In my last posting, we spoke about a particular defendant who was arrested for drug crimes. Members of his family were also arrested at the scene for, basically, trying to prevent the arrest from taking place as the officers had intended it. Let’s call them, collectively, the “Defendant Family”.

On Thursday, I indicated that the Defendant Family would already be  affected by their arrest even if they ended up being found “not guilty”.

What many people still do not realize is that you do not need to be convicted to lose your “innocence” under the law.

A Clerk Magistrate hearing takes place in some cases before an arraignment. There is no judge at such a hearing, only a Clerk Magistrate. The purpose of the hearing is to decide if there is probable cause for the Clerk Magistrate to issue a criminal complaint. Should the criminal complaint issue, the next step is an arraignment.

This is why the Clerk Magistrates hearing is so critical to a defendant. It is the last stop before an arraignment. It is more than worth doing all that you can, usually through counsel, to get one. We have discussed the requirements and procedures for this in earlier blogs and, I am sure, will return to them again at some point.

But not today.

As you know, an arraignment is the first time a criminal defendant appears before a judge. At the arraignment, a defendant effectively loses his or her presumption of innocence.

“Sam, how can that be? We are all told that the presumption of innocence never ends unless and until the government proves the defendant guilty beyond a reasonable doubt before a judge or jury.”

You’re right. That is what we are told. In some cases, it is actually close to true.

Here are a few facts you may wish to consider before deciding whether what you have been told about the presumption is true.

First of all, when a criminal defendant is arraigned, the charges involved go on that defendants record, also known as a CORI. In Massachusetts, charges are not expunged. The most can that can happen is that they are sealed. Therefore, their imprint goes on to one’s record and stays there .

True, if the defendant ends up being found not guilty or the charges are dismissed, the criminal record will reflect that as well. However, those charges remain on the criminal record.

Let’s forget for the moment about all the folks in the future who will look at that record and simply assume that the defendant “got away with it” if the charges are dismissed or the defendant is found guilty (the least of which are prosecutors, probation officers and many judges). The fact is that when that defendant applies to either institutions of higher education or jobs, the defendant will have to sign a release so that the school or job can check the criminal record. Once receiving the criminal record, the perspective employer will now see that the defendant had been charged… regardless of how the case went.

Often, jobs are hard to come by. Certainly higher-paying jobs which involve a certain amount of professionalism and/or trust, have many applicants to each potential position.

I hope it will not shock many of you when I say that most employers or schools, when faced with the choice between someone with such a record and someone who’s record is absolutely clean, usually, all things being equal, will choose the person who has not been charged. Why take any chances?

“Well, Sam, what about when you say that there is a loss of the presumption of innocence? What you’re talking about might be true, but it has to do with people’s perceptions. Not the reality of the criminal justice system.”

I beg to differ.

At the end of a criminal trial, there are two possible verdicts for each count. One is “guilty” and the other is “not guilty”. There is no finding of “innocent”.

“Aren’t you splitting hairs here? Isn’t ‘not guilty’ the same thing as ‘innocent’?”

Well…not so much.

You see, in cases where there is an accompanying probation surrender hearing, or a hearing before the Registry of Motor Vehicles, or even a DCF action, those other agencies may not accept the “not guilty” verdict. To punish you in their matter, the standard of proof is lower than “beyond a reasonable doubt”. Therefore, they are not bound by the verdict.

Furthermore, any lawyer who is at all familiar with the system can tell you that “not guilty” technically just means that the prosecutor was unable to prove you guilty beyond a reasonable doubt. It does not mean “innocent”.

There will be no finding of “innocent”.

Therefore, the bottom line, if you want to hold the language to its usual meaning, you may be presumed innocent until trial…although that, too, is debatable…but once there is a trial takes place, that presumption goes out the window. You will simply be either guilty or not guilty.

Not innocent.



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