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.

Articles Posted in Assault and Battery

During a criminal investigation, police may ask you questions whether you’re under arrest or not. But you don’t have to answer. Well, at least not most questions, and not initially. You must provide basic identifying information, such as your name and date of birth. If law enforcement asks you additional questions, you have the right to simply say “no” or remain silent, but the questions will likely continue until you specifically request to speak with a lawyer. This is true at any stage of the process.

The Fifth Amendment

The fifth amendment to the United States Constitution upholds a person’s right to remain silent. As such, invoking this right is often referred to as “pleading the fifth.” This amendment, which was proposed to congress in 1789, holds that no person “shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

But the fifth amendment is not without limits. For starters, commands and orders are not questions and should not be treated as such. For example, if an officer asks where you were the night a crime was committed, you have a right to plead the fifth. You do not, however, have the right to remain in your vehicle if an officer is ordering you to get out.

Can I Refuse a Request to Go to the Station for Questioning?

In short, yes. If you are a suspect, however, investigators will likely come to your work or home, and you may be arrested on the spot. A better idea is to schedule an appointment for later in the day or the next day, after you’ve had a chance to consult with a skilled Boston criminal defense lawyer. An attorney can even accompany you to the station, and can provide you with additional details about what to expect. Attempting to “go it alone” can be a big mistake when it comes to criminal investigations.

Should I Ask Police if I’m a Suspect?

Coming right out and asking police if you’re a suspect can be a very bad idea. For starters, they have absolutely no obligation to be completely honest during an interrogation. They might even lie to trick you. Further, the question itself can be incriminating. Avoid asking this question; ask for an attorney instead. Remember, anything that you say can be used against you.

Talking to police can be scary. They can be intimidating enough on their own, but you might also fear retaliation from those involved in the crime for “ratting them out,” talking too much, or even just providing a witness statement. Having an experienced MH defense attorney by your side can provide you with legal protection and the peace of mind to move forward. Continue reading

If you were falsely accused of domestic assault and battery, it’s important to seek the counsel of an experienced defense attorney, and fast. The charges – also known as domestic violence or domestic abuse – have serious implications in MA. In addition to a criminal record and fines, you may be required to complete anger management programs, or more expensive “batterer’s” programs. In some instances, you may have to avoid all contact with the person you are accused of harming.

Domestic violence is a serious crime, but an experienced MA defense lawyer understands how often these charges are exaggerated – or even completely fabricated – as a result of relationship problems. More than one jealous lover has falsely accused his or her mate of domestic violence. These false accusations are even worse because they undermine incidences of real domestic abuse.

What is Domestic Assault and Battery?

Domestic Assault and Battery is similar to regular assault and battery, but it involves a family member or someone who lives with you and with whom you have a close, personal relationship. Assault is a threat of violence, and battery involves unwanted physical contact with the intent to cause harm. Neither assault nor battery have to result in actual physical harm to be a crime. Even the intent to harm another can land you behind bars.

Penalties for Domestic Assault and Battery

If convicted of any type of domestic violence, you may face penalties including hefty fines and time behind bars. As with any crime, the penalties vary depending on the severity of the underlying offense and prior criminal history. Penalties may include:

  • First offense: Up to 30 months in prison and a $1,000 fine. You may also have to enroll in a Certified Batterer’s Program, which can cost more than $3,500.
  • If the victim is seriously injured, over the age of 65 or pregnant, the crime may be classified as “aggravated.” Aggravated domestic assault and battery is a felony offense and carries up to five years in prison.
  • When a dangerous weapon is involved, you may be charged with assault and battery with a dangerous weapon. If convicted, the penalty is up to 15 years in prison.

False accusations are a serious problem; they are costly, time consuming, and can ruin a person’s reputation and life. An experienced Boston defense attorney will know how to find the weaknesses in the prosecution’s case and use them to prove your innocence. Domestic violence is a serious crime in MA. Don’t let a bad break up give you a criminal record.

What if My Accuser Drops Charges?

In Massachusetts, even if the alleged victim recants his or her accusation, you will still be arrested. This may seem odd, and even unfair, but this policy is intended to protect victims of abuse. If your accuser decides they don’t wish to press charges, you are still not in the clear. The District Attorney’s office often ignores requests to drop charges in domestic violence cases. It is common for victims of domestic violence to feel pressured by their abuser to drop charges and “work things out,” and the courts want to avoid a revolving door of repeat cases. Continue reading

The words “assault” and “battery” are usually used together to describe the criminal act of physical violence, or the threat of physical violence, against another person. These two words have distinctly separate meanings. However, they also have many similarities and often occur together. While assault can involve just a threat of violence, battery involves the intentional offensive or harmful touching of another person.

The Three Elements of Battery

For a person to be convicted of battery, the following three elements must have been present:

  • The touching was intentional.
  • The touching was offensive or harmful.
  • The victim did not consent to the touching.

It may come as a surprise that battery does not require an intent to harm, only an intent to make contact with the victim. So, accidentally bumping into a person who subsequently falls down and is injured is not battery. But spitting on someone, although it does not result in injury, may constitute battery. Basically, if you make offensive or harmful contact with another person, you may be charged with battery. A Boston defense lawyer can help you determine how to proceed if you are facing battery charges.

Penalties for Battery in Massachusetts

If you have been charged with battery, you may be wondering what penalties you are facing. In MA, individuals convicted of this offense may receive the following penalties:

  • First offense: Up to two-and-a-half years in jail, and a fine of up to $1,000.
  • When bodily injury to a child occurs: Up to five years in prison.
  • When significant bodily injury to a child occurs: Up to 15 years in prison.
  • When serious bodily injury occurs, or the act is committed against a pregnant woman: Up to five years in prison, and a fine of up to $5,000.
  • Second and subsequent offenses against a family member: Up to five years in prison.

As with any crime, penalties for battery are largely dependent on prior criminal history, previous battery-related convictions, and whether any aggravating circumstances were present when you committed the act. If, for example, you have no prior criminal record, you are not likely to face serious penalties if you are charged with battery for spitting on someone. On the other hand, if you have an existing criminal record, and you are charged with battery for harming a pregnant woman, you may be facing some serious time behind bars. In either situation, the help of a skilled MA defense attorney can make all the difference in the world.

Domestic Assault and Battery

Domestic assault and battery is basically the same act as regular assault and battery, with one exception. Domestic assault and battery involves a family or household member. Penalties for this offense depend on the specifics of your particular case, but the standard penalty is up to 30 months in prison, and up to a $1,000 fine. In addition, you may be required to complete a Certified Batterer’s Program, which can cost more than $3,500 in some situations. Continue reading

In MA, if you are charged with certain criminal offenses, you may be eligible for something called a pre-trial diversion program. But what exactly does that mean? Well, in short, it’s a program that allows defendants with little to no criminal past to avoid the traditional criminal justice system. In exchange they are enrolled in a program that, upon successful completion, results in dropped charges and no record. Usually reserved for minor offenses committed by young people, such as non-violent alcohol and drug related crimes, a MA defense attorney can help you determine if pre-trial diversion is an option for you.

Criminal convictions come with a whole slew of problems, from jail time and hefty fines to long-term probation and a criminal record. With pre-trial diversion, you may be able to avoid all of the above. In MA, if your offense was relatively minor and you have little to no criminal record, or you are a veteran, you may be eligible for this program. Run by the local District Attorney’s Office, pre-trial diversion requires the successful completion of several requirements. A Boston defense attorney can evaluate the details of your case to determine if the District Attorney’s Office is likely to agree to diversion. If you are eligible, you may never have to face a judge.

What are the Requirements of Pre-Trial Diversion?

The requirements you must complete are largely dependent on the underlying crime. For example, if you were charged as a minor in possession of alcohol, you may be required to enroll in an alcohol abuse treatment program. If you successfully complete the program, your charges will be dismissed. In order to be considered for the program, however, you must fit into certain categories. These include:

  • You must be between 17 and 22 years of age.
  • Your charge must be a misdemeanor and a first offense (most commonly-approved charges include theft, shoplifting, drunk driving, and assault).
  • You must have no warrants for your arrest.
  • You must have no pending federal or state criminal cases.
  • The court must have jurisdiction over the crime you are being charged with.

Pre-Trial Diversion for Military Veterans

There is one exception for the age requirement – being a military veteran. In fact, certain diversion programs are uniquely tailored to veterans. If you do not complete your requirements or you violate any of its terms, you will be re-entered into the criminal justice system. This exception for veterans is pursuant to the Valor Act. Under this law, a veteran may be permitted to enroll in a diversion program as an alternative to prosecution. In order to qualify, the individual must:

  • Be a veteran, be a member of active service, or have past military history.
  • Be charged with a state crime.
  • Have no previous federal or state convictions.
  • Have no warrants for arrest.
  • Have no pending criminal cases.

Veterans who qualify for the program are usually enrolled in Mission Direct Vet (MDV) treatment programs. MDV offers treatment programs for veterans suffering from substance abuse and mental health problems. Continue reading

The United States Constitution holds that a citizen is presumed innocent until proven guilty. However, there are some exceptions. In Massachusetts, an individual accused of a crime can be detained in the county jail, before his trial, for up to 90 days if he is deemed a “dangerous person.” This is known as pre-trial detention.

In addition to creating extra stress and hardship, pre-trial detention can impede the defendant’s ability to work with his lawyer on a defense. In most cases, a defense lawyer works with the defendant, immediately following a charge, to craft an effective defense while details are still fresh in his mind. During these crucial hours and days following a criminal charge, the defendant may:

  • Provide contact information for witnesses.
  • Visit the scene of the alleged crime with his lawyer.
  • Provide details of the events leading to his arrest.
  • Work with his attorney to gather important evidence.

If the defendant is locked in pre-trial detention during this important phase of the defense process, his chances of success are dramatically reduced. For this reason, among others, it is essential to find a Boston defense attorney who understands how to avoid pre-trial detention. And if, for any reason, your attorney is unable to remove such an order, he or she should understand how to use it to your advantage. When a defendant is subjected to pre-trial detention, his attorney is generally permitted greater access to the prosecution’s witnesses. During cross-examination, a skilled MA defense attorney can look for weaknesses in the prosecution’s case and use them to the defendant’s advantage.

What Types of Crimes Can Place a Defendant in Pre-Trial Detention in MA?

This type of order is most commonly issued in domestic abuse cases, but the following scenarios may also result in the pre-trial detention of a defendant:

  • Felonies involving “the use, attempted use or threatened use of physical force against the person of another.”
  • Felonies that involved a “substantial risk” of physical force or injury even if no injury occurred.
  • Violations of restraining orders.
  • Misdemeanors or felonies involving abuse.
  • Drug offenses with mandatory minimum sentences of three years or more.
  • Third or subsequent motor vehicle offenses (generally involving drunk driving).

Prior to the issuance of a pre-trial detention order, a hearing must be held. The hearing is like a mini-version of the upcoming trial; the judge makes rulings and examines the facts. However, the hearing is also an opportunity for the defense attorney to learn a great deal about the prosecution’s evidence, or lack thereof.

What Factors Does a Judge Consider When Deciding if a Pre-Trial Detention is Necessary?

  • The level of danger posed to the community by the defendant.
  • The allegations of violence against the defendant.
  • The potential penalties if the defendant is convicted.
  • History of mental illness.
  • The defendant’s reputation.
  • The risk that the defendant will attempt to intimidate witnesses or obstruct justice.
  • Past criminal record.
  • Whether the alleged crime included abuse.
  • History of restraining order violations, if any.

Continue reading

Former Massachusetts Governor Deval Patrick signed new legislation in 2014 dramatically changing the way domestic violence is penalized in MA. The new law, An Act Relative to Domestic Violence, created two new crimes: domestic assault and domestic assault and battery. A MA criminal defense attorney can help you determine how to proceed if you are facing any type of domestic abuse charges.

Before we discuss domestic assault and battery laws, let’s first discuss what is meant by assault and assault and battery. Battery is a physical act of harmful or offensive contact. Assault basically means “attempted battery”, therefore, you don’t even have to make physical contact with the victim to be charged with assault. For an assault and battery conviction to be likely, the following circumstances must have been present:

  • You touched the victim with no right or good excuse for doing so.
  • You intended to touch the victim.
  • The touching was harmful or offensive, and without the person’s consent.

With regard to the domestic assault and domestic assault and battery laws, the above mentioned elements must still be present. The difference from other assault cases, however, is that the victim must have been a family or household member. If the victim was your spouse, or a boyfriend or girlfriend, or if you have a child together, you will likely be charged with domestic assault or domestic assault and battery. If you are facing these charges, it’s in your best interest to consult with a Boston defense lawyer immediately.

Penalties for Domestic Assault and Domestic Assault and Battery

Here’s where the biggest differences come into play. The penalties for domestic assault and domestic assault and battery are more severe than for their non-domestic counterparts. Although the punishment is generally the same – up to two-and-a-half years in jail –  the fines are much higher. Assault and battery carries fines of up to $1,000, whereas domestic assault and battery fines can be as high as $5,000.

Additional Consequences

If you are convicted of assault and battery (even if it’s a first-time offense), you must complete a batterer’s intervention program. Further, if you are charged with domestic assault or domestic assault and battery, the legislation passed in 2014 now requires you to wait at least six hours before posting bail. This is for the added protection of your spouse or family member. And if this isn’t your first conviction, things can get even worse. Second convictions carry an aggravated penalty, which can land you in a state prison for up to five years. Aggravated assault and battery is a felony offense. You can also be convicted of an aggravated offense under the following circumstances:

  • If the victim is seriously injured, over age 65, or pregnant.
  • If the victim had filed a no contact order against the defendant.
  • If a dangerous weapon is involved (carries a penalty of up to 15 years in prison).

Continue reading

Assault, by itself, is a crime. But the penalties for that crime are largely dependent on the nature of the assault. You may have heard of the terms simple assault, aggravated assault, and assault & battery. What do these terms mean and what are the implications for someone facing these charges?

Simple Assault

The act of assault is committed if a person attempts to use force against another person, or even if he or she simply demonstrates an intention to use force against another. Basically, you can assault someone without ever physically touching that person, if he or she feared immediate physical harm. You can even be charged with assault if the person did not know about the intended assault. What does that mean? Well, consider the following example. If you attempt to punch someone in the back but the person bends down and you miss, you can be charged with assault even if he or she wasn’t aware of the incoming punch. If there was a  threat of harm, or the intention to harm, you may find yourself on the receiving end of an assault charge.

Assault & Battery

Although this act sounds significantly worse than “simple assault”, you can still be charged with assault & battery even if no injuries were suffered. As long as there is physical contact, without the victim’s consent, you may have committed assault & battery. In order for “battery” to be present the touching must have been intentional, harmful or offensive, and without the victim’s consent. Interestingly, intent to harm is not a prerequisite of battery charges, however, an intent to make bodily contact is. A skilled Boston assault & battery lawyer is your best defense against these very serious charges.

Aggravated Assault

When “aggravating” factors are present during an assault on a victim, the charge may be raised to aggravated assault. What is an aggravating circumstance? Basically, if a weapon is used, if the victim is a law enforcement officer, or if the victim suffered serious injuries, you will likely be charged with aggravated assault. You can also face aggravated assault charges if the injuries suffered were not serious, but the intent to cause serious injury can be shown. If you are facing aggravated assault charges, it is imperative that you seek the counsel of an experienced MA aggravated assault lawyer immediately.

Penalties for Different Types of Assault

Simple assault and assault & battery are generally considered to be misdemeanor offenses. If, however, you are facing the more serious charge of aggravated assault, you may be looking at felony charges.

  • Assault and assault & battery are both punishable by fines of up to $1,000 and up to two-and-a-half years in jail.
  • Assault that causes bodily injury to a child is punishable by up to five years in prison. If the bodily injury is substantial, the punishment can be up to 15 years in prison.
  • Committing assault & battery against a firefighter or a police officer is punishable by up to 10 years in prison.
  • An act of assault with the intent to murder, disfigure, or commit a felony is punishable by up to 10 years in prison.

Continue reading

Court records are public domain. Essentially that means that anyone with a few bucks to spend can access your criminal record, arrests, and even your mug shot. An expungement is a process in Massachusetts whereby these records are sealed. Although criminal records are not erased, they become inaccessible to the public, which includes potential employers and landlords. Read on for more information about expungements, if you are eligible to have a prior conviction or arrest expunged, and how to accomplish this liberating task.

If you were arrested but found not guilty, an expungement is a relatively easy process. You can file for an expungement, which will prevent the record of your arrest from being viewed by the public. It will also prevent the record from showing up in an employment or housing background check. If you were convicted, however, things get a bit more complicated. If you have been charged with a crime, contact a MA defense attorney today.

Misdemeanor vs. Felony

If the conviction was for a misdemeanor offense, you can file for an expungement once five years have passed without another conviction. Basically, your record has to remain spotless. If you were convicted of a felony, however, the “spotless record” period increases to 10 years. And much is dependent on the underlying offense. If you were convicted of an OUI, the likelihood of an expungement is good. If it was a sexual offense, you must wait at least 15 years and the process becomes extremely complex. If you are considering getting a felony offense expunged from your record, contact a Boston criminal defense lawyer today.

The Process

Clearing your record of prior arrests and convictions can have an immensely positive impact on your life. No longer will you be filled with anxiety every time you apply for a job, housing, or even a loan. A positive outcome calls for experienced legal counsel. In theory, you can apply for an expungement on your own, but it is highly inadvisable. A minor error can be the difference between a clean record and a mistake that continues to haunt you for years.

Step one is to file a “Petition to Seal” with the District Court from which the case originated. This can include documents that support your petition, including disadvantages arising from public access to your record, evidence of rehabilitation, and other relevant evidence and circumstances. The next steps include:

  • Preliminary review of your petition: Once filed, the District Court judge will begin to review your petition. If you meet the preliminary requirements for expungement, you will be notified of a court hearing date. If you do not meet the preliminary requirements, you will be notified in writing.
  • Hearing: The purpose of the hearing is to give you an opportunity to tell the court why your record should be expunged. If you hire an attorney, in addition to filing all paperwork above, he or she can speak on your behalf at the hearing.
  • Decision: At the conclusion of your hearing, you will either be given an immediate decision or the judge will take the case under advisement. If the latter, you will be notified by mail of the final decision.
  • Appeals: If the initial decision is not favorable, you can appeal with the MA Appeals Court.

Continue reading

Hello there. Attorney Sam Goldberg here with a question. What do the new motion picture “Patriots Day”, the issue of bullying and this blog have in common?

The answer is a certain hip hop artist I have mentioned from time to time by the name of Token. Token has a very small part in the movie…and a non-musical one at that. However, he has also recently released his latest music video, “Exception”, which can be found at various places.

Without going through the entire story line and it tragic ending, suffice to say that the video takes the march against bullying from a different perspective. Sure, the song is anti-bullying. But, then again, most people are.

This song, though, focuses it’s attention on the witnesses to events of bullying. In fact, as in various interviews, 18-year-old Token admits that he, himself, has been guilty of sitting back and simply watching such events in silence. He further explains that the reason for the title “Exception” refers to a line in the song indicating that the high school in the video is a typical suburban location where most people figure is an exception to the bullying issue…so nobody has to worry about it.

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Hello again.

First things first.

We recently had a presidential election. The country was pretty divided in that one. As a result, some folks were going to be left angry no matter who won.

Donald Trump won. Some people are very angry.

That’s fine. Dissent and free speech are what this country is all about.

To an extent.

Attorney Sam’s Take On Speech, Hate, Assault and Battery

We have discussed the issues of “hate crimes” before. While a crime like assault and battery is assault and battery, regardless of the purported reason, such actions under certain circumstances are considered more heinous and so are given special attention. This would include cases of domestic violence and “hate crimes”.

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