Massachusetts Criminal Defense Lawyer Blog

Charges of domestic assault and battery in Massachusetts often are accompanied with allegations that a defendant violated a 209A restraining order.

A Massachusetts restraining order violations, also referred to as a 209A violation requires the Commonwealth to prove the following elements:

First, a valid 209A order was entered by a judge and in effect on the date of the alleged violation;

Second, that the defendant violated the order;

Third, the defendant had knowledge of the order.

In the case of Commonwealth v. Shangkuan, decided by the Appeal Court on February 28, 2011, the court addressed the issue of what proof of service of the order when service is made in another state. The Shangkuan case arose out of the Eastern Hampshire District Court, which covers the area of Belchertown and UMass at Amherest.

The defendant's Massachusetts criminal lawyer argued that the Commonwealth could not prove that the defendant was served with the order unless it called as a witness the police officer from New Jersey that served the order. The attorney argued that without an opportunity to cross examine the officer, the defendant was being deprived of his right of confrontation under the Sixth Amendment to the United States Constitution.

The Appeals Court held that the return of service was admissible as a public record and that it was nontestimonial and accordingly, confrontation is not required. The Appeals Court held that the return of service is not created solely for the purpose of a criminal investigation and was not created for the purpose of proving some fact at a criminal trial.