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.

The MA Rules Of Evidence And Your Arrests For Roxbury Cocaine Trafficking, Assault And Battery – Part One

As this Boston criminal lawyer begins his 52nd year of life, I return to a question which has plagued the jury system since its onset. Namely, what should a jury hear? Many people believe, as we discussed in my last blog, that the rules which govern what evidence can get before the jury is unfair. The thought is that the jury should hear everything and that, perhaps, the rules of evidence should not even exist.

As an attorney who has fought on both sides of the criminal justice trenches, I can tell you that I have been, in turn, gratified and frustrated by these rules…from both sides. However, most people view the system from the prosecutorial side and figure the biggest problem facing the criminal justice system today is crafty defense attorenys and overly-symnpathetic juries. These people tend to also believe that these inconvenient rules only serve to avoid justice and protect the guilty.

Perhaps you have always felt that way as well. Let’s bring your perspective regarding the system a bit closer to the target, shall we?

Like so many of your fellow-citizens, you have fallen on some difficult times of late. This has also brought the onset on some bad choices and habits.

You have also recently been arrested for Roxbury drug trafficking. You have learned that the Commonwealth turned its attention to you after Benjy Buyer told the officers who arrested him for possession that he had made the purchase of the cocaine on his person from you. When the arresting officer came to fit you for handcuffs, according to the resulting police report, the officer knew that Benjy was telling the truth because you “looked like a drug dealer”. You had a ten dollar bill and one envelope of matching coke in your pocket.

The fact is that you had purchased the coke from the same person that Benjy did; you did not sell to anybody.

This has been a particularly bad stretch of bad luck for you, by the way. Just previous to the drug arrest, you had broken up with your girlfriend, Felicia Flybynight. This took place after she showed up on your doorstep with a black eye. She told you that her other beau, Slugger, gave her the shiner when he learned that she was also seeing you. She was now remedying the error in her ways and leaving town with Slugger. However, before she left town, a friend of hers took a picture of her black eye and asked her what had happenned. “It’s all [INSERT YOUR NAME HERE]’s fault”, was her answer. The friend thereafter called the police and explained the situation to them.

After your arrest for the drugs, the police figured they might as well charge you for the assault and battery as well.

After all, they reasoned, many drug dealers are involved in domestic violence incidents.

Now…your cases are about to go to trial. Your lawyer tells you that the Commonwealth is offering “Guilty-Probation” to cover both matters. Should you go to trial and lose on either one of these cases, they say they will ask that you serve some time in one of their fine institutions.

What to do.

Attorney Sam’s Take On The Cases Sans Evidentiary Rules

Obviously, your first question to your Boston criminal lawyer upon hearing this news is, “Well, what are the chances that we can win at trial?”

You receive the typical attorney answer. “It depends.”

You review the above-stated facts and evidence in your mind. You assume that the jury will be hearing all the evidence against you. You have always figured that such is the way the system works and should work. However, right now, it does not make you feel terribly confident.

First of all, you are charged with dealing drugs, which will involve two felony charges…the actual sale as well as possession of the drugs with intent to sell. The motion to suppress the drugs found on you due to Massachusetts search and seizure issues has failed. So, assuming the jury believes that the cops are not lying about you possessing the cocaine, they will have to decide whether you simply had the drugs for your own use or for sale.

There is a big difference between the two.

“I did not sell to anyone”, you protest to your lawyer. You then remember that there was that other buyer who told the police that it was you who was selling the coke. Your heart sinks. “Do they have that other buyer here to testify?” you ask your lawyer.

If this case is typical, the Commonwealth will not be producing said buyer.

So…should the Commonwealth simply be allowed to have the police officer testify about Benjy’s statement regarding your selling?

Before we address this question, let’s look at your other case. As you may recall, Felicia said she was going to fly away with Slugger. She was as good as her word.

You have learned that the Commonwealth has not been able to reach her to cooperate in this prosecution in her name.

However, her picture-taking buddy is still around and more than happy to testify as to what she said and how she looked. While Felicia never specifically said that you had hit her, she did place the blame at your feet.

Further, that was about a year ago. Maybe the witness remembers the exact words alittle differently now.

And not in a helpful way.

You have always figured that whatever the Rules of Evidence were, they surely shouild not be used to protect the guilty…but sometimes are. You don’t believe you are guilty. But, then, if the jury hears all the Commonwealth’s witnesses have to say, you have to admit that you could end up convicted in both matters and serving time.

You surely do not want that.

In tomorrow’s blog, let’s apply those unfair defense-oriented evidentiary rules to these matters and see how unfair they really are.

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