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Criminal Investigation
In some instances, a criminal case begins with the opening of an investigation. Law Enforcement Officials, such as the Police, a Prosecutors Office, or other Agencies, like the F.B.I., will receive reports or make observations that lead them to open a criminal investigation.
Generally, the targets of an investigation are unaware that an investigation is proceeding and the information these agencies obtain at this stage, is confidential.
Occasionally, however, a person may know that they have been targeted, and are being investigated. Officers or Agents may request to speak to the person, the person may be asked to produce documents, or even be ordered to testify at a proceeding, like a Grand Jury.
The law provides every person with the right to be represented at each stage of a criminal proceeding, including the investigation stage. It is extremely important for the person to obtain assistance from a qualified criminal defense lawyer, as soon as they are aware of the investigation, because legal representation at an early point can have a significant impact in setting the strategy for the criminal defense and ultimately the success of the case.
Clerk Magistrate Hearing
In Massachusetts, some criminal proceedings are initiated by the filing of an application for a criminal complaint with the office of the Clerk Magistrate in a District Court.
An application for a criminal complaint may be filed by a police officer or by an individual who believes they were the victim of a crime. Once an application has been filed, the court will notify the person who allegedly committed the crime, that a Clerk Magistrate Hearing will be held to determine if there is sufficient evidence (probable cause) for a criminal charge.
At a Clerk Magistrate Hearing, a Clerk Magistrate or an Assistant Magistrate, will hear testimony and review evidence. This is a critical stage in a criminal proceeding which may allow the accused to avoid criminal charges, and it is therefore, highly recommended to obtain the assistance of an experienced criminal lawyer.
Arrest
Oftentimes a criminal proceeding begins with an arrest. Police or investigators may have made observations or have received reports that a crime has been committed by a particular person or group of persons. If this is sufficient to establish “Probable Cause” then they are permitted to make an arrest.
Generally, officers must obtain an Arrest Warrant (an Order of Arrest from a Court) before they arrest a person, but there are many circumstances, in which a person may be arrested without a warrant, like in instances that are urgent or dangerous, or if it is otherwise permitted by law. [Massachusetts law provides for a number of situations which allow for an arrest without a warrant in M.G.L. Chapter 276 § 76]
The standard or basis for an arrest or a warrant is “Probable Cause.” That means that in order to start a criminal case in Court the government has to have a certain amount of evidence against the person. The amount of evidence to reach “Probable Cause” has been described as, evidence sufficient for a reasonable person to believe that a particular “suspect” has committed a particular crime (See generally Beck v. Ohio, 379 U.S. 89, 91 (1964)). There is a great deal of debate about how much and what type of evidence is acceptable for an arrest, and this is an issue that should be carefully reviewed by an experienced criminal defense attorney in every case.
Arraignment
Generally, the first time a person / defendant is in Court after a criminal charge has been filed against them, it is for an Arraignment. An Arraignment is when the Court formally announces the criminal charges and the defendant is permitted to enter a response or a plea of Not Guilty.
Bail Hearings
When a person is arrested or charged with a crime, one of the first steps in the process is for the court to decide whether the individual should be detained (held in custody) while the case is pending, or released on personal recognizance, which allows release without posting bail.
Bail is money deposited with the court to ensure that the person returns for future court appearances.
The bail hearing is one of the most important stages in a criminal case. In most situations, it is far more difficult to prepare and defend a case if the defendant remains in jail. For this reason, having strong representation from an experienced criminal defense attorney at this stage is essential.
There is also content on this page: Boston Arraignment and Bail Lawyer
Motions to Dismiss and Motions to Suppress
Motion to Dismiss
The government or prosecutor is required to have some evidence to prove the defendant has committed each element of a crime. For example, in most jurisdictions a crime of theft requires evidence that the defendant; 1. unlawfully or without proper permission, 2. took the property of another, and 3. with the intent to permanently deprive the owner of their property. If the government does not have sufficient evidence of all three elements then the crime charge may be dismissed.
A Motion to Dismiss, or a formal request to the court to dismiss the charges may be an effective way to stop a criminal case in its initial stage. The government is not required to have evidence “beyond a reasonable doubt” prior to trial but they are required to have sufficient evidence to meet the “Probable Cause” standard set by law. If the government does not have enough evidence then the Court should terminate the proceedings and dismiss the criminal charges.
Motion to Suppress
The government or prosecution is required to have evidence to support the criminal charges it files against a defendant in Court. Sometimes the way the police, prosecutors or agents obtain the evidence is in violation of the law. For example, the Constitution requires that a defendant be advised that they have the right to remain silent if the government is interrogating the defendant while in custody. If the defendant does not receive this warning, then the statements that they make, may not be used in Court. To prevent the government from using unlawfully obtained statements the defendant’s attorney can file a Motion to Suppress, to have those statements “thrown out” or excluded. If the Court suppresses or “throws out” the evidence, then it cannot be used in that criminal case.
A Motion to Suppress may be an effective way to win a criminal case before trial, if the government loses evidence it needs to prove the charges. Even if the government prosecution continues to trial, the loss of important evidence may make the case easier for the defendant to win.
Our system of justice does not want a criminal conviction to be based on improperly obtained evidence, as this affects the trustworthiness of the evidence and the system, and could lead to innocent people being convicted with unreliable evidence. As Benjamin Franklin once said: “it is better 100 guilty Persons should escape than that one innocent Person should suffer.” The police, prosecutors and agents are required to respect all elements of the law and the Constitutional rights of all individuals, even those suspected of a crime.
Plea Bargain / Negotiation
All defendants charged with a crime have the right to a trial but most cases are resolved before a trial begins. Oftentimes the consequences that a criminal defendant faces after a trial are more severe than those they face before trial.
Effective negotiation with the prosecutors, police or investigators may result in the best resolution of the case. There are times that an agreement with the government can even result in the criminal charges being dismissed or the police not filing the charges in Court to begin with. It is essential to understand the facts of the case, the background of the defendant, the law and the potential consequences, in order to properly negotiate a resolution to a criminal matter.
Plea Bargains often require the defendant to openly admit responsibility for the criminal conduct and to accept some type of punishment, including fines, probation and in some cases even a jail sentence.
There are a number of options that are generally available. In Massachusetts for example, a criminal defendant may agree to a term of “Pre-Trial Probation” which does not require them to admit they engaged in any criminal conduct but does require that they serve a term of probation. Massachusetts law also allows a case to be resolved with a “Guilty-Filed” disposition, in which a Guilty finding is entered by the Court but no punishment is ordered.
Not all cases have to go to trial for the defendant to “win” their case and an experienced criminal defense lawyer understands how to achieve this.
Trial / Bench Trial or Jury Trial in a Criminal Case
Bench Trial
All criminal defendants have a right to a trial and that trial can be before a judge. The judge will hear the evidence, make all the necessary rulings of law, and then make a decision whether the defendant is Guilty or Not Guilty.
The fundamental issue with a Bench Trial is that the government needs only to convince one person that the defendant is guilty, the judge, instead of all members of the jury, in the context of a jury trial.
There are a number of advantages that a Bench Trial may have for a defendant. For example, a bench trial is generally faster, which can reduce the amount of time that the charges are open against the defendant. If the government does not have sufficient evidence or witnesses, having a quick trial date may result in a victory for the defendant, which would not have happened if the government had more time to gather evidence and find witnesses while waiting for a jury trial date.
Some criminal cases involve allegations that are difficult for the average person to hear and remain impartial and objective, and therefore the defendant may elect to have the case decided by a Judge.
The decision to have a Bench Trial is extremely important and a careful evaluation and analysis of the case by a knowledgeable criminal defense lawyer is required in order to reach the most appropriate decision for the specific situation.
Jury Trial in a Criminal Case
All criminal defendants have a right to a trial before a jury, a right that is provided for in the U.S. Constitution. This is one of the most important and fundamental rights within our criminal justice system.
While the presiding judge will make all the necessary rulings of law, it is the members of the jury that will hear the evidence and then make the decision whether the defendant is Guilty or Not Guilty. The decision of the jury must be unanimous, which means the government has to convince all members of the jury that the defendant is guilty.
Most cases never reach a jury. It takes a long time, even with the “speedy trial” rules for a case to reach that point. Preparation is usually lengthy and intense. It is a procedure that generally involves the testimony of witnesses, through both direct examination and cross-examination, as well as the introduction of physical evidence. There are opportunities for opening and closing arguments by the prosecution and defense attorneys and instructions provided by the judge.
Whenever a criminal charge is filed in Court, the chance that a jury may hear the case exists, and that possibility impacts virtually all strategic decisions that are made throughout each and every stage of a case. If it is properly managed by the judiciary, meaning only evidence gathered lawfully is allowed, the members of the jury are a fair representation of the community and the defendant’s peers. A jury trial is what provides Justice under American law.
Sentencing Representation in a Criminal Trial
Sentencing is one of the most important elements of the American criminal justice system. It should provide not only an opportunity for punishment but also for rehabilitation and even restitution, if appropriate.
A proper sentence, unless the criminal charge carries a “mandatory sentence,” should take into consideration a great number of factors, including the facts of the incident, the damage or loss that occurred, the background of the defendant, the potential for future harm and the best method for rehabilitation.
A proper sentence can provide a victim with restitution and the defendant with the services that they need to overcome the underlying issues that were the cause of the conduct. A sentence does not have to necessarily be a loss or an end but it can be the beginning of an improved and more productive future.
Mandatory sentences which became popular in the United States during the 1980s and are common for drug offenses and “repeat offenders”, removed all analysis and evaluation from the court and replaced it with a rigid pre-determined sentence structure that gave no consideration to the individuals or the circumstances of the crime. These sentences have led to prolonged incarceration and have largely eliminated the effects that rehabilitation would have otherwise had on the defendants. Recently, state governments and to a degree the Federal government have begun to recognize the detrimental effect of mandatory sentences and hopefully this will lead to their reduction or maybe even their elimination from our justice system.
Probation Violation Hearing
Probation is a court-ordered period of supervision for a criminal defendant. It serves both as a form of punishment, by restricting a person’s liberty, and as a rehabilitative tool, helping ensure that the defendant follows certain conditions such as maintaining employment or avoiding drug use.
In Massachusetts, probation may be imposed before a case is concluded (pretrial) or after a conviction or an admission to sufficient facts (post-conviction), also referred as a continuance without a finding (CWOF).
A violation of probation occurs when a defendant fails to comply with one or more court-ordered conditions. If this happens, the consequences may include being detained until trial (for pretrial probation) or being sentenced to jail or prison (for post-conviction probation).
Defendants in Massachusetts have the right to contest an alleged probation violation during a court hearing. At this hearing, they may present evidence, legal arguments, and alternative resolutions. Nevertheless, the burden of proof required to find a violation at a probation hearing is lower than the standard used in a criminal trial.
A probation violation hearing can rely on hearsay and does not require evidence beyond a reasonable doubt, so it is easier for a probation officer to prove a defendant violated his probation than for a prosecutor to prove a defendant is guilty.
Representation by criminal defense counsel can be critical to make sure that a defendant’s rights are adequately protected. Probation can give a defendant a great opportunity to rehabilitate and avoid other problems like incarceration, but if it is not managed well the consequences can be severe.
Vacating a Criminal Conviction
Criminal convictions can have serious and far-reaching consequences for a defendant. Often, these consequences are not fully understood by the defendant at the time the judgment of conviction is entered. The impact of a conviction can range from losing a professional license or paying a fine to serving jail time or even facing deportation or removal from the United States.
In Massachusetts, Rule 30 of the Massachusetts Rules of Criminal Procedure governs motions filed by a defendant to vacate (invalidate) a conviction. There are several legal grounds for vacating a conviction, including reasons specifically related to immigration consequences.
There are two common procedures for requesting that a court vacate a conviction based on a defendant’s immigration status:
- Failure to Give Required Immigration Warnings:
Under Massachusetts General Laws, Chapter 278 § 29D, a judge must give certain immigration warnings before accepting a guilty plea or an “admission to sufficient facts.” If these warnings were not provided, the conviction may be vacated. - Ineffective Assistance of Counsel:
Based on the U.S. Supreme Court case Padilla v. Kentucky and the Massachusetts case Commonwealth v. Clarke, a conviction may be vacated if the defense attorney failed to properly advise the defendant about the immigration consequences of the plea, gave incorrect advice, or if the defendant had a valid defense that was not pursued.
For example, If an immigrant was charged with domestic violence and accepted a plea because their attorney told them that they only needed to complete 12 months of probation without “getting in trouble,” they might have grounds to vacate the plea. This is especially true if the lawyer failed to explain that the conviction could lead to deportation, and if there was evidence or a witness that could have supported the immigrant’s defense at trial.
There are many factors to consider in connection to vacating a conviction, including the likelihood of success for the case in the future. If a motion to vacate is successful, the conviction is eliminated, but not the charges and the case is returned to the court for trial. Therefore, it is critical to have an experienced criminal defense lawyer review your case and prepare a good defense strategy if you are going to seek to have your conviction vacated.
