In Massachusetts the spirit of restraining orders must be obeyed as well as the letter of the order.

Until recently I advised clients that they could not be convicted of violation of a restraining order in Massachusetts unless three elements were proven:

1.  A clear order

2. A clear violation; and

3.  An ability to comply with the order.

The first two elements are fairly clear. The third element covers situations like a chance encounter in a store or a restaurant. A chance encounter should not result in criminal conviction. This still seems to be the status of the law.  However, a series of recent cases changed the element of a clear order. Now, a person subject to a restraining order must obey the clear language of the order as well as the intent of the order.

In the case of Commonwealth v Telcinord a woman was ordered to stay away from her husband and to stay 50 feet away from him. She followed him in her car as he drove his car. Presumably she stayed the requisite 50 feet away. She was convicted of violating the restraining order because following in her car was a violation of the order to stay away. The defendant's behavior by the way she drove her car indicated that she wanted her husband to know she was following him and that she intended to confront him.

It appears that engaging in behavior that is intended to cause the protected person to become aware of the whereabouts of the defendant is a violation of the restraining order. A restraining order is intended to insulate the protected person from the presence of the defendant or from any form of unauthorized contact. Any intentional contact that causes the protected person to see the defendant may be considered to be a violation of the order.

In Commonwealth v Goldman, the Court explained what “stay away” in a restraining order means. Stay away

prohibits a defendant from (1) crossing the residence's property line, (2) engaging in conduct that intrudes directly into the residence, and (3) coming within sufficient proximity to the property line that he would be able to abuse, contact, or harass a protected person if that person were on the property or entering or leaving it. A protected person need not actually be present for such a violation of the order to occur.

Stay away can no longer be interpreted as a set distance. It is a concept that the person should stay far enough away from the protected person and their home so that the protected person can go about their activities without coming into contact with the Defendant. Truly accidental contact won't be a crime but contact in the vicinity of a protected person's home or work is likely to result in a conviction for violation of a restraining order.

If you are subject to a restraining order I recommend that you contact a lawyer familiar with restraining orders so that you understand what you are permitted to do and what you are not permitted to do.

Massachusetts allows conditional guilty pleas.

In criminal cases defendants often bring motions to suppress evidence (exclude evidence from trial) based on arguments that the evidence was seized in violation of defendant's constitutional rights. These motions typically argue that evidence was seized in violation of constitutional rights against unreasonable search and seizure or a confession was obtained in violation of defendant's right against self incrimination. The motion is filed in the trial court before the case goes to trial.

Previously, if the trial judge denied the motion to suppress, the defendant had a very difficult choice: either take the case to trial and preserve the right to appeal this ruling or accept a favorable plea agreement from the District Attorney which means that the defendant pleads guilty and gives up the right to appeal the ruling on the motion to dismiss. The Massachusetts Supreme Judicial Court just changed this by allowing the Defendant to make a conditional plea of guilty.

A conditional plea of guilty allows a defendant to plead guilty to take advantage of an offer of settlement from the District Attorney and still have the right to appeal the trial judge's ruling on the motion to suppress. If the appeals court rules that the evidence should have been suppressed, then the guilty plea will be vacated and the defendant will be able to have his case go to trial or have new discussions with the District Attorney for a different plea agreement. In many cases, without the evidence that can not be introduced the District Attorney may choose to drop the prosecution and dismiss the criminal case.

Allowing conditional guilty pleas is likely to cause more defendants to plead guilty thereby reducing the cost of defending the case for defendants and reducing the number of cases that go to trial. It is expected that the judicial system will save money and resources as well. If you have a criminal case you should consult an experienced criminal defense attorney who can give advice on conditional guilty pleas.

When asking for a lawyer be clear in your request.

In a case in Louisiana a suspect in a case said the following: “if y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.” There seems to be a dispute about the exact verbiage as he later claimed that he said “lawyer, Dawg” and not lawyer dog.

If a person in police custody asks for a lawyer the police are prohibited from asking any questions until a lawyer representing the suspect is present. This right is part of the “Miranda rights” which protect suspects from incriminating due to undue pressure from the police. Upon a request for a lawyer, police must stop all questioning of a suspect. In order to obtain this protection, the request cannot be ambiguios or equivocal. Unless it is a clear request it won't stop the police from questioning the suspect. If the police think a person might be requesting a lawyer instead of thinking that he did request a lawyer then they can question the suspect.

In the Louisiana case the police continued their interrogation and used the suspect's answers to convict him of a crime. At trial and on appeal, his lawyer claimed that he requsted the police get him a lawyer. The courts did not view this as a clear, unequivocable request for a lawyer and allowed his incriminating statements to be used to convict him.

When a person in police custody requests a lawyer they should do so clearly and without conditions. They should not use slang or street language. They should never combine a request for a lawyer with an insult to the police. Anytime someone is questioned by the police they should have a lawyer present.  

Massachusetts stores can't impose shoplifting fines without a court order

Judge Douglas Stoddard, a District Court Judge in Natick, Mass. has enjoined Macy's from demanding that shoplifters pay a $500.00 civil fine to Macy's when they are caught by the store.  Massachusetts General Laws Chapter 231, Section 85R-1/2 states that shoplifters ". . . shall be liable in tort to the merchant for damages for not less than fifty nor more than five hundred dollars. . ."  Many stores claim that this law means that a shoplifter owes the store $500.00 if they are caught by the store.  The stores are wrong.  The law means that if the store sues shoplifters in court a judge may award civil damages of up to $500.00.  Macy's has no right to collect $500.00 until after a Judge awarded them damages.

Macy's had a practice of detaining shoplifters and telling them that "if they paid the $500 fine, they would not be civilly sued in court and some said they were told they would not be arrested."  In some cases, people paid the $500.00 and were then turned over to the police who arrested them.  When the cases came before Natick District Court, Judge Stoddard learned of the practices of the store and issued an injunction against the store.The Judge stated “I’m not sure if I have the legal authority to do what I’m doing, but I believe I do have the power to right what’s wrong.  I don’t think I’m asking for much.”

What Macy's was doing was not only wrong, it was criminal.  Massachusetts is a common law state.  This means that crimes exist that were created by English judges before the American Revolution.  Some of these crimes are still in existence.  Macy's actions constituted the common law crimes of compounding a crime and misprision of a crime.  In addition, their actions also constituted the statutory crime of extortion.  

Compounding a crime occurs when a person enters into  an agreement for one person to pay money in exchange for an agreement to not prosecute the crime.  In Massachusetts only the District Attorney or the Attorney General can agree that a crime won't be prosecuted.  Any other person who agrees that a crime won't be prosecuted is committing a criminal act.  If Macy's accepts money and agrees that a shoplifter won't be prosecuted then Macy's has committed the crime of compounding.

If Macy's, having agreed that a crime shall not be reported to the police fails to report the crime then they have committed the crime of misprision of a crime.  Every citizen has the duty to report crimes to the government.  In our society we don't prosecute people who merely fail to report crimes.  However, if a person has received money and then fails to report the crime then they may be prosecuted for misprision.  Compounding is the crime of making the agreement not to prosecute.  Misprision is the act of failing to report the crime.

When Macy's asked for money in exchange for not prosecuting the shoplifter, they committed the crime of extortion.  The elements of extortion are (1) a malicious threat (2) made to a named person (3) to accuse someone of a crime or to injure someone's person or property (4) with intent to extort money. Mass.G.L. c. 265, § 25.  This means that Macy's committed three separate and distinct criminal acts.  When they asked form money the committed extortion.  When they agree to not prosecute they committed compounding of a crime.  If they took the money and then failed to report the shoplifter they committed the crime of misprision.  

When settling a civil case that has the potential for criminal charges, parties want to eliminate the ability to be criminally prosecuted.  This can't be done without violating criminal laws.  When I have encountered this problem in my practice I have agreed to a "gag order" as part of the settlement.  A gag order typically states that neither party can talk about the facts of the case or the settlement without creating civil penalties.  However, I always include language that states that the gag order shall not apply if there is a duty to disclose the information including, but not limited to, disclosure to law enforcement officials.  This exception means that the gag order does not violate any criminal laws.  An attorney who understands the common law crimes should always include language of this nature.  

Macy's practice of demanding a civil penalty without a judgment from a court should cease immediately.  Since the cost of going to court is more than the potential $500.00 recovery this means that it is unlikely that any shoplifters will ever pay the civil penalty.  However, it also means that Macy's will stop violating criminal laws.   

Cyber harassment can be very expensive.

The internet and social media has created new opportunities for people to harass and harm others. One person who used the internet to harass a neighbor found it very expensive as a Massachusetts court has issued a judgment of 4.8 million dollars for cyber harassment and another court found him and his wife guilty of criminal harassment and sentenced them to jail.

Two neighbors, Johnson and Lyons had a real estate dispute about Johnson's plans to build a 4,500 square foot house. Johnson and his wife used the internet to harass Lyons. He placed a false ad on craigslist which falsely stated that he had a deceased son. The craiglist ads were designed to have people respond late at night so that it interfered with the Lyons's sleep. Johnson caused emails and letters to be sent falsely alleging that Lyons had molested his own son and an underage employee. Johnson subscribed Lyons to a number of organizations including organizations for nudists and gays.  Lyons sued Johnson for intentional infliction of emotional distress. After a jury trial, Lyons was awarded $4.8 million dollars in damages. The Johnsons were also prosecuted for criminal charges of harassment. This resulted in convictions for both Johnson and his wife and they were both sentenced to jail terms.

It is safe to assume that not every cyber harassment case will result in multi-million dollar verdicts and jail terms. However, this case shows that existing laws can address criminal behavior that uses new technology. If you are a victim of cyber harassment you should go to the police. You may also find it helpful to consult a Massachusetts attorney to advice you about your rights and how to protect yourself.  

Death and Facebook. The Legacy Feature.

A friend of mine died and his wife posted his death and funeral arrangements on his Facebook page. In this era of social media, Facebook is a natural and expected forum to notify friends and relatives of such information. Unfortunately, use of his Facebook account was unauthorized by Facebook and constituted criminal behaviour under both Massachusetts and Federal law. At the time of his death, his wife had no other way to use his Facebook account to provide notice. Since that time, Facebook has changed its policies and now has a Legacy feature for memorization of Facebook pages after death.

Facebook's Terms of Service states: “You will not share your password let anyone else access your account, or do anything else that might jeopardize the security of your account.” In other words, the only authorized user of a Facebook page is the registered owner. There is no exception for family members after death. Authorization is important because both Massachusetts and Federal law make it a crime for any person who is not an authorized user to access a computer. Since using Facebook means that a user accesses Facebook's computer, any person who is not authorized by Facebook and uses another person's account is committing a crime. Massachusetts General Laws chapter 266, section120F punishes unauthorized computer access by up to thirty days in jail and a one thousand dollar fine. United States Code Title 18Section 1030 punishes unauthorized computer access by up to twenty years in prison and fines. Permission to use a Facebook account by the registered owner of the account is still a crime because Facebook doesn't allow such permission. A widow posting information about her husband's death is unauthorized and a criminal act.

Facebook has recognized people's desires to use Facebook accounts after death and has created a new feature called Legacy. During a person's life, they can designate a person as a “Legacy Contact.” This person will have limited rights to access a Facebook account after a person dies. The Legacy Contact can post a final message and Memorialize the account. Memorialization freezes the account, indicates that the owner died and may allow others to share memories on the account.

Every individual with a Facebook account should consider a legacy contact. This should become part of estate planning and become just as routine as writing a will or making pre-death funeral arrangements. Unauthorized computer access can have serious criminal consequences. A lawyer can help understand how to avoid violating the law and still enjoy social media.

Criminal Law and Double Jeopardy by Michael S. Berg, guest blogger

One commonly misunderstood concept in criminal law is that of double jeopardy. The Fifth Amendment to the United States Constitution states that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." However, this is narrowly read and there are some exceptions, and it applies only to cases where a final decision has been entered.

First, it only applies to the same sovereign, meaning the same government. So the same state cannot put you on trial for the same conduct more than once. However, you can be put on trial by two different states or by a state and the federal government. So, say you're accused of running a scam from your house in Florida over the internet. The government claims that you convinced a woman in Georgia to send you money. Even if you're acquitted in Florida, Georgia can still try you without violating double jeopardy, because it's a separate state. The federal government can also try you for any federal crimes you may have committed at this point. 

Double jeopardy also does not apply when you win an appeal. Appealing is when you ask a higher court to review the procedure or decisions of the court that had your trial. If the appeals court agrees with you, they will send your case back to the trial court with instructions on what they need to change. In this case, the court is allowed to have another trial.

The court is also permitted to retry you if there was a hung jury or if the judge had to declare a mistrial. A hung jury means the jury couldn't come to an agreement. Because there must be a legal decision, the case will be retried with a new jury. A mistrial means something went so wrong that it compromised the entire trial. For example, in some high profile cases the jury is sequestered and not allowed to speak with anyone about the case or access any news or media. If a juror violates this rule, the judge may declare a mistrial. Since the trial wasn't completed, there will generally be a new trial.

This article on Double Jeopardy is a guest post from Michael S. Berg , a San Diego based Certified Specialist in Criminal Law who focuses on criminal cases.

In Massachusetts, search warrants are required to obtain Cell Phone Location Data.

If you watch police shows on tv you have seen episodes where the police go to their computer and pull up a suspect's cell phone's number and then access cell tower information and show the physical location of the suspect. This scenario is somewhat different from real life in that law enforcement needs a court order to obtain this information. However, under theFederal Stored Communications Act (SCA) 28 U.S.C. § 2701, it is very easy for law enforcement to obtain this information. If the police show a reasonable suspicion, then under the SCA, they can obtain a court order to obtain access to cell phone location information (CSLI). As of February 18, 2014, in Massachusetts, police need more than reasonable suspicion. They need probable cause. This is the same standard that police need to obtain a search warrant to search a person's home.

In the case of Commonwealthv. Augustine, 467 Mass. 230 (2014), police, investigating a murder, sought and obtained an order for production of CSLI under the Federal SCA to "possibly include or exclude" the defendant "as a suspect.” The Court ruled that police must obtain a search warrant based on probable cause to obtain CSLI.

CSLI data is collected and maintained by cell phone companies in their ordinary course of conducting business. As a third party, the police may request the company to produce the information and, if they comply, would not violate any defendant's rights. However, companies don't have to produce this information as the SCA provides that companies can require court orders before producing this information. When police seek a court order, then the government is compelling the company to provide this information. Under these circumstances, the government is intruding into the private lives and expectations of people and need a warrant based on probable cause.

The Massachusetts court recognized that cell phones have become "an indispensable part of modern [American] life. It is also clear that cell phones act as GPS devices and track the movements of the user of the phone as they travel. The court wrote that “there is no question that it tracks the location of a cellular telephone user.” Americans should not have to worry about the government, as Big Brother, tracking their every movement. As such, at least in Massachusetts, police need a search warrant if they want to use cell phone data to track the movements of a suspect.

Any person who is arrested for a crime and it appears that the police used CSLI to gather evidence should hire an experienced criminaldefense lawyer to defend them.

Can you spy on your spouse with technology?

Since the creation of the institution of marriage, some people have suspected their spouse of cheating. One of the natural instincts following such suspicions is to try to prove the adultery. An age old method of such proof is to hire a private investigator to follow the spouse and obtain proof. This is a costly undertaking. If the investigator fails to find proof, there is still doubt as the spouse may commit adultery on a day when the investigator wasn't following. Today, some people turn to technology to confirm the suspicions.

One of the easiest ways to spy on the spouse is to merely look at the spouse's computer and cellphone. Looking at emails, text messages, or listening to voice mails may give the confirmation desired. Sometimes the spouse looks at the computer or cellphone innocently and learns some information. An example is that the spouse's cellphone may be sitting on a table when it rings and a picture of the paramour appears. Such accidental discoveries are not spying as the term requires intentional conduct. The intentional perusal of the spouses' cellphone without permission is spying and may be illegal. However, some spying may be permitted as the entire family may share one computer or cellphone. Spying is not permitted when a spouse has exclusive use of the electronic device. In fact, such spying may be criminal conduct that can be punished by fine or imprisonment.

It is clearly criminal in Massachusetts to record the voice of any person without that person's permission. G.L. c. 272, § 99. If two people have a conversation, both must consent before the conversation can be recorded. Producing a tape in a divorce trial of a conversation that was secretly recorded may be a greater problem for the spouse who made the recording than the spouse who was recorded.

Installing spyware on a computer to capture keystrokes can also be a criminal act. There are at least three state laws that may apply to such spyware. G.L. c. 266, § 120F prohibits unauthorized access of a computer system. Spyware on a spouse's exclusive computer should be considered a violation of this statute invoking criminal penalties. G.L. c. 272, § 99 prohibits the interception of wire communications as well a oral communications. Although no reported case has attempted to apply this law to computer spyware,  the purposes of the law indicate that it should include such communications. Furthermore, the law prohibits owning a device that is capable of such interception. Computer spyware has no purpose other than to intercept computer communications. As such, possession of such software is probably a crime in Massachusetts. The third criminal law that can apply to computer spyware is the stalking law: G.L. c. 265, § 43. This law punishes a pattern of conduct or series of acts of “spying” on a person combined with a threat of harm. While not every marriage breakup has threats, they frequently do. As a result, an argument can be made that computer spyware combined with a threat of harm meets the definition of stalking. Similarly, using a GPS device to track a spouse may be stalking or even an unathorized use of a computer if the GPS device is found in the spouse's cellphone or auto anti-theft device.

Spying destroys trust and can destroy the marriage even if adultery ne­ver occurred. If the spying fails to prove cheating, the innocent spouse may feel the marriage is over because of the lack of trust. A better way to address suspected adultery is to do so in the context of marriage counseling. Of course, therapy is designed to improve the marriage and not obtain evidence of adultery for a court proceeding.

As a general rule, proof of adultery does not play a significant factor in a divorce proceeding. While Massachusetts Judges will listen to proof of adultery, they seldom use evidence of adultery as a factor in deciding how to terminate a marriage. If a party attempts to prove adultery by evidence obtained by spying on the spouse, most judges will exclude the evidence and not consider the proof. Judges refuse to consider such material as doing so would encourage such illegal acts in the future.

The result of such spying may be forcing a break up of the marriage, criminal charges against the person who obtained the evidence, and failure to use the evidence in court. In addition, obtaining actual proof of infidelity may cause far more emotional distress than mere suspicion.

Understanding federal and state is essential to knowing your rights. If your marriage is having difficulties you should consult an experienced lawyer before you start spying on your spouse. A lawyer can help you understand your rights and options before you make a mistake and commit a criminal act.