[terraraptor]

The other day my wife and I got into an argument and were yelling, she hit me and I slapped her for doing that.Something we have never done in last 5 years of our marriage. She called the police. Since we both admitted to hitting each other, we were arrested for 4th degree assault. We are due in court couple of weeks from now. We love each other and remain together. Neither is pressing charges. The state may. It was an emotional outburst that led to regrettable action.

We both want this arrest expunged. We do not have any previous convictions/misdemeanor charges etc. We are a normal couple with kids. Will this impair our ability to clear background checks for jobs? What should we do? Also, we cannot afford an attorney to represent us in court. We want the best advice possible as to get this off our record. Desperately need help since we do not have much time or resources.

[JudyKayTee]

You don't press charges. The "State" does.

Yes, this incident will appear on your background checks.

The only way to get this taken care of is to hire an Attorney. You can attempt to resolve it, ask for probation and counselling or anger management or whatever else you think it will take but it will be an uphill fight, particularly if children are involved and your argument turned into a slap fest.

You really do need an Attorney. Ask for assigned counsel. I'm surprised it's "only" 4th degree assault.

[adthern]

While it is true that the state presses charges, the state can not make its case without witnesses. You and your wife have an absolute right against self incrimination (5th A), which means neither of you can be compelled ti testify against the other. That will leave the DA in a difficult evidentiary position.

Likely, an attorney can have the charges dismissed or dismissed after pretrial probation (depending on the jurisdiction and how they are setup). It is your best option to hire an attorney to represent the two of you and even if the state severs the cases you would each have what's called a Bruton issue, which just essentially means the state can not force you to testify when it could hurt you in your own case.

These are tough issues to fight on your own, do whatever you can to get an attorney--check the local bar association for discount/pro bono lawyers, law schools for advocacy programs (assuming you can not qualify for indigency in the jurisdiction).

The arrest is less worrisome for job interviews than a conviction is. So take care of that first.

[JudyKayTee]

While it is true that the state presses charges, the state can not make its case without witnesses. You and your wife have an absolute right against self incrimination (5th A), which means neither of you can be compelled ti testify agaisnt the other. That will leave the DA in a difficult evidentiary position.

Likely, an attorney can have the charges dismissed or dismissed after pretrial probation (depending on the jurisdiction and how they are setup). It is your best option to hire an attorney to represent the two of you and even if the state severs the cases you would each have whats called a Bruton issue, which just essentially means the state can not force you to testify when it could hurt you in your own case.

These are tough issues to fight on your own, do whatever you can to get an attorney--check the local bar association for discount/pro bono lawyers, law schools for advocacy programs (assuming you can not qualify for indigency in the jurisdiction).

The arrest is less worrisome for job interviews than a conviction is. So take care of that first.

How do you see testifying against a spouse is covered by the Fifth Amendment? This wouldn't be a joint trial (because there is no such thing). Each party - if the DA wants to go this far - would be subpoenaed and held in contempt if he/she refuses to testify.

Fifth amendment covers incriminating yourself. Husband says wife hit him for no reason; wife says the same thing - that's how it usually goes.

[adthern]

"How do you see testifying against a spouse is covered by the Fifth Amendment? This wouldn't be a joint trial (because there is no such thing). Each party - if the DA wants to go this far - would be subpoenaed and held in contempt if he/she refuses to testify.

Fifth amendment covers incriminating yourself. Husband says wife hit him for no reason; wife says the same thing - that's how it usually goes."

Well, lets see... the 5th Amendment covers statements that incriminate yourself, I am pretty sure admitting to assault would be incriminating yourself. No, the judge can not hold them in contempt for exercising 5th A (unless the witness is granted immunity).

I agree that there would not be a joint trial in this case as they are not being charged with disturbing the peace or the like, but co-defendants are charged together all the time in joint trials.

The crossexamination would bring out the incriminating testimony even if the direct did not.

Also, there is generally a spousal priv. that the witness spouse can invoke as well (varies in jurisdiction as to how it is applied), but again no contempt charge is available.

I watch these cases be dismissed all the time for that very reason.

[JudyKayTee]

[QUOTE=adthern;I watch these cases be dismissed all the time for that very reason.[/QUOTE]

Cases in Massachusetts are dismissed all the time because of Fifth Amendment rights, one Defendant refusing to testify against another?

Hard to believe different interpretation of US law in different States but that must be the case if you watch these cases be dismissed all the time.