“We reconciled. We’re in love again. Can’t she simply drop the charges??” No. At least not simply.

For the sake of consistency, let us say that the alleged “victim” in a criminal domestic assault and battery case is named She. Let us also identify the remaining cast of characters and the powers that they hold. In a criminal matter, She is not a party to the case. The parties are the Commonwealth and the Defendant, thus the reason all criminal cases are entitled Commonwealth v. whoever. It is the Commonwealth aka the government aka the District Attorney’s Office aka the prosecution that pursues a criminal case against the Defendant. She is simply a witness whom the prosecution hopes to use to meet its goals.

When it is said that She is “pressing charges,” this could mean one of two things. Either she requested that the Commonwealth seek a criminal complaint against the Defendant (this is done via an Application for Criminal Complaint, which results in a Clerk’s Hearing), or, if the complaint had already issued because of an arrest or a police report, “pressing charges” may mean that She is cooperating with the prosecution, probably by agreeing to testify against the Defendant.

Only the Commonwealth can truly “press charges” by acting on and pursuing a criminal complaint. But only the Court can “drop the charges” by dismissing the case. The Commonwealth can ask the Court to dismiss the case, and the Court usually follows the Commonwealth’s request. All She can do is make the Commonwealth aware of her wishes and intentions with regards to the case. The Commonwealth may or may not abide by her wishes.

In a scenario most favorable for the Defendant, She will ask the Commonwealth and the Commonwealth will ask the Court and the Court will agree to dismiss the case. If the Commonwealth refuses to ask the Court to dismiss the case, She could make the Commonwealth aware that She does not wish to testify against the Defendant. Here, the Commonwealth can do several things. The Commonwealth can attempt to force her to come to court via a subpoena. A disregard for a subpoena could land her in more trouble than the Defendant. If She comes to court, but refuses to testify, the Court may find her in contempt, which could lead to fines or even jail time. There are at least two legal ways for her to get out of testifying. She could plead the 5th Amendment, but only if certain aspects of her testimony (such as lying to the police) could reasonably incriminate her. In addition, if She and the Defendant are married, She has the right to refuse to testify against the Defendant under the law of spousal privilege, codified in Massachusetts General Laws Chapter 233 Section 20(2).

There has been much ongoing academic debate about whether the spousal privilege applies where one spouse is the Defendant and the other is the alleged victim. Many prosecutors and even a few judges are confused by another similar provision of Massachusetts evidence law that concerns only conversations between spouses, and this portion of the law contains exceptions in cases of certain crimes, including domestic assault and battery. On the other hand, the section of the law described in the preceding paragraph, the one that gives the spouse a choice of whether or not to testify, applies only to criminal cases, and the few exceptions focus on cases of child abuse and incest. There is no exception for domestic assault on the spouse. This means that if the alleged victim and the Defendant are married at the time of the trial, the victim spouse has the right to refuse to testify and neither the prosecution nor the Court can force her to do so.

Clearly, without the testimony of the main witness, the Commonwealth doesn’t have much of a case. Police reports are not evidence, they are hearsay, and the police likely arrived on the scene too late to have witnessed anything. The Commonwealth can attempt to find other witnesses, perhaps neighbors or children (to whom the spousal privileges do not apply) and subpoena them to testify to what they saw or heard. From a practical perspective, these subpoenas are a lot more likely to be issued if the case is in Superior Court rather than in District.

Sometimes, and more frequently in Norfolk County, the Commonwealth may decide to pursue a case without the cooperation of the alleged victim. The prosecution may be able to introduce into evidence sworn testimony from a prior hearing, such as the dangerousness hearing in the same case, or a parallel 209A hearing. This is where the Defense Attorney would argue that the evidence should not be admitted, and there may be several legal bases for that argument. Two recent Supreme Court cases also allow usage of 911 tapes, but only if the call was made while the “emergency” was taking place, as well as statements made to the police in the heat of the moment. I will save the legal background of these Supreme Court cases and the discussion of the 6th Amendment Confrontation Clause for a later date.

Finally, if the Commonwealth is out of witnesses and there are no more legal rabbits to pull out of the prosecutor’s hat, the Commonwealth has no choice but to ask the judge to dismiss the case. There is simply no evidence to put before a jury, and in Massachusetts this is called “nolle prosequi,” which is Latin for “we shall no longer prosecute.” But the Commonwealth won’t give in quickly and will likely pressure the Defendant to accept a plea under the threat of an imminent trial. This is where the experience of the Defense Attorney comes in handy to help the Defendant decide whether or not to call the prosecutor’s bluff.

I witnessed this exchange take place not so long ago in the Boston Municipal Court:

Rookie Prosecutor: “Your Honor, I am going to dismiss this case.”

Judge: “You’ve promoted yourself to a judge?”

Rookie Prosecutor: “Pardon?”

Judge: “You’ve given yourself power to dismiss cases?”

Rookie Prosecutor: ….

Judge: “Are you asking ME to dismiss this case?”

Rookie Prosecutor: “Oh! Yes, Your Honor, I apologize. The Commonwealth would ask the Court to dismiss the case.”

Judge: “Case dismissed.” Smirk.

But let us not confuse a criminal case with a 209A Restraining Order case. Here, the case is deemed civil, She is the Plaintiff, a party to the case, and the Commonwealth is not involved. But, once again, only the Court can dismiss or modify a restraining order, and all She can do is ask the Court to do so. Up until two weeks ago I would have said that in every case where the Plaintiff asks for a 209A Order to be dismissed, the judge will do so after a few questions to make sure that the Plaintiff is no longer afraid of imminent serious physical harm from the Defendant and is not being pressured into making the request. Well, two weeks ago in Wrentham District Court, a judge flat out refused to vacate a 209A Restraining Order despite the Plaintiff’s convincing requests and promises that She was no longer afraid, that she overreacted, and that the 209A Order was not necessary to begin with. Let us hope that this incident was isolated and that it is the exception that makes the rule.

As evident from this discussion, “dropping the charges” is not as easy as it sounds, and it is not up to the alleged victim to do so. Calling the police or filing an application for a criminal complaint opens up a can of worms that can be very hard to close.

Attorney Dmitry Lev assists persons accused of committing crimes in Massachusetts. In addition, Attorney Lev counsels and represents defendants in domestic abuse (209A Restraining Order) matters and violations of these orders. Law Offices of D. Lev may be reached at (617) 556-9990 for a free consultation regarding a specific matter.