Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Attorney Sam’s Take – How You Resolve Your Gun, Drug Or Assault Case In Massachusetts

Ok, so you have gotten over the shock of being charged with a crime. You have gone to court in Boston a couple of times for a couple of court dates that feel accomplished nothing. Finally, you ask your attorney when this will all end.

You get that sad but true answer…”it depends”.

Many things in the criminal justice system depend on what happens as the case progresses. This is not a science wherein there is an exact formula for how things go. You may have already witnessed this as you have gone to court and seen different people get different bail and sentence decisions although charged with the same crime(s).

You probably already know that, if a case is not otherwise disposed of beforehand, the case is resolved at trial. I am going to assume you know what that is. After the verdict, one of two things happen. Either the verdict was “not guilty” and the nightmare is over, or it is “guilty” and there is a sentencing hearing. Depending on the convictions, that sentencing may or may not result in the defendant going home.

Some charges carry with them mandatory jail/prison sentences. This is the case, for example, in many drug charges. This will mean that that the court would have no choice but to sentence the defendant to at least that sentence. Depending on the circumstances, of course, the sentence could be greater.

Prior to trial, there are two ways in which a mattercan be resolved. Either the matter is dismissed by the court or there is a plea bargain.

“I like the first option. How can I get the judge to dismiss the case against me? Can I just explain that I should not be charged with assault because the idiot deserved it….and more?”

No. cases are dismissed because of legal arguments. Courts do not like to dismiss cases, which is the first thing you should understand. The system has a preference to let matters play out before a fact finder (jury or judge at trial) or a plea bargain.

If there are no witnesses present at trial who will testify against you, or if the vital evidence against you has been suppressed because of a suppression hearing wherein your attorney successfully argued that the police seized you or the contraband they found (for example a gun) in violation of your Constitutional rights, then the matter will be dismissed. There are also other legal arguments that can lead to a dismissal. However, for such a hearing, the court must weigh every doubt in favor of the Commonwealth.

“Sounds like we are not getting the case dismissed”.

Probably not. Let’s turn to the other option.

Most cases are resolved by some kind of plea bargain. Contrary to what many people think, this does not always mean that the defendant pleads guilty. Aside from a guilty plea, there are other agreements that can sometimes be made. Again, this will depend in large part on the defendant’s history and the facts of the case.

One option is the Continuance Without A Finding. This is a scenario in which the defendant admits that there are facts sufficient by which a jury could find him guilty and the matter is continued for a certain amount of time ( usually between 6 and 18 months). If the defendant is not charged with another crime and if he/she does all that the court orders, then the matter will be dismissed. If the probationary time does not go so well, the continuance can turn into a guilty finding and the defendant is re-sentenced.

Another option is called Pretrial Probation. It is similar to the CWOF, but there are fewer risks. First of all, there are no admissions of any kind by the defendant and, if the probationary time does not go well, the case simply comes back.

It is important to remember that these matters, even if dismissed, will remain on your record for at least 10 years before sealing is an option.

It is certainly not a given that a defendant will be offered or can get one of these two dispositions. Usually, it takes a great deal of bargaining with the prosecutor to even bring it into the realm of the possible. Second, some criminal charges actually forbid such a disposition.

Of course, another possible plea bargain is actually pleading guilty to either the charge or a lesser charge as per the agreement with the prosecutor.

These are how criminal matters are resolved. How long can it take? Well, for trial, usually between six months and a year. One of the other methods? Pretty much any time.

It goes without saying (but that has never stopped me before from saying it), that the likelihood of a decent disposition depends in part on the quality and experience of your attorney. For example, if your lawyer has little experience, and does not know how to pursue these approaches, then they may never be approached and you have lost an option.

Options are important in the criminal justice system.

As always, if you wish to discuss your with me, please feel free to contact me at 617-492-3000.

In the meantime, have a great, safe and law-abiding weekend!

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