FAQ: Criminal Defense
Now that I am arrested, should I talk to the police?
ANSWER: Normally you should give the police all identifying information that they request. Also, be aware that your demeanor after arrest can also be testified to in court if it is relevant to the crime, e.g. DWI. Other than identifying information, you should respectfully decline to speak about the incident until you have had an opportunity to speak to a lawyer.
They didn't read my rights, can they still prosecute me?
ANSWER: Yes. There are situations where the failure to be advised of your constitutional rights will have an impact on your case. Most often, that issue comes in to play when the police question you about the incident after you have been arrested and before you have been given your constitutional rights. Once you have been arrested you do have a right to remain silent. However, the fact that you were not properly advised of your rights does not mean that the case will be dismissed. You should certainly mention it to your lawyer and discuss what effect it may have on your case.
I've been charged with a crime in a Massachusetts District Court. What happens now?
ANSWER: Usually your case in District Court will have three parts. The first is Arraignment. The purpose of an arraignment is to formally make you aware of the charge(s), determine if you will have representation and determine whether any bail should be set in order to ensure your appearance at the next court date.
The next phase of your case would be a Pre-Trial Hearing. The purpose of a pre-trial hearing is to determine whether either side needs discovery from the other case, whether the case is going to trial or will settle and whether or not any motions will be filed such motions to suppress statements or evidence. If that cannot be taken care of at the initial pre-trial hearing, it may be continued for a compliance date to ensure that all the preliminary matters are handled properly.
The third stage of your case is normally a Trial if it gets that far. At the pre-trial hearing, or at date selected after that, you will elect to have a trial either by a judge or a jury. If you elect to have a trial simply before a judge, then the judge will be the one who decides the facts. If he finds you guilty he will also sentence you. If you elect to have a trial before a jury, then the jury decides the facts and if you were found guilty the judge would sentence you. You will need to discuss this issue with your lawyer to determine whether to waive a jury trial.
Should I make a deal to get the case over with?
ANSWER: Many times the prosecution will offer to resolve the case with a guilty plea or sometimes with a different disposition which does not include a guilty plea. You should discuss the ramifications of any such deal carefully with your lawyer. Guilty findings in any case can have unexpected repercussions. Conviction of certain offenses may also require suspension of a driver's license. Even when you do not agree to a guilty finding but the matter is continued without a finding, there may be probation fees and other costs or requirements for you to fulfill.
The only witnesses I have are my family and friends. Will they let them testify?
ANSWER: Yes, if your friends or family were witnesses to any facts, they would be competent to testify. In fact in many instances, if your relative or friend presents a credible appearance, it can greatly affect the case. Do not do that just because you know a witness or are related to a witness that you cannot use that witness to win your case.
What does the prosecution have to show in order to convict me?
ANSWER: In order to convict any defendant, the prosecution must show "beyond a reasonable doubt" that the defendant committed the crime. In contrast, in a civil court, you can sue someone for millions of dollars and you would only have to prove that it is "more likely than not" that certain facts occurred. Any reasonable doubts about the facts should be resolved in your favor in a criminal case. For this reason, the burden of proof is very important in a criminal case and it is often argued to the jury that the prosecution hasn't done its job in proving "beyond a reasonable doubt" that the defendant is guilty.
How drunk does a person have to be in order to be convicted?
ANSWER: It is a fallacy to say "I wasn't drunk so I shouldn't be convicted." In Massachusetts, the test is whether a person is "impaired" by the effect of alcohol or drugs. The prosecution does not have to prove that anyone was drunk. The prosecution simply has to prove that a person operated a motor vehicle while "under the influence of intoxicating liquor." A driver is "under the influence" if that driver's alertness, judgment and ability to respond promptly have been lessened by alcohol. While it may include someone who is drunk, it also would include anyone who has consumed enough alcohol to reduce his or her mental clarity, self-control and reflexes, leaving him or her with a reduced ability to drive safely.
Many states including Massachusetts have adopted the per se offense where a person can be convicted if that person was operating a motor vehicle with a blood alcohol level of .08 percent or greater. The only way for the prosecutor to get that information is if the driver took a Breathalyzer test or gave blood to be tested.