Boston Criminal Lawyers Blog
Published on:

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.

At trial for murder, the prosecution introduce evidence of the defendant’s silence as evidence of consciousness of guilt.

The United States Supreme Judicial Court held that, in circumstances of pre-arrest and where a person has voluntarily chose to speak with police, merely being silent does not automatically assert your 5th Amendment Rights. Rather, the person being questions must expressly invoke the 5th Amendment Protection, i.e., right to remain silent, otherwise it is not invoked and prosecutors may then use that silence against the person at trial.

The court wrote:

“A witness’s constitutional right to refuse to answer questions depends on his reasons for doing so and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim…”

In this regard, the U.S. Supreme Court rejected the argument that a person’s silence should be understood as a Fifth Amendment plea because most people do not know the law.

The Massachusetts Declaration of Rights, however, offers greater protection to criminal defendants. In similar circumstances, the Massachusetts Supreme Judicial Court has previously suggested that a defendant’s pre-arrest silence should not be used as evidence of consciousness of guilt.

Boston Criminal Appeals Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all Massachusetts Criminal Appeals.

To schedule a Free Consultation, Click Here to Contact a Massachusetts Criminal Appeals Lawyer or call 617-325-9500.

Published on:

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”.

An except of the prosecutor’s closing went like this:

“The entire defense in this case, I’d suggest to you, is a sham.”

“[what about] the wad of money in his front pocket. Of course, all us unemployed people have a big wad of money in our pocket. Where’s my money? They are street thugs who are out, and that they’re going to do with those guns, luckily, we didn’t get a chance to find out.”

“It’s the arrogance of street thugs that gets you in this case.”

“As you look over all of this evidence…[it] will be obvious to you that the lies came from [the defense] table. And I’m not leaving out the attorney either…”

The defendant’s convictions for the crimes of assault with intent to murder and firearms offenses were reversed by the Massachusetts SJC as a result of these improper comments made by the prosecutor to the jury.

In Massachusetts criminal trials, prosecutor are permitted to argue forcefully for a conviction based on the evidence, but it is improper to refer to: the defendant’s election to not testify; misstate evidence or refer to facts not in evidence; interject personal belief in the defendant’s guilt; play on racial, ethnic, or religious prejudice; play on the jury’s sympathy or emotions; or comment on the consequences of a verdict.

Aside from being completely unprofessional, a prosecutor may also certainly not personally disparage the attorney or infer that the attorney is somehow misleading the jury.

In the same way, it is improper for prosecutors to repeatedly refer to the defendant as a “street thug”, as this characterization encourages the jury to find the defendant guilty by virtue of his purported association with known criminals. Particularly in cases where there was no evidence of any such illicit associations, these arguments are extremely prejudicial to the defendant and may rise, as in this case, to the level of requiring reversal of the convictions.

Boston Criminal Lawyer Lefteris K. Travayiakis has experience in defending persons charged with Massachusetts Crimes of Violence and Criminal Appeals, and is available 24/7 for consultation.

To schedule a Free Consultation, Click Here to Contact a Massachusetts Appeals Lawyer or call 617-325-9500.

Published on:

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:

When police make an arrest supported by probable cause for a serious offense and the suspect is detained at the police station, it is reasonable under the 4th Amendment of the United States Constitution to take and analyze that persons DNA. This, the court held, is a legitimate booking procedure, much like taking a person’s fingerprints or photographing the defendant.

Incredulously, the United States Supreme Court majority held that a buccal swab for the taking of DNA evidence is a relatively slight intrusion on the privacy interests of a person; while also ensuring the government’s interest in accurate identifying those persons arrested.

Notably, Justice Scalia ripped the decision in his dissent, inferring that the real reason the police take a person’s DNA is not to identify them, but to solve crimes.

Despite the Supreme Court’s rulings, the Massachusetts Declaration of Rights generally affords greater constitutional and privacy protection for its citizens. With respect to the taking of DNA evidence, no Massachusetts statute permits police officers to routinely take a person’s DNA as part of the booking process.

Rather, the taking of a person’s DNA without his consent may only be compelled by court order or upon conviction by statute. Massachusetts General Laws Chapter 22E, Section 3, mandates that any person convicted of a felony must submit their DNA to be included into the state’s database.

Boston Criminal Lawyer Lefteris K. Travayiakis is available for consultation 24/7 on all Massachusetts Criminal Charges.

To schedule a Free Consultation, Click Here to Contact a Massachusetts Criminal Lawyer or call 617-325-9500.

Published on:

In Commonwealth v. Akara, the Massachusetts Supreme Judicial Court considered whether evidence of a defendant’s “gang affiliation” was properly admissible in his murder trial on a theory of joint venture.

In that case, the defendant was charged as a joint venturer in the murder of Philip Gadsden at an MBTA station.

At trial, the government introduced evidence of the defendant’s gang affiliation through the testimony of a Boston Police Officer. The officer testified that the Boston Police Department classifies any group or association of four or more people who call themselves by a group name and have various identifying signs, symbols or clothing. At trial, witnesses testified that the defendants were associated with a particular gang, but there was no evidence of any specific criminal activity by this gang other than alleged vandalism.

Notably, there was also no evidence of any motive for the murder or that the victim was associated with any “rival” gang.

Gang evidence may be admissible in criminal trials to show motive or to establish “joint venture”. Although the gang evidence in this case did not go to establish motive, the Massachusetts Supreme Court held that it was properly admitted to establish evidence of the defendants’ relationship, which in turn bolstered the prosecutor’s theory of joint venture.

This is not to say that all evidence of gang affiliation is automatically admissible in criminal trials. Defense attorneys will make efforts to exclude gang evidence at trial, particularly where a defendant’s purported gang membership is so prejudicial that it might suggest to a jury that he has a propensity to crime of violence.

Massachusetts Criminal Lawyer Lefteris K. Travayiakis represents persons charged with all crimes, including Murder, and is available 24/7 for consultation.

To schedule a Free Consultation, Click Here to Contact a Boston Murder Lawyer or call 617-325-9500.

Published on:

In the recent decision in Florida v. Jardines, the United States Supreme Court considered whether police could lawfully use a drug sniffing dog to search a the curtilage of a person’s home.

In a unanimous decision, the United States Supreme Court held that law enforcement must apply for and obtain a search warrant before they can enter the private property of a person for the purposes of gathering evidence of a crime.

In this particular case, after receiving a tip, the police conducted surveillance of the defendant’s home. Officers eventually approached the house with a drug-sniffing canine dog, who sniffed the defendant’s porch area and front door. After the canine signaled positive for drugs, the police used that information and applied for a search warrant and eventually arrested the defendant for drug trafficking.

In reaching its decision, the United States Supreme Court reiterated that when government obtains information by physically intruding on persons or their homes, a “search” within the constitutional sense has occurred. In this particular case, search occurred that required the police to first obtain a search warrant supported by probable cause.

The United States Supreme Court grounded its decision, however, based on the actions of the police officers physically intruding on the defendant’s property (and not because they had necessarily used a drug-trained dog). Quite simply, because the officers invaded the defendant’s property to gather evidence, a search requiring probable cause was required.

If the officers didn’t go inside, what are the property boundaries that are protected?

The U.S. Supreme Court regards the area “immediately surround and associated with the home”, or “curtilage”, as part of the home itself when analyzing any searches for constitutional purposes. While there could always be some grey areas in determining the curtilage of a home, in most cases, the curtilage or boundaries of the home are clearly marked.

Most certainly in this particular cases, the officers’ actions in going up to the porch area of the home and just outside the front door was very clearly an intrusion to the home’s property and curtilage, and the officers needed to have obtained a warrant before “searching”, even with a drug-trained canine.

Boston Criminal Defense Lawyer Lefteris K. Travayiakis has experience in representing persons charged with misdemeanor and major felony Massachusetts crimes, including challenges to Unlawful Searches and Seizures, and is available 24/7 for consultation.

To schedule a Free Consultation, Click Here to Contact a Massachusetts Criminal Attorney or call 617-325-9500.

Published on:

The Massachusetts Rules of Criminal Procedure establish time limitations as to when a criminal defendant is charged and to be brought to trial, and these protections are guaranteed in the United States Constitution and the Massachusetts Declaration of Rights.

But in many criminal cases, there are a variety of delays that often occur. Delays can result from simple discovery or evidentiary issues; witness issues; or in some cases, neglect.

By way of background, defendants are protected from potential criminal charges through the Statute of Limitations or where the initiation of criminal charges are delayed. By statute. Massachusetts General Laws Chapter 277, Section 63, many felonies must be charged within 10 or 15 years from the date of the commission of the alleged crime. The exception is murder, however, for which there is no statute of limitation. By contrast, most misdemeanor offenses must be charged within 6 years from the alleged commission of the crime.

Generally (with some exceptions and variations), the statute of limitations begins to toll (starts running) upon the completion of every element of the criminal offense.

Against this backdrop, a defendant’s speedy trial rights, more specifically defined in Rule 36 of the Massachusetts Rules of Criminal Procedure, establish time limits for when a case should proceed to trial. Because criminal cases can vary in complexity, there are different time limits for cases that are non-complex (drug cases); somewhat complex (cases that might involve forensic evidence or unique evidentiary issues; and complex (murder, rape, etc.).

Rule 36 essentially mandates that all criminal defendants are guaranteed a trial within 12 months from arraignment. If the 12 months period expires without a trial, a defendant may petition the court to have the charges dismissed, which would bar prosecution for this offense.

However, simply because a criminal case went beyond the 12 month period without a trial does not guarantee that the case will be dismissed. The government may rebut the motion to dismiss by offering evidence that certain delays in the case were excusable.

Excusable delays or “excluded periods” of time can arise from any circumstances that was not the result of the conduct of the prosecution; or where those delays benefited the defendant or he agreed to such delays. A delay benefitting the defendant and that would thereby be ‘excluded’ from the computation for purposes of speedy trial issues include: unavailability of a witness or even the defendant; competence to stand trial; continuances that were granted by the court that were at the request of the defendant or upon the court’s own motion; and some other extraordinary circumstances.

So when does the clock start ticking for purposes of speedy trial issues?

Under Article 11 of the Massachusetts Declaration of Rights, the clock starts ticking when a criminal complaint issues against the defendant.

Courts scrutinize speedy trial violations very carefully and, more often in not, the calculations do not benefit the defendant, particularly when the “excluded time period” is calculated. Nonetheless, extraordinary circumstances do present themselves in some cases.

Boston Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all Massachusetts Misdemeanor and Felony Charges.

To schedule a Free Consultation, Click Here to Contact a Massachusetts Criminal Defense Attorney or call 617-325-9500.

Published on:

A Northeastern student was recently charged with various Massachusetts Crimes of Violence against two women in Boston in separate incidents.

The student, who is from Medford, was charged in Roxbury District Court last week with Assault with Intent to Rape, Armed Robbery, and Assault & Battery with a Dangerous Weapon. In this incident, the student is alleged to have jumped out of bushes and attacked a woman, threatening to rape her while trying to remove her clothes. The woman reportedly suffered wounds to her hand and her leg and reported that the student used a knife in this attack.

In another incident occurred later that same evening, the student allegedly knocked another woman over and tried to rape her. He was charged in connection with that incident in West Roxbury District Court with Assault with Intent to Rape.

Although these attacks are technically ‘separate’ incidents, the prosecutor may seek to “join” the offenses and try them together as one single scheme.

Generally speaking, evidence of a separate crime cannot be introduced at a defendant’s trial for another crime in order to show a propensity for criminal conduct, but there are some exceptions. Smart prosecutors may seek to join the two incidents by asserting to the court that they are related by way of common scheme or pattern, and it would be in the interests of judicial economy to have the two matters tried at one trial.

Among the factors a judge would consider for joinder of the offenders would be the similarity of the alleged conduct, i.e., common scheme or pattern; and whether the same witnesses would be testifying at both trials.

Although allegations of random sexual attacks often turn on the sufficiency of the identification of the alleged perpetrator, in each of these cases, the police reportedly had video surveillance footage of the student at or near the alleged incidents.

Not having scene the surveillance video or still images, any competent defense attorney would certainly want to thoroughly review the integrity of the images and determine if there are then any challenges to the defendant’s identification.

Assault with Intent to Rape in Massachusetts is punishable by imprisonment to state prison for life or for any term of years. A conviction would further subject the defendant to other collateral consequences, including mandatory Sex Offender Registration.

Boston Criminal Lawyer Lefteris K. Travayiakis is experienced in defending persons charged with various Massachusetts Sex Crimes, and is available 24/7 for consultation.

To schedule a Free Consultation, Click Here to Contact a Massachusetts Sex Crimes Lawyer or call 617-325-9500.

Published on:

A Boston man was charged this past week with various Massachusetts Sex Crimes Charges involving the alleged sexual assault of a woman in Provincetown on Cape Cod.

The defendant was charged in Orleans District Court with Rape, Indecent Assault & Battery and Distribution of Drugs.

Rape in Massachusetts is defined as the natural or unnatural sexual intercourse with another person by force and against that person’s will, and is punishable by up to 20 years in state prison.

A rape conviction carries other several collateral penalties as well, including Sex Offender Registration and the possibility of lifetime community parole and/or commitment as a sexually dangerous person.

The success of a defendant’s defense when charged with any crimes of alleged sexual assault can depend on a number of factors, including whether there were any witnesses; the credibility of the complainant; the results of a SANE exam or an evidence collection kit; and the existence of any forensic evidence, such as DNA.

Not all rape charges result from “forced” sexual conduct. In many cases, there may be a defense of consent or even a defense of mistaken identification.

Unlike other ‘average’ crimes, rape cases often involve intricate legal and scientific issues, including an understanding of forensic evidence and other issues, such as first complaint testimony; prior sexual acts of the complainant; and cases involving late disclosure or child victims.

For those reasons, a person charged with any sex crimes should take great care with choosing the right criminal defense attorney and consider someone who has experience in defending sex crimes.

Boston Criminal Defense Lawyer Lefteris K. Travayiakis has extensive experience in defending persons charged with various Massachusetts Sex Crimes, including Rape, and is available 24/7 for consultation.

To schedule a Free Consultation, Click Here to Contact a Massachusetts Sex Crimes Lawyer or call 617-325-9500.

Published on:

A Lowell father was arraigned in Lowell District Court last week on Massachusetts Violent Crimes Charges for allegedly assaulting his two month old infant.

The defendant, Christopher Berry, was formally arraigned on Aggravated Assault & Battery charges, but that charge could be upgraded if the child succumbs to its injuries. He was held on $500,000 cash bail.

According to the Middlesex County District Attorney’s Office, the defendant was caring for the infant when, over apparent frustration, allegedly violently shook the baby for as many as 30 seconds. Prosecutors believe that the infant suffered grave brain injuries and it is not known at this time if it will survive. Prosecutors do not believe the child’s injuries are consistent with accidental trauma.

The Massachusetts Violent Crime of Aggravated Assault & Battery is defined as an intentional touching, without justification, that results in serious bodily injury. Under the law, ‘serious bodily injury’ is defined as injury that results in permanent disfigurement, loss or impairment of a bodily function or organ, or a substantial risk of death.

A conviction for the crime of aggravated assault & battery is punishable by up to 5 years in state prison.

Massachusetts Criminal Lawyer Lefteris K. Travayiakis has successfully defended persons charged with various Massachusetts Violent Crimes, and is available 24/7 for consultation.

To schedule a Free Consultation, Click Here to Contact a Boston Violent Crimes Lawyer or call 617-325-9500.

Published on:

A Lynn priest was arraigned in Lynn District Court on various Massachusetts Sexual Assault Charges for allegedly sexually molesting over several years.

The defendant, Daniel Lopez, was a priest at the Vida Real Internacional Congregation in Lynn. The Essex County District Attorney’s Office alleges that between 2004 and 2008, he sexually assaulted several children who were younger than 9 years old. During that time, he is also alleged to have raped one of those children.

The defendant was arraigned in Lynn District Court and charged with several counts of Indecent Assault & Battery on a Child Under 14 and Rape of a Child by Force.

The Massachusetts Sex Crime of Rape of a Child is the sexual intercourse with a child under 16 where the child is compelled to engage in such acts by force. A conviction for this sex offense would subject a defendant convicted of this crime to Sex Offender Registration; require that he submit his DNA to the state’s DNA database; possible community parole supervision for life; and could also serve as a predicate offense for civil commitment as a “sexually dangerous person”.

A conviction to Rape of a Child by Force carries a potential prison sentence of any term of years up to life.

Boston Criminal Attorney Lefteris K. Travayiakis has successfully represented persons charged with various Massachusetts Sex Crimes, and is available 24/7 for consultation.

To schedule a Free Consultation, Click Here to Contact a Massachusetts Sex Crimes Lawyer or call 617-325-9500.