Boston Criminal Defense Lawyer Blog

The Defense of Self-Defense in Massachusetts Criminal Law

Published on: July 19, 2011 | by Patrick J. Murphy, Esq.

If you have been charged with a crime of violence, such as assault and battery, in a Massachusetts court you may be entitled to raise the affirmative defense of self-defense to help win your case. In Massachusetts, a defendant is entitled to have a jury instructed on self-defense “if the evidence, viewed in its light most favorable to him is sufficient to raise the issue.” Commonwealth v. Harrington, 379 Mass. 446 (1980).

If there is evidence of self-defense the prosecutor must prove beyond a reasonable doubt that you did not act in self-defense. If the prosecutor has not proved beyond a reasonable doubt that you did not act in self-defense and that the force you used to defend yourself was not unreasonable and excessive, then the jury must find you not guilty of the crime charged. In other words, if the jury has a reasonable doubt whether or not you acted in self-defense and that the force you used was not unreasonable and excessive they must acquit you.

In order to determine the reasonableness of the force used by a defendant the jury can consider such matters as the size and strength of the alleged victim and the defendant, the type of weapons used, if any, by either party and whether or not there was a means of retreat or escape available to the defendant. Also, the jury can consider evidence of specific acts of violence or threats of violence perpetrated by the alleged victim if the defendant knew of any instances of violent acts or threats. Finally, the jury can consider evidence of the victim’s reputation as a violent individual if the defendant knew of such a reputation. Commonwealth v. Pidge, 400 Mass. 350, 353 (1987); Commonwealth v. Fontes, 396 Mass. 733, 735 (1986); Commonwealth v. Edmonds, 365 Mass. 496, 501 (1974).
Continue reading

Immigrant Crime and Homeland Security’s Secure Communities Task Force in Boston, Massachusetts

Published on: July 11, 2011 | by Patrick J. Murphy, Esq.

The federal government says that it has made it a priority to protect the communities it serves by administering the Secure Communities program which they argued was a simple and common sense way to carry out the goal and priorities of U.S. Immigration and Customs Enforcement (ICE) by removing criminal aliens that pose a threat to public safety of the United States.

When it comes to enforcing our nation’s immigration laws, U.S. Immigration and Custom Enforcement (ICE), the Federal Bureau of Investigation (FBI) and state and local law enforcement share information that they say helps locate and identify only those people that are criminal aliens. Our state and local law enforcement officials in Massachusetts had been cooperating with these agencies by sharing certain identifying information and fingerprints to locate immigrant aliens charged with crimes in Massachusetts. When immigration detainers have been lodged against alleged criminal aliens in our courts the government can hold people in jail and start deportation proceedings against them.

Yesterday, Boston Mayor Thomas M. Menino announced in a letter to federal officials that he will consider withdrawing the Boston Police from the Secure Communities program because ICE has been heavy-handed and has not limited its deportations to only those immigrants involved in serious crimes like rape and murder.

The Obama administration has already heard so much criticism from members of his Democratic base and others in Congress that it has considered changing or altering the way the program is administered. The outrage stems from the fact that immigrant aliens, many of whom are hard working and peacefully living in this country, are being detained and deported at an alarming rate. Many have only had a minor brush with the law but are being needlessly detained by the government. Also, victims of domestic abuse, witnesses, and people who were arrested but not convicted are being negatively affected by the Secure Communities Program.
Continue reading

Domestic Abuse Law in Massachusetts and Use of the Spousal Privilege to Preserve the Marital Relationship

Published on: July 6, 2011 | by Patrick J. Murphy, Esq.

You have just gotten into an loud argument or minor altercation with your spouse and someone calls 911 and the police come and arrest you and take you into custody away from your family. There are no witnesses to the alleged incident except for you and your spouse. Nevertheless, the police make an arrest on the spot because they believe domestic violence is involved. The police have somehow determined at the scene that a domestic assault and battery just occurred and someone is the responsible party. What do you do in such a circumstance and how can you protect and preserve your private marital relationship after such an event? The police are there to investigate crime and to protect individuals but often times their hunch can be wrong and this can be devastating to the family unit.

The spousal privilege law in Massachusetts states that a spouse can not be forced by the prosecution to give testimony in a trial or other criminal hearing brought against the other spouse. The privilege is set forth in G. L. c. 233, § 20. The spousal privilege may only be claimed by the witness spouse and it does not apply to civil proceedings or in any prosecution for non-payment of support, child incest, child abuse or neglect of parental responsibilities.

In order to use the privilege you must be married to the other party that is subject to a criminal prosecution. The privilege is valid even though the spouse was not married at the time of the incident that was the reason for a criminal prosecution or trial. (See Commonwealth v. DiPietro, 373 Mass. 369, 382, 367 N.E.2d 811, 819 (1977)). However, there is no common-law privilege, like the spousal privilege, applicable to unmarried individuals living together. (See Commonwealth v. Diaz, 422 Mass. 269, 274, 661 N.E.2d 1326, 1329 (1996)).
Continue reading

Bail Procedure in Massachusetts: The Presumption is Personal Recognizance

Published on: June 29, 2011 | by Patrick J. Murphy, Esq.

Under M.G.L. c. 276 § 58, bail is made the exception to the release of an individual on personal recognizance. In other words, there is a presumption in the law that someone arrested should be released upon their promise to appear back in court on a given date. The exception to the rule is in capital or murder cases. If you have been arrested you must be brought before the court promptly for an arraignment or formal notification of the charge and to determine whether bail is necessary.

Under the bail statute, the District or Municipal Court justice will make a bail determination by taking into account:

“the nature and circumstances of the offense charged, the potential penalty the person faces, the person’s family ties, financial resources, employment record and history of mental illness, his reputation in the community, his record of convictions, if any, any illegal drug distribution or present drug dependency, any flight to avoid prosecution or fraudulent use of an alias or false identification, any failure to appear at any court proceeding to answer to an offense, whether the acts involve abuse. . . or violation of a temporary or permanent restraining order . . . or whether the person has any history of [such] orders . . . and whether he is on release pending sentence or appeal for any conviciton.”

A judge may also set special conditions of release restricting a person from having contact with an alleged victim of the crime and any witness to the case. A judge also has inherent authority to revoke bail and hold a defendant for breach of any imposed restriction, including picking up any new offenses while awaiting trial on the original offense. See Paquette v. Commonwealth, 440 Mass. 121, 128 (2003).
Continue reading

Criminal Law Defense of Entrapment in Massachusetts

Published on: June 23, 2011 | by Patrick J. Murphy, Esq.

Entrapment has been defined as the act of officers or agents of the government in inducing a person to commit a crime not contemplated by him, for the purpose of instituting a criminal prosecution against him. According to the generally accepted view, a law enforcement official, or an undercover agent acting in cooperation with such an official, perpetrates an entrapment when, for the purpose of obtaining evidence of a crime, he originates the idea of the crime and then induces another person to engage in conduct constituting such a crime when the other person is not otherwise disposed to do so. Sorrells v. U.S., 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413.

In order to use the entrapment defense in Massachusetts, some evidence of inducement that goes beyond a mere solicitation by a police officer or government agent must be presented at the criminal trial by the defense. Entrapment is a defense to be raised only at trial and is not presented by way of pretrial motion to dismiss. Once raised properly, the burden is then on the prosecutor to prove beyond a reasonable doubt that the defendant was initially predisposed to commit the crime and was therefore “ready and willing to commit the crime whenever the opportunity might be afforded.” Commonwealth_v_Doyle_67_Mass_App_Ct_846_2006.

If the defendant on trial has a prior criminal history of distribution of drugs or possession with intent to distribute drugs then that history can be used by the prosecution to show that the person was already predisposed to commit the offense and thereby negate the defense of entrapment. See Commonwealth v. Vargas, 417 Mass. 792, 632 N.E.2d 1223 (1994).
Continue reading

Miranda Rights and the Juvenile Client in Massachusetts: A Child’s Age Now A Relevant Factor In The Miranda Custody Analysis

Published on: June 17, 2011 | by Patrick J. Murphy, Esq.

The Fifth Amendment to the United States Constitution mandates that no person shall be compelled in any criminal proceeding to be a witness against himself. The Supreme Court in Miranda v. Arizona understood that interrogation in some custodial circumstances is inherently coercive and ruled that statements made under certain circumstances are inadmissible unless a suspect is clearly informed of his Miranda rights and has chosen to waive those rights. Many are familiar with the Miranda Rule and its application over the years but how has the rule been applied to the juvenile client in the past and what has the United States Supreme Court done recently to clarify the Miranda Rule as it pertains to juvenile custodial interrogation?

The Supreme Court has already held that the Miranda protections do apply in juvenile cases. (See In Re Gault, 387 U.S.1 (1967)). Indeed, in Massachusetts, in the case of Commonwealth v. Juvenile, 389 Mass.128 (1983) the Supreme Judicial Court set the burden on the prosecution to prove that a statement made by a juvenile was both a knowing and intelligent waiver of the Miranda Rule. The court recognized that juveniles are quite different from adults in terms of both their full possession of their senses and their ability to recognize the consequences of making an admission to police.

In order for Miranda to apply in a juvenile case that client must be in custody. Also, the client must have been interrogated or experienced the functional equivalent of interrogation. In Massachusetts, if the juvenile is under 14 years of age, an interested adult must have been present during the interrogation. If over 14 years of age, the juvenile must have had a meaningful or genuine opportunity to consult with an interested adult. Finally, in all circumstances, there must have been a knowing, intelligent and voluntary waiver of Miranda’s protections. Our courts look to the totality of the circumstances to determine if there was a proper waiver of Miranda in a given case.

On June 16, 2001 the United States Supreme Court, in the case of J. D. B., PETITIONER v. NORTH CAROLINA, answered the question of whether the age of a child subjected to police questioning is relevant to the custody analysis set out in Miranda v. Arizona. The court acknowledged that It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave. Seeing no reason for police officers or courts to blind themselves to that commonsense reality, the Supreme Court ruled that a child’s age properly informs the Miranda custody analysis. For a helpful explaination of the Supreme Court’s ruling in this case please view the following video:

Continue reading

The Right to Confront and Cross-Examine Witness Testimony in Massachusetts: Motor Vehicle Offenses after Commonwealth v. Parenteau

Published on: June 13, 2011 | by Patrick J. Murphy, Esq.

If you have been charged with a motor vehicle offense or crime in Massachusetts such as driving a motor vehicle after your driver’s license right to drive in Massachusetts had been suspended or revoked, the Commonwealth must prove certain facts beyond a reasonable doubt in order to convict you. You must have operated a motor vehicle at a time of when your driver’s license had been revoked or suspended. Finally, you must have received notice from the Massachusetts Registry of Motor Vehicles that your license or right to drive in Massachusetts had been or was about to be suspended or revoked. However, how does a defendant challenge whether or not notice was sent as required? Under the existing law, notice is established primarily by documentary evidence not subject to a defendant’s right to confront and cross examine. How do you to question a document? The recently decided case of Commonwealth v. Parenteau has further clarified the issue of whether or not the government needs to subpoena live witness testimony to prove that someone received notice that their license was about to be suspended or revoked and this change may now benefit the defendant.

Upon the suspension or revocation of your license or right to operate, the Registrar is required to send you written notice to your address as appearing on Registry records, or to your last and usual residence. G.L. c. 90, § 22(d). This notice requirement is usually proven through a certified document from the Registry of Motor Vehicles that they sent a required letter to you explaining that your right to operate would be suspended or revoked by, for example, operating under the influence or by having an outstanding warrant in any Massachusetts court. The Commonwealth is not required to prove that you had actual, personal knowledge of the contents of this notice, however, the judge or jury may consider a properly attested copy of the official record of the Registry of Motor Vehicles as sufficient evidence that your license was suspended, and that they properly notified you.

In a motor vehicle offense case, the Commonwealth must prove receipt either of notice of actual suspension or notice of intent to suspend per the decision of Commonwealth v. Crosscup, 369 Mass. 228, 231 & n.2,339 N.E.2d 731, 734 & n.2 (1975), and the defendant must be permitted to offer evidence of non-receipt (See Commonwealth v. Crosscup, 369 Mass. at 240, 339 N.E.2d at 739. Prior to the Parenteau decision, the Registrar’s proper mailing of a letter was prima facie evidence of receipt by the addressee. Id., 369 Mass. at 239-240, 339 N.E.2d at 738-739. This documentation from the Registry, if properly certified, is usually admitted in evidence against a defendant without the need for live witness testimony from the Registry. Defendants have objected in the past but until the Parenteau case judges in the Commonwealth did not see a violation of the Sixth Amendment right to confront and cross-examine a witness from the Registry to challenge such documentation. The law has now changed as a result of the ruling in the Parenteau.

In Commonwealth v. Parenteau, the Supreme Judicial Court of Massachusetts considered whether a District Court judge erred by admitting in evidence, pursuant to G. L. c. 90, § 22 (d),(1) a certificate from the registry of motor vehicles (registry) attesting to the fact that a notice of license suspension or revocation was mailed to the defendant. The SJC concluded that the admission of the certificate violated the defendant’s rights of confrontation and cross-examination under the Sixth Amendment to the United States Constitution.

In this case, the defendant was arrested for violating G. L. c. 90, § 23,(6) by operating a motor vehicle after his license had been revoked pursuant to G. L. c. 90, § 24 (1) (a) (1), for operating under the influence of intoxicating liquor. The case proceeded to a jury trial and the defendant filed a motion in limine to exclude documentary evidence from the Registry in the event that such evidence was not supported by witness testimony at trial on the ground that admission of the documentary evidence violated the defendant’s right to confrontation under the Sixth Amendment. The trial judge denied the motion. Later, the Commonwealth introduced a certificate from the Registry on which appeared a stamp certifying that notice was sent to the defendant that his license was revoked on a certain date. Ultimately, the jury found the defendant guilty of operating a motor vehicle after his license had been revoked for operating while under the influence of intoxicating liquor.
Continue reading

Petition to Seal or Expunge Criminal Records In Massachusetts: CORI reform under G.L. c. 276 s. 100A, s. 100B, and s. 100C.

Published on: June 3, 2011 | by Patrick J. Murphy, Esq.

On July 31, 2010, the Massachusetts legislature adopted CORI reform. CORI means Criminal Offender Record Information. It is a person’s criminal history. In this article we will explore CORI reform in Massachusetts and cover the types of entries on a criminal record that are eligible to be sealed. Sealing a criminal record in Massachusetts can be difficult and should not be undertaken without having an experienced Massachusetts criminal defense attorney with you to guide you deftly though an often convoluted process. The successful sealing your record in Massachusetts means that you maintain and ensure that past court involvement stays confidential by prohibiting access to that information by potential employers, school officials, public housing authorities, and others.

If you have ever been charged with a crime in a state or federal court in Massachusetts, whether your case ended with or without a conviction, a verdict of not guilty, or the charges were thrown out or dismissed, you will still have a CORI in Massachusetts and that information is accessible to others. Under the old CORI law employers could ask about past criminal involvement right away on a job application and thereby limit the applicant pool for a particular job. Under the new CORI law, employers can’t ask up front on the first job application but may ask about it later in the application process and request that a potential employee make that information available. Successfully sealing your CORI can prevent such an intrusion into your privacy. Fortunately, the waiting periods for sealing felony and misdemeanor cases will been shortened soon to allow petitioners to request to seal a felony conviction after 10 years (previously 15 years) and a misdemeanor conviction after five years (previously 10 years). The reduction in these sealing periods and the other important sections of the CORI law become effective in May 2012. However, now is the time to get started by obtaining a copy of your CORI and contacting an experienced Boston criminal defense lawyer to help seal or expunge your Massachusetts criminal record.

The procedures for sealing criminal records are contained in Massachusetts G.L. c. 276, §§§ 100A, 100B and 100C. In certain cases, a Petition to Seal may be made directly to the Commissioner of Probation for those entries that are “aged out.” This means that all of your court appearances and court disposition records, including the termination of your probation or any sentence for any misdemeanor must have occurred not less than ten years prior to the filing of the Petition to Seal. It also requires that all of your court appearances and court disposition records, including the termination of your probation or any sentence for any felony must have occurred not less than fifteen years prior to the filing of the Petition to Seal. For Juvenile Delinquency court cases or dispositions, there is a three year waiting period before being allowed to file a Petition to Seal.
Continue reading

Harassment Prevention Orders and Restraining Orders in Massachusetts: The Differences between G.L. c. 258E and G.L. c. 209A

Published on: May 31, 2011 | by Patrick J. Murphy, Esq.

It has been a year since Massachusetts introduced the new Harassment Order law (G.L. c. 258E) last May which allows a plaintiff to seek a “Harassment Prevention Order” in court against a defendant for “Harassment”. Since the enactment of the Harassment Law in Massachusetts there has been an explosion of new cases and a corresponding increase in the need for an experienced Boston Criminal Defense Lawyer.

In order to obtain a Harassment Order against another person, the moving party must demonstrate that 3 or more acts were committed against them in a “willful and malicious” manner with “intent to cause fear, intimidation, abuse or property damage.” The Plaintiff can seek a Harassment order in the District Court, Boston Municipal Court, Juvenile Court, or Superior Court.

The principle difference between Abuse Prevention Orders (G.L. c. 209A) and Harassment Orders (G.L. c. 258E) concerns the class of people eligible for relief under each law. With Harassment Orders anyone can seek relief by filing an application in court and proving a case of harassment as defined above by a preponderance of the evidence. The Abuse Prevention Order only allows “Family or Household Members” to seek relief. In short, there must have been a relationship between the parties by marriage, or persons residing together in the same household, or relation at some point by blood or marriage between them. One could also seek an Abuse Prevention Order if they were or had been in a dating relationship with the offending party.

The Harassment Order law re-defines and greatly increases the pool of eligible plaintiffs who have access to the courts to obtain a “Harassment Order”. Consequently, we are now seeing a flood of new filings by neighbor against neighbor which has overwhelmed already swollen court dockets. Due to the increase in cases an experienced Boston Criminal attorney is crucial to have at your side when seeking or defending against Harassment and Abuse Prevention Orders in Massachusetts.
Continue reading