Articles Posted in Spousal Privilege

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1307593_mobile_phone_in_hand.jpgIt happens all the time. A couple gets into a spat and someone calls the police to complain or a neighbor or passerby dials 911 because they hear an argument, some screaming or a loud noise and think that domestic abuse is involved. If the police or an ambulance is requested, the authorities will come to your home to carefully investigate whether some wrongdoing has occurred. The police always aggressively handle 911 emergency calls and there is a built-in presumption that some violence has taken place. Even if there is a change of heart by the person that dialed 911 the police are mandated to make an arrest and the prosecution will pursue the case with vigor. When the police call you back after an accidental 911 call or hang up they will come to investigate even if you are clear in telling them that nothing has happened and it was just an argument. The call cannot be cancelled and the police must come to the location of the call to speak with the parties involved and they will often arrest someone, usually the male party.

Under the law, the police shall arrest any person the law officer witnesses or has probable cause to believe has violated a restraining order or no-contact order or judgment. Even when there is no such order under Massachusetts law an “arrest shall be the preferred response” where an officer suspects domestic assault and battery even when there is a lack of physical evidence. When the 911 call is made the legal troubles usually begin in earnest. Indeed it has often been said the decent into hell begins when someone calls 911, even when you are innocent or where the other party was the first aggressor. The ramifications of the 911 call are wide and include the destruction of relationships, marriages and problems with family and children. In Massachusetts district court penalties for assault and battery include jail time of up to two and a half years in the house of correction. Conditions of any probation can also include a lengthy and costly batterer’s program, anger management classes or drug and alcohol abuse counseling. Some other problems that may result include the loss of a job with a conviction and your ability to exercise your Second Amendment rights to carry a firearm. Domestic assault cases are often reported in town police blotters causing unfair embarrassment and shame in the community.

Many times 911 calls are made on a Friday night or over the weekend when families are together. The courts are closed and the person arrested will remain in police custody for days until the courts reopen. Fortunately, with the help of a competent and experienced Massachusetts criminal defense attorney, domestic assault cases that begin with a 911 can often be won prior to trial or at the trial stage. Changes in evidence law and other factors have also helped to level the playing field and allow for direct confrontation and cross examination of witnesses and alleged victims when the police are relying simply on a 911 tape to prove their case. So It is unwise and foolish to represent yourself in a domestic assault and battery case or enter into a plea bargain. You must contact an aggressive and knowledgeable 911 Massachusetts criminal defense lawyer right away in order to protect all of your legal rights.
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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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1345500_casamento_sheyla_e_gili.jpgYou 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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