Massachusetts Criminal Defense Lawyer Blog

Massachusetts criminal defendants may face more severe degrees of sentencing if jurors continue to struggle with reckless, knowing conduct. According to an article in Lawyers USA, a recent study Sorting Guilty Minds found that jurors had difficulty in distinguishing between "knowing conduct" and "reckless conduct." Participants were asked to evaluate hypothetical situations with varying levels of defendant culpability and harm to victims before deciding on a level of punishment. The subjects identified knowing conduct 50% of the time and reckless conduct only 40%.

If jurors continue to have this difficulty in understanding the distinctions, there could be very serious sentencing consequences for criminal defendants, especially in homicide cases. For example, in Massachusetts a "reckless" homicide sentence could range from a 2 to 6 year non-mandatory prison. A "knowing" homicide could yield a 16 to 48 year mandatory imprisonment. These sentencing ranging jumps would have an enormous legal significance for defendants according to the study in the New York University Law Review . The Model Penal Code typically requires that jurors infer the mental state of a criminal defendant at the time the crime was committed, since punishable guilt requires that bad thoughts accompany bad acts.

Massachusetts jurors must sort the defendants mental state into one of four specific categories- purposeful,knowing,reckless,or negligent. The category the jurors determine defines both the nature of the crime and degree of punishment. Therefore it is crucial that the jurors understand the distinction among the four. The Model Penal Code assumes that ordinary people can do this with a high degree of accuracy when properly instructed. However, this recent study of 1,326 participants yielded results that state otherwise. In many instances, the subjects reversed the MPC hierarchy and punished reckless behaviors more than they punished the knowing ones.

Continue reading "Massachusetts Criminal Lawyer Comments on Lawyers USA Article- Jurors Struggle With Distinguishing Reckless, Knowing Conduct" »

Defendants, at least in New Jersey, will be less likely to be convicted based on faulty eye-witness testimony, thanks to a sweeping new set of rules handed down by the New Jersey Supreme Court. The decision is New Jersey v. Henderson and can be found by clicking this link. The decision of the New Jersey Supreme Court is a landmark decision that hopefully will be followed by other state and federal courts. The success in this case of the defendant in this case was based on large part on the work of the Innocence Project in bringing the problems with eye witness identification to the attention of the Court.

Massachusetts criminal defense lawyers understand eyewitness testimony can sometimes be difficult to overcome at trial. Often believed by juries, it remains among the most unreliable forms of testimony the state can produce in securing a conviction. Trial defense in Massachusetts requires aggressively challenging the recollections and other evidence presented by witnesses to a crime.

The New Jersey Supreme Court ruled a judge must hold a special hearing on the issues whenever the defense presents evidence that a witness may have been influenced by police or by other means. Other factors could include lighting, the passage of time between the crime and recollection, or whether the victim was under stress at the time of the identification.

Imagine a crime. Whether robbery, burglary or assault. The recollection of eyewitnesses is just one piece of a prosecution's case. Having a defense attorney in Massachusetts who understands the issues and knows what it takes to challenge the evidence can have a drastic impact on a defendant's case.

The court ruled when such disputed evidence is admitted, the judge must give detailed instructions to jurors on factors that could result in misidentification. While the new rules are only applicable in New Jersey, court watchers say the ruling could begin having an impact nationwide.

The New Jersey high court has long been at the forefront of criminal law. The 134-page unanimous decision was penned by the court's chief justice, Stuart J. Rabner. It called for a revision of the 34-year-old U.S. Supreme Court decision that outlined the test of reliability for eyewitnesses.

A special master assigned to study the issue estimated there have been more than 2,000 studies about the reliability of eyewitness testimony since the Supreme Court decision in 1977.

"Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country," Rabner wrote."

Factors a judge should consider in establishing the credibility of an eyewitness include:

-Whether a weapon was visible during a crime.

-The amount of observation time.

-Distance between witness and suspect.

-Witness alcohol or drug use.

-Length of time between incident and identification.

-Whether the eyewitness and suspect are of different races.

Continue reading "Eyewitness Testimony Requires Aggressive Challenge of Massachusetts Criminal Attorney " »

The Massachusetts Supreme Judicial Court in the case of Commonwealth v. Mark Tremblay addressed whether the defendant's statement was voluntary when the police agrees that it would be off of the record. The issue before the court was not whether Miranda warning had been given, as the Massachusetts criminal lawyer conceded that the defendant was not in custody triggering the requirements of Miranda. Click here to read a copy of the SJC decision in Tremblay.

A criminal defense lawyer can typically challenge an incriminating statement on two separate but related grounds. First, whether an incriminating statement was obtained in violation of Miranda; or second, whether the police violated a defendant's privilege against self-incrimination and infringed upon due process of law by coercing a statement from a defendant.

The SJC held that the test for whether a confession is voluntary is to view it in light of the totality of circumstances surrounding the making of the statement. The Court will consider whether the will of the defendant was overborne to the extent that the defendant's statement was not the result of a free and voluntary act. The SJC stressed that relevant factors include, but are not limited to, promises or other inducements, conduct of the defendant, age, education, intelligence and emotional stability, experience with the criminal justice system, physical and mental condition. Further, the SJC will consider who initiates the discussion of a deal for leniency, whether the defendant or the police and the detail of the interrogation including the recitation of Miranda warnings.

The Massachusetts Supreme Judicial Court in Tremblay emphasized that police should use caution in using deception or trickery during an interrogation. The Court stressed that trickery does not compel suppress of the statements but is one factor for the court to consider. Further, the SJC noted that suggestions by the police that the defendant would benefit from the confession may raise issues of whether the confession is voluntary.

In viewing the Tremblay case, the Court said that the officer's actions did not fall neatly into either category of trickery or making assurances that the defendant would benefit from confessing.

Key to the SJC determination that the officer did not use trickery was the fact that he agreed to the defendant suggestion that the comments would be off of the record and not included in the written portion of the statement, but never made any promises of protection or leniency. The SJC found no evidence of coercion of the officer as a result of his agreeing that statements be off of the record and held that the statements were properly admitted at trial.

In a dissenting opinion, two members of the Massachusetts Supreme Judicial Court, Justice Gants and Ireland disagreed with the majority of the Court and would have suppressed the statements and wrote separately in a dissenting opinion discussing their reasoning.

Justice Gants wrote that in Commonwealth v. DiGiambattista, the SJC recognized that police trickery during an interrogation may cast doubt on the voluntariness of a suspect's statement. The DiGiambattista decision held that a Massachusetts criminal lawyer may request an instruction that a jury can view a confession that was not recorded on video tape with caution if the police do not electronically preserve the interrogation.

Justice Gants outlined three forms of police trickery that may undermine the voluntariness of a confession: false promises of leniency in return for a suspects statement, false representation regarding the right to represent himself during trial, and false promises that the statement will not be used against a suspect. Justice Gants notes that the majority indicated that an assurance that a statement will be off of the record should be avoided, but failed to find the statement involuntary despite case law from other jurisdictions where suppression was deemed appropriate.

Continue reading "Massachusetts criminal defense attorney comments on court decision involving voluntariness of statement, police agree is "off of the record"" »

The Roger Clemens perjury trial abruptly ended with the judge declaring a mistrial. The judge declared a mistrial because the prosecutor allowed the jury to hear evidence that the judge excluded during pretrial rulings. Judge Walton was extremely critical of prosecutors from the bench stating that the mistake was one a first year law student would not make and was further enraged when the inadmissible evidence was left on the screen for the jury to view during a discussion with the lawyers, according to a report in the USA today.

A Massachusetts criminal attorney will typically file motion in limine prior to trial to keep certain evidence from the jury at trial. In some cases a judge may not rule on the evidence at the time of the motion, but may reserve ruling and instruct the prosecutor not to mention the evidence during opening statement. This would incur in a case where the defense attorney is challenging the evidentiary foundation for the evidence and the judge wants to ensure that the Government lays the proper foundation before the evidence is mentioned to the jury.

In the Clemens trial, the prosecutors made two mistakes first by mentioning a piece of evidence in the opening statement that the judge instructed the prosecutor to avoid and second, and more egregiously, by displaying evidence that the judge had ruled inadmissible. Clemens' lawyers objected to the evidence coming in and the judge declared a mistrial.

Typically, a mistrial will not bar a defendant from being retried; however, the exception to that rule is when Government conduct causes the mistrial. In this case, the criminal defense lawyers will argue that the Government deliberately disobeyed the orders of the judge to gain an advantage warranting dismissal of the indictment under the Double Jeopardy Clause of the Sixth Amendment to the United States Constitution. Additionally, the lawyers will argue that Clemens cannot receive a fair trial as the potential jury pool will be tainted and know about the evidence that the court intended to exclude from consideration.

Legal Commentators have attempted to predict how Judge Walton will rule. One Boston criminal lawyer predicted that Clemens would not be retried because the case is a mess as a result of the Government's mistakes.

I would expect the judge to bar a retrial of Clemens finding the conduct deliberate on the part of the Government. Given the public's view as expressed during the jury selection, that the prosecution is essentially a waste of time and money, and the difficulty of granting Clemens a fair trial, I think the judge will find that the Government's conduct in defiance of the court order warrants dismissal.

Jury selection continued in the Roger Clemens perjury trial on Monday. Criminal defense lawyer Rusty Hardin asked prospective jurors about their feeling about steroids in baseball. In an effort to encourage jurors to share their feeling on the issue, Harden disclosed that he never received as much hate mail as when representing Clemens because of strong feeling regarding the impact of steroids on the game of baseball. Good Massachusetts criminal lawyers understand that Hardin's disclosure regarding his experience in representing Clemens was an effort to encourage jurors to honestly share their feeling on steroids in baseball, which would help the defense uncover jurors potentially hostile to the defense. Prosecutors questioned jurors regarding whether they thought the investigation was a waste of time and money; several jurors indicated that they thought more pressing issues faced Congress and justified the use of taxpayer money.

Experienced Massachusetts criminal lawyer understand that jury selection is critical to obtain a not guilty verdict in a criminal trial. In Massachusetts, criminal lawyers submit questions that the judge reads to prospective jurors. To see the questions submitted in the Clemens' case, click here. The goal of jury selection is to uncover jurors that may be hostile to the defense of the case and to learn as much as possible about each juror so that challenges for cause, referred to as peremptory challenges, can be used most effectively.

The not guilty verdict in the Casey Anthony trial has caused outrage by many. However, the trial was 36 days long and few followed every detail of the trial as the jurors picked to deliberate and forced to put their lives on hold while performing this public service. For an excellent commentary on the trial see Liz Goodman's article on yahoo news attached here.

As a Massachusetts criminal lawyer, one of the points I make in any criminal trial is to remind the jury what it means to have proof beyond a reasonable doubt. Massachusetts law defines that as proof to a near moral certitude. When jurors take the oath for juror duty, sit in a court room listening to a trial and sitting before the American flag, they take their obligation to apply the law and constitutional protections seriously, and that is what happened in the Anthony case.

Based on the convictions on the misdemeanor counts, the jury likely believed that Anthony was involved with the death in some respects and tried to cover it up. However, the jury could never find beyond a reasonable doubt that Anthony intended to kill or harm her daughter. The jury had circumstantial evidence of her acting strange, partying and not appearing to care that her daughter was missing, but never any DNA evidence or evidence that suggested a motive.

It is hard to accept that no person is responsible for this tragic death. However, the jury simply did not have proof to a near moral certitude to justify a conviction under the Constitution.

As a Brockton criminal attorney, the issue of whether a defendant was properly advised of Miranda rights can be an important defense in a case. When Miranda warnings are not properly given, the court may exclude statements made to the police that are the fruit of the police failing to advise a defendant of these rights. In the recent case of Commonwealth v. Holley, decided May 17, 2011, the Massachusetts Court of Appeals reviewed a decision of a Judge from the Fall River Superior Court, allowing a defendant's motion to suppress statements.

The motion judge at the superior court concluded that the police officer gave Miranda warnings too quickly to the defendant so that the defendant could not understand the warnings. The recitation of Miranda warnings was recorded on video tape. The Massachusetts Court of Appeals disagrees with the motion judge's conclusion that the defendant did not understand the Miranda warnings, stressing that the defendant followed along, stated he understood the warnings and signed the Miranda Waiver form. Further, the defendant stated that he knew how this goes, which the court held can be used as a factor in determining whether he understood his Miranda rights. The court stated that it can consider the defendant prior record and experience with the judicial system to determine if he understood his rights. Accordingly, the court reversed the motion judge's order granting the motion to suppress, allowing the defendant's statements into evidence.

Continue reading "Brockton criminal lawyer discusses recent case regarding Miranda rights during criminal trial " »

The new Taunton Trial Court and the $80 million judicial complex could help redevelop downtown and should bring new revenue to local businesses, the Taunton Daily Gazette reported.

Taunton criminal defense lawyers, prosecutors, judges, law enforcement officers and support staff will be using the new 147,000-square-foot facility by June. Standing at the corner of Broadway and Pleasant Street, the building will house the Taunton District Court, Juvenile Court, Housing Court and Probate & Family Court.

Restaurant owners are optimistic -- the food trailer in the parking lot leaves no doubt about the target clientele: Cops and robbers dressed as hot dogs adorn the walls. Menu items include "Big House Combos" and "Closing Arguments." And the Courthouse Cafe & Deli is already open -- ready and waiting for its namesake to follow suit.

The non-profit group, Heart of Taunton, which is dedicated to promoting downtown, hopes the new investment generates some synergy. "Generally, the feeling of businesses is that they're optimistic that it's going to create new business for the downtown," said Executive Director Julie Sprague.

The local Chamber of Commerce expects more than 1,000 people a day will visit the courthouse, which could create at least one potential headache: Parking. Officials are aware of the concerns and know that building the courthouse downtown may require additional accommodations -- many recent courthouses have been built in undeveloped suburbs for that reason.

The potential to create 300 new parking spaces is being studied and engineers are looking at adding a third story to the Leonard Street garage.

Continue reading "Taunton criminal defense attorneys welcome opening of new court building" »

A New York Court of Appeals ruled a man who was wrongly convicted of murder based on an alleged confession can seek monetary compensation for wrongful imprisonment, The New York Times reported.

Massachusetts criminal defense attorneys understand the risks; convictions based on confessions and "eyewitness" testimony are most likely to lead to wrongful conviction; and yet thousands of defendants are sent to prison each year in cases that hinge on such evidence. And, while murder is obviously the most serious and the most life-altering, sex crimes in Massachusetts, assault and battery and other crimes are susceptible to convictions based on poor evidence and manipulation by law enforcement.

The Innocence Project seeks to exonerate the wrongfully convicted through DNA and other evidence. About 25 percent of the 240 wrongful convictions the group has overturned have involved some form of false confessions.

Leading factors of false confessions can include:

-Intimidation (real or perceived) of the defendant by law enforcement.

-Use of force by law enforcement during interrogation or the perceived threat of force.

-Compromising the reasoning ability of the defendant. Exhaustion, stress, hunger, substance abuse or mental limitations.

-Devious interrogation techniques, untrue statements, etc.

-Fear that failure to confess will lead to harsher punishment.

In the New York case, the allegations are much simpler and much more sinister: The court ruled that it appeared Rochester detectives fed the defendant facts known only to the killer and police. John G. Spirko became the first American citizen to have his death sentence in Ohio commuted after similar allegations were made about investigators in that case.

State officials in New York argued that, while the defendant was innocent, he had brought about his own conviction. In a 7-0 opinion, the court unanimously rejected the argument, saying, "A confession cannot fairly be called 'uncoerced' that results from the sort of calculated manipulation that appears to be present here -- even if the police did not actually beat or torture the confessor, or threaten to do so."

Since the advent of DNA testing, eyewitnesses have been found to have been wrong far more than previously acknowledged. In a University of Virginia Study of 38 cases involving false confessions, 36 of them involved details known only to investigators.

Continue reading ""Confessions" a leading cause of wrongful conviction in Massachusetts criminal cases " »

Lawyers for Kevin Kerrigan claim that he was too drunk to waive his Miranda rights and that the police questioned him after he asserted his Miranda rights and informed police he did not wish to speak to them. Laurel Sweet from the Boston Herald wrote an article detailing what occurred during the motion hearing.

During the first day of the motion hearing according to a report in the Boston Herald, prosecutors called two Stoneham police officers to testify that on the night of the incident Kerrigan was belligerent and appeared to be intoxicated and that they had to carry Kerrigan out of the basement.

Kerrigan is alleged to have said that he could not walk and would have to be carried out of the house. Kerrigan was read his Miranda rights and responded yeah whatever according to the testimony and initially refused to speak with the police officers.

Police claim after refusing to speak, 30 seconds later, Kerrigan told them that he grabbed his father's throat and his father fell to the floor; police claim that Kerrigan said that he thought his father was faking it.

Kerrigan was brought to the hospital and brought back to the police station where he was again read his Miranda rights and refused to sign a Miranda waiver form. This form is used by police departments to verify that a defendant was read his rights and agreed to speak to the police. The form has a place for a defendant to sign acknowledging that Miranda rights were read and that the defendant still wishes to speak to the police.

Kerrigan told the State police officer that he did not want to talk to him. The police officer told Kerrigan that his father died and Kerrigan asked if he was being charged with manslaughter. The State police officer testified during the motion to suppress hearing that had he known that Kerrigan told the other officer he did not want to speak to him that he would not have gone to Kerrigan cell to question him.

On the second day of the motion to suppress hearing, Kerrigan Massachusetts criminal attorney presented expert testimony to show that Kerrigan was highly intoxicated at the time the statements were made. Kerrigan's blood alcohol content was .18 over twice the legal limit and the doctor testified that his blood alcohol could have been as high as .24. The doctor testified that based on his level of intoxication Kerrigan would not have understood his Miranda rights.

The judge took the motion under advisement. Kerrigan Massachusetts criminal lawyers are seeking to suppress two statements according to the news accounts: one that Kerrigan said he grabbed his father by the throat and the other that he was asking whether he would be charged with manslaughter.

Regarding the first statement to the Stoneham police, the main argument the judge is considering is whether Kerrigan's intoxication prevented a valid Miranda waiver.

When the court reviews whether the defendant waived his Miranda rights, the court looks to whether the Commonwealth can prove that the defendant's waiver of his Miranda rights was knowing, intelligent and voluntary.

Under Massachusetts case law, a defendant's consumption of alcohol will not necessarily make a waiver of Miranda involuntary, but the court will be required to look at the totality of the circumstances to determine if the waiver was voluntary. The court will consider any statements made to determine whether a defendant appeared coherent, whether the individual was unsteady on their feet or slurring their speech as well as the individuals history of alcohol use and tolerance for alcohol.

A case that appears helpful to Kerrigan is Commonwealth v. Silanskas, 433 Mass. 678 (2001). In Commonwealth v. Silanskas, 433 Mass. 678 (2001), the court held that the defendant waiver was voluntary when the defendant was responsive to inquires, coherent and made self-serving statements. The court noted that the defendant showed a high degree of concentration and memory. The facts as recounted in the news account appear to show that Kerrigan could not stand up and was extremely intoxicated to the point where it was necessary to take him to the hospital. Kerrigan's extreme intoxication should result in his statements being suppressed.

Regarding the second statement, the intoxication issue will still be before the judge as well as the issue of whether Kerrigan was interrogated after he waived his Miranda rights. The Miranda decision forbids any custodial interrogation after a defendant has invoked Miranda. Kerrigan clearly was in custody and invoked Miranda. The issue will be whether the State police officer's statement that his father died constitutes custodial interrogation. The leading case defining custodial interrogation is the United States Supreme Court case of Rhode Island v. Innis, 446 U.S. 291 (1980).

In Innis, the United States Supreme Court defined interrogation as expressed interrogation or the functional equivalent of interrogation where police should know that there words or actions are reasonably likely to elicit an incriminating response. Based both on Kerrigan's intoxication and the officer's statement regarding his father, the officer should have known that his statement would likely provoke an incriminating response and the court should find that Kerrigan was subject to custodial interrogation after he invoked his Miranda rights and exclude the statement from evidence.

Even if the court denied the motion, as a Massachusetts criminal lawyer, I would expect the second statement to be excluded from evidence on the grounds that its prejudicial value outweighs its probative impact. When a judge instructs a jury, the jury is told that the complaint is not evidence in the case. In others words, a jury should draw no inference from the fact that someone is charged with a crime because every defendant is presumed innocent. To allow testimony that the defendant asked if he would be charged with manslaughter is unfairly prejudice because it invites the jury to infer that because Kerrigan thought he was being charged the jury can draw a negative inference. Kerrigan's statement regarding his charges should not be allowed into evidence because it would be unfairly prejudicial and contrary to his right to a fair trial because a criminal complaint is never evidence in a case. This testimony would invite confusion as it would encourage the jury to draw an inference of guilt from the fact that Kerrigan thought he would be charged with manslaughter.

The focus of this blog is to assist out-of-state lawyers in representing clients in their home state by pointing out some decisions of the Massachusetts Supreme Judicial Court that favor criminal defendants and expanded Constitutional protections. It is my hope that criminal defense lawyers in other states can use these decisions to assist their clients or change the law in their state.

Assault and Battery and self defense: One of the more important cases handed down by the Massachusetts Supreme Judicial Court was Commonwealth v. Adjutant, 443 Mass. 649 (2005). Massachusetts criminal attorneys can use this decision in defending assault and battery cases. The decision allows a defendant to offer into evidence prior violent acts of the victim, even if unknown to the defendant, to prove who was the first aggressor in an assault and battery. The SJC set forth how a defendant admits this evidence at trial by requiring that a defendant provide advance notice to the Commonwealth of the intent to admit prior violent act evidence.

Confessions and Recording Confession: Another important criminal defense decision decided by the Massachusetts Supreme Judicial Court was Commonwealth v. Digiambattista, 442 Mass. 423 (2004). In this decision the SJC held that if the police do not tape record a custodial interrogation than a criminal defendant is entitled to a jury instruction that the jury can view the statement with caution given the highest court in the state has expressed a preference that custodial interrogations be recorded. There was a good article on the National Criminal Defense Lawyers website on this issue, click here to read the article.

Fourth Amendment and Exit Order: The Massachusetts Supreme Judicial Court in the case of Commonwealth v. Gonsalves, 429 Mass. 658 (1999), held that under Article 14 of the Massachusetts Declaration of Rights a police officer cannot order a motorist from the vehicle during a routine traffic stop unless the officer has a reasonable apprehension of danger from the motorist. The SJC departed from the rule of Pennsylvania v. Mimms, 434 U.S. 106 (1977), allowing for an automatic exit order under the Fourth Amendment of the United States Constitution.

Drug Cases and Search of residence: Commonwealth v. Pina, 453 Mass. 438 (2009): Court in Pina held that an affidavit did not establish probable cause to search the defendant's home. The police believed that the defendant was selling drugs from his car and conducted a control buy that confirmed the police investigation. The court held that there was no nexus between the defendant's apartment and the drug activity as the only connection between the defendant and the apartment was that he was seen leaving the apartment. This case is a good case discussing the nexus element when challenging a search warrant in a drug case.

As a Brockton Criminal defense lawyer, a recent case from the Florida Supreme Court raises significant issues regarding when and how police must provide Miranda warnings under the Constitution. The case of Ross v. State, is a case where the defendant was convicted of first degree murder of his parents and sentenced to death. A key component of the State's evidence was the defendant's confession to the murder. The Florida Supreme Court reversed the conviction and ordered a new trial holding that the police violated the defendant's rights under Miranda by not providing him Miranda warnings until after he made a confession; the defendant was then given Miranda warnings and again made inculpatory statements. The State of Florida has filed a petition for certiorari with the United States Supreme Court in order to attempt to reverse the decision of the Florida Supreme Court and uphold the jury verdict. The filings in the Ross case can be found on the Scotusblog.

As a Massachusetts criminal defense lawyer, the Ross decision is noteworthy in several respects. The court found the defendant first inculpatory statement custodial applying the test articulated by the United States Supreme Court in Yarborough v. Alvardo, 541 U.S. 652 (2004) where the court looks to the circumstances surrounding the interrogation and whether a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave.

In a Massachusetts criminal case involving an issue of a custodial interrogation, the court would apply the factors set forth in the case of Commonwealth v. Bryant, 390 Mass. 729 (1984).

1. the place of the interrogation
2. Whether the investigation has begun to focus on the suspect
3. The nature of the interrogation whether it was aggressive or, instead, informal and influenced in its contours by the suspect; and
4. whether, at the time the incriminating statement was made, the suspect was free to end the interview by leaving the locus of the interrogation as evidenced by whether the interview ended with the arrest of the defendant.

The Florida court applied a similar test and found that all of the factors favored a custodial interrogation in that the defendant had to endure a long interrogation where he was confronted with evidence of his guilt in a highly confrontational manner without having the benefit of Miranda warnings prior to his confession.

After obtaining an incriminatory statement, the defendant was provided Miranda warning and subsequently made a second incriminatory statement. To determine whether this statement was admissible the Florida Supreme Court applied the case of Oregon v. Elstad, 470 U.S. 298 (1985) and Missouri v. Seibert, 542 U.S. 600 (2004), both from the United States Supreme Court.

The Elstad case addresses the issue of a statement prior to Miranda warnings followed by the police providing the warnings and then the defendant making a second incriminatory statement and would allow the second statement into evidence if a careful and thorough administration of the Miranda warnings is given and the rights are waived. This rule of allowing a late administration of the Miranda warning to be cured applies only if the police do not intentionally delay providing Miranda warnings to obtain an incriminatory statement. The Florida court found it significant in its analysis that the police downplayed the importance of the Miranda warnings in order to compel the defendant to repeat his earlier confession. The Florida Supreme Court concluded that the later statements could not be admitted into evidence because the delay in giving the Miranda warnings was designed by the police and the police downplayed the significance of the warnings once given.

Continue reading "Brockton, Massachusetts criminal defense lawyer comments on recent decision involving Miranda warnings from the Florida Supreme Court. " »

The protection Massachusetts' statute of limitations affords defendants accused of past crimes took a hit last week when the state's high court ruled suspects identified via DNA evidence are not protected, the Boston Globe reported.

A Massachusetts criminal defense attorney should always be contacted when DNA evidence leads to an arrest. Typically, these will be serious crimes, such as rape or murder. Often, there is little or no remaining evidence other than the presence of DNA. In the weaker cases, law enforcement may approach a suspect for a statement prior to arrest. In other instances, a citizen's first inclination of an investigation could come at arrest. In either case, consulting an experienced attorney at the earliest opportunity is your best course of action. In neither case, should you cooperate with authorities -- a statement will be used against you by prosecutors and could conflict with a future defense strategy.

The Massachusetts Supreme Judicial Court unanimously concluded DNA can serve as the identity of the person indicted, even if a charging document lists John Doe. The ruling is similar to court decisions in five other states.

The case stems from a Massachusetts rape case in Suffolk County, where prosecutors have indicted 12 DNA profiles and were later able to put a name to some of the profiles and prosecute those individuals in cases where the statutes of limitations had no expired. The case the court decided was the first time authorities had put a name to a profile after the limitations had run out.

The defense lawyer in the case said the ruling means the court has essentially done away with statutes of limitation in cases involving DNA and that defendants could now face charges years or even decades later. Such cold cases are already inherently difficult because evidence is often lost or degraded, witnesses die or move away, memories fade and physical locations change.

The court said state lawmakers could provide added protection to defendants by changing the law, which has been done in several states. In those states prosecutors are provided with a limited amount of time to prosecute individuals once they have been linked to a DNA profile.

Continue reading "Court rules out statute of limitations in Massachusetts criminal cases involving DNA" »

The Boston Globe recently published an excellent report on the impact television forensic shows, such as CSI, have in the real-world courtroom.

In reality, a Massachusetts criminal defense lawyer can frequently challenge the available evidence in many crimes -- it is the defendant's statements that are much more likely to be a problem. Television is Hollywood and real life isn't. The vast majority of cases do not have DNA evidence, which is expensive and time consuming. Other "forensics" seen on television might be available to the CIA (and we only say might), but is not going to be used by Massachusetts law enforcement anytime soon. For instance, detectives are not going to determine what type of motorcycle a defendant was using during a robbery by matching the sound of its exhaust caught on surveillance video -- which was an actual episode of a popular television forensics show.

In fact, the popularity of such shows can cause problems in a trial -- particularly when jurors think such evidence should be available if prosecutors or the defense just used a little more effort. A 2006 study of 1,000 Michigan jurors found that nearly half expected to see some form of scientific evidence in every criminal case. Nearly 75 percent expected to see it in murder trials. Of even greater concern, is that people trusted such evidence almost blindly; a study of 1,201 California jurors found scientific evidence such as DNA or fingerprints, was considered far more reliable than testimony from police officers, witnesses or the victims themselves.

So it goes without saying that it is critical to select a Massachusetts defense attorney who has the knowledge and experience to challenge all manner of forensic evidence while convincing a jury of its relative value.

Meanwhile, a new study of 400 murder cases found that the presence of forensic evidence had very little impact on whether an arrest was made, charges were filed, or a conviction was handed down in court. Just 13.5 percent of murder cases had physical evidence linking the murderer to the crime scene or the victim. If you are a defendant without an experienced and aggressive defense lawyer, that is a truly frightening statistic. In other words, the state wants you to believe that more than 85 percent of murder defendants are guilty because prosecutors say so.

According to the research, biological evidence was found 38 percent of the time, fingerprints 28 percent of the time, and DNA in just 4.5 percent of homicides. Research yet to be released shows that forensic evidence also plays a minimal role in other types of crimes, including robbery and burglary. Forensic evidence is collected in less than a third of such cases and is submitted to the lab just a small fraction of the time.

Meanwhile, the National Academy of Sciences is questioning whether certain methods used in forensics are even scientific and is decrying the lack of standards and certification. Problems are commonplace: In 2008, Detroit shut its crime lab after an audit found a 10 percent error in ballistics testing; New York State Police have come under fire for overlooking evidence that a crime lab was fabricating data; and a San Francisco crime lab was closed after it was revealed that an analyst was allegedly skimming illegal drugs for personnel use.

Massachusetts hasn't escaped problems. In 2007, the Executive Office of Public Safety found a backlog of more than 16,000 cases awaiting DNA testing. In fact, DNA backlog is a nationwide problem that has cost $330 million since 2004 and is one of the primary reasons an individual case is unlikely to be tested.

Continue reading "Forensic science plays role in few Massachusetts criminal cases" »

An informant testifying for prosecutors as part of a plea deal told the jury that one of the co-defendants threatened to kill him if he talked about the murder of a nurse and the brutal machete assault of her 11-year-old daughter, according to the Boston Globe.

Massachusetts criminal defense lawyers are frequently left to defend a client against the testimony of a jailhouse informant or a co-defendant who cut a deal with prosecutors. Such testimony is notoriously unreliable. We frequently discuss the need to remain silent and invoke your right to an attorney when arrested, regardless of how serious you think the trouble. This case is typical in that prosecutors cut a deal with some of the accused in order to win testimony against the others. Investigators will sometimes elude to such deals in soliciting testimony following arrest. Again, without the presence of your attorney no such deal can be guaranteed.

In this case, the 21-year-old testified for the prosecution that a 17-year-old friend threatened to kill him if he talked about the attack. The attack killed a 42-year-old woman and critically wounded her 11-year-old daughter, who was struck repeatedly in the face with a machete while playing dead. The informant testified in exchange for a deal that included lesser charges and a 12-year prison sentence.

Several of the defendants stayed at his house after the attack. Police charged four teenagers and young adults after word of the crime began to spread among acquaintances. Prosecutors also cut deals with two of those defendants.

Criminal Defense attorneys spent the day attacking the credibility of the witnesses, pointing out their testimony differed from the sworn statements they gave prosecutors.

Continue reading "Plea deals lead to witness testimony in Massachusetts criminal trial involving Machete attack" »