Friday, July 25, 2008


Massachusetts Criminal Defense

  

MASSACHUSETTS CRIMINAL DEFENSE ATTORNEYS  

Have you been accused of crime in Massachusetts?

Then do not wait. Contact one of our Massachusetts criminal defense lawyers immediately. We will return your call within 8 hours, Monday through Friday. Our Massachusetts criminal defense attorneys are experienced in MA Criminal Defense.

If you wish to talk with one of our Massachusetts criminal defense attorneys, please call us at 888-437-7747, email us or contact us via our fast on line form.

The following is a list of the types of criminal cases we handle for our clients in Massachusetts:

Massachusetts Sex Crimes
Massachusetts State and Federal White Collar Crimes
Massachusetts Violent Major Crimes
MA Motor Vehicle Cases - DUI/DWI/OUI, Reckless Driving, Suspended License
Massachusetts State and Federal Drug Crimes
Sealing and Expunging records
Massachusetts Theft and Shoplifting Crimes
Massachusetts Assault and Battery
Massachusetts Domestic Violence

BOSTON, MASSACHUSETTS OFFICE:
101 Federal Street, Suite 1900
Boston, Massachusetts 02110
Phone: 888-437-7747

To obtain a general overview of criminal defense, please click here.

To learn more about the laws pertaining to criminal defense in Virginia or Maryland, please click on the state.

FELONIES IN THE STATE OF MASSACHUSETTS

FAQ's FOR MASSACHUSETTS CRIMINAL MATTERS

If you wish to learn more about the Massachusetts Criminal Process, please proceed here...

M.G.L.A. 274 § 1- Felonies and misdemeanors (top)

A crime punishable by death or imprisonment in the state prison is a felony. All other crimes are misdemeanors.

M.G.L.A. 265 § 13G- Commission of a felony for hire; additional punishment (top)

Whoever, for the payment of consideration or for the promise of the payment of such consideration, commits a felony, shall be punished by imprisonment in the state prison for not more than five years. The punishment imposed by this section shall be in addition to the punishment provided by law for the commission of a felony so committed.

M.G.L.A. 274 § 2- Aiders; accessories before fact; punishment (top)

Whoever aids in the commission of a felony, or is accessory thereto before the fact by counseling, hiring or otherwise procuring such felony to be committed, shall be punished in the manner provided for the punishment of the principal felon.

M.G.L.A. 274 § 3- Counseling or procuring felony; prosecution as accessory before fact or principal; punishment; venue (top)

Whoever counsels, hires or otherwise procures a felony to be committed may be indicted and convicted as an accessory before the fact, either with the principal felon or after his conviction; or may be indicted and convicted of the substantive felony, whether the principal felon has or has not been convicted, or is or is not amenable to justice; and in the last mentioned case may be punished in the same manner as if convicted of being an accessory before the fact. An accessory to a felony before the fact may be indicted, tried and punished in the same county where the principal felon might be indicted and tried, although the counseling, hiring or procuring the commission of such felony was committed within or without the commonwealth or on the high seas.

M.G.L.A. 274 § 4- Accessories after fact; punishment; relationship as defense; cross-examination; impeachment (top)

Whoever, after the commission of a felony, harbors, conceals, maintains or assists the principal felon or accessory before the fact, or gives such offender any other aid, knowing that he has committed a felony or has been accessory thereto before the fact, with intent that he shall avoid or escape detention, arrest, trial or punishment, shall be an accessory after the fact, and, except as otherwise provided, be punished by imprisonment in the state prison for not more than seven years or in jail for not more than two and one half years or by a fine of not more than one thousand dollars. The fact that the defendant is the husband or wife, or by consanguinity, affinity or adoption, the parent or grandparent, child or grandchild, brother or sister of the offender, shall be a defense to a prosecution under this section. If such a defendant testifies solely as to the existence of such relationship, he shall not be subject to cross examination on any other subject matter, nor shall his criminal record, if any, except for perjury or subornation of perjury, be admissible to impeach his credibility.

M.G.L.A. 274 § 5- Felon's conviction or amenability to justice; venue (top)

An accessory to a felony after the fact may be indicted, convicted and punished, whether the principal felon has or has not been previously convicted, or is or is not amenable to justice, either in the county where he became an accessory or in the county where the principal felony was committed.

M.G.L.A. 274 § 6- Attempts to commit crimes; punishment (top)

Whoever attempts to commit a crime by doing any act toward its commission, but fails in its perpetration, or is intercepted or prevented in its perpetration, shall, except as otherwise provided, be punished as follows:
First, by imprisonment in the state prison for not more than ten years, if he attempts to commit a crime punishable with death.
Second, by imprisonment in the state prison for not more than five years or in a jail or house of correction for not more than two and one half years, if he attempts to commit a crime, except any larceny under section thirty of chapter two hundred and sixty-six, punishable by imprisonment in the state prison for life or for five years or more.
Third, by imprisonment in a jail or house of correction for not more than one year or by a fine of not more than three hundred dollars, if he attempts to commit a crime, except any larceny under said section thirty, punishable by imprisonment in the state prison for less than five years or by imprisonment in a jail or house of correction or by a fine.
Fourth, by imprisonment in a jail or house of correction for not more than two and one half years or by a fine, or by both such fine and imprisonment, if he attempts to commit any larceny punishable under said section thirty.

M.G.L.A. 274 § 7- Conspiracy; penalties (top)

Any person who commits the crime of conspiracy shall be punished as follows:
First, if the purpose of the conspiracy or any of the means for achieving the purpose of the conspiracy is a felony punishable by death or imprisonment for life, by a fine of not more than ten thousand dollars or by imprisonment in the state prison for not more than twenty years or in jail for not more than two and one half years, or by both such fine and imprisonment.
Second, if clause first does not apply and the purpose of the conspiracy or any of the means for achieving the purpose of the conspiracy is a felony punishable by imprisonment in the state prison for a maximum period exceeding ten years, by a fine of not more than ten thousand dollars or by imprisonment in the state prison for not more than ten years or in jail for not more than two and one half years, or by both such fine and imprisonment.
Third, if clauses first and second do not apply and the purpose of the conspiracy or any of the means for achieving the purpose of the conspiracy is a felony punishable by imprisonment in the state prison for not more than ten years, by a fine of not more than five thousand dollars or by imprisonment in the state prison for not more than five years or in jail for not more than two and one half years, or by both such fine and imprisonment.
Fourth, if clauses first through third do not apply and the purpose of the conspiracy or any of the means for achieving the purpose of the conspiracy is a crime, by a fine of not more than two thousand dollars or by imprisonment in jail for not more than two and one half years, or both.
If a person is convicted of a crime of conspiracy for which crime the penalty is expressly set forth in any other section of the General Laws, the provisions of this section shall not apply to said crime and the penalty therefor shall be imposed pursuant to the provisions of such other section.

Massachusetts Criminal Justice – Know Your Rights!

Being Arrested in Massachusetts – A Guide Through The Massachusetts Criminal Justice System (top)

In Massachusetts, you can be arrested for breaking a criminal (non-civil case) law. If arrested, your case is taken before a magistrate or judge, who may issue a warrant if necessary (court order for arrest or search and seizure if you are not present) and set bond for appearance in court.

If you – known as the defendant - cannot post the stated bond, you may be incarcerated (put in jail or detention) pending your first scheduled appearance (arraignment) in court. If bond is posted, you'll remain free until your appearance at the arraignment.

An arraignment in Massachusetts usually occurs within 24 to 48 hours of the arrest. If you're arrested on a weekend or holiday – you'll be arraigned the first date available. The arraignment is held before a judge of the courts.

During the arraignment, you (as defendant) are formally told what offense you're being charged with, informed of your constitutional rights, and of the possible penalties involved with your particular criminal offense. At this time you will not be required to enter a plea of guilty or not guilty, your bond may be reviewed, and a date for the next hearing will be scheduled.

A Question Often Coming Up Is About The Use Of Force During A Criminal Arrest. In Massachusetts, How Much Force Is Considered Reasonable? (top)

The Massachusetts legal standard is that a police officer may use as much force as is necessary to arrest you. However, unreasonable force is considered assault. After arrest, a police officer may handcuff you if you attempt to escape, or the officer considers it necessary to prevent you from doing so.

If you claim that unreasonable or unjustified force was used to arrest you, a judge will decide whether or not the actions taken by the police during the course of the criminal arrest were reasonable under the circumstances. But you should be aware, in practice the courts almost always err on the side of the arresting officer.

Search Warrants and Probable Cause (top)

A search warrant is an order issued by a judge or a magistrate authorizing police officers to conduct a search of a specific location, looking for specific evidence. Before a search warrant may be issued, there must be a showing of probable cause, along with an oath or affirmation that the search is necessary.

This is one of the basic legal guarantees enumerated the United States Constitution - Amendment IV in the Bill of Rights.

What Constitutes Probable Cause? (top)

There's no hard and fast rule precisely establishing what is and what isn't probable cause. However, in Massachusetts a finding of probable cause requires objective facts indicating a likelihood of criminal activity. A police officer's mere hunch, with nothing more to substantiate it, will not satisfy the requirements.
Example: Officer Brown observes Sally and Dick walking down the street. Officer Brown has a hunch that Sally and Dick are up to no good. Armed with nothing more than that vague suspicion, Officer Brown goes to the local judge and attempts to get a warrant to search Sally's and Dick's homes. Should the warrant be granted?

No. A police officers hunch, with nothing to back it up, doesn't satisfy the probable cause requirement. However, if Officer Brown observed Sally and Dick conducting a drug deal, then probable cause would likely exist to issue a warrant to search their homes.

There's A Knock At The Door. It's The Police. They Ask To Search Your Home Or Premises. Must You Comply? (top)

No! Unless the officer has a valid search warrant, you are under no legal obligation to let the officer search your residence or premises under your control. In fact, it is always advisable that you politely but clearly inform the officer that without a valid search warrant, you do not agree to any search of the premises. This will help protect your rights if the search was improperly conducted – or if the Officer decides to conduct a search even without a warrant. (It happens!)

I Have “Nothing To Hide” – Why Shouldn't I Allow The Search? (top)

If you voluntarily consent to a search of your home, automobile, or person, the officer can then conduct a full search without a warrant. Anything the officer finds can later be used against you in court.

The important term to understand here is “anything.” You may not be aware that an item or object under Massachusetts criminal law is illegal. However, ignorance is no defense. With the sheer amount of laws on the books, the average person has little clue as to what may or may not be prohibited.

This is why – lacking a warrant – it is always advisable to withhold permission.

What Is The “Plain View” Doctrine? (top)

If the Police Officer is in a place that he or she has a right to be, they do not need a warrant to seize contraband (illegal items) that are in plain view.

EXAMPLE: Officer Brown is standing in your doorway talking to you about the weather. While talking, Officer Brown notices a bag of cocaine and a sawed-off shotgun on your couch. Officer Brown can legally seize these items even without a search warrant because they are in plain view.

This is an area where “legal fuzziness” enters the picture. Let us suppose that instead of cocaine or a sawed off shotgun, you had some plastic baggies sitting on your table filled with oregano you've grown and dried yourself. Totally legal – except that for all intents and purposes it looks like dime bags of home grown marijuana. Is there then “plain view” probable cause for a search? Given the current climate of drug war hysteria, you may well be left holding the losing end of a legal argument.

Searches After An Arrest Is Made Are Basically Legal In Massachusetts (top)

Police officers do not need a warrant to conduct a search after making an arrest. After making a criminal arrest, the officer can legally search the person being arrested, as well as the area in the person's immediate control. This includes the room or rooms you may have occupied at the time of your arrest, as well as any vehicle (your car or the owner's car) you may be in at the time of the criminal arrest.

Getting Out On Bail (top)

Bail is money or other property deposited with the court to make certain the person accused (the defendant) will return to court when he or she is required to do so. If the defendant returns to court as required, the bail will be returned at the end of the case, even if the defendant is ultimately convicted. However, if the defendant does not appear in court when required, or violates his or her bail conditions, the bail will be forfeited to the court and will not be returned. It doesn't matter if someone else posted your bail, such as a friend or family member. If you skip the court date, the state keeps the money or property.

What Happens At A Bail Hearing? (top)

In most states, including Massachusetts, when a person is arrested for a violation of a criminal law, the accused is brought before a magistrate or judge. The magistrate or judge will conduct a pre-trial bail hearing. (This is separate from the official criminal arraignment, which will be held later on in the process.)

In Massachusetts, four possible results can happen at a bail hearing. Here are those results:

  • Recognizance - This is the defendant's written promise to appear in court on the date set and abide by the terms set by the magistrate or judge. No monetary pledge, cash deposit or security by property or professional bondsman is required. Basically you are freed on your own good word.
  • Unsecured Bond - This release pending court appearance is based on the defendant's written agreement to appear in court on the date set and abide by the conditions set by the magistrate or judge. It is backed by an agreement by the defendant to forfeit money to the court if he or she does not appear on the date set.
  • Secured Bond - This is secured by either a cash deposit, a pledge of real or personal property, or a pledge by a third party that the defendant will appear in court on the date set and abide by the conditions of the release. The judge may rule any type of security forfeited in the event the defendant does not appear in court when required.
  • Ineligible for Bail - The defendant is denied a release pending court appearance. This is usually for very serious criminal offenses, or if the court believes there is a real and significant risk of flight by the defendant.

The bail decision may be appealed to a judge who will re-examine the evidence. A violation of any agreement of release pending your court appearance could result in the issuance of an Order to Show Cause why the release should not be revoked. A show cause hearing may also be issued by a judge for not appearing in court as agreed.

What Are My Rights At An Arraignment? What Can I Expect? (top)

You have the right to be arraigned without unnecessary delay after your arrest - usually within two court days.

In Massachusetts, at your first arraignment you'll appear before a judge who will officially inform you of the criminal charges against you. At this arraignment, an attorney may be appointed for you if you cannot afford one, and bail can be raised or lowered. You also can ask to be released on personal recognizance (being released without bail), even if bail was previously set.

If you are charged with a criminal misdemeanor, you can plead guilty or not guilty at the arraignment. Or, if the court approves, you can plead nolo contendere, meaning that you will not contest the charges. You technically do not plead guilty, but can be found so by the court.

Before pleading guilty to some first time criminal offenses in Massachusetts, such as drug possession in small amounts for personal use, you may want to find out if your county has any drug diversion programs. Under these programs, instead of fining you or sending you to jail, the court may order you to get counseling, which can result in dismissal of the charges once the course is completed.

In Massachusetts, if misdemeanor charges are not dropped, a trial will be held later on in a Massachusetts General District Court of law. If you are charged with a felony, and the charges are not dismissed, the next step is a preliminary hearing.

The Preliminary Hearing (top)

Every person in Massachusetts charged by a criminal warrant is entitled to a preliminary hearing. This is an examination of the criminal charge or charges against the accused. The prosecutor must present evidence and witnesses that prove that it appears a criminal offense has been committed and that there is probable cause to believe the person accused committed it. The accused or their attorney may cross-examine witnesses and may present evidence they wish.

If the judge in Massachusetts makes a finding of probable cause after hearing the evidence, the criminal charge is sent to the grand jury. If the judge finds that a criminal offense apparently had not been committed, or that the defendant was not the likely person involved in the offense, the accused is released and the charge dismissed.

However, if the accused is released and the criminal charges dismissed after the preliminary hearing, the prosecutor in Massachusetts may still present evidence to a grand jury to see if they will find sufficient probable cause.

In lieu of the vast leeway and powers given a public prosecutor, it is all to easy to be indicted by a grand jury, even if the preponderance of evidence seems to be lacking.

As was once (in)famously quoted by a former New York judge: "A grand jury would indict a ham sandwich."

That's why competent, experienced legal counsel is an absolute must in any criminal proceeding. You only have a small window of opportunity to protect and enforce your rights. Once waived or lost, it's a long uphill battle to regain them.

The Massachusetts (MA) attorneys of SRIS, P.C. represent clients with criminal, divorce & OUI throughout Massachusetts, including but not limited to:

City of Boston, Greater Boston, Essex County, Middlesex County, Norfolk County, Plymouth County

People refer to Massachusetts as Mass also.