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: You Have To Go To Massachusetts Court Tomorrow ; You Have Been Indicted (Part Three)

Last week, we discussed two scenarios whereby you received a compulsory invitation to attend the Boston Municipal Court to answer charges for a variety of potential charges, including assault, drugs and OUI.

Now, however, the matter has been raised to another level. The Commonwealth has decided to indict you. You have just received the year-end news from either your attorney or another summons in the mail.

So, what is an indictment? Well, it is like the criminal complaint that was issued back in district court. In that case, either the police or your neighbor sought the complaint. The prosecutor did not really get involved until the matter was in district court. At some point, a prosecutor reviewed the allegations of the matter and decided that either your criminal past or the allegations themselves were deserving of more serious treatment. “More serious” generally means “more jail/prison time”.

To seek an indictment (the superior court version of the criminal complaint), the prosecutor presents evidence to a room full of people called a “Grand Jury”. These people are summonsed in for jury service like anyone else. There is no judge. No defense attorney. No defendant. There is only the evidence that the Commonwealth decides to present, after which the prosecutor asks the Grand Jury to return a “true bill”. A “true bill” is an indictment.

“Hey, Sam, that does not make sense. You mean, you have a right to fight the complaint in less serious matters in a clerk magistrate’s hearing, but not when you are being indicted for a felony?”

Yes, that is the procedure in Massachusetts. There are other states in which the defendant has the right to appear before the grand jury. Not here. It may have something to do with the fact that the actual job of a prosecutor was originally supposed to be to “do justice”. This was before prosecutors were judged purely as advocates who were to simply get convictions and save their boss from bad press.

Maybe.

“If the prosecution merely presents evidence that they want to, doesn’t that mean that they will almost always get the indictment?”

There is an old saying in the criminal justice system that a prosecutor could indict a ham sandwich if he/she tried to. At least in Massachusetts, that is basically true.

When the Commonwealth indicts a defendant, it will indict on whatever misdemeanor charges were pending against the defendant along with the felony charges so that the case remains intact. Sometimes, there is no criminal complaint first to bring the defendant to district court. Sometimes the defendant is simply indicted and the first sign of criminal charges is when the defendant is either summonsed in or actually picked up on the arrest warrant resulting from the indictment.

So, back to the basic questions in this three-part series on having to go to court tomorrow. Namely, what do you do and what do you expect.

If you already have been arraigned in district court in this case, notify your attorney that you have heard that you have been indicted (most likely, it will have been your attorney who notified you). If you had not already hired an experienced attorney, or are uncomfortable with a court-appointed lawyer who has been representing you, get an attorney in whom you have confidence fast. Very fast. Immediate fast.

If this is a direct indictment, and you do not have an attorney…get one even faster. The fact that the matter has been indicted, whether brought in district court first or not, means that the Commonwealth is even more serious about the charges than you may have thought.

The arraignment in superior court is very similar to the arraignment in district court. However, as the stakes have now been raised (in terms of possible prison exposure), bail issues are looked at a bit more harshly. Because the possible incarceration is higher, so too is the incentive to flee. Further, many felony charges result from violent crimes which means the greater possibility for the dangerousness hearings from which one could be held without bail.

Even if little to no bail was demanded while the case was in district court, the fact of the indictment often means that the prosecutor will argue that the bail should be raised now that the matter has been indicted.

Remember…an attorney experienced in district court may not be experienced in superior court, where procedures and many of the rules are different.

If you have received word that you have been indicted and wish to discuss it with me, please feel free to contact me at 617-492-3000. In the meantime, please accept my best wishes for the New Year. This series was delayed between last week and today, but we are back to “daily mode” effective immediately.

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