If you are charged with a domestic assault and battery and the alleged victim doesn't want to pursue the case, can the Commonwealth still prosecute you?

Yes. And this happens quite frequently because in Massachusetts, police officers are trained to make an arrest in any case where there is evidence or allegation that domestic violence occurred. Unfortunately, this policy creates a situation where police are encouraged to make an arrest in cases where not even the police are sure what happened - particularly where both parties call 911 simultaneously to report abuse and there are no other witnesses. The police are forced to make a swift and on-site decision about who they believe is most culpable, arrest that person, and then leave it to the courts to decide what happened. Individuals frequently tell me that the police "investigation" was so short and the arrest happened so fast that they were never even asked to tell "their side of the story."

Many people think that by just going to court and telling the District Attorney that it was "all a big misunderstanding" or that the alleged victim wants to "drop the charges" is enough to have the case dismissed. The reality however is that in many district attorneys' offices, the Assistant District Attorneys are instructed not to dismiss such cases. The court also has no authority to dismiss a case over the Commonwealth's objection except for cause.

Consider what happens when an on-again and off-again couple finds themselves in court on domestic assault and battery charges. On the night of the incident both parties were drinking heavily. After a verbal argument the female threw her phone at the male and then tried to push him. The male pushed her off of himself. The girlfriend called the police to report that she had been assaulted by her boyfriend and he destroyed her phone. When the police arrived, they saw the broken phone and spoke to a neighbor who reported hearing yelling back and forth. After a three-minute investigation, the police arrested the boyfriend without ever asking him what happened. The girlfriend immediately decided she made a mistake and wanted to drop the charges. The following day in Court she tried to "drop the charges" but soon learned that it was the "Commonwealth's" case and they were refusing to dismiss it. The girlfriend was in a bind because she couldn't explain to the Assistant District Attorney what really happened without incriminating herself and opening herself up to arrest and criminal charges.

After going to court a second time without any resolution, and with their relationship on the rocks from all of the stress, the boyfriend hired me. The girlfriend called me almost immediately to ask me how she could help get the charges dropped. Due to a conflict of interest (representing her boyfriend) I could not ethically give her legal advice. I instead advised her to speak to her own criminal defense lawyer to discuss invoking her 5th Amendment right against self-incrimination at trial. I was able to show the prosecutor that the girlfriend had a valid 5th Amdendment privilege, and convince him that without her testimony, the Commonwealth could not convict the defendant. All charges were dismissed on the next date.

In these cases it is important that you have to have an experienced defense attorney on your side who knows how to get the case resolved as quickly and safely as possible. Call Attorney Nicole Longton for a free consultation 508-793-2000.