Protecting Your Rights in a Criminal Case

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Monday, March 26, 2012

Leonardo Angiulo, GoLocalWorcester Legal Expert

When I first pick up a criminal defense case, the two questions that I ask myself are: a) what’s the charge and b) what evidence do they have. If they do have evidence against you, the next question I need to answer for myself is whether they got that evidence the right way. And when I say the right way, what I mean is that the Federal and State Constitutions operate as a leash on the behavior of law enforcement officers. If the officers collect evidence using tactics or other behavior that violate a citizen’s constitutional rights, the courts can pull back on that leash by excluding the evidence from trial. Please note, I am not saying police officers go out of their way to violate people’s rights. What I am saying is that sometimes an investigation is not conducted as required by law. When those occasions occur, it is the Defense Attorney’s job to take action through a motion to suppress.

 So, how does it happen? It starts with the Attorney conducting discovery and investigation during the pretrial process. Often times, there is material evidence relevant to police behavior that won’t be included in a police report. There are things like turret tapes (which are recordings of police radio transmissions during an incident), 911 calls, booking videos and sometimes cruiser videos that can make a difference. Remember, if the question is who did what and when, you need to get to evidence that records events as they happen.

 Let’s take the example of a motion to suppress statements. One of the fundamental requirements for the Commonwealth to introduce an admission at trial is the suspect must have been afforded their Miranda rights. A Defense Attorney is going to review the evidence gathered during the pretrial process and know it backwards and forwards. So, what if the investigating officer states during the motion hearing that he had a suspect sign the Miranda card when he gave the suspect his warnings. At that same hearing, an attorney could introduce the video showing the warnings being given only after the interrogation takes place and the suspect is being placed under arrest. What we have there is a reason why any statements made at the station should be excluded from evidence at trial.

Sometimes, if a piece of evidence gets excluded, the prosecutor won’t have any other way to prove the charges and a case will be dismissed. The classic example is when your house gets hit with a search warrant. The police go in, grab the kilo of cocaine, and you get charged with trafficking in narcotics. During the course of your defense, your attorney might file a motion to suppress the results of the search alleging the application for a search warrant fails to meet the constitutional requirements of probable cause. If the judge agrees, they essentially say the warrant is no good and, therefore, the police should not have been in your home and so anything they seized while there must be excluded from trial against you. Case dismissed.

Other times when one piece of evidence gets excluded the case goes on but the Commonwealth is hard pressed to secure a conviction. Let’s say you are accused of operating under the influence, you get arrested and brought to the station. While at the station you take a breath test. What people might not know is that in order for a breath test to be admitted at trial the administering officer is supposed to observe you for 15 minutes and make sure you don’t burp, chew gum or introduce anything else into your mouth. You need this observation period to ensure the breath sample isn’t tainted.

In this hypothetical, the breath test gets suppressed because the evidence collected shows that the police didn’t do the test the right way. The only evidence at trial will be the officer’s observations rather than the results of the breath test. Just because this one piece is out of evidence doesn’t mean the Commonwealth can’t go to trial, it just makes securing a conviction that much harder because they don’t have admissible evidence that proves the case beyond a reasonable doubt.

Motions to suppress are filed by attorneys when there is an intersection of fact and law that they want a judge to resolve in the defendant’s favor. A judge has to listen to all the evidence and make a decision about how the law applies to the facts of a particular case. In some cases, there are no witnesses and in some cases witnesses are essential. We learned in elementary school that the Constitution provides a series of checks and balances between the branches of government. The Executive Branch enforces the laws. The Judiciary interprets the laws. Pretrial criminal motions are a direct example of how this works. If the police enter your house on a warrant, you can be sure that the validity of that warrant will be tested in the courtroom. Importantly, in every criminal case, motions are the way to ensure people’s rights get protected.  

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected] or through the firm's website at www.gskandglaw.com 

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