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.

“SHOULD I HIRE A CRIMINAL LAWYER FOR MY ARRAIGNMENT?” (Part Two)

In most cases, from OUI, to drug crimes , to rape, the criminal justice system views the beginning of your prosecution when you are brought into court and standing before either a judge of some sort for arraignment. In some cases, usually in superior court, Clerk Magistrates handle the arraignments. Make no mistake though…this is no Clerk Magistrate Hearing for probable cause. No, that bird, if it ever existed in this case, has flown.

You have been charged. That accusation is now on your record. That is not likely to change for a long time…if ever.

Yesterday, we discussed the reasons you might want to bring an experienced criminal defense attorney to a Clerk Magistrate’s Hearing.

Today, as you enter the halls of Justice, either via summons or chains, you wonder if now would be a good time to hire competent counsel…or would that be pushing it?

Attorney Sam’s Take On Why You Want Experienced Counsel At Your Arraignment

Well, if you are even the most casual regular reader of the Boston Criminal Lawyer Blog, you know that my answer to that question is that it would not be “pushing it”. In fact, as stated many times before, it would have been better had you had experienced counsel well before your arraignment.

However, my talents as a lawyer do not include turning back time. So, let’s pick it up at the arraignment.

What happens at an arraignment is, basically, very simple. However, as usual, the nuances of what is involved are not so simple.

Three things are basically addressed at arraignment. First of all, the question of whether you have a lawyer comes up. If have not hired your own attorney, one will probably be assigned to you, if only for that day. Next, you are informed what you have been charged with. And then there is the question of bail.

“Well, if the case is nonsense, then the judge will see that and not order my being held on high bail, right?”

Not really. The strength of the Commonwealth’s case is certainly one of the considerations when it comes to the bail hearing. However, it is really only considered when deciding whether you are likely to return to court to face the long, multi-month-long ordeal that is criminal prosecution.

“Well, I will just tell them that I will definitely come back.”

Yes, you and every other criminal defendant. You must remember that these people do not know you. They only know what you have been charged with.

“Well, I should be prepared for that.”

You would have been…if you had retained counsel. Other things the court will consider is whether you have any criminal record, whether you have a history of gaining default warrants, ties to the community, etc. to determine your likelihood of fleeing.

“But the court will let me out of custody if I make bail, right?”

In most cases, yes. You see, per usual, there are exceptions. For example, defendants facing murder charges are often held without bail because murder is considered the most serious crime you can be charged with. Therefore, you have the most incentive to skip town.

Other examples of when you could be held without bail is if you are being surrendered in a probation violation hearing. Finally, if the Commonwealth moves for a “dangerousness hearing”, claiming that you are a threat to the community you are likely to become an unhappy resident in state housing.

There are other exceptions, but these are the most common.

“Well, can’t the court-appointed attorney fight for me if the judge is looking for high bail or to hold me without bail?”

Of course. And depending on who that attorney is, he or she may do a spectacular job.

Considering.

“Considering what?”

Considering that said attorney has just met you minutes before he has to argue on your behalf. Considering that at the same time he or she is meeting you, the lawyer is also meeting a bunch of other new clients who are being assigned to him or her. Considering all the lawyer knows about the case is what you have been able to spit at him in scant minutes and what is on the police report(s).

“You make it sound like I am done for if I do not come to court without a lawyer.”

No, you are not “done for”. Necessarily. You are disadvantaged though. And, sometimes, that disadvantage is enough to make the difference between success and failure, fear or comfort, and liberty or incarceration.

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