August 19, 2017

My wife was served with an application for criminal complaint for assault and battery in Leominster

Additional Information:

This incident occurred nine months ago. The individual in question entered the shop in which my wife and I worked, twice – refused to leave, then stood in the doorway barring her from closing the door. She placed her hands on his chest and pushed, demanding that he leave. This appears a reasonable response to me – he did not fall down, and continued to poke his head in the windows goading us. We called the police, and an officer advised the “undesirable” to stay away from my wife and our shop, and advised us to report further incidents. We are unsure if we can find a witness (we were across the street from a restaurant). Please – any advice for the magistrate hearing? The complaint provides no details of his complaint.

ATTORNEY ANSWER:

You should hire a lawyer to represent your wife at the Magistrate’s hearing. The fact that this incident happened over nine months ago and the police were called at the time and spoke to the complainant tells me that this application for complaint was likely filed by the “undesirable”. In my experience the police would never wait that long to file an application for complaint.

What your wife received in the mail was probably just the summons to the hearing, which reveals very little information. The person filing the complaint, either police officer or “undesirable”, would have had to fill out a statement of facts about the incident at the time it was filed. Your wife can obtain a copy of this statement of facts from the Clerk’s office at the courthouse. Due process entitles her to know the facts that substantiate the allegation against her.
Clerk Magistrates are granted discretion at these hearings to “weed out” cases that do not merit issuing a complaint. To me this seems like just such a case. However, that being said the burden of proof is very low and anything your wife says at the hearing can be used against her later at a trial. Hiring a lawyer is a very good idea.

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