Domestic Violence

Published on: November 18, 2011

Spousal Disqualification is Raised in Massachusetts Federal Case

There is a distinction that is made under Massachusetts law between statutory disqualification and spousal privilege under G.L. Ch. 233, s. 20. The spousal disqualification applies in all actions, civil and criminal, and regardless of whether one of the spouses is a party or not; the spousal privilege applies only in criminal cases where the spouse is the defendant. The issue of spousal disqualification, sometimes confused with spousal privilege was raised recently in a federal case in Massachusetts, by the criminal defense lawyer for Patrice Tierney, the wife of U.S. Rep. John Tierney, who was convicted last year of assisting her brother in filing false tax returns. Patrice Tierney is a witness in the case. This case was highlighted in a Boston Herald article penned by reporter Laurel Sweet who contacted the Law Office of Patrick J. Murphy and interviewed Boston criminal defense attorney Patrick J. Murphy. Attorney Murphy has written about spousal privilege and disqualification issues in Massachusetts. In response to a specific question Attorney Murphy was quoted in the Boston Herald and he stated “[g]enerally, any communications between husband and wife would be covered.”

Mrs. Tierney was expected to be called as a witness in the current case against her brother, Daniel, but so far has refused to meet with government investigators who want to ask her about conversations she allegedly had with her husband, who has already denied any knowledge about his brother-in-law’s alleged illegal gambling and money laundering operation. The case is also interesting because Mr. Tierney is also a lawyer and the prosecutor wants to ask Mrs. Tierney whether she consulted with him about the legality of her brother’s alleged gambling activities. This raises the issue, if the conversation did occur, as to whether it would be covered by the attorney/client privilege.
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Published on: August 5, 2011

Avoiding a Conviction by Agreement in Massachusetts: Accord and Satisfaction

by Patrick J. Murphy, Esq.

A criminal complaint issues against you for assault and battery toward another individual. Can you later go to court and file an agreement between the parties that ends the case over the prosecutor’s objection? The short answer is yes. That’s exactly what happened in the case of Commonwealth v. Guzman, 446 Mass. 344 (2006). In the Guzman case a husband allegedly committed an assault and battery against his wife. The police arrived and observed that the defendant’s wife had an injury to her eye. They arrested the husband for domestic assault and battery. The defendant husband’s lawyer subsequently filed and “accord and satisfaction” agreement with the court and the judge dismissed the case pursuant to G.L. c. 276 s. 55 which essentially states that under certain circumstances the court may, in its discretion, dismiss the complaint against the defendant where the parties have voluntarily entered into an accord and satisfaction.

The case was appealed by the prosecutor but the lower court’s judgment was affirmed in favor of the defendant. The law was held constitutional because the court found that the statute did not violate separation of powers or the prosecutor’s ability to prosecute the case. To be successful, the injured party must appear before the court and acknowledge, in writing, that he or she has been satisfied. The court will inquire into the matter and decide whether or not to accept the agreement.

The accord and satisfaction statute only applies to misdemeanor cases for which a party may be liable in a civil action. The crime must also not have been committed against a law enforcement officer or by a defendant who intended to commit a felony. The judge has the discretion to accept or reject the accord and satisfaction agreement and the court must be informed of what “satisfaction” has been received by the injured party. This can be done in writing in the agreement or an affidavit or by testimony at a hearing. The injured party need only acknowledge that they have received satisfaction for an injury and indicate in the agreement that the charges should be dismissed.
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Published on: July 6, 2011

Domestic Abuse Law in Massachusetts and Use of the Spousal Privilege to Preserve the Marital Relationship

by Patrick J. Murphy, Esq.

You have just gotten into an loud argument or minor altercation with your spouse and someone calls 911 and the police come and arrest you and take you into custody away from your family. There are no witnesses to the alleged incident except for you and your spouse. Nevertheless, the police make an arrest on the spot because they believe domestic violence is involved. The police have somehow determined at the scene that a domestic assault and battery just occurred and someone is the responsible party. What do you do in such a circumstance and how can you protect and preserve your private marital relationship after such an event? The police are there to investigate crime and to protect individuals but often times their hunch can be wrong and this can be devastating to the family unit.

The spousal privilege law in Massachusetts states that a spouse can not be forced by the prosecution to give testimony in a trial or other criminal hearing brought against the other spouse. The privilege is set forth in G. L. c. 233, § 20. The spousal privilege may only be claimed by the witness spouse and it does not apply to civil proceedings or in any prosecution for non-payment of support, child incest, child abuse or neglect of parental responsibilities.

In order to use the privilege you must be married to the other party that is subject to a criminal prosecution. The privilege is valid even though the spouse was not married at the time of the incident that was the reason for a criminal prosecution or trial. (See Commonwealth v. DiPietro, 373 Mass. 369, 382, 367 N.E.2d 811, 819 (1977)). However, there is no common-law privilege, like the spousal privilege, applicable to unmarried individuals living together. (See Commonwealth v. Diaz, 422 Mass. 269, 274, 661 N.E.2d 1326, 1329 (1996)).
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