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 ON MASSACHUSETTS INVOLUNTARY GOVERNMENT TESTIMONY (PART ONE)

When we last left off, Boston Criminal Lawyer Blog was discussing an apparent shift in the criminal justice system through which people are punished for not playing the part of a government witness. I was opining that we could see more of this trend in the future.

You may be wondering what the status of such involuntary testimony is right now.

” ‘Involuntary testimony’? Sam, it can’t be that I can get arrested for not cooperating with the police about a crime that has nothing to do with me, can it?”

It certainly can. In fact, let’s look at what you mean by what “nothing to do with me” means. As far as law enforcement is concerned, any matter in which you witnessed something involves you. Given the goals of law enforcement, any potential witnesses should have to cooperate with police.

This makes sense, of course. After all, their stated goal of any criminal investigation is to solve the mysteries and catch the “bad guys” as police define them. Given that this is their primary motive, it makes sense that they feel that any reluctance on the part of potential witnesses should not be tolerated. After all, it makes their job harder and sometimes, even, impossible.

“Hey…they may be right. It kind of makes sense. Wouldn’t such a system make sense?”

Well, it might be, if not for the fact that it is contrary to certain fundamental ideals underpinning our judicial system.

First of all, while the idea of a close-knit society in which everything is everyone’s business sounds cozy, it is contrary to our way of life. At least, it is if such a thing is made mandatory. We were founded as a society which values individuals’ rights.

In a Utopia, we might all be able to co-exist respecting the differences between us. Perhaps in such a society, everyone’s being their brothers’ keeper might actually work. However, if history is any guide, such things tend to lead to things like witch-hunts. Further, in a society in which we still have trouble separating church and state, one can only imagine what might happen should we give even more power to those who judge their neighbor by what they believe G-d says.

Second is that the perspectives of all people are not the same. For example, ask the same questions of a liberal defense attorney and a conservative police officer about such subjects as individual rights, how to stop crime and what means to which law enforcement should be able to go in order to secure some kind of admission. Suffice to say, there will not be one simple answer.

There is really no “right” or “wrong” to their answers…there are only opinions. However, different people with different experiences process information differently. As a result, their basic “inner narrative” is based upon different views of facts and different “truths”.

Police officers, for example, must make certain decisions right away. Often, their lives depend on it. In such circumstances, there is no time to put up with hassles like Constitutional Rights. They are simply annoying roadblocks. Of course, this point of view has its place in the criminal justice system as well. Such things as urgent circumstances are often exceptions to the rule. Even in our laws regarding Massachusetts search and siezure. However, as a rule, our system claims to value individual rights over the desires of law enforcement.

Unfortunately, certain decisions, even when not urgent, are often made by law enforcement in haste. And once made, they are seldom reversed. Take, for example, the alleged “search for the truth” behind an alleged crime and who the guilty party is.

Often, that search is, in reality, quite short-lived, while the “solution” is eternal.

Too often, decisions as to guilt and innocence are made by police almost immediately. Once made, that decision is generally not changed and often controls the rest of the investigation. In other words, any evidence that supports the decision is considered reliable. Any evidence that is contrary is not reliable and, if it is coming out of a witness’ mouth…it is a lie.

“How can the police decide so quickly? What can persuade them so early in an investigation?”

Often, it is who gets to them first. Law enforcement, from street patrol to the prosecutor in the courtroom, seem to believe that innocent people immediately run to the police when faced with a problem, while the guilty are without guile and always shrink away from police contact. This is, of course, pretty short sighted, particularly in a society that has now learned that criminal prosecution is a dandy way to not only protect oneself in a crime, but to extract vengeance.

“Wait a minute…we were talking about cases in which I might be a witness…a witness who has no involvement in a case that is under investigation.”

Who says you have no involvement? After all, if you did not beat a path to your local lawman’s doorstep, you may well have something to hide. Further, if, upon being questioned, you have nothing helpful to offer…you may be covering up.

It tends to depend upon what the going theory of the investigation is.

“Won’t the truth come out in the end?”

Maybe. Maybe not. Maybe it will, but only after about a year with potential jail time hanging over your head and thousands of dollars spent on your defense later.

“Why would that be?”

Stay tuned next blog…which, I am happy to announce, is now back to regular postings!

Consider it something to be thankful for after last week’s holiday.

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