Massachusetts Criminal Defense Legal Questions

Good morning Joseph, First, as a categorical matter, an affidavit similar to what you described does not mandate dismissal of the charges against you.  However, the prosecutor may take such an affidavit into consideration in determining whether the charge against you should be dismissed.  In order to find insight into whether a prosecutor might wish to do so, you should consider the issue from the prosecutor's perspective.   The prosecutor will first consider the facts and circumstances of the case to determine whether, in context, the affidavit of your co-defendant is both consistent with the evidence and credible.  If you send me the police report, I can provide some specific perspective.  But generally, by way of example, if the police report otherwise tends to establish that the drugs were under your co-defendant's control, rather than yours, favorable action might be appropriate.  Conversely, you probably can see that if the drugs were found under your control, for instance, on your person, then the affidavit of the co-defendant would carry little weight.  Other things to consider might be the other circumstances of the case.  If other evidence suggests, for example, that you and your co-defendant were seeking drugs together, your co-defendant's affidavit would not do much to help you. Finally, the prosecutor will consider the overall credibility of the affidavit.  In that regard, if the co-defendant already has a plea deal in place, what does he have to lose by falsely claiming the drugs were only his?  The prosecutor may view the affidavit skeptically.  He or she may see it not as a truthful statement, but as an effort to help out a buddy without any risk to himself. Let me know if you want to discuss further.  There are various ways to successfully defend a drug case other than relying on the affidavit of a co-defendant which prosecutors generally reject as unpersuasive.  ... Read Answer

Hi there, If the MassCourts website reflects that your case is closed, it should also contain information as to the reason it was closed. It is possible that the court dismissed your case in absentia given the low-level nature of the offense.  It is also possible that the notation that your case was closed reflects an administrative error rather than a decision of the court.  It is difficult to speculate as to what the "closed" status truly means without seeing the actual docket report.  If you like, feel free to contact me so that I can pull the court record and help you make sense of what occurred.  You can also pull your docket report again and review the docket text to see if you can gain any further insight as to where you stand with your case.  ... Read Answer

What an interesting question.   It seems highly doubtful that a video can constitute sufficient evidence to support a drunk driving charge.  There are many reasons why.  First, I cannot imagine that a video alone can support a finding that any unusual driving or personal behaviors arose as a result of alcohol impairment.  If the driver seems impaired on the video, the question is - what is the cause of the impairment?  Is it alcohol? Drugs? A medical condition?  Speculation is not a basis for charges.  In the case described, there would be no breathalyzer or blood test results to establish that the person had alcohol in their system.  There would be no field sobriety tests which would support a finding of impaired operation.  There would be none of the common observations that support an inference of alcohol impairment - such as a detectable odor of alcohol on the driver's breath. Second, what evidence would the government have as to the time and place of the offense? As a predicate to charges, the government must show when and where the offense occurred.  I struggle to see how a video standing alone can establish the where and when of the offense. Jurisdiction and compliance with the statute of limitations (in this instance, 6 years) must be proven by the prosecution.   Third, who would authenticate the video - in other words, establish that it fairly and accurately represented what it appears to depict?  Except in unusual circumstances, the court would need a live witness who could establish that the events on the video accurately depict an event that they witnessed occurring - an insurmountable obstacle if the only evidence is a video somewhere. In my over 22 years as a criminal lawyer, I've never seen a criminal case filed under similar circumstances.  I'm happy to speak more if you have questions.  Call my office (978) 474-0054 or check out my website at www.erkanlaw.com... Read Answer

There are a number of different possible outcomes that could occur, when an alleged victim fails to appear at a Clerk-Magistrate's Show Cause Hearing. Often the victim does not appear and a police representative provides the facts to the Clerk. In fact, quiet often the investigating officer's report is just read into the record by the police representative. The standard to be applied by the Clerk-Magistrate to the application for the criminal complaint to issue is: * 1. Do the facts as represented, demonstrate a crime was committed?* * 2. Is it MORE LIKELY THAN NOT, THE DEFENDANT COMMITTED THE ACTS AS ALLEGED.* Notice there is no mention of proof beyond a reasonable doubt. *The criminal standard of proof beyond a reasonable doubt is not applied at a Show Cause Hearing* but is applied thereafter in the courtroom after a finding of probable cause to issue the criminal complaint. Hence, the standard for the issuance of the criminal complaint is much lower than the standard for guilt of proof beyond a reasonable doubt. If the victim fails to appear at your Show Cause Hearing, you have to make a judgment call. Either go forward and offer your version arguing that the evidence is in conflict with #s 1 & 2 above or ask for a continuance of the Hearing so that you can summons in the victim thereby giving the Clerk-Magistrate a better perspective. If the victim fails to show at the second Hearing, then you are in a much stronger position to request that the complaint not issue against you and the matter ends. It is always better strategy to have an experienced criminal defense attorney represent you.... Read Answer

We have handled countless MA warrants for people from other states that have not had to appear in MA. However, that is no guarantee that it is possible in your case. The decision is ultimately up to the judge who will likely take into consideration the seriousness of the charge, the length of time that the warrant has been open, at what point in the process the warrant issued (e.g. before the person knew of the charge or after appearing in court one or more times) as well as many other factors. You should hire a local criminal defense attorney to advise you.... Read Answer

Put simply, if someone created a facebook account under an assumed identity and "just used it to repeatedly view someone else's public content," they could not be charged with stalking in Massachusetts because stalking requires that the person's conduct seriously alarms or annoys the other person and would cause a reasonable person to suffer emotional distress, and if they only used it to view public photographs, neither of those two things could be true.  Stalking also includes a requirement for a threat directed at that person which is missing from your hypothetical.... Read Answer

The first thing you want to do is to successfully defeat the issuance of the restraining order (RO). In Massachusetts chapter 209A is a civil/criminal hybrid law. In other words it is a civil procedure to obtain a restraining order but a violation of it can result in criminal sanctions. You will have little or no chance in any civil action for malicious prosecution or defamation of character if the allegations of the other party are supported by an issued restraining order. Always consult with an attorney experienced in this area of law. Good luck.... Read Answer

Your landlord has an obligation to provide you with a secure living environment -- a place that has working locks, etc. Your landlord also has an obligation to not cause any interference with your quiet enjoyment of the premises by negligently failing to provide a secure living environment. If you have notified your landlord of an issue with the premises, and (s)he has failed to address those issues; and if subsequently you suffered loss because of theft that resulted from those issues, then your landlord should be liable for the loss. Hope that helps.... Read Answer

Is it legal? Yes. Is it moral? Ill leave that up to you. The bottom line is, your son should find a lawyer. If a lawyer tells the police that (s)he represents your son and he chooses to remain silent, they can't bother him anymore.  That doesn't mean they can't arrest him if they have probable cause to do so, but it sounds at this point like their evidence is pretty thin.  In the event that they think they do have probable cause . . . well . . . then your son needs a lawyer anyway. Better to get them involved earlier rather than later.... Read Answer

If someone is arrested and has other cases pending at the time, they can have their right to be released on their previously posted bail (or on their personal recognizance) revoked with regard to the pending case.  Meanwhile, the court can set bail or release on personal recognizance on the new case. It sounds like this is what was going on with your boyfriend. That is the 90 day period you were referring to -- his right to be released was revoked on the old case and he was held without bail for 90 days. Now that the 90 days has expired, he is eligible to post bail on the new case, in which case the only thing still holding him will be the old case.  The problem is that during those 90 days, he probably missed a court date on the old case (he was in jail, after all) and if the court didn't know where he was, it would issue a non-bailable warrant for his arrest. So, now, if he posts bail on the new case, the warrant on the old one will mean that he has to be transported to the court where the old case was pending to clear up the warrant before he can be released. Two things: 1) His lawyer should have filed a motion for speedy trial on the old case as soon as he found out that your boyfriend was being held with an open case in another court. I do that every single time, and this is exactly why. 2) He should still post the bail on the new case, because then he will have to be transported to the court where the old case is pending, and they will be forced to deal with the case. Otherwise, he could end up sitting there on the bail on the new case while nothing is happening on the old one. Finally, the real trick is this. If he posts the bail on the new case and gets transported to the court where the old one is pending, and (for whatever reason) he ends up getting held in custody on that case (they increase his bail, etc), whoever posted the bail on the new case can go to the court where the new case is pending and ask for their bail money back. The result is, that person has all the money they started with, and he has both cases on track. Sorry for the long answer, but you found one of the more complicated situations a defendant can find him/herself in.... Read Answer

Your husband could face a range of penalties from court costs to incarceration. A major factor in determining his results will be the nature of the underlying offense, for which he is on probation for and the original sentence. Other factors to consider are how many prior violations have occurred, his relationship with his probation officer and the judge before whom he has to appear. I would advise you to contact an experienced criminal defense attorney.... Read Answer

In Massachusetts our laws allow for a *Victim Witness Impact Statement, *in certain cases. The Statement can be presented to the Court at the time of sentencing in one of two ways. The victim (and often times a family member), reads their statement to the Court or it is presented in writing. The Statement usually is a narrative of how the crime has affected the victim's life and a plea by them to impose a certain sentence. If the Statement is reduced to a written format, it should be provided to the defendant prior to its admission. Make a request of the prosecutor for the Statement prior to any sentencing hearing. You want to make sure that no inappropriate information is contained within the statement.... Read Answer

It sounds like you have several options to defend yourself for this arrest. I would need to see the police report to know the reason, from their prospective, why they searched. Police to have the right to search after an arrest but that is only if they have the previous right to arrest you. You will obviously need legal counsel to do this as the courts are not a place to be unrepresented.... Read Answer

You may well have the wrong address as grounds for a Suppression motion. I would strongly advise that you do this through counsel. Criminal courts are not designed to accommodate pro se (represented defendants) and you could easily blow a chance to suppress the search. Obviously you know the stakes better than anyone by what was found and what you were charged with.... Read Answer

Larceny Over $250 would be the most likely charge for cashing money orders that are not yours and would likely be accompanied by other charges more specific to the form of larceny, such as Forgery, Larceny be Check, etc. Larceny Over $250 is a felony and punishable by up to 2.5 years in the house of correction. With a good attorney and no prior record you may be able to be placed on probation with restitution if found or plead guilty.... Read Answer

My best advice is to hire a good criminal defense lawyer. I know this sounds like a standard answer but it is the best advice. The criminal courts are not designed for and do not cater to people who represent themselves. There are many factors that come into play in your case, as any case, and to risks of omitting something or saying something you shouldn't are just too high.... Read Answer

If your neighbor has taken possession of a package intended for delivery to you with your name and address on it, they may have interrupted the chain of custody. You will have a valid defense to any charge relating to this package. As for your history of deliveries, any prosecution would have to be in the form of conspiracy, assuming there is no longer any physical evidence from the deliveries. I would advise you to speak with an experienced criminal defense attorney as soon as possible.... Read Answer

You should carefully consider your decision to pursue this claim in the criminal courts. It will likely result in a cross complaint against you by the person who was attacking your boyfriend. You can also sue him civilly to seek financial compensation. You really do not want criminal charges brought against you and it is a very likely scenario that if you bring a complaint against him, his lawyer will advise that he do the same against you. You are alleging that you came to the defense of another, which is essentially a defense to an Assault & Battery charge. I would advise my client against initiating that complaint unless you clearly understand and accept that it may very well result in an Assault & Battery charge against you. You may ultimately prevail, but once charged, you will always have the A&B charge on your record, even if it is later dismissed or if you are found Not Guilty.... Read Answer

Having your records sealed will not likely have any effect upon getting a license to carry. Law enforcement and the criminal justice system is able to see through a seal in Massachusetts. I have no idea how this is handled in any other state. You would have to check with attorneys in the states that you are referring to.... Read Answer