About Probation

“I’ll just get probation. . . ”

Some people, especially young people, go to court to face criminal charges with the idea “I’m only going to get probation. . . “

There are many cases in which  probation  is a great outcome.  It can often help people get a new start after the trauma of a criminal charge.  “Probation” means that as punishment, you must obey certain conditions and stay out of trouble for a specified period of time.  If you do so successfully, then at the end of the time period your punishment is over, and you are free to go on with your life without government intrusion.

Conditions might include drug testing, AA or NA meeting attendance, counseling, a curfew, an order to stay away from certain people or places, or other requirements depending upon your case.  Often you are required to check in periodically with a Probation Officer.

But, while many first-time offenders are sentenced to probation, it is not the “free ride” many, especially young people, think it is.

It is not unusual for a person to violate what are often very demanding terms. Even “technical” violations, like missing a curfew or not notifying the Probation Department of your new home or work address, can cause serious problems.

What you can expect when you are on probation.

There are two kinds of probation, supervised and unsupervised. Supervised means that you will have to have some regular contact with a Probation Officer.  Unsupervised means that you will not have to have any contact with anyone. Unsupervised probation is most often used in very minor cases in which there are no issues of alcohol or drug abuse, mental health, or the like.

Standard Conditions.

If you are placed on probation there are standard conditions that you must follow. These standard conditions apply to every person who is placed on probation:

  • Pay a monthly fee. The fee is $65 a month for supervised probation and $50 a month for unsupervised. You can ask the judge for a community service alternative if you are unable to pay the monthly probation fee;
  • Obey all court orders and local, state and federal laws;
  • Report to your probation officer at such time and place as he or she requires;
  • Immediately notify the probation officer of any change in address or employer;
  • Do not leave the state of Massachusetts without express permission.

Additional Conditions.

In addition to the standard conditions, other conditions could be imposed depending upon the nature of the case.  These include:

  • Pay Restitution;
  • Random drug testing;
  • Random breathalyzer testing;
  • Stay away from, and have no contact with, the victim in the case;
  • Mental health evaluation;
  • Mental health treatment;
  • GPS monitoring;
  • GPS exclusion zones, areas where you are not allowed to go;
  • Home confinement via Electronic Monitoring;
  • Remian in school;
  • Obtain gainful employment and stay employed.

A violation of any of these conditions, if they are imposed in your case, could result in your probation being revoked and a jail sentence being imposed on you.

Programs.

The Court may also order you to complete one or more treatment or educational programs:

  • Batterer’s Intervention Program, for domestic violence offenses;
  • Anger management;
  • Substance abuse evaluation;
  • Outpatient substance abuse treatment;
  • Inpatient substance abuse treatment;
  • Prostitution Prevention Programs;
  • Level 3: office of community corrections (see below);
  • Level 4: office of community corrections (see below);
  • OCC Drug and Alcohol Testing Based on Color Code System;
  • DUI first offender program;
  • DUI second offender program;
  • Sex offender treatment.

The OCC level 3 program is a very intensive program that is run by the sheriff’s office. The purpose of the program is to provide intermediate supervision of chronic substance abusers who have a history of criminal offenses. The OCC program provides services including substance abuse treatment, drug testing, health education, and job development and placement. It generally includes at least weekly, and sometimes more frequent, visits to the office of community corrections to take a drug test and attend programs.  OCC level 3 lasts at least 90 days. OCC level three are not available for sex offenders or probationers that have gun charges.

The OCC level 4 is the same program as OCC level 3, but you will be under electronic monitoring. This means you will be under house arrest at home, you will have to wear a GPS ankle bracelet, and will only be allowed out of the house to attend OCC.

Should you be ordered to enter and complete any of these programs, you will be on a very tight leash.  If you miss even one meeting, drug test, or appointment, you could be summoned back to court, your probation could be revoked, and you could be given a jail sentence, or more conditions and programs could be added to your probation requirements.

What if I Don’t Do What I Have Been Ordered to Do?

If you are on probation and have received notice of a surrender hearing, or believe you might be accused of violating a condition, don’t wait. Get an experienced lawyer right now.  The earlier your lawyer can get involved, the better the change for a good outcome.

Probation Violations.

If you are placed on probation and you violate one of its terms, or if you are charged with a new criminal offense, you may find yourself punished for violating probation before you know what has happened to you. You will be charged with a violation of probation, and you will have to appear at a “Probation Surrender Hearing.” At the hearing, the Probation Officer will act as the prosecutor. During the “Surrender” process, a judge will make two decisions:

  1. Did you violate the terms of your probation? And, if he decides you did,
  2. What will your punishment be?

IMPORTANT: A Probation Surrender is NOT like a trial. You do not have all the same rights.  There is no jury. Your fate will often be decided by the same judge that placed you on probation in the first place. The Probation Department only has to prove that you violated the terms of probation by a “preponderance of the evidence”, NOT beyond a reasonable doubt. Hearsay is admissible in many cases at a probation surrender hearing, which means that the evidence used to prove the violation may be only a police report or drug test result.

The Initial Surrender Hearing.

In general, there are two hearings involved when a person is accused of violating the terms of their probation. At the first hearing (the “initial surrender hearing”), you will be brought before the court and formally notified of the alleged violations. At that hearing, your probation officer will typically summarize the allegations against you for the judge, who will determine whether or not there is probable cause to believe that you did indeed violate a term of your probation.

One important issue to be resolved at this initial surrender hearing is whether you will be held in jail without bail until the second (or “final”) surrender hearing. If your probation officer recommends that you be held — and if the judge finds you to be a danger — then you could be taken in custody at the end of your initial surrender hearing. If this happens, you will be held in jail until the Final Surrender Hearing, which could be up to a week later. Needless to say, it behooves you to retain an experienced and competent attorney at this crucial juncture in the case.

The Final Surrender Hearing.

At the second hearing (the “final surrender hearing”), your probation officer will likely be prepared to have witnesses called to testify against you, if they are necessary. Your attorney would have a chance to cross-examine those witnesses, and he may call witnesses on your behalf as well. If there is strong evidence that you did indeed violate a term of your probation, the focus may instead shift to punishment. Sometimes, it might be in your best interests to “stipulate” (agree) to a violation and negotiate a compromise with your probation officer regarding what should happen to you as a result.

As we said above, the violation does not have to be proven beyond a reasonable doubt. Many of the familiar constitutional rights do not apply to probation violation proceedings. Sometimes hearsay is admissible against you, which means there are no live witnesses to cross-examine, only reports or letters accusing you.

If a judge finds that it is “more likely than not” that you violated some term of probation or committed a new offense, then the judge can, immediately, change the sentence from probation to incarceration. That means jail.

What’s more, if the probation violation is a new criminal charge, you can be sentenced to jail for the probation violation, and it won’t matter if later you are found not guilty of the charge that formed the basis for the violation. Once you are sentenced for violating probation, you will have to serve that entire sentence, regardless of what happens with the new charge.

So. . .

Probation, especially for young people, is not a “free ride.” It can be onerous and can set you up for failure and more severe punishment.

It can be a great way to resolve a difficult situation, and many people are successful probationers and go on with their lives. But it is important to know what you are getting into, what could happen if you make a mistake, and what your other options are.

If you are going to court in Massachusetts to face a criminal charge, even if you think, “I’ll just get probation,” don’t go alone. You need an experienced criminal defense lawyer to defend you and your rights, advise you about your options, and to ensure that you are not being set up for serious consequences down the road.

How to Dress and Act At Court

How you dress and act at court can have an effect on the outcome of your case. The way you behave and carry yourself in court makes an impression on the people who have power over your case. Above all, you want to appear respectful of the court and confident in yourself and your case. How you look and act in court will make an impression on the judge, jury and prosecutor.

In General.

  • Be on time to court. Leave home early. Being late calls attention to you in a negative way, and in court, you don’t want ANY negative attention.
  • When you are in front of the judge, let your lawyer do the talking. Do not interrupt, do not try to address the judge yourself. If you have a question, ask your lawyer, quietly.
  • When you are waiting for your case to be called, don’t draw attention to yourself. Don’t talk to the other people in court. If you need to get your lawyer’s attention, ask one of the court officers to tell him or her.
  • Whatever happens, it is important that you don’t show any negative reaction to what the judge or prosecutor says. No facial expressions, no sighs or muttered comments, no gestures.  This won’t help, and it will probably hurt, your cause.
  • From the time you drive into the parking lot until you leave, and everywhere you go while you are in the building, act as if the judge or jurors are watching. They may be.

Appearance.

If you are going to court, the best advice is simple: look like you are going to a job interview. Conservative, respectful and responsible are what you are going for. Your appearance can make a big difference with a prosecutor, judge or jury.  It isn’t fair, I know.  It just is.

For men:

  • Wear a shirt with a collar, a jacket and a tie. White or blue shirt; blue, gray or black jacket and pants. Best of all, wear a conservative suit and tie.
  • No jeans. No shorts. No sneakers. Wear dress shoes.
  • Get a haircut before court.  Seriously.
  • Shave. Seriously.
  • Minimize jewelry. A wedding ring and a watch are acceptable. Any more should be left at home.
  • If you have tattoos, cover them if possible.  I know, its not fair.  It just is.

For women:

  • Dress conservatively. Conservative colors. No short skirts, no shorts.
  • Shoes should also be conservative, and heels should not be too high.
  • Jewelry should be kept to a minimum. Wedding or engagement ring, watch, earrings, and one other piece, at the most. Earrings should not dangle far below the ear.
  • No revealing or sheer blouses or tops.  No revealing or sheer pants or skirts.
  • If you have tattoos, cover them if possible. I know, its not fair. It just is.

 

Stages of a Criminal Case in Massachusetts

Stages Of A Criminal Case in Massachusetts State Court

Criminal cases in Massachusetts go through several procedural stages. During the course of your case you will hear the lawyers and judge refer to these terms. The descriptions in this list are general and meant for the layperson. There are numerous rules, statutes and cases that relate to the terms used below; your lawyer knows about those (hopefully). You don’t have to.courtroom

Complaint — A Criminal Complaint is the document that officially charges you with a crime.  it lists the offenses you are alleged to have committed, and the penalties they carry. It is not evidence against you, it is simply the way the case gets started in court.  The “docket number” at the top of the complaint is the number the court will use to identify that case.

Indictment — If the charge is a felony, and if the government wishes to pursue the case in the Superior Court, the prosecutor must go before a grand jury and prove “probable cause” that a crime was committed and that you are the person who committed it. The grand jury will vote on whether it is more likely than not that a crime was committed, and that you committed it.  If they vote “yes”, then an Indictment will issue. This is the document that takes the place of a Complaint in the Superior Court.  The grand jury proceeding almost always happen without you knowing about it.

Show-Cause Hearing — If the charge is a misdemeanor or a felony that can stay in District Court, and if no police officer witnessed the offense, then the probable cause determination will be made before a Clerk-Magistrate in an informal hearing. Usually, these take place in a conference room at the District Court, and the only people in the room are the magistrate,a police officer, and you — and your lawyer if you have one.

Arraignment — This is your first appearance before a judge, when you are officially notified of the charges against you. This is when you will receive copies of the Complaint or Indictment.

Bail Hearing — At a bail hearing, it will be decided whether you will be released on your own recognizance, or held on bail. If you are held on bail, you will not be released from custody until someone posts with the court the amount of money set by the judge at the bail hearing.

Dangerousness Hearing — Also known as a “58A” hearing, this is when the prosecutor asks the judge to have you held in custody without any bail, so that, as a practical matter, you cannot get out until the case is resolved. A request for a dangerousness hearing is usually made at arraignment. The hearing must be held within seven days.

Pretrial Hearing — This is the first court date after the arraignment. Lots of things can happen at this hearing, depending upon your case and your lawyer’s strategy. Depending upon the particular court, there could well be more than one pretrial hearing date.

Pretrial Conference — This is a meeting between the prosecutor and your lawyer at which they agree, as far as they can, upon the details of the trial, should there be one. They discuss things like the number and identity of witnesses for each side, any special legal issues that have to be decided by the judge, and whether any substantive motions are going to be filed, such as motions to dismiss or suppress. In Superior Court, the pretrial conference is often scheduled by the court. In District Court, the pretrial conference happens during another scheduled court date, often a pretrial hearing.

Compliance Date — If the judge orders the prosecutor to turn information over to the defense, he will establish a compliance date by which the information must be supplied. Often the “discovery” is supplied on the compliance date itself. The compliance date can be an in-court date, when the parties have to appear before the judge an confirm that the information was turned over, or out-of- court, where the defense has the burden of bringing the case back in front of the judge if the information is not received.

Election Date — The court date scheduled for the election of a trial date. Even if you have no intention of going to trial, you may have an election date scheduled. In the District Court, the Compliance and Elections Dates are often combined, and the case is scheduled for “C & E” on a particular day.

Motion Date — The date on which the court has scheduled the hearing of a motion in your case.

Status Date — At any point in the case after arraignment, your case could be scheduled for a status date, which essentially means that everyone is waiting for something to happen. Status dates are scheduled when the parties are awaiting receipt of medical records, the outcome of some hearing or trial, a psychiatric evaluation, or one of many other events.

Trial Date — The date upon which you are scheduled to go to trial. Most district courts will have several, if not many cases scheduled for trial on the same day. Most of those cases will be resolved on that day without trial, some may be continued (rescheduled) for various reasons, and usually at least one will go to trial before a jury. Some people think that because many cases are scheduled for their trial date, they will not really have to go to trial that day. Those are usually the people who do go to trial that day, and are unprepared. If your trial is scheduled in the Superior Court, your case will go to trial that day, unless you decide to change your plea.

Do I need a lawyer?

“I’ve been charged with a crime. Do I need a lawyer?”

If you have to ask this question, the answer is likely “yes.” One of the realities of the criminal system is that events that you know are simple or minor may not be so simple or minor in the eyes of the police, prosecutors or court.  Many, many people have arrived at court to address what they believe is a minor matter only to find out that an event or statement has been misconstrued and the case is now much more serious than they believed.

Just as frequently, someone goes in to court and resolves what they think is a minor matter, only to find out that it has serious ramifications they didn’t know about.

Criminal charges can affect areas of your life you may not expect:

  • professional licensure suspensions or loss
  • restrictions to your ability to attend or participate in your child’s school events
  • loss of current employment
  • impairment of future employment
  • drivers license suspensions
  • loss of commercial driver’s licence
  • auto insurance rate increases
  • ineligibility for, or loss of, financial aid for school
  • loss of insurance coverage
  • loss of license to possess or carry firearms
  • sex offender, DNA or domestic violence registration
  • civil commitment as a sexually dangerous person

The severity of your circumstances can be determined only with the aid of an experienced criminal defense lawyer, and only after he or she is familiar with the facts of your case and learns about who you are.

If you’ve never been involved with the criminal justice system before, being charged with a crime can be a terrifying experience. Before you have a chance to even understand what’s happening, you can be forced to make critical decisions in a situation that you may know nothing about. And making the wrong decision can have implications for the rest of your life.

If you are wondering if you need a lawyer, you probably do.

Should I Talk to the Police?

 NO!

Not without a lawyer, or at least not until you have consulted with one.

You have an absolute right to remain silent and to have a lawyer present during any questioning.

Many people sitting in prison today would be free if they had exercised their right to keep their mouths shut.

Do not talk to the police, even if they ask you to. Make no statement and sign nothing.  If the police think that you will talk, they may try to interview you. They will tell you, and you may believe, that this is your chance to tell your story. It isn’t.

What it is, however, your chance to get yourself in more trouble. The police are not going to clear you of suspicion. Their role is to gather evidence to convict you of a crime.

  • If they ask you to call and talk to them on the phone, don’t. 
  • If they ask you to come down to the station to “clear some things up,” don’t. 
  • If they say they want to give you a chance to tell your side of the story, don’t. 

Consult a lawyer first.

When the police ask you questions, the first—and only—words out of your mouth should be: “I do not wish to speak with you. I won’t answer any questions without my lawyer.”

The police regularly use deceptive tactics and lie to people under investigation. In many cases such tactics are perfectly legal. They say that if you tell them your side of the story, they will not arrest you. That is usually a lie, or sometimes it means they won’t arrest you at that moment, but will later. It is a regular police tactic used in the hope that those accused will make a statement which can later be used against them in court.

The police will try to trick you into talking to them without a lawyer by saying things like:

  • “If you didn’t do it, you don’t need a lawyer.”
  • “Only guilty people ask for a lawyer.”
  • “This is your only chance to tell your side of the story.”
  • “If you get a lawyer now, we will never hear your side of the story.”

These are lies the police frequently tell in hopes of getting you to give up your right to consult with a lawyer and to have that lawyer present with you during questioning. If the police can trick you into talking without a lawyer, they will take advantage of your limited understanding of the law.

Whatever you are going to say at that moment you can say later, if your lawyer believes it will help.  Most likely, whatever you are going to say at that moment is not going to help.  Because the police usually aren’t really looking for the other side of the story.  They get one side of the story, and they consider their work finished.

Whether you should speak with the police or prosecutor at some point is an extremely important and complex decision, one that can only be made with the advice of competent legal counsel.

How Much Will A Criminal Defense Lawyer Cost?

 

For a lot of people, this is the big question.


The answer is, it depends.  Get used to that answer, because you will hear it in response to many of your questions about a criminal case. 


The cost of a criminal defense lawyer depends upon:

  • The severity of the charge and the potential sentence, 
  • The facts of the case,
  • The city/town/area where the case is located,
  • The court the case is in,
  • The extent of your criminal record, if you have one,
  • Your goals for the case,
  • The experience and reputation of the lawyer.


There are other factors that could enter into the equation, but these are the main factors.  Obviously, a murder case in New York City is going to cost more to defend than shoplifting in rural Vermont, for example.  But in between those extremes, it can be hard to understand how lawyer fees are set, and why.

When you are talking about costs for criminal defense, there are some standard concepts that apply, and we will talk about those below. 

But before we get there, 


Here is the simple truth: A Good Criminal Defense Lawyer is Expensive.

A good criminal defense lawyer is going to cost a lot of money.  Get comfortable with that, or at least accept it.  He or she might be able to work with you on payment terms, and might be flexible in some ways, but this is not the time or place to be bargain hunting.

Why are criminal defense fees expensive?

  • Criminal cases are hard. You have the power and resources of the government against you. Most people assume that if someone is arrested or charged, he or she must be guilty, and should be punished.
  • In the courtroom, your lawyer is going to be your only friend. No one else will be looking out for your interests. Its all on that lawyer. 
  • The stakes are high.  Your freedom, your livelihood, your family.  Your future.  
  • Criminal defense is highly specialized.  The law is complex.  The skills needed to  effectively advocate for you are very specialized and are only gained by experience and practice.  Lots of lawyers try it.  Only some last and get good at it.  Only a few ever get really good at it. 

Depending upon your case, a good lawyer could cost between $5000 and $50,000 or more.  That’s the reality.


What else do you need to know about criminal defense fees?  Here are the basics.


Most good criminal defense lawyers charge flat fees.

With a flat fee, you know the cost of the entire case up front, no matter the outcome, the length, or the procedural path the case takes. Usually the fee is paid at the beginning of the case, in full. Sometimes, depending on the case, the lawyer, and the relationship with the client, some payment arrangement is agreed to. A few lawyers regularly offer payment plans t make their fees more manageable.

The fee secures representation from the point that the lawyer is retained (usually right after charges are filed or someone is arrested) until disposition of the case at the trial court level. That includes investigation, all court appearances, any necessary pretrial motions, hearings, and trial.  

There is no discount if the lawyer obtains a dismissal of the charges fairly quickly, or negotiates some other favorable disposition, nor is there an extra trial fee if you decide to exercise your constitutional right to a trial.

The flat fee ensures that the client knows exactly how much the fees will be. And once the fee is paid, critical decisions about how the case will be defended can be made without consideration of cost; pursuing another motion or going to trial instead of accepting a plea offer will not increase the cost, and will not require more money be paid.


Which means, most good criminal defense lawyers don’t sell time. (No hourly fees or bills.)

The legend is that Abraham Lincoln said “an attorney’s time is his stock in trade.” In some legal specialties that may still hold true.  But good criminal defense lawyers don’t sell people time.  Clients pay for legal knowledge, experience, judgment, advice, research and writing skills, advocacy and trial skills, and a lot of other skills and services they may or may not ever see in use, but are critical to the outcome of the case.

Defending a person in a criminal case – any criminal case – is a complex endeavor. It can be done on the cheap, perhaps, but not well.  Clients are paying for value, for the experience, skill, and knowledge of the lawyer.  

 

Some final points.

First:  A bit of free advice: You are strongly cautioned to avoid choosing a lawyer whose main attribute is charging low fees or being the most inexpensive lawyer in town. As with most everything else in life, you get what you pay for.  If the lawyer makes his living off of volume, you can’t be sure you are getting the attention and care that your case requires, and that you deserve.

Second:  Price shopping among many lawyers isn’t usually helpful to you.  Look for a lawyer you connect with, who listens to you and takes the time to answer your questions.  Yes, ask about cost, that’s important. But, except for some very minor types of traffic cases, a quality lawyer usually would not and should not quote you a fee over the phone without hearing about the facts of the case, your goals, and your circumstances. It takes a more extensive conversation and consideration of many factors unique to your case before a lawyer has enough information to set an appropriate fee.

Lastly:  “One size” does not “fit all” when it comes to setting legal fees. Two different people, charged with the exact same offense, may have dramatically different circumstances. The facts of one case may be very different from those of the other. One of the people may have an extensive criminal record that will impact the case, the other person may not. The court or jurisdiction where the cases are brought may be very different. The fee in the more complex case could be several times the cost of the simpler case.  


Costs and Expenses beyond the lawyer’s fee.


Investigators.

Many cases require the assistance of a private investigator.  Your lawyer can’t go interview witnesses by himself. If he does, he runs the risk of becoming a witness himself.  Here is how that can happen:

Your lawyer goes to interview Bill, who is a witness to an argument you had with your neighbor.  Bill tells your lawyer that he saw the whole thing and is certain that you never punched your neighbor.

At trial, Bill testifies differently. He says that he is pretty sure you did punch your neighbor, because he saw your neighbor bending over holding his stomach, and besides, Bill says, he didn’t really see the whole argument anyway.

Your lawyer would like to cross examine Bill and introduce to the jury Bill’s earlier statement in which he said he saw the whole thing and was certain that you didn’t punch your neighbor.  But the only witness to Bill’s first statement is your lawyer, because he went and spoke with Bill alone.  Your lawyer can’t be both the lawyer and a witness.  He won’t be able to introduce that prior statement that is so helpful to you.  That evidence, that might have raised reasonable doubt all by itself, is lost.

So, in many cases the services of an investigator are critical, and a good investigator is worth his weight in gold to a criminal defense lawyer.

But investigators aren’t free.  You will have to pay for his services, and that cost is usually not included in the flat fee for your lawyer’s services.

Experts.

Some criminal cases involve specialized issues that can only be challenged by experts.  Your defense may require the assistance of experts in fingerprints, accident reconstruction, accounting, or even DNA.

Again, the cost for these professionals will be in addition to the flat fee you have paid for your lawyer.

Other costs.

There are other costs that could arise in the course of your defense.  Trial or motion exhibits might have to be created, or there may be unusual travel involved for your lawyer.  These kinds of expenses are usually in addition to the flat fee for representation.

It is important that you know how costs and expenses outside of the flat fee will be handled.  Your lawyer should be able to answer that question easily, and he should be able to discuss with you the general likelihood of incurring additional expenses before you hire him.  Unexpected needs may arise during the course of the case, certainly, so he can’t guarantee that there will not be any additional costs, but he should be able to give you a reasonable prediction.


The Bottom Line.

You just got arrested, or got a summons or subpoena, or got a call from a police officer who “wants to talk with you.” This is not the time to go it alone. 

These days, people are charged with crimes for a bewildering array of reasons, many times for actions they had no idea were criminal. Penalties for criminal convictions now reach far beyond the jail sentence or probation you will serve. Your ability to keep your driver’s license, get a job, get or keep a professional license, attend your child’s school events, or to do any of a myriad of other important things, can be destroyed. Generally, a criminal conviction can stay on your record for life.

Criminal charges never come at a good time, but when they do come, your defense has to be your first priority. This is the rainy day, the rock and the hard place you were warned about. No one budgets for criminal defense. But when the time comes, your defense is the most important thing in your life.