Criminal Law

Felony

Mgl Ch.274 S.1 warrant-less arrest in the state of Massachusetts. Punishable by sentence in state prison

Misdemeanor

Punishable in house of corrections.

Only arrestable by statue : domestic

In officers presence

or for breach of peace

in presence is defined as an officer experiencing the offense in real time, through their senses. Eyes, ears, nose.

Threats to commit a crime

Mgl 275 S.2- complaint only

Defendant communicates (verbally or in writing) the intent to injure a person or property of another, now or in the future.

Target, defendant intends threat be communicated to specific target

Crime, if carried out would amount to a crime

Place victim in reasonable fear

Intent Defendant knew or disregarded the risk that his threats would cause victim fear

Assault MGL 265 s 13a

Occurs in 2 ways:

(1)An attempted battery (fear not necessary): suspect intended to commit unpermitted touching, made an overt action, and came reasonably close

(2) placing someone in fear of battery (Threats) : suspect intentionally engaged in menacing conduct that caused victim to fear imminent battery.

Right of arrest:

Basic offense: Misdemeanor Complaint unless occurring in officers presence and amounting to breach or peace.

Assault By means of a Dangerous weapon

MGL 265 s 15B

Assault by attempted or threatened battery with intent to cause fear. And by using a dangerous weapon.

ROA: Felony

“Per Se” or by itself dangerous weapon

Items which, by their nature, cause serious injury or death.

Weapons such as guns, knives, brass knuckles, OC spray, and numb-chucks are designed to injure or kill. Thus, the suspect does not need to use these weapons in a dangerous fashion.

MGL. 265s 58, Possession of deceptive weapon device during commission of violent crime

Suspects who Possess a device that is intended to convey the presence of a rifle, shotgun, or firearm that is used in the commission of a violent crime shall be deemed aa armed.

If suspect claims to have a “per se” weapon but does not show it they are still guilty of ADE

“Dangerous use” Wepon

Normal items become weapons when used in a dangerous fashion.

such as sucking a German shepherd on someone.

for threatened battery, suspect must brandish, display, or talk about his “dangerous use” item in a way that is designed to make the victim afraid.

Assault and battery

Occurs in 3 ways:

Offensive: Intention, unpermitted touching of another,

Harmful: Intentional, harmful, touching of another

Reckless: A reckless act that caused injury to another

Contact must be on purpose The law does not punish incidental contact

ROA: misdemeanor, complaint unless breach of peace or occurs in officers presence. Felony of causes serious bodily injury.

Unique applications: if suspect placed victim in fear, and the victim injured themselves while trying to escape, the suspect has committed assault & battery

Delivering food that contained a no -lethal substance that is intended to cause discomfort. A& B. Also Mgl 270 s 8A could be used as a felony charge.

Assault by means of Dangerous Weapon

265 s15a

Intentional harmful touching,

By means of a dangerous weapon

Mayhem

265 s 14

Suspect maliciously intended to maim or disfigure by way of the following:

Cut out or maimed the tongue;

Put out or destroyed an eye;

Cut or tore off an ear;

Cut, slit or mutilated the nose or lip;

orCut off or disabled a limb or member of the victim.

someone that is privy to another’s intent to maim or disfigure or was present or aided in the commission is guilty of this crime

Castle law 278 s 8

Occupants in their homes have no duty to retreat and may use reasonable force to defend themselves against intruders.

however, intruder must be inside the home, porch or front lawn doesn’t apply.

This law does not apply to guests. It must be an intruder.

Citizens can act in self defense.

Citizens only have a right to self defense if an officer uses excessive force.

265 s 13D A&B on a public employee

Arrest in presence, otherwise complaint.

unless: the a&b occurred while public official was operating a public transit vehicle like MBTA bus. Or attempting to disarm officer or caused serious injury. Felony.

Suspect must know he is striking public employee.

Off duty officers covered only if they are performing a police function.

265 13I A&B on an EMT / healthcare worker

EMT, ambulance driver, doctor, dentists, nurse, social worker, psychologist, or agent / employee of licensed public or private hospital, clinic, or nursing home.

Arrest in presence, otherwise complaint.

Interfering with a police officer

The suspect knew or should have known that the officer engaged in lawful duties.

Physically obstructed or threatened violence against the officer.

Physical obstruction: refuses to move, and verbally interrupts

Outside of 90 s25, a suspect refusing to identify is not interfering

Juvenile runaway refusing to accompany officer back to their group home.

Interfering with a police officer

Case where husband puts tie around woman neck. His defense was that she was into erotic -asphyxiation.

People can not consent to dangerous sexual acts.

Transferred intent.

Attending to strike a specific person, missing and hitting someone else. Guilty by transferred intent

Assault & battery to collect a loan

Felony.

Assault & battery for the purpose of gang solicitation

Felony

Rubbing dirt in an eye

Is an intent to maim or disfigure. Charge mayhem.

Does a victim being able to recover prevent a charge of mayhem?

No. The impairment or disfigurement does not need to be permanent

Serving someone food with a non-life threading substance, with the intention of curious discomfort such as ex-lax

Assault & battery.

Is flight or simply running from the police guilty of resisting arrest?

No, flight by itself is not resisting. It has to create a substantial risk of injury to the subject and / or the officers.

think about officers chasing subject over dangerous terrain.

Can a person be charged with resisting arrest after they have been arrested and secured ?

No, post -arrest activities do not qualify as resisting arrest.

What would you charge a suspect for attempting to break out of police lock up facility?

Charge them under the general attempt statute. 274 s 6.

What would you charge a suspect that does escape police lock up facility?

Escape from police lock up.

268 s15a

What is the charge for someone helping a prisoner escape police custody?

Aiding escape from police custody.

268 s17

Ejaculating Into a victims mouth constitutes the element of what offense?

Ejaculation into mouth constitutes penetration for a charge of rape

touching victims vagina, vulva, or labia, with hands or mouth is sufficient for…

Penetration.

An individual that forces a victim to penetrate another, is guilty of

Rape. Defendant forced victim to penetrate the vaginas of 2 other women. He was charged with rape despite not engaging in any sexual activity

A defendant that forced a woman to finger herself is guilty of

Rape. Suspect forced the penetration, even if they themselves didn’t participate

Does a rape charge need to be sexual in nature?

No, the penetration does not need to be sexually motivated. Suspect penetrated victim in search of hidden drugs

Can a suspect convince a victim to engage in sexual intercourse through fraud?

Yes. Lying to get sex is not a crime, without fear or force. It is not rape. If a suspect merely used fraud to trick a suspect then rape did not occur.

What are the 3 aggravating factors of ADULT rape ?

1. Serious bodily injury

2. Joint enterprise

3. When rape occurs during the commission of ADW, ABDW, armed / unarmed robbery, kidnapping , B&E’s, or while carrying dangerous weapon.

Lack of consent is an element of rape cases.

True. It must be proven by the commonwealth

Rape of child has 6 aggravating factors

1.during attempted or actual common of a crime

2.resulted in substantial bodily injury

3.committed while victim was bound or gagged

4. Committed after defendant administered alcohol or controlled substance by Ingestion, injection, without victims consent

5. Committed as a joint enterprise

6. Committed in a way in which the victim could co react an STD that the defendant knew or should have known

STATUTORY rape aggravating factors:

1. OVER a 5 year age difference for victims UNDER 12 years old (ex. 11- under)

2. OVER a 10 year age gap for victims 12,13,14 15 years old.

3. Or If the defendant should have been a mandated. Such as teacher, therapist, counselor etc.

What is the age of consent for sex in Massachusetts?

16 years old

A suspect administered a stupefying drug to the victim, with intent to over power and have sex

Drugging a person for intercourse.

If a suspect merely supplies stupefying substances to a victim and then has sec with them, can they be charged with drugging a person for intercourse?

No, the suspect must administer and not merely supply. “Administer” requires some element of force or trickery.

Difference between rape of a child and STATUTORY rape

Statutory rape is without the element of force.

is not knowing a victims age or identity sufficient excuse for statutory rape?

No, mistakes for age or identity, no matter how reasonable, is no excuse.

can you be guilty of aggravated statutory rape for being present but not participating ?

Yes. The defendants does not need to be aware of the victims age if he is present during the rape.

What is the age of consent for sexual touching in Massachusetts?

14 years old

Is consent an acceptable excuse for indecent A&B 13 and under?

No, a person age 13 and under can not consent to sexual touching in Massachusetts

Suspect approaches woman, communicates his intent to perform sexual acts and makes overt action towards her but fails…. What is the strongest action you can take ?

Attempted indecent A&B.

indecent assault does not exist

Kidnapping

Forcible or secret confinement, against a persons will. Felony.

Tender years doctrine

A child under 13 can not accompany an adult without the expressed knowledge and consent of their parent or guardian

Man drives up to 11 y/o girl, requests that she get into his car. She declined and walks away. Man follows her, Juno’s out of the car and demands that she get into his car. What is your strongest action?

Arrest for attempted kidnapping. Felony

Man drives up to 11 y/o boy, politely asks boy to get in the car. Boy refused and runs away. Can you arrest for attempted kidnapping?

No, this act alike does not support the crime of attempted kidnapping. However, if while investigating you discover duck tape and a ski mask, then yes.

Cruelty to animals

1. Beat,

2. neglect,

3. ABANDON,

4. allow to suffer,

5. use as a lure,

Lewd & lascivious conduct

Soliciting or committing sexual act in public for the purpose of arousal or offense. Misdemeanor. Unless occurring in presence.

Person masturbates in car without undressing. What is the strongest action ?

Summons for lewd and lascivious conduct. Because we couldn’t see his penis.

Annoying and accosting sexually.

Sexually offensive act or language, directed at a person that violates the contemporary standard of decency. (Sexual disorderly conduct) Can occur in public or private spaces. Misdemeanor, unless in presence.

Indecent exposure

Intentionally exposing genitals and at least one person was reasonably offended. This offense is for genitals only. Can occur in public or private spaces. Misdemeanor, unless in presence.

Open & gross

Intentionally or recklessly risking public exposure or genitals, buttocks or breasts, and caused at least one person to experience shock & alarm. Felony.

a man wears tight, see-through clothing, where on-lookers can see his penis. And alarmed at least one person. What is your strongest action?

Arrest for open & gross lewdness. See-through clothing is covered.

What is the appropriate charge If an indecent exposure occurs infront of children?

Charge open & gross. This applies to public and private spaces.

At the scene where a man has exposed his penis, the victim reported tHat she felt a sense of “disgust” or was too shocked to report it. What should you charge?

Open and gross. These responses are sufficient for shock and alarm.

A man is driving down Main Street, he stops and pushes his pet onto the road and then drives off. What is the strongest action you can take ?

He ABANDONED the animal. Arrest for the felony of cruelty to animals

Type 1: Secret sexual surveillance

Secretly video taped, photographed, or electronically surveilled, someone nude or partially nude, under or around their clothing, who was unaware and without their consent, in a place where they had a reasonable expectation of privacy. Warrantless arrest on probable cause.

Type 2: Secret sexual surveillance

Willful dissemination of the visual image of another, while knowing that it was captured by secret video taping, photograph or electronic surveillance without their consent. Felony

Distribution of visual material to Harass “revenge porn”

distributes visual or digitized materials of the identifiable victim, naked or engaged in sexual conduct, with the specific or reckless intent to harass or harm, resulting in injury or distress.

1st offense, warrantless arrest on probable cause is the preferred response.

2nd offense, felony.

while in a relationship, Amy agreed to make a sec tape with her then boyfriend Sam. After they broke up, Sam posted their sex tape on Facebook / public site online. Amy saw the video and caused her emotional harm. What is the strongest action you can take?

Warrantless arrest on probable cause if this is his first offense. If this is his second offense, arrest for the felony.

This is revenge porn Although she consented to making the video, she did not consent to posting it online

Corrine has an only fans page. John paid Corrine to have access to her only fans page. John then shares Corrine’s photos with joe. Corrine finds out, becomes upset and wants John arrested for revenge porn. Can you arrest him?

No, this was a transaction of which John paid. the revenge porn law does not apply to commercial settings.

What is the difference between disseminating in 272 s105 secret surveillance and disseminating in 265 s43A Revenge porn?

The victim in secret surveillance did not consent to being recorded. Where as the victim in revenge porn did.

In revenge porn cases, is the evidence brought to court available for public inspection?

No, the evidence will only be viewed by the defense attorney, prosecutor, judge, defendant and victim.

What are the elements of coercive control?

Type 1: Defendant engaged in 3 acts of isolating, depriving, controlling, regulating , monitoring, regulating, or treating , with the intent to coerce or control.

Type 2: defendant only 1 act of harming or attempting to harm the victims child, relative , or pet, or publishing sexually explicit images

Resulting in the victim having a reduced sense of physical autonomy

Is a victim of domestic violence that is drunk or high still inherently reliable ?

Yes.

Where does a victim have venue to get a 209A order?

Either the court where the victim lived at time of abuse, or if victim left to avoid abuse, the court where they moved to.

You see r a defendant with a 209A vacate order and they refuse to surrender their keys. What is your strongest action?

Arrest for violation of the protection order

Victim calls the police and states that defendant is violating the pet conditions of the protection order. Can you arrest him?

No, you can not arrest someone for violation of per conditions of a protection order.

Victim has a 209A against the defendant. She has a birthday, friend wrote happy birthday on her Facebook wall. Defendant. “Liked” the comment.

Defendant is guilty of violating protection order.

Listed Per se dangerous weapons

1: knives

A) stilettos, B) daggers, C) knife with locking blade, D) ballistic knife, E) knife with detachable blade capable of being propelled, F) dirk knife, G) double-edged knives

2: martial arts

A) Nunchaku, B) zoo bow / clackers / kung fu sticks, C) shuriken (ninja star), D) leather armband with metallic spikes, E) Cestus, F) manrikigusari

3: miscellaneous

A) slung shot, B) blow gun, C) black jack, D) brass knuckles

As the Patrol supervisor, you arrive to the scene where an officer wants to arrest an operator because he found a sling shot in his glove compartment. What do you do?

Inform the officer that a sling shot is not a “per se” dangerous weapon. A slung shot is.

Which weapon is no longer considered a “per se” weapon in the state of Massachusetts?

A switch blade.

What are the 2 ways in which you can be charged with carrying a dangerous weapon?

By carrying a listed “per se” weapon, on my person or under my immediate control in a vehicle,

or

If I am carrying a non-“per se” weapon, at the time where I am arrested on a warrant or arrested for a crime where I have breached the peace.

While on the scene of a domestic, you realize that the suspect has a display case with Nunchaku and ninja starts in the wall. Can you arrest for carrying a dangerous weapon?

No, this is merely possession, carrying dangerous weapons requires movement on his person or under his control in a vehicle.

Is an expandable baton considered a dangerous weapon?

No, it is not listed in the “per se” laundry list.

“7 up” coverage for explosive offenses

1. All Felonies

   1. Possession of Hoax device

2. Possession of an explosive ingredient

3. Possession of an ingredient for weapons of mass destruction

4. Possession of an explosive, incendiary, destructive device or substance

5. Placing an explosive or incendiary, destructive device or substance

6. Exploding an explosive, incendiary, destructive device or substance

7. Possession of weapons of mass destruction or delivery system.

Threats concerning the location of dangerous items or a hijack

Willfully communicates or caused to be communicated, directly or indirectly or third party, by “any means”, including, mail, Email, phone, text, internet, etc, that any of the following items will be present at a location, which caused anxiety, fear, or discomfort to any person. Or threats to hijack.

Items include : Firearms, rifle , shot gun, machine gun, assault weapon,

Explosives or incendiary devices

Dangerous chemical or biological agents

poisons

Harmful radioactive substances

Or any other device, substance , or item capable of causing death, serious bodily injury, or substantial property damage

the threat does not have to be true

Felony.

Husband calls wife and said that he is on his way home from New Hampshire, and when he gets there, he is gonna shoot & stab her in the head. You can’t arrest for threats to commit a crime. So what else can you do?

Arrest for the felony of threats concerning the location of dangerous items 269s 14. Husband communicated that a knife and gun (dangerous items) will be present at their home and caused his wife fear, anxiety and discomfort.

Can you arrest for the simple possession or explosion of fireworks ?

No, confiscate the fireworks, and file a complaint.

At the scene of a protest, someone communicates the threat that they will put a bomb in city hall. Can I charge threats concerning the location of dangerous items?

No, picketing, protesting, public demonstrations are exempt from this offense.

A student at Endicott college posted flyers endorsing mass murder, and on the flyer, it instructed students to evacuate the mess hall at 2:33 pm. What is your strongest action?

Arrest for felony of threat concerning the location of dangerous items 269 s14.

Heroin, fentanyl, Carfentanil, morphine, and ketamine are what class of drugs?

Class A drugs. Warrantless arrest on probable cause.

Cocaine, codeine, methadone, OxyContin, oxycodne, Percocet, methamphetamine, PCP, LSD, MDMA (Ecstasy) , are examples of what class of drugs?

Class B Drugs Warrantless arrest on probable cause

Valium (Diazepam), K-2 spice, morphine, codeine, bath salts, are examples of what class of drugs?

Class C Drugs Warrantless arrest on probable cause

Marijuana is what class of drug?

Class D drug only arrestable on probable cause if over 2 ounces.

Gabapentin is what class of drug?

Class E drug warrantless arrest on probable cause

What are Analogue drugs ?

Substances that are chemically similar to illegal drugs and have the same stimulatory, depressing, Or hallucinogenic effects.

What constitutes Possession of a drug.

Suspect must possess a quantity of the drug and not simply be under the influence.

If the suspect claims that they have swallowed the drugs and nobody has witnessed it, can you charge them with possession?

No, you can not charge possession for drugs that have been swallowed, unless witnessed.

Is medical or religious excuses sufficient for drug possession?

No, possession of drugs for medical purposes requires a prescription. Otherwise, it is illegal. Possession for Religious purposes is always illegal

Why can police officers carry drugs?

Police officers and other public officials are allowed to carry controlled substances in the course of their duties.

Elements of drug possession

Suspects knew drugs were present, had the intent and ability to control them.

Mike was a passenger in a car where the other 3 occupants used pcp. Can you charge Mike with constructive possession?

No. Simply being present where there are drugs is not enough. There much be a plus factor. To prove possession, officers must show presence and that the suspect had knowledge, intent and ability to control the drugs. Mike knew that drugs were in the car, but knowledge alone doesn’t prove that he had the intention or ability to control them.

What are the two types of drug possession?

Direct possession.

constructive possession