “Are you asking ME to dismiss this case?”
Rookie Prosecutor: “Oh! Yes, Your Honor, I apologize. The Commonwealth would ask the Court to dismiss the case.”
Judge: “Case dismissed.” Smirk.

But let us not confuse a criminal case with a 209A Restraining Order case. Here, the case is deemed civil, She is the Plaintiff, a party to the case, and the Commonwealth is not involved. But, once again, only the Court can dismiss or modify a restraining order, and all She can do is ask the Court to do so. Up until two weeks ago I would have said that in every case where the Plaintiff asks for a 209A Order to be dismissed, the judge will do so after a few questions to make sure that the Plaintiff is no longer afraid of imminent serious physical harm from the Defendant and is not being pressured into making the request. Well, two weeks ago in Wrentham District Court, a judge flat out refused to vacate a 209A Restraining Order despite the Plaintiff’s convincing requests and promises that She was no longer afraid, that she overreacted, and that the 209A Order was not necessary to begin with. Let us hope that this incident was isolated and that it is the exception that makes the rule.

As evident from this discussion, “dropping the charges” is not as easy as it sounds, and it is not up to the alleged victim to do so. Calling the police or filing an application for a criminal complaint opens up a can of worms that can be very hard to close.

Attorney Dmitry Lev assists persons accused of committing crimes in Massachusetts. In addition, Attorney Lev counsels and represents defendants in domestic abuse (209A Restraining Order) matters and violations of these orders.  Law Offices of D. Lev may be reached at (617) 556-9990 for a free consultation regarding a specific matter.

209A Violations: a one way street

Posted on January 18th, 2007, by Dmitry Lev

A client will often say, “Why am I being accused of violating the 209A order if my (insert Plaintiff wife, husband, boyfriend, girlfriend, ex, etc.) called me first? The Plaintiff violated it, not I!” Understandable line of reasoning, but unfortunately incorrect.

For the sake of this discussion, assume that the Plaintiff took out a 209A Restraining Order against the Defendant, and the order does not allow the Defendant to have any contact with the Plaintiff and also requires the Defendant to stay away. It is legally impossible for the Plaintiff to violate a 209A order. The only person who can be in violation is the Defendant, despite the fact that the Plaintiff may have been the one to initiate contact. Further, the Plaintiff cannot decide to temporarily “suspend” the restraining order or “authorize contact just this one time.” Regardless of what the Plaintiff may say or do, only the court can modify the terms of the restraining order and if the Plaintiff truly wants to communicate, s/he should go to court and ask the judge to vacate the restraining order altogether, or at least modify it to allow contact. Until such action is taken by the judge, any contact by the Defendant, even at the request of the Plaintiff, is a violation of the restraining order which exposes the Defendant to arrest, being held without bail pre-trial, 2.5 years in jail if convicted, monetary fines up to $5,000, and other nasty consequences.

For the Defendant, the best thing to do if the Plaintiff calls is to say nothing and hang up immediately. Any conversation, even if it’s about the fact that the Plaintiff should not be calling, is technically a form of prohibited contact — violation of the order for which the Defendant can be arrested and prosecuted. If the Plaintiff e-mails or sends a text message, do not reply, no matter how temping it may be. If the Plaintiff shows up at the Defendant’s home, do not open the door. If the Plaintiff shows up at the Defendant’s work, try to avoid all contact and have someone else ask the Plaintiff to leave. If the Plaintiff shows up at a public place where the Defendant just happens to be, such as a restaurant, club, or park, the Defendant should leave immediately.

No matter how good the Plaintiff’s intentions are, or seem to be, any responses by the Defendant are violations of the restraining order, and therefore serious crimes under the law. Even if the Defendant merely remains on the phone and “lets the Plaintiff talk,” the Defendant is still committing a violation. Each phone call, e-mail, or text message to which the Defendant replies is considered to be a separate violation. If the Plaintiff continues to initiate contact or expose the Defendant to the risk of violating the order, it is at times advisable for the Defendant to notify the local police. It is always advisable for the Defendant to keep his/her own attorney apprised of these instances.

Short of obtaining a reciprocal restraining order, there are not many things the Defendant can do to “punish” the Plaintiff for initiating contact. But it is important to document the Plaintiff’s instances of initiating contact, because should there be an allegation of a violation and a future criminal proceeding against the Defendant, the fact that the Plaintiff initiated the contacts could possibly serve as a mitigating factor and lessen the strength of the prosecution’s case.

In short, 209A violations are a one way street that only the Defendant can cross.