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

If you base your knowledge of crime on what is presented by the media, and the Trump administration, it would be easy to assume that U.S. crime is at an all-time high. However, quite the opposite is true. Here are some surprising facts about current crime rates, nationwide.

Drop in Violent Crimes

The rate of violent crime has dropped dramatically over the past 25 years, following its peak in the early 1990s. According to the FBI’s annual crime report and a Bureau of Justice Statistics (BJS) survey of more than 90,000 U.S. households, violent crime has fallen between 48 and 74 percent since 1993. That being said, the FBI did report a 20 percent rise in the murder rate between 2014 and 2016. Even so, overall violent crime is the lowest its been in decades, across the nation.

Drop in Property Crimes

Property crimes—which include burglary and motor vehicle theft—have also seen a significant decrease in recent years. Similar to the drop in violent crime, property crime in the U.S. has fallen between 48 and 66 percent between 1993 and 2016, and property crimes are much more common than those of a violent nature. A Boston criminal defense attorney can help you protect your rights if you’ve been charged with any type of criminal offense.

Pessimism

Public opinions about U.S. crime rarely lines up with actual statistics. For example, according to several polls, Americans commonly report that crime is up when data shows the exact opposite. In fact, according to 17 Gallup surveys taken since 1993, at least six-in-ten Americans said they believed there was more crime in that year compared to the previous year. Pew Research Center has experienced a similar outcome with their surveys. In a 2016 survey, more than half of registered voters said U.S. crime had worsened since 2008, even though it saw a rapid decline during that period.

Location, Location, Location

Crime varies widely based on geography. For example, while there were more than 600 violent crimes per 100,000 residents in Alaska and Nevada, violent crime rates in Vermont and New Hampshire were below 200 for every 100,000 people. And Boston is no exception. According to statistics and police reports, serious crimes in Boston have dropped by up to 22 percent since 2014. But for many residents who live in areas with a higher concentration of violent crime—such as Dorchester, Mattapan, and Roxbury—the drop isn’t as noticeable. “We still have a lot of work to do,” said Police Commissioner William B. Evans, who went on to say that even the most violent neighborhoods are more peaceful than in the past. A MA criminal defense lawyer can help you determine how to proceed if you’ve been charged with a crime. Continue reading

In the wake of multiple mass shootings, many involving schools, the debate about increased gun control is going strong. Vermont may have had one of the most shocking responses, as it moved from one of the most lenient states on gun control to one of the strictest. Last week, VT Governor Phil Scott signed into law three bills that tighten gun restrictions across the state.

Vermont’s new laws raise the legal age to purchase firearms to 21, increase the state’s authority to remove guns from individuals who pose a threat, and ban high-capacity magazines. According to the Associated Press, Vermont’s new laws represent “the first significant gun ownership restrictions in state history.” In fact, a suspected school shooter may have already been prevented from purchasing a gun due to the new laws.

Expanded Background Checks

In addition to the restrictions above, Vermont’s new gun control laws also ensure that state background checks are more thorough, and prohibit gun ownership for individuals arrested, or even cited for, domestic assault. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with a crime.

According to a report in the New York Times, immediately following the Parkland shooting, Governor Scott said that increased gun laws weren’t necessary. But a day after making this statement, a Vermont teen was arrested on suspicion that he was planning a school shooting. Jack Sawyer allegedly had a diary entitled “Journal of an Active Shooter” and had planned to orchestrate a mass shooting at Fair Haven Union High School. In fact, according to reports, Sawyer’s goal was to be responsible for the deadliest school shooting to date.

“This is not the time to do what’s easy,” said Governor Scott, “it’s time to do what’s right.”

Gun Control Laws in Massachusetts

How does Massachusetts compare to Vermont when it comes to gun control laws? For the past four years, MA has been considered one of the strictest gun control states in the nation. In 2014, the bay state gave more discretion to law enforcement to deny gun permits to “unsuitable” individuals. MA also places tight restrictions on assault weapons, and has participated in a nationwide campaign to prevent mentally ill individuals from obtaining firearms.

Have MA’s gun control laws helped? According to statistics, the answer is yes. MA’s gun death rate is about 70 percent less than the national average. And many of the guns used in fatal crimes actually come from other states. In 2014, the majority of guns used in MA crimes came from states with more lax gun control laws, including Georgia and Florida. Continue reading

Just as defendants in a criminal case have certain rights, so do witnesses. The information you are obligated to provide when asked is dependent on the nature of the case, and who is doing the asking. For example, if an attorney or detective calls you hoping that you’ll speak about the case, you are not legally obligated to do so, unless you have been subpoenaed.

If you do receive a subpoena, you are required to show up for the meeting or trial, and to provide the requested information. You can, however, employ your fifth amendment right by refusing to answer anything that could incriminate you. Additionally, you can refuse to testify about any communications that you may have had with your spouse.

Perjury

If you testify, you are under oath. As a result, you are obligated to tell the truth. This is as true of a deposition as a trial in front of a grand jury. Any lies or misleading comments given during your testimony may be considered perjury. Perjury is the crime of lying under oath (“I swear to tell the truth, the whole truth, and nothing but the truth”), and it is a felony offense. A conviction of perjury under federal law may carry up to five years in prison. In order to be considered perjury the act must:

  • Occur under oath
  • Include an actual statement (silence is not perjury)
  • Intentionally mislead the court
  • Be material to the case (a lie or exaggeration that has no bearing on the case is not likely to be considered perjury).

A MA criminal defense attorney can help you determine how to proceed if you’ve been called as a witness to a criminal case.

Victim Witnesses

If, in addition to being a witness to a crime you are also a victim of that crime, you have additional rights. Whereas a non-victim witness is not allowed to attend court proceedings related to the crime in question (other than one at which he/she is required to testify), victim witnesses have a right to be present at any public court proceedings. Victim witnesses also have the right to be informed of the defendant’s release or detention status, as well as the status of the ongoing investigation.

Legal Counsel

If you have been called as a witness to a criminal case, it is in your best interest to hire your own attorney. In addition to ensuring that you know your rights, an attorney can help you to avoid making incriminating testimony. When called as a witness, you do have rights, but you also have obligations. Determining what you have to do and what you can refuse, and how to not incriminate yourself, is much easier with legal counsel. Further, an experienced Boston criminal defense attorney can ensure that other attorneys follow the rules when questioning you. For example, attorneys are not permitted to “badger the witness” during testimony. Continue reading

Due to the recent surge in mass shootings and the resulting gun debate, the term “stand your ground” has frequently been in the news. In stand your ground states, such as Florida and Texas, an individual can use force, without retreating, to protect himself against a threat. In these states, shooting an attacker would generally be considered within your rights if you feared for your safety. Massachusetts, however, is not a stand your ground state.

MA is a “duty to retreat” state, which means that you cannot use deadly force—even in self-defense—if you can reasonably avoid harm by retreating (such as running away). If, however, you are cornered, or otherwise unable to retreat, you are legally allowed to use deadly force if your life is threatened. A MA defense attorney can help you protect your rights if you’ve been charged with a crime.

Castle Doctrine

Although MA is a duty to retreat state, that duty does not apply to home intruders. Due to a MA statute called Castle Doctrine, there is no duty to retreat when the intruder is in your home. Some states apply the Castle Doctrine to areas outside of the home, such as the driveway. In MA, when the killing takes place in the defendant’s driveway, or on a porch or outside staircase, the doctrine does not apply. Nor does it apply to invited guests, even if the guest threatens the defendant’s life. There are, however, some exceptions to this rule. For example, if an invited guest is asked to leave, pretends to leave, gets a gun from his car and comes back, his status as an invited “guest” will change to trespasser.

People are allowed—by law—to defend themselves against the threat of physical harm. In fact, many people charged with murder or another violent crime often cite self-defense as the reason for their action. However, in order for this defense to work, the defendant must be able to show that a real threat existed. A Boston defense attorney can help you determine how to proceed if you’ve been charged with any type of crime.

Was Your Action Proportionate to the Threat?

In both stand your ground and duty to retreat states, the type of self defense used against an intruder must not exceed the threat. For example, if you come downstairs for a midnight snack and find an unarmed burglar in your kitchen, shooting him ten times will likely be perceived as excessive. However, if you wake up to find an intruder standing over your bed, gun in hand, you will probably be justified if you grab a gun from your nightstand and shoot him. This would also be true if it was later discovered that the intruder was wielding a fake pistol. It’s the perceived threat, not the actual threat, that matters.

If your self defense is not proportionate to the threat, this is known as imperfect self defense. No state gives you the right to attack without cause, and within each stand your ground state, a person’s right to use lethal force varies. Continue reading

Child abuse is a crime, there is no question about that. But what about the failure to report child abuse? If you suspect that a child has been abused, do you have to speak up? Is failing to do so a crime?

It depends.

Mandated Reporters

Certain people are required to report child abuse due to their profession. In MA, these people are called Mandated Reporters. Individuals designated as mandated reporters include:

  • Teachers and other school personnel
  • Social workers
  • Doctors, nurses and other medical personnel
  • Counselors and other mental health personnel
  • Child care providers
  • Foster parents
  • Clergy
  • Medical examiners
  • Police and other law enforcement

If you are a mandated reporter and you fail to report child abuse, you may be charged with a misdemeanor and face a fine of up to $1,000. A MA criminal defense attorney can help you determine how to proceed if you’ve been charged with a crime.

What if I’m Not a Mandated Reporter?

In MA, as in most states, failure to report child abuse is not specifically charged as a crime. However, every case is unique. In the Larry Nassar sexual abuse scandal, for example, victims have called for the criminal punishment of the individuals who failed to report his abuse of hundreds of young girls and at least one boy.

In Michigan—where Nassar abused his victims—state legislators have proposed several bills that would increase penalties for failure to report child abuse from a misdemeanor offense to a felony with fines of up to $5,000.

But this topic begs the question – why wouldn’t you report child abuse? If you suspect that a child is being abused or neglected, reporting that mistreatment is the right thing to do. Fortunately in MA, as in most states, you can file an anonymous report. A Boston criminal defense lawyer can help you protect your rights if you’ve been charged with a crime.

What is Considered Child Abuse?

There is a lot of gray area when it comes to child abuse and neglect. For example, in 2014 a Florida mom was charged with felony child neglect for letting her seven-year-old child walk to a nearby park by himself. However, not all cases are as ambiguous. Some types of child abuse, including sexual or physical abuse and depriving a child of food and water, should be reported immediately.

In the United States, approximately four children die from child abuse or neglect every day. Most are under the age of four. Child abuse is often associated with a medical or emotional disorder, such as alcohol abuse, depression and drug addiction. In many cases, the abuser was abused as a child.

In MA, child abuse is defined as “the non-accidental commission of any act by a caretaker upon a child under age 18 which causes, or creates a substantial risk of, physical or emotional injury; or constitutes a sexual offense under the laws of the Commonwealth; or any sexual contact between a parent/guardian/caretaker and a child under 18.”

Child abuse, which can occur both at home and in other environments, includes:

  • exposing a child to domestic violence;
  • having a baby that is born with an addiction to narcotics; and
  • mistreatment of a physical, sexual or emotional nature.

Child neglect, on the other hand, is the failure of a parent or care giver to meet the child’s basic needs for food, shelter, clothing, supervision and other emotional needs. Continue reading

Bail is a type of payment—or the pledge to make a payment—in exchange for being released from custody. The defendant is temporarily released, but agrees to return to court when ordered to do so. As long as the defendant shows up at court as agreed, bail money is returned once the trial has concluded. If, however, the defendant does not return to court, the bail money is forfeited and criminal charges for failure to appear may apply.

Bail is not required in all cases. For minor offenses, the defendant may be summoned to court without the need to post bail. Basically, bail is an incentive to appear in court. If the prosecution is concerned that the defendant is a flight risk, bail will almost certainly be set. Further, bail amounts generally reflect the severity of the crime. A Boston criminal defense attorney can help you determine how to proceed if you have been charged with a crime.

The bail system is increasingly under scrutiny because it may prevent innocent people from getting out of jail due to their inability to afford bail. In fact, the Department of Justice has remarked that it is unconstitutional for poor people to be imprisoned simply because they cannot afford their bail. That being said, bail may also prevent dangerous criminals from being released into the general public as they await trial. In addition to these two extremes, there exists everything in between. If you think your bail is too high, can you get a judge to lower it?

How are Bail Amounts Set?

In MA, the bail magistrate sets bail. To do this, the bail magistrate considers the type and severity of the crime, along with the potential sentence the defendant is facing. The following factors will also be considered when setting bail:

  • Is the defendant a flight risk?
  • Does the defendant have a criminal record?
  • Has the defendant failed to show up for court in the past?
  • Is the defendant on probation or parole?
  • Does the defendant have ties to the community?
  • Is the defendant employed?
  • Does the case involve domestic violence, and if so, would the defendant’s release put the victim at risk?

Of course, many of the above factors are subjective. For example, your bail could be set high because you don’t have ties to the community and you are currently unemployed. Two strikes. If, however, you can show that you are actively seeking employment, and you moved to this community because the climate is favorable for a heath condition from which you suffer, these strikes may become less significant in the judge’s eyes. If you can provide evidence to convince the judge that you are not a flight risk, you may be able to see a reduction in bail.

You may also be able to get some relief in the form of the Eighth Amendment to the Constitution, which prohibits “excessive bail.” If you can show that the amount of your bail is excessive, based on what you can afford, the judge may lower it. Once the initial bail is set, you may have to request a second hearing to challenge the amount. A MA defense lawyer can help you protect your rights if you have been charged with a criminal offense. Continue reading

The Miranda rule, more commonly known as the “right to remain silent,” goes as follows:

You have the right to remain silent;

If you do say anything, what you say can be used against you in a court of law;

You have the right to consult with a lawyer and have that lawyer present during any questioning;

If you cannot afford a lawyer, one will be appointed for you if you so desire.

The rule was named for Miranda v. Arizona, a case in which the defendant provided incriminating information to the prosecution because he was unaware of his right to remain silent. Since this landmark case occurred decades ago, law enforcement must inform people of their Miranda right when they are placed under arrest.

There are, however, four exceptions to the Miranda rule. They are:

Before the Arrest

The Miranda rule applies once the individual is taken into custody (arrested), not before. However, anything you say prior to your arrest can still be used against you. That being said, police are not supposed to begin interrogations until you have been taken into custody. So, unless you are just nervously spouting off unsolicited information, you shouldn’t have anything to worry about. At this stage, the only information you are required to provide is of the identifying sort, such as your name, address and date of birth. If police ask you for additional information without first reading you the Miranda warning, they could be in violation of your constitutional rights. A MA criminal defense attorney can help you determine how to proceed if you’ve been charged with any type of crime.

Private Citizens

Not everyone involved in an arrest is subject to the Miranda rule. It applies to government and “state agents,” such as prosecutors and police officers, but what about private citizens, undercover agents and jailhouse informants? According to a Supreme Court ruling, even if these individuals are paid by the government to perform a duty, they are not subject to the Miranda rule.

Imminent Danger

If imminent danger to the public prevents an officer(s) from reading the Miranda rights before custodial interrogation, a statement obtained during the course of that interrogation may, under certain circumstances, still be used against the defendant. Such a situation occurred during the investigation into the Boston Marathon bombing, when the suspect was interrogated before receiving his Miranda rights. When a suspected terrorist attack or other imminent threat creates a sense of urgency, responses obtained without Miranda rights may, in comes cases, still be admissible in court.

Waiving Your Rights

In addition to the above situations, you can also waive your Miranda rights. Not surprisingly, this is not a recommended tactic, especially without first having consulted with your attorney. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with any type of crime. Continue reading

The crime of rape, whether committed by someone the victim knows and trusts or a complete stranger, often involves alcohol or other drugs. Women who have had too much to drink are particularly vulnerable to sexual assault and rape, including date rape. Although certain drugs come to mind when the term “date rape drugs” is used, any drug can increase the risk of sexual assault.

That being said, there are three drugs that are commonly referred to as date rape drugs – Ketamine, GHB and Rohypnol (often called “roofies”). Simply being in possession of one of these drugs won’t necessarily carry a stiffer penalty than being in possession of a non-date rape drug of the same class. If, however, you committed a sexual assault while in possession of the drug, or the prosecution believes you intended to do so, you may be facing some serious time behind bars.

What is Rohypnol?

Commonly referred to as roofies, Rohypnol is a prescription drug used to treat severe insomnia. In addition to being a powerful muscle relaxer and sedative, the drug can also induce amnesia. Even a very small amount of the drug can have these effects, which generally last for up to 12 hours. Although not approved for use in the U.S., Rohypnol is available in Mexico and Europe.

Although most commonly associated with date rape, Rohypnol is also a popular recreational drug. The same is true of Ketamine (often called Special K) and GHB, both of which produce similar effects to Rohypnol. A Boston drug crimes defense attorney can help you protect your rights if you’ve been charged with drug possession.

Penalties for Possession of a Date Rape Drug

As with all criminal offenses, the punishment is based on multiple factors, including prior criminal history, the severity of the crime and the unique circumstances of the case. In MA, you may be facing the following penalties if you are found in possession of Rohypnol.

  • Simple possession: Up to three years in prison and a minimum fine of $5,000.
  • Possession with intent to distribute: A minimum of 10 years in prison, up to life, and a fine of up to $4 million. If the crime resulted in someone’s death, the minimum sentence is increased to 20 years.

Although Rohypnol is classified as a Schedule IV drug (low risk of abuse), it is punished as a Schedule I drug. Other Schedule I drugs include heroin, MDMA (ecstasy) and LSD. A MA drug crimes defense lawyer can help you determine how to proceed if you’ve been charged with any type of drug crime.

The penalties above pertain to possession, not drugging a person with the intent to engage in sexual intercourse. If you used Rohypnol, GHB, Ketamine or any other drug to sexually assault another person, you may be facing 10 years imprisonment with the possibility of life in prison. Continue reading

Martin Shkreli gained notoriety in 2016 by spiking the price of a life-saving HIV drug by about 5,000 percent. Dubbed ‘Pharma Bro,’ he later found himself in hot water for committing investment fraud. Although his lawyer was pushing for less than 18 months, Shkreli was recently sentenced to seven years in prison. During his sentencing, ‘Pharma Bro’ seemed much less cocky than he has in the past.

When Shkreli first learned of the criminal charges against him, he predicted that he’d never do any time in jail. But his prediction was quickly proven wrong. Unfortunately for him, his bail was immediately revoked after he jokingly offered money to any person who could obtain a lock of hair from then-presidential candidate Hillary Clinton.

Shkreli, who was convicted of securities fraud and conspiracy on August 5, 2017, appeared more humble in court on Friday, as he admitted to his many mistakes. In fact, the 34-year-old broke into tears, pleading for leniency from the judge.

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?”

 

Continue reading

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