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The Massachusetts Supreme Judicial Court today decided the case of Commonwealth v. Michael Robertson and considered the issue of whether secretly photographing or videotaping a person in a nude or partially nude state is illegal. The court ruled that it is not.

The defendant in this case was charged under M.G.L. c. 272, section 105, “Photographing, Videotaping or Electronically Surveilling Partially Nude or Nude Person”, which states in part:

“Whoever willfully photographs, videotapes or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstances would have a reasonable expectation of privacy in not being so photographed or videotaped…and without that person’s knowledge and consent…”

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A New York federal judge ruled that the United States government’s phone gathering system is constitutional and a necessary measure to combat possible terrorist attacks against the country. The judge further ruled that Congress was within its rights to establish the system and that it does not violate any citizen’s constitutional rights.

Notably, this New York decision is contrary to the rulings of a Washington D.C. judge who held earlier in December that the program is likely unconstitutional. Essentially, one judge found that the NSA program is successful in thwarting potential terrorist attacks before they come to fruition; while the other judge ruled that he was not convinced that the program was producing any results at all. Given the contrary rulings and expected appeals in both cases, the issue will likely find its way to the United States Supreme Court at some point.

The New York federal court judge based his decision on several points, including reliance on a 1979 U.S. Supreme Court ruling that held that individual telephone consumers do not have privacy rights in the data that the company retains regarding their use of service.

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The Massachusetts Declaration of Rights and the United States Constitution afford every citizen with certain fundamental rights, including the right to remain silent and assert one’s privilege against self-incrimination. Just about everyone has heard of that right, but believe it or not, many people charged with a crime either don’t exercise it, or don’t properly assert.

The United States Constitution states that “no person shall be compelled in any criminal case to be a witness against himself.” Accordingly, every person subjected to a custodial interrogation must be warned that he (1) has a right to remain silent; (2) any statement he makes can be used as evidence against him; (3) that he has a right to consult with an attorney and that if he cannot afford one one will be appointed; and (4) that if he does choose to speak, that he has a right to stop questioning at any time. Once these warnings are provided, a defendant’s subsequent statements are only admissible as evidence against him at trial if the government shows, by proof beyond a reasonable doubt, that the defendant gave a knowing, voluntary and intelligent waiver of those rights.

Against this backdrop, it’s not enough to just tell the police that you “might” want to speak with a lawyer or are “considering” consulting with an attorney. Police are only required to stop questioning upon a clear and unambiguous request for counsel. In other words, the invocation of the right to an attorney must be sufficiently clear that the police officer understands the statement to be a request for a lawyer.

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A 20 year old man from Boston was arrested this past Thursday on Massachusetts Drug Charges in Weymouth. He was charged with Drug Distribution, Possession with Intent to Distribute a Controlled Substance, Conspiracy to Violate the Drug Laws, and Resisting Arrest.

According to the Weymouth Police Department, the defendant was alleged to have engaged in a drug transaction with a Weymouth man at a home on Pierce Road. That man was arrested on similar drug charges. Police had received tips about alleged drug dealing at that address.

One of the most important steps in defending any drug case is evaluating the specific facts and circumstances involving the person’s arrest. Anyone who has been the subject of a search to their person or property by police can challenge that search under the United States Constitution and the Massachusetts Declaration of Rights.

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A Somerville High School student was arraigned yesterday on several Massachusetts Sex Crimes Charges, including Aggravated Rape of a Child in connection with the alleged sexual assault of another young high school athlete with a broomstick.

A total of three Somerville students who were attending a retreat in the Berkshires at Camp Lenox and allegedly sought out three other students and attempted to assault them. The students were members of the Somerville’s soccer team and several other students who were participating at a summer camp at Camp Lenox in Otis.

Police allege that the three students took a broomstick to rape and sexual assault a freshman student; and also tried to do the same to two other students but they were able to escape. According to prosecutors, blood and other evidence was recovered from the scene.

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Jared Remy, of Waltham, was charged this week in Waltham District Court with Massachusetts Murder Charges in connection with the stabbing death of his girlfriend, Jennifer Martel.

According to the Middlesex County District Attorney’s Office, Waltham Police officers responded to a 911 call at Remy’s apartment and found what they described as a scene indicating a struggle inside and outside of the home. Ms. Martel, according to police, was located on the patio outside with multiple stab wounds.

A neighbor, identified by the Boston Globe as Benjamin Ray, told the media he witnessed the incident; that Remy was repeatedly stabbing her with a knife. He told reporters that he tried to stop it but it wasn’t enough.

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The Massachusetts Appeals Court recently reversed the conviction of a man who was convicted of Annoying or Accosting a Person of the Opposite Sex where the government failed to provide proof that the alleged conduct involved a sexual element.

The prosecution alleged that the defendant approached a woman and tried repeatedly to converse with her. She ignored his attempts and the defendant then left in his car. Sometime later, the defendant again approached the woman and ordered her to get in the car. Eventually, the defendant drove away, but not before the woman was able to get the man’s license plate.

Following trial, the defendant was convicted with having Annoyed or Accosted a Person of the Opposite Sex and appealed.

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In the case of Salinas v. Texas, the United States Supreme Judicial Court recently considered the question of whether a defendant’s pre-arrest silence, prior to being placed in custody or receiving Miranda warnings, can be used against him in a subsequent criminal prosecution as evidence of consciousness of guilt.

In this case, prior to being taken into custody, the defendant voluntarily answered some questions from police about a murder. After answering several questions, the defendant remained silent when he was asked whether any ballistic evidence testing would yield matches between his shotgun and the shell casings found at the crime scene. Rather than answer, the defendant remained silent, shuffled his feet, and bit his lip.

After being silent for several moment, he then continued answering other questions from the police.

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In the case of Commonwealth v. Joshua Lewis, the Massachusetts Supreme Judicial Court recently emphasized the limitations prosecutors are required to abide by when arguing their cases before juries.

In that case, the defendant was charged with assault with intent to murder and several firearms offenses after being shot and wounded by a Massachusetts State Police Trooper. At trial, the defendant’s attorney argued that the defendant did not have a gun, fired at the defendant without justification, and then placed a gun where the defendant was laying.

In closing arguments, the prosecutor made statements to the jury that the defendant was a “street thug” and even went so far as calling the defendant’s attorney a liar; and the defendant’s theory of defense a “sham”.

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In a recent case involving a constitutional challenge to seizing a person’s DNA without his consent, the United States Supreme Judicial Court, in Maryland v. King, considered whether it is a constitutional violation for police officers to take a defendant’s DNA as part of the normal booking procedure following an arrest. This was authorized by a statute enacted in Maryland.

In that case, the defendant was arrested on assault charges. During the booking process, officers used a cheek swab to take a DNA sample from the defendant. The swab was ultimately matched to an unsolved 2003 rape, and the defendant was charged with that crime as well.

The defendant moved to suppress the taken of his DNA without his consent or without a court order, and the case eventually made its way to the United States Supreme Court, which held that: