Note: Before reading these FAQ's below, you should be aware that we have prepared detailed information on several specific areas of criminal law, by subject matter, on this website. Those individual topics can be found under the "Practice Areas" Tab on the Navigation Bar on the Home Page, or by clicking on "Practice Areas" on any other page of this website. Clicking on any specific practice area will take you to a detailed explanation of the law in Massachusetts on that topic, and give you valuable information about that type of legal problem.
The FAQ's that appear immediately below are more general in nature, and are designed to answer very preliminary questions many people have about criminal law and criminal judicial proceedings in general. We hope they are helpful!
Q: My son has been arrested and charged with a drug offense. As drug offenses go, we're told it's relatively minor, but we've never faced the criminal justice system before, we're very worried, and we don't know what to expect. Can you help us?
A: Yes, I can - and actually, my answer to your question will serve as an ideal backgrounder for most everyone visiting this page, who may be facing criminal charges in Massachusetts, and wants to learn about the legal process involved. I will outline the process from arrest, forward. Be advised that the following summary is intended as a general overview only. While individual case scenarios can and do vary, this overview outlines in sequential order the proceedings that typically occur in the process of being arrested, charged, and tried on criminal charges. If you or a loved one is faced with criminal charges, you should speak with a criminal defense attorney immediately. Our office can offer you a free initial consultation about your specific situation.
Before beginning, it is important to first understand that there are two chief levels of courts in Massachusetts that hear criminal cases: The District Courts and the Superior Courts. Most criminal cases prosecuted in this state are brought in the District Court system. The District Courts in Massachusetts have jurisdiction over most (but not all) crimes. Generally speaking, District Court judges can sentence defendants up to a maximum of two and one-half (2 ½) years in jail (generally, a county House of Correction) on each specific charge. The more serious crimes (those providing for sentences longer than 2 ½ years for each charge) are tried in the Superior Court system. My discussion here will apply chiefly to the District Courts system, so be advised that if you are charged with a more serious type of crime (rape, robbery, attempted murder, etc.) the following information may not be applicable.
Regardless, in all instances where you or a loved one is charged with a crime, you should speak with an attorney immediately before saying anything to the police.
1) Beginning, criminal cases are commenced through either an arrest, or a summons. In most (but not all) cases, the process begins with an arrest. What an individual says or does not say to the police at this stage, is critical. No matter how nice the officer or officers may be when arresting you, it is universally recommended that you not make any voluntary statements to the police. Do not be combative or adversarial, but do not volunteer any statements, either. Many a defendant has made the mistake of making statements that seriously hurt their legal case at trial. Any person arrested must by law be read their Miranda Rights (these are the rights to remain silent; the right to an attorney; the right to be appointed an attorney free of charge if you cannot afford one, etc.) At the scene of any arrest, statements will be taken from anyone who may have accused you of the crime for which you were arrested, and any witnesses, etc.
2) The accused will then be taken to the police station, for booking. Photos and fingerprints will be taken, as well as basic background information about the accused (name, address, etc). After this and prior to any questioning, if the accused has not already been read his/her Miranda Rights, then they must be read to the accused again. Anyone in this position should refuse to answer any questions from the police until having spoken to an attorney. Once this right is asserted, questioning will almost always stop.
3) The accused is then entitled to a prompt determination of bail. Many arrests occur in the evening, and in these circumstances, a "bail commissioner" is called. This is a person who is authorized to set bail prior to the accused being arraigned before a judge. Once bail is set, the accused is allowed an opportunity to make phone calls to try and post the required bail. If he or she can meet the bail amount, he is released and advised where and when to appear in court to be arraigned on the charge they have been arrested for. The date is usually the next business day at 8:30 AM, and the court is usually the District Court having jurisdiction over the location where the arrest occurred. Note: Some persons are accused of a crime via summons. A summons is a document that is issued after someone has gone to either a police department or a District Court criminal clerk's office, and filled out a "criminal complaint" against a person, alleging that the accused has committed some type of crime. The summons is mailed to the accused, informing him of what crime has been alleged against him, and advising him that he must appear in court on a certain date and time, or if not, an arrest warrant will be issued against him.
4) Next, the accused reports to his arraignment in court (as stated, at the District Court having jurisdiction where the arrest occurred, usually the next business day the court is in session, at 8:30 AM.). Here, the accused is read the charges against him, and a plea entered on his behalf. In almost all cases, a plea of "not guilty" is entered. After this point in the process, the accused is generally referred to as the 'defendant.' In most minor cases, it is usually not "critical" that a defendant have an attorney at the arraignment stage, but in general I recommend it, as the process is extremely upsetting to most people, and having an attorney by your side will assure that no mistakes are made, however technical they might seem. (Also at the arraignment, the District Attorney's office will have the opportunity to request bail, even if bail had already been set previously by a bail commissioner.) After entering a plea, the defendant will be provided a copy of the Complaint. This is the document setting out the formal criminal charges against the defendant, and citing the specific statutory laws alleged to have been violated. Lastly at the arraignment, a date will be set for a Pre-Trial Conference, which is the next date the defendant is due in court. Typically, this is about one month from the date of arraignment, allowing the defendant time to hire an attorney, if he or she does not already have one selected at arraignment.
5) At the Pre-Trial Conference (or before), the defendant's attorney will discuss the case with the Assistant District Attorney who is prosecuting the case. Often, plea options are discussed, which are legal options to "plea out" the case, if the charges are relatively minor, and avoid the need for a trial. Plea options typically contain some admission of wrongdoing on the part of the defendant, but stop short of a "guilty" finding by the court. Any plea options must be entered into with the full consent of the defendant. If this outcome appears favorable to both parties, then the case can usually be "plead out" that day. However, if not, then both the defendant's attorney and the Assistant District Attorney prosecuting the case, will execute and file with the court a "Pre-Trial Conference Report." This is an agreement that the District Attorney's office will produce and deliver all the information it has to the defendant's attorney (including evidence that may exonerate the defendant, called "exculpatory evidence") and reciprocally the defendant's attorney agrees to provide certain information to the District Attorney's office.
6) Once this report is filed, the case is scheduled for a Compliance and Election Date. This is a date when all evidence must be produced from the District Attorney's office to the defendant's attorney (the "Compliance" component) and the date when the defendant must decide whether he wants to be tried before a jury or a judge (the "Election" component). It is at this time that a date is scheduled for trial.
7) Trial: In all criminal cases in Massachusetts, a defendant is constitutionally entitled to a trial by jury. (However, if a defendant does want not to be tried by a jury, he or she may elect to be tried by a judge - more on this follows, below.) In the District Courts, a jury consists of six (6) people, randomly chosen from the jury pool lists. The prosecutor is required to prove guilt beyond a reasonable doubt, and in criminal cases a jury's verdict must be unanimous. When a jury trial is elected, the jury makes all determinations of fact (what happened, what didn't happen) including the credibility of witnesses taking the stand. The judge makes rulings on the law that applies to the case, and instructs the jury on that law (or laws). When a defendant chooses to be tried by a judge, that is called a "bench trial," and in such instances, the judge acts as both the trier of fact and law. The Commonwealth's burden of proof does not change: It must still prove guilt beyond a reasonable doubt.
At trial, the Commonwealth makes its Opening Statement first, explaining what it expects the evidence will show. The defense attorney is then given the opportunity, if it wishes, to make an Opening Statement. However, the defense is not required to do so at this time, and can elect to hold its Opening Statement until after the Commonwealth closes its case. As the Commonwealth has the burden of proof, the prosecutor proceeds first, and calls its witnesses, one by one. After direct examination by the prosecution, the defense is allowed to cross-examine the prosecution's witnesses. When the prosecutor has finished calling its witnesses, it rests its case. At this point the defense can present its case - (but is not required to do so. It could do nothing, if it wished.) After both sides have had the opportunity to call all of their witnesses, the trial proceeds to Closing Arguments, and the defense goes first in presenting their Closing Arguments. Since the Commonwealth bears the burden of proof, it presents its Closing arguments last. Assuming the case is tried before a jury, the judge then instructs the jury as to the applicable law, and the jury deliberates.
The above (very general) outline is the procedure that occurs when no plea bargain is entered into (typically at the Pre-Trial Conference) to avoid a trial. However, it should be noted that often, there are very compelling reasons, legally speaking (including possibly avoidance of a criminal record) to enter into such plea agreements. Many times, it is to a defendant's distinct legal advantage to plea a case out. Some of the more common plea options are as follows. While explanations of these options on this "FAQ's" page of our website are intentionally brief, more detailed discussions of these appear on the Criminal Law Section of our Practice Areas Tab. These possible plea options appear in escalating format, from most desirable to least desirable:
- Dismissal of Charges Upon Payment of Court Costs. This agreement is more likely in cases involving relatively minor charges, such as driving with a suspended license. If the defendant pays all court costs assessed, the case is dismissed by the court. In agreeing to this disposition, the defendant is not required to formally admit any guilt for the crime(s) charged. The prosecution must almost always agree to this plea.
- Pre-Trial Probation. Essentially, this plea allows the defendant to offer an admission without formally pleading guilt. As a precaution and disincentive against the defendant engaging in similar or other unlawful behavior in the future, the case is held open for a period of time (typically six months) during which the defendant promises the court that he/she will abide by the law and not engage in unlawful behavior. In addition to the case remaining open for a set period of time, there may also be a requirement that the defendant perform community service or similar. This disposition is typically available only for very minor crimes, and as with similar pleas, the prosecution must almost always be in agreement.
- Continuance Without A Finding. This is otherwise referred to as a "CWOF." Unlike the two pleas above that are generally reserved for less serious crimes, this plea is often available in more serious cases. Through this plea, the defendant admits guilt, essentially pleading "no contest," and in return, the court makes a determination that there exists sufficient evidence to support a guilty finding, but it does not officially enter a finding of guilty. Instead, the court "continues the case without a (formal) finding" for a set period of time (typically six to 12 months), during which time the defendant is formally placed on probation. The court, in addition, may also order other conditions such as anger management classes, alcohol or substance abuse education classes, community service or other requirements as conditions of probation. If the defendant satisfies the conditions of probation, at the completion of the probationary period, the case is dismissed by the court without a conviction. Obviously, the ability of the defendant to avoid a criminal conviction is the major advantage of this plea. Also, a good defense attorney can sometimes secure such a disposition even over the objections of the prosecutor. A "CWOF" is often pursued for defendants with no prior criminal record.
- Guilty Finding. This plea obviously produces a conviction, and a criminal record. This disposition is resorted to in more serious cases, when the evidence against the defendant is compelling. In entering into such a plea, the goal is usually to avoid a jail sentence and secure probation instead.
Again, the above is a broad outline of criminal procedure in general in the District Courts in Massachusetts. For more detailed information, visit the Criminal Law Section under Practice Areas on this website, or contact us for a free case evaluation.
Q: Can you guarantee me that you will get my charges dismissed or that I will be acquitted (found Not Guilty).
A: No. And you are strongly advised to avoid any attorney who makes such promises to you. No responsible, ethical attorney can make such a "guarantee." The most any attorney can do, is offer his or her track record with similar cases, and promise to represent you zealously to the best of his or her professional ability.
Q: How much do you charge?
A: My fees are either billed by the hour, or on a flat-fee basis. The fee will depend on the type of case that is presented, the charges, the potential criminal penalties, and the evidence. Some clients prefer a flat-fee, and some prefer hourly charges. Contact us and I can assess your case and the fees I would charge.
Q: I hear that if I want to get really good results on my criminal case, I should hire a well-connected lawyer from a large firm in Boston, who is "connected to" and knows a lot of judges. Is that true?
A: Some urban legends never die. If I had a dollar for every time I heard that myth, I would be retired by now. No, that isn't true. In fact, the only thing you're likely to produce by making such a choice, is draining your bank account - a lot. Worse, if the judge hearing your case did know such a lawyer appearing before him or her, do you really think that such a judge would be more inclined to "give" that lawyer what he wants, or less inclined to? If you answered "more inclined," you'd be wrong: That would be one of the fastest ways possible for that judge to get him or herself in trouble, and the judge would know that. The last thing a judge wants is to find him or herself in the media, or before the state Commission on Judicial Conduct (the state agency which oversees the conduct of judges,) accused of favoring certain lawyers that are "friends." If paying for expensive Boston real estate leases, the oak-paneled walls and oriental rugs that often adorn these higher-priced attorneys' offices doesn't bother you, then you are certainly free to do so. But be advised: Doing so may give you a better "feeling," but it won't necessarily buy you a more talented lawyer, and it won't necessarily "buy" you a better outcome. Some of the best, most talented criminal defense attorneys I know are low-paid public defenders, appointed to represent indigent defendants. I've seen these attorneys soundly defeat far better-known, $500-per-hour "celebrity attorneys" in Boston.
Years, ago, on my first criminal case, I soundly won a trial against a Harvard Law School-educated opponent, whom other attorneys had advised me to negotiate a plea bargain with. Be smart with your money. If you're charged with a crime, you're already in enough trouble. Don't compound it by spending thousands (or tens of thousands) more than you need to secure talented, experienced criminal defense counsel.
Contact us for a free case evaluation. We can assess your case and provide you the top-flight legal representation you or your loved one needs at this stressful time.
Q: If the District Courts handle only criminal cases that carry a maximum sentence of 2 ½ years for each crime, then what kinds of crimes do the Superior Courts handle, and what types of sentences could a person receive there?
A: The Superior Courts hear more serious criminal cases, which by definition are offenses that carry a potential state prison sentence anywhere from 2 ½ years to life in state prison. (as opposed to a county House of Correction.) There are several such crimes, and some examples include rape, certain drug offenses, robbery, assault with intent to murder, murder, etc.
Q: Are restraining orders a criminal matter, and are they heard in District Court or Superior Court?
A: Obtaining a restraining order is a civil matter, and these petitions are heard in District Court. Generally speaking, violations of restraining orders may be a criminal matter, and are also heard in District Court.
Q: Are speeding tickets and traffic violations criminal matters?
A: Generally, no. Most simple speeding tickets and traffic violations are known as Civil Motor Vehicle Infractions ("CMVI's"). However, other violations, such as driving with a suspended license, can be criminal matters. Contact us and once we know the details of your situation, we can advise you accordingly.