Criminal Defense FAQs

At the Yannetti Criminal Defense Law Firm, we generally advise our clients that there are three main stages of most criminal cases: (1) the “investigation and discovery” phase; (2) the “evidentiary (or substantive) motion” phase; and (3) the trial phase.

The “investigation and discovery” phase of the case begins as soon as a client retains our firm. This phase of the case is fairly self-explanatory. We “investigate” the case thoroughly – and begin to formulate the best defense available – and we try to “discover” as much as possible about the prosecutor’s case as possible. Investigating the case usually means going to the scene of the alleged crime, interviewing witnesses, locating additional witnesses and gathering as much evidence as we can independent of the prosecution. Oftentimes, areas are under surveillance by private companies or citizens and video and/or audio recordings might exist. Other times, phone/medical/business or other types of records might prove to be exculpatory evidence that could help us to defend our clients. We have been practicing criminal law for many years, but we never lose sight of the fact that our clients may have good ideas about what evidence to pursue. We consider the investigation of the case to be a collaborative effort and strive for unlimited creativity in putting together our defense.

We emphasize that our investigation of a case begins immediately whether or not charges or indictments have yet been issued. Once an actual criminal case is active in court, we are entitled to file “discovery motions,” asking the judge to order the prosecution to provide additional documentation and/or to answer our specific questions regarding their evidence.

There is usually no set schedule that we follow when investigating a case. Every case is different. Sometimes, other considerations (such as the fact that a particular client might be held in jail on bail while a case is pending) force us to hasten the process. Most times, we try to be very deliberate, to make sure that we miss nothing before moving forward with our defense. Litigating our discovery motions in court – and evaluating the responses we get – can take a couple to several court dates. So before moving forward to the next stage of the case, we may be investigating the case from a few to several months. This is all in our client’s best interests. And since we generally do not get paid by the hour (see our explanation of our flat-fee structure), there are no additional legal fees if the “investigation and discovery” phase of the case requires many months and a lot of work.

Once the investigation and discovery process is complete, it is time to go on the attack in court. Many times, prior to scheduling a criminal case for trial, we will file either a motion to suppress evidence, or a motion to dismiss. A motion to suppress evidence would allege that when they gathered evidence, the police in some way violated our client’s constitutional or other rights. For example, if the police seized drugs, guns, paperwork, clothing – anything – from our client’s house, car or any area in which he had a reasonable expectation of privacy – then we could file a motion to suppress the seized property from evidence. If such a motion is successful, the jury (or fact-finder) would never know of the existence of the seized evidence, and would decide on our client’s guilt or innocence without ever learning of that evidence.

Two other examples of evidence that could be suppressed from evidence are a witness’s identification of our client (because, for example, the police suggested in some way to the identifying witness that our client was the perpetrator) or our client’ statement to the police (because, for example, he was not voluntarily waive his Miranda rights).

A motion to dismiss the case can be based on a variety of different grounds. Sometimes the police fail to supply enough information in the police report to justify the elements of a crime. If so, that failure could give rise to a motion to dismiss the case. If the prosecutor has chosen to present the case to a grand jury and fails to elicit testimony to meet the elements of the crime, the indictments returned by the grand jury could be dismissed. There are other motions to dismiss that may be filed as a result of police or prosecutorial misconduct.

Sometimes cases are won or lost at the motion stage of a case.

The vast majority of criminal cases are resolved without going to trial. There are many reasons for this. A trial – no matter how good your lawyer or what your defense is – always carries with it certain risks. A courtroom is not math and not science. There is no formula to use in order to predict an outcome to any particular trial. No matter how prepared your lawyer is and no matter how strong your defense, it will ultimately be human beings who decide your guilt or innocence. They bring with them to a trial certain predispositions or beliefs that can make the outcome unpredictable.

The good news – from an attorney who has been practicing criminal law for over 20 years – is that I believe juries most of the time get the outcome right. So generally speaking, if you have confidence in your lawyer and you have a strong defense, taking the case to trial is an option that must be weighed heavily.

Everyone has their own sensibilities and their own tolerance for risk. Some people have very conservative outlooks and would rather take the middle ground as opposed to risking a terrific-or-horrible outcome at trial. Other people are bolder and/or tend to stand on principle, whatever the consequences. You will need to discuss these issues with your lawyer to make the choice that is best for your particular case and situation. No matter what your lawyer’s advice, it is your decision under our constitution whether to take the case to trial or to resolve it in some other fashion.

Anyone charged with a crime has the right to resolve a case at any juncture after arraignment. There are many different ways a case can be resolved, without scheduling a trial date. Of course, the prosecutor could agree to dismiss the case or file a “nolle prosequi” (which essentially means, he or she chooses not to prosecute the case). Failing that, a criminal defendant can always choose to plead guilty – although that is generally a last resort. There are interim dispositions, like a “continuance without a finding” or “pre-trial probation,” which are sometimes appealing because the case ultimately ends up being dismissed.

A continuance without a finding – or a “CWOF” – is a disposition whereby someone can admit to a criminal charge but not receive a conviction. Technically, the accused actually “admits to sufficient facts,” i.e., admits that there are sufficient facts contained in the police report for a finding of guilty. Because the person is not technically pleading guilty, however, the judge is then able to continue the case (i.e., delay the case) without a finding of guilty and place the accused on probation. If the accused successfully completes probation, he would be entitled to a dismissal of the charges when the probation ends.

It depends. If the charges are fairly serious and the prosecutor is seeking a conviction, then a continuance without a finding can be a terrific disposition for a case. If the charge is really minor and the accused has no record, oftentimes pre-trial probation (and not a continuance without a finding) is the goal.

Pre-trial probation operates like a continuance without a finding, in that the accused is placed on probation, the successful completion of which would entitle the accused to a dismissal. There are two important differences, however, between pre-trial probation and a continuance without a finding. First, to receive pre-trial probation, the accused does not have to admit and guilt or fault. Second, if the accused violates his pre-trial probation, he is entitled to go to trial. By contrast, if the accused violates his probation after having received a CWOF, he is not entitled to go to trial. He will instead face a probation surrender hearing and would be in jeopardy of receiving a conviction – or being sentenced to the house of correction.

In Massachusetts, if the police want to charge you with a misdemeanor and they do not arrest you, you will generally be entitled to a clerk’s hearing, as called a clerk magistrate’s hearing. The purpose of this hearing is for a clerk magistrate (or assistant clerk magistrate) to determine if there is probable cause to believe that you committed a criminal offense. If so, the magistrate has the power to charge you with the offense and schedule the case for arraignment before a judge.

Probable cause essentially means that it is more likely than not that you committed a crime. This is a very low standard in the criminal justice system. Essentially, if someone simply says that you did something, you could be charged with having done it. The police do not need to call any eyewitnesses during a clerk’s hearing. Sometimes, the police send an officer who knows nothing about the case to simply read the police report to the magistrate.

When potential clients ask me this question over the phone, I usually respond the same way: You do not need to hire me or my firm, but you would be foolish to attend a clerk’s hearing without an attorney. At a clerk’s hearing, your attorney can speak for you. An experienced attorney will be able to “read” what is going on at the clerk’s hearing by following what is said, how it is said, how the clerk magistrate is reacting, etc. It does not matter how smart or confident you are, if you are in danger of being charged with a crime, it makes much more sense to have an attorney speak for you.

You are certainly free to represent yourself at a clerk’s hearing. There are potential pitfalls and dangers, however, of which you should be aware. A bedrock principle of our criminal justice system is that every citizen has the right to remain silent and refrain from incriminating himself. Anytime you say anything to the police – outside of court or in a court hearing – your words could later be used to prosecute you. This is true even if you intend to testify that you’re innocent. Additionally, unless you are experienced at clerk’s hearings, you may not realize the effect that your words would have on a particular magistrate or police officer. I have seen unrepresented people talk themselves into getting charged with a crime, when they could have avoided that fate by having retained a competent attorney.

If a complaint issues against you as a result of a clerk’s hearing, you will be summoned to court for an arraignment before a judge. This is a crucial stage of the court process. Prior to arraignment, the potential criminal charge is not a public record at the courthouse. Once you are arraigned on the charge, however, it becomes a public record. It also is entered on your criminal record and will be visible on standard background checks. The difference between winning and losing at a clerk’s hearing is a big deal.

If a complaint is denied at a clerk’s hearing, then it will never appear on a background check. In fact, by law, one year after the complaint is denied, the file is literally shredded at the courthouse.

In order to charge someone with a crime and prosecutor that person in Superior Court – in other works, in order to subject that person to increased penalties and a potential state-prison sentence – the prosecutor must proceed by way of an indictment. An indictment is a formal charge issued by a grand jury.

A grand jury consists of citizens called for jury duty, but they do not hear just one case. They also do not decide guilt or innocence. Instead, they generally sit for several days each week, hear multiple cases per day, and merely decide if there is enough evidence (“probable cause”) for a charge to be brought. Saliently, the grand jury only hears one side of the case. The accused is not entitled to be present. He is not entitled to testify. He is not entitled to call witnesses. He is not entitled to present any evidence at all. In fact, since the grand jury meets in secret, the accused is not even entitled to know that the grand jury is investigating him!

It is very easy for a prosecutor to indict someone. Many would say that it is too easy. If someone makes an accusation of a crime against someone else, a grand jury could indict based upon that bald accusation alone. We therefore place a lot of trust in our prosecutors to weed out false accusations, to use their resources wisely and to be fair and just, consistent with their ethical obligations. That trust can certainly be misplaced, in certain situations and cases.