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Boston Criminal Defense Law Blog

Grounds for appealing a criminal conviction or sentence

A previous blog post discussed the process of appealing a criminal conviction or sentence. If the trial court error involved the defendant's constitutional rights, the conviction would be subject to automatic reversal. Otherwise, a reversal will only be granted to defendants who can show that a harmful error occurred which affected their substantial rights. Harmless errors, ones that did not contribute to the guilty verdict, will not justify a reversal.

There are four main grounds for appeal based on harmful errors - the lower court made a plain error, there is insufficient weight of evidence, defendant had ineffective assistance of counsel and there was an abuse of discretion. Plain errors or defects form the basis for a successful appeal when there was an error or defect affecting the defendant's substantial rights which was not pointed out at trial. Plain error often occurs when judges miscalculate sentences; in that situation, the case would be returned to the trial court for re-sentencing.

When can you ask a leading question in a criminal case?

Most of us have seen some sort of crime show or movie that portrays a trial taking place in a courtroom. The victim is testifying and the prosecutor is asking her questions. To drive home a point, he asks, “Jennifer, isn’t it true that the defendant had been stalking you for months?” “Yes,” she yells, “Months and months!”

While this makes for good television drama, it is not allowed in real-life and a good defense attorney would shout, “Objection!” before Jennifer gets a change to answer.

Appealing a criminal conviction or sentence in Massachusetts

Once defendants have been convicted, they have the right to appeal on certain grounds. In Massachusetts, a defendant may appeal in several circumstances including when new evidence was discovered that could affect the outcome of the case, evidence was improperly admitted, incorrect legal rulings or jury instructions were given or other legal errors were made that significantly impacted the outcome of the case. Generally, direct appeals are first made to the Appeals Court, after which they may proceed to the Supreme Judicial Court for further appellate review. However, in the case of a first-degree murder conviction, the case will proceed directly to the SJC.

When appealing a conviction or sentence, a defendant is asking a higher court to review the decision of the lower court and determine if there was legal error. An appellate court judge will generally defer to a trial court judge's ruling, however there are certain types of errors that may cause an appellate court to overturn a guilty verdict or sentence.

How defense attorneys help strengthen defendants’ stories

People who are charged with a criminal offense need to work together with their attorney to develop a strong plan of defense. Part of that defense strategy includes going through the defendant’s story.

It’s important to have a strong story that can help defend against charges the defendant is facing. These are three traits that a defense attorney may help a defendant use to create a stronger story.

Legal defenses to burglary and robbery

A previous blog post discussed the potential penalties for burglary and robbery and the differences between the two. Those accused of burglary or robbery should also know the legal defenses that may be asserted in response to the accusation of such a serious crime.

Legal defenses may be claimed when facing charges of either burglary or robbery such as innocence, lack of intent and entrapment. First, defendants may claim that they are innocent of the crime. The prosecution bears the burden of proving that the defendant committed the crime beyond a reasonable doubt. Therefore, a defendant may cast reasonable doubt upon the prosecution's case and avoid conviction.

What is the difference between burglary and robbery?

Burglary and robbery both often involve theft, but there are several differences between the two crimes. Burglary involves the unlawful entry into a structure whereas robbery does not. Robbery involves the use of force or fear upon another person to obtain property whereas burglary does not. Both crimes carry varying penalties upon conviction depending on the circumstances of the crime.

Burglary is defined as the breaking and entering of a dwelling house at nighttime with the intent to commit a felony therein. A burglar can unlawfully enter a dwelling by actual breaking and entering, which involves physical force, or by constructive breaking and entering, which involves verbal threats, blackmail or fraud. The burglar must also have the specific intention to commit a felony once inside. Most states will categorize the burglary as either first or second degree depending upon whether the intent to commit the crime formed before or after breaking and entering.

Why an attorney is not just convenient, it’s your right

The Boston Globe reported on Monday, that an armed intruder has broken into Dick’s Sporting Goods at the Square One Mall in Saugus. Police are currently on the scene.

When the suspect is apprehended, he will be read his rights and offered the services of an attorney if he cannot afford one. This isn’t just for his convenience, it’s his right under the United States Constitution. But why is it important?

Defending a charge of manslaughter or murder

Manslaughter and murder are two of the most serious charges that individuals face in Massachusetts. Manslaughter, or the killing of a person without premeditation, can result in legal consequences of up to 20 years in prison. Murder, or the unlawful and premeditated killing of a person, can lead to life in prison upon conviction. Defending a manslaughter or a murder charge requires a powerful defense and the assistance of a knowledgeable, skilled and experienced attorney.

The lawyers at J.W. Carney, Jr. and Associates are experienced in assisting those facing serious allegations. Our firm has a record of success in representing those charged with manslaughter and obtaining acquittals and county facility sentences as low as six months. We have also successfully represented those charged with murder. Several clients were released on bail after indictment and, in one case, our lead criminal defense lawyer managed to persuade the District Attorney to withdraw a murder charge.

How does social media affect online child pornography laws?

Child pornography laws exist on both the federal and state level. Violations carry serious penalties upon conviction; even first-time offenders may be sentenced to up to 30 years in prison. However, while there are long-established laws making it illegal to possess, produce or distribute child pornography, social media is making it more difficult to determine what exactly constitutes possession, production or distribution.

Many states are now extending the application of child pornography laws to the minors that the laws intend to protect. The selfie phenomenon has led to minors taking sexually explicit photos of themselves and sharing them on social media. Established laws do not account for this possibility, but many federal and state courts are leaning toward a broad application of online child pornography laws. Therefore, if a minor takes a nude selfie and sends it to someone online, both the sender and receiver may be subject to prosecution for child pornography.

Legal defenses to kidnapping charges

Massachusetts law outlines many scenarios that may be considered kidnapping, each requiring different facts to be established and elements to be proven. Accordingly, the legal defenses to a charge of kidnapping will depend on the nature and circumstances of the alleged crime.

A previous blog post discussed some of the different actions that constitute kidnapping in Massachusetts and the potential legal consequences for each upon conviction. This post will examine some of the legal defenses that can reduce penalties or mitigate punishment for those accused.

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