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Articles Posted in Criminal Defense

There’s an expression to the effect that “you can’t fight city hall.” While this statement is not always true (after all, an assertive Cape Cod criminal defense attorney may be of great assistance in defeating a particular accusation of wrongdoing), there is some truth to the sentiment that it can sometimes be a complicated endeavor to challenge the ruling of a municipal official on a relatively minor point. Those who aspire to fight the ruling of a government official, such as a clerk or magistrate who finds that one has violated the speed limit, should be mindful that, unless proper procedures are followed, the effort is likely to be in vain.

Facts of the Case

The plaintiff in a recent case was given a speeding ticket for driving in excess of the posted speed limit of 30 miles per hour in a certain town in 2011. The plaintiff contested his responsibility for the infraction (which was defined as a “civil motor vehicle infraction”) by requesting a hearing. The clerk-magistrate found the plaintiff responsible for the infraction. Although the plaintiff could have requested a de novo hearing in district court, he apparently paid the ticket and filed a separate lawsuit against the defendant board of selectmen instead, alleging that he was unlawfully cited and fined. The superior court dismissed the plaintiff’s case in its entirety.

Under the Sixth Amendment to the United States Constitution, a person who has been accused of a crime has certain rights, including the right to a speedy and public trial. Depending upon the circumstances, the defendant may have the right to have his or her guilt or innocence determined by a jury at trial.

There are many procedures that must be followed during a jury trial, and any irregularity has the potential to trigger a new trial on the order of an appellate court. Of course, each case must be decided on its particular facts.

Facts of the Case

A person who is suspected of operating under the influence (OUI) of drugs or alcohol on Cape Cod will probably be given a breathalyzer test at some point following his or her detention by police. Under Massachusetts law, there is a 15-minute waiting period prior to the administration of the test.

The purpose of the waiting period is to ensure that the defendant has not brought something into his or her mouth (such as food, drink, or a regurgitated substance resulting from a burp or hiccough) that would contaminate the breath sample or compromise the accuracy of the test. When this waiting period is not strictly respected, the defendant may have an argument that the test results should be suppressed and not used as evidence against him or her at trial. However, this argument will not prevail in every Massachusetts OUI case, since the resolution of such matters is very fact-specific.

Facts of the Case

Under the United States Constitution, the defendant in a criminal case has certain rights that, if violated, can potentially result in the reversal of a conviction. Among these rights are the Sixth Amendment rights to “a speedy and public trial” and “the assistance of counsel.”

A recent decision by the nation’s highest court explored whether the alleged violation of those rights in a particular Massachusetts criminal case was a basis to order a new trial.

Facts of the Case

For most people, the most notable component of the Fifth Amendment to the United States Constitution is the right to remain silent (“[not] compelled in any criminal case to be a witness against himself”). However, another important part of the Fifth Amendment is the so-called Double Jeopardy Clause.

Under the double jeopardy provisions of the amendment, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” While this seems like a straightforward rule, many issues have arisen over the years as to exactly how this part of the amendment is to be enforced in certain situations.

Recently, the nation’s high court revisited the provision in light of a jury’s conviction as to one offense but acquittal as to related offenses in a case involving bribery of a public official.

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Clearly, the United States Constitution guarantees the criminally accused the right to counsel. However, exactly when, and under which circumstances, that right first attaches is sometimes a point of contention.

Recently, Massachusetts’ highest court was called upon to revisit this issue as it concerned a defendant’s right to counsel regarding whether or not to submit to a breathalyzer test after being arrested for drunk driving.

In a previous case, the court had held that no such right exists, but the defendant pointed to a change in Massachusetts statutory law as a reason to change the common law as to this issue.

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People accused of crimes in the United States are afforded certain rights under the U.S. Constitution. Included within these rights are the Fourth Amendment right to be free from unreasonable searches and seizures, the Fifth Amendment right to remain silent to avoid self-incrimination, and the Sixth Amendment right to a speedy and public trial by an impartial jury.

Recently, the nation’s highest court was asked to consider whether the rights guaranteed under the Sixth Amendment also apply to the post-conviction or sentencing phase of a criminal prosecution.

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Many discussions between a person who has been criminally accused and his or her defense attorney begin with the assertion, “I was in the wrong place at the wrong time.” Perhaps never was this statement more true than in a recent case handed down by the United States Supreme Court.

In the case of Caetano v. Massachusetts, the defendant was identified by a store manager as a potential accomplice when police officers responded to an alleged shoplifting at a supermarket in Ashland, Massachusetts in 2011. The officers obtained consent to search the defendant’s purse, but they found no evidence of shoplifting. They did, however, find a stun gun and proceeded to arrest the defendant for violation of Mass. Gen. Laws, ch. 140, §131J, which prohibits possession of an electrical weapon.

According to the defendant, she kept the “stun gun” as a means of self-defense against an abusive ex-boyfriend, against whom she had obtained multiple restraining orders after he had beaten her so severely that she required hospitalization.

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In a case that is attracting nationwide media attention, the Federal Bureau of Investigation has demanded that Apple, Inc., provide technical assistance in the form of “unlocking” a cellular telephone (an iPhone, to be exact) in order to assist the FBI’s investigation into an alleged terrorist attack in San Bernardino, California, on December 2, 2015. Fourteen people died in the attack, which is believed to have been carried out by a married couple who may have been radicalized or have had ties to an international terrorist organization.

Although the couple was killed, federal officials were able to seize a phone that is believed to have belonged to them. Unfortunately, the FBI’s attempts to access the phone caused the phone to become “locked” instead. The federal agency then sought assistance from Apple, whom officials believed could help them hack into the phone and possibly retrieve information that would be useful in the ongoing investigation into the attack, including information about possible accomplices.

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In the civil court system, a case begins with the plaintiff filing a lawsuit against the defendant(s), setting forth the various claims under which the plaintiff seeks relief. As the case progresses, each side is afforded an opportunity to discover information about the strengths and weaknesses of the other’s case and, if desired, take depositions of the parties and the witnesses. It is usually a fairly straightforward process designed to encourage settlement whenever possible, although issues do occasionally arise.

In criminal court, however, the process of discovering the case of one’s opponent is considerably more difficult. To begin with, the Fifth Amendment protects the defendant from self-incrimination, so the Commonwealth’s discovery of the defendant’s case is very limited. Generally speaking, the defendant’s ability to discover the evidence, eyewitness statements, and other aspects of the Commonwealth’s case is much greater, but there can still be limitations.

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