Frequently Asked Questions (FAQ)
Answers From a Boston Defense Lawyer
1. The Police/FBI Has Contacted Me About an Ongoing Criminal Investigation and Want to Speak With Me “to Clear Up a Few Things.” Should I Speak to Them?
NO. Because anything you say to the police can and will be used against you in a subsequent criminal proceeding, it is critical you know what it is they are looking into and why it is they want to speak with you. Generally, law enforcement officers don’t reach out to citizens to “clear things up for them.”
Unless you have previously volunteered your name to them as a witness to someone else’s crime, chances are they are now looking at you as a subject/target of their investigation. The safest/surest way to find out is to contact an experienced criminal defense attorney first. That way, the attorney can contact the police, ask the right questions, assess the situation and evaluate the jeopardy you may be facing.
You should never do law enforcement’s job for them. Nine out of ten times, speaking with them yourself simply helps them fill in blanks they might not otherwise be able to reconcile and provides them with evidence that may have been lacking. In these situations, it’s best to remember attorney Brad Bailey’s maxim that “far more clients have talked themselves into trouble than have ever talked themselves out of it.”
2. The Police/FBI Has Contacted Me About a Criminal Case but Hasn’t Charged Me With Any Crime. Do I Need a Lawyer?
YES. The moment you are contacted about a criminal case by law enforcement, you should assume you are under investigation and/or pending possible arrest. Your first call should be to the most experienced criminal defense attorney you can find. You should not hesitate to make that call — time is often of the essence. In some instances, your hiring of a lawyer and him/her speaking with law enforcement can slow the process down. In others, it can result in allegations being shown to be based on misunderstandings, lies, hidden agendas, or false information; or being placed in context, re-examined, discounted and/or reversed, with charges avoided altogether.
Additional advantages to retaining legal counsel before your arrest include:
- It presents an opportunity for an experienced Boston criminal defense attorney to negotiate your voluntary surrender at a time and place closer to your convenience, which will invariably result in a lower bail being set or no bail being necessary at all.
- It allows you to square away the critical issue of representation prior to the turmoil, panic and confusion that usually comes with an arrest, and gives your attorney a head-start in terms of game-planning and strategizing a winning defense.
- It also gives your family and/or loved ones the opportunity to get to know and trust the person in whose hands they will be placing many of their hopes, concerns, fears, as well as your very future.
- More than any of that, it allows you to take control of the situation and change the balance of power.
Having an experienced lawyer in place before you are arrested doesn’t just give you an opportunity to be proactive regarding the ongoing investigation, it also provides you with an ally who will be skeptical of law enforcement, protective of your rights and interests; who is ready, willing, and able to run interference for you, watch your back, explain each new development in an otherwise bewildering process, and shelter you from self-incrimination and innocent mistakes, which law enforcement will try to exploit to your disadvantage. Law enforcement loves to exploit a subject/target’s ignorance, naiveté, and/or trusting nature. Why let them? Before they can, call our Boston Criminal Defense Attorney Brad Bailey.
3. If I Retain a Lawyer Before I Am Charged, Won’t It Make Me “look Guilty,” Even Though I’m Innocent?
NO. When you are the subject/target of a criminal investigation, the last thing you should be concerned about is pleasing law enforcement. In fact, nothing pleases law enforcement more than you attempting to interact with them without representation of counsel. They are specifically trained to take advantage of the unwary, careless, and/or too-trusting subject/target.
This is a time for self-interest and self-preservation.
Your worry and concern should be focused on you and your family; nothing else. Law enforcements’ minds aren’t “made up” by virtue of someone invoking his or her constitutional right to counsel. In fact, one’s express invocation of right to counsel is a fact a jury is never allowed to consider or know about (as long as the judge is being alert – another reason you need a good, experienced trial lawyer). Hiring a lawyer has never prompted police to do what they weren’t otherwise already planning to do. By contrast, it often prevents them from taking advantage of you and getting away with it.
4. The Police/FBI Wants Me to Take a Lie Detector (Polygraph) Test “to Rule Me Out as a Suspect.” I Don’t Have Anything to Hide. Should I Take One?
NO. It is never a good idea to agree to a law enforcement conducted lie detector (polygraph) test since you have absolutely nothing to gain and everything to lose.
There are a number of reasons this is true:
- First, in Massachusetts, the results of polygraphs are not admissible evidence (except in federal court, where they can be used for the limited purpose of impeachment).
- Second, polygraphs are considered inherently unreliable and based on suspect-science.
- Third, it’s a poorly kept secret that polygraph results are easily manipulated and skewed to the questioner.
- Last, it’s also widely known by those familiar with polygraph mechanics that good/favorable results are invariably the product of either “dry runs” (taking a practice test first) or familiarity with questions before they are asked.
Because the results of polygraphs cannot be used in state court, the individual who agrees to one is essentially doing nothing more than agreeing to police interrogation, without counsel being present, since police administered tests are essentially little more than thinly-veiled Q & A about the crime under investigation. Any answers given can, and will, be used against the subject in subsequent prosecutions. Also, in rare instances when the subject actually “passes” a police administered lie detector, law enforcement is more likely than not to simply dismiss or ignore the results as “lucky,” “meaningless,” a product of poor drafting of questions, or evidence of the subject being a pathological liar.
So, if nothing can be gained from taking one (the results can’t be used in court), and much can be lost (answers are not privileged/protected, and can be introduced as “admissions against penal interest”), why agree to take the test? The answer is, you shouldn’t.
Instead, you should contact an experienced Massachusetts criminal lawyer like Brad Bailey, who will immediately contact law enforcement and politely decline on your behalf (while also using the phone call as an opportunity to try to learn more about the possible case against you); or will counter with an offer to conduct a polygraph test of his own, using his own experts. That way, he can help draft and select questions likely to promote a more favorable result, afford you the opportunity to review them before hand, give you the chance for a practice “dry run,” administer the test in the privacy of his own office with just you, him and his expert present, and keep the results 100% confidential in case the result/outcome is not favorable (for any number of reasons).
The fact that law enforcement always declines Attorney Bailey’s counteroffer to conduct the polygraph himself basically says everything you need to know about police administered polygraphs (and the hidden agenda behind them). They should always be turned down, as should any request to provide any voluntary blood, saliva, hair or DNA sample. Again, don’t do law enforcement’s job for them. Make them get a warrant; the moment they ask you to voluntarily submit, call an experienced Massachusetts criminal lawyer!
5. The Police/fbi Says They Want to Speak With Me About Something, but I Don’t Want to Talk to Them. Do I Have to?
NO. There is no requirement that anyone has to speak with the police, ever. If you don’t want to, you don’t have to. If you don’t want to, it is always a good policy and practice to decline politely, but, again, the choice to do so is entirely yours. Sometimes a police officer will try to trick you by saying you have to. This simply is not true. Requests for identification are a bit more complicated, but it’s also true there is no requirement you provide ID when asked — however, failure to do so may well arouse their suspicion and result in more attempted questioning; and in the case of a vehicular stop, it will result in citations, possible impoundment of your vehicle, and other charges. But in terms of law enforcement knocking on your door and asking to talk, or calling you on the phone and asking you to come down to the station to “answer some questions,” you have an absolute right to say no.
You have the legal right to decline!
If you are contacted by police in these circumstances, your best move is to politely decline to speak to them, and to immediately contact an experienced criminal defense lawyer like Brad Bailey. During an initial phone consultations you will have the opportunity to tell him the nature, circumstances, and contents of the police contact, and allow him to discern for you whether or not a further consultation will be needed. Whether or not you avail yourself of the further consult is also, of course up to you.
To be clear, though, there is a difference between law enforcement requesting you speak with them, and you receiving a court issued subpoena and/or court summons. As a matter of law, you must respond to the latter at the time and place commanded, in order to avoid being held in contempt. That doesn’t mean you have to speak or answer any questions when you get there, and you likely shouldn’t until you have spoken with an attorney.
6. The Police/FBI Are Knocking on My Door and Asking to Come in. Should I Let Them?
NO. Just as you have an absolute right to refuse to speak with law enforcement, you also have an absolute right to refuse them permission to enter your home. Again, it is important to be polite, but it is also important to be firm, as they are trained to exploit the slightest hesitation. If you decide differently, it is always a good idea to ask to see their official credentials, but why anyone would agree — sadly, unless it’s a death/accident notification contact — is difficult to understand.
Once inside your home, anything they see that may be illegal or contraband is “fair game” under the Plain View Exception to warrantless searches and seizures. Also, should you be a criminal target, and the police contemplating applying for a (as yet unissued) court authorized warrant, you are providing them with a free opportunity to assess the interior layout of your home and the chance to be more particular, exacting and expansive in describing the scope of the area they are seeking to search. This essentially means, when you let them in, you are helping them build a bullet-proof warrant seeking the evidence to be used against you.
Moreover, the typical two partners at the doorstep approach (rather than numerous officers) is done so their appearance is deemed less threatening and intimidating. This may allow them to ignore their obligation to provide you Miranda warnings (i.e., read you your rights) when questioning you once inside your home. (Absent larger numbers, direct orders to remain seated and not leave, or weapons-show, most courts will not consider an in-home interrogation by two, or even three, plain clothes officers sufficiently “custodial” to trigger required Miranda warnings.)
Without Miranda, one’s guard can be let down, which is exactly what the officers are looking to do by attempting to question you in the comfort of your own home. Anything you say to them in those circumstances that is self-incriminatory can, and will, be used against you, even if Miranda was never given. So don’t risk it.
Search and arrest warrants are entirely different. If they have one or the other, they have the right to come in, and there is nothing you can legally do to prevent them from doing so. In those instances, you should ask to see the face of the warrant to make sure they aren’t bluffing their way through your door. (They are not required to leave a copy with you; or show you the supporting affidavit.) Once you are satisfied, its best to step aside, call your attorney (or an experienced search warrants attorney like Brad Bailey — who will likely ask to speak briefly with the officers executing the warrant), and then let them do their thing. Under no circumstances should you agree to answer any questions while they are executing the warrant. The fact they are doing it is solid confirmation that you or your loved one is a criminal target — which is another reason to immediately call a lawyer — so the attorney can invoke both your right to remain silent and your right to counsel.
Under no circumstance should you fall for the old “you may as well let us in because we can go get a warrant anyways.” That’s nothing more than a bluff to get in and look around. If they had probable cause (P.C.) to search they’d already be using it, via a court issued warrant. When they don’t have a warrant, it usually means they don’t have enough P.C. to get one (yet), or the requisite court authorization to enter. Again, don’t do their job for them!
7. The Police/FBI Is Asking Me for Permission to Search the Contents of My Computer/the Trunk of My Car/look Around My House. Can I Say No?
YES. You can decline a request from law enforcement for your voluntary consent to search anything in which you have a reasonable expectation of privacy: your car, your home, your desktop/laptop, briefcase, handbag, etc. Unlike Miranda warnings, there are no circumstances, and no law, where the police are required to inform you of your right not to consent (to a request to search), and they usually don’t. However, they are quick to get you to execute (sign) a Consent to Search form (waiver) when you do agree.
Law enforcement will often seek voluntary consent to search as a way to circumvent the warrant requirement, since giving them your permission to search items in which you have a reasonable expectation of privacy means they don’t need to get a warrant. They also routinely ask for consent as a contingency when they aren’t sure the warrant they may have is going to hold up because, when you voluntarily consent, you are deemed to have waived your Fourth Amendment right not to be subjected to unreasonable searches and seizures, and all attendant privacy rights in the items searched. When that happens, the validity of the warrant becomes moot. Once you’ve consented, whatever they find within the “scope of the search” you’ve agreed to can be used against you, whether or not it is what they were originally looking for or thought they would find.
While individuals sometimes consent out of resignation that law enforcement are “going to seize it one way or another,” that proposition is not always true (since law enforcement may struggle to come up with sufficient P.C. to search). It also deprives a subject/target of the opportunity to learn more about the strength or weakness of the case against him or her; supporting affidavits (needed to establish probable cause) are required to be filed with search warrant applications and can provide valuable insight for your attorney about the charges you are facing. While search warrant affidavits are never “immediately” discoverable, they must ultimately be disclosed as any given case moves forward, thereby effectively forcing the prosecution to “lay their cards out on the table.” When consent is freely given, the opportunity for this is lost, which is yet another reason experienced lawyers like Brad Bailey always advise their client not to consent, especially since they don’t have to!
8. I’ve Been Told by the Police/FBI, if I Cooperate and Answer Their Questions Now, Without a Lawyer, “it Will Be Better for Me.” Is That True?
NO. This is also somewhat of a standard law enforcement trick or ruse. Sure, law enforcement may be “nicer” to you if you voluntarily come in and answer questions; but that’s only because you are making their job easier. Trust me, the niceness will stop the moment they aren’t hearing what they want/hope you will say.
More than that, for the most part, law enforcement officers do not have the power they pretend to have — or television portrays them as having. True, at the lowest level they have the ability to unilaterally “look the other way” or ignore petty criminal activity in exchange for information or street-work (“snitching”). However, when it comes to significant crimes (especially felonies) and criminal investigations, charging decisions and discretion rests solely with the District or U.S. Attorney. Unless the promise to “cut you a break” or “make a deal” is coming directly from the DA or the U.S. Attorney, it doesn’t really exist and/or won’t be recognized or treated as binding.
In other words, making a deal with the police in exchange for waiving one’s right to counsel and answering questions that might incriminate oneself is a “caveat emptor” (buyer beware) situation. In essence, you are offering up valuable and confidential information to law enforcement against a “contract” (promise) they have no power to enforce. Yes, they will tell prosecutors you cooperated, and yes, it may help in terms of more favorable bail and/or pretrial release conditions, but no, it won’t assure the prosecution will adopt and/or ratify any promises previously made to you by law enforcement. In the end, all you have really done is provided them with more evidence in the form of a possible confession or statement against interest, which they will either use in their case-in-chief against you or as a pressure point to force a cooperation deal/plea that may not be in your best interest.
Experienced lawyers like Brad Bailey are familiar with “tricks” like these, which is why they always counsel their clients not to speak with law enforcement unless they too are present. It’s also why when it is in a client’s best interest to make a deal, good attorneys bypass law enforcement altogether and go directly to the folks with actual deal-making authority: the state or federal prosecutors, themselves.
9. If I Am Stopped on Suspicion of Drunk Driving, Should I Consent to a Field Sobriety/Breathalizer Test?
PROBABLY NOT. In Massachusetts, unlike in a number of other states, a breathalyzer or field sobriety refusal cannot be introduced at trial as prima facie evidence of intoxication. In fact, it cannot be mentioned at all. For this reason, most experienced OUI lawyers in Massachusetts advise clients when stopped while driving, after drinking, to refuse either. There are a variety of reasons they do this, from inherent unreliability in breathalyzer results to the tendency to stammer when under pressure (during police scrutiny), to physiological and balance/equilibrium particularities that make each person different; but the main reason is because it gives you more than a fighting chance at trial, since another’s opinion about your “intoxication” is highly subjective.
Without scientific proof that comes from BAC testing, and underlying observations about one’s physical responses (to field tests that are difficult for most people even in ordinary circumstances), law enforcement is forced to rely simply on their own observation and opinion about whether an operator was drunk or impaired, which often is not enough to sustain a conviction for OUI. Refusals do not come without a price, however. A first-time breathalyzer refusal in Massachusetts results in an automatic six month administrative suspension of one’s license, which remains in effect whether or not one is convicted of the underlying OUI, and is served consecutively to the standard 45 days license suspension that comes with a first-time OUI conviction. Accordingly, if you are stopped and asked to submit to a breathalyzer, and have not been drinking, you’d have a good deal to lose (your license for 6 months) by not agreeing, even if you are concerned about the integrity of breathalyzer results. However, if you have been drinking, most experienced lawyers believe that the inconvenience of 6 months without a license far outweighs the risk of increasing your chances of conviction by virtue of the scientific proof you may be giving prosecutors by so agreeing.
10. I Just Received a Summons to a Clerk-magistrate Hearing. What Is That and Do I Need a Lawyer?
YES. You’ve received the summons because someone (referred to as the Complainant — it could be either the police or a private party) is alleging you have committed a crime. A Clerk-Magistrate Hearing, also known as a Clerk’s Hearing or Show Cause Hearing, is a process by which the Court decides whether or not you should be formally charged with a crime. The legal standard of proof at a Clerk-Magistrate Hearing is probable cause. This is a low standard of proof, requiring only that the Clerk finds that the evidence presented by the Complainant would permit a reasonable person to conclude a crime has been committed. (This doesn’t mean you are being found guilty of a crime – that requires proof beyond a reasonable doubt – it just means there is enough evidence to believe a crime may have occurred.) If the Clerk finds probable cause, a complaint will issue, formally charging you with a crime, and you will be referred to the District Court for arraignment.
It is extremely important to have a lawyer represent you at a Clerk-Magistrate Hearing. The Clerk-Magistrate Hearing is the last chance you have to avoid criminal charges. Having an experienced criminal defense lawyer, like the attorneys at Brad Bailey Law represent you at the Clerk-Magistrate hearing can wind up saving you a substantial amount of time and money in the long run. Having an experienced criminal defense attorney present from the outset gives you the best opportunity to refute the complainant’s claims and to present the merits of your own case to the Clerk regarding why you shouldn’t be charged with a crime. Good, experienced criminal defense lawyer like Brad Bailey can often, through their presence and involvement, prevent charges from issuing in the first place, or convince the Clerk-Magistrate to defer finding(s), pending later dismissal of the original summons without further action. Attorney involvement at this critical stage is especially important because standard of proof is so low. If the Clerk finds probable cause, you will be charged and will have a criminal record. Hiring a criminal defense lawyer who has successfully handled numerous Clerk-Magistrate Hearings is your best chance to avoid that lifelong stigma, as well as the escalating costs and legal fees that associated with an ongoing prosecution.
11. My [Loved One] Just Got Arrested and Charged With a Serious Crime. How Can They Do That When They Have No Proof?
This is a question which all experienced criminal defense lawyers are familiar with and are asked a lot. It is both counter-intuitive and frustrating when a loved one is arrested and/or locked up when the evidence against them appears far from solid or compelling, or the underlying investigation appears incomplete and sloppy. However, it can and often does happen because the standard/threshold that must be met by law enforcement in order to charge or arrest someone is less than is required for a conviction. Charges, criminal complaints, indictments and warrants must all be supported by something called “probable cause.” Probable cause is most commonly described as a “reasonable amount of suspicion, supported by circumstances sufficiently strong, to justify a prudent and cautious person to believe certain facts are probably true.” The United States Supreme Court has defined it as “where the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by [a person] of reasonable caution to believe that a crime is being committed.” In other words, probable cause is more than reasonable suspicion, but it is discernibly less than the “proof beyond a reasonable doubt” required to convict someone of the crime on which he/she stands accused. Although it used to be presumed prosecutors would not accept any cases, or bring any charges, when they had reasonable doubts themselves, those days are, sadly, behind us.
The fact is weak cases/charges are routinely pursued for any number of reasons/motivations; the principle one being “simply because police/prosecutors can,” given the lesser burden. For this reason, it is critical to hire an experienced criminal defense attorney who not only understands the difference between standards of proof at the heart of the criminal process (and who understands that charges are nothing more than mere accusations listed on a piece of paper and believes the maxim that “a grand jury can, and will, indict a ham sandwich”), but who also knows where and when to exploit the difference between sufficient evidence to charge vs. sufficient evidence to convict to your tactical advantage: at bail hearings exposing inherent weaknesses and flaws in the government’s proof; in pretrial motions to dismiss complaints or indictments for lack of/insufficient probable cause; with aggressive motions in limine designed to restrict and limit the scope of the underlying prosecution solely to evidence which can be reasonably proven; by properly and foundationally supported requests for jury instructions regarding inferences to be drawn on a client’s behalf when police investigations are sloppy, un-thorough and incomplete; and with well researched and articulated motions to acquit and/or for directed verdicts on grounds of sufficiency of evidence once the prosecution has rested its case.
Experienced defense attorneys like Brad Bailey know exactly when, how and where to do all this; and to exploit poorly prepared or premature cases to his clients’ distinct advantage. It’s important to remember being charged, indicted and/or arrested for a crime isn’t the end, it’s actually merely the beginning; nothing more than a signal the battle has been begun and that the time has come for you to engage the services of the best lawyer you can find.
12. I Want to Consult With a Lawyer About a Criminal Case/matter but I’m Worried How Much It Will Cost Me. What Should I Do?
A number of lawyers offer free legal consultations. If you are uncertain whether or not an attorney will provide you a free consultation, the best thing to do is ask him or her directly. If the attorney has a website, you can also check there, to confirm whether or not a requested consultation will be free.
Consultations can be over the telephone or in person at the attorney’s office. Because you or your loved one may be facing one of the most important decisions, and most important investments, you will ever make, it is critical you find the lawyer with whom you are most comfortable, and who provides the best “fit” for you or your loved one’s case. In addition to providing you with valuable information about your case, the jeopardy you are facing, what will be involved procedurally, and a general sense of the strategies and/or defenses that may apply, initial consultations are often the best way to get a good sense of the lawyer you may be asking to represent you and to size him/her up both personally and professionally. The best way to do that is via a face-to-face meeting, although that’s not always viable or practical given time, travel, employment, geographic, and scheduling constraints, including that which occurs most frequently: needing to line up “next day” in-court representation. Remember, legal representation is a commodity, and you are the consumer. You have every right to be discerning and deliberate, to ask relevant questions, and to take your time making an informed decision; a decision that may well impact you for the rest of your life.
13. Is Everything I Say During an Attorney Consultation Privileged and Confidential?
YES.* There is nothing more sacrosanct in the legal arena than the absolute confidentiality that attends the attorney-client privilege. The principle and mechanics of effective representation are not just fully invested in it, but depend completely upon on it. This is especially true in the field of criminal defense. A client must always know that whatever he or she says to her/his lawyer when no one else is present will be absolutely protected and treated with the strictest level of confidence and security. The attorney-client privilege is extended to include spouses who are present because of related marital privileges (*except when inter-spousal communications constitute on-going criminal activity; and/or relate to abuse of children) during any attorney-client conversation, as well as to other members of the lawyer’s firm, his support staff and any persons specifically hired by the attorney to assist the defense on the client’s behalf. It does not extend to parents (except in instances involving juvenile/minor child representation), girlfriends, significant others, siblings and/or close friends. For that reason, it is prudent for an experienced lawyer to politely ask anyone who is not married to the client to step-aside until any possible confidential communications are concluded, even when they have accompanied the client to the lawyer’s office in a show of support.
The attorney need not be hired or retained for the attorney-client privilege to attach, and no formal relationship need necessarily be established. This means that even initial, preliminary, and/or informal consultations, whether telephonically, by email and/or face to face are subject to the privilege. Even if you do not hire the attorney with whom you consult, and/or never see them again, the privilege remains intact, and whatever you told him or her must remain confidential unless or until you expressly waive it.
Accordingly, there is no reason not to seek a Call for a Consultation now with the most experienced criminal defense attorney you can find willing to talk about your case. Boston-based criminal defense attorney Brad Bailey is exactly that. A former state and federal prosecutor, with nearly 35 years of experience in the criminal justice system, Brad has exclusively practiced state and federal criminal defense for almost twenty years. With nearly 100 state and federal jury trials under his belt, and thousands of criminal cases handled (more than 300 in federal court, alone), there is no type or category of criminal case Brad does not/has not handle[d]. Consultations with Brad are treated with the strictest confidence.
About the Author:
Brad Bailey was a felony prosecutor in Manhattan (NY) and an Assistant District Attorney in Middlesex County (MA) where he prosecuted murders, sex crimes and serious narcotics trafficking cases. He went on to prosecute federal drug crimes and the mafia/organized crime as an Assistant U.S. Attorney for the U.S. Attorney’s Office in Boston. A five time Super Lawyer and Top 100 Trial Attorney, he is AV rated by Martindale and has been a member of the defense bar since 1999. Brad uses his vast experience on both sides of the law to defend clients accused of felonies in both state and federal courts in MA, NY and throughout New England and across the country. He routinely represents clients charged with all manner of crimes at trial, and on appeal, here in Massachusetts, and elsewhere.