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 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 the success of the defense.
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 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
Often times 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 provide 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 for 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 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 someone is arrested or charged, one of the first procedures is for the court to determine if the individual should be detained (held in custody) while the criminal court adjudicates the case; or if they should be released on personal recognizance which allows the person to be released from custody without bail (money deposited with the court to ensure the person will return to court).
The bail hearing is one of the most critical stages of a criminal case because in most instances, it is much more difficult to defend a case if the defendant is in jail. It is vital therefore to have strong representation from a qualified criminal defense lawyer at this point.
There is also content on this page: Boston Arraignment and Bail Lawyer [2]
Motions to Dismiss and Motions to Suppress
Motion to Dismiss
The government 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, 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 charges.
Motion to Suppress
The government 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 this type of unlawfully obtained statement the defendant’s attorney can file a Motion to Suppress, to have the statement “thrown out.” 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 a trial, if the government loses evidence it needs to prove the charges. Even if the government may continue 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 could lead to innocent people being convicted with untrustworthy 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 persons, 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. Often times the consequences that a criminal defendant faces after a trial are more severe than those they face before.
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.
Pleas 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 a great 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 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 attorney understands how to achieve this.
Trial / Bench Trial or Jury Trial
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 need only convince one person that the defendant is guilty, the judge, instead of in the context of a jury trial which requires the government to convince all members of the jury that the defendant is guilty.
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 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 is required in order to reach the most appropriate decision for the specific situation.
Jury Trial
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 a 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, etc., a jury trial is what provides Justice under American law.
Sentencing Representation
Sentencing is one of the most important elements of our 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 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 issue that was the cause of the conduct. It 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.
Probation Violation Hearing
Probation is the lawfully imposed oversight of a criminal defendant by a Court for a period of time. Probation is used by criminal courts as both, punishment (a restriction of one´s liberty) as well as a tool for rehabilitation (i.e. to ensure a criminal defendant is employed or is not using drugs).
In Massachusetts, probation may be imposed both, pretrial (before a case is over) and/or post- conviction (after a judgement of guilt or admission to facts [continuance without a finding]).
A violation of probation occurs when a criminal defendant fails to comply with one of the terms ordered by the court. A violation of probation may result in the defendant being detained until the trial is over (pretrial) or sentenced to a period of incarceration (post conviction).
In Massachusetts, a criminal defendant has the right to contest the alleged probation violation during a hearing before the court. During the hearing, the defendant may present evidence, legal arguments and alternative resolutions. However, the burden of proof that is used by the court to determine if a violation occurred is lower at a Probation Violation hearing than at 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 jail, but if it is not managed well the consequences can be severe.
Vacating a Criminal Conviction
Criminal convictions generally have serious negative consequences for a criminal defendant. Sometimes these consequences are not known or understood by the defendant when the judgement of conviction is entered into the court record.
These consequences range from the loss of a license or the payment of a fine, to periods of incarceration or even deportation / removal from the United States.
In Massachusetts, rule 30 of the rules of Criminal Procedure, governs motions by a criminal defendant to invalidate (vacate) a conviction. There are a number of basis through which criminal convictions can be vacated, including ones which are specifically immigration related.
There are two common procedures for requesting the court to vacate (cancel) a conviction because of the defendant´s immigration status.
- The first is a claim that the alien warnings required by the Massachusetts General Laws, chapter 278 § 29D, were not issued by the judge at the time the defendant pled guilty or made an “admission of sufficient facts”
- The second is a claim under the law established by a Supreme Court case, Padilla v Kentucky, and a Massachusetts case, Commonwealth v Clarke. These cases have established the basis to vacate a conviction if the defendant was not provided proper advice about the immigration consequences of the conviction by his defense attorney or if the advice provided was improper, and if the defendant had a defense to the charge that was not pursued.
For example, if an immigrant was charged with a crime of domestic violence and accepted a plea because their lawyer told them that all they had to do was complete probation by “not getting in trouble for 12 months”, so the immigrant did not go to trial even though there was a witness who may have helped their defense, then this person may be able to get that plea vacated (cancelled).
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 attorney review your case and prepare a good defense strategy if you are going to seek to have your conviction vacated.