Massachusetts Criminal Defense Lawyer Blog

Sixth Amendment Confrontation clause at issue in Rhode Island murder trial

July 18, 2013 | by Michael DelSignore

In criminal cases, testimonial hearsay is usually not allowed and will be inadmissible at testimony. Hearsay testimony would be somebody taking the stand and explaining what somebody else said. The United States Constitution and specifically the confrontation clause grants every defendant in a criminal trial the right to confront witnesses used against them and cross examine them. As a Massachusetts criminal defense attorney, cross examining is extremely important to ensure the truth is being told by the witness. With hearsay testimony, the right to cross examine the witness would be gone as it is simply somebody else stating what was said and for this reason is unconstitutional.

However, there is one exception to this hearsay rule which was explained in Michigan v. Bryant. In this case, the victim was mortally wounded and in some of his last words, he told police he was shot by the defendant. The Supreme Court found that the officer’s testimony of what the victim said was constitutional even though that would usually be hearsay testimony. The court ruled that in emergency situations such as this where something is said in a victim’s dying words, it will not violate the confrontation clause.

A Rhode Island murder case has recently had a case with similar facts such as these. In this case, a detective found two men wounded outside of the Monet Lounge in Providence and was informed that there were two suspects in custody. The detective then led the suspects over to the mortally wounded victim. He proceeded to show the victim one suspect and asked if this was the man who shot him. The victim had no response, and when the detective showed the other suspect, who is now the defendant, the victim shook his head up and down identifying the defendant as the shooter.

Increased number of OUI drugs arrests in Massachusetts

July 10, 2013 | by Michael DelSignore

As a Massachusetts OUI Attorney, it is quite apparent that OUI cases involving drugs are on the rise as more officers received training in drug recognition techniques, commonly known as a DRE evaluation. A charge based of OUI drugs has many of the same defenses involved with alcohol in that the arrest is based on the officer’s subjective observations. With an OUI drugs charge, many officers do not have the qualifications to conclude that a person is under the influence of a particular drug. Further, the law requires the Commonwealth to prove which particular drug a defendant is under the influence of at the time of operation.

One of the explanations for this increase of drugged driving is the growing trend of legalizing and decriminalizing marijuana and the growing dependency of prescription drugs. A recent estimate states that for every six people charged with an OUI, one of those will be drug related driving alone. With this statistic, it is certainly on the radar of police and things are currently being done to crack down on this. On the national level, President Obama has taken the initiative to try and crack down on the problem as well making December National Impaired Driving Prevention Month each of the last three years. His overall goal is to reduce drugged driving by 10 percent by 2015.

The way to achieve the goal Obama has set up is being more strict and catching more offenders who are drugged driving. This becomes a problem as unlike alcohol related OUI, there is no magic number with drug related OUI like .08 with alcohol. Furthermore, there is no convenient breathalyzer test for drugs that displays what and how much drugs the driver was taking. Because of this, officers will have to rely on their own subjective observations of the driver to determine whether they are on drugs and whether the drugs are impairing the driving. To help this problem, the Drug Recognition Expert has been created and in effect since the 1980’s. There are 77 of these experts in Massachusetts and thousands more around the country. These officers are trained to recognize what drugs and how much of that drug a person has been taking just from observations. These DRE’s help the problem that arises when a driver seems impaired but has no alcohol in their system; at this point, the DRE can decide whether the driver is impaired by another substance.

George Zimmerman Trial Produced All Female Jury

July 7, 2013 | by Michael DelSignore

In one of the most publicized criminal case in recent history, George Zimmerman who is being tried for murder in the death of Trayvon Martin has drawn an all-female jury. As a Massachusetts criminal defense attorney, the jury selection process is a very important step in setting up a criminal defense. Getting jurors who are biased or against the defendant in some way can be detrimental to a case. Getting an all-female jury raises some interesting questions as to whether or not this can have an effect on the outcome of the case.

Having an all women jury or even one female juror for that matter was not always an option. It was not until 1975 and the decision in the Supreme Court case of Taylor v. Louisiana that stated women had to be involved in the jury process in order for it to be considered a jury of peers as required by the Constitution. Before that, women were not required to be a part of the jury process and it was only optional that women served. Since women have become part of juries, it can finally be considered that a defendant is on trial by a jury of his or her peers.

It still remains to be seen if this will affect the trial in any way either in favor for the defense of the prosecution. Many have argued that it would be impossible for a man to get a fair trial with an all women jury and this will be a true to see if it can be done.

Mistake of Jurors a Valid Excuse for Use of Peremptory Challenge

July 2, 2013 | by Michael DelSignore

The United States Constitution guarantees every criminal defendant a right to a fair and speedy trial. One way a trial is deemed fair is to have an impartial jury decide the fate of the case. To ensure a jury is impartial, both the defense and the prosecution will select the jury through the process of voir dire. As a Massachusetts defense attorney, it is often this process that can win or lose a case as it is imperative to get jurors who will not be biased against your client.

The process of voir dire usually consists of the jurors being asked questions about their age, employment and life experience. This is in hopes of uncovering any bias the juror may have and to find out whether he or she will be an impartial juror. If any deficiencies in the juror are apparent that lead the judge to believe the juror could not be impartial, the juror will be stricken for cause and not allowed to hear the trial. To further ensure a fair trial, each side is given five peremptory challenges which allows the lawyers to strike a juror for no reason and have them not sit for trial.

However, the Equal Protection Clause of the 14th amendment does not allow a lawyer to use one of these peremptory challenges based solely on race. This rule was decided in Batson v. Kentucky. The Supreme Court in that case stated once a lawyer displays a pattern of discrimination through his or her peremptory challenges, the other side can make an objection. This has become known as the Batson challenge. Once this objection is raised, the attorney will have to state a legitimate reason why they decided to strike the juror other than their race.

Can a Refusal to take field sobriety tests in a DUI Arrest come into evidence at Trial

June 27, 2013 | by Michael DelSignore

What happens when you attempt to take field sobriety tests and realize you cannot perform them and are charged with OUI in Massachusetts?

Often a defendant may say: “I can’t do this anymore,” and “I am too drunk to finish,” are some of the many comments made by defendants as they perform field sobriety tests after getting stopped by a police officer who suspects they are operating under the influence.

Statements like these, made during the field sobriety tests, can be used against you as evidence in a court room. In the case Commonwealth vs. Brown, decided June 20th 2013, the Court ruled that statements made during field sobriety tests are not considered compulsory or testimonial statements and are not protected by Article 12.

Oregon Allows Sleep Driving As Possible Defense for Drunk Driving

June 22, 2013 | by Michael DelSignore

As a Massachusetts OUI attorney, there will be rare cases where a driver had no intention of driving, but because of some sort of disorder or episode, got behind the wheel without any intention of driving. A question in these cases arises when the person driving is drunk and whether they can be held criminally liable for drunk driving with the lack of intent to drive. The Oregon Supreme Court recently addressed this question State v. Newman and determined a driver must commit some voluntary act in order to be held criminally liable.

In State v. Newman, the defendant was pulled over in a clearly intoxicated state, blew a .15 on the breathalyzer and performed very poorly on the field sobriety tests. In what would seem to be an open and shut case, the defendant offered evidence that he never knew he was driving drunk because of a sleep walking disorder. The defendant claimed he walked home after having drinks with friends and went to sleep. He claims it was an episode of “sleep driving” that caused him to drive drunk. The question then becomes, can evidence that the defendant did not voluntarily drive be a defense to a drunk driving charge.

What the prosecution centered their argument on and what the trial court based the original decision on was that drunk driving is a strict liability crime. Being a strict liability crime would make whether the driving was voluntary or not irrelevant and the sleep driving defense worthless. If drunk driving was a strict liability crime, it would not matter what the circumstances led to the driver driving in his condition; if he drove over the limit, it would be a crime every time.

United States Supreme Court Decides Sentencing Guidelines Fit Under Ex Post Facto Clause

June 19, 2013 | by Michael DelSignore

The United States Constitution protects citizens from ex post facto laws. What this means is that a person cannot be punished for breaking a law that was not a law when they committed the act. This will be true even when the act becomes against the law after they committed it. As a Massachusetts criminal defense attorney, a question will often arise if the ex post facto protection applies to punishment guidelines that change after the defendant has committed the crime. The Supreme Court of the United States recently addressed this question in Peugh v. United States ruling that the sentencing guidelines in place at the time of the crime should be used even if they subsequently change.

The defendant in Peugh v. United States was convicted in federal court on five counts of bank fraud which occurred in 1999 and 2000. While sentencing the defendant, the judge used sentencing guidelines that were created in 2009; almost 10 years after Peugh had committed his crimes. The defendant argued that because these guidelines were not regulated when he committed his crime, it violated the ex post facto law in using them in sentencing.

In a 5-4 decision, the Supreme Court agreed with Peugh and ruled this was a violation of his constitutional rights. Punishment guidelines are often changing and becoming harsher and this decision shows that sentencing guidelines that were in effect at the time of the offense will be used when sentencing the defendant. The court focused on the fact that while punishment guidelines are not “laws” a judge will use the sentencing guidelines in over 80% of sentences. Because of this, a defendant will be subjected to a significant risk of a higher sentence because of these new guidelines. This is exactly what the constitution is trying to protect with the ex post facto rule.

Discussion on recent laws pertaining to Driving under the influence of marijuana

June 15, 2013 | by Michael DelSignore

Decriminalizing and making marijuana legal is a growing trend throughout many states. However, even when legal, it is still an offense to drive under the influence of marijuana. As a Massachusetts OUI Defense Attorney, this creates problems as it is much more difficult to measure the presence of marijuana in the system opposed to alcohol. With an alcohol OUI charge, registering a .08 or higher will create a presumption that the driver was operating under the influence. There is not really a “magic number” such as this for marijuana and has created difficulty in OUI cases involving drugs. Colorado has recently taken on the challenge of trying to create a threshold for marijuana.

The effects marijuana have on driving is not as clear as the effect alcohol has which was a problem for Colorado law makers. However, they were determined to find a number to put on the amount of marijuana in a drivers system in order to make it more like an alcohol OUI. Colorado concluded that a driver will be assumed to be impaired if a blood test shows THC in five or more nanograms per milliliter. When a blood test shows this amount of TCH, it will be the same as blowing a .08 in a drunk driving charge.

Similar bills creating a standard like this for marijuana use have been met with some resistance. This is due to the small amount of research done on the effect marijuana has on driving and the intrusive nature of taking a suspect in for a blood test. Research has shown that the more marijuana used, the worse a driver will be performed. This is really the only data available and more will be available late this year.

Comments on the proposed reduction in the legal limit for drunk driving offenses to .05

June 9, 2013 | by Michael DelSignore

As a Massachusetts OUI defense lawyer, often an argument made at trial is that a motorist drank responsibly and only had one or two drinks with dinner. The proposed reduction of the presumptive legal limit would have potentially impose criminal penalties on those who drink responsibly. Fortunately, the proposal is not likely to be adopted.

The National Transportation Safety Board, or NTSB has recently recommended that states modify the legal limit of alcohol allowed while driving. This modification would mean that a driver would be considered to be driving under the influence of alcohol at a .05 blood alcohol content opposed to the current legal limit of .08. As a Massachusetts OUI attorney, it seems like this change would create a disadvantage to drivers and punish drivers who were once considered responsible.

The NTSB argues that this change is necessary to ensure the safety of the citizens. NTSB argues that alcohol related deaths are on the rise and this is the best way to stop it. Deborah Hersman, the chair of the NTSB states that a .05 blood alcohol content has been implemented as the legal limit in many nations which have safer roads and it is time for this change in America. One example of where NTSB believes the .08 legal limit seems unjust is the death of Sergeant Douglas Weddelton, a Massachusetts state trooper. While pulling someone over, Sergeant Weddelton was slammed into by a pickup truck and killed. The driver who hit him however only had a blood alcohol content of .07 and was not legally drunk.

Westborough criminal defense lawyer explains witness intimidation law

June 3, 2013 | by Michael DelSignore

One of the most common charges when a defendant is charged with a domestic assault and battery in Westborough, Massachusetts, is that the charge will also be accompanied by a charge of Witness Intimidation. The Massachusetts Appelals Court recently addressed the issue of what constitutes witness intimidation in the case of Commonwealth v. Rosario, decided on May 22, 2013. The case can be found by visiting the social law library website.

In the Rosario case, the defendant was facing charges of assault and battery with a dangerous weapon and four months after this incident confronted victim in the hallway of the courthouse. This encounter led to the additional charges of intimidation of a witness and threat to commit murder. Following a jury trial, the defendant was convicted of witness intimidation.

On appeal, the defendant concedes that the evidence was sufficient for the jury to find that he threatened the victim and that victim was to be a witness against him in a criminal proceeding. He claims that this motion for a required finding of not guilty should have been allowed because the Commonwealth failed to establish that he possessed requisite intent “to impede, obstruct, delay, harm, punish or otherwise interfere” with a criminal proceeding.