The Massachusetts Supreme Judicial Court ruled that a dangerousness hearing provides a prior opportunity for cross examination under the Sixth Amendment in the case of Commonwealth v. Carlos Rodriguez, decided on September 22, 2016. The Court upheld a conviction for domestic assault and battery without the testimony of the victim, despite its holding that the victim statements to the police were testimonial because the defense lawyer had an opportunity to cross examine the victim at a dangerousness hearing.
In this case, the defendant went to trial in the Springfield District Court for assault and battery As is common in domestic cases, the victim declined to testify.
Often, when someone is charged with domestic assault and battery, the person charge will assume that the case will be dropped if the victim does not wish to testify. In fact, the Commonwealth can still prosecute the case as this recent case illustrates.
At trial, the evidence against the defendant consisted of the testimony of the police officers who recounted what the victim said to them when they arrived on scene. The defendant argued that the jury should not have heard the officer’s testimony as it was inadmissible hearsay and deprived him of an opportunity to cross examine the victim. The SJC found that the victim’s statements were non testimonial, meaning that the defendant did not have a right of cross examination under the 6th Amendment regarding those statements.
SJC Explains Testimonial Statements and prior opportunity for Cross Examination
The SJC held that the district court judge improperly held that the primary purpose of the victim statement was not to further a criminal prosecution but to get help. The SJC found that the statements to a police officer did not have the primary purpose of aiding the criminal prosecution as the defendant was not longer at the scene and the victim was no longer in any danger. The SJC held that a reasonable person would expect that the statements to be used in a criminal prosecution even thought he victim happened to be a friend of the officer.
Despite finding the statements testimonial, the SJC found no error in the admission of the statements holding that the defendant had a prior opportunity for cross examination at the dangerousness hearing. This is unfortunate reasoning by the Court as a dangerousness hearing does not present the same opportunity for cross examination. There may be strategic reasons why a Criminal Defense Lawyer would confront a witness differently at a dangerousness hearing in front of a judge as opposed to before a jury. Further, a defense lawyer may not want to ask damaging questions at a dangerousness hearing and may decide to leave those questions for trial, where the burden of proof is beyond a reasonable doubt as opposed to the lower standard at a dangerousness hearing.
To read more about the Right of Confrontation in Criminal cases involving Assault and Battery, I hosted a seminar on this topic for the Massachusetts Continuing Legal Education, called MCLE and would glad share my materials from the seminar. For an overview of the issues regarding the Sixth Amendment in Domestic Assault and Battery cases, there was a good law review article from Michigan University Law Review on the topic.
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