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Criminal Defense

Encounter with police while walking: what can happen to anybody

A police officer, like anyone else, can stop any person on the street and engage into a conversation. The most common delusion is that you are required to stop and communicate. There is no need to be rude in expressing your unwillingness to do so, but, unless the policeman orders you to stop, you do not have to. Moreover, in Massachusetts everyone has a constitutional right to flee from police and not be charged for the mere fact of the flight (fleeing though may be a bad idea for other different reasons.)

In order to legitimately stop anyone, and prevent this person from leaving, the policeman has to have either a warrant for this person, or a good cause to suspect that the person he is about to stop has engaged, or is about to engage, in some sort of illegal activity.

If the police officer stopped you in such a manner that you realize - you are not free to leave, it is better to comply. First, because if you try to twist out and flee, police will most likely catch you anyway; that incident will give the officer more justification for his already existing suspicion and provide him with a better argument for having a good cause to stop you: "the wicked flee when no man pursueth." (Proverbs, 28:1). Second, because if the officer stopped you without a good reason, he will have to explain his conduct to the judge and might very well lose the argument, in which case whatever evidence against you he gathered from you upon stopping are, with certain exceptions, not admissible against you at the trial.

In order to search someone a policeman has to have a warrant, or there must be exigent circumstances. That means, unless you willingly give up whatever the officer requested from you, the policeman has a right to search you only if he is concerned about his own safety or for some illegal stuff like weapon or drugs being in plain view (usually pertains to some bump on the clothes or in the pocket). Both the "safety" and the "plain view" arguments are used and abused all around, but oftentimes do not hold water.

Remember, whatever you give to the policeman voluntarily will be used against you. It is better to become subject to unconstitutional stop and search the results of which your attorney can later challenge than to hand over something bad in order to hide something worse. First, if you hand over some contraband, you will inevitably be searched for more contraband. Second, whatever you handed out voluntarily is not subject to unconstitutional search anymore (easier to be suppressed from the evidence,) but rather is part of your voluntary encounter with police (harder to be suppressed from the evidence.)

Do not let the stressful circumstances trick you into providing evidence against yourself. Cooperate with policeman but know your rights!

Encounter with the police while driving: can happen to anybody

A police officer can stop you for what is called a routine traffic violation (speeding, light malfunction, etc), or because they are stopping everyone due to an alert following a shooting in the area, or to check your identification in case he is trying to track some stolen vehicle that resembles your car, or merely due to "reasonable suspicion," which can be cause by a great deal of thing.

If, while communicating with you, the officer happens to see something in your car that he anticipates to be dangerous for his safety, he can order you out of the car and search the area that aroused his suspicion. As you can imagine, the argument about safety is heavily used and frequently abused. The officer is supposed to limit his search to dispel the safety concerns - however, in reality it does not always happen that way.

Arrest: what to expect

For most people an arrest is an unexpected experience, following some unpleasant incident in the person's life. For that reason, under the stress they forget what every other movie teaches them: you have the right to remain silent, and anything you say can and will be used against you in a court.

Police officers are trained not only to protect the arrestee's rights through giving this warning, but also to elicit information from the arrestee, obtaining priceless incriminating evidence. Hence, the only statement that can be safely entrusted to a police officer is a request to speak with your attorney.

Remember - every arrestee has a right to know the true ground on which the arrest is made, and the arresting officer has an obligation to answer that question. If you are not sure, what was the cause of the arrest, feel free to inquire but do not engage in a long detailed conversation - you may say more than you want to.

Under the Massachusetts constitution every arrestee has a right to make one telephone call upon arrival to the police station. If the officer forgot to remind you about this right, do not hesitate to request the call, and use it to contact your lawyer, or someone you know who could contact your lawyer for you. Maybe the police made a mistake and should not have arrested you in the first place. The earlier an attorney intervenes, the better he can influence the consequences. That call usually happens after you arrive at the police station.

Booking at the police station

Immediately following the arrest every arrestee is brought to the police station for booking. A police officer takes down the arrestee's personal information, his fingerprints and photographs.

It is generally a bad idea to confront police officers in course of booking or to try falsifying any information: the booking officer has access to the database of criminal records that matches names and fingerprints. An attempt to use a different name would only result in an additional charge on the criminal complaint - most of my clients indicted with securing false statements to police have furnished wrongful information during some stage of the booking process. If you have a reason to conceal your person information it is best to not provide any.

If the arrest happened during the day, while the District Court is in session, the arrestee is delivered to the court and held in the court's lockup until he is called downstairs by the judge - the hearing occurs right away. That is another reason why you may want to have your lawyer present as soon as possible. If the courts are closed for the day, the arrestee is detained in a police cell room until the next court session (next morning, 9pm.) Those unfortunate people who are arrested during the weekend may even be transported to jail until the arraignment hearing on the following Monday.

Arraignment/Bail hearing

Arraignment hearing occurs after the arrest in order to let the judge know that the state got a certain person under control and decide on the next step. The state's interests in protecting the law and order are now represented not by the police officers, who physically arrests, but by the prosecutor who formulates and brings charges against the arrestee.

All charges are either a misdemeanor or a felony offense: a crime punishable by death or imprisonment is a felony; all other crimes are misdemeanors. Misdemeanor can carry a punishment of a fine, a confinement in a jail or a house of corrections, or combination thereof.

Arraignment hearing is used for two purposes: to schedule the date of the pre-trial conference in the case, and to determine whether the defendant can be released until that time.

Based on the arrestee's previous criminal record and depending on seriousness of the charge, the judge can do one out of three things:

1. The judge can release the arrestee on "personal recognizance."
A person with a short or no criminal record or with a history of timely appearances is often released upon a promise to appear at the next court date.
The arrestee in that case is free to go and must return on the next scheduled date.

2. The judge can release the arrestee on bail
Bail is a certain amount of money that has to be paid prior to release. The bail money will be returned to the defendant upon his next court appearance and the idea behind the bail is to secure the defendant's appearance in the court next time. There is usually also a nominal bail fee that has to be paid - it is not part of the bail money, and will not be returned to the arrestee.
Usually at the bail hearing the prosecutor makes a demand for bail, and the defendant's attorney attempts to lower the bail amount or request a release on "personal recognizance." People who cannot make their bail are taken into custody until someone "bails them out." It is a much more complicated process than posting the bail money in court.

3. The judge can place the arrestee into custody until the next court date.
Bail assessment can be appealed in Superior court - however, the appeal would not necessarily lower the bail amount. IN most cases it does not make sense to appeal, but it is always an option.
At the arraignment hearing the arrestee can plead guilty if he so wishes, but, unless he instructs otherwise, the clerk will usually enter a plea of not guilty on his behalf.

Intermediate stage for felonies: probable cause hearing/grand jury indictment

Whenever a defendant is charged with a serious felony rather than a misdemeanor, he is still brought to the District courts after being arrested. The District court has authority to decide the question of bail, but cannot hear the case itself. Therefore, after the decision on the bail is made, an additional step is required to determine whether evidence that the prosecution obtained is sufficient to bring the charge. There are two possible ways of how such a decision is made.

A probable cause hearing will be held in order to determine whether there is a probable cause to believe that he indeed committed the offense. The decision is made by the judge; lack of probable cause leads to the dismissal of the case against the defendant; finding of the probable cause shifts the case to further stage.

A much more frequent alternative to a probable cause hearing is a grand jury indictment, whereupon a grand jury consisting of 23 people must decide, whether evidence that the prosecution obtained is sufficient to bring the charge. If the grand jury refuses to return the indictment (i.e. - to formally charge the defendant with what the prosecution accused him of), the case against the defendant is dismissed. If the grand jury returns the indictment, the case can proceed to the next stage.

Fateful stage: pre-trial conference

After the arraignment in a misdemeanor case, or a preliminary hearing in case of a felony, the prosecutor and the defendant's attorney have to discuss the case. They communicate about the merits of the case, the available evidence and other aspects, exchange motions and make sure each has all the information about the case that is required for a trial. At some point they meet in court in order to decide whether the case can be resolved without a trial.

At this stage the prosecutor usually offers some plea bargain: he suggests that the defendant admits to some of the charges he was initially accused of, and the prosecutor in return will give him some kind of a break: waive additional charges, agree to charge the defendant with a lesser included offense, ask for a lesser penalty or something of the sort. This plea bargain practice allows the defendant's attorney to negotiate better terms or an easier penalty for his client, and saves the prosecutor the pain of trying the case in front of the jury and proving it beyond a reasonable doubt.

If the parties cannot agree, the court will set a trial date.

If the defendant agrees to accept the "deal", he will be required to plead guilty as charged, i.e. consent that everything happened on the date of the offense exactly the way it is written in the police report. The judge will repeatedly ensure that the defendant enters the plea voluntarily and understands all the circumstances following from the plea (for instance the effect on the defendant's immigration situation in case he is not a citizen.) After the judge satisfies himself that the defendant knows what he is doing, the prosecutor would ask for the penalty for the defendant, that he and the defendant through his attorney had previously agreed upon. The penalty can be jail time, probation, continuance without a finding, or agreement to enter into some kind of a treatment (usually in cases that involve drugs the defendant can benefit from a drug court program).

Once the court approves the agreement between the prosecutor and the defendant, it will accept the disposition and enter the plea, whereupon the charge becomes a matter of public record and shows on the defendant's criminal record henceforth.

Probation: what to expect

Probation is a full-blown conviction of a crime for the purposes of the criminal record - only, instead of serving jail time, the defendant will return to the community. Small surprise, most people prefer this outcome.

It must be noted though, that the defendant's life is not going to be the same as before the arrest. For a period of time agreed upon, the defendant will have to abide to certain conditions under the supervision of a probation officer, and such conditions may include not only abstaining from unlawful behavior, but also regularly reporting to the probate officer, regularly taking drug tests, abiding by no-contact orders with regard to certain people, regularly paying certain fees and other similar conditions. The probation officer will be monitoring the defendant's performance during the probation period with the idea to help the defendant behave in a lawful and responsible way.

Unfortunately, people who agree to probation do not realize how easy it is to mess up: fail an appointment with the officer, fail to come up with the fee money or even forget an ID for the appointment. Every tiny mistake can result in a probation surrender: a mini-trial, where the defendant with the help of his attorney, attempts to explain to the judge, why he messed up, and pleas not to surrender his probation. If the judge is not convinced, the defendant's probation is surrendered: the defendant goes straight to the jail to serve the sentence for his initial offense - as if he were pronounced guilty by the jury. Moreover, having a record of a surrender will make it harder for the defendant to receive a probation for any subsequent offense.


If the defendant rejected a plea bargain, or was never offered on, the trial is the next thing to happen.

For crimes that can result in a conviction that includes jail time, the defendant has a right for a trial by a jury of six people if the case is pending in the in a District court, and twelve people, if the case is pending in the Superior court. Usually, cases that involve misdemeanors or felonies punishable by a sentence up to five years are heard in the District Court, and cases that include more serious charges are heard in the Superior court.

Jury is the trier of fact in the case. It decides, whether to trust a witness, whether certain evidence is sufficient to prove guilt, and, ultimately, whether the defendant is guilty as charged.

The defendant may choose to waive the jury and submit himself to a bench trial by the judge - it may be a good decision for someone charged with a crime of the sort that is not much appreciated by the public. In a bench trial the judge himself will be the trier of fact and will also decide all factual issues.

In most cases some sort of a plea bargain is open for the defendant until the last minute of the trial. The best deals, however, are made at the pre-trial conference, before the prosecutor is forced to go through the trouble of summonsing his witnesses and preparing for the trial.

At the trial the prosecutor usually goes first: he presents his case in full, attempting to prove the defendant's guilt beyond a reasonable doubt. After he rests, the defendant's attorney has a chance to challenge the evidence, disrupt the credibility of the prosecutor's witnesses, and rebut. Then the judge instructs the jury as to what they are supposed to decide. The jury deliberates on the questions posed by the judge, and returns its verdict - in order to convict the defendant, the juror's verdict has to be unanimous.

The deliberation can take from 30 minutes to several days. Pending sentence, the judge may jail the defendant, continue bail, or alter the conditions of release.

What happens after all is over: post-trial dispositions

If the defendant is pronounced not guilty by the jury, the case against him is dismissed.

If the defendant is pronounced guilty, however, not everything is over for him.

The judge holds a sentencing hearing, in which the defendant's attorney can move the court to mitigate the sentence; or, under certain circumstances, move for a not guilty finding notwithstanding the verdict. The defendant's attorney can also try to persuade the judge to give the defendant concurrent sentences - i.e., ask for the terms of punishment to overlap rather than be served one after the other.

Finally, the defendant may decide to appeal, in which case his attorney usually moves the judge to order to stay the execution of the sentence and allow the defendant to remain free until resolution of his appeal. It happens though that the judge refuses to allow the defendant to remain free while the appeal is pending, in which case the defendant will start serving his sentence and concurrently appeal.

Appealing a sentence is a complicated process, not available in every case. Generally, the defendant cannot appeal a factual finding - only an error in the judge's disposition or a procedural mistake. More than 90% cases are affirmed on appeal, which means the defendant's sentence remains the same.

If the defendant looses his appeal or chooses not to go forward with it, his

Post-conviction dispositions

Defendants convicted for less than 2.5 years serve their term in the House of Corrections. Defendants convicted for more than 2 years serve their term in state prison. After serving certain period of time the inmate can go on parole. Parole is similar to probation only with harder terms and more severe consequences of violation.

If the defendant was found incompetent he will go to a mental health facility rather than prison. This is not necessarily a more favorable outcome because conditions in such facilities are similar to that of a prison and upon discharge the defendant may be him with a possibility of a civil commitment hearing, whereupon the prosecutor will attempt to commit the defendant for more time t the same facility claiming he still represents danger to the society.