Massachusetts Criminal Defense Lawyer Blog

A former Boston University hockey star and New York Islanders draft pick was recently charged with a sex crime in Boston.

This comes just weeks after our Boston criminal defense lawyer reported about New England Patriots wide receiver and special teams member Julian Edelman being charged with a sex crime in Boston as well.

Facing sex charges in Massachusetts can be a life-altering experience. It can lead, in the short term, to job loss, loss of reputation, time in jail, the cost of posting bail, family problems and other sanctions. In the long term, it can open up a person to prison time, probation, registration as a sex offender and other serious consequences and criminal penalties.

Corey Trivino, a 21-year-old native Canadian, was recently kicked off the Islanders after news surfaced of his arrest. He pleaded not guilty to two counts of breaking and entering in the nighttime and to a charge of assault with attempt to rape in Brighton District Court.

The hockey forward is charged with following a young woman to her room and forcing his way into the room, Fox News reports. According to police reports, when the girl told him to leave, he began kissing and groping her. He allegedly left and came back two more times. The last time, he demanded to spend the night and she called for help, forcing him to leave.

Boston University police later arrested him in the dorm's elevator and he said he lived with the girl. Police say he appeared intoxicated.

He was permanently removed from the hockey team's roster and was ordered to stay away from campus housing. The news article reports he surrendered his Canadian passport and is scheduled to appear back in court in January.

As with the Edelman case, this situation may come down to whether the "victim" is, in fact, a "victim." With athletes and celebrities, admirers may often involve themselves and then make unfair allegations.

In Trivino's case, he came to the woman's dorm room several times and she never felt threatened. Only after a third time of him coming over to her room did she call police. If there are no witnesses or roommates who heard shouting or some type of argument, it was probably safe to say she didn't really mind his company.

Not until the third time did she call for help and police made a determination that the alleged crimes had occurred. Obviously, hockey at BU is the biggest sport on campus, and their players are widely known. This can make for great fanfare for the student-athletes, but it can also lead to victimization because of their celebrity.

For the everyday person, a sex crime can be as devastating or worse. A job loss today is a major financial hit and without the means to get re-hired, it can be devastating. Not only that, but facing prison time and registry as a sex offender for a term of years can make anyone realize that fighting a sex crime is critical.

Continue reading "BU Hockey Star Charged With Sexual Assault in Boston" »

New England Patriots wide receiver and special teams member Julian Edelman appeared in Boston Municipal Court recently to address charges that he groped a woman on a dance floor, the Boston Herald reports.

A Boston sex crimes lawyer has seen how allegations that appear innocent on the surface can lead to serious charges and tough penalties against a defendant.

Sex crimes in Boston not only can include the possibility of jail or prison time and probation. If convicted, a defendant could be forced to register as a sex offender. This means their photo, address, identifying marks such as tattoos and other information will be displayed on state and national websites. They must notify law enforcement where they're moving from and where they're moving to. If they don't, they can be charged again.

A sex crimes conviction in Boston follows a person for life unless it is fought vigorously in the court system. Sadly, athletes and celebrities can sometimes be victimized because of their fame.

In Edelman's case, he pleaded not guilty to a charge of indecent assault and battery. He is accused of reaching up a woman's Halloween costume on the dance floor of a Back Bay nightclub.

A male witness said he watched the woman's expression change on her face to "shock" after the player allegedly "grabbed her vagina," a police report states. After the male witness threatened to "beat up" Edelman, he and the woman were kicked out of the club. Edelman was eventually removed from the club, but denied the allegations to police.

WEEI reports that Edelman said nothing during his initial court appearance. He was released on his own recognizance and ordered to stay away from the club and the alleged victim.

Edelman is a third-year player who was drafted in 2009 out of Kent State University. This season, he has three catches for 25 yards and 47 catches for 470 yards in his career. He has played mainly special teams for the Patriots this season, also returning kicks.

This appears to be a case of what will amount to a he said/she said situation, although there appears to be a witness who will testify for the state as well. It's unclear whether the woman was flirting with Edelman before the alleged incident or if they were dancing close to each other before this allegedly happened.

Alcohol can sometimes be a factor and police must address that when they are called to a scene. If a person claiming to be a victim has been affected by alcohol and a night of drinking, investigators must consider that in deciding to file charges and it could influence a jury's evaluation of the credibility of witnesses. This is common in cases of alleged domestic violence in Boston. When police arrive at a house, they sometimes assume the person considered the victim is telling the truth and the accused is lying.

But with sex crimes, the consequences are much more severe. Possible penalties are steep and the long-term impacts are great. Such charges must be fought aggressively.

Continue reading "Patriots Wide Receiver Edelman Charged with Sex Crime in Boston" »

A Provincetown man is suing amid claims his privacy rights were violated after authorities allegedly kept records in connection with a voluntary DNA sample he submitted during an investigation into the killing of a fashion writer, the Boston Globe reports.

Massachusetts criminal defense attorneys are seeing an increasing number of criminal charges being brought in cold cases after hits from the DNA database link defendants to the crime. In addition to the state system, samples are submitted to the Combined DNA Index System (CODIS), which compiles and compares samples from defendants and unsolved crimes nationwide.

While seldom discussed as a reason to fight a conviction on felony charges in Massachusetts, keeping your DNA out of such databases can be critical to protecting your privacy rights.

In this case, Keith Amato sued after trying for two years to get his sample back from law enforcement. He claims the submission was voluntary and that authorities told him he would get the sample back if his DNA did not match a sample collected at the scene of the killing of Christa Worthington. While the sample was returned in October 2008, he claims the state crime lab has held his DNA profile, along with records and samples provided by other men.

Last week, the Massachusetts Appeals Court ruled his lawsuit can go forward; it had been tossed out by a lower court.

"The allegations that the defendants have retained Amato's highly sensitive DNA records without his consent and made them available for nonconsensual use in other criminal investigations are sufficient to constitute an unreasonable, substantial, and serious interference with Amato's privacy," the court ruled.

Worthington's trash collector, Christopher McCowen, was convicted in 2006 of her rape and murder and is serving life in prison. Worthington lived in Cape Cod at the time of the crime. Investigators solicited samples from numerous men who knew the victim. Amato was a relative by marriage of the father of Worthington's 2 1/2 year old daughter.

The lawsuit claims as many as 200 men gave samples and that Amato was assured any samples that did not match the crime scene would not become part of any state or federal database. McCowen also provided a sample before being arrested in 2005.

Amato was unsuccessful in retrieving his sample, despite requesting its return on numerous occasions from the Cape & Islands District Attorney's Office. The office said state lab protocol requires retaining evidence in murder cases for 50 years.

Such DNA dragnets are an example of law enforcement operating in a gray area. The "voluntary" collection of samples comes perilously close to unreasonable search and seizure and must be aggressively challenged by a Cape Cod criminal defense lawyer.

Unfortunately, such tactics have been around since the advent of DNA. The first use of DNA in a criminal case occurred in England after the rape and murder of two girls. "Mass screening" of male subjects was used to solve the crime. The case is recounted in "The Blooding: The True Story of the Narborough Village Murder," by Joseph Wambaugh.

Wambaugh is a former detective with the Los Angeles Police Department.

Continue reading "DNA Database Another Reason for Experienced Criminal Defense Attorney in Massachusetts" »

The Massachusetts Appeals Court in the case of Commonwealth v. Figueroa, decided on April 29, 2011, upheld a defendant's conviction for indecent assault and battery in Chelsea, Massachusetts despite arguments that the court improperly allowed statements of the victim into evidence without providing an opportunity for cross examination.

In Figueroa, the defendant was working at Fairlawn Nursing Home in Leominster, Massachusetts and was alleged to have had sex with an eighty-six year old woman suffering from dementia. At trial, the victim did not testify, but two witnesses from the hospital did testify, including a witness that claimed to have witnessed the incident.

The legal issue surrounding this Massachusetts sex crime was whether statements that the victim made to another CNA describing the defendant's actions, in having sex with the victim and indicating that the defendant claimed to be performing a test on the victim. The Massachusetts criminal attorney objected to these statements being admitted into evidence.

The Appeals Court stressed that an excited utterance is admissible if it is made following an occurrence or event that is sufficiently startling to render inoperative the normal reflective process and the statement was a spontaneous reaction to the occurrence or event.

Having found that the statement was admissible under the rules of evidence, the next issue for the Appeals Court was whether the statement could be admitted without providing the defendant an opportunity for cross examination of the speaker. Accordingly, the Court addressed the issue of whether the statements were testimonial.

The Court discussed that statements made in response to law enforcement questioning are testimonial per se, except where the statements are meant to secure a volatile scene or to establish the need to provide medical care. The Court went on to stress that it will evaluate whether or not a statement is testimonial based on whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting a crime.

The Appeals Court concluded that the victim's statement that the defendant did the test again indicates that the victim understood the question to be about her medical condition. The Court held that the inquiry is whether a reasonable person in the declarant's position would objectively believe that the statement would be used in a criminal prosecution. The Court held that the declarant would not have reasonably believed her statements would be used to prosecute the defendant.

The decision of the Appeals Court is difficult to reconcile with the decision of the United States Supreme Court in Michigan v. Bryant and I would expect the SJC to reverse the conviction should further appellate review by sought. In Bryant, the United States Supreme Court held that the statement of a victim identifying the person that shot him was nontestimonial because the police were responding to an ongoing emergency.

In contrast, in the case of Figueroa, the victim was describing a past criminal act. The victims purpose in describing the actions of the defendant were not to obtain further medical treatment, but to describe what happened to her; the fact that the victim may not have known of the illegality of the conduct cannot negate that the objective purpose of the statement was to describe the criminal conduct of the defendant. Further, at the time of the statement, there does not appear to be any ongoing emergency as other hospital employees had come into the room. Additionally, the purpose of the victim being questioned was to determine whether the defendant had committed a criminal act in his care of the victim. Accordingly, when the victim was being questioned by the hospital employees, the employees were acting essentially as police officers trying to determine what had happened at a crime scene. In a footnote, the Appeals Court note that the employee testified that when she first spoke to the victim she did not think she would have to report anything to the police, but it was only after hearing the victim's response that she realized she would be required to notify the police.

The result in this case deprived the defendant of his Sixth Amendment Right of Confrontation and I would expect the SJC to reverse if further appellate review is granted.
The Court's decision undermines the basic purpose of the right of confrontation to allow for face to face confrontation of an individual accuser at a criminal trial.

Continue reading "Massachusetts Sex Crimes Lawyer reviews recent Indecent Assault and Battery Case addressing excited utterances and the Right of Confrontation" »

High-profile Quincy developer William S. O'Connell recently pleaded not guilty to charges that he raped a child, paid for sex and trafficked cocaine, according to The Patriot Ledger.

Such charges require a dedicated and experienced Stoughton criminal defense attorney who has experience fighting sex crimes and drug crimes.

In sex cases, in particular, authorities often rely on the word of an alleged victim if DNA and other evidence isn't found, making it important for suspects not to try to talk their way out of an arrest. Before you speak to police, call a Massachusetts attorney. A well-trained attorney can work to suppress harmful evidence that may be used against you at trial.

In O'Connell's case, he is charged with having sex with a child between the age of 14 and 16. In a raid of his Marina Bay condominium, authorities say they seized 19 grams of cocaine. Authorities alleged O'Connell had several involvements with the child, beginning in the spring and summer of 2009 until March 2011.

He is due back in Quincy District Court on July 14 for a probable cause hearing. But the newspaper reports O'Connell may be indicted prior to the hearing, which would move the case to Superior Court in Dedham.

If convicted, O'Connell, 71, faces a 10-year minimum prison sentence on the rape charge and at least three years in prison if convicted of the trafficking charge, according to the newspaper. He was released on $150,000 bond.

Further, O'Connell was required to surrender his passport, stay in the state and have no contact with the alleged victim. He also can't have contact with any child younger than 16 and must submit to random drug testing.

Continue reading "Quincy Developer Pleads Not Guilty to Rape, Drug Charges in Quincy District Court" »

A 20-year-old Ashland man is charged with rape in Framingham after authorities say he had sexual contact with a 13-year-old girl, the Milford Daily News reported.

The Ashland man faces charges of rape of a child, indecent assault and battery of a child younger than 14 and enticement of a child. He appeared in Framingham District Court, where a judge ordered him to have no further contact with the victim.

It's imperative that an experienced Massachusetts sex crimes defense lawyer handle this case from the start. Many times in such cases, the sexual contact is consensual. However, the age difference can put a young man at risk of a serious criminal conviction and being forced to register as a sex offender as consent is not a defense to a charge of statutory rape.

Under Massachusetts Law (Chapter 265 Section 13B), indecent assault and battery on a child under 14 is punishable by up to 10 years in prison. Massachusetts' statutory rape provision is particularly harsh and permits a penalty of up to life in prison.

Police received a call about the defendant allegedly having sexual contact with the girl in a wooded area on Presidents Row. Police say he admitted to smoking marijuana with the girl and making out.

The judge denied a request by prosecutors to set bond at $1,000 and require GPS tracking, instead ordering a $500 bond and daily drug and alcohol testing.

As a Massachusetts criminal defense lawyer, the Commonwealth v. Botev, decided April 15, 2011, raises an interesting issue that is important in defending criminal charges. In many criminal cases, the ability of the alleged victim to identify the defendant as the individual who committed the offense will be a prominent issue in the case. That was the case in a bench trial on the charge of Open and Gross Lewdness brought by the Millis police that was heard in the Wrentham District Court in February 2010.

In the Botev case, the defendant was convicted of open and gross conduct when the testimony at trial was that he exposed himself to two fifteen year-old girls while in a park in Millis. The issue at trial was whether the victims could identify the defendant. The victims were shown a photographic array that included the defendant. The victims identified the defendant but with uncertain language; one victim stated that the picture looked like the defendant while the other stated that it was most like him.

The Wrentham, Massachusetts criminal lawyer in the case filed a motion to suppress the photographic identification, claiming that it was unnecessarily suggestive. Improper identifications are a leading cause of wrongful convictions. When the police identification is improperly suggestive, a defendant's right of due process and effective confrontation under the Sixth Amendment are infringed because the victim's wrongful identification becomes imprinted in the memory of the victim. Because identification testimony is crucial during a criminal trial and is difficult to overcome through cross examination, courts will exclude an unnecessarily suggestive identification because a suggestive identification denies the defendant due process and a fair trial.

The Massachusetts case that sets forth this rule is a case from the Supreme Judicial Court called Commonwealth v. Botelho, 369 Mass. 860 (1976). The exception to this rule requiring exclusion of the identification is when the Commonwealth can show that the identification had an independent source other than the suggestive identification.

It appears that when the Massachusetts criminal attorney requested a suppression hearing, requiring the victims to testify live about their identification of the defendant, that the motion judge held an identification procedure where the defendant was in the courtroom while the victims were given an opportunity to see if they could identify the defendant.

The victims identified the defendant from the gallery in the first session of the Wrentham District Court and, at trial, the trial judge allowed the identification, concluding that it had an independent source.

Identification case can involve difficulty strategic decisions for criminal attorneys. Had the victims not identified the defendant during the in-court identification, the case would likely have been dismissed. Alternatively, counsel could have chosen not to raise the identification issue prior to trial and contested it at trial. In this case, it appears as though the motion judge was not going to permit an evidentiary hearing on the issue of identification as the judge ordered the in-court identification.

One problem complicating the decision of the Massachusetts criminal lawyer in the case was that the circumstantial evidence in the case confirmed the reliability of the identification as the defendant was observed for 45 seconds, the victim testified that the defendant spoke with an accent and the defendant was found in oddly clad in boxer shorts when arrested by the police officer shortly after the incident.

Assuming the defendant did not have a prior conviction for open and gross, the conviction in this case would not require him to register as a sex offender as only a second and subsequent offense of open and gross lewdness requires sex offender registration.

Officials are investigating the report of a sexual assault in Brockton that may have happened in a classroom during school hours, with a teacher present, the Enterprise News reported.

Brockton criminal defense attorneys know the consequences can be quite severe for those convicted of sex charges involving students. A defendant has the right to be presumed innocent. However, more than many other types of criminal cases, sex charges involving schools and/or students require defense on all fronts, including in the court of public opinion. Even in cases where a defendant is ultimately found innocent, job loss, loss of reputation and other costs can be a high price to pay.

In this case, a Stonehill College junior from Millis, is charged with child rape and indecent assault on a child under 14. Under Massachusetts Law, MGL c.265, s. 13B, incident assault and battery of a child under the age of 14 is punishable by up to 10 years in prison. Rape of a child can be punishable by up to life in prison. The victim has reportedly told police the abuse happened numerous times, in a classroom during school hours.

The defendant has plea not guilty and said the victim was angry at him for not having chosen her for a group. He said he has had little or no interaction with her during the school year. Some in the community are calling for better supervision of tutors as a result of the allegations.

Continue reading "Brockton school dealing with allegation of Massachusetts sexual assault in classroom" »

In a rare victory for those convicted of a sex offense, the Supreme Judicial Court threw out the conviction of a Boston sex offender who failed to register with police within two days of his release from jail -- saying the state did not have the authority to mandate the two-day registration requirement.

It's imperative to consult with an experienced Massachusetts criminal defense lawyer as soon as possible if you or a family member is being investigated or has been charged with a sex crime in Massachusetts. Once convicted, a defendant may be subjected to sex-offender registration requirements and other restrictions for the rest of his life. Too seldom do courts or lawmakers side with offenders. Too often do they pile on more rules and restrictions that can leave a defendant paying for a crime long after time has been served.

An aggressive defense is required to keep a conviction off your record whenever possible and to make sure a defendant has the best chance of meeting reporting and probation requirements. Unfortunately, defendants are often ashamed enough to quickly plead to a charge when offered a deal without jail time. Too often, this only leads to serious legal problems. In other cases, an investigating officer may attempt to get a statement by using a suspect's embarrassment, or even by indicating the allegations are little more than a nuisance that needs to be cleared up.

In each case, a defendant is best served by speaking to an experienced criminal defense attorney. The chances of talking your way out of charges are virtually nonexistent. In many instances, such cases hinge on the testimony of the defendant and the alleged victim. Talk to a lawyer before talking to law enforcement.

In this case, the defendant was charged in 2009 with failing to notify Boston police within two days of his release from jail that he would be living at a local homeless shelter. The state's high court ruled the Sex Offender Registry Board was established by state law and had no authority to go beyond the law, as it did in establishing the two-day rule. Some offenders are then required to appear in person at their local police station to verify their residency information every 12 months.

Those in homeless shelters must verify their information every 30 days.

Continue reading "Massachusetts Supreme Judicial Court rules that Massachusetts sex offenders cannot be forced to register within two days of release " »

A well-known Guatemalan activist has been sentenced to six months in jail on sexual assault charges in New Bedford, Massachusetts, according to South Coast Today.

Anibal Lucas, 52, was convicted on indecent assault and battery and assault and battery after a complaint was filed by a 24-year-old Guatemalan woman, who said Lucas groped her. The woman said she had gone to Lucas for help after losing her job. A 19-year-old woman also accused Lucas of touching her leg and propositioning her but he was acquitted of those charges by a jury.

A New Bedford criminal defense lawyer should be contacted at the earliest stages of such investigations. Sex crimes often hinge on the testimony of the victim and the defendant. The accused should not speak with investigators before consulting an attorney. Frequently detectives will attempt to intimidate a suspect with the prospect of being charged with a sex crime, or conversely will approach him as though the complaint is little more than a nuisance, in an attempt to get a statement on the record. Such statements will not keep you from being charged, will be used against you in court, and could conflict with your defense strategy.

In this case the women testified that they came forward to prevent other women from being harassed. Lucas ran Organizacion Maya K'iche, a local nonprofit organization for Guatemalans which will remain open while he serves his jail sentence. As part of the conviction, Lucas will have to register as a sex offender and be monitored by a GPS bracelet. He also will not be allowed to return to the organization or to volunteer with any other group that works with immigrants.

The organization was founded in 1995 and provides help to the local Guatemalan community by providing Internet access, English classes and classes on workplace rights and other topics. Lucas and the organization played a major role in finding legal help for the 361 immigrant workers arrested in raids in March 2007.

Continue reading "Guatemalan activist sentenced to 6 months in jail for Massachusetts sexual assault charges in New Bedford" »

In many Massachusetts Sexual assault trials, a defendant will face a multiple count complaint that will allege sexual assaults occurring at different times and may face a complaint with two or more victims. In the case of Commonwealth v. Aguiar, decided by the Massachusetts Court of Appeals on November 1, 2010, the court held that the trial judge did not commit reversible error in denying a motion by the Massachusetts sex crimes lawyer to severe the sexual assault charges so that the defendant would have a separate trial regarding the allegations of each victim. The Massachusetts Appeals Court addressed the issue of when joining charges is appropriate.

Under Rule 9 of the Massachusetts Rules of Criminal Procedure, when offenses are related they shall be joined for trial unless joinder is not in the best interest of justice. The Appeals Court in Aguiar held that relatedness is when an offense is based on the same criminal conduct or episode or arise out of a course of conduct that constitutes a pattern or scheme. The Appeals Court found that the offenses were related because the defendant had a scheme of cultivating the trust of young girls that permitted him to commit the sexual assaults.

In Massachusetts sexual assault cases, trial and pretrial motions are often critical to a successful defense at trial. In this case, it appears that the judge should have severed the trial as the defendant was unfairly prejudiced by having to defend two separate sexual assault allegations in the same trial. I would expect the criminal defense lawyer to file a petition for further appellate review to seek to have the decision of the Appeals Court reversed by the Massachusetts Supreme Judicial Court

A 49-year-old man is facing sexual assault charges in Framingham after a nursing home resident said he attacked her while working there, the MetroWest Daily News reported.

The alleged victim, who has a medical condition that makes it difficult to speak or communicate through writing, had initially been ruled incompetent to testify by a Framingham District Court judge. That ruling was overturned by the Supreme Judicial Court, which ruled she should be allowed to testify with the assistance of an aide.

Left undecided are the parameters of just how much assistance the victim will be permitted in testifying. This case is unique, in that the court (and the defendant) must now rely upon what a third party contends the witness is saying. A Framingham criminal defense lawyer will necessarily fight against granting much latitude in this regard and the issue will likely still be ripe for appeal. The importance of preserving such issues for appeal cannot be overstated. In many instances, a local judge may give the local prosecutors the benefit of the doubt. Such is often not the case when an issue goes through the appeals process.

While a criminal defense lawyer will fight to prevent a client from being convicted in the first place, it is also his or her job to make sure they have the best chance of a successful appeal.

In this case, Kofi Agana, 49, was arrested in February 2009 and charged with incident assault and battery on a person older than 14. He is in the custody of Immigration and Customs Enforcement and has been ordered deported to Ghana.

Continue reading "Framingham sexual assault case illustrates need to preserve issues for appeal in Massachusetts criminal cases" »

A Hopkinton man entered a not guilty plea to a charge of indecent assault and battery on a child over 14 in Worcester District Court. According to a news account, the defendant, George Scandalis, was driving in his Lexus SUV and asked the boy if he could use his cell phone. When the boy got into the car, the news account states that the defendant sent himself a text message and then groped the boy.

It appears that the boy informed his family who told the police. The police then posed as the boy and sent the defendant a text message, when the defendant arrived he was arrested.

The Worcester District Court judge set bail at $ 5000.00 and ordered Scandalis to stay away from the boy and have no unsupervised visits with any child under 16.

As a Massachusetts criminal defense lawyer, this case appears more difficult to defend than the typical indecent assault and battery charge. Many charges of sexual assault involve individuals with a relationship to one another, where a criminal defense lawyer in Worcester can argue that the victim had a motive to lie, fabricate or that a third party had a motive to influence the perception of the minor.
In a indecent assault and battery trial, the defense lawyer has to answer for the jury the question why would the victim lie or who could compel the victim to lie or distort the truth. Here, these issues appear to be a challenge for the defense lawyer; however, often the initial news account does not contain a complete and accurate version of what happened and it is likely that the Worcester criminal defense attorneys representing the defendant will uncover additional evidence to prepare a defense in this case.

The Massachusetts Appeals Court revisited the doctrine of the first complaint witness in the recent decision of Commonwealth v. Aviles, decided on August 16, 2010. In Aviles, the defendant appealed his conviction of rape and indecent assault and battery arguing that the trial judge committed error of law in admitting evidence of multiple complaint witnesses. This ruling represents an important decision for criminal defense lawyers, defending sex crimes.

As a Massachusetts criminal defense lawyer, charges of sexual assault generally raise an evidentiary issue known as the first compliant doctrine. Under the first complaint doctrine, defined by the Massachusetts Supreme Judicial Court, in Commonwealth v. King, 445 Mass. 217 (2005), the prosecutor is only permitted to have the first person to whom the victim told of the alleged assault to testify at trial.

The rationale for the doctrine is to refute the notion that silence is a sign of lack of credibility of the victim. In other areas of criminal law, a victim would not be permitted to testify that she told someone else about a crime as the testimony would be inadmissible hearsay. Accordingly, the first complaint doctrine is essentially a special exception to the hearsay rule. The SJC in King limited the evidence to one witness out of concern that permitting numerous complaint witnesses to testify would deprive the defendant of a fair trial and unfairly enhance the credibility of the victim.

In Aviles, the victim alleged that the defendant touched her on four or five occasions. The defendant told the victim that he would hurt her if she told anyone. The victim believed the defendant's threats and did not disclose the incident to anyone until she told her mother three years later that the defendant touched her. The incident was still not reported until the victim saw the defendant's picture on television while at her grandmother's house and said that the defendant raped her. Following that incident, the police were called. The defendant objected to any testimony of the defendant's grandmother being told to the jury under the first complaint doctrine. The judge ruled that the testimony was admissible to explain the delay in reporting the incident and how it came that the victim brought the matter to the attention of the police.

The court held that the exclusion of the testimony regarding who the victim disclosed the rape to would have created a false impression that she fabricated the allegations. The court also held that even if the testimony was not properly admitted that there was no substantial miscarriage of justice, as the court held that the objection to this testimony was not preserved by the trial counsel.

The court reviewed the error under the more forgiving substantial miscarriage of justice standard because the court held that the defendant did not preserve the objection. As a Massachusetts criminal defense lawyer, it is hard to see how the defense lawyer's objections could have been more specific and detailed. The decision was a 2-1 decision of the Appeals Court and it is anticipated that a motion for further appellate review would be allowed as the decision raises significant issues regarding objections in criminal cases and the first complaint doctrine.

A corrections officer at Walpole State Prison is facing Massachusetts child pornography charges in Uxbridge District Court, according to the Telegram and Gazette.

the corrections officer pleaded not guilty to charges of dissemination of obscene matter and possession of child pornography. Bail was set at $5,000 and he was ordered to stay away from children and to not possess a computer. He was arrested in the Millbury State Police barracks after a two-month investigation by state and Blackstone police.

Under Massachusetts law Ch. 272 Sec. 29B), disseminating child pornography is punishable by 10 to 20 years in prison. Of additional concern in an increasing number of sex crimes are the post-release conditions, which can include sex-offender reporting and restrictions on employment and living arrangements. A Massachusetts criminal defense lawyer experienced in defending clients against sex crimes should always be contacted in such cases.

Frequently, a defendant is tempted to plead guilty and put an embarrassing episode behind him. But a sex-crimes conviction can impact the rest of a defendant's life and include restrictions that make it impossible to hold certain jobs or even visit a park or community swimming pool. The defendant in this case has not even been convicted of a crime and he is already forbidden from using a computer. Many people may not even be able to work, let alone lead a normal life, without using a computer in today's world.

A state trooper reported investigating four tips from the CyberTipline for the National Center for Missing and Exploited Children. The defendant is accused of receiving an alleged child pornography image in 2002 and of e-mailing three files containing images of what authorities believe are three naked girls under the age of 14.

A Department of Correction spokesperson said the defendant has been suspended with pay pending an investigation and the outcome of court proceedings.

This case illustrates how aggressively authorities pursue child pornography complaints. For innocent defendants, the results can be devastating. More than in many other types of criminal cases, it is important to mount an aggressive defense of a person's reputation as well as a courtroom defense. Many times, damage to a reputation may result even if the charges are never proven. In this case, the defendant is alleged to have received an image eight years ago and sent three photos by e-mail of girls authorities believe might be underage. As a result, he has been arrested, suspended from his job and made the local newspaper.

In such cases, the best defense is an aggressive offense.

Continue reading "Uxbridge, Massachusetts child pornography charges result from e-mailed images " »