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 Two

Here is where we left off on yesterday’s (once again daily) Boston Criminal Lawyer Blog…

You are facing going to trial for charges of Roxbury Cocaine trafficking and for Assault and Battery in a domestic violence case.

You have reviewed in your mind the various evidence that could potentially be produced against you although you are, for the most part, innocent of the charges (the exception being possession of the cocaine for personal use…a much lesser charge than the Massachusetts felony charges facing you).

You have always believed that evidentiary rules which prevent the government from producing evidence against the accused were merely tools of sneaky defense lawyers used to free guilty clients. You do not believe yourself guilty. You are now ready to reconsider.

Realizing that you could go to jail on either one of these cases, you have asked your attorney what your chances at winning are. His annoying answer was that it
“depends”.

Hey, thanks a lot..

Attorney Sam’s Take On Getting Beyond “It Depends”

Well, I do not know who your attorney, nor his experience level. However, This experienced Boston criminal lawyer will review the evidence in this case and apply the associated rules.

Let’s start with the drug case. You are worried that Benjy Buyer is going to appear in court and point you out as the person who sold him cocaine. This seldom, if ever, happens. But, then again, he did identify you as the drug dealer to the police. Will that allegation come into evidence?

No…generally speaking. This goes back to the hearsay discussion we had last week.

Hearsay statements (that is, statements made outside of court being submitted to prove the matter asserted in the statements) are not admissible at trial. There are exceptions, of course. However, this statement does not seem to fall into one of them. The Commonwealth would seek to put the statement in solely to show that you were selling.

This is very good news because, in this case, that was really the only evidence of selling the cocaine as opposed to straight possession.

“But, Sam, isn’t ‘straight possession’ a crime also?”

Yes, but straight possession is a misdemeanor. The felony charges facing you simply by the allegation of selling include Possession With Intent To Sell, Trafficking and, in most cases, doing so in a “School Zone”. The latter charge brings with it a mandatory minimum jail sentence.

“Sam…didn’t you say yesterday that the police officer also indicated that I ‘look like’ a drug dealer?”

Yes, and it is true that the law allows experienced police officers to reflect that experience in terms of describing what they find on the street. However, the blanket statement that the officer thinks you “look like” a drug dealer is not likely to be accepted by the court. The officer is really not considered competent to tell it to the jury.

This being the case, unless your attorney makes a bad mistake and makes what was previously inadmissible admissible (which does happen from time to time), you should be ok with the drug dealing case, although you do face exposure for straight possession.

“What about the domestic assault case?”

Our scenario is that Felicia Flybynight has left town with Slugger and is not available to the Commonwealth to testify. However, she left behind a little gift in the way of a statement which has been interpreted as claiming that you had assaulted her. The matter is considered “domestic abuse” because you two were dating at the time.

The evidence that there was a black eye will be admissible. Felicia’s pal took a photo of it and can both describe the black eye as well as authenticate the photographs. However, the existence of a black eye, in and of itself, does not mean that you caused it.

The only evidence that it was you who caused the black eye is the statement made to this friend. Can the Commonwealth use it?

“Well, it would be hearsay, right, Sam?”

Right. And, as such, it would most likely not be admissible. There are always exceptions, as you know by now. In fact, this type of scenario plays out quite often in court where the Commonwealth tries to show, in the absences of the alleged victim, that the statement was made as an “excited utterance”, which is one of the exceptions to hearsay. However, we need not concern ourselves with that here as there was nothing in the scenario that indicated that Felicia was excited to that point when talking to her friend.

Frankly, it looks like a case that should never have even gotten to the point of trial…although it happens.

“Sam, if I go to trial in these cases, can the fact of one case be brought into evidence in the other case to show I am a ‘bad guy’?”

By ‘bad guy’, you are talking about evidence having to do with your character or credibility. Here, the quick answer is “No”. You have not been convicted of anything yet. Further, unless you raise it as an issue, your character is not at issue and unless you testify, your credibility is not at issue. By “at issue”, I mean to the point that evidence regarding it will be admissible because it is not technically relevant.

“What if I made a statement to police in one of the cases?” .

That opens a whole other doorway of discussion and we will have to leave that for another day. Let’s assume you didn’t
The bottom line, however, in these cases, is that it is highly unlikely that the domestic assault case will even reach jury consideration and you are realistically at risk on the charge of straight possession of the cocaine.

I should point out, if you are feeling like you just got by via sneaky use of unfair evidentiary rules, that you were actually innocent to begin with. Without the person who made the statments coming in and your having a right to cross-examine them, you would have been denied your Constitutional right to confront the witnesses against you in any meaningful manner. Therefore, these statements, which were not accurate at best, could have been submitted to the jury without real challenge and likely believed.

Still think such rules are unfair tools of the defense?

“Well, then, should I go to trial?”

Sorry. That’s up to you. It depends

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