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It happens all the time. A couple gets into a spat and someone calls the police to complain or a neighbor or passerby dials 911 because they hear an argument, some screaming or a loud noise and think that domestic abuse is involved. If the police or an ambulance is requested, the authorities will come to your home to carefully investigate whether some wrongdoing has occurred. The police always aggressively handle 911 emergency calls and there is a built-in presumption that some violence has taken place. Even if there is a change of heart by the person that dialed 911 the police are mandated to make an arrest and the prosecution will pursue the case with vigor. When the police call you back after an accidental 911 call or hang up they will come to investigate even if you are clear in telling them that nothing has happened and it was just an argument. The call cannot be cancelled and the police must come to the location of the call to speak with the parties involved and they will often arrest someone, usually the male party.

Under the law, the police shall arrest any person the law officer witnesses or has probable cause to believe has violated a restraining order or no-contact order or judgment. Even when there is no such order under Massachusetts law an “arrest shall be the preferred response” where an officer suspects domestic assault and battery even when there is a lack of physical evidence. When the 911 call is made the legal troubles usually begin in earnest. Indeed it has often been said the decent into hell begins when someone calls 911, even when you are innocent or where the other party was the first aggressor. The ramifications of the 911 call are wide and include the destruction of relationships, marriages and problems with family and children. In Massachusetts district court penalties for assault and battery include jail time of up to two and a half years in the house of correction. Conditions of any probation can also include a lengthy and costly batterer’s program, anger management classes or drug and alcohol abuse counseling. Some other problems that may result include the loss of a job with a conviction and your ability to exercise your Second Amendment rights to carry a firearm. Domestic assault cases are often reported in town police blotters causing unfair embarrassment and shame in the community.

Many times 911 calls are made on a Friday night or over the weekend when families are together. The courts are closed and the person arrested will remain in police custody for days until the courts reopen. Fortunately, with the help of a competent and experienced Massachusetts criminal defense attorney, domestic assault cases that begin with a 911 can often be won prior to trial or at the trial stage. Changes in evidence law and other factors have also helped to level the playing field and allow for direct confrontation and cross examination of witnesses and alleged victims when the police are relying simply on a 911 tape to prove their case. So It is unwise and foolish to represent yourself in a domestic assault and battery case or enter into a plea bargain. You must contact an aggressive and knowledgeable 911 Massachusetts criminal defense lawyer right away in order to protect all of your legal rights.
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If you have an outstanding arrest or default warrant from any court in Massachusetts you are likely dealing with unwarranted stress and anxiety regarding possible detention by the police in addition to feelings of uncertainly about how the judge will ultimately respond to your absence from court. You probably also continue to worry needlessly about the underlying criminal case and how that matter will be resolved in court. By contacting an experienced Massachusetts arrest warrant criminal defense lawyer today, you can begin to immediately ease the tension you now feel and end the habit of looking over your shoulder for the rest of your life.

If you have an outstanding Massachusetts arrest warrant and the police stop you for any reason, even a traffic ticket, they will look your name up in their computer system to check you for warrants. Once they obtain this information they will arrest you and detain you until you can be brought before the nearest court. Also, if you are arrested while in another jurisdiction or state, the authorities there can hold you in their jail as a fugitive from justice until the authorities in Massachusetts determine whether or not to dismiss the warrant or extradite you back to Massachusetts to stand trial. Indeed, the courts have been reluctant to release individuals wanted for alleged crimes in another state. Unfortunately, the extradition process can be sloppy and time consuming and defendants are often subjected to lengthy detention while the two different jurisdictions attempt to coordinate the transfer of an individual back to the demanding state. Consequently, defendants often end up being punished more than they would have been if they simply appeared in court with a lawyer to remove the default and resolve the underlying criminal matter.

Old court defaults or arrest warrants can also cause you problems in other ways. If you have an old arrest warrant, the Registry of Motor Vehicles in your home state can prevent you from either obtaining or renewing your driver’s license due an arrest warrant still outstanding in Massachusetts. It is much more effective to make arrangements to walk into court with an experienced private attorney to remove an arrest or default warrant rather than having the police bring you in Monday morning after a Friday night arrest and detention wearing the same clothes.
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There is a distinction that is made under Massachusetts law between statutory disqualification and spousal privilege under G.L. Ch. 233, s. 20. The spousal disqualification applies in all actions, civil and criminal, and regardless of whether one of the spouses is a party or not; the spousal privilege applies only in criminal cases where the spouse is the defendant. The issue of spousal disqualification, sometimes confused with spousal privilege was raised recently in a federal case in Massachusetts, by the criminal defense lawyer for Patrice Tierney, the wife of U.S. Rep. John Tierney, who was convicted last year of assisting her brother in filing false tax returns. Patrice Tierney is a witness in the case. This case was highlighted in a Boston Herald article penned by reporter Laurel Sweet who contacted the Law Office of Patrick J. Murphy and interviewed Boston criminal defense attorney Patrick J. Murphy. Attorney Murphy has written about spousal privilege and disqualification issues in Massachusetts. In response to a specific question Attorney Murphy was quoted in the Boston Herald and he stated “[g]enerally, any communications between husband and wife would be covered.”

Mrs. Tierney was expected to be called as a witness in the current case against her brother, Daniel, but so far has refused to meet with government investigators who want to ask her about conversations she allegedly had with her husband, who has already denied any knowledge about his brother-in-law’s alleged illegal gambling and money laundering operation. The case is also interesting because Mr. Tierney is also a lawyer and the prosecutor wants to ask Mrs. Tierney whether she consulted with him about the legality of her brother’s alleged gambling activities. This raises the issue, if the conversation did occur, as to whether it would be covered by the attorney/client privilege.
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Are you facing a probation surrender hearing in any Massachusetts court because you were arrested or charged with a new criminal offense? Did your probation officer give you notice to attend an initial probation violation hearing because you allegedly violated the law or a general or specific term included in your probation contract or the conditions of a continuance without a finding (C.W.O.F.)? If so, it is crucial to hire an experienced Massachusetts probation violation defense lawyer right away to avoid being found in violation of your probation obligations.

If you find yourself before the court on an alleged probation violation, the District, Municipal or Superior Court judge has the discretion to impose a bail on you or hold you without bail while you await your final surrender or C.W.O.F. revocation hearing if he or she finds probable cause that you have been arrested or charged with a new criminal offense or that you have not adhered to your probation contract terms. This is the first stage of the probation violation hearing. If you are held without bail that action cannot be reviewed by the Superior Court.

At the final surrender hearing (the second stage of the process) the probation department officer, sometimes assisted by the prosecutor, will present all evidence of any violations usually through witness testimony and documentary evidence. The standard of proof at the final hearing is lower than a trial. The probation department need only prove a violation has occurred by a preponderance of the evidence. The defendant is allowed to testify at the hearing but is not required to testify. The role of the experience defense counsel at both stages is very important to the probationer.
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Yesterday, twenty-four people were arrested in Boston for the crime of trespass in Boston, Massachusetts. Thousands of protesters congregated near the offices of Bank of America to protest what they believe to be unfair bank foreclosure practices by BOA. Those arrested spent several hours at the police station being booked and processed for later arraignment in court. Although a law enforcement source was quoted in the Boston Herald that the individuals arrested are not likely to face “serious trouble” the crime of trespass is a misdemeanor property offense punishable by a fine of $100.00 or up to thirty days of incarceration, or both. A trespass arrest and conviction, under current law, will remain on a person’s criminal record history (CORI) and would be visible to potential employers. Although the crime of trespass is a relatively minor offense when compared to other property crimes, it is still taken seriously by prosecutors and the resolution of the case depends upon a number of factors including whether or not you have a prior criminal record for trespass or other crimes. Therefore, it is important to contact an experienced Boston, Massachusetts criminal defense trespass attorney right away to defend the case. An knowledgeable and experienced Massachusetts criminal defense lawyer handling a trespass case will also explore pretrial disposition options for the client that may include dismissal of the charges prior to arraignment. Under such a resolution, the charge would not be listed on the defendant’s CORI.

Under Massachusetts General Laws Chapter 266, Section 120, in order for a person to be found guilty of trespass the prosecutor must prove beyond a reasonable doubt that he or she, without right, entered or remained in a building or on the land of another. The prosecutor must also prove by the same high standard that the individual was forbidden to enter or to remain on the property by a person in lawful control of the premises either directly or by means of a posted no trespass notice. The first part is met by evidence that the individual either entered, in this case, on the bank’s premises without permission, or failed to leave the bank after being requested to do so. If there was a posted no trespass notice at the bank the prosecutor is not required to prove that the defendant actually saw a notice prohibiting trespassing. The Commonwealth is only required to prove that there was a reasonably distinct notice forbidding trespass, and that it was posted in a reasonably suitable place so that a reasonably careful trespasser would see it. If the bank did not have a posted notice there must be proof that the owner directly prohibited entry to the specific individual in question.
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Many prosecutors in Massachusetts believe that potential jurors who watch crime television programs like CSI are prone to wrongfully acquit otherwise guilty defendants when little or no scientific evidence has been presented by them in a criminal case. Massachusetts prosecutors claim that this result which has been called the “CSI effect”, can be traced to the CSI television series and other similar shows. However, there is no solid evidence that the CSI effect actually exists. The complaints about the CSI effect, usually in the form of prosecutor interviews after trial or some media stories, do not amount to solid empirical evidence on the issue. A skilled Massachusetts criminal defense attorney will take advantage of the fact that certain scientific tests were not performed on evidence and arguments and inferences can be made from the lack of scientific testing. Jury instructions will also be requested by the defense regarding the lack of investigation and testing.

Yesterday, the Massachusetts Supreme Judicial Court addressed the CSI effect by deciding that potential jurors can now be questioned by prosecutors before they are seated for trial about whether or not they would require indisputable scientific proof in order to find someone guilty of a crime. In upholding the conviction of a defendant charged with murder in a 2003 homicide case, the court rejected the defense argument that the prosecutor’s CSI-related questions prejudiced the jury by suggesting that they should ignore a lack of scientific proof. The defense claimed that such questioning results in dismissing potential jurors that would require more scientific evidence in case. The court stated that the questions, when tailored properly, can ensure that jurors on a given case are able to decide guilt or innocence without any bias. The court also stated that the questions did not favor the prosecution by selecting jurors who were likely to convict a defendant with limited or circumstantial evidence presented by the state.
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Hiring a qualified and experienced Boston, Massachusetts criminal defense attorney is very important and should be the first step any defendant should take when responding to a summons to appear before a clerk magistrate in any Massachusetts court for potential criminal charges. The clerk magistrate is the court official that will determine whether or not an application for complaint against you will be allowed or denied. If the application is allowed by the clerk magistrate, a criminal complaint will then issue and the criminal process against you will start and your case will be scheduled for an arraignment before a judge. If the application is denied this will most likely end the matter although the aggrieved party seeking issuance of a criminal complaint may still appeal a denial and request a de novo or new hearing before the judge for reconsideration of the application.

The standard for issuance of a criminal complaint is very low and the party seeking the complaint against a person need only establish probable cause that a crime occurred. This is different and much lower that the normal prosecution burden of proof standard at a criminal trial which is proof beyond a reasonable doubt. A clerk magistrate is in control of the administration of the hearing. He or she will often allow a defendant’s private attorney to question all complaining witnesses. The defense lawyer’s advocacy at the clerk’s hearing can often make or break a case and a skilled criminal defense lawyer can often convince the clerk magistrate to deny the complaint after questioning the witnesses and making a strong legal argument. Additionally, an experienced criminal defense attorney may be able to work out an agreement to avoid a complaint by persuading the clerk to continue the application for complaint for a period of time and if no other trouble between the parties occurs, the clerk will not issue the complaint. The bottom line is that defendants must hire competent and experienced counsel to aggressively defend their legal interests at the hearing to protect them from having a criminal record and all the negative consequences that flow from having a criminal conviction.
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On September 7, 2011 an 82-year-old man allegedly shot and wounded a man and a woman from the second floor window of his home in Revere, Massachusetts. The elderly man was subsequently arraigned on serious criminal charges of assault with intent to murder and assault and battery with a dangerous weapon. However, despite the nature of the charges filed by police and the fact that he will be prosecuted, the judge released the man on personal recognizance (his promise to appear in court on all future dates). The incident was reported in the Boston Globe.

The facts of the case as alleged in the Revere police report suggest that the pair came to the defendant’s home earlier in an attempt to get in the home and that the defendant had called the police to report the incident. A window was allegedly broken during the incident by the woman. Presently, officials are still trying to determine if they will file charges against the pair under the circumstances. So how does the man get released just on his promise to appear back in court on such serious charges, especially where he allegedly said to the police that “he screwed up and shot them”? What does the law say about the use of deadly force under such circumstances?

Under M.G.L. c. 278 s. 8A, when someone is shot or killed by an occupant of a dwelling it is a defense that the occupant was in his home at the time of the offense and that he acted in the reasonable belief that the person(s) were about to inflict great bodily injury or death upon him or another person lawfully in the home, and that he used reasonable means to defend himself or the other person lawfully in the home. This is known as the “Castle Doctrine.” Under the law there is no duty on the occupant to retreat from such person(s) unlawfully in the dwelling. Although there are many other considerations under the bail statute in Massachusetts for a judge to consider in releasing a person accused of crime, I believe that the law of self-defense in the home was a controlling factor in the judge’s decision to release him simply on his promise to appear back in court when scheduled.
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This article will discuss the different types of standard field sobriety tests that are currently being used by law enforcement officials in Massachusetts for people suspected of operating a motor vehicle under the influence of alcohol or drugs (OUI/DWI), commonly referred to as drunk driving. The tests used by police officers out in the field in traffic stops consist mainly of the walk-and-turn test, the one-leg stand test, alcohol breath test, and horizontal gaze nystagmus test. The results of these tests are used because government officials at the National Highway Traffic Safety Administration learned decades ago that they have been reliable indicators for distinguishing blood alcohol content beyond the legal limit for driving, assuming that the tests were administered in a standardized manner by a properly trained police officer.

The walk-and-turn test is divided up into two areas. First, there is an instruction phase where the individual detained is told to keep the arms at his or her side, and to put his or her feet heel to toe. The person is then instructed to listen to the directions as the officer informs them to take nine heal to toe steps, turn in a certain manner, then take another nine heal to toe steps back. The second phase is the physical test itself. Scoring by the officer is performed based upon certain cues including but not limited to whether the person lost balance, started too soon, stopped while walking, and touched heal to toe, etc. During this time the officer is looking for two or more cues which would lead to the probability that they where operating their motor vehicle while intoxicated.

The one-leg stand is a test that also has an instructional part then a balancing and counting part. During the instructional part, the police officer asks the person to stand with feet together, arms at the side and to listen. The person is told to raise one leg about six inches off the ground with toes pointed outward while keeping both legs straight. The person is then instructed to count out loud until told to stop. During this time, the person must follow the instructions as given by the officer. There are four specific cues that the officer looks for during this test: any swaying while balancing, using the arms to balance, hopping, or putting a foot down during the test. If you put your foot down three or more times during the thirty-second period the police consider you unable to complete the test. If you have two or more cues you also fail the test.
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The United States Supreme Court will decide in its upcoming term the issue of whether or not a person entering a jail has a right to be free from strip search absent additional facts or individualized reasonable suspicion justifying the search. The Supreme Court has already held that the Fourth Amendment right to be free from unreasonable searches applies to strip searches and it held that there must be a greater justification from officials for strip searches than less intrusive searches. In Safford v. Redding, the Supreme Court held that public school officials violated the Fourth Amendment rights of a young teenager while at school when they searched her for drugs and subjected her to a strip search without any facts suggesting that drugs were hidden under her clothing.

This begs the question in a case where a defendant has been arrested by police in Massachusetts: What is the current law here and does it afford greater individual protections than what the United States Supreme Court has already recognized under the Fourth Amendment? In Massachusetts, searches and seizures of individuals by the police may be conducted at the time of an arrest or at a later point when the defendant arrives a the place of detention. However, for a strip search to be constitutionally permissible, the police must have probable cause to believe that the individual possesses concealed illegal contraband on his person or under clothing that would not be discovered by a routine pat down frisk that is usually performed upon an arrest. See Commonwealth v. Thomas, 429 Mass. 403, 409 (1999). What is probable cause? Probable cause is said to have been met when the facts and circumstances within the police officers knowledge and which they had reasonably trustworthy information are sufficient to “warrant a man of reasonable caution in the belief that an offense has been or is being committed.” See Commonwealth v. Hason, 387 Mass. 169, 174 (1982)

Therefore, the law in Massachusetts requires that there be probable cause to believe that the items sought by the police are actually related to the criminal activity that they are investigating and they can be reasonably expected to be found in the place searched based upon the known facts and circumstances at the time. See Commonwealth v. Truax, 397 Mass. 174, 178 (1986). The Massachusetts standard applying the probable cause analysis to strip searches and visual body cavity searches is greater than the Supreme Court Fourth Amendment analysis, which requires only that police have “reasonable suspicion” before conducting these intrusive searches.
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