Pre-Trial Probation

Massachusetts Pre-Trial Probation Attorney

Massachusetts pre-trial probation attorney Kathleen McCarthy can help you avoid a criminal trial and the possibility of being convicted of a crime. If you or a loved one is currently facing criminal charge(s) in the Boston area, contact her for a consultation.

Attorney Kathleen McCarthy has filed several pre-trial motions to keep her clients from being prosecuted through the criminal justice system. Contact attorney Kathleen McCarthy at 978-975-8060 to speak with her directly.

What is Pre-Trial Probation?

Pre-trial probation is a court-approved agreement between a defendant and the prosecutor whereby a criminal case is dismissed after the defendant satisfies certain conditions. The conditions are reasonably related to the offense. For example, if a defendant is charged with larceny or stealing, he or she would typically be ordered to pay restitution before the case would be dismissed. The defendant is NOT required to admit to any facts and is NOT found guilty. This type of disposition occurs after a formal arraignment. Pre-trial probation gives the defendant the opportunity to reach a dismissal if he/she satisfies certain conditions in lieu of his/her case going to trial.

How Does Pre-Trial Probation Work?

First, the defendant’s attorney must advocate to the District Attorney’s Office why the client is a good candidate for this type of disposition. Often a letter that outlines the defendant’s positive attributes and commitment to the community and to living a law abiding life is beneficial. If this disposition is accepted by the court, the defendant may or may not be supervised by a probation officer. The goals of pre-trial probation are usually rehabilitative. Conditions generally include participation in a rehabilitation program, such as drug addiction and abuse counseling and performing community service.

What if I Violate My Pre-Trial Probation?

All terms of pre-trial probation must be met for the defendant’s case to be dismissed. However, a misstep does not immediately result in the issuance of a criminal charge. The decision of whether to bring the case forward typically rests with the District Attorney’s Office. In the event that the case is brought forward and put on the criminal court list, it will proceed in due course. In the event the District Attorney’s Office decides to bring the case forward, there may be a bail hearing for a defendant. It is important that a defendant have an experienced lawyer with him or her to avoid being held prior to trial.

Pre-Trial Probation vs. CWOF

Commonly confused with pre-trial probation is a disposition referred to as a “Continuance without a Finding” or “CWOF”. A “CWOF” is a procedure in which a defendant admits that the Commonwealth has sufficient facts to find him or her guilty but the court does not enter a guilty finding. The judge continues the case for a period of time [typically six months to one year] and provided the defendant satisfied certain conditions the case is dismissed. Similar to pre-trial probation, the case is dismissed after the defendant satisfies certain terms. The only difference is that “CWOF” requires an “admission to facts sufficient for a finding of guilty.” For a client who may be facing immigration issues, a pre-trial probation disposition is more desirable than a “CWOF.” Typically, a “CWOF” is considered a conviction for immigration purposes. However, it is not considered a conviction in the criminal justice system. Pre-trial probation is often granted in drug possession, shoplifting, and minor larceny cases. If available, a defendant should always seek pre-trial probation.

In addition to pre-trial probation, a defendant may be eligible for pretrial diversion or a continuance without a finding. Contact Boston pre-trial probation attorney Kathleen McCarthy for more information.

Controversial Pre-Trial Probation Cases in Massachusetts

Two recent pre-trial cases demonstrate the difficulty surrounding pre-trial probation. In Massachusetts, a judge cannot impose a term of pre-trial probation over the Commonwealth’s objection. In the 2002 case of Commonwealth vs. Tim T., the defendant was a juvenile charged with assault with a dangerous weapon and malicious destruction of property. After his conviction, the defendant complained his attorney was ineffective because he did not seek pre-trial probation. However, the court ruled that a defendant cannot be placed on pre-trial probation against the Commonwealth’s objection, and such a disposition is prohibited in cases involving rape and indecent assault and battery on a child. Also, the court noted that a lengthy continuance would get in the way of justice because the Commonwealth would be faced with the task of prosecuting a “stale” case and other difficulties of a delayed trial.

In a similar 2003 case, Commonwealth vs. Cheney, the defendant was indicted for the rape of a child and was granted pre-trial probation by a Superior Court judge against the Commonwealth’s wishes. The case was dismissed after the six-month probationary period. However, the dismissal prompted the SJC to review the Tim T. case and reconsider the constitutionality of pre-trial probation as disposition for the first time. The court found that dismissing an otherwise valid indictment violates the constitutional separation of judicial and executive powers.

As you can see, pre-trial probation is an attractive legal option for defendants wishing to avoid a criminal conviction. However, this option is not available in all cases.

Hire Massachusetts Pretrial Probation Attorney

It is important to consult with counsel to discuss pretrial probation before going to trial. Depending on the nature of the crime and your criminal history, you may be able to avoid going to trial and being convicted of a crime. Contact attorney Kathleen McCarthy at 978-975-8060 to speak with her directly. Waiting to contact an attorney will hinder your chances of avoiding trial.