Boston Criminal Defense Lawyer Blog

In a recent ruling representing a change in the interpretation of Melanie's Law, the Supreme Judicial Court of Massachusetts has ruled that the Massachusetts Legislature did not intend that an "admission to sufficient facts" also known as a "CWOF" or "continuance without a finding of guilt" in a drunk driving case to be treated as a conviction by the Registry of Motor Vehicles when acting pursuant to G.L. c.90, § 24(1)(f)(1) to suspend an operator's driver's license for more that 180 days due to the driver's refusal to take a breathalyzer test.

In so holding, the SJC decided that a person charged with operating under the influence of alcohol who receives a continuance without a finding -a routine disposition for first-time drunk driving offenders-shall not have their case counted as a first offense conviction on their record. The lawyer for the Registry of Motor Vehicles contended that a CWOF should be treated as a conviction subjecting a repeat (DWI/OUI) offenders to the additional license suspension penalties.

The case name is Souza v. Registry of Motor Vehicles and was decided on May 17, 2012 as reported in the Boston Herald. In this case, a defendant arrested and charged with OUI admitted to sufficient facts for a finding of guilty but he did not plead guilty and his case was continued without a finding and later dismissed after he successfully completed his probationary terms. The defendant was arrested again thirteen years later and he had refused to submit to a breathalyzer test. Later, the Massachusetts Registry of Motor Vehicles suspended his driver's license for three years pursuant to G.L. c.90, § 24(1)(f)(1) which directs that the RMV suspend the license for three years for a breath test refusal if the driver has been previously convicted of an OUI crime. If there is no previous conviction, the RMV suspension is for 180 days.

Continue reading "New Melanie's Law Ruling in Massachusetts Helps Repeat OUI Offenders Avoid Lengthy Resgistry License Suspensions" »

When you are charged with operating a vehicle under the influence of alcohol or drugs, the official charge in Massachusetts is Operating Under the Influence (OUI). Today, the terms 'OUI' 'DUI' and 'DWI' are used interchangeably. Operating under the influence has become one of the most commonly encountered offenses in Massachusetts. In fact, it is estimated that nearly 17,500 people were killed in automobile collisions involving alcohol in 2002. According to the National Highway Traffic Safety Administration (NHTSA), this represents 41 percent of the 42,815 people killed in all traffic accidents and crashes that year. Statistical evidence such as this lead to the passing of 'Melanie's Law' in 2005, the purpose of which was to enhance the penalties attached to OUI offenders.

Being charged with an OUI is a serious offense in the state of Massachusetts, and someone charged would be well advised to seek legal counsel. A person may be found guilty of Operating Under the Influence (OUI) if they are 1) at least 21 and 2) register at .08% or higher when tested for your blood alcohol concentration (BAC). If you're younger than 21, you will face administrative penalties if you test at .02 or higher, plus standard charges at .08 or higher. If you are convicted, the penalties can be harsh and include imprisonment, significant fines, and suspension of driver's license, probation, community service sentence, and mandatory enrollment in DUI traffic school.

PENALTIES ATTACHED

Being charged with OUI for the first time can be an extremely stressful and frightening experience. However, retaining an experienced Massachusetts defense attorney for your case can relax the situation and minimize the apprehension. In the event one is found guilty of an OUI first-offense, an individual faces a maximum 2 ½ years in jail, a $5,000 fine, and a 5-year license suspension at your RMV hearing. Drivers arrested for a first OUI offense can get their sentences reduced by agreeing to complete a state-approved alcohol education program. This is not an option after the first offense.

As you probably expected, the penalties for a second offense OUI are more severe. In any case, a qualified OUI defense attorney can significantly reduce the harsh penalties you will be facing. If convicted of a second offense it is possible you will be punished by a fine of at least $600 to the maximum $10,000, and imprisonment for a minimum of 60 days ranging to 2 ½ years; Mass. Gen. Laws Ann. ch. 90, § 24. In addition, the Registry of Motor Vehicles will suspend your driver's license for 2 years when you are convicted on a second offense OUI.

Continue reading "Operating Under the Influence in Massachusetts: A misdemeanor not to take lightly" »

Significant changes to the Massachusetts Criminal Offender Record Information (CORI) law go into effect on May 4, 2012. Under the 2010 CORI reform we have already seen changes that were implemented as of November 4, 2010. As of that date employers are banned from asking questions about your criminal history on the initial written job application,unless the conviction information is required for a particular job pursuant to federal or state law. As of May 4, 2012, an employer must provide a copy of any criminal record information in that employer's possession prior to questioning an applicant about their criminal history. If an adverse employment decision is made due to that individual's criminal record, the prospective employer must give the job seeker a copy of the record that their decision was based upon.

SEALING YOUR CORI/WAITING PERIODS

One of the most significant changes under the new CORI reform relates to the waiting periods for sealing felony and misdemeanor cases. Under the new law the waiting period for sealing is now 10 years for felonies and 5 years for misdemeanors. The clock begins to tick when an individual is released from incarceration. If the sentence did not include a period of incarceration, the clock begins to tech at the time all court proceedings have been included including the end of any probationary term. It is important to note that an intervening conviction will reset the clock. Moreover, sealing your record does not occur automatically. It is very important to hire an experienced Massachusetts CORI rights defense attorney who will be able to review your entire criminal history, scan it for potential errors and inaccurate information, and file paperwork to correct your record so that you may be able eligible for sealing the record as soon as possible.

Under the new CORI reform law, there are procedures now in place to allow people the right to inspect and obtain a copy of their own criminal records. Moreover, new guidelines will be published to to help deal with the problem of correcting inaccurate information. The new law established a Criminal Record Review Board to hear complaints pertaining to violations of the CORI law, including the failure to provide a copy of your record before questioning by a potential employer or after an adverse decision regarding employment has been made.

Continue reading "The Massachusetts 2010 CORI Reform Law Goes Into Effect on May 4, 2012" »

The interaction between airline personal and members of the general public since September 11, 2001 seems to have changed and not in a positive way. Indeed, news reports of incidents involving people accused of crimes such as assaulting or harassing flight crew attendants or interfering with a member of a flight crew or operation of the aircraft in any way seem to have increased dramatically since 9/11. Is this change due in part to the hyper-sensitive reaction of flight attendants or flight crew to any criticism or concern raised by members of the flying public? If you find yourself in the position of being under arrest in these circumstances you just might think so.

Unfortunately, some conversations between flight attendants and the general public are often viewed as arguments or complaints that have escalated to the point where what we see now is the innocent individual being detained on the plane, arrested upon landing and prosecuted in the nearest court within the airport's jurisdiction. The police take the statements of the airline crew at face value to substantiate the arrest and they seem more than happy to provide information that the person was in some way disruptive or disorderly while on a plane. Ultimately, the post-9/11 airline crackdown on alleged bad behavior may have had a chilling effect on speech and has led to many improper arrests of members of the flying public.

In Massachusetts, under M.G.L. Chapter 90, Section 40, a person can be prosecuted for interfering with, or threatening to interfere with the operation of an aircraft. The penalty for violation of this law is significant and involves imprisonment for not less than one month or not more than six months. Fines ranging from $10 to $500 may be imposed in addition to any incarceration. If a person is convicted of this crime also referred to as "interference with a flight crew", the clerk magistrate of the court must report the conviction to the Massachusetts Aeronautics Commission.

If you have been accused of a crime while on an airplane that lands at Logan Airport in Boston, Massachusetts, you may be taken into custody by a trooper from the Massachusetts State Police (Troop F). Your case will fall under the jurisdiction of the East Boston Division of the Boston Municipal Court located at 37 Meridian Street in Maverick Square, East Boston, Massachusetts. You will either be released after posting bail at the F Troop State Police barracks and given a date to appear for arraignment in court or you will be detained by the police and taken to the East Boston District Court on the day or your arrest or the next available date if you cannot post bail and your arrest occurs over the weekend or on a day when the court is closed.

Continue reading "Massachusetts Logan Airport Crime: Interference With A Flight Crew or Operation of an Aircraft" »

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.

Continue reading "Domestic Assault and Battery and the 911 call in Massachusetts: What You Need to Know" »

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.

Continue reading "The Process of Removing or Recalling Massachusetts Arrest Warrant in Court" »

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.

Continue reading "Spousal Disqualification is Raised in Massachusetts Federal Case" »

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.

Continue reading "Probation Violation Hearings in Massachusetts and the Importance of an Experienced Criminal Defense Attorney" »

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.

Continue reading "Property Crime, Trespass and the right to protest in Massachusetts" »

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.

Continue reading "The "CSI Effect" in Massachusetts Criminal Cases: What Potential Jurors Can Now Be Asked" »

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.

Continue reading "Why You Should Hire a Lawyer for a Clerk Magistrate or Show Cause Hearing in Massachusetts" »

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.

Continue reading "Deadly Force and The Right of Self-Defense in Your Home in Massachusetts" »

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.

Continue reading "Drunk Driving and Roadside Field Sobriety Testing in Massachusetts OUI Cases" »

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.

Continue reading "The Constitutionality of Strip Searches in Massachusetts" »

The recent case of Commonwealth v. DiPadova in Massachusetts demonstrates how extremely important it is for an experienced Massachusetts and Boston criminal homicide attorney to deviate from proposing a model jury instruction when the facts of the case necessitate a change from what is customarily used.

In the DiPadova case, the Defendant was convicted of killing his former landlady. The Defendant had a substantial history of serious mental illness and had experienced auditory hallucinations (hearing voices). He also had a long history of poly substance abuse, including marijuana, cocaine and alcohol. The defense at trial was that the defendant due to a mental disease or defect, lacked the criminal responsibility for his actions because he lacked the substantial capacity at the time of the crime to appreciate both the wrongfulness of his conduct and to conform his conduct to the requirements of the law. Commonwealth v. McHoul, 352 Mass. 544, 546-547 (1967).

There was evidence presented at trial of the interaction between the defendant's abuse of legal and illegal drugs and his mental illness. It was no surprise that the mental health experts hired for both the defense and prosecution disagreed on the impact that the substance abuse had on the defendant's mental state at the time of the homicide. The Defendant asserted that his drug use aggravated the symptoms of his mental illness. The court stated that the model instruction was erroneous because it only concerned the impact of drug consumption or alcohol use under circumstances in which a defendant's mental disease or defect does not, independently, render him criminally irresponsible.

Continue reading "Voluntary Intoxication and Its Role in the Defense of Criminal Responsibility in Massachusetts" »