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.

“IF I AM ARRESTED IN MASSACHUSETTS, WILL MY NAME BE IN THE PAPER?”

Yesterday, we discussed an item posted on Boston.com , about a driver who was busy videotaping his car hit 100-miles-an-hour when he was stopped by law enforcement. The unnamed driver, hereinafter, the “Defendant”, was apparently not arrested although he did give a full confession.

The story made me a little curious and so I tried to find an update to it, since the event actually took place in 2013. I was unable to find an update. I was also not able to find his name.

This reminded me of another issue that often surprises people. The question of when a criminal defendant’s name is or is not released to the public.

Let’s look at that question.

Attorney Sam’s Take On Public Disclosure Of Criminal Defendant’s Identities, Addresses And Allegations

In the United States, there is great freedom of the press. On the other hand, a criminal defendant also has a great many rights…at least theoretically.

After all, a criminal defendant, unless and until convicted, is assumed innocent.

On the other hand, as I have opined in the past, the defendant may be presumed innocent…but he is assumed guilty by most folks both in and out of the system.

“So how does it play out?”

In most cases, the media gets to print out the news of the case. This means printing the name, age and address at the very least. Routinely, the local papers print this information when anyone is arrested. Sometimes even if the case does not result in an actual arrest.

Many cases are similarly reported when the case is arraigned. Clerks and law enforcement regularly give this information to the press. In fact, they often know about an arraignment or some other court date before even the Parties know.

One exception to this is juveniles. Juvenile defendants’ are not published in the paper.  It may be that the driver in the story was a juvenile.

Sometimes, the media will figure that a particular case is of particular interest. In such situations, reporters, and sometimes cameras, will show up in and out of the courtroom to film and report on what is going on. In such cases, this will follow the case until completion.

Usually, I find that there is particular interest in the beginning of a case as well as when the case ends…especially if it ends with a conviction.

“But, Sam, can’t that effect how the case is handled?”

 

In my experience, it often does. I have handled high profile matters both as a prosecutor (in New York) and defense attorney “(Massachusetts).  It can effect the criminal investigation as well as the resulting prosecution.

I can tell you that the amount of press interest usually does effect how the prosecution handles a case. This is not a huge surprise. Remember…the prosecutor’s office is run by an elected official usually…such as a District Attorney. A District Attorney is a politician. She is either re-elected or she is out of office.

In connection with this, as I have been known to point out ad nauseam, nobody is ever considered for seeming “too tough” on crime. Thus, you can be sure that a matter that is being prosecuted is going to get extra scrutiny by law enforcement if it is high profile.

On the other hand, I have also seen cases when the District Attorney will refuse to prosecute a case. I have been involved in matters, representing the victim, when the victim claims to have been raped…only to hear the DA’s Office proclaim that, “We believe that this happened to you,” but refuse to take the case.

“Why? Because they feel that they will not win?”

That is my opinion. My clients and I have been told, however, that there is not enough “prima facie” evidence.

“What is that?”

Basically, enough for a matter to even be considered by a jury as a matter of law. The standard is incredibly low. I have seen cases with less evidence than these cases to which I refer be prosecuted by the very same DA Offices.

In my opinion, the decision is made because of the potential embarrassment. On the other hand, why they take some other weak matters to trial but won’t accept others…who knows?”

I have learned long ago not to expect anything resembling consistency in the criminal justice system.

On that happy note…have a great, safe and law abiding weekend!

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