Criminal FAQ

Q. What is the difference between a criminal and civil case?

A. A criminal action arises when there is an alleged violation of a state or federal law. Criminal cases are always prosecuted by the government (either the state or federal government, and not the alleged victim) against individuals or, in rarer instances, against business entities. The District Attorney's office prosecutes state cases and the Attorney General's office prosecutes federal cases. Application for the issuance of a criminal complaint may be sought by a private person or business entity, or by the police or other law enforcement agency; for example, in cases involving drunk driving or other motor serious vehicle offenses. Once the criminal complaint issues, the government thereafter "steps into the shoes of the victim" and effectively acts as the victim itself. This means that the government might occasionally attempt to prosecute a matter even without the cooperation of the original victim; for example, in cases involving restraining order violations, domestic abuse or other crimes of violence. A criminal court may impose fines, fees, orders, probation, incarceration, or any combination of the preceding.

Civil cases are law suits between and amongst private individuals and business entities. Generally speaking, the person who brings the suit is referred to as the plaintiff and the person who responds to the suit is the defendant. A defendant may also thereafter bring a counterclaim against the plaintiff, effectively making the original plaintiff a defendant as well. A civil court can award compensatory money damages, punitive damages, attorney fees, restraining orders and injunctions. Numerous motor vehicle offenses, such as speeding, marked lanes violation, operating without a license, or failing to obey traffic control signals, are civil motor vehicle infractions.

Q. What is the difference when a state criminal case is prosecuted in the District Court as opposed to the Superior Court?

A. There are too many differences, especially with regard to court rules and procedure, to even scratch the surface here. In a nutshell, the more serious crimes, such as murder, rape or armed robbery, amongst numerous other crimes, are prosecuted in the Superior Court. Sometimes, as in the case of a habitual criminal offender, cases that might otherwise be prosecuted in the District Court will instead be prosecuted in the Superior Court. A defendant is sometimes initially arraigned in the District Court and then later either indicted by a Grand Jury, or otherwise bound-over to the Superior Court after a Probable Cause Hearing in the District Court. The maximum allowable prison sentence for the conviction of any one count in the District Court is 2-1/2 years. The penalty and sentencing range is significantly greater in the Superior Court. A District Court prison sentence is typically served in a House of Correction, whereas a Superior Court prison sentence is typically served in a State Prison. A defendant convicted and sentenced by a United States Federal District Court is typically incarcerated at a federal penitentiary. Alternative forms of incarceration, such as half-way houses and rehabilitative residential programs, are available in some instances through all the courts.

Q. What is a continuance without a finding?

A. A continuance without a finding, commonly referred to as a CWOF, is neither a finding of guilt or innocence. While a CWOF is part of a plea bargain, instead of it being a plea of guilty, it is rather an "admission to facts sufficient for a finding of guilty." In layperson's terms, this means that a defendant will admit to either all or some of the facts as alleged by the government, effectively stating that these facts would more than likely be proved by the government were the case to proceed to trial and verdict. A defendant who bargains for a CWOF voluntarily, knowingly and willingly relinquishes the constitutional right to a jury trial and any potential subsequent appeal. The judge will give the defendant a "colloquy," which is a set of constitutional and other questions designed specifically to ensure that the defendant understands, amongst other things, the charges, the penalties, the rights being waived and the consequences of the same. In exchange, the defendant typically receives a specified period of probation for which the case will remain "open." The case will assumedly be "closed" provided the probationer successfully completes the probation and this effectively acts as a "dismissal" of the case. However, because the defendant has given up both trial and appellate rights, a probation violation could potentially result in the CWOF being revoked and a guilty finding being imposed, perhaps even a period of incarceration, as the court has the authority to impose whatever sentence was permissible by the law for the particular crime in the first instance. The court can otherwise, amongst several other alternatives, reprobate and/or extend the CWOF and/or modify the terms and conditions of probation.

Q. Is the issuance of a restraining order a criminal or civil matter?

A. A restraining order, known as either a 208 or 209A abuse prevention order in Massachusetts, is a civil proceeding at its inception and thereafter. The matter only becomes criminal in nature when it is alleged that a violation of the order has occurred and a criminal complaint issues against a defendant. The policy of the District Attorney's office in each of the several counties in Massachusetts is to relentlessly prosecute these cases and the defense of these matters should never be taken lightly.

Q. What authority does a criminal court have on license suspensions or revocations imposed by the Registry of Motor Vehicles ("RMV") as a result of a criminal conviction?

A. Generally very little. A criminal court and the RMV operate under separate and very distinct branches of the government. A court operates under the judiciary branch while the RMV is an administrative agency. It is occasionally permissible for a court to set forth written "recommendations" to the RMV as part of a defendant's disposition with respect to collateral license suspensions or revocations. These recommendations may or may not be adopted by the RMV. A court, however, cannot make binding orders upon the RMV, which has its own rules, regulations and protocol. Typically, the criminal clerk's office will send an abstract sheet to the RMV that identifies the conviction and the RMV will, if applicable, automatically impose any mandatory license suspension or revocation as required by the law. The RMV must thereafter send prompt written notice of the suspension or revocation to the defendant's last known address.

Q. Will the conviction of a drug offense typically result in the suspension or revocation of a defendant's driver's license or the right to operate a motor vehicle?

A. Yes, and there is no requirement that the drug offense be related to the operation of a motor vehicle. For example, a person convicted of smoking marijuana at a house party or on a street corner will incur a license suspension as a collateral consequence. In Massachusetts, license suspensions for drug offense convictions range from one to five years, depending upon the nature of the offense.

A continuance without a finding ('CWOF") will, however, not generally trigger a license suspension or revocation, unless the probationer is subsequently found to have violated the terms of probation and the CWOF is revoked and a guilty finding is imposed.

Q. What is a probation surrender?

A. In a nutshell, a probation surrender, or probation revocation, is a formal hearing process that occurs only after a defendant probationer is placed on either supervised or administrative (unsupervised) probation and it is thereafter alleged by the probation department that the probationer has somehow violated one or more of the terms and conditions of probation. In Massachusetts, the probation department typically notifies a probationer by sending a document entitled Notice of Probation Violation and Hearing to the probationer's last known address. This notice provides a cursory description of the alleged violation(s) and orders the probationer to appear before the court on a specific date and time.

A defendant probationer has a right to legal counsel at all stages of the probation surrender. Witnesses, whom will certainly consist of at least the probation officer and perhaps the defendant, proffer sworn testimony and are subject to both direct and cross-examination. Unlike with trials, hearsay testimonial evidence at a probation revocation hearing in Massachusetts is admissible and deemed sufficient if the court finds in writing that such evidence is (1) substantially trustworthy and demonstrably reliable and (2) if the alleged violation is charged or uncharged criminal behavior, that the probation officer has good cause for proceeding without a witness with personal knowledge of the evidence presented. A defendant may also waive the right to an evidentiary hearing and stipulate to the violation and make oral argument as to disposition only, or may stipulate as to both the violation and the proposed disposition agreed upon between defense counsel and the probation officer. A court, however, is not required to adopt an agreed proposed recommendation and may instead impose its own sentence. A probation detention hearing is a unique and separate preliminary matter wherein the probation department petitions the court to have the defendant probationer detained, typically without the possibility of bail, and held until the final probation surrender hearing.

Q. What is pre-trial probation?

A. Pre-trial probation is an agreement between the government and the defendant that occurs before a trial or other final disposition, though the actual probation itself is administered and monitored by the probation department. While pre-trial probation requires that the defendant be placed on either supervised or administrative (unsupervised) probation for a specified time period even before a criminal conviction enters, it benefits the defendant in that the case will be temporarily removed from the court docket list and then effectively dismissed provided the defendant successfully completes the probationary period. Should, however, the defendant violate any of the general or specific terms and conditions of the pre-trial probation, those of which would be explicitly stated in a pre-trial probation contract reviewed and signed by the defendant at its inception, the case would then revert back to the docket list and proceed in the ordinary course of business. Unlike with a probation surrender/revocation, a defendant cannot be incarcerated for a violation of the pre-trial probation itself since there was never a final disposition of the matter nor a sentence imposed in the first instance. The court can, however, conduct a bail hearing at the government's request and potentially detain and hold the defendant with or without bail depending upon the circumstances of the alleged pre-trial probation violation as well as other typical bail considerations.

The parties must first present any proposed agreement for pre-trial probation for the court's approval. The court may either grant or deny a request for pre-trial probation and otherwise effectively compel the parties to reach another resolution of the matter, whether by dismissal, plea bargain or trial. Pre-trial probation is granted on a case-by-case basis and is not available in many instances.

Q. Will the things I tell my lawyer remain confidential?

A. In Massachusetts, a fundamental principal in the client-lawyer relationship is that the lawyer maintains confidentiality of information relating to the representation. Matters communicated in confidence by a client and virtually all information relating to the representation, whatever the source, are protected. This includes information from a client's family, employer and witnesses. It does not, however, include information generally known or made widely available to the public. In the context of professional ethics, client confidences are separate and distinct from the attorney-client privilege as addressed in the law of evidence. The attorney-client privilege applies in a proceeding where a lawyer is asked to testify about a client, whereas the confidentiality rule applies in situations other than where evidence is sought. The duty of confidentiality also applies in plea negotiations with a prosecutor.

Therefore, a Massachusetts lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation, except in certain instances. There are specific situations in which an attorney may, but need not, reveal client confidences. For example, a lawyer is permitted, subject to professional discretion, to disclose client confidences when the client has consented to disclosure. A lawyer may reveal client confidences in that counsel's own self-defense, to the extent reasonably necessary to vindicate counsel, or in instances to prevent a crime or fraud that the lawyer reasonably believes is likely to result in substantial bodily harm, substantial injury to financial interest or property of another, or the wrongful incarceration or execution of another. On the other hand, there are certain situations in which a lawyer must disclose client confidences. A lawyer is required to disclose client confidences when ordered by a court; or, except in defending a criminal defendant, when a client has deceived the court or other party, if necessary to rectify the situation; or, when it is necessary to avoid assisting a client in a criminal or fraudulent act.

Q. Why do legal fees vary so greatly amongst lawyers? What types of legal fees do lawyers charge in criminal cases? What kind of lawyer should I look for?

A. Legal fees can vary widely from lawyer to lawyer and case to case. It should come as no surprise that a lawyer or law firm based in a large city typically charges substantially more than a sole practitioner or law firm based in a smaller town or suburb. This is usually because the city firm's overhead is naturally higher and may have nothing to do with the level of expertise and quality of services it offers. There is nothing to suggest that higher fees charged by a city lawyer or law firm yield better results and though some people mistakenly assume that better service will be provided if a higher fee is paid, this is not oftentimes the case. In fact, sole practitioners and smaller firms are customarily better suited to offer more customized and personalized service and are usually more attentive to a client's individual needs and concerns, whether financial, emotional or otherwise. A client should never feel like the "small fish in a big pond." Each and every client's case should be the lawyer's most important case.

Some criminal defense lawyers charge by the hour or, depending upon the type of case, may charge a flat fee. For example, a lawyer defending a drunk driving case may charge a flat fee somewhere in the range of $1,000 to $20,000. In these instances, the lawyer has reviewed the pertinent reports and facts and can comfortably anticipate the amount of work that will be involved, that is, whether it is a case that should be plead out or taken to trial, the need to file motions, to retain expert witnesses and other critical factors. Flat fees can oftentimes lull a client into a false sense of security. The client often mistakenly believes that the quoted flat fee is the "ceiling" and that the lawyer will not require any more money if the case develops into more work than originally thought. Lawyers commonly withdraw from cases when unanticipated burdensome work that perhaps was or should have been foreseeable is required and the client is unable or unwilling to pay an additional fee. Flat fees can also result in a drastic overpayment for a case since a lawyer will usually "pad" the flat fee to safely cover any potential excesses.

An hourly rate, on the other hand, might initially appear to be potentially higher in comparison to a flat fee. An hourly rate, however, compensates the lawyer for only the services that have actually been honestly rendered, as opposed to those services that were only speculated and that never actually materialized. Because lawyers typically bill only so much for each particular type of service rendered, and monthly bills are itemized, hourly fees usually end up being much less than a flat fee.

Prosecutors are human beings with feelings and emotions, put their shoes and socks on just like everybody else, and have good and bad days. Most prosecutors have a general desire to be liked and respected by lawyers in the defense bar and many of them use their prosecutorial experience as a stepping stone to their own private practice as a defense counsel. The current generation of prosecutors are typically well schooled and versed in the law and, contrary to old school belief, will not be intimidated by the so-called (and usually self-proclaimed) "high-profile" attorney. Even a young and relatively inexperienced prosecutor will be under the guidance and tutelage of a significantly more seasoned one, who may even take over the case as it progresses. A prosecutor will always be more amenable to discussion and play less of the hardball tactics when negotiating with a well prepared attorney that they have come to know, trust, respect and generally admire. This does not suggest, however, that a lawyer cannot be simultaneously liked and aggressive. So if you want a "shark," hire a smart one to navigate your treacherous waters. Remember, even the notorious mechanical man-eating shark in the movie classic Jaws got reckless and was blown up in the end!