Massachusetts Legal Developments Blog

Massachusetts Legal Developments Blog

Massachusetts Court Declines to Extend 2nd Amendment Protections to Stun Guns

The Supreme Judicial Court of Massachusetts (SJC) recently decided a case in which it upheld a state law prohibiting the possession of electronic weapons in most circumstances. The case, known as Commonwealth v. Caetano, involved a woman who was suspected of shoplifting who was found in possession of stun gun which she indicated that she had in order to protect herself from a violent person. Upon being accused of violating the law prohibiting the possession of stun guns, her attorney argued at the trial court level that the statute is in violation of the 2nd Amendment of the United States Constitution, which protects the right to bear arms. The trial court disagreed, and Caetano appealed to the Supreme Judicial Court of Massachusetts.

In its analysis, the SJC determined that a stun gun is not within the class of arms that fall under 2nd Amendment protections. In making its determination, the SJC relied heavily on established United States Supreme Court precedent that established limitations on the right to bear arms. For example, case law has established that 2nd Amendment protections only reach the types of arms that were in common use at the time the Amendment was adopted and does not operate to invalidate laws that prohibit the possession of dangerous and unusual weapons. The Court concluded in its opinion that stun guns were in fact “dangerous,” “unusual,” and not in use at the time of the enactment of the 2nd Amendment and upheld the law.

Weapons violations can have significant penalties

The law prohibiting the possession of stun guns is one of myriad Massachusetts laws that apply to firearms and other weapons. Individuals who are found to be in violation of state laws that prohibit or regulate the use or possession of firearms or other weapons can often be subject to significant legal consequences. These may include the following:


  • Probation
  • Significant fines
  • Limitations on your right to possess firearms
  • Jail time


In addition, the existence of a conviction for a weapons-related offense can have significant collateral consequences as well. In some cases, it may make it difficult to obtain employment or lease an apartment. As a result, it is important for people accused of offenses related to the possession of weapons to mount the strongest legal defense possible. Fortunately, in many cases, a lawyer familiar with defending individuals accused of these types of offenses can mitigate the immediate and potential long-term consequences of accusations of criminal misconduct.

Contact a Boston criminal defense attorney today to schedule a free consultation

Anyone facing a criminal case in Massachusetts should retain competent legal counsel as soon as possible. Often, the assistance of an experienced Boston criminal defense attorney can have a significant impact on the outcome of a case and may be able to mitigate the serious legal consequences you are likely facing. Attorney Edward Molari is committed to protecting the legal rights of individuals accused of crimes and handles a wide variety of criminal matters in the Boston area. To schedule a free initial consultation with Mr. Molari, please call our office today at 617-942-1532.

Changes for Eyewitness Identification in MA (Part One)

Eyewitness identification has long been a source of controversy in criminal cases due to the potential for witness error due to many factors. Such factors may include: witness memory, suggestiveness of the identification situation, distance and lighting at the time of observation, cross-ethnic or cross-racial identification challenges, focus on a weapon, and more. These factors are extremely important to take into consideration since The Innocence Project reports that misidentification by witnesses is the primary cause of wrongful conviction in the United States, and was a substantial factor in 72 percent of convictions that the Project has successfully overturned through DNA evidence. As you can see, eyewitness identification evidence is often unreliable and should always be carefully examined by a defense attorney and excluded whenever possible.

Types of Eyewitness Identification Evidence

Regardless of the questionability of the results, several different types of witness identification are regularly used as evidence in criminal trials. These include the following:

  • Picture identification -- Police present a witness with several photographs, either sequentially or all at once, of different individuals, one of whom is the suspect.

  • Lineup -- A witness is brought into the police station to anonymously view a group of individuals that includes the suspect and several decoys that should look similar in size and appearance to the suspect.

  • Showup -- Police bring a witness to view only the suspect without any decoys. Showups usually occur right after apprehension of the suspect and often at the scene of the crime, and evidence resulting from showups is often disfavored because of the inherent suggestiveness of the situation. For this reason, courts in Massachusetts should only admit showup identification evidence with good reason.

Not only are witness identifications often unreliable, but they are also often obtained in ways that violate a suspect’s constitutional rights. Such methods include those that are highly suggestive as to the identity of the suspect or denying the suspect representation of an attorney at a lineup. In such situations, a defense attorney can have any evidence related to the witness identification excluded from trial.

In-Court Identifications

Another type of identification used at criminal trial is the in-court identification, in which an individual on the witness stand is asked whether the person they observed committing the crime is present in the room. As you can imagine, this type of identification can significantly influence a jury even though it may not be accurate. Accuracy of in-court identifications in front of a jury has also been long called into question, and courts have regularly ruled on the requirements necessary for in-court to be admissible. For example, the in-court identification has to be based on some type of independent source.

It is extraordinarily important for a qualified criminal defense attorney to stay apprised of court rulings and changes in law regarding facets of criminal cases such as eyewitness identification. Part two of this article will explain new changes in eyewitness identification law recently issued by the Massachusetts Supreme Judicial Court (SJC).

If you have been arrested or charged with a crime, please contact the law office of experienced Boston criminal defense attorney Edward R. Molari for help today.



Changes for Eyewitness Identification in MA (Part Two)

Previously on this blog, we discussed the various types of eyewitness identification evidence that may be presented in a criminal trial, as well as why the accuracy of this type of evidence should often be questioned and excluded from a criminal trial. Because eyewitness identification so commonly leads to wrongful conviction, the courts review the legitimacy of such evidence and reevaluate the standards that dictate when identification evidence should be admitted or excluded. The Massachusetts Supreme Judicial Court (SLC) recently issued a ruling in Commonwealth v. Crayton changing the law in our state regarding the admissibility of in-court witness identification, and the following is a brief overview of these new developments.

Background of the case

In this case, the defendant, Walter Crayton, faced charges of child pornography. Two middle school students had been at the public library and saw a man viewing images of naked or almost naked children on a library computer. They reported the man to a library employee and described him as “short, white, and bald, with a little beard and eyeglasses.” Though the employee did not personally see the man on the computer, he called the police the next time he saw a person fitting the description given by the students and the police subsequently arrested the defendant.

The two students were never asked by law enforcement to identify the defendant in a lineup or picture identification after the first and only time they saw him at the library. Two years later, however, at trial, the prosecutor put each of the students on the stand and asked them to identify the man from the library. Both students pointed out the defendant and the defendant was later convicted of child pornography.

Changes in the law

On appeal, the SJC ruled that, if no identification took place pre-trial, any subsequent in-court identification will be treated like a showup. As discussed in Part One of this blog, a showup occurs when a witness is brought to the scene of the crime or location where the suspect was apprehended and asked to identify the suspect. A showup is inherently suggestive since the suspect is alone, with no decoys, and is usually in handcuffs. For this reason, courts have ruled that evidence of a showup identification is only admitted when there is “good reason” to use that type of identification method instead of a more reliable method.

The SJC noted that in-court identifications may be just as suggestive, if not more so, than showups since the witness may assume that the prosecutor and police have completed sufficient investigation to believe that the defendant is the correct perpetrator. For this reason, if there was no pre-trial identification on which to base an in-court ID, the in-court identification should be treated as a showup and should only be admitted when there is “good reason” demonstrated to use this type of evidence.

Contact an experienced Boston criminal defense lawyer for assistance

If you are facing any type of criminal charges, you always want to make sure you are represented by an attorney who has a thorough understanding of Massachusetts criminal laws, including any new changes or developments issued by the courts or legislature. Please do not hesitate to call the law office of Edward R. Molari at (617) 942-1532 to discuss how we can help you today.

Super Bowl Sunday DUIs Can Have Serious Consequences

According to NBC, the 2015 Super Bowl drew a record-setting 114.4 million viewers this year. With the New England Patriots playing in (and winning) the game this year, it is a safe presumption that the rate of viewership in Boston was particularly high. For many football fans, watching the Super Bowl involves doing so with others at Super Bowl parties hosted in private homes, as well at various sports bars around the city. Generally, these celebrations involve food and drinks, including alcohol. In fact, for some fans, Super Bowl Sunday is an unofficial holiday that involves an all-day celebration, starting the moment they wake up. As a result, many football fans have the potential to overindulge in both food and alcohol on Super Bowl Sunday, sometimes to the point of intoxication. Law enforcement is aware of this fact, and actively looks for people who have had an excessive amount to drink and pose a danger to themselves and others on the road by driving under the influence of alcohol (DUI).

A DUI conviction in Massachusetts can have serious consequences, even for a first time offense. As a result anyone who was arrested for DUI this Super Bowl Sunday or at any other time should discuss her or his options with an experienced Boston criminal defense lawyer as soon as possible. To schedule a consultation with Massachusetts attorney Edward R. Molari, call our office today at (617) 942-1532.

Mayor and Police Chief Commissioner Encourage Responsible Drinking

Recognizing the potential issues that the Super Bowl may create in the city, Mayor Walsh, joined by Police Commissioner William Evans and others, issued a press release prior to the February 1st game calling on Boston residents to, “celebrate in a respectful and responsible manner.” In addition, the statement indicated that the Boston Police Department would have additional officers on duty focusing specifically for DUI enforcement and encouraged fans to use public transportation.

Massachusetts DUIs can have Serious Consequences

Undoubtedly, there were drivers on Super Bowl Sunday who failed to heed the Mayor’s advice and chose to drive after having consumed alcohol. In some cases, these drivers may have earnestly believed that their blood alcohol content was not over the legal limit when they chose to drive. In others, a driver may have simply chosen to take a chance by getting behind the wheel. Finally, sometimes, law enforcement erroneously believes that a person is intoxicated when she or he is not. Regardless of the circumstances under which a person is accused of driving under the influence, she or he can face serious legal consequences in the event of a conviction. Some of these include:

·         Significant fines

·         Probation

·         The mandatory installation of an ignition interlock device

·         Drug and alcohol counseling

·         Jail time

As a result, it is important for anyone facing a Massachusetts DUI charge to retain an experienced attorney as soon as possible. There are many potential defenses that an attorney may be able to raise in your case, some of which could potentially have the entire case dismissed. At the law office of Edward R. Molari, we are committed to achieving the best possible result for every individual client and will make sure your rights are properly protected at every stage of your case. To schedule a free consultation with Mr. Molari, call our office today at (617) 942-1532.



What are Potential Defenses in a Massachusetts Criminal Case?

Being accused of a crime is a frightening and humiliating experience and can significantly impact almost every aspect of your life. The potential consequences of a criminal conviction can include probation, fines, restitution, and even jail time. In addition, the collateral consequences of a criminal record can affect you for years, potentially keeping your from securing employment or obtain certain professional licenses. Fortunately, there are a number of ways that a Boston criminal defense attorney can help mitigate or even completely avoid any penalties or other issues that may arise from criminal accusations. In many cases, the early intervention of an attorney can help ensure that your legal rights are protected and can prevent a the filing of a formal case.

Criminal Defenses

A skilled criminal defense attorney is familiar with a variety legal defenses that may be available in your case. Because every case is different, it is important for people who are accused of a crime to have the circumstances of their arrest and any attendant investigation thoroughly reviewed by an experienced lawyer. Possible defenses available include the following:

Alibi - An alibi defense involves introducing evidence that the accused was somewhere else at the time was committed, making impossible for him or her to be guilty;

Self-Defense - Self-defense is a defense that is available to certain defendants who are accused of violent crimes. It involves introducing evidence that indicates that the violence used by the defendant was used in an attempt to defend him or herself from another person's violent attack;

4th Amendment Violations - The 4th Amendment of the United States Constitution prohibits law enforcement and other state actors from conducting unreasonable searches and seizures. Warrantless searches and seizures are presumed to be unreasonable under the law, provided that they do not fall within one of the various exceptions to the rule. In many cases, a 4th Amendment violation will result in the exclusion of illegally obtained evidence from any court proceedings, often substantially weakening the state's case;

Reasonable Doubt - In our system of criminal justice, the state must establish every element of a crime beyond a reasonable doubt. This is the highest burden of proof imposed in the American legal system, and can be very difficult to meet. A skilled defense lawyer can often introduce additional evidence or impeach the credibility of the prosecution's witnesses or evidence to the extent that it creates doubt in the mind of the jury, necessitating an acquittal;

Contact a Boston Criminal Defense Attorney Today to Schedule a Free Consultation

Anyone facing a criminal case in the Boston area should talk to an attorney as soon as possible. To schedule a free consultation with criminal defense lawyer Edward R. Molari, call our office today at (617) 942-1532.


What is the Standardized Field Sobriety Test in Massachusetts?

When a law enforcement officer suspects that a driver has been drinking or is under the influence of drugs or alcohol, there are a variety techniques for gathering evidence in support of their assertion. These techniques can include objective measures of the level of intoxicants in person's bloodstream, which can be determined by employing chemical testing of a person's blood, breath, or urine. Before these techniques are employed, however, an officer generally makes a determination as to a person's sobriety based on more subjective observations, including a driver's appearance and behavior.

In an attempt to standardize the way that law enforcement determines whether a driver is intoxicated, the National Highway Traffic Safety Administration (NHTSA) and the Southern California Research Institute developed a series of tests known collectively as the Standardized Field Sobriety Test (SFST). The SFST is made up of three tests which are designed to help law enforcement determine whether a driver is intoxicated. The three tests that make up the SFST are explained below.

The Horizontal Gaze Nystagmus - The horizontal gaze nystagmus test involves observing involuntary twitching of the eye muscles that occur when the eyes move from left to right. Research indicates that this twitching occurs at lesser angles in people who are intoxicated. In order to administer the test, the officer asks the subject to track an object as he or she moves it across the subject's field of vision and observes the movement of the subject's eyes.

The One-Leg Stand - The one leg stand test is administered by asking the driver to stand with one foot raised off of the ground while he or she counts aloud by thousands. The officer administering the test looks for both cognitive and physical signs of impairment, such as incorrect counting or issues with balance.

The Walk-and-Turn - In the walk-and-turn test, the officer administering the test directs the subject to walk nine paces, heel-to-toe, along a straight line, then turn around and return the same way. During the test, the officer looks for signs of impairment, including using arms to maintain balance, starting the test before the instructions are finished, taking the wrong number of steps, and not touching heel-to-toe.

The SFST is Not Always Accurate

Even if a law enforcement officer determines that you are intoxicated based on your performance on the SFST, there are several ways that an experienced defense attorney can challenge the validity of that determination. For example, a defense lawyer may introduce evidence that the officer was not properly trained in administering the test or introduce video evidence that contradicts the officer's version of events. In most cases, the assistance of an attorney can result in a much better outcome in DUI cases, potentially avoiding certain serious legal consequences.

Contact a Massachusetts Criminal Defense Attorney Today to Schedule a Free Consultation

Criminal defense lawyer Edward Molari is dedicated to helping people facing criminal accusations. Call our office today at (617) 942-1532.  


Attorney Edward Molari Representing West Roxbury Man Accused of Kidnapping

Kidnapping and other crimes against a person are extremely serious offenses under Massachusetts law. Sometimes, these incidents involve other crimes as well, such as the unauthorized taking of property or the use or sale of illegal or controlled substances. While these crimes are consequential legal matters individually, they can result in even more serious criminal consequences when they occur as part of the same incident or event. A judge will often consider a defendant accused of multiple crimes particularly dangerous, and impose a particularly harsh sentence if he or she is adjudicated guilty. Similarly, people accused of these types of criminal incidents may be denied bond prior standing trial, or the judge may set the bond particularly high.

A client represented by Boston criminal defense attorney Edward Molari found himself in exactly this situation. According to a report filed by the Taunton Gazette, 28-year-old Adynew Alves of West Roxbury is accused of kidnapping, armed assault, and assault and battery in connection with an incident involving a woman who he claims stole three bottles of Percoset, a prescription pain killer. According to the Bristol County District Attorney Erin Aiello, Alves took the victim to the home of a co-defendant and accused her of stealing Percoset. He then forced the victim into the truck of the car and drove away. Aiello further indicated that multiple witnesses saw the victim escape from the trunk of a moving vehicle on southbound Route 24. Alves’s bond was set at $500,000, and he is due in court on November 4, 2014 for a probable cause hearing.

Fortunately for people accused of crimes, there are often a variety of defenses available that can cast doubt on one’s guilt. For example, in Alves’s case, Mr. Molari pointed out that he has no prior convictions, and that no firearm was recovered in connection with the alleged kidnapping. As this is an ongoing case, the defense or defenses raised remain to be seen. Generally speaking, some of the more commonly raised defenses in criminal cases include the following:

· Alibi – An alibi defense involves arguing that the defendant was in a different place at the time that the alleged crime was committed, making impossible for the defendant commit the crime;

· Duress – The defense of duress arises when a defendant introduces evidence that he or she was compelled to commit a crime because of someone else’s threats or coercion;

· Self-defense – Under Massachusetts law, people may use force to protect themselves from others if they reasonably believe that they were or were about to be attacked and their safety was in danger. The defendant must have done everything reasonable in the circumstances to avoid physical combat before resorting to the use of force in self-defense, and the force used must not be more than is reasonably necessary under the circumstances;

· Mistaken identity – As one would imagine, the defense of mistaken identity involves introducing evidence that someone other than the defendant committed the alleged crime.

Contact a Massachusetts Criminal Defense Attorney Today for a Free Consultation

Criminal defense lawyer Edward Molari is dedicated to helping people accused of crimes in and around the Boston area. To schedule a free consultation, call our office today at (617) 942-1532.


The Potential Consequences of a Massachusetts Sex Offense Conviction

Sex offenses are viewed with particular contempt by the general public as well as the Massachusetts criminal justice system. Regardless of whether it is fair or not, many people who are even accused of sex crimes spend the rest of their lives treated with suspicion or mistrust. In case a person accused of a sex crime is convicted, he or she may be subjected to significant legal penalties, as well as other serious collateral consequences. Consequently, it is of the utmost importance that anyone accused of a sex crime in Massachusetts retain an experienced criminal defense attorney immediately. Not only can an attorney help ensure your rights are protected in any legal proceedings that may occur, but he or she can also manage the flow of information and members of the press should your case become highly publicized.

Criminal Penalties Associated with Massachusetts Sex Crimes

The criminal penalties associated with a sex offense in Massachusetts are extremely serious depending on the circumstances. For example, if the alleged victim is a child, or there was violence or the threat of violence involved in the alleged offense, the consequences can be particularly severe. Some of the criminal penalties include:

· Probation;

· Lengthy prison sentences;

· GPS monitoring;

· Court-ordered counseling or therapy.

These and other penalties a court may impose are very harsh, so it is important to discuss your options with a lawyer as soon as possible.

Registration as a Sex Offender

One of the most significant and life-altering consequences of a sex offense conviction is the requirement to register with the state as a sex offender. Some of offenses that will require one to register as sex offender include:

· Rape;

· Rape and abuse of a child;

· Drugging persons for sexual intercourse;

· Inducing a minor into prostitution;

· Kidnapping of a child;

· Aggravated rape;

· Possession of child pornography;

· Incestuous marriage or intercourse;

· Assault with intent to commit rape;

· Rape and abuse of a child.

More information about the types of offenses that result in a registration requirement can be found at the Official Website of the Executive Office of Public Safety and Security.

For certain offenders who are required to register, information regarding one’s name, address, and offense are easily accessible to the general public on the Massachusetts sex offender registry. Anyone with an internet connection can access this database, including friends, family, potential employers, and potential romantic partners. The requirement to register can last anywhere from 20 years to the rest of an offender’s life. As a result, the collateral consequences associated with a sex offense can affect a person for years after any sentence or probation ends. Inclusion on the sex offender registry can make it extremely difficult to fully participate in society, and may affect where you are able to live and work. As a result, it is extremely important for anyone accused of a sex offense to take all steps possible to avoid a conviction.

Contact a Massachusetts Criminal Defense Attorney Today to Schedule a Free Consultation

If you are facing allegations of a sex offense or any other criminal matter in Massachusetts, you should retain an attorney immediately. To schedule a free consultation with criminal defense lawyer Edward R. Molari, call our office today at (617) 942-1532.


Free Speech or Criminal Harassment? Massachusetts Court to Decide


The Supreme Judicial Court of Massachusetts heard arguments this month in an appeal of a couple’s convictions for criminal harassment. Gail Johnson was convicted of criminal harassment and spent six months in jail. Her husband, William Johnson, was convicted of falsely reporting abuse to the Department of Family Services and criminal harassment, and was imprisoned for eighteen months. Both appealed their convictions, claiming their conduct was protected by the right to free speech under the First Amendment to the United States Constitution.

The Conduct of the Williams Couple

The Williams couple maintained a long-standing, on-going dispute with their neighbors, Jim and Bernadette Lyons. In 2008, the Williamses perpetrated a number of hoaxes against their neighbors. They allegedly did the following with the help of a third party:

· Posted false advertisements on Craigslist for free golf carts for the taking from the Lyons yard. drawing numerous strangers to the Lyons’ yard and house;

· Posted false ads for a Harley Davidson motorcycle that caused numerous people to call the Lyons house late at night;

· Signed Jim Lyons up to donate his body to science;

· Posted comments on various websites using Jim Lyons’ identity;

· Signed Jim Lyons up for membership in various organizations, including those involving magic, transsexuals, bisexuals, and nudists;

· Sent the Lyons a letter that appeared to be from a former employee, accusing Jim of sexual molestation, and threatening criminal charges;

· Sent the Lyons an email from an anonymous sender with the statement, “Remember, if you aren’t miserable, I ain’t happy!’’ and included social security numbers and other personal information;

· Called the Department of Family Services and reported that Jim Lyons physically abused his son, which caused a child protection worker to go to their house to investigate the claim.

In Massachusetts, criminal harassment charges may apply if a person intentionally engages in repeated behavior over time that causes the victim—and would cause a reasonable person—alarm and substantial emotional distress. The Williamses both claim that their actions were not threatening or fighting words, and were therefore protected by the First Amendment right to free speech.

We will keep an eye on the Supreme Court’s decision in this case, and will keep you updated on any new interpretations of Massachusetts criminal law.

Contact an Experienced Massachusetts Criminal Defense Attorney for Assistance

If you are facing criminal charges, never risk a wrongful conviction by attempting to represent yourself. You should always seek out an experienced attorney to defend you in court. Edward R. Molari is an experienced criminal defense attorney who provides the highest quality of representation for clients in the Boston and Attleboro areas. Please do not hesitate to call today for help with your case.



Massachusetts Court Lowers Standard of Proof for Sealing Criminal Records

Many people, perhaps more than you think, have criminal records of some sort. Whether the record concerns a college indiscretion involving too much alcohol or an arrest resulting from participation in a political protest, the existence of a criminal record can pose significant challenges. These challenges are often referred to as “collateral consequences,” and can include the following kinds of issues:

· Difficulty obtaining certain types of employment;

· Denial or loss of a professional license;

· Denial of admission to academic programs;

· Harsher sentencing in future cases;

· Damage to your reputation in the community.

Courts recognize the need to balance the public’s right to access information about what occurs in open court against an individual’s right to privacy. The privacy right is particularly salient when people are arrested but never convicted of a crime. This may occur in a situation where a prosecutor determines a case is not worth pursuing or extenuating circumstances justified a defendant’s behavior. In other cases, a defendant may enter into a diversionary program where they must comply with certain conditions in return for the prosecutor dropping the case against them. The latter example often occurs with a first-time “operating while intoxicated” (OUI) offender, who are frequently offered plea deals whereby they must surrender their licenses and complete rehabilitative programs. If an offender successfully complete the program, the OUI case against them is dropped.

The Supreme Judicial Court (SJC) of Massachusetts recently recognized the importance of allowing defendants whose cases are case dismissed to seal their criminal records and avoid any further consequences of that case. The previous standard required a defendant to demonstrate that the value of sealing his or her record outweighs the value of the record staying open and available to society. It also required the defendant to specify the harm he or she would suffer if the record stayed open.

Courts must now examine the following factors when deciding whether to seal a record:

· The disadvantages suffered by the defendant if the record is not sealed;

· Evidence of the defendant’s rehabilitation, or other signs the defendant could overcome the disadvantages once the record is sealed;

· Evidence of the offense that may indicate the defendant’s future success or recidivism;

· The amount of time that passed since the dismissal and the reason for that disposition.

In setting out this new test, the SJC expressly declined to follow the standard set out by the First Circuit Court of Appeals, which requires that the defendant show a “compelling interest” to seal a record.

Contact a Massachusetts Criminal Defense Attorney for Help Today

If a criminal charge against you was dismissed, or your case was entered nolle prosequi, and you wish to have your criminal record sealed, contact a knowledgeable Massachusetts criminal defense lawyer for assistance as soon as possible. Attorney Edward R. Molari is highly experienced in the area of criminal defense, and stays up to date on changing standards and laws in Massachusetts. Mr. Molari will help to seal your criminal record and avoid collateral consequences stemming from your arrest. Contact our office today at (617) 942-1532 to schedule a free consultation.