Massachusetts Criminal Process FAQ

Answered by Massachusetts Criminal Defense Attorneys

The following information is a brief explanation of the Massachusetts criminal process.  If you have additional questions or think you would benefit from our services, please feel free to call us at 888-437-7747, email us or contact us via our fast online form. 

The Massachusetts criminal process is often times confusing, and almost always complicated. Preserving and enforcing your legal rights should be one of your greatest concerns. Unfortunately, many times people accused of crimes in Massachusetts don't know their legal rights, or they foolishly waive them.

Remember, being accused doesn't mean you are guilty. Innocent until proven guilty is still one of the cornerstones of our judicial system - and that right should never be taken lightly.

Being Stopped By The Police

In Massachusetts, as with other states, a police office may 'stop' or detain you for questioning. This is not the same as being arrested. When under arrest, a person is usually moved to a different location. Being stopped means you remain in the same vicinity while the police attempt to question you.

If stopped by the police in Massachusetts, the officer may ask you questions. However, you do have the right to remain silent.

Recent Supreme Court decisions have ruled that when investigating a possible crime or offense, police officers may ask your name, and you are obligated to reply. This does leave open several interesting possibilities, however. If by giving your name you are actually implicating yourself in a crime, that could run afoul of 5^th Amendment protections against self-incrimination. Plus, the court did not address giving the police a pseudonym.

The Justices did note the 5^th Amendment consideration mentioned above, but chose to leave that question for another day and another Court.

If the stop is routine, giving polite but short answers may be your best course of action. Do not volunteer any information. However, the moment you suspect your answers to any questions may implicate you in crime, the rule is: Remain Silent!

Search Warrants & Searches in Massachusetts

A search warrant is a written order issued by judge or magistrate authorizing the police to conduct a search of your person, location or residence in order to find evidence of a criminal offense, and if finding such evidence, seizing it.

Under the Fourth Amendment to the United States Constitution, in order for most warrants to be issued, "probable cause" is necessary.

Any police entry into an individual's home always requires a warrant (for either search or arrest), absent extenuating circumstances such as hot pursuit of a felon, imminent destruction of evidence, preventing a felon's escape, or a real risk of harm to police or others.

Probable cause may be based upon direct information, for example an officer's personal observation. It can also be based upon hearsay - so long as the source of the hearsay is reliable, as determined by all of the circumstances.

In Massachusetts, for probable cause to exist, two general conditions must be met:

•· It is probable the specific items being searched for are connected with specific criminal activities

•· Those items will be found in the place to be searched

Warrantless Searches

In Massachusetts, search warrants are not required for the following:

• Searches during an arrest: Police officers are permitted to search your body and/or clothing for weapons or other contraband when making a valid arrest.
  
• Automobile searches: If you're detained or 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 the factors mentioned above: Hot pursuit of a felon, imminent destruction of evidence, preventing a felon's escape, or a real risk of harm to police or others.
  
• Plain view: A search warrant is not required if the officer sees a "suspect" object which is in plain view. For example, if a police officer stops you for a traffic violation and sees bags of white powder lying on your car seat, a search warrant isn't necessary to investigate the nature of that powder more closely. The deciding factors here are that the officer is legitimately on the premises, his observation is from a legitimate vantage point, and it is immediately apparent that the evidence is illegal.
  
• Consent: If you consent to a search of your body, your vehicle, or your home, police are not required to have a warrant. You aren't required to consent to any police searches. As a rule of thumb, it's always better to deny consent. You may have items on you that are illegal without you even knowing it. (Mace, pepper spray, knives all come to mind.)

It should be noted that police officers have tried to circumvent this "consent" limitation. One case in point involved searching luggage on a Greyhound bus for illegal drugs without the requisite probable cause. The police officers "asked" each rider to open up their luggage - without informing them of their right of refusal. The Supreme Court ultimately sided with the police, ruling that the officers had no obligation to inform the bus riders they could refuse the search.

This holds true when being stopped for a minor traffic violation. The officer may "ask" you to open up your trunk, without stipulating you can refuse. The intimidation factor alone causes many innocent people to comply.

Being Arrested

In order for a police officer to arrest you in Massachusetts, he or she must again have "probable cause." This means there must be a reasonable belief a crime was committed - and you either committed it or were involved in that crime. The police in Massachusetts may arrest you with or without an arrest warrant.

After being placed under arrest, it is important to remember your constitutional rights. At this point, the two most important rights for you to be aware of are your rights to remain silent and the rights to have an attorney.

After your arrest in Massachusetts, you can't be compelled to say anything to police or investigators until you have an attorney present. You must also be given the opportunity to contact an attorney.

IN EVERY CASE, it is advisable to remain silent after being arrested. Don't try and "talk your way out" of the situation. Anything you say can and will be used against you. When placed under arrest, you may not be aware of all the consequences of your alleged crime under Massachusetts law. By remaining silent, you can't be held answerable for things not said.

It's also very advisable not to resist arrest. You'll have your chance in court if you believe the arresting officer was acting out of spite or without proper cause. Resisting arrest only make you appear guilty - and it can also result in severe physical force being used against you as well.

Being Read Your Rights - The Miranda Rule

Named after a 1966 case called Miranda v. Arizona, this law states if you are arrested and in police custody, you must be informed of specific constitutional rights before you are questioned.

The three rights of the Mirada Rule that should be read to every person under arrest are:

• You have the right to remain silent

• You have the right to have an attorney present during questioning

• If you can't afford an attorney, you have right to have one appointed by the state.

A point many people overlook is that until you are taken into custody (arrested), the officer doesn't have to read you your rights. It's not unusual for an officer who has every intent on placing you under arrest to wait until you've made incriminating statements against yourself, then proceed with the arrest.

Again, the hard and fast rule is this: Remain Silent! Especially after the officer has arrested you and read you your rights.

Hiring an Attorney vs. Having an Attorney Appointed

If you have an attorney, you have the right to have him or her present during any questioning. In Massachusetts, if you can't afford to hire a criminal defense attorney, and if you are charged with a crime that is punishable by incarceration, an attorney (called the public defender) will be appointed to defend you.

Once you've been appointed a public defender, you are more or less stuck with the State's choice. You may ask the court to appoint a substitute attorney only for good cause. In Massachusetts, this is more than merely being dissatisfied.

A substitute attorney may be requested for:

• Conflicts of interest between you and the attorney
• Your attorney becomes ill and cannot continue to represent you
• There is real and substantiated reason to believe your attorney is not providing you with effective counsel.

Booking or Being Booked

After being arrested in Massachusetts, you'll be brought by the police to the police station for the booking process. You'll be fingerprinted and asked a series of questions, such as your name and date of birth. You'll also be searched and photographed. Your personal property such as jewelry will be catalogued and placed into safe keeping.

Arraignment in Massachusetts

After criminal charges are filed against you in Massachusetts, you'll make a court appearance known as an "arraignment." If you've been put in holding, this will usually occur within 72 hours of your arrest.

During your arraignment, you'll be asked to enter a "plea." The four pleas you can make in Massachusetts are:

• Guilty plea: If you plead "guilty," you're admitting to the facts of the crime and that you were the one who committed it. (Not a wise idea!)
  
• Not guilty plea: A "not guilty" plea states you did not commit the crime in question.
  
• No contest plea: A "no contest" plea (nola contendere: I will not contest it) indicates that, while you are not admitting guilt, you do not dispute the charge. This is preferable to a guilty plea because guilty pleas can be used against you later in possible civil lawsuits.
  
• "Mute" plea: In Massachusetts, you may "stand mute" instead of making a plea. The court will then enter a plea of not guilty.

During this arraignment process, the court will also set or refuse bail or release you on personal recognizance.

Bail/Bond

"Bail" is money or property given as security to ensure that you'll show up for further criminal proceedings.

In Massachusetts, bail can be paid:

• In cash
• A pledge of property
• Intangible Assets (bankbook accounts, certificates of deposit, letters of credit, and certificates for stocks)
• Credit and Debit Cards
• A bail bond via a bail bondsman

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. In return, they usually charge the defendant 10% of the bail fee as compensation for their services.

If you don't show up for these further proceedings, the bail is forfeited - plus in Massachusetts you'll also be guilty of the crime of failure to appear. In most cases bail money in Massachusetts is returned at the end of the trial, no matter whether you are found guilty or not guilty of the crime.

If you hire the services of a bail bondsman, be aware the law usually allows them to use the services of bounty hunters should you choose to flee from justice - commonly called jumping bail or skipping bail.

The bounty hunter is paid a portion of the bail the "bail jumper" originally paid through the bondsman. If the fugitive eludes capture, the bondsman, not the bounty hunter, is responsible for the remainder of the bail.

Bounty hunters are also sometimes known as "bail enforcement agents" or "fugitive recovery agents." Unlike police officers, they have no legal protections against injuries to non-fugitives and few legal protections against injuries to their targets.

Speedy Trial

Under the Sixth Amendment of the United States Constitution, you have a right to a speedy trial. In Massachusetts, this requires your trial be held no later than one year from the date of your first appearance before the court. This right can be waived if good cause is shown.

Going to Trial

In Massachusetts, many prosecutors will consider "plea agreements," although it's not legally required.

A plea agreement or plea bargain, plea deal or copping a plea is an agreement in a criminal case where the prosecutor and defendant arrange to settle the case against the defendant. The defendant agrees to plead guilty or no contest in exchange for some agreement from the prosecutor as to what punishment they'll receive.

If you are charged in Massachusetts with a crime punishable by six or more months of imprisonment, you have the right to a jury trial. This right may be waived by:

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

At a bench trial, you are waiving your right to trial by jury and agree to have the facts of your case weighed and decided upon solely by the judge

At a trial by jury, you can either be found innocent (acquitted) of the charges brought against you, be acquitted of some charges and found guilty of others (if charged with multiple counts), or have a "hung jury: A "hung jury" means guilt or innocence could not be determined. This usually results in a mistrial and new legal proceedings.

Jury Nullification

There is also the little known and less used acquittal by Jury Nullification. In common law, the jury not only has the obligation to convict or acquit on the basis of the facts and beyond a reasonable doubt - they also have the right to judge the law itself. In effect saying: "Yes, the law does prohibit this action, but we the jury nullify that law in this particular case."

Judges have traditionally refused to allow any mention of jury nullification in their courtrooms, and potential jurors are usually screened out if it appears they lean towards applying it to the case at hand. Even sitting jurors have been removed for merely mentioning nullification during their deliberations. Yet jury nullification does exist, evidenced and reaffirmed in 1969 by the United States Court of Appeals:

"We recognize...the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence.

This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic of passion, the jury has the power to acquit, and the courts must abide by that decision."

United States Court of Appeals for the District of Maryland: (US vs Moylan, 417 F 2d 1002, 1006 (1969))."

In fact, the only Supreme Court Justice ever impeached was Justice Samuel Chase - for denying a jury's right to judge the law.

Appealing Your Sentence

In Massachusetts, after being convicted and sentenced, you'll have the chance to file an appeal of your sentence. This opportunity is not absolute - if you pleaded guilty, you may need to ask for "leave" or permission to appeal your conviction.

However, if you were convicted in Massachusetts at a trial by a jury, you do have an absolute right to appeal. An appeal does not retry the case. It's a review and examination of the trial record - ensuring the proceedings were conducted in a fair and reasonable manner. Depending upon the crime, this process varies, but be aware that in Massachusetts there are time deadlines and limitations by which you must file an appeal or lose that right.

There are many reasons why you may want to appeal a guilty verdict in a criminal case in Massachusetts, including what's called "legal error."

Legal error may include:

• Inadmissible evidence was allowed during the criminal process, including evidence that was obtained in violation of your constitutional rights
  
• Lack of sufficient evidence to support a guilty verdict
  
• Errors by the judge's when instructing the jury in matters regarding your case

You may also appeal due to a juror or jurors misconduct, or if newly discovered evidence proves your innocence.

Having Your Records Sealed in Massachusetts

In Massachusetts, your criminal records may be "sealed" - no one, except in certain circumstances can view or get the records of your trial or conviction.

If you're been declared "not guilty" or if the criminal charges against you were dropped, then by all means go through the process of having your records sealed.

If you were pardoned by the Governor or the President, then again - have those records sealed.

In some cases, if there's been a sufficient amount of time since your conviction (10 to 15 years) you can petition the State of Massachusetts to have your records sealed. Juvenile convictions can usually be sealed after 3 years.

To have your records sealed, you must file a written request with the Massachusetts Commissioner of Probation.

SRIS PC

If you've been charged with a serious crime or misdemeanor in Massachusetts - don't fool yourself into thinking you can go it alone. You need the help of experts - and the attorneys at SRIS PC are those experts.

Our lawyers are the best in the business, and when it comes to defending you in court, rest assured you'll get the most professional council possible.

Please give us a call to discuss your case. The first consultation is always without cost, and we'll provide you with a totally honest appraisal of your situation.

Here's how to contact us: 888-437-7747

And one more thing: Rest assured your privacy is paramount. From the receptionist who takes your call to the attorney handling your case - your personal information stays personal. That's a promise.