Massachusetts Criminal Lawyer Blog
According to an article in the MetroWest Daily News, two men were charged with assaulting each other during a fight this past Wednesday in Framingham. The article states that the men work in the same building on Concord Street. One of the men (defendant number one) reportedly bumped into an antique porcelain sink sitting outside of the business owned by the second man (defendant number two) and, according to defendant number two, knocked the sink over. Defendant number two yelled at defendant number one about the incident. When defendant number two then went to pick the sink up, defendant number one reportedly attacked him. Specifically, defendant number two claims that defendant number one hit him in the back of the head with a serving tray. Defendant number two then swung a broomstick at defendant number one – reportedly to defend himself – but missed. The two men fought for about five minutes before defendant number one left the building. Defendant number one told police that defendant number two had threatened him by saying, “I know where you live, I know where you work” and that he had only used the serving tray in self-defense. Both men were summonsed to court to face charges – Defendant number two was charged with assault with a dangerous weapon and defendant number one was charged with assault and battery on a person over 60 (defendant number two is 63).
The defendants are considered cross-complainants. This means that while they are both charged as defendants in the alleged incident, they are also both the alleged victims. Prosecuting cross-complaints may be challenging for the Commonwealth because there are Fifth Amendment implications. The Fifth Amendment states that a person cannot be compelled to testify against himself if that testimony is potentially incriminating and/or could result in criminal prosecution. In this case, the Commonwealth would need to call defendant number two to the stand to testify against defendant number one, as defendant number two is the sole witness to the assault against him, but because defendant number two is also facing criminal charges himself, he clearly has a Fifth Amendment privilege and could refuse to testify. Similarly, the Commonwealth would presumably seek to call defendant number one to the stand to testify against defendant number two, but because defendant number one is also facing criminal charges, he likewise has a Fifth Amendment privilege and could refuse to testify.
While both defendants are claiming that they were defending themselves and could therefore decide to waive their Fifth Amendment privileges, testify against each other, and raise self-defense as an affirmative defense to the respective charges levied against them, this seems unlikely. Cross-complaint cases tend to be dismissed, as people generally do not want to waive their respective privilege and take the risk of their testimony being used against them in their own criminal case.
Further, although a person is allowed to act in self-defense, the Commonwealth can combat such a claim by establishing that a defendant (1) did not reasonably believe that he was being attacked or immediately about to be attacked and that his safety was in immediate danger; or (2) did not do everything reasonable in the circumstances to avoid physical combat before resorting to force; or (3) used more force to defend himself than was reasonably necessary in the circumstances. Given the fact that both defendants appear to have been able to do more to avoid physical combat, waiving their Fifth Amendment privileges may be a particularly risky course of action, giving them both that much more incentive to simply assert their respective privileges.
No matter what they choose to do, both defendants will need the help of an experienced defense attorney to advise them of their options and figure out what the best course of action is for them. Attorney Daniel Cappetta is a former prosecutor, and has been practicing criminal defense for many years. He has handled cross-complaint cases as an assistant district attorney and for the defense. If you or a loved one is involved in a cross-complaint case, Attorney Cappetta can help you navigate through the process to get the best outcome possible. Call him today.