14/08/2020 by Peter Elikann 1 Comment
HOW TO DEFEND AGAINST A SHOPLIFTING CHARGE IN MASSACHUSETTS
The number of people accused of shoplifting is massive. More than 10 million people have been caught shoplifting in the United States in the last 5 years. Obviously, that represents only the people who didn’t get away with it. Businesses lose more than $45 billion a year due to shoplifting and employee theft.
Interestingly enough, a number of studies have shown that only about 5% of the people who shoplift do it because they are impoverished and are in desperate need of what they cannot afford.
I can vouch for that because, during the past several decades, I have represented accused shoplifters who span every group of society including college administrators, engineers, attorneys, corporate c.e.o.’s, and doctors.
Some people are caught shoplifting because they are merely absent-minded and, for example, may be elderly or on medication and just forget to pay as they walk out the door. But others do it for a variety of still-inexcusable psychological reasons such as it purportedly serving as a relief mechanism for depression or anxiety. Or they indefensibly want to reward themselves for some kind of loss whether it be a job or divorce. Or they have gambling personalities and unjustifiably seek the thrill of taking a risk.
There really is no profile of a typical shoplifter since, as stated, they span the strata of the public including every income level. They are equally divided between male and female although about three quarters are adults and a quarter of shoplifters are minors. Sometimes it’s premeditated and sometimes it’s an impulsive spur of the moment thing.
Shoplifting is defined as the act of unlawfully taking merchandise from a store without paying with the intent to permanently keep it.
There are a number of methods that are defined as shoplifting. It is not just the act of walking out the door without paying or throwing it into a bag you’re carrying without paying or even going into a store dressing room with several items of clothing and then concealing one by wearing it under your outer lawyer of clothing before exiting.
Some shoplift by switching labels, altering labels, switching containers, or returning items with falsified receipts.
In Massachusetts, it is considered a felony if the stolen items are valued at over $1200. An amount valued at under $1200 is considered a misdemeanor.
When one is stopped and accused of shoplifting, there are two things that can happen. (1) The police are called and the person is arrested, taken away in handcuffs to the police station and arraigned on charges in court on the next available court date. (2) Store security will handle things and perhaps the police will also be called, but the accused person will not be arrested, but rather told they will receive a summons in the mail to appear at a Clerk’s Hearing to determine if they should be charged.
The Clerk’s Hearing is a rather informal affair where those speaking must be under oath, but there are almost no formal rules of evidence to follow. It is often a back and forth conversation and questions can be asked of each person speaking. A person can bring an attorney with them and any witnesses who can help them with their case.
The entire point of a Clerk’s Hearing for shoplifting is not to determine guilt or innocence, but just to determine probable cause. Is there enough evidence, at the very least, to at least charge the accused person with shoplifting even if it is not quite clear whether there is enough evidence that will eventually prove his guilt at a trial? If it is determined that there is sufficient probable cause, then one is given a date to come back to court to be officially charged and arraigned in front of a judge.
If the case is dismissed at the Clerk’s Hearing, then the entire matter ends there. If it is dismissed at the Clerk’s Hearing, this is ideal because, in that case, it is even better than if one was charged and then the case was dismissed. There will not even be an official record that the person was ever even charged. The matter, for most legal purposes, just disappears as if it never existed.
Even if probable cause of shoplifting is found, the clerk conducting the hearing has some discretion to still not issue the criminal complaint even if the accused is clearly guilty. This is why, if given the option, a Clerk’s Hearing might be an ideal place to resolve a shoplifting matter. The clerk might possibly let the accused shoplifter off with a warning and a lecture particularly if the offense is relatively minor, the accused person is very remorseful and has no prior criminal record. The clerk may also find that probable cause exists, but continue the case for a few months or a year or so stating that, as long as the accused person stays out of any more trouble for that period of time, it will then be dismissed.
If, on the other hand, one is either arrested and then arraigned on the shoplifting charge or arraigned after a clerk’s hearing, there are still a number of steps that can be taken to prevent the accused person from getting a criminal record. Again, if negotiated successfully, it is not too late for a remorseful first offender to get the case dismissed even if the evidence of guilt is very strong. If needed, expert psychologists can be brought in to evaluate the accused person and explain to the court why the person could better benefit from counseling or treatment for whatever impulse control or behavioral problem they might have rather than just get a criminal record.
Otherwise, an accused shoplifter who wants to assert his or her innocence can always argue their case at a trial before a judge or jury.
Either way, how a shoplifting charge is resolved may be crucial. For example, if one is a non-citizen, having more than one such charge, even if it is a relatively minor misdemeanor, could trigger deportation, non-admissibility into the United States or result in preventing a person from ever becoming a citizen. Otherwise, even a minor criminal record for shoplifting can result in such things as not getting hired for jobs, being refused loans or mortgages, and being denied acceptance to a college or some other educational program.
An experienced criminal defense attorney is the best assurance that someone accused of shoplifting can emerge with the best result possible including the potential result of no criminal record.