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Your Right To Remain Silent

We have all heard the warnings the police give to suspects when they arrest them on television: "You have the right to remain silent.  Anything you say may be used against you in a court of law.  You have the right to an attorney.  If you cannot afford an attorney, on will be provided to you."  This familiar recitation of right is commonly referred to as the Miranda warnings and they are often  as misunderstood as they are well-known. 

Many defendants in a criminal case have made admissions to the police that ultimately hurt the defendant's case.  When asked why he or she made the admission to the police, the common answer is that the person did not know that they could refuse to speak to the police about the crime in question, or that they did not want the police to think poorly of them,  or that they will appear guilty if they invoke their right to silence and a lawyer, or that they think that the police will help them out if they are cooperative. 

NEWS FLASH #1:  If the police are questioning you about a crime, they already think you did it and nothing you say to them is going to convince them otherwise. 

NEWS FLASH #2: If you make an incriminating admission to the police, they have leverage over you and you are now wholly dependent on the police to cut you a break. 

NEWS FLASH #3:  No matter how friendly the police officer appears to be, it is his job to collect evidence of crimes and his friendly questioning is one method used to collect such evidence. 

NEWS FLASH #4: If the police are asking you to admit you committed a crime, they probably do not have much evidence against you they need your incriminating statement to shore up a weak case. 

The only thing making a statement to the police is going to do is possibly give them more information to use against you later.  You will find that in most cases, a defendant speaking to the police has at best done nothing to help the defendant's case and at worst, has made the case against the defendant much stronger. 

On the other hand, invoking your right to silence precludes the police from getting any incriminating statements from you AND your invocation of your right to silence cannot be used against you at trial.  This means that the prosecution will NOT be able to introduce evidence of your silence, for example: "Officer, when you asked the defendant if he committed the crime, what was his response?"  Officer:  "He did not deny the accusation.". 

If you are the target of an investigation, consult an experienced criminal defense attorney immediately and do not try to talk yourself out of it on your own.  You have rights to silence and counsel for a reason.  Protect yourself by invoking those rights. 

My Case Was Dismissed, So The Charge Will Not Be On My CORI, Right? (WRONG!)

This blog entry explains how one can have a "criminal record" even when the criminal charges have been dismissed, what can be done to prevent the creation of a criminal record, and what to do about a criminal record caused by a later-dismissed charge.

Difference between a conviction and a criminal record

Many people think that if the criminal charge is dismissed, they have no "criminal record". This is only partially true. While a dismissal means that a conviction has not occurred, the charge that was dismissed still appears on the person's Board of Probation record, also known as a BOP of CORI. To be sure, the CORI will reflect that the charge was dismissed, but often the damage will have been done merely the creation of a criminal record as potential employers or schools will not bother to inquire further into the charge and give the person a chance to explain. You do not need to be convicted to have a record of entries on your CORI.

Arraignment = Creation of Criminal Record

Anytime you are arraigned on a criminal charge, the charge will appear on your CORI. If you have been arrested, you will be arraigned the next time you appear in court, usually later that same day, the very next day or the first weekday the court is open if you were arrested over the weekend. If you were not arrested, you will receive a summons in the mail to appear at a clerk-magistrate's hearing. A clerk's hearing is not an arraignment. The purpose of a clerk's hearing is to determine if there is probable cause to issue a criminal complaint and to schedule an arraignment. A clerk's hearing is an excellent opportunity to resolve a criminal case and avoid ever being arraigned.

What to do if you have a clerk's hearing scheduled

Do not fail to appear at the clerk's hearing. When the defendant fails to appear at a clerk's hearing, the criminal complaint will issue and the defendant will receive a summons to appear at an arraignment. If you have a clerk's hearing scheduled, hire an attorney to go to the clerk's hearing with you to prevent the complaint from issuing, either by negotiating an amicable resolution or by convincing the clerk that probable cause does not exist to issue the complaint.

I was arraigned, and the charges were dismissed.

Sometimes a person will show up at arraignment, be arraigned, and work out a dismissal with the prosecutor in exchange for payment of court costs or restitution or the performance of community service. In this situation, it would have been optimal to have worked out the deal before arraignment, although this is not always possible if the prosecutor does not agree to dismiss prior to arraignment. The chances of obtaining this result usually increases when you have an attorney representing you. If you were arraigned, the charge will appear on your record, but you may petition the court to seal your record. Note, however, that a a judge has discretion to deny a petition to seal a dismissed case and the defendant has a greater burden to carry to convince a judge to seal his record than to convince a prosecutor to dismiss before arraignment. Petitioning to seal usually done as a last resort, and the better course of action is to prevent the charge from appearing in the first place.

Conclusion

Just because a criminal charge was dismissed does not mean that it will not come back to haunt you. That dismissed shoplifting charge from your early 20's may prevent you from coaching your child's sport's team many years later, or cause you to be passed over by a potential employer is favor of someone with a spotless record. Every arraignment creates an entry on the criminal record, but there are opportunities to avoid arraignment. If you have a clerk's hearing or an arraignment scheduled in the future, consult with an experienced criminal defense attorney immediately to determine your best course of action and your option to minimize the impact of the criminal charges.

CORI Reform Bill Passed In Massachusetts

The Criminal Offender Records Information ((CORI) reform bill (House Bill No. 4703) passed in the state house in June by a vote of 138-17. It received final approval as the session of the legislature came to a close. Governor Deval Patrick is supposed to sign the bill on August 6, 2010 and new law will take effect 18 months after it is signed. 

The CORI Reform Bill makes several significant changes to the existing CORI laws.  One of the most significant changes is a reduction in the amount of time one has to wait to seal a criminal conviction.  Under the new law, a misdemeanor conviction can be sealed after 5 years (formerly 10 years) and a felony conviction can be sealed after 10 years (formerly 15 years).  In addition, the requisite waiting period will be computed from the beginning of the disposition rather than upon completion of the disposition. 

For example, under the old law, a person convicted of a crime and given an prison sentence could only petition for sealing after 10 or 15 years had passed following completion of the prison sentence.   Under the new law, the 5 or 10 year waiting period would start at the beginning of the prison sentence. 

Another significant change under the new law is the way violations of 209A restraining orders and 258E harassment orders are treated for sealing purposes.  Both crimes are misdemeanors with regards to the maximum incarcerated sentence that could be imposed.  For sealing purposes, however, both types of violations will be considered felonies.  This means that a conviction for violating a 209A restraining order or a 258E harassment order will not be eligible for sealing until after 10 years, not 5 years, have passed.

The new law will also eliminate all sex offenses, as defined by G.L. ch.6, s.178C, from eligibility for sealing under G.L. ch. 276, s. 100A.  This means that convictions for sex offenses will no longer be sealable after a certain period of time has elapsed.  This elimination of sex offenses from sealing eligibility makes it crucial to all persons with a sex offense conviction on their record that could be presently be sealed to petition to seal their record as soon as possible, before the new law takes effect. 

The new law also makes changes to CORI access levels, which will be the subject of a future blog post. 

The new CORI laws will make it much easier to seal your CORI in most instances.  Contrary to popular misconception, potential employers or schools or other non-criminal justice agency requestors will NOT be told that you have a sealed record (which would likely invite negative speculation), but rather will be told that you have no record.  The benefits of sealing therefore exceed the drawbacks of sealing.  If you have any sort of entry on your CORI, you should contact an attorney to discuss sealing your CORI. 

Welcome to my new website!

Welcome to the newest version of www.panglaw.com.  On this site you will find helpful information about a variety of criminal defense topics and what past clients and other lawyers in the community have to say about me.  I sincerely hope that I can assist you with any legal services you may require in the future.  Thanks for checking out the new site, and make sure to check the blog periodically for new information on criminal defense issues.