On April 27, 2017, WO, a 26 year old warehouse worker from Haverhill, MA was arrested and charged with Domestic Assault & Battery on his girlfriend. WO works second shift at a warehouse and he got home on April 27, 2017 from work at about midnight. His girlfriend (who is also the mother of his two children) was asleep as were the children. WO suspected that she had been communicating with an old boyfriend. WO took his girlfriend’s cell phone and began to read through her recent text messages. Sure enough WO found intimate text conversations between his girlfriend and her (former) boyfriend. According to the police report WO went into the bedroom and woke his girlfriend up and pulled her out of bed and then proceeded to literally physically “throw” her out of the house. She ran to a local convenient store down the street and called 911. The police responded and then went into the house and spoke with WO. According to the police report WO told the police that yes he had woken her up but that when he confronted her about the text messages she struck him in the face and then he told her she had to leave. He denied striking her; he denied physically “throwing” her out of the house. Needless to say the police arrested WO.
WO consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin took a very detailed statement of the facts from WO. Attorney Lewin then set up an appointment to speak with WO’s girlfriend alone. She indicated to Attorney Lewin that she did not want to testify in the case against WO. Attorney Lewin explained that because she and WO were not married she did not have any spousal privilege to refuse to testify against WO; in other words that if she were called as a witness she could be forced to testify. Attorney Lewin also pointed out to the girlfriend that the police report stated that (according to WO) she had struck WO in the face. Attorney Lewin explained that this would provide her with a basis for exercising her Fifth Amendment privilege against self-incrimination.
WO’s case was set down for trial on August 22, 2017. Just before the trial date WO began to fear having a trial. He was afraid he would be convicted and sent to jail. Attorney Lewin explained that it was most unlikely that the case would go to trial because his girlfriend was going to exercise her Fifth Amendment privilege not to testify and Attorney Lewin was confident that the Judge would uphold the girlfriend’s exercise of the privilege. Attorney Lewin felt that without her testimony it would be very difficult for the state (the Commonwealth) to go forward.
On August 22, 2017 WO and Attorney Lewin appeared in Haverhill District Court. WO’s girlfriend had been summoned by the Commonwealth and she also present. The case was called in the trial session and Attorney Lewin answered that the Defense was ready for trial. Attorney Lewin also told the Judge that Attorney Lewin believed that the complaining witness (WO’s girlfriend) had a valid Fifth Amendment privilege and that she did not wish to testify. The Judge had one of the Court lawyers speak with the girlfriend. The court lawyer then reported to the Judge that the girlfriend had a valid Fifth Amendment claim of privilege and she wished to exercise her privilege and not testify against WO. The Judge then spoke privately at the Judge’s bench with the girlfriend and determined that she had a legitimate privilege. Attorney Lewin then moved to dismiss the case. The Commonwealth answered that they could not go forward without the girlfriend’s testimony. The Judge then ordered the case dismissed. Attorney Lewin and WO and his girlfriend all left court smiling. WO and his girlfriend left hand in hand.
That the DA’s office chose not to go forward with the trial without the testimony of the girlfriend is a choice that the DA is making less frequently. In 2017 the Massachusetts Supreme Judicial Court chided the various District Attorneys Offices across the Commonwealth for not going forward with these cases of domestic assault and battery. The court has ruled that if the complaining witnesses make an “excited utterance” to the police that that excited utterance – even though it is hearsay evidence – would be admissible at trial and can be used to convict. So in WO’s case, his girlfriend’s statements to the police (particularly the things she said during the recorded 911 call) could have been used to prosecute WO – even though his girlfriend did not testify at the trial. Across Essex, Middlesex, and Suffolk counties as we head in to 2018 we are seeing the Commonwealth being less willing to dismiss these domestic assault and battery cases when there is a 911 call or an excited statement made to the police by the complaining witness; nevertheless we fight the admission of these hearsay statements in court.