What Happens When You’re Arrested in Massachusetts
What Happens at a Police Station in Massachusetts
Once you arrive at the police station, you will be booked, photographed and fingerprinted. During the booking, you will be asked some questions concerning basic information about yourself such as name, date of birth, address and phone number. You can answer these basic informational questions, but still should not answer any questions about the charges and the incident that led to your arrest.
You may make a phone call to whoever you’d like — usually to a friend or family member.
If it is early enough in the day, you will go straight to the courthouse after booking for the arraignment.
If it is too late to get to court you will probably spend at least a couple of hours (sometimes much more) waiting for a bail commissioner to arrive to determine whether to set a bail on you and, if so how much. Most of the time, there is just a one-time non-refundable fee of $40. Then you should be able to leave. If there is a bail and it is too high for you to make at that time, you will be brought into court for the arraignment and to argue a lower bail at the very next business day. (More on bail below) That should be the very next day. So, for example, if you are arrested on a Tuesday night, you will go to court Wednesday morning. However, if it is a weekend, since courts are closed on Saturday and Sunday, you will have to wait until the next business day which would be Monday. In the worst case situation, if you are arrested at the beginning of a three-day holiday weekend with the courts closed for the Monday holiday, you could wind up sitting for several days until Tuesday morning.
The Arraignment
If you are released from the police station, you will be required to show up at the local courthouse the very next business day. You must show up or else the court will issue a default warrant for your arrest. Be there on time and it is best to dress appropriately. There is no specific dress code so a male doesn’t have to wear a jacket and tie and a female does not have to wear a business suit, but there are judges who will expect you to dress in a way that shows respect for the court. So it is inadvisable to show up wearing such things as flip-flops, tank tops, sweat pants or cut-off shorts.
When you arrive at the courthouse, report to probation to check-in. Again, they will just be asking you for basic information about yourself such as name, date of birth, address and phone number. If you are claiming indigency, cannot afford a lawyer and wish to receive a court-appointed bar advocate attorney, they will ask you a number of questions about your finances to see if you qualify and you will have to sign a financial affidavit.
Then you will go into the courtroom and wait for your name to be called. Everyone is given the same arrival time of 9:00 am, so you will have to wait your turn to be called in what could be a crowded courthouse.
When you are called, your charges will be formally read to you. This is what makes us different than many other countries where people are arrested and not told for months what the accusations against them are and for what charge they were arrested.
A not guilty plea is usually entered at that time. The police report giving the police version of the story against you is available that morning. Then you are given a date to come back to court usually between a month or two months from then. The court will warn you that if you get arrested while this current case is ongoing, you might be held in custody. The judge might also set conditions for you to abide by during the pendency of the case including such things as staying away from a particular location or person or an order forbidding use of alcohol and drugs.
In all likelihood, you will be out of the courthouse on the day of your arraignment some time that morning. In rare instances, one is stuck there all day until the court session closes around 4:30.
For some, though, where there is a question of bail, the arraignment is also where bail is determined. If bail was set by the bail commissioner earlier back at the police station, and the particular accused person cannot afford it, they and their attorney can argue before the judge for a lower bail or no bail at the arraignment.
Or, even if no bail was requested from them at the time of the arrest or they paid a bail back at the police station, there is a chance that bail could still be set against them at the arraignment.
Bail is generally determined by whether the judge believes that the accused defendant might pose a risk of flight and not return on future court dates. At a bail hearing, the judge will consider a number of factors to determine this including:
- Whether the defendant has a previous criminal history;
- And, if so, did they have a number of defaults in the past where they did not show up to court dates;
- The nature of the charges whether they are for very serious offenses;
- The potential penalty for the accused crime. For example, if there is a chance of lengthy incarceration that might be an incentive for the accused person to flee and not return to court;
- Whether the person was on probation or parole for an earlier offense when they got arrested for this new crime;
- The defendant’s ties to the community. It is assumed by the court that someone with many family members in the area, who always lived in the general area, and is employed there and very involved in the community will be less inclined to want to become a fugitive and leave his family and familiar home. This, as opposed to someone who is just passing through the area of the arrest and has no ties to the community or family, jobs or roots.
- Whether the accused person has a history of serious alcohol or drug abuse.
Although being held on bail is generally determined by the risk of flight a defendant poses, if there is concern for the potential safety of an individual or the community caused by the defendant, the prosecutor can move for a dangerousness hearing where it will be argued whether the defendant will be held without bail.
Counsel at Arraignment
It is best to have an attorney at every step of the process and, if possible, to show up at the arraignment with you the day after the arrest. Most criminal defense attorneys charge a flat fee for the entire case and do not charge extra to do an arraignment.
However, if you are unable to hire an attorney to be there at the beginning of your case for the arraignment within hours of your arrest, you don’t need to panic. If there is an attempt to hold you on bail and you are not indigent, the court will still likely appoint you an attorney for that first day even if it will only be for that one day.
An attorney can be crucial at the very beginning. Perhaps you would be eligible for some kind of diversion program that could ultimately result in a complete dismissal of your case, but that you must notify the court of just prior to or during the arraignment. There are a number of such diversion programs usually for the more minor offenses that are available to young people, veterans and those who commit certain relatively minor crimes. Without proper guidance from counsel, you might not be aware of these programs and have to risk fighting the charge the entire way.
Or a first rate experienced attorney might give you the best chance of avoiding being held on bail or being found to be dangerous and therefore held incarcerated without any bail.
It is true that you can’t be forced to be represented by an attorney and everyone in the United States has the right to be their own counsel even if charged with the most serious charge which is murder. But legal cases can be complex and, if one wants to represent themselves they might be at a disadvantage of not knowing the law and legal procedures such as certain evidentiary and non-evidentiary motions and rules such as the complicated rules of evidence. While no guarantees as to the results of a case can ever be made, an experienced attorney will give will give you your best opportunity of getting the finest result if you go through the unfortunate experience of being arrested.
Read more about what to do if you are arrested in Massachusetts in our other blog post in our arrest series.
What To Do If You’re Arrested in Massachusetts
Being arrested is usually a terrifying, overwhelming experience as you suddenly find yourself in a situation over which you have absolutely no control. Not only that, but it can result in extreme consequences to your life potentially including incarceration; loss of a job or entire career; loss of housing; loss of licenses; loss of relationships or family; great expenses; and damage to one’s reputation and standing in the community.
An arrest itself, though, might not be the end of the world as most of the serious consequences happen if you are eventually actually found guilty, convicted and then receive a criminal record. An arrest merely means that you are a person accused and does not mean you have been found to have done anything wrong. People who are completely and factually innocent get accused more often than you’d think, so no stigma should attach to an arrest. It is the potential conviction down the line that is a greater problem.
In order to charge someone with a crime, an arrest doe not necessarily have to take place. Sometimes, if the offense is minor, the police will tell you that you will eventually be receiving a summons in the mail ordering you to appear in court. If arrested, however, you will be handcuffed, read your rights, placed in a police vehicle, and transported to the police station.
Do Not Make a Statement to the Police
The first thing you need to know is not to speak to the police. People think that they can talk their way out of the arrest. That almost never happens. It is unlikely anything you say can prevent the charges once the allegations are made. The police’s goal is usually to get your statement so that it can eventually be used against you. They will write it down and then hand it off to the prosecutors at the court. The police officer can rarely make any deals with an accused person. The government person who might be able to make a deal with you way down the line during the court process would be a prosecutor.
It is generally not advisable to speak with the police even if you are genuinely innocent. For example, if you are truly upset and a bit confused what is going on, if you make the slightest innocent error or slip of the tongue in what you say, it will definitely be used against you. You can get charged with some form of obstruction of justice such as making a false statement to a police officer or, although it may not make sense to you, such false statements here in Massachusetts can trigger the witness intimidation statutes even though innocent errors in your statement do not seem to have anything to do with intimidation. Your protestations that you made a mistake in the heat of the moment under pressure might not likely be believed.
Sometimes those who are arrested don’t realize that they are giving valuable information against themselves or even accidentally confessing. For example, if you are being accused of drunk driving and the police officer asks you how many you had to drink, you might think you are helping yourself by saying, “Only a couple.” You might not realize that, even if that is not proof positive that you were driving under the influence of alcohol which is the crime, it is helpful to the police that at least you just confessed to drinking and driving. Or a person may be accused of a drug transaction thinks he is helping himself by blurting out, “I didn’t sell any drugs or make any money. I simply gave some to some friends for no money.” They don’t realize that the crime they are being accused of is drug distribution, not drug selling. So, even if they never made a dime of profit, they are still confessing to the distribution charge.
A police officer might attempt to cajole a statement out of you by saying something like, “If you won’t talk to us, that must mean you’re guilty. If you were innocent and didn’t do anything, you would talk to us.” That is simply not true. You can reply that you wish to exercise your right to speak with an attorney first which even a truly innocent person would be advised to do.
Read more about what happens when you are arrested in Massachusetts in our other piece in this arrest blog post series.
What is Considered Indecent Assault and Battery in Massachusetts
Indecent assault and battery is essentially any kind of intentional unconsented-to touching of the private area of another person.
Private areas include genital areas, public areas, buttocks, breast, thighs and abdomen or other areas. However, charges of indecent assault and battery may not be limited to those areas and it is open to interpretation by what would be considered offensive or immoral under contemporary standards of decency. It may also be determined by the context in which the touching occurred. For example, in certain instances, hugging or kissing another person against their will could very well qualify. Such a charge would apply whether the victim was either clothed or unclothed.
The charge of indecent assault and battery differs from rape that is defined as an unconsented-to sexual intercourse with another person who is compelled to submit by either force or threat of bodily injury.
It also differs from a regular assault and battery which is defined as an unconsented touching of another person though not necessarily of a sexual nature.
There are different penalties for indecent assault and battery on a person aged 14 or older or indecent assault and battery on a person under the age of 14. If the victim was under the age of 14, even if the minor consented to the touching, it would still be a crime. This is because any victim under the age of 14 is considered under the law to lack capacity to consent. That means that the child is so young that he or she is considered legally incapable of consenting to such sexual contact.
This is also true of the charge of indecent assault and battery on a person with intellectual disabilities since they, too, would be considered, under the law, as having no ability to make a reasoned consent. Additionally, there are statutes outlawing indecent assault and battery on an elderly person or person with a physical disability as they may be extra vulnerable to a physical assault.
To be convicted of indecent assault and battery, the prosecution must prove beyond a reasonable doubt that:
- The alleged person was of a certain age;
- The touching was intentionally on purpose;
- The touching was either without the permission of the alleged victim or not justifiable;
- That the touching was, by today’s standards, indecent and offensive meaning that the touching could be reasonably and commonly understood to be that of a sexual nature particularly that the area of the body touched was considered private such as the breast, buttocks or genital areas;
If convicted of indecent assault and battery of a victim 14 years or older, the penalties include up to two and one-half years in the House of Correction or five years in state prison.
If convicted of indecent assault and battery of a victim under the age of 14 years, the penalties include up to two and one-half years in the House of Correction or ten years in state prison.
Additionally, upon conviction, it is a requirement that one register with the Sex Offender Registry Board. Obviously, being on the sex offender registry can lead to a variety of severe consequences including its effect on housing, jobs, travel, immigration status, and general reputation in the community.
Also, it is a requirement that, as with most sex offenses, one must wear a GPS monitoring ankle bracelet during the entire period of probation one receives which could typically be anywhere up to 5 or 10 years. During that period of time wearing the mandatory GPS device, one may not leave the Commonwealth of Massachusetts although it might be possible under certain circumstances, to go before a judge to get permission to travel on a particular specific occasion that comes up.
The law recognizes a number of defenses to indecent assault and battery to try to ensure that an innocent person is not falsely accused. Many of the defenses pertain to the issue of consent.
- Did the accused not realize the intoxication of the alleged victim by either drugs or alcohol had reached a level where, even though consent was given or no lack of consent was expressed, the alleged victim was not legally capable at the time?
- Did the accused wrongly presume that there was consent because there had been consensual sexual contact in the past with the alleged victim?
- Was there a genuine mistake through words or actions that consent had been given?
- Was the touching purely by accident or was it incidental?
- Did the incident, in fact, never even happen and a false accusation is being made to get revenge for an unrelated reason?
The law of indecent assault and battery is vaguely written, subject to interpretation and is complicated in its application. It is important to get the best representation possible by a veteran attorney with long experience in representing people falsely accused of the charge of indecent assault and battery. This is particularly true in that the legal penalty of being listed on the sex offender registry can last a lifetime far beyond even a period of incarceration or probation.
Fighting Charges of Child Pornography in Massachusetts
Whatever one thinks of pornography, most forms are actually legal with the significant exception being child pornography.
More frequently than one would expect, some people wrongly assume that, because it is so readily available on the internet, it must be legal. It is not. It is, however, in fact, much more accessible than ever before. Until recently, people looking for pornography would have to make much greater assertive efforts to obtain it. They could travel to a specialized “bookstore” or send away to have things sent to them in a plain brown wrapper.
Nowadays, it is available instantly at the press of a button on one’s laptop. This may explain why the number of prosecutions for such illegal material has absolutely exploded and is more prevalent in courtrooms today than ever. One prosecutor described such prosecutions as equivalent to “shooting ducks in a barrel.” They are so easy to track down online with such a well-documented provable trail that it makes a defense all the more challenging. The only thing holding back an even greater number of prosecutions is the lack of more law enforcement manpower to monitor online activity.
Surprisingly, a number of people express surprise that the looking at this material online is such a serious crime. They say something to the effect of “But I was only looking at this by myself in the privacy of my room with no one else around. Who am I hurting? How can passively looking at photographs when no one else can see me doing it hurt someone? I would never ever approach or bother a child in person.”
The law clearly does not recognize this sentiment. The answer is that you, personally, just looking at a photo may not think you’re hurting the innocent child in that photo, but somewhere down the line someone else is. And if you weren’t providing an audience or market for that photo, then the actual in-person abuser taking the photo or video might not be creating it for you at his end.
Many others mistakenly believe that, if one looks at child pornography, then “deletes” it from their computer, that they are not in any legal jeopardy because it no longer exists. However, they may not be aware that anyone with knowledge of computers can tell you that a “deleted” item, still exists on the computer hard drive. It just can’t be easily and readily seen or accessed. However, if a computer is seized by the police, their forensic experts using their advanced skills and equipment, can still find it.
In addition to facing possible incarceration for such an offense, one will be required to be placed on the sex offender registry.
There are a number of defenses to be explored if one either has been charged or is being investigated for child pornography charges. For example, it is occurred that innocent people have been charged if a friend, roommate, family member or neighbor or others with access to ones computer used it to look at child pornography without the computer owner’s knowledge. Additionally, it has also happened that online viruses and hidden files have unwittingly placed such material on an innocent person’s computer. Every year that goes by, with the advancements in internet technology, everyone remains increasingly vulnerable to material being unknowingly placed on ones devices. Also, an attorney can investigate whether you or your computer were the object of an illegal search where then the entire case might have to be dismissed.
For these reasons, it is important that one contact an attorney skilled in the defense of these kinds of charges immediately upon learning that an investigation has commenced.
This is how these cases frequently unfold. Usually, unknown to the suspect, law enforcement personnel are monitoring illegal websites including file-sharing sites or perhaps someone has tipped them off. Once they identify users of the site, they get a search warrant, show up at the suspect’s home, and then seize every suspected computer or electronic device. The police very often do not arrest on the spot but rather wait until their forensic staff has examined the devices for illegal material back at the lab. This may very well take a number of months. At that point, if one hasn’t been arrested yet, they will either be arrested at that time or summoned into court.
It is difficult to determine in advance where one will be prosecuted. Some cases are prosecuted in the District Court of Massachusetts while others are indicted to the Superior Court. Still others are prosecuted in federal court.
The three most common charges in Massachusetts state courts concerning such pornography are:
- Possession of child pornography
- Dissemination of child pornography
- Posing a child in a state of nudity
In state court, there is an increasing number of prosecutions for dissemination rather than just mere possession. Some defendants are surprised when they are charged with dissemination because they insist that they never shared their photos with anyone. However, since large numbers no longer find this illegal material on regular websites, but rather on file-sharing sites, they are charged with dissemination. This is because the nature of file-sharing sites is that you can take whatever material you want off of another person’s files and anyone else can take material off of yours. So, even if one is unaware that someone has ever taken files off their site and even if no one ever has, they can still be charged with the more serious charge of dissemination just for having been a member of a file-sharing site.
Concerning the charge of possession of child pornography, the prosecutor must prove beyond a reasonable doubt that:
- The defendant purchased or possessed pornographic material of a person under the age of eighteen.
- Pornographic material means visual material of almost any medium that, either actually or by simulation, exhibits: (a) sexual intercourse with a person or animal; (b) sexual contact; (c) masturbation; (d) lewd touching; (e) excretion or urination in a sexual context; (f) sexually sadistic, masochistic or sadomasochistic acts; (g) lewd display of genitals, buttocks, pubic area or female breast(s);
- The defendant purchased or possessed such material knowingly;
- The defendant had knowledge of the nature or content of that material; and
- The defendant knew or reasonably should have known that the child shown in that material was under the age of eighteen.
Concerning the even more serious charge of dissemination of child pornography, the prosecutor must prove beyond a reasonable doubt that:
- The defendant disseminated pornography.
- That pornography exhibited a person under eighteen years old in a state of nudity or sexual conduct;
- The defendant knew or should have known the contents of that material.
- The defendant disseminated that material with lascivious intent. Lack of lascivious intent can be proven through evidence of a scientific, educational or medical purpose for a school, library or museum.
- The defendant intended to disseminate that material.
The most serious of all child pornography charges — posing or exhibiting a child in a state of nudity or sexual conduct is a serious charge contains the following elements:
- The defendant: hired; coerced; solicited; enticed; employed; procured; used; caused; encouraged; or knowingly permitted a child under aged eighteen to pose or be exhibited in a state of nudity or sexual conduct.
- The defendant knew or should have known that the defendant was under the age of 18.
- The defendant had lascivious intent.
- The purpose of the defendant’s actions was representation or reproduction in any visual material. Free legal consult
If the case goes to federal court rather than state court, the consequences can often be even more serious. If one is charged with receiving child pornography rather than just possessing child pornography (even though there may seem to be little difference), one will face a mandatory minimum sentence in the federal penitentiary of 5 years. For producing child pornography, one is facing a mandatory minimum sentence of 15 years.
Indecent Exposure Charges in Massachusetts: Felony vs. Misdemeanor
There are two types of indecent exposure charges in Massachusetts. One is a misdemeanor and the other is a felony.
The more minor offense (though still serious) is called indecent exposure and has to do with the actual conduct or behavior. One is charged with the more serious crime of open and gross lewdness and lascivious behavior when one, through that behavior, intentionally attempts to shock and alarm others.
Examples of the misdemeanor of indecent exposure might include urinating in public; more minor public sexual acts; masturbation in a public setting even if one is in their own home or car; having exposed genitalia; or wearing little or no clothing in a setting where the public can see even if it is on private property.
To be convicted beyond a reasonable doubt of this offense, there are three elements that have to be met:
- Exposure of genitals
- Being seen by at least one other person who consider it offensive
- Having it be an intentional act
It has been defined as “an intentional act of lewd exposure, offensive to one or more persons.”
The punishment under Massachusetts General Laws Chapter 272, Section 53 can be a period of incarceration up to 6 months; a $200 fine; probation; an a criminal record.
Although the crime of indecent exposure may be a misdemeanor and would not generally fall under the category of major crimes, it must be challenged aggressively. This is because there is such a serious stigma to being charged with any crime that is considered sexual that it can have severe consequences to one’s reputation and standing in the community. This is aside from the legal consequences. In many ways, a conviction for this misdemeanor can have a more negative impact than a number of more serious felonies because there is such a social taint to being deemed a sex offender.
There can be other repercussions to such a conviction such as the loss of employment, housing or educational opportunities.
If the crime is aggravated, the more serious offense of open and gross lewdness and lascivious behavior can be charged. Although the crime of indecent exposure applies to just the exposure of the genitals, the other crime of open and gross lewdness and lascivious behavior may include not only the genitals, but also the buttocks or female breasts. The key to an open and gross charge is that it must be proved beyond a reasonable doubt that the act was done with the intention to cause shock and alarm in the other person or persons. A victim must testify that he or she experienced shock and alarm and that is not always the case.
A person did not have to set out with the intent to try to knowingly break any law, just that they intended to do the act to cause shock and alarm in another person.
The distinction between the charges of indecent exposure and open and gross lewdness and lascivious conduct is that an indecent exposure case is about the behavior one is committing. An open and gross lewdness and lascivious conduct case is additionally about the impact this behavior has on others.
The maximum penalty for the charge of open and gross lewdness and lascivious behavior is three years in state prison; a $300 fine; probation; and a criminal record.
Even though it is, in effect, a sex offense, someone who is convicted of indecent exposure is not required to sign up for the sex offender registry. Neither does one for a conviction on a first offense charge of open and gross lewdness and lascivious conduct. However, if there is ever a second conviction of open and gross lewdness and lascivious conduct, then registration on the sex offender registry is mandatory.
There are a variety of defenses such as whether the accused person was actually exposed; whether the person charged with the offense was actually in a place where they had an expectation of privacy; and whether the person reporting an incident that resulted in an open and gross charge was actually shocked and alarmed as required particularly if they made no such mention when they first told the police.
If it is eventually determined that the case cannot be dismissed nor is it likely that it can be won at trial, then your attorney can pursue another approach to avoid a more severe sentence or even incarceration. In lieu of such greater punishments, the alternative can be for the accused to be evaluated by experts in the field and then begin a course of treatment that will work on whatever problems or issues the accused might have that resulted in such an offense. Treatment rather than punishment makes a great deal of sense not only to help the accused person, but also to help to keep the public from being subjected to such behavior.
Again, even if one avoids incarceration on either one of these charges, the impact to one’s reputation and the damage to one’s social status within the community on these shunned charges in particular is so disproportionately outsized that it is imperative to leave no stone unturned in trying to avoid a conviction with the best assistance from a veteran attorney with exceptional experience in the defense of sex offense charges such as indecent exposure.
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