As we previously noted on this blog, in August, Governor Patrick signed the “Act Relative to Domestic Violence,” which changes the law with regard to many aspects of domestic abuse cases. Since it was an emergency act, the provisions took immediate effect. In Massachusetts, domestic violence includes not only physical acts but also attempts to create fear of imminent serious physical harm or rape between family or household members. Family and household members, for purposes of evaluating whether domestic violence is involved, include people who are married or living together, who are related by blood or marriage, who have children together, or who have dated or are dating.
One of the significant changes introduced by the new law involves what is called a “dangerousness hearing,” authorized by Section 58A. This hearing is usually requested by a prosecutor during the arraignment and heard 3-7 days later.
Traditionally, at the dangerousness hearing the prosecutor would present evidence to show the defendant presented an imminent danger to the community and there were no less restrictive means than imprisonment that would ensure the community remained safe. The defense attorney would be able to respond by presenting evidence that there were less restrictive methods than imprisonment to make sure the community is safe. This meant that the defense attorney would summon witnesses, such as the victim who may not have wanted a spouse to stay incarcerated, to contest the prosecutor’s claim that holding the defendant without bail was appropriate.
In the case of Mendoza v. Commonwealth, the court upheld the constitutionality of dangerousness hearings prior to an adjudication of guilt, partly because the defense counsel was allowed a full opportunity to cross-examine witnesses produced by the prosecutor and also present witnesses and evidence.
However, the Act Relative to Domestic Violence changes the dangerousness hearings in three ways that make them significantly more difficult for defendants to prevail. One of the most important changes is that the judge is required to consider hearsay in police reports, victim statements, and witness statements. The requirement that hearsay must be considered seems to raise constitutional due process problems that were found not to exist under the traditional rules around dangerousness hearings.
Another important change involves the defendant’s ability to summon the victim or a family member of the victim to present evidence at the hearing. The defendant must demonstrate a good faith basis for reasonably believing that the testimony will support the court denying the motion for dangerousness. Specifically, the attorney must move beforehand for the court’s permission and show that “the testimony will be material and relevant” to support the court’s finding that there are “conditions of release that will reasonably assure the safety of any other person or the community.” This infringes on a defendant’s right to present evidence on his or her behalf and may violate the defendant’s constitutional rights.
The third change is that if the court finds dangerousness, the defendant can be held without bail for 120 days, rather than only 90 days–essentially a month longer. This seems to exclude any time that would be tollable under Rule 36.
If you are arrested for domestic violence, contact the Law Office of Patrick J. Murphy today to discuss your Massachusetts criminal charges. Call us at 617-367-0450 or contact us through this website.
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