Criminal Cases

Civil cases are brought by and against businesses, government and individualsand may involve a wide range of non-criminal matters such as divorce, probate,torts, real estate and contracts. Criminal cases are brought by the governmentfor criminal violations of the law such as theft, murder, assault and extortion.
Misdemeanors and felonies
Accusation
Grand juries
Initial appearance and arraignment
Preliminary hearing
Pretrial conference
Pleas
Motions
Juries
Opening statements, closing arguments
Motion for required finding of not guilty
The verdict
Sentencing
Appealing sentences
Probation
Parole

Misdemeanors and felonies

Crimes are classified as either misdemeanors or felonies. A misdemeanor is considered to be less serious than a felony.
Under federal law, misdemeanor offenses are punishable by fines and/or imprisonmentfor up to one year. Felonies are punishable by sentences of over one year.Punishments for specific federal crimes are found in the United States Code.
Under Massachusetts law, misdemeanor offenses are punishable by fines and/orimprisonment in a jail or house of correction. Felonies are punishable by sentence to state prison. Punishments for specific crimes are found in the General Laws of Massachusetts.

Accusation
Most crimes of violence are prosecuted in the state courts. In the state courts, the procedures differ for handling misdemeanor and felony complaints. If the crime is considered a misdemeanor, all procedures, from filing of the complaint through dismissal or sentencing, usually take place in a district court.
The prosecution of most felonies takes place in superior court. A felony charge generally must be preceded by a grand jury indictment; a formal accusation charging a person (named or unnamed) or organization with a specific crime.
The entire clerk's file, which contains among other things accusatory documentsfor both misdemeanors and felonies, is a public record. A judge may directthat a indictment be kept secret until after an arrest is made.

Grand juries

Unlike a trial jury, a grand jury does not decide guilt or innocence.A grand jury studies the facts of an accusation as presented by the prosecutor,and decides of there is enough evidence to warrant criminal charges.
Members of a grand jury are selected from the public at large. Grand juries have up to 23 members.
The proceedings of a grand jury are confidential. Witnesses may be called to testify before a grand jury. Their testimony is secret although they may disclose their own testimony. All witnesses have a right against self-incrimination.The right may be waived by the witness, however, by a valid grant of immunity from prosecution. Consequently, the prosecutor sometimes elects to petition the Supreme Judicial Court to grant immunity to a witness who invokes theFifth Amendment privilege in order to secure that witness's testimony. Someindividuals who are "suspects" may choose to waive their right to immunity when they feel that their testimony will exonerate them.
The accused person may testify before the grand jury on his own behalf but he is not otherwise entitled to be present during the proceedings. He may request that the grand jury interview certain witnesses but the decision to call these witnesses is the prerogative of the prosecutor.
In Massachusetts state courts, anyone appearing before a grand jury maybe accompanied by an attorney. The attorney is not permitted to address the grand jury. In federal court, the attorney must remain outside the grand jury room and the client has to leave the room to consult with him.
Witnesses may not refuse to appear before a grand jury due to unavailability of counsel.
If at least 12 of the jurors agree that there is cause for indictment, an indictment is returned to a judge. If the jurors decide not to indict, the grand jury files a "no bill" and, unless the defendant requests otherwise, the record of his appearance and disposition is sealed.
Reporters should note that people performing official functions in relation to the grand jury may not disclose matters occurring before the grand jury except when officially ordered to do so or in performance of their officialduties.

Initial appearance and arraignment

A person who has been arrested is brought before a district court insession or, if the court is not in session, at the next time that it isin session. A person who has received a summons need not immediately appearin court if, prior to the day he is to appear, his lawyer notifies the government that he intends to appear in court for his client. At the time of the first appearance, the court will determine if the defendant requires assignment of a public defender, if bail is required and what, if any, are the conditions of release. The defendant will also be arraigned or a time for arraignment will be set.
The arraignment consists of reading the charges against the defendant and recording the defendant's plea to those charges. Defendants represented by counsel may waive reading of the charges. If a defendant has been excused from appearing at the arraignment, a plea of not guilty is automatically entered.

Preliminary hearing

When a felony charge is filed in a district court, the person charged has the right to a preliminary hearing to determine if there is probable cause. If, during the course of the hearing, the judge decides that thereis no probable cause (the defendant has committed no offense), the case will be dismissed. If the hearing confirms that there is probable causeto believe that the accused has committed a felony, the case can be referred to a grand jury for further action. A defendant may waive his right to apreliminary hearing and proceed to superior court on the district court complaint.
Preliminary hearings are not held when a person has been accused by indictmentas in this case the grand jury has already determined there is probablecause for a felony charge.

Pretrial conference

In cases before the superior court and in some cases before a district court, the prosecutor and the defense attorney attend a pretrial conference. Judges usually do not attend these conferences.
Typical issues discussed at pretrial conferences include whether the casecan be disposed of by means of a plea, the nature of the defense (alibi, mental instability, etc.), setting of a trial date (subject to the court's approval), if the trial will be before a jury and the probable length ofthe trial. A report on the conference is drafted and filed with the court.When approved by the judge, the agreements reached at the pretrial conferenceas stated in the report become binding on the prosecution and defense asan order of the court.

Pleas

Pleas are received in open court and are of public record. A defendant may plead not guilty, guilty or nolo contendere (no contest.) There is no such thing as a plea of "innocent." The judge may refuse to accepta plea of nolo contendere or guilty in which case a plea of not guilty isautomatically entered.
Sometimes, the parties will negotiate a disposition, a procedure commonly known as plea bargaining. Plea bargaining takes three basic forms:

The defendant pleads guilty on the basis of a specific sentence promised by the court.
A plea is made based on the prosecutor's promise to recommend a specific sentence.
In exchange for a plea, charges may be reduced, thereby limiting the sentence that may be imposed.

At the district court level a defendant can choose not to negotiate andinstead offer what is known as a "defense-capped plea." If thecourt exceeds the defendant's recommendation, the plea can be withdrawnand a trial set.
Pleas must come voluntarily from the defendant. There must be no coercionand a defendant's rights to due process must not be violated.

Motions

A motion is a request that a judge file an order. Motions that are filed prior to the start of a trial are designed to assist counsel to discover evidence, determine the sufficiency of evidence and test the constitutionality of seizures or the investigation process. A motion may present a defenseor objection by the defense counsel that could lead to a resolution of theentire complaint without going to trial. There may be a motion to move thetrial to another county if it is likely that pre-trial publicity will preventa fair trial from being held in the location where the complaint was issued.
If a motion to dismiss or suppress is made by the defense and it is grantedby a judge, the prosecution may appeal to the appeals court, seeking thatthe dismissal or suppression be reversed.

Juries

A defendant who is entitled to trial by jury may waive a jury trial andbe judged directly by the court. If several defendants are being tried together, all must agree to waive a jury. The request to waive must be submitted inwriting and the court may refuse to grant it. If the court does refuse, reason must be given and this reason is given in open court and is on record.
The procedures for assembling and impanelling juries for criminal trials are similar to those for civil cases. The criminal jury must consist ofsix members for trials in the district court and 12 in the superior court. Usually, several alternate jurors are also chosen in case one of the jurorsbecomes unable to continue on the jury.

Opening statements, closing arguments

Trials begin with the state (prosecution) presenting an opening statement.The defense attorney may then make an opening statement, he may choose towait until the prosecution has delivered its evidence before making an openingstatement or he may choose to make no opening statement at all. At the endof the trial, the defense attorney makes a closing argument, followed bya closing argument by the prosecutor. Opening statements are limited to15 minutes per side, closing arguments are limited to 30 minutes althoughthe court may make exceptions to these limitations.

Motion for required finding of not guilty

A judge may, of his own volition or on the basis of a motion made bythe defendant, enter a finding of not guilty if, after presentation of evidenceby the prosecutor or after the defense rests, there is insufficient evidenceto support a conviction. If such a motion is made at the end of the presentationof all evidence, the judge may rule on the motion before the jury returnsa verdict, or may reserve ruling until after the jury returns with a guiltyverdict or until after the jury is discharged without returning a verdict.The timing of this ruling affects the ability of the prosecutor to appeala finding that the evidence was insufficient to sustain a verdict.

The verdict

The jury arrives at a verdict in secret deliberation. The jurors discussthe evidence and the law. On occasion, they may ask to have part of thetranscript read to them or to have the law re-explained. The judge may refuseto have the transcript read in which case jurors must rely on their recollectionof the testimony.
In a criminal case, the jury's verdict must be unanimous. The jury can convictonly if it believes the defendant guilty beyond a reasonable doubt. In acivil case, only a portion of the jurors need agree and a decision needonly be based on a preponderance of the believable evidence. Thus, the standardfor finding guilt in a criminal case is much higher than for finding infavor of a plaintiff in a civil case.
At the conclusion of the jury's deliberations, the foreman reports the jury'sverdict. At the time, the individual jurors may be polled in open court.

Sentencing

A defendant found guilty has a legal right to be sentenced without unreasonabledelay. Pending sentence, the judge may incarcerate the defendant, or continueor alter bail. Before sentence is imposed, the court must permit the defendantor the defendant's counsel to make a statement or present evidence thatcould mitigate the sentence.
Before sentencing, the probation officer may conduct a presentence investigationinto prior criminal prosecutions of the defendant (except prosecutions wherethe defendant was found not guilty), the defendant's background and theimpact of the crime on the victim. A report on the results of this investigationare reported to the court.
If a defendant is found guilty and he decides to appeal his case, a judgemay decide to order a stay of execution, meaning that the sentence (imprisonment,fine, probation or suspended sentence) will not be carried out until theresults of the appeal are final.
A judge may impose any sentence that doesn't exceed the limits establishedby the Legislature for the crime committed, regardless of the recommendation.
Cases may be disposed of without the finality of a guilty or not guiltyfinding. A prosecutor may recommend that charges be placed on file in whichcase further action is indefinitely suspended. Prior to trial, a prosecutormay file a nolle prosequi of the indictment or complaint which means that,although there has been an indictment, the case will not be prosecuted.A nolle prosequi is unusual and the prosecutor must file a written explanation.In some cases, particularly those heard in district juvenile court, afterthe hearing the judge will determine that justice would best be served andthe defendant would have the best chances of rehabilitation if the chargesare continued without a finding. If the defendant keeps out of trouble fora given period, the charges are dropped. If the defendant does not fulfillthe judge's conditions, the original charge will be brought back to courtand a guilt finding imposed. Usually, in order for a case to be continuedwithout a finding, the defendant must agree with the facts of the chargeas detailed by the prosecution.
A person who has been previously convicted of two or more felonies and hasbeen sentenced to terms of not less than three years, when convicted ofa third felony are considered "habitual criminals." This personmust be sentenced to state prison to the maximum term provided under thethird conviction.
A defendant convicted of multiple crimes may be ordered to serve sentencesconsecutively or concurrently.
Special procedures apply to a person who has been found to be drug dependentor sexually dangerous. Drug dependent persons may be sent to a treatmentfacility.

Appealing sentences

In addition to having the right to appeal convictions, defendants havethe right to appeal the severity of their sentences. These appeals are heardby three superior court judges sitting on the appellate division of thesuperior court. There, the panel of judges may dispose of the appeal withor without a hearing. They may increase or decrease the sentence or theymay let the sentence stand. The defendant will be afforded a hearing beforeany sentence is increased.

Probation

Under certain circumstances, a judge may suspend a prison sentence and placethe defendant on probation. If probation is violated, any sentence thatmay have been originally invoked may be imposed. Probation usually requiresthe defendant to:

comply with specific court orders such as restitution or stay away from the victim.
periodically report to a probation officer.
notify the court of any address change.
pursue lawful employment.
provide adequate support to defendants.
not break any law.
receive treatment, perform alternative punishment and/or pay restitution to the victim.

A defendant convicted of certain sex crimes cannot be placed on probationuntil at least five years of the sentence has been served if previouslyconvicted of similar charges. Probation is also not permitted when a defendantis convicted of certain crimes that are punishable by mandatory sentences(such as some drug and firearms offenses) or life imprisonment. There isno death penalty in Massachusetts.

Parole

The granting of parole is discretionary with the parole board. Paroleis granted based on a decision that the inmate will likely obey the lawif released. Parole eligibility is an extremely complex area of the law.In the most basic form, the following general rules apply to determine paroleeligibility (the time when a defendant is entitled to ask for consideration):

house of correction sentence - defendant must serve half of the sentence to become parole eligible.
state prison sentence - defendant must serve the minimum sentence to be parole elgible. For example, a defendant sentenced to 8-12 years must serve 8 before elgibility.

Be advised that there are many exceptions to the above general rules. Also,many defendants serving state prison sentences may be under old parole guidelinesrequiring substantially less time to be served before elgibility.
A person sentenced to life in prison for crimes other than first degreemurder may be eligible for parole after serving 15 years. Parole is notpermitted for people convicted of first degree murder, those convicted underthe Massachusetts Bartley-Fox gun law and persons convicted of certain drug-relatedoffenses.