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Can I Be Convicted of a Crime in Massachusetts if the Witnesses Don’t Show Up at My Trial?

The Massachusetts Appeals Court yesterday upheld the assault and battery conviction and jail sentence imposed against a Springfield man who was convicted by a jury despite the alleged victim’s failure to testify at the trial.  The name of the case is Commonwealth v. Rodriguez

In October of 2013, two Springfield cops responded to the report of a domestic disturbance at an apartment and found the alleged victim, who was crying.  Her clothes were torn, her hair was disheveled, and she had marks on her neck and arms.  The alleged victim approached one of the officers who she had known for years and gave her a hug, while saying Carlos (the defendant) had grabbed her by the hair and dragged her down the hallway.  She also said she had trouble breathing because the defendant had squeezed her neck.  Following the defendant’s arrest for assault and battery, the Commonwealth asked a judge to hold him without bail because he is a danger to the community.  During the dangerousness hearing, the alleged victim testified she had been under the influence of alcohol and prescription medication on the date in question and completely denied the defendant had assaulted her.  The alleged victim also asserted a Fifth Amendment privilege.  A witness has a Fifth Amendment privilege when her truthful testimony under oath would tend to incriminate her.  In domestic cases, alleged victims often assert the Fifth because at some point during the fight, there was mutual combat.  Therefore, if the alleged victim admitted to touching the defendant (even in self-defense), she could theoretically be charged with a crime herself.  Once witnesses exercise their Fifth Amendment privileges, the Commonwealth cannot force them to testify unless the witnesses are offered immunity (which is a somewhat complicated and involved process).

Once the alleged victim in this case asserted her Fifth Amendment privilege and refused to testify, you might think the Commonwealth would be forced to dismiss the case.  However, in many domestic violence cases, the prosecutor can still present the case to the jury by use of so-called excited utterances.  Hearsay (defined as an out-of-court statement being offered to prove the truth of the matter asserted therein) is generally not admissible in court.  But there are many exceptions to the hearsay rule that allow for out-of-court statements to be presented to the jury.  Excited utterances are statements made by witnesses who are under the influence of an exciting event.  The theory is that a witness who is talking about a recent exciting event will likely be telling the truth because there is no time to fabricate.  Thus, when a woman is beaten by her boyfriend and immediately tells the cops about it, her statement is likely going to be admitted as an excited utterance.

In this case, the trial judge ruled the alleged victim’s statements to the police qualified as excited utterances and the Appeals Court agreed.  The Appeals Court also ruled the defendant had been given the opportunity to cross-examine the alleged victim at the dangerousness hearing so the admission of the alleged victim’s statements at the trial did not violate his confrontation rights.

Many defendants who are charged with crimes – particularly crimes of domestic violence – incorrectly believe their cases will be dismissed if the alleged victims don’t show up at trial.  Excited utterances provide a powerful tool for prosecutors who don’t have the benefit of live testimony from the alleged victim.

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