George Abi-Esber       Boston, Salem and Lynn Criminal Defense and Immigration Attorney   
Attorney at Law                   One Market Street, Suite 205, Lynn, Massachusetts        978-777-1252                                                           

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Criminal Defense Lawyer in Lynn, Salem, MA and the greater Boston Area: OUI/DUI and Drug Cases.

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"A society that saves first and condemns last has eternity knitted in its very constitution." George Abi-Esber

Frequently Asked Questions: 

 1. How is a criminal case dismissed or dropped? 
In Massachusetts, a criminal case could be dismissed or dropped for various reasons. Here's a general description of some: 

a. Prosecutorial Discretion: The District Attorney Office always has the discretion to request the dismissal of a case or halt the prosecution of certain charges. This action is generally taken when the accused has no prior involvement with the criminal justice system and the charges are minor. 

b. Defective Complaint: A criminal complaint must be signed by the person who applied for that complaint. That person is generally the police prosecutor, or a civilian who applied directly to the court for a criminal complaint. When the complaint is unsigned at the time of arraignment, the defendant may seek for the immediate dismissal of the case. 

c. No Magistrate Clerk Hearing: Certain charges, such as misdemeanors that involved, among others, no arrest or physical harm require clerk hearings before a criminal complaint is issued. When such a hearing is not provided, the defendant can seek an immediate dismissal of the case.

d. No Probable Cause: For a criminal complaint to issue, the applicant for the criminal complaint (generally the police officer) must present in writing at the time of the application sufficient facts that establish a probable cause that the accused committed a crime. If those facts fail to meet the probable cause standard, then the defendant could request an immediate dismissal of the case.

e.The wrong jurisdictional venue: Each Court has a delineated territorial jurisdiction (select towns and cities). Only crimes that are alleged to have been committed inside its geographic district can be brought before that court. Otherwise, the charges may be immediately dismissed.

f. Statute of Limitations: Generally, the prosecution of a crime must be initiated within a period of time set by law. A defendant may seek the dismissal a charge that is being prosecuted outside that timeline (additional requirements may apply).

g. Unconstitutional police action: If the police obtained physical evidence or statements in contravention of applicable constitutional law (for example an illegal stop of a car or an unconstitutional search of a person or house, or obtaining custodial statements through police interrogation without reading the Miranda warnings), then the evidence or statements may be excluded or suppressed. Consequently, the case is dismissed if the exclusion of that evidence eviscerates the prosecution's case. 

2. How long will my criminal case last?

A criminal case maybe dismissed immediately or resolved within weeks or could extend over several months. All depends on the facts of the case, the availability of the evidence to the defense, and whether pre-trail motions are needed. Here is a chart of the common course of a criminal case:

At the arraignment, the court formally initiates the proceedings under which the state moves to prove the guilt of the accused. The arraignment date is significant in many ways to the defendant. On that date, determination of bail or pre-trial restrictions on the liberty of the defendant are decided by the judge upon the request of the prosecution and after counter-argument or agreement by the defense. At the arraignment the formal charges are read in open court (or that reading maybe waived). A high bail on the defendant can result in the defendant's detention pending the resolution or the trial of the case.

The next court date is called a pre-trial conference date by which date the prosecution (otherwise known as the state or the Commonwealth) is obligated to turn over to the defense, or give access to, all the evidence that is in its possession. On this date both the Commonwealth and the criminal defense counsel file motions for discovery of additional evidence. On this date, the criminal defense lawyer may file a motion to dismiss the case or to exclude illegally obtained evidence (if the particular facts allow for that). On this date also, criminal cases may be resolved through a disposition agreement or plea. In the district court an estimate of 80% or more of cases are resolved through a pre-trial disposition or by a tender of a plea (known also as a change of plea). A tender of a plea is made before a judge and generally involves an admission of responsibility or of guilt. This plea can be carried if the defendant after careful and lengthy consultation with his criminal defense attorney finds it to be in his best interest to do so.

A compliance date usually follows if the case has not been dismissed or disposed of yet. On this date the prosecution and defense are given a 'final' opportunity (in some instances 'final' can unfortunately mean one or more additional dates) to comply with their obligations to turn over evidence to each other. The compliance date can be an out-of-court date; that is, no court appearances are a called for.

The following in-court date can be a motion date where motions are argued and heard before a judge. Such motions could be dispositive of the criminal case; that is, if the defendant should prevail at their hearing, the case is dismissed. An example of that is the motion to suppress evidence.

From arraignment and until trial and even at trial, the defendant need not testify or address the judge at anytime. All of his legal arguments are done exclusively through his criminal defense attorney who applies his legal training, experience and instinct, that is developed over years of practice, to navigate through the maze of legal procedures and to marshal all the protections under the law in the defense of the charges.

If the case was not resolved at the pre-trial stage, the case proceeds to trial which is the natural final destination of a criminal case. A trial can be either before a judge as the ultimate finder of fact (called a bench trial) or before a jury as the ultimate finder of fact (called a jury trial). In a bench trial, the judge applies the law in accepting or excluding testimony or evidence and also decides on whether the admitted evidence proves beyond a reasonable doubt that the defendant committed the alleged crime. The judge renders a guilty or not guilty verdict.

On the other hand, in a jury trial, the judge would similarly apply the law in accepting or excluding testimony or evidence but the jury decides whether the defendant is guilty or not guilty. 

If the client is found not guilty after trial, the defendant is discharged and the case is closed. If the defendant is found guilty, the case proceeds to sentencing. A sentence can take various forms.

3. My spouse does not wish to be called as a witness in my criminal case?
Under Massachusetts law, a legally married spouse of a defendant has a right not testify against the defendant. That right belongs to the spouse and not to the defendant. Thus, the defendant cannot invoke or assert that right. Only the spouse can do so and only after the judge finds directly from the spouse that the spouse is doing so voluntarily and willingly and free from any indirect or direct pressure or compulsion from any party. That right is available to spouses but not to other members of the defendant's immediate family.

4. If my case is dismissed, would the charge appear on my criminal record?
If the complaint is dismissed before arraignment, then that charge will not have any entry on the criminal record of the person. That is why it is important for cases to be dismissed or disposed before arraignment or at clerk hearings. After arraignment, an entry of the charge will still appear on the record even if the case is dismissed or the person is found not guilty unless a court seals or otherwise expunge that charge from the criminal record.

5. How do I prepare for court?
The best preparation for court is to be in constant communications with your attorney. Do not miss your appointments with him or her. Constantly keep in touch in writing or by telephone with your criminal defense lawyer. Ask for a copy of the police report and a copy of the complaint. Ask to check the printout of your criminal record. Many times criminal records can carry erroneous information that you are in a better position to detect than your attorney. Give your lawyer advance notice as to dates when you  are not available for court appearances, such dates where you have school or vacation days. Keep your attorney apprised of change in your address or phone numbers. Give your attorney a detailed and honest description of your circumstances and life. It is best if you provide your attorney with a written statement of your relevant personal history and work experience. Confirm your court dates with your attorney and if you can not reach him or her call the clerk of the court and find out when your next court date is.

When you appear in court, dress elegantly and professionally. Your respectful demeanor counts in a big way to judges and even to prosecutors.

Your personal circumstances that have a direct and rational bearing on the case will weigh heavily on the mind of judges and prosecutors if your case proceeds to the sentencing stage or the prosecution contemplates alternative forms of disposition. Judges and prosecutors will look to see if you are making a good faith effort to bring a positive betterment to such circumstances: Are you looking for employment? Are you enrolled in school? If substance abuse is the problem, are you seeking treatment? All of these are important efforts that can lead to meaningful results in your case.

6. The police did not listen to my side of the story; I was charged even though I am the victim. What can I do?
Where the defendant was himself a victim in the same incident that led to his charges, he may apply directly to the clerk of the court to issue a criminal complaint against his victimizer. Generally, a clerk hearing will be held to determine whether probable cause exists to support your claims. Prior consultation with your criminal defense attorney is absolutely essential under these circumstance where you are called upon to give evidence relating to an incident upon which you yourself are facing criminal charges.

On immigration, in this presidential election year between Obama and Romney, even thought not many legislative changes in immigration law and policy were expected, the president has taken a step to remedy the status of undocumented young would-be immigrant. Moreover, Supreme court has decided a landmark case dealing with Arizona's immigration law. 
See our website and blog for news alerts. 

 Boston, Salem and Lynn Immigration Lawyer: Green Card, Adjustment of Status, Visa Extensions, other Immigration Services  Free initial consultations!  Resources courtesy of: Attorney George Abi-Esber One Market Street Suite 205 Lynn, MA 01901 (978) 777-1252 FAX (781) 581-0055