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.

“I HAVE RECEIVED A SUMMONS TO COURT FOR MASSACHUSETTS SHOPLIFTING”

Shoplifting is another of those misunderstood crimes. In Massachusetts, it is certainly considered a crime…and a crime that prosecutors are happy to prosecute.

There are, however, some realities, positive ones this time, of which you may or may not be aware. An experienced criminal law attorney would be though. As usual, the first thing you should do upon being accused is to get yourself one of those.

In the meantime, allow Attorney Sam’s Take to tell you a little about it.

In most cases, shoplifting cases are misdemeanor cases. Often, if you are not actually arrested, you will receive a summons which gives you notice of a Clerk Magistrate’s hearing that is to be held in your honor. The first thing to do is retain the appropriate lawyer.

“Sam, are you sure about that? I mean, when I was served the summons, I asked the officer if I needed a lawyer and she said ‘no’ “

That is not a surprise. Police officers are not generally big fans of criminal defense attorneys. They tend to think that the legal system would churn much more smoothly without us.

“So, the officer was lying to me?”

No, technically, she is correct. You are not required to have a lawyer at a clerk’s hearing. In fact, there is no requirement to even show up for the hearing.

Of course, before you make such decisions, you might want to consider what a clerk’s hearing is for.

The hearing is set so that a court clerk can ascertain whether probable cause exists to believe that the crime took place and that you did it.

Probable cause is a rather low burden for a clerk to find. A police officer will likely be the one presenting the evidence to the clerk.

Let’s say you exercise your right to not show up.

“The clerk will realize it is a nothing case and not find probable cause?”

Uhh…no. Hearing the evidence and seeing that you did not care enough to bother to show up, he is most likely find probable cause and issue a criminal complaint in your name. The next step will be your arraignment. At that time, the criminal charge will be entered on your record. If you fail to show up at your arraignment, a warrant will be issued for your arrest.

“Hmm. How about if I go but without spending the money on a private lawyer?”

Understand that if you do not bring your own attorney, you will have no attorney. They do not appoint lawyers for indigent defendants for these hearings.

Assuming you are not an expert of such hearings, being unrepresented puts you at a disadvantage at the hearing.

First of all, you will have no one to prepare you for the hearing or represent you during it.

Before and during the hearing, an attorney can advise you, cross examine the police officer and present your side of the case. perhaps even more importantly, the lawyer can also try to work out an agreement with the clerk and officer which might prevent a criminal complaint from issuing.

“Couldn’t I do that myself?”

I don’t know. Could you?

Timing and reading the situation is key in these situations. That usually takes a mixture of instinct and experience. Maybe you are the most perceptive person on the planet.

Here is the bottom line…if you are unable to halt this matter at this stage, then a criminal complaint is going to issue and the charge will go on your criminal record. Regardless of how successful you are down the road in this case, that entry will remain for a good long while. That means you will be revisiting it whenever you apply for a school or a job.

Even if you should win the case-in-chief.

It is up to you how much you want to gamble with that.

“Is there any other way I could face charges for something like shoplifting?”

Yes. You could have been arrested at the scene of the alleged crime.

If you we’re arrested, you do not have the right to a clerks hearing.

“If I am facing charges of shoplifting, am I going to jail?”

Probably not…but you could be. Let’s get back to that later this week.

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