Gallant & Ervin Obtains Not Guilty Verdict for Client on Domestic Assault and Battery Charge (February 2013)

On a Friday evening during January of 2012, our client was in transit to drop off his daughter at the home of his daughter’s mother. When he dropped his daughter off, the mother proceeded to argue with him and allege that he did not have his daughter properly dressed for winter weather. In order to evade further argument, he then promptly left the residence and began to drive home. On his way home, he was stopped by a local police department and was informed that the mother had called 911 and had alleged that he had assaulted her. He was then arrested and charged with domestic assault and battery. He was arraigned and formally charged by the Commonwealth.

During the discovery phase of this criminal matter, the 911 tape was produced as well as other statements that the mother had made concerning the alleged assault. It quickly became evident that the mother had told different versions of the alleged assault, despite the passage of a very short period of time. In addition, we took advantage of the fact that there was also a pending custody case between our client and the mother by deposing the mother in the custody case. Ordinarily, defendants are not provided with the opportunity to depose the alleged victim in a criminal case. The mother’s custody counsel resisted the mother providing testimony concerning the alleged assault during the deposition, and the Middlesex Family and Probate Court subsequently granted our Motion to Compel and awarded sanctions and fees against the mother. With that order, we were then able to complete the deposition and were armed with the mother’s deposition transcript at the time of the criminal trial.

The criminal matter was tried before a jury in February 2013. During the trial, we as counsel to the father emphasized the vast inconsistencies in the mother’s recounting of the alleged assault. We also had the benefit of a deposition transcript to cross examine the mother with. The 911 tape also belied that the father had assaulted the mother as their daughter was asking for him in the background of the call. There was also a lack of physical evidence demonstrating any injuries despite that the mother alleged that she had been strangled by the father. After a short deliberation, the jury returned with a not guilty verdict.

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