If you are charged with Assault and Battery, it is important to note that whoever accused you of the crime is no longer driving the case.   Once a crime is reported and charged, the case is in the hands of the Commonwealth and thus pursued and disposed at their discretion.  Despite the wishes of the victim, the Commonwealth may still pursue action against the defendant and if they have enough evidence prosecute the case through to trial.

If the case was one in which two individual were involved in a mutual altercation and the victim may incriminate themselves by testifying against the defendant then the victim may have a privilege not to testify.  Similarly, if an altercation occurred within the context of a marriage and the aggrieved party does not wish to testify, upon the showing of a legal marriage, that person cannot be forced to give testimony against their spouse.  In either scenario, the aggrieved party, should they choose to assert their privilege, would do so at the trial date.  The aggrieved party, however, does not have to assert their privilege, in fact, they have every right to waive that privilege and testify.

The most common question that I get as defense counsel is how can the Commonwealth go forward if I do not want them to?  My answer is always the same – they are likely doing what they believe is in the best interests of the party.  They may believe there to be a pattern of abuse, they may also see graphic pictures or listen to a tape that leads them to believe that they need to speak on the victim’s behalf despite that person’s verbalized wishes.  In cases in which there are medical records or a 911 tape, the Commonwealth may have enough evidence to proceed on what are referred to as excited utterances.  These statements come into evidence at a trial despite the victim’s choice to assert a possessed privilege not to testify.

In order for a hearsay statement to come in as an excited utterance, it must be considered the result of a startling event and the spontaneous reaction to that event.  These statements are admissible because they are considered inherently reliability.  Because they come in without the testimony of the party making the statement, the Commonwealth must also show that the statement does not violate the confrontation clause.  Thus, the primary purpose of the call must be to address an ongoing emergency situation.  If the Commonwealth is able to overcome these hurdles, they can go to trial against the Defendant on the evidence they have despite whether they have a testifying witness to support the allegations.

If you are facing Assault and Battery charges and need the assistance of experienced trial counsel, call Law Offices of Kristen F. Bonavita at (978) 376-6746 for a free consultation.