Boston Criminal Lawyers Blog
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The Massachusetts Supreme Judicial Court considered whether evidence or documents that were provided to an attorney by the client are obtainable by prosecutors from the attorney via subpoena.  The question, the court ruled, depends on whether or not the the evidence was provided to the attorney for purposes of legal assistance.

This case involved circumstances where the defendant was the subject of a grand jury investigation who, in the course of seeking legal advice, had given his phone to his lawyer.  The government, on behalf of the grand jury, obtained an order from a superior court judge ordering the attorney to produce the phone so that the grand jury could examine its contents.  The attorney refused to honor the superior court judge’s ordering him to do so and the appeal reached the Supreme Judicial Court. Continue reading →

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The Massachusetts Supreme Judicial Court addressed the issue whether a defendant, who was the object of the police investigation, may still move to suppress evidence seized from the co-defendant under the theory of “target standing”.  Target standing is a legal theory that permits a defendant, who is charged with a possessory offense, such as unlawful possession of drugs or guns, to challenge the lawfulness of the seizure of that evidence even though it may have been seized by police from a co-defendant or other third-party.

In the case of Commonwealth v. Santiago, the SJC held that, a challenge to the suppression of evidence on the theory of target standing does not apply unless the defendant is charged with a possessory offense, even though he may have been the primary suspect in the police investigation. Continue reading →

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In the recent case of Commonwealth v. Walter Crayton, the Massachusetts Supreme Judicial Court established a new standard for the admission at trial of an in-court identification of the defendant where the witness had not, prior to trial, been asked to participate in an out of court identification procedure.  The new rule imposes the burden on the Commonwealth to request. prior to trial, that the prospective witness be permitted to make an in-court identification if there has not been any previous identification of the defendant.

Once the prosecutor makes this request, the burden remains on the defendant to establish that the proposed in-court identification would be “unnecessarily suggestive” and that there would be no “good reason” for it.  Examples of “good reason” for the first identification procedure by a witness against a defendant at trial may include circumstances where the eyewitness was familiar with the defendant before the commission of the crime; or where the eyewitness was the arresting officer.  In other words, circumstances where the witness and the defendant were known to one another or where the identity of the defendant is not a live issue at trial – where the witness is not identifying the defendant based solely on his memory of witnesses the defendant at the time of the incident and therefore, little risk of misidentification from the in-court show-up. Continue reading →

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The Massachusetts Appeals Court recently suppressed evidence in a case that was seized as a result from an arrest by Boston Police based on mistaken information.  In the case of Commonwealth v. Maingrette, the Appeals Court ruled that the arrest, based on a default warrant that was no longer active at the time of the defendant’s arrest, was unlawful and evidence seized as a result must be suppressed.

When “an arrest is wrongly made on the basis of mistaken information chargeable solely to the police, the burden is on the government to show that i twas not at fault in the circumstances” and that the mistake was reasonable.”

Continue reading →

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In a case decide today, in L.L., a Juvenile v. Commonwealth, the Massachusetts Supreme Judicial Court rules on the standard a juvenile court judge determines the risk of re-offense on the part of a juvenile who committed a ‘sex offense’ that imposes the requirement of sex offender registration.  The SJC ruled that, even as it pertains to juvenile offenders, it is within the judge’s discretion to determine whether the juvenile offender should or should not be relieved of the obligation to register as a sex offender.

In this case, the juvenile was charged in Essex County Juvenile Court as a result of allegations that occurred in Lynn, Massachusetts.  The juvenile was charged with two counts of Indecent Assault & Battery on a Person.  The charges arose from allegations that the juvenile, who was 16 at the time, went up to an adult woman from behind; pulled down her pants; and then made inappropriate comments about her private area while also grabbing his genitals.  A week after this incident, the juvenile did something very similar to a second woman. Continue reading →

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The Massachusetts controlled substance laws punishes with enhanced penalties those persons who violated the drug laws for the sale or distribution of drugs within 100 feet of a “public park or playground”. This week, the Massachusetts Appeals Court ruled that a defendant cannot be criminally liable if he distributes drugs within a park or playground that is NOT “public”, even if it is accessible to members of the public.

In the case of Commonwealth v. Gopaul, the defendant was convicted for selling marijuana to an undercover police officer within 100 feet of an outdoor playground at the Windsor Meadows Apartment Complex, a private apartment complex in Marlborough, Massachusetts. The playground was not fenced in and, arguably, anyone could enter the playground.

The defendant challenged his conviction after trial, arguing that the Drug Distribution Near School Zone, Park or Playground Statute in Massachusetts General Laws Chapter 94C, section 32J, applies only to “public” playgrounds, not those that are on private property. Continue reading →

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Many clients, and even attorneys, don’t understand the perils of interviewing potential witnesses without the assistance of an investigator. Even when I explain and encourage client to retain the services of an investigator, many of them forego the use of an investigator for no other reason than to save some money. Unfortunately, not hiring an investigator can end up costing the client much more in the long run, and in some cases, even a conviction.

The recent case of Commonwealth v. Zabek was heard before the Massachusetts Appeals Court and specifically addressed the issue of trial counsel interviewing witnesses on his own and the potential conflict of interest that may arise as a result.

In that case, the defendant was convicted after trial on charges of rape of child and other sexual offenses. In his appeal, the defendant claimed that his trial attorney was ineffective because he had an actual conflict of interest and could not therefore zealously defend him. The lawyer, the defendant argued, had interviewed a witnesses prior to trial without an investigator, which then potentially made the lawyer a potential impeachment witness at trial.

Specifically, because the lawyer interviewed the witness alone and without the use of an investigator, had the witness testified inconsistently at trial, the lawyer would have had an actual conflict against his client because his testimony might be necessary to properly defend his client.

The Appeals Court noted that the Massachusetts Rules of Professional Conduct prohibit an attorney from acting as trial counsel at a trial in which the lawyer is likely to be a necessary witness.

In this case, however, the Appeals Court rejected the defendant’s appellate claims because it turned out that the witness did not ultimately testify inconsistently with what was stated to the lawyer in the pre-trial interview. Additionally, the issue was raised before the trial judge and both the attorney and the defendant conceded that there was no reason to believe that the witness would offer any inconsistent testimony.

Nonetheless, this case is illustrative of the precise circumstances as to why a trial attorney should never interview witnesses on his own. By having another person witness the interview, that other person would then be available and able to be called at trial in the event the witness were to testify inconsistently.

Boston Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all Massachusetts Crimes and may be reached at 617-325-9500.

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In a recent appeal concerning a sexual assault case, he Massachusetts Appeals Court considered whether the purported ‘first complaint testimony’ must be remembered by the complainant in order to be admissible against a defendant at trial.

In Commonwealth v. Dale, the defendant appealed from his conviction of indecent assault & battery on a child under 14, arguing that the trial judge improperly admitted ‘first complaint testimony’ by the brother of the victim, who was 7 or 8 at the time of the incident. At trial, the brother testified that, at the time of the incident, the complainant had reported the abuse to him; but the complainant could not recall herself that she had, in fact, reported the abuse to her brother.

In Massachusetts, the first complaint doctrine permits a judge to admit testimony from the recipient of a victim’s initial report of sexual assault. The ‘first complaint witness’, i.e., the person to whom the sexual assault was first reported to, may also testify to the circumstances surrounding the complaint, including observations of the complainant; the events or conversation that culminated; the timing of the complaint; and other relevant conditions that might help the jury assess the truthfulness of the complainant as to the allegations of sexual abuse.

The Massachusetts Appeals Court rule that, in assessing whether the first complaint testimony is admissible at trial, it is not necessary that the complainant remember what, or if anything at all, was said. The court reasoned that the complainant’s lack of memory goes “to the weight of the evidence, not to its admissibility”.

The court specifically held that the first complaint doctrine balances the interests of a complainant, such as a child in this case, in having her credibility fairly judged on the specific facts of a case rather than unfairly judged by stereotypical thinking; with that of a defendant. This doctrine aims to provide the jury with all the information in order for them to assess the credibility of the complainant.

In other words, the Appeals Court ruled that, whether or not the complainant actually remembers relaying the circumstances of the abuse to another, the statements are still admissible. Whether or not the complainant remembers the conversation can be argued by the defendant to challenge the credibility of the complainant and the accuracy of the allegations.

In this particular case, it appears that the overwhelming reason why the court reached this decision is because the complainant here was a child at the time of the abuse. One view in the legal community is that child victims of sexual assault tend to block out the event so that their ability to remember and recall the circumstances at a later age is not out of the ordinary. On the other hand, many legal professional believe that children often tend to embellish, exaggerate or even fabricate sexual assault allegations for a variety of reasons. The Appeals Court here may have sought to balance these two views from their reasoning in this case.

Boston Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all Massachusetts Sex Crimes Charges and Criminal Appeals. Click Here to Schedule a Confidential Consultation or call 617-325-9500.

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A defendant’s motion for new trial from his conviction in a 1986 murder was upheld by the Massachusetts Supreme Judicial Court as a result of re-testing of critical forensic evidence.

In the case of Commonwealth v. Sullivan, the SJC affirmed the trial judge’s allowance of the defendant’s new trial motion from his convictions of 1st degree murder and armed robbery because forensic testing, technology not then available at the time of trial, would have been a substantial factor in the jury’s deliberations.

In this case, the defendant was convicted in the death of the victim in 1986. The evidence at trial illustrated two different eyewitness accounts: one version implicating the defendant in the killing; and the other that he was not even present at the scene at the time. One of the key pieces of evidence suggesting to implicate the defendant was the jacket he was wearing on the day of the murder…

At trial, the prosecutor argued that forensic testing on the jacket indicated the presence of blood on the cuffs; and a hair fiber found within the jacket was ‘consistent’ with a hair from the victim. This evidence was the only physical link between the defendant and the crime. The Massachusetts Supreme Judicial Court found that this evidence clearly was a substantial factor considered by the jury in there decision to vote for a conviction.

In 2011, however, the defendant had the evidence re-testing, and new forensic testing was able to establish that the spots on the jacket were not blood; that DNA recovered from the jacket were not that of the victim; and that the hair strand could not conclusively be said to have come from the victim.

As a result of this newly discovered evidence, the SJC agreed that, had this information been available to the defendant at the time of his trial, he could have argued to the jury that there was no direct physical link between him and the killing of the victim. The evidence, therefore, cast “real doubt on the justice of the defendant’s conviction.”

Boston Criminal Defense Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all Massachusetts Crimes, including Murder; and can be reached directly at 617-325-9500 or by Web Contact.

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In the case of Commonwealth v. Overmyer, the Massachusetts Supreme Judicial Court considered whether the smell of ‘unburnt marijuana’ provides police officers with probable cause to believe there is more than (the legal) one ounce to justify a search of the car without a search warrant. The court ruled that, no, the mere smell of unburnt marijuana does NOT justify a search.

In this case, police officers responded to a motor vehicle accident. On scene, the officers smelled “a very strong odor of unburnt marijuana near” the defendant’s car. In response to questioning by the police officers, the defendant admitted that marijuana was present in the car and gave the keys to the glove compartment to the police. Inside, there was a “fat bag” of marijuana. Because the odor of unburnt marijuana persisted, a further search was conducted and more marijuana in a backpack in the backseat.

As a result, this defendant was charged with possession with intent to distribute a class D substance and school zone violation.

In challenging the validity of the search of the car prior to trial, the motion judge ruled that once the marijuana was recovered from the glove compartment, the additional persistent smell of unburnt marijuana did not justify a further search of the back seat area and of the defendant’s backpack without a warrant.

The Massachusetts Supreme Court agreed, holding that since the law concerning marijuana was reclassified (and where it is no longer a crime to possess an ounce or less of marijuana) ‘the odor of unburnt marijuana alone cannot reasonably provide suspicion of criminal activity.’

Interestingly, the court further expanded on officers’ characterizations of the “strong” or “very strong’ smell of unburnt marijuana, describing these characterizations as inherently subjective. The court additional called into question whether a police officer can somehow identity, simply by “odor”, the presence and identity of a particular controlled substance and its weight. Ultimately, the SJC held stated that “…we are not confident…that a human nose can discern reliably the presence of a criminal amount of marijuana, as distinct from an amount subject only to a civil fine.”

Boston Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for consultation for all Massachusetts Drug Crimes and can be reached at 617-325-9500 or his Contact Page.