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 Criminal Law

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?”

 

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Harassment, which occurs when a person intentionally annoys, threatens or provokes another person – or causes them to feel emotional distress – can take many forms. Workplace sexual harassment, for example, may include everything from making inappropriate jokes of a sexual nature in the presence of a co-worker to outright sexual assault. Whether or not harassment is a crime, however, depends on multiple factors. More serious types of harassment, such as stalking and hate crimes, are generally considered to be criminal in nature. But what about social media harassment?

Harassment doesn’t always occur in the physical realm. In fact, more and more often, people are using the anonymity of the internet to wreak havoc on their victims. From making online threats to cyberbullying, online harassment via email and social media networks has become disturbingly common. As with all types of harassment, however, the punishment – or lack thereof – depends more on the type of harassment than where the harassment takes place. For example, a death threat is a criminal form of harassment whether it’s made in person or on social media, whereas calling someone fat in person or online is cruel, but probably not criminal.

Misdemeanor or Felony?

Criminal harassment can be a misdemeanor or a felony. The distinction between the two is often based on whether the harassment was a first or subsequent offense. But the type of harassment is also a factor; a threat that makes a person fear for her safety may be a misdemeanor, but threatening to kill someone is more likely to be considered a felony. A Boston personal injury lawyer can help you determine how to proceed if you’ve been the victim of social media harassment.

In recent years, legislators have begun to respond to the impact that cyberbullying, including social media harassment, can have on children and young adults of all ages. Depression, suicide, and even school shootings have been some of the most tragic consequences. As such, there has been a nationwide trend toward increased accountability for all types of bullying, with a focus on “electronic harassment,” including social media bullying and threats.

Penalties for Cyberbullying

Cyberbullying constitutes harassment if it involves repeated conduct of an alarming nature that is directed at a specific victim. If the actions would cause a reasonable person to feel distressed, the harassment may lead to criminal penalties. In MA, harassment – online or otherwise – can carry a fine of up to $1,000 and up to two-and-a-half years in jail. Second and subsequent offenses can land the individual in prison for up to 10 years.

Cyberbullying is a serious issue. The lasting emotional pain and fear for one’s safety can be devastating. A MA injury lawyer can help you recover damages if your child has been the victim of social media harassment or any type of cyberbullying.

Beyond fines and jail time, a person convicted of online harassment may be required to undergo psychological counseling. Further, he or she will likely be forbidden from having any type of contact with the victim. Violating such an order will almost certainly lead to additional charges.

Most states, including MA, have implemented anti-bullying policies in their schools. Students who harass another student in school or online may be subject to non-criminal penalties, including school suspension or a ban on school sports. And victims of cyberbullying may be able to seek compensation in civil court. Continue reading

Often, I receive calls from victims of crimes.

Yes, I know that I generally call them “complainants” because I am a criminal defense  attorney. I do know, however, that crimes do indeed happen and, when they do, it is usually a victim that they happen to.

Besides, as far as I am concerned, if my client tells me that he or she is a victim of a crime, I can hardly disagree. After all, I was not there at the event.  If I were, i would be a witness.  But that is a whole other subject.

Does it surprise you that I am sometimes hired by victims of crimes to help them through the criminal justice system?

It shouldn’t.  For the uninitiated, the criminal justice system is a foreign and scary land.

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Arson is a criminal offense that occurs when a person intentionally and maliciously sets fire to another’s property. The term ‘property’ can refer to a house or building, but it also includes motor vehicles, and even open land.

Fires caused by arson result in hundreds of deaths and thousands of injuries annually. They destroy buildings, outdoor areas, family homes and vehicles such as cars and boats. In fact, the burning of one’s own property can also be considered arson, if done for an improper purpose. This is common when a person wishes to collect money by making a fraudulent homeowner’s insurance claim. In Massachusetts, arson is a felony.

It is estimated that the crime of arson costs about $1.4 billion in property damage every year. Statistics show that arsonists most often target poor areas and abandoned buildings. If you have been charged with arson, you may be facing serious penalties and significant time behind bars. A Boston criminal defense attorney can help you determine how to proceed.

Arson prosecutions

In order to convict someone of arson in MA, the prosecution must prove beyond a reasonable doubt the following elements:

  • The burned property had a value exceeding twenty-five ($25) dollars;
  • The property – that belonged to another person – involved real estate, or personal property;
  • The accused intended to burn the property, or caused the property to be burned, intentionally and not merely by accident.
  • The accused burned the property maliciously, meaning that there was an unlawful motive behind the act, without lawful excuse.

The hardest element for the prosecution to prove in an arson case is that a defendant was “willful and malicious” when he or she set fire to the property, or caused it to be burned. This is good to know if you are currently facing arson charges; the prosecution often struggles when trying to establish the defendant’s state of mind at the time the crime was committed (i.e. it may be extremely difficult, for example, to prove that a person using fireworks intended to burn his neighbor’s house to the ground). This is why it is so important to have knowledgeable, experienced legal counsel if you are facing arson charges. A MA defense attorney can help you protect your rights if you’ve been charged with arson.

Arson Penalties

The crime of arson carries some serious penalties. As with most crimes, however, the penalties and punishment depend on multiple factors, including prior criminal history, aggravating circumstances, and the value of the damaged property / injuries. If you are convicted of arson in Massachusetts, you may be facing the following penalties:

  • If you acted “wantonly,” (as opposed to maliciously) – a maximum of two-and-a-half years in jail, and a fine of $1,500, or three times the value of the damage, whichever is greater;
  • If your actions were willful and malicious – up to 10 years in prison, and fines of $3,000 or three times the amount of the damage caused;
  • Restitution (financial payment to victims intended to compensate for damages suffered);
  • Probation sentence of at least 12 months, and up to five years.

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None of us really wants to be on the other side of the  justice system. But when we find ourselves in such a position, it is essential that we face the problem head on, and deal with it immediately. Unfortunately, warrants do not just disappear.  Avoiding or postponing the inevitable will almost certainly result in more severe consequences.

In criminal cases, failure to appear at a scheduled court date may result in the judge issuing a warrant for your arrest. If this happens, you will need to act immediately; police may take you into custody at any time.

Bench Warrants vs. Arrest Warrants

Warrants are issued for a multitude of reasons. In MA, there are two primary types of warrants – bench warrants and arrest warrants. The differences between the two are explained below.

A bench warrant may be issued if you fail to appear for a scheduled court date. Police have the authority to take you into custody if you have an outstanding bench warrant. In addition to failure to appear in court, these warrants are issued for violating probation, and failure to pay child support or complete community service. If police take you into custody on a bench warrant,  you could end up stuck in jail until the court schedules a hearing on your case. You will also likely have to pay court fees.

When a bench warrant is issued against you, police may or may not actively seek you out. For this reason, people often mistakenly assume that the problem has miraculously disappeared. But even a minor traffic stop years later can result in police running your name, seeing the warrant, and placing you under arrest.

An arrest warrant is issued when a police officer provides substantial evidence that you have committed a criminal offense. If a judge issues the warrant, police are authorized to arrest you at any time. One main difference between bench warrants and arrest warrants is that police will actively seek you out when an arrest warrant has been issued. If taken into custody, you could be held in jail without bail until the court schedules a hearing on your case. A Boston criminal defense attorney can help you determine how to proceed if you are facing a bench or arrest warrant.

Failure to Appear in Court

In addition to the issuance of a bench warrant, failure to appear in court may also carry its own penalties. In Massachusetts, the penalties for failing to appear in court may include:

  • Failure to appear on a misdemeanor proceeding: Up to one year in jail and fines up to $10,000
  • Failure to appear on a felony proceeding: Up to two-and-a-half years in jail and fines up to $50,000

You can avoid a warrant and the penalties above by dealing with the problem proactively and arriving on time to all scheduled court dates. If you accidentally miss a court hearing, however, a skilled Boston defense attorney can help you protect your rights. Continue reading

In response to the historic 1966 case of Miranda v. Arizona, the Supreme Court declared that any person taken into police custody must be informed of the right not to make self-incriminating statements under the Fifth Amendment. In Miranda v. Arizona, Ernesto Arturo Miranda was convicted on charges of rape, kidnapping and armed robbery based on a confession he made while being interrogated by police. Had he known his Fifth Amendment rights, Miranda would likely not have confessed to the crimes in question. As such, our “right to remain silent,” and associated rights are commonly referred to as the Miranda Rights.

The Four ‘Miranda Rights’

If you are placed in police custody, you must be read your Miranda Rights prior to being questioned. These rights are as follows:

  • You have the right to remain silent.
  • Anything you say can and will be used against you in a court of law.
  • You have the right to an attorney.
  • If you cannot afford an attorney, one will be appointed for you.

Occasionally police will fail to read the Miranda Rights to a suspect in custody. Whether they just forgot, or chose to do so, is irrelevant. If you are questioned without receiving your Miranda rights, any confession you make will likely be considered involuntary, and thus inadmissible in your case. In addition, any evidence obtained by way of the involuntary statement may also be thrown out. A MA defense attorney can help you determine how to proceed if you’ve been charged with a crime.

An Unlawful Confession

Consider the following scenario. Stephanie is arrested on suspicion that she was involved in a hit and run accident. Before being read her Miranda rights, Stephanie is questioned. She breaks down in tears, saying she only fled the scene because her friend – who had a bag of illegal prescription pills – told her to keep driving. Stephanie also confesses that they threw the bag of pills out of the car window after the accident. The police, in turn, find the bag of drugs and submit as evidence in court.

If Stephanie has a good defense attorney, the attorney will challenge her confession, saying that Stephanie would never have confessed if she had known her right to remain silent. The judge is likely to find the confession unlawful, which means that both the confession and the drugs discovered as a result of the confession will probably be thrown out. A Boston criminal defense attorney can help you protect your rights if you are facing charges for any type of crime.

Fifth Amendment

Miranda rights are essentially an extension of our Fifth Amendment rights. They are intended to ensure that any suspect knows his or her rights and, if choosing to waive those rights, does so voluntarily. The following is the text of the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor 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. Continue reading

If you robbed or stole from someone while in possession of a deadly weapon, you may be facing charges for armed robbery. This is a serious crime in MA, and the penalties can be extremely harsh, up to and including life in prison. There are, however, multiple defenses against this crime. In addition, alternative sentencing options may exist in certain situations. When it comes to armed robbery, the help of an experienced MA criminal defense attorney is crucial to a favorable outcome.

The Four Elements of Armed Robbery

In order to be convicted of armed robbery, however, four elements must be proven. These are:

  • The defendant was in possession of a deadly weapon, or threatened use of a deadly weapon. Obvious examples are guns and knives, but anything can be considered a deadly weapon if it could cause serious harm. The weapon doesn’t need to have been used during the robbery. In fact, the defendant doesn’t even need to have a weapon in his possession. The threat of a weapon is enough.
  • The victim must have been physically hurt, or the defendant’s threat of harm must have made the victim fear for his safety. In addition, the defendant must have used the threat of force during the robbery.
  • The defendant must have actually taken the victim’s property, or the prosecution must show that he intended to steal it.
  • The defendant must have taken the property against the victim’s will.

As stated above, you do not need to be in possession of a weapon to be convicted of armed robbery. If the victim felt reasonably threatened that you were in possession of a weapon, you can be charged with this crime.

Penalties for Armed Robbery

Armed robbery is considered a violent crime in MA, and it carries the potential for life imprisonment. As with any criminal offense, your prior criminal history and the circumstances surrounding the crime will factor heavily in determining punishment. In MA, there is a five-year mandatory minimum sentence for many forms of armed robbery. The mandatory minimum is 15 years if you have a previous conviction.

  • The victim’s identity is also considered when determining punishment. If, for example, the victim was at least 60 years old, you are more likely to face an increased sentence of up to 20 years.
  • If the armed robbery was committed inside of the victim’s home, you may be facing up to life in prison.
  • There is a mandatory minimum sentence of five years if you wore a disguise during the robbery.
  • There is a mandatory minimum of five years if you were in possession of a gun at the time of the robbery.

One of the most effective defenses in armed robbery cases is to raise an identification issue. If the victim or witnesses are unable to confidently identify the defendant as the individual who committed the robbery, a conviction will be unlikely. That being said, a successful defense is highly dependent on the help of an experienced Boston criminal defense attorney. Continue reading

If you get arrested on suspicion of OUI in Massachusetts, the law requires that you submit to a breath or blood test. This “implied consent” law states that if an officer arrests you for OUI – with probable cause – you must consent to a blood or breath test to determine your blood alcohol content (BAC). As such, there are consequences if you refuse.

If you refuse the breath test (commonly referred to as a breathalyzer), the officer will warn you that a refusal will result in a minimum 180-day license suspension. If you still refuse the test, the officer will automatically take your license and have your car sent to impound (although this will likely happen even if you don’t refuse the test).

In MA, refusing to submit to a breathalyzer test comes with the following consequences:

  • First offense: 180-day license suspension
  • Second offense: Three-year license suspension
  • Third offense: Five-year license suspension

There are some exceptions to the rules above, however. For example, if you are under 21 at the time of your arrest, you will receive an automatic three-year suspension. And if you refuse the test after causing serious injury to another, you will lose your license for 10 years if convicted of OUI. It’s a lifetime suspension if you refuse the breathalyzer after an OUI-related accident in which someone died. You will also lose your license permanently if you previously refused a breathalyzer in three separate OUI arrests.

Is Refusing a Breathalyzer Ever a Good Idea?

At first glance, refusing a breathalyzer may seem like a terrible idea. In some cases, this is likely the case. However, refusing a breathalyzer may also work in your favor. Unfortunately, there is no one-size-fits-all answer to this question. The help of an experienced Boston OUI defense attorney is crucial to a favorable outcome.

If, for example, this is your first offense, and your BAC is likely over the limit but not excessively high, you may improve your chances of avoiding an OUI conviction if you refuse the breathalyzer. However, a refusal should only be considered if no aggravating circumstances were present, such as having a child in the car, causing property damage, injury or death, or the presence of drugs, drug paraphernalia, or weapons. And even then, there are no guarantees.

An over-the-limit BAC is compelling evidence, even if it’s only just over. It’s easier to argue that you were not intoxicated if there is no BAC on record.

If your charges are dismissed, a skilled MA OUI defense attorney can likely help you get your license reinstated. But, as stated above, there are no guarantees. If you can show that a) the officer did not have probable cause to stop you, b) you were never officially arrested, or c) you consented to the test but it was never performed, you will likely get your license back. Continue reading

When it comes to most types of criminal misconduct, such as drunk driving, selling heroin, or spousal abuse, the act itself is a crime. Drunk driving is a criminal offense in MA, with specific penalties based on the circumstances surrounding the case. But what about behavior that only becomes criminal under certain circumstances? Take shouting, for example. On its own, shouting isn’t a criminal offense. But shouting on a residential street at three a.m. may be.

To keep communities calm and running smoothly, MA limits what people can do by imposing certain laws meant to “keep the peace.” When a person’s conduct jeopardizes that peace, his or her behavior may be prosecuted as disorderly conduct, a criminal offense. It’s no surprise that disorderly conduct charges are especially common when groups of rowdy, intoxicated people gather. Music concerts, outdoor festivals, and sporting events are infamous for resulting in at least a few charges of disorderly conduct. A MA defense lawyer can help you protect your rights if you’ve been charged with any type of crime.

Examples of Disorderly Conduct

Beginning in 1996, federal law made it illegal for any person convicted of domestic abuse to purchase a firearm. But in the more than 20 years since that law passed, countless mass shootings have been perpetrated by individuals with a history of spousal abuse. Recently, a man convicted by the Air Force of beating his wife and stepson opened fire at a church in rural Texas, killing 26 people. How did Devin P. Kelley obtain an AR-15 military-style rifle after a domestic abuse conviction? According to the Air Force, his conviction was never entered into the National Criminal Information Center database.

“I am deeply disturbed — in fact, outraged — that this domestic violence conviction was apparently never reported, and what concerns me equally is the possibility that it’s only one example of non-reporting by the Department of Defense,” said Senator Richard Blumenthal, in a recent interview.

Massachusetts Laws on Guns and Domestic Violence

As of 2014, anyone convicted of a crime of domestic violence is prohibited from owning a firearm in Massachusetts. This is even true of misdemeanor convictions. In MA, domestic abuse includes any act of violence or abuse committed by one member of the household against another. Abuse includes:

  • causing or attempting to cause physical harm,
  • putting someone in fear of serious bodily harm, and
  • threatening or forcing another to have sexual relations.

And domestic abuse isn’t always physical. It can be emotional or sexual, and can even involve neglect or financial abuse. Domestic abuse crimes include:

  • assault,
  • violation of a 209A abuse prevention order (restraining order), and
  • intimidation of a witness.

What About Restraining Orders?

In MA, the issuance of a 209A abuse prevention order will automatically disqualify you from having or obtaining a License to Carry Firearms (LTC), or a Firearms Identification Card (FID). Regardless of whether the order is temporary, permanent, or an emergency order, you will have to surrender all firearms to the police. Once the order is lifted, you may be able to get your FID reinstated, and your firearms may be returned to you. A Boston criminal defense attorney can help you determine your rights if a protective order has been issued against you.

Can I Seal a Domestic Abuse Conviction?

In addition to the prohibition on buying or possessing firearms, any type of domestic violence conviction can negatively impact your ability to get a job or find housing for years into the future. In some cases, you may be able to get your conviction sealed, effectively hiding it from background checks conducted by employers and landlords. Once your record is sealed, only law enforcement agencies will have access to your criminal record. In rare cases, your sealed record may be accessed if you apply for a firearms license.

If your conviction was for a misdemeanor, you must wait five years to have your record sealed. The waiting period for a felony is 10 years. A MA defense lawyer can help you determine if you are eligible to have your criminal record for domestic violence sealed from public view. Continue reading

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