CRIMINAL DEFENSE

The criminal process can be complex and confusing. The most important thing to remember is the sacred concept of the presumption of innocence, often simply put as INNOCENT UNTIL PROVEN GUILTY. That concept should be the starting point for any criminal defendant, and any criminal defense attorney.

It is the complex matrix of court rules and procedures that muddies the waters. Often, an accused person thinks they can just go to court, talk to the judge, and exonerate themselves. The reality is not that simple. The best way to be informed as to the proper procedure and to make sure that all legal rights are protected to the fullest is to contact a criminal defense attorney as soon as possible.

A criminal defense attorney understands the law as it relates to the crime charged, and should be able to assist in making informed decisions as the case moves through the process.

Many people who are not represented, those who thought they could represent themselves, or those who have inadequate or unsatisfactory representation incorrectly believe that it is too late to get an attorney or change attorneys once the case begins or gets to a certain point. On the contrary, the court should welcome a change that would lead to more informed and more educated defendants who are able to work side by side with their attorneys toward a well-explained and well-defined goal. Simply put, it is never too late to get a lawyer or to change attorneys.

Hand in hand with the sacred concept of presumption of innocence is the right to a trial by jury. But consider this staggering statistic: over 99% of criminal cases do not result in a trial! Some cases are outright dismissed by the prosecution (also referred to as "the Commonwealth" or "the government"). Other cases may be dismissed as a result of a successful motion by the defense attorney. Most cases, however, result in some form of a plea bargain by the defendant. A plea bargain does not always result in a guilty plea or even a "conviction" on the record. Massachusetts law allows several different kinds of pleas that entail accepting varying degrees of responsibility for the crimes charges. There are various reasons for the defendant to enter into a plea, and these reasons should be discussed with an attorney to make sure that all consequences, pros and cons are fully understood.

The range of possible pleas, causes for dismissal, motions, trial procedure, and other dispositions are briefly summarized below and discussed in detail elsewhere on this website. On the menu to the right, click on various offenses to learn more about those particular types of cases.

Police and Constitutional Rights

Discussed below are the various possible levels of police intrusion, from a simple stop to an arrest with a warrant. It is important to understand what conduct by the police is permissible, and what is not. Conduct outside the scope of authority of the police may be in violation of our State and Federal Constitutional rights, and much of the criminal defense process is focused on protecting those rights to the fullest extent possible. This discussion is followed by a detailed chronological description of the criminal process in Massachusetts.

Stop

A person may be stopped for questioning by the police. A stop is not the same as an arrest because, although one may be detained, one is not moved to a different location. During a stop the police officer may ask questions, but one has the right to refuse to answer. A person may be frisked by the police at the time of a stop, but only if the police have a "reasonable suspicion" that the person is armed and dangerous or possesses contraband. In that case, a pat down search is allowed, but the police is not allowed to reach into pockets, they must be able to identify the any objects by plain feel.

Searches

Search Warrants

A search warrant authorizes the police to conduct a search of a specific, place such as a residence, for a specific item, a specific type of item, or contraband. In order for a warrant to be issued by a judge, "probable cause" is necessary.

Probable cause to search means that:

• It is more likely than not that the specific items to be searched for are connected with criminal activities
• Those items will be found in the place to be searched

Warrantless Searches

The general rule is that warrants are required for searches. But search warrants are not required for the following:

• Searches incident to arrest: Police officers are permitted to search the body and/or clothing for weapons or other contraband when making a valid arrest.
• Automobile searches: If a person is arrested in a vehicle, the police may search the inside of the vehicle. To perform a complete search of the vehicle (such as in locked glove compartments, for example), probable cause is necessary.
• Exigent circumstances: Searches may be conducted if there are "exigent circumstances" which demand immediate action, such as to avoid the destruction of evidence.
• Plain view: Police do not need a search warrant when they see an object that is in plain view of an officer who has the right to be in the position to have that view.
• Consent: If a person consents to a search of their body, vehicle, or home, the police are not required to have a warrant. One is not required to consent to any police searches.

Arrest

In order to be arrested, there must be what's called "probable cause." This means that there must be a reasonable belief that a crime was committed and the person being arrested committed the crime. An arrest warrant is not necessary, unless the arrest is to take place in a person's home.

After one is placed under arrest, that person is protected by constitutional rights. Two important rights to be aware of are right to remain silent and the right to have an attorney. After the arrest, a person is not required to say anything else to police or investigators, until an attorney is present. An opportunity to contact an attorney must be given.

Miranda Rule

Under the Miranda Rule, if a person is in police custody , specific constitutional rights must be made clear before any interrogation begins. Those rights are as follows:

• The right to remain silent
• The right to have an attorney present during questioning
• The right to have an attorney appointed if one is unable to afford one

Important to note is that Miranda rights do not have to be read until one is taken into custody. That means that a person may be questioned by the police before being taken into custody, and anything said at that point can be used against the person later in court.

Booking

After the arrest, the police will bring the person to the police station for the booking process, which involves fingerprinting and a series of questions, such as name and date of birth. The person will also be searched and photographed. The personal property, such as jewelry and cash, will be catalogued and stored.

Appointment of an Attorney

In Massachusetts, if one cannot afford to hire an attorney, an attorney will be appointed to defend the person. That attorney may be a public defender, or an attorney in private practice contracted by the court.

After an attorney has been appointed, the person may ask the court to appoint a substitute attorney only for good cause. Good cause requires more than mere dissatisfaction with the appointed attorney and may include:

• A conflict of interest between the person and the attorney
• The attorney becomes ill and cannot continue to the representation
• There is reason to believe that the attorney is not providing effective assistance

Charges

The case against a person is formally initiated when a complaint is issued. Either a police officer or a private citizen may make the application for the complaint to the Clerk Magistrate. If the complaint is sought by a police officer after an arrest, the officer must swear under oath to the facts alleged in the complaint. These applications are routinely granted by the Clerk Magistrate with no other proceedings.

Applications for complaint brought forth by private citizens entitle the accused person to a show cause hearing, also known as "clerk's hearing." Here the accused person has an opportunity to be heard and to oppose the issuance of the complaint. Certain instances are exempt from the hearing requirement, such as threat of imminent bodily injury or risk of flight from the Commonwealth.

Arraignment

Once criminal charges are filed, the accused person will make a court appearance which is known as an "arraignment." If the person has been in custody since the arrest, the arraignment will usually occur within 24 hours of the arrest.

During the arraignment, a "plea" to the crime charged must be entered. Massachusetts pleas and corresponding definitions follow:

• Guilty plea: this is a full admission to the facts of the crime and the fact that the person pleading was the one who committed that crime. Following a guilty plea, the judge will impose sentence immediately.
• Not guilty plea: this plea asserts that the person did not commit the crime as accused. After a not guilty plea, a pre-trial date will be set.
• No contest plea: A "no contest" or "nolo contendere" plea may be entered with the permission of the court. This plea is essentially the same as a guilty plea, with the exception that, unlike guilty plea, a "nolo contendere" plea cannot later be used against the person in a civil lawsuit. Like with the guilty plea, sentence will be imposed immediately.
• "Mute" plea: In Massachusetts, one may "stand mute" instead of making a plea. The court will then enter a plea of not guilty.

During the arraignment, the court will also:

• Set bail, which, if met, will allow the person not to remain in custody while awaiting trial, with certain restrictions;
• Refuse to set bail; or
• Release the person on their own personal recognizance, which means that the court takes the person's word that they will appear when necessary for later court obligations

Bail/Bond

"Bail" is money or property put forth as security to ensure that one will show up for further criminal proceedings.

In Massachusetts, bail can be paid:

• In cash
• A pledge of property (if permitted in that court)
• A bail bond

A professional bail bondsman is an individual whose business is to pledge his or her own property or security to guarantee the bail bond to the court.

Speedy Trial

There is a right to a speedy trial under the Sixth Amendment of the United States Constitution, which requires that the trial be held within a certain time frame after a person has been charged with a crime.

This right can be waived by asking for additional time for the preparation of the defense.

With limited exceptions, a defendant should be brought to trial in Massachusetts within 12 months.

Pre-Trial Conference and Hearing

A Pre-Trial Conference is usually the first date after the arraignment on which the person accused is to return to court. On that date, the person's attorney and the prosecutor will meet to discuss whether the case may be disposed of without a trial. While the accused person must attend, no testimony or other formal proceedings will take place. At the pre-trial conference, the prosecution may offer a plea bargain, which is an agreement for the person accused to accept some responsibility in exchange for a lesser punishment or perhaps a lesser crime than initially charged. At the same time, the parties agree on the details of a trial, if one were to take place, such as the number of witnesses, length, etc. The next date to return to court is usually the pre-trial hearing, where a judge again attempts to resolve the case without a trial, which may include accepting a plea bargain. Certain motions may also be heard at this time.

Trial

There is a right to a jury trial, whereby a jury of 6 or 12 members must unanimously render a guilty or a not guilty verdict. The right to a jury trial may be waived by:

• Pleading guilty; or
• Choosing a bench trial (a trial in front of a judge only)

If a bench trial is requested, the judge will perform the fact-finding function that is usually performed by the jury. In Massachusetts, a defendant in a capital case must be tried by a jury and cannot choose a bench trial.

Appeals

A person found guilty by a jury or a judge is entitled to an appeal. The process varies depending upon the crime, but there are always time deadlines by which an appeal must be filed.

In Massachusetts, the general rule is 30 days after the judgment to file an appeal. There are numerous reasons for an appeal from a guilty verdict in a criminal case, including what's called "legal error." Legal error may include:

• Allowing inadmissible evidence during the criminal process, including evidence that was obtained in violation of constitutional rights
• Lack of sufficient evidence to support a verdict of guilty
• Mistakes in the judge's instructions to the jury regarding the case

An appeal may also be filed due to misconduct on behalf of the jurors, or if there is newly discovered evidence to exonerate.

Sealing of Records

In Massachusetts, under some circumstances, one may be able to have a criminal record sealed. This means that the records cannot be obtained except in limited circumstances, such as a future criminal case against the person.

One may be eligible to have the records sealed if:

• Criminal charges have been dismissed or a not guilty verdict was reached, or
• It has been either 10 or 15 years since the conviction (depending on the crime), or
• The record is a juvenile record that is at least three years old, or
• There has been a pardon

If eligible, one may file a written request with the Massachusetts Commissioner of Probation asking that the records be sealed. A hearing before a judge may be required in certain circumstances.