John E. DeVito, Esq., of DeVito and Visconti, P.A.

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March 2013 Archives

Assault & Battery/ Domestic Violence-Excited Utterance

In assault and battery/domestic violence cases the Commonwealth may attempt to prove their case by an excited utterance, particularly if the victim does not want to proceed against the defendant. Although the excited utterance is an exception to the hearsay rule, it does preclude a defendant from exercising his right of confrontation against the person who made that statement. Therefore, the excited utterance is only valid if it meets certain requirements which the courts have determined allows it to become an exception to the hearsay rule and not subject to confrontation. Commonwealth v. Grant, 418 Mass. 76, 80-81 (1994) provides the rationale for the excited utterance. It is as follows: "the excited utterance exception to the hearsay rule is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self interest could not have been brought fully to bear by recent reflection, the utterance may be taken as particularly trustworthy and may therefore be received as testimony to those facts. The test to determine the admissibility of a statement under the excited utterance exception to the hearsay rule is as follows. The utterance must of been made before the has been time to contrive and misrepresent. The statements need not be strictly contemporaneous with the exciting cause; they may be subsequent to it, provided there has not been time for the exciting influence to lose its way and to be dissipated. There can be no definite and fixed limit of time. Each case must depend on its own circumstances. The trial judge in determining whether an utterance meets the tests of admissibility ought to be given broad discretion.

Miranda Warnings

In the case of Commonwealth vs. Jose A. Bermudez, No. 12-P-314 (December 28, 2012) : the Massachusetts Appeals Court overruled a trial judge who suppressed statements made by a 17-year-old defendant. The police requested that the 17-year-old come to the police station for questioning. He went voluntarily to the station with his mother. The 17-year-old was only in ninth grade and had special needs. Because of his age, disability, and the fact that the statement was conducted at the police station, the trial judge concluded that Miranda warnings were required. The Massachusetts Appeals Court reversed the trial judge by stating that Miranda warnings were only applicable if someone was in custody, that is, not free to leave. Because the defendant was not in custody, was told by the police that he could go home that day, and did in fact go home that day, the Appeals Court concluded that he was not in custody and Miranda warnings were not applicable. 

Do I have a criminal record if my case is dismissed?

There is a common misperception among criminal defendants that if a criminal case is dismissed the matter will not appear on a criminal record. The fact is that the matter does appear on the criminal record. Any time a criminal defendant is arraigned in court in Massachusetts an entry is made on the Defendant's CORI (criminal offender record information) reflecting the crime charge and the date of the arraignment. After a case is dismissed, that disposition (dismissed) and the date of the dismissal is entered on the record. The record will show the crime charged and will state dismissed next to the charge. The defendant can honestly state that he or she was not convicted of a crime if the matter was dismissed; but, the defendant must be aware that the charge will always be reflected on the record unless the matter be sealed.