JP is a 32 year old licensed insurance salesman for a large insurance company in Boston. It is a well paying job that requires that he be licensed by the State Department of Insurance. Any criminal offense on his record could cause him to be ineligible for state licensure and it could cause his employer to fire him. JP lives in Salem, MA with his wife and two children. JP’s mother and step-father had been living in JP’s house for two years. JP and his wife told JP’s mother and step-father that they (the mother and step-father) had to find another place to live as the house was too crowded and relations were getting strained. On May 4, 2021 a loud argument broke out between JP and his mother. The police were called to the house. In the 911 call, all that can be heard is loud yelling (in Portuguese) between a female and a male. The police arrived at the house and the yelling was still going on. The police separate everyone.

The police speak with JP’s mother who says that JP “grabbed both the left and right collars of her jacket and pulled her forward in a violent motion”. She also tells the police that “she then slapped JP back across the face in self-defense”. The police then speak to JP. At first JP told the police that he and his mother had had an argument when his mother slapped him across the face for no reason. When asked, JP denied touching his mother. The police then told JP that his mother had told them that she had slapped JP in self-defense after he had pushed her. According to the police report “JP then immediately related that he was slapped in the face first and then pushed her in defense.” The police mad a determination that JP was “the dominant aggressor” and the police placed JP under arrest for Domestic Assault & Battery”.

JP was arraigned in Salem District Court the next day and his case was continued for a pre-trial hearing to July 19, 2021. JP sought out a lawyer. JP spoke (via zoom) with Attorney Robert Lewin from Andover and JP hired Attorney Lewin to represent him. JP explained to Attorney Lewin that his application for re-licensure had to be submitted in September and that he had to get the case favorably resolved by that time.

Attorney Lewin explained that the fastest way to get the case settled would be to get a bench trial date. A bench trial is a trial by a judge alone without a jury. Bench trial dates are readily available. Jury trial dates can take 3-6 months to get. On July 19, 2021 JP and Attorney Lewin appeared in Salem District Court for JP’s pre-trial hearing and Attorney Lewin requested the earliest possible bench trial date. The Judge set the case down for a bench trial on August 6, 2021 – 18 days later.

In those 18 days, Attorney Lewin thoroughly prepared JP and his wife to testify at the trial. On August 6, 2021 JP, his wife, and Attorney Lewin appeared at Salem District Court. The case was called and Attorney Lewin and the Assistant District Attorney both answered that they were ready for trial. JP’s mother and step-father were also both present at Court – they had been summoned in by the District Attorney to testify for the state. When the case was called Attorney Lewin explained to the Judge that JP’s mother had a Fifth Amendment Privilege not to testify. Attorney Lewin explained to the Judge that if she testified she could incriminate herself (by testifying that she slapped her son). Attorney Lewin asked the Judge to appoint a lawyer to represent JP’s mother. The Court followed Attorney Lewin’s request and appointed a lawyer to advise JP’s mother about her right to refuse to testify. Attorney Lewin gave the lawyer a copy of the police report and pointed that part of the report that stated that she had slapped her son across the face. Attorney Lewin explained to JP that if his mother exercised her Fifth Amendment privilege and refused to testify that the case against him may get dismissed. The court appointed lawyer and JP’s mother spoke at length.

The case was called again and the Court appointed lawyer got up and said the JP’s mother had a valid Fifth Amendment privilege and wanted to exercise her Fifth Amendment privilege and NOT testify against her son. The Judge accepted that representation and excused JP’s mother from the trial. At that point the Assistant District Attorney got up and said that without the testimony of JP’s mother the Commonwealth could not go forward. The Judge then looked at Attorney Lewin; Attorney Lewin spoke up and said that the Defense moves that the case be dismissed for lack of prosecution. The Judge granted Attorney Lewin’s request and ordered the case DISMISSED.

JP, his wife, and Attorney Lewin walked out of the Courtroom on the third floor of the Salem District Courthouse. JP gave Attorney Lewin a big bear hug and a big thank you.

In any Assault & Battery case (whether domestic or not) getting the complaining witness (sometimes called “the victim”) to exercise their Fifth Amendment privilege can be a decisive tool in getting the case dropped. It certainly worked in this case.

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