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

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)).

The privilege not to give testify against your husband or wife applies despite the fact that the proposed testimony might be favorable or unfavorable to the other spouse. Commonwealth v. Maillet, 400 Mass. 572, 578, 511 N.E.2d 529, 533 (1987). Conversely, a spouse may give testimony against the other spouse if he or she is willing to do so. A defendant spouse under the circumstance has no right to prevent his or her spouse’s testimony. However, when a spouse decides to waive the privilege and testify against his or her spouse in a criminal proceeding, the judge should be satisfied, outside the presence of the jury, that the waiver of the spousal privilege is a voluntary.

In Massachusetts, the spousal disqualification, unlike the spousal privilege, bars either spouse from testifying to private conversations with the other even though both spouses wish the communication to be revealed. See Gallagher v. Goldstein, 402 Mass. 457, 459, 524 N.E.2d 53, 54 (1988). The court noted that while the contents of private oral conversations are absolutely excluded, the statute does not preclude evidence that a conversation took place. Finally, words constituting or accompanying abuse, threats, or assaults where the other spouse is the alleged victim are not regarded as private conversation for the purpose of the disqualification.

Attorney Patrick J. Murphy is an experienced Massachusetts Domestic Violence Defense Attorney who has defended may domestic abuse cases in and around the Boston area. Attorney Murphy fully understand how the spousal privilege law works in Massachusetts courts and he can help you successfully defend your domestic violence or 209A violation case. Contact the Law Office of Patrick J. Murphy today and speak directly with Attorney Murphy by telephone for a free consultation on your case. You may also contact Attorney Murphy by using our Contacts tab on this website.

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