Law Offices of James Budreau

LAW OFFICE of JAMES BUDREAU

20 PARK PLAZA, SUITE 905, BOSTON, MA 02116
PHONE (617)227-8558 FAX (617)338-9538

CRIMINAL LAW Any company or individual facing prosecution by our criminal justice system should be aware of the following basic legal principles:
Miranda	You are not obligated to speak with law enforcement regardless of whether you are a suspect or a potential witness. The Fifth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights prohibits law enforcement from compelling you to speak with them. If you are in custody they must advise you of your Miranda rights before they interrogate you: specifically they must tell you that you have a right to a lawyer and that if you say something that is incriminating it can be used against you in a court of law. Any statement you make while in custody must be voluntary and given with the knowledge that you have waived these rights. The exception to this would be if a detainee simply makes a statement without being questioned or interrogated. The best advice is to not make any statements unless and until you have consulted with a lawyer. You have the right to a lawyer pursuant to the Sixth Amendment to the United States Constitution. Law enforcement is not required to give you Miranda warnings unless you are detained or under arrest. This distinction is important since many people believe that they are required to give statements unless they are read their Miranda warnings. The reality is that no one can be compelled to be a witness against themselves or to speak with law enforcement (unless you are granted immunity by a Court) . If you are not detained or under arrest, law enforcement is not required to inform you of your right to a lawyer or your right not to incriminate yourself (referred to as Miranda warnings). If you speak to them, then this information can be used to prosecute you.
Searches	You have a right to be free from unreasonable searches and seizures. While this is a complicated area of law, the following is generally applicable. First, the government needs a warrant based upon probable cause to search your property including your vehicle, house, person, etc. If you are a company or corporation that is regulated by the state or federal government, then law enforcement can obtain an administrative search warrant which relies upon a standard which is less than probable cause. The government does not, however, need a search warrant for items that have been discarded or thrown away, i.e., garbage or trash, unless unreasonable conduct by law enforcement has caused you to discard the item. Second, the government does not need a warrant when the search is incident to an arrest or if they have probable cause to believe that a crime is occurring in the place which is searched and they do not have time to obtain a warrant. They can also perform what is called a Terry stop of your person or vehicle if they have reasonable suspicion to believe that you are actively involved in a crime. The stop and search under such circumstances must be limited to plain view observations, frisk of your person for weapons or limited searches of a vehicle or place for weapons or contraband consistent with their suspicions. In white collar and business crime cases, there are complicated issues relating to (1) accessing legal documents (transactional documents only) from your attorney's files; (2) searching for files and e-mails from your corporate computers; (3) chain of custody immunity for documents; (4) expectations of privacy regarding particular documents and areas; (5) legitimacy of administrative searches; (6) grand jury investigations; and (6) the impact of Fifth Amendment invocations upon business, etc. This list is certainly not exhaustive and the issues are case specific. Therefore, they will require a significant amount of legal research and analysis depending upon the facts. Title III searches and wiretaps are another form of search which is used to undercover business irregularities (gross administrative noncompliance), criminal conduct and conspiracies (price fixing). While most people believe that the government only employs such tactics against traditional organized crime groups, they are also used by the federal government to uncover white collar crimes such as mail fraud, price fixing, economic extortion and business racketeering violations. Whether or not a "wiretap" is unconstitutional, again, depends upon the facts, whether the government investigated other investigative alternatives and whether probable cause exists to believe that the wiretaps will uncover the specified type of criminal activity from the targets of the search.
Complaint	If a complaint is sought in the state district court, then you have a right to hire counsel and present evidence during a Clerk Magistrate's hearing unless: (a) you are charged with a felony; or (b) you were arrested as a result of the allegations. If you are entitled to a hearing, then you or your attorney can cross-examine witnesses, present witnesses and documents on your behalf and attempt to resolve the problem before a complaint actually issues. This is an important phase of the criminal process which is many times ignored by a prospective defendants. If a complaint does issue, then you will be required to litigate the criminal case before a Judge and possibly post bail. There are many options involved here which are case specific and require consultation with an attorney.
Indictment	An indictment is a mechanism used by the prosecution to formally charge a person with a crime. A grand jury is convened to hear evidence presented solely by the prosecutor. A bill or indictment is issued by the grand jury when they have concluded that there is probable cause to believe that the target of the investigation has committed a crime. The grand jury is made up of citizens from the community and they hear more than one case during the course of their sitting. The process is a secret proceeding and an indictment is issued under seal so that the public will not be aware of the results until it is filed in court.
Felonies	If your case is a felony and the state district court does not have jurisdiction (or if the District Attorney chooses to present to a Grand Jury), then the District Attorney's Office will present your case to a Grand Jury. A Grand Jury is unilaterally controlled by the District Attorney's Office and is used to issue a formal charge or criminal indictment against an individual or corporation. Once an indictment is issued, then the defendant would be presented to the Superior Court for bail. While felonies in Massachusetts are statutorily defined, the rule of thumb is that a felony is any crime where you can possibly be sentenced to a state prison versus only sentenced to a house of corrections. The maximum term that a person can be sentenced to the house of corrections in Massachusetts is two and one half years. In federal court, a felony is defined as any crime where the statute permits a sentence exceeding one year. This issue is particularly important when raised in the context the federal sentencing guidelines.
Notice: The above is a broad overview of criminal law and procedures. This information should not be relied upon in making any decisions regarding your legal rights. You should always consult with an attorney before determining what your legal rights and remedies are.