Top ten best excuses in criminal cases

(the blog doesn’t contain any information learned through attorney client conversations)

1. License case: “It wasn’t me, my brother did it, my brother did it” The defendant doesn’t have a brother.
2. Assault and Battery Case: “The guy walked into my fist. I tried to stop him, but he kept running into my fist!”
3. Shoplifting case: “I was going to return it if it didn’t fit, really I was.”
4. Conspiracy case: “it was entirely my wife’s idea, I will testify that way if I need to.”
5. Assault with Dangerous Weapon: “The cops must have planted my fingerprints on the weapon.”
6. Drug case: “I was only given $5,000 to drive this bag from one location to another, how was I supposed to know there was something illegal in the bag?”
7. Minor in possession of alcohol: “Yeah, we had the alcohol, but I wasn’t given my Miranda rights, so that means a dismissal right?” The police saw the person drinking in the car and there were no statements to be suppressed.
8. OUI case: “I drank a lot, but I wasn’t that drunk because I got to the car and I was driving.”
9. Drug case: An overweight person claimed that she didn’t use crack cocaine. While pointing at herself she stated, “look at me, does it look like I use crack!”
10. My favorite: A doctor gets arrested for trying to elicit sex from a prostitute. “I was doing research on STDs.”

You never know what you are going to encounter. The majority of people that I meet are not like this, but there are a few that keep things interesting. Some people I believe have convinced themselves of this other alternate story to the point that they can’t be considered lying anymore. Finally, I do have to say I enjoy this job. With these experiences, how can I feel any differently?

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The Irish of Irish Times: being searched at a club or any establishment

Irish Times is a popular bar/club in downtown Worcester, Massachusetts. To promote security at its bar, Irish Times has a policy to search all of its patrons. There are signs in at the front door that warn people of this policy. Also, on weekends, Irish Times pays off duty police officers to provide further security.

There are a large amount of criminal cases that stem from the Irish Time policy. Many patrons of the Irish Times are arrested guns and drugs. Even though patrons are warned by clearly marked signs at the entrance, they continue coming in with guns and drugs.

For quite some time the Irish Times had off duty police officers perform the searches and had people arrested for contraband. And for that same time, defense attorneys were able file and win motions to suppress based on unreasonable search and seizure law. The litigation of this point raged on until the Irish Times refined its policy.

Every person has a right against unreasonable search and seizure. If the government violates your constitutional rights, then what is found can usually be suppressed. This argument worked in the Irish Times searches when it had the police officer’s perform the searches. Then the Irish Times changed its policy. Instead of having the police perform the searches, Irish Times hired private employees to perform the searches. When the employees would find contraband then they would hand it over to the police, thereby circumventing the constitutional violation.

To find that a search has violated a person’s constitutional rights there usually needs to be some sort of state action. One could argue that it is still state action when an off duty police officer is searching people. However, a private employee searches a person most judges will agree that there is no state action.

The practical effect is that when a private employee of an establishment finds guns or drugs on you, then its trouble. However, it doesn’t mean that if the police officer is the one performing the search you are safe. In the end, before you party at a place that searches, don’t keep “stuff” on you.

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Police Interrogation (reader suggested topic)

Couple weeks back an avid reader suggested that I write about police interrogations. I liked the idea and finally came up with this. If you have any suggestions for topics please feel free to send them along and I will do my best to write about them. First my disclaimer, I am not a police officer, have never been trained in interrogation and I am not an expert in this area. The following about police interrogation is from my experience in viewing these types of interactions.

There are many things that work against you during an interrogation. The more you understand the process the better you can protect yourself. The best advice is to stay silent and get a lawyer as soon as possible. Aside from that, here are a few points to keep in mind.

The speed of the process. I hear the words, “well it all just happened so quickly” way too often. That is one of the largest problems working against you. Something happens, you get arrested, driven back to the police station, and then they start asking questions. The pace really bothers a lot of people, and it hurts their concentration. A lot of people are still trying to figure out what just happened at the scene, or are stunned about being arrested and as a result don’t pay attention at the police station. It is important that you stay focused, and in the moment.

The atmosphere. The area that you are usually brought into is a small bare room. The room is uncomfortable and it makes a lot of people uneasy and gives them a feeling of not being in control. There is usually a double sided mirror, video recording, some old chairs, uncomfortable lighting, and a sorry looking table. All this can make people feel uneasy. When you feel uneasy, it gives the other side the advantage.

The numbers. There are usually at least two officers there when the questioning happens. This uneven number can make people feel helpless, especially in a small room. The police do have to give you your Miranda rights. Those are usually given at the beginning when the conversation is still pretty easygoing. Because of the light atmosphere at the beginning, a lot of people sign away their rights. However, once the questioning gets going most regret waiving their rights. The police don’t have to let you know that you can still assert your right to an attorney even after you waive your rights. Remember to ask for an attorney before you speak with them, but even if you sign a waiver, you can still ask for an attorney later on.

The questioning. The police are very good at getting people talking. At the beginning of the questioning, they tend to ask easy questions. This usually gets people use to talking to them. We as a society have a tendency to keep talking once we start talking. The police may also use small amounts of outside information, like we talked to this person or we found this evidence, to encourage you further.

Video tapes and signed confessions. Usually every interviewed is video taped and the police will ask you to sign a written confession. A video taped signed confession can be devastating, and they usually are. Most of the time they are a key piece of the prosecution puzzle. Even if the police have a lot of physical or derivative evidence, they must link the evidence together to point at you. When you have a signed written confession you are helping the police tie the evidence together. You can be even filling in gaps that the police could not solve without more information.

The majority of police officers are nice to talk to and pretty helpful. However, they have a job to do and cases to investigate. A large part of their investigation requires them to question people. Knowing that, it is very important that you stay vigilant and protect yourself at all times. After all, you wouldn’t tell your spouse about the details of the bachelor or bachelorette party, would you? Then again I wouldn’t want to see the thing your spouse may do in response to you invoking your right to remain silent, or to an attorney.

Arrests and Interrogations FAQ

Mark A. Godsey: Shining the Bright Light on Police Interrogation in America

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At a party, you hear police coming, there are drugs at that place, what do you do?

Throughout your life you probably went to your fair share of parties and you are likely to go to a few more before you hang it up. What if you are at a party, and you know someone is doing drugs or there are drugs in the apartment, and the police show up? There are a lot of police officers everywhere, people screaming, what do you do? Well here are a few things to keep in mind.

Don’t run. This is not an easy thing to do, but think rationally about this for a moment. Most of the time when police do a raid on a house they cover all access points. Therefore, by running away from one police officer, you will inevitably find your self running straight into the arms of another. Besides running doesn’t make you look good. Also let’s face it, if you have been partying and drinking, what are your chances of outrunning the police at this point?

Don’t say much if anything at all. If this is just the police coming into the apartment to break up the party that is one thing, but it could also be a raid. During a raid the police will usually have a search warrant. If the police have a search warrant for that location, they will usually arrest everyone there. You don’t want to say anything that might link you to the place, the targets on the warrant, and obviously the drugs. So don’t say anything, instead tell the officers you don’t want to say anything until you talk to an attorney. Sometimes the strongest piece of evidence the police have is the statements that you give. If you tell the police officers that the drugs in the bedroom aren’t yours it won’t help. You might be thinking you are giving solid defense to the drugs, the police will think that you knew about the drugs in the bedroom. So be quiet.

Call an attorney. If you get arrested and the police want to ask you questions, don’t waive your rights. Tell the police in a nice way that you would like to first talk to an attorney. You never know what the police are thinking. Don’t put yourself in a bad situation because you thought the police were going to let you off easy if you talked.
To recap, don’t run from the scene, don’t say anything at the scene, and don’t answer questions until you talk to an attorney.

Massachusetts Bar Associations talks about search warrants’-handbook/20-search-warrants-and-subpoenas

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New marijuana law leads to administrative nightmares

The people of Massachusetts voted to decriminalize the possession of an ounce or less of marijuana. Now the greater issue is the enforcement of the new policy. The new law essentially converts a criminal offense of possession of marijuana into a civil violation.

To qualify a person must not have pled to possession of marijuana in the past. If a person does qualify, the law requires the state to convert the criminal offense into a civil violation. A person then would be required to pay $100 fine, and attend a drug treatment class. The parameters of the new law seem simple enough, but the law is silent to its administration. As a result, the new law has lead to serious problems for the court system.

The law does not state who should be issuing the fines. When a police officer finds marijuana on a person, should he or she be issuing a citation similar to a trafficking ticket? Or should the police officer still file for a criminal complaint, and allow the judge to convert it later on?

There is no way of keeping track of people that are being fined. The purpose of the law is to give a break to a first time offender. The law does not state what entity should be keeping count on how many times a person has been caught. Essentially when a police officer has caught someone with an ounce of marijuana, he has no idea if the person is a first time offender, or has been caught with marijuana many times before.

The law does not state who should be collecting the fines, or what the penalties for non-payment are. Should a police officer collect the fine on the spot, or should he tell an offender to send the money somewhere?

Finally, this drug treatment class that people are required to take also poses a serious administrative problem. Unlike AA for alcohol treatment, drug treatment programs are not as readily available around the state. Once again the law is unclear on who should be signing up offenders, keeping track of the people who go and enforcing the penalties for non-compliance. Whether you agree with the policy or not the law leads to serious administrative issues.

Telegram reports on the new law

Boston Globe reporting on recommendations to clear up the confusion

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DUI-What to do when you been drinking and then get pulled over

When most people get pulled over for the first time on suspicion of operating while under the influence of alcohol, or DUI they have no idea what to do. As a result, their actions can really put them in a bad situation when they go to court. Law enforcement is now more aggressive than ever patrolling the streets, and looking for drivers suspicious of DUI. Obviously the best thing to be pulled over for a DUI or to have a designated driver. However, if you do find yourself in a vulnerable position, here are a few suggestions to best protect yourself in a DUI situation.

When you get pulled over for a DUI be kind, courteous and don’t say stupid things. It seems obvious, but I have seen so many people in DUI cases are rude or say stupid things. The officer will put all of your statements in his or her DUI report, so be careful. During a DUI investigation, follow the officer’s instructions, and hand over your license and registration upon request. This isn’t a time to start telling the officer about the people you know, or to yell at the officer. DUI laws are much tougher now. Telling the police officer that you know someone that is a policeman, elected official, or any other person you may think is influential or famous will do you no good for DUI cases. If you start yelling at the police officer, it will just lead to you being arrested quicker for DUI.

In DUI cases, refuse to take the field sobriety tests. I get the question of should I take the field sobriety tests quite often. Unless you absolutely sure that you can pass all the field sobriety tests, don’t take any field sobriety tests. It is your right not to take field sobriety tests, even though police officers don’t have to tell you that. Once again be courteous and tell the police officer “no thank you, I am all set, I don’t want to take any field sobriety tests”. If you refuse the field sobriety tests, there is a good chance that you will be arrested. However, if you don’t meet the officer’s expectations in the test you will be arrested  for DUI anyway. The prosecutor cannot mention that you refused to take the field sobriety tests at the DUI trial.

In a DUI case, don’t take a breathalyzer. It is becoming increasingly difficult to suppress the breathalyzer at a DUI trial. The breathalyzer is a strong piece of evidence at the DUI trial, and it is important that you don’t take the breathzlyer. If you refuse the breathalyzer your license will be suspended. The length of the suspension depends on your record for DUIs. If it is your first DUI, then your license will be suspended for 180 days. It is a long time to have your license suspended, but it is worth keeping out the breathalzyer. The prosecutor cannot mention that you refused to take a breathalyzer at a DUI trial.

Call a lawyer. Make sure the lawyer that you hire is a good DUI trial attorney. You want a DUI attorney who knows how to try cases, and is willing to try them. You don’t want an attorney to push you into pleading guilty to the charges just because the attorney is afraid of a DUI trial.

The law on OUI-

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End to sex talk?

Craigslist a very popular internet website has decided to end its “erotic service” section. This is in response to intense pressure from the media and the government, after the Phillip Markoff incidents. While most people are following the Markoff story, a more subtle change in internet sex talk has been rightly overshadowed.

When a person is charged with prostitution they are charged with sexual conduct for a fee. In order for the government to prove that a person is guilty of sexual conduct for a fee it must prove two elements. First, that the defendant either engaged, or agreed to engaged, or offered to engage, in sexual conduct with another person. And second, that the sexual conduct was or was to be done in return for a fee. Both a customer and the prostitute can be charged.

Police has tried to find ways to monitor internet postings offering sexual services for a while now. The difficulty for police came up when people got creative with their wording making it hard to arrest and prosecute people based on their postings. People would use words such as massage services to slip by the law. Some of these postings would go even further and say “topless”, “naked” or even “special” massages. Law enforcement knew exactly what most of these posts were trying to sell and when police set up stings their theories were confirmed.

Craigslist taking down its “erotic services” section marks a significant change to the way that sex is marketed online. Police has been trying hard to shut down these types of interactions and now because of the serious allegations Markoff is accused of it has happened. There are still a lot of other internet sites that people use to market and find sexual services, so it is not the end. However, Craigslist was one of the most popular websites, and for now the sex talk has gone silent.

Read more about the story from the New York Post

Report by ABC news

Report by the Worcester Telegram

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