December 17, 2019
We all hope for, plan for, and anticipate the fun of the holiday season spent with family and friends; but we also know that sometimes our holidays don’t go the way we want them to. If you run into a legal problem, it can take the joy out of your holiday.
Many things can put you in a legal jam during the holidays. OUI, of course, is a very common problem during the holidays, but there are other issues that can come up, as well. An impulsive kid who gets accused of shoplifting, a disagreement that goes too far and when punches are thrown the cops are called and even weather-related car accidents all can leave you wondering where the joy went.
If you find yourself struggling during the holidays because of an unexpected legal matter contact us. Contant Law is available to guide you through the legal process and ease your mind, so you can still find the joy in the holiday season.
We wish you the Happiest of Holidays, but just in case –
Put Contant in your contacts.
December 13, 2019
In this episode, Mike explains additional safeguards in place in the Commonwealth of Massachusetts to ensure there is a valid waiver of a juvenile’s Miranda rights. Despite good intentions, parents and guardians can adversely affect a juvenile’s situation.
JR: Welcome to In Your Court. Today’s episode is entitled Juveniles and Miranda Rights Knowing the Safeguards in Place to Protect a Juvenile. Today Mike will discuss Juveniles and their Miranda rights and the laws and the Commonwealth of Massachusetts related to waiving those rights. I’m your host Jordan Rich and I’m very pleased to be back with Mike Contant an attorney whose firm, Contant Law, specializes in criminal defense including defending juveniles. Mike, today we’re focusing on Miranda rights and how they affect juveniles in the court system. Can you start with an overview?
MC: In general, in any criminal case one of the most powerful pieces of evidence a police officer can obtain is a confession from a suspect. You see it on TV all the time. They don’t believe they have a great case until they get the person to confess. And Miranda as a safeguard that got put into place in order to keep people at least knowing their rights as to whether or not they should talk to the police and whether or not they are going to confess There are a couple of things that have to be occurring in order to require the rights at first. The first is the person it has to be what they call a state actor generally speaking a police officer doing the questioning This is important for the juvenile context because oftentimes the juveniles are talking to say the school principal or a teacher or somebody else in authority, but the Miranda rights are required when talking to that person about oftentimes a criminal matter
The second is they have to be in what they call custody which doesn’t necessarily mean handcuffs on, in the back of the squad car or being brought to the police station and thrown in a cell. Custody is basically where the person doesn’t feel free to leave. That’s the reasonable person of this particular age. So does
JR: is that considered being under arrest point?
MC: Not always.
JR: Not always, okay. That’s a very fine line.
MC: So it’s a legal distinction but essentially it’s with a reasonable person of that in those circumstances would not feel free to leave without answering the police officers questions. And back in 2011 a very important case came down called JDB versus North Carolina which said when assessing weather not someone in custody you have to take into account their age and this was a juvenile case. And essentially a juvenile is less likely to tell the police, “No I’m not talking to you” and just walk away than an adult in the same situation may be so there has to be a consideration there as well.
JR: So we’re focusing today on juveniles and waving of the rights and what that implies and what that could mean.
JR: So let’s talk about that. What’s your advice?
MC: My advice is, as I’ve said many times before is: Just say no. A police officer wants to talk to you politely decline, “No I don’t wanna talk to you.” Certainly, “I’d like a lawyer,” is my advice. Oftentimes that doesn’t happen so, what we have to do is make sure that everyone understands their rights and they understand their rights in order to make the decision whether or not to talk to police in situations where they don’t take my first set of advice which is to say, “No.”
JR: Right so, so in the event that someone does waive their right to all of this stuff, does that put them behind the eight ball in many cases because they’re not taking advantage of that protection.
MC: It can. The very first right is you have the right to remain silent. My first piece of advice is like you said to exercise that but, and again many adults don’t know to do that. So and in the juvenile context, there are additional protections and safeguards put into place to help the juvenile and assists the juvenile in understanding that they truly do have that particular right.
JR: So the law as you point out distinguishes adults as being able to understand the significance of waiving rights but juveniles have more safeguards.
MC: They do. They do, particularly the younger the child is the better the safeguard there is. So, what is required in the law first and foremost the police can’t just go in to a school pull a thirteen-year-old out of class and start questioning him about a particular crime. In those circumstances they have to have a parent or they are referred to as an interested adult present. Interested adult could be a close family member or close family friend. It could be an attorney. Doesn’t necessarily have to be a parent but someone with that child’s best interests at heart has to be there; it has to be an adult in order to assist the juvenile understanding #1 what the rights are that are being read to them, how they may affect them and whether or not they should actually waive those rights and give a statement to the police.
JR: These are under fourteen year old, correct?
JR: Okay if you’re fourteen or above. There’s a little more flexibility with the rule, correct?
MC: It’s slightly more flexibility. In that circumstance they say that the juvenile 14 to 18 should ordinarily have an opportunity to consult with a parent or interested adult. That means and in in in a practical sense, what happens is, say you’re at the police station a parent you know a parent is brought, in the juvenile is sitting there and the police officer typically reads the rights of the people: you know, the right to remain silent, right to have an attorney, right to have the attorney with you, all the rights we’ve heard about before, um…usually make them sign a form saying that they’ve been read. And the police officer says, “I’m going to step out for a minute so that you guys can talk.” And that’s a normal everyday scenario that we see and they step out for a few minutes and the idea is that the parents and juvenile are talking about what they just heard and the form they are about to sign, and deciding whether or not — deciding together whether or not they should actually waive the rights and actually give a statement to the police officers. That happens all the time.
JR: How does the court decide whether or not this was appropriate? Are there are certain guidelines that the courts look at in terms of procedure
MC: So if there is ever any challenge as to whether or not this occurred there’s a hearing the takes place.
MC: People testify the police officer would be required
testified to lay out exactly what he did – what he or she did – in giving the rights and making sure that the
person understood the rights and making sure they had this opportunity to
consult. I keep saying opportunity can solve because it’s important. It doesn’t
mean they actually consulted. It just means that he gave them some time alone
in order to do so. Whether they took him up on it or not as is a whole other question.
Many times, the parents don’t understand any more than the kids do because they
have been put in that position in the past and they don’t know what to do. And
oftentimes they say,
Well, you know I just want to be honest, I just want to say what happened, and that’s not always the best legal advice.
JR: Getting back to the TV version that everyone thinks they know, I have noticed that certain TV characters will actually take a card out of their pocket and read it from the card which is probably more like real life, I’m guessing I’m not sure. Does the Miranda have to be delivered fully word-for-word?
MC: It has to be delivered fully so in other words, you can’t leave out any of the rights at least the basic idea of any of the rights. It does not have to be word-for-word. Many police officers carry that card you’re referring to. The better practice particularly with a juvenile case is to have a form that they can go over the rights and have that actually signed off by both the parent and the juvenile. It’s a better practice for the police to do it shows the court a little bit more evidence that something actually occurred and it was done the right way.
JR: Let’s reiterate and so to refresh our audience again and we’ll focus on Miranda but in general the juvenile court system. What parents and guardians should know? And what the juvenile’s themselves should know starting again this is a summary with the Miranda rights but then also with what they’re going to be facing in a court system.
MC: Sure, as I mentioned before the juvenile court is not to be taken lightly. The penalties can be stiff for juvenile; not – they’re different than adult penalties but they can still be stiff and more importantly the juvenile record can follow the person around and have long lasting implications we talked about before. But as far as you know how to treat the case you do wanna take it seriously and like I said, the best way to help win the case is to politely exercise your rights to say when they say you have the right to remain silent say, “Yeah. I’m gonna exercise that. I don’t wanna say anything.” The second best way is when they say you know you have the right to a lawyer, “Yeah, I want that one too. I need my lawyer here.” And that will cause is a police to stop questioning immediately if you exercise either one of those rights police aren’t allowed to continue and they are not allowed to continue question you and again, they’re not going to get that powerful piece of evidence which is your own words saying that you did this.
JR: Having an attorney such as you, someone who’s very skilled in these areas is so critical as you say because you can make early mistakes that can hurt you later on.
JR: And greatly.
MC: The biggest mistake in many cases again is that parent, who’s doing a different job than I am. They are just trying to raise their children in the right way so they encourage them to tell the truth encourage them to cooperate with the police oftentimes to their own child’s detriment. Even though they it’s well thought out by the parent but it’s not a good legal strategy in the case and often times ends up, quite frankly, hurting the child in the case that we’re dealing with.
JR: We’re talking about long-standing constitutional rights here aren’t we?
MC: the Fifth Amendment and in Massachusetts we also have our own constitution called Article 12 which is essentially the same thing
JR: Well, fascinating fascinating discussion. For those out there who have to deal with this, you now are armed with more information. Thank you Mike.
MC: Thank you
JR: For more information about Contant Law and juvenile Miranda rights visit. www dot Contant dash law dot com. You can follow Contant Law on Facebook, Twitter and connect with them via LinkedIn. For specific questions email info at Contant dash law dot com. We hope you found this episode informative. Please rate and review this episode and subscribe for additional ones to stay informed and protect your juvenile’s rights. All episodes are available on all platforms. Thank you for listening.
December 13, 2019
In this episode, Mike discusses juvenile court including significant differences that parents and guardians should know to best support and protect the child.
Welcome to In Your Court and today we’ll focus on the important differences between juveniles and adults when being tried in court. In this episode, Mike will talk about Juvenile Court and share three things that parents and/or guardians need to know to best support their child in the process. I’m Jordan Rich and I’m pleased to be back with Mike Contant an attorney whose firm, Contant Law, specializes in criminal defense including defending juveniles.
JR: So Mike, let’s begin with an overview of what a juvenile will face, what a juvenile’s experience will be like in a criminal court how it either differs or is the same as an adult.
MC: Sure. So, the juvenile criminal process, it’s called the delinquency process is actually very similar to that of an adult process. They have all the same rights, most of the same procedures as the adult court. They both follow the same rules of procedure. Juveniles are entitled to all those same protective rights: the right against self-incrimination – I like to refer to it as the right not to tell on yourself — the right against illegal searches and seizures the ability to challenge those things. The right to have a trial before a judge or a jury if they if they choose. They also have rights to be considered innocent until proven guilty beyond a reasonable doubt very similar in many cases to the adult court. Those rights are all the same rights the juvenile has and the processes is are almost identical.
JR: Okay there are a lot of implications though. People might have the wrong impression that when one turns adult that all of those charges whatever they might be my go away. That’s a misconception that people have?
MC: Absolutely. So that’s a big mistake that parents make as well as juveniles make, when they are thinking about what to do with these charges. Many any people think that the juvenile record becomes either sealed or expunged when the person turns eighteen it just somehow magically disappears. That’s not the case. In Massachusetts, the record is around essentially forever and it can follow a juvenile even into adulthood. It can affect their ability to obtain jobs in the future depending on the level of access that the employer has. It can affect their ability to get into college, affect their ability to receive financial aid, and it can definitely affect their ability to get into the military; I’ve seen many military recruiters trying to come into court to undo charges in order to get the kid into a particular branch. It can follow them into adulthood should they pick up additional criminal charges later and that juvenile record can be used against them in determining what sentence they might receive as an adult for another criminal matter. So it’s extremely serious to get out in front of these things and make sure that you’re treating it seriously in not just blowing it off because, “well, it’s just a juvenile case nothing bad can happen”.
JR: Lots of, as I say implications, so let’s talk about the role of the parents or legal guardians in the case of juvenile who’s facing charges. What do you see as their role?
MC: Their role is to help guide and support their child. I always tell parents quite simply they have a very different job than I do. Their job is to guide and protecting and to help their child become a successful person, to become a good person to become a contributing member of society. My job is simply to help them to get the least amount of punishment or quite frankly no punishment to these particular charges. In many cases the child may have actually committed the crime however, that’s not my job. My job is to make sure the prosecution proves that they did that or keep them from proving they did that in order to make sure they have the least amount of punishment possible.
JR: Well there’s a lot at stake here I think that’s the key element limit this is that could affect a young person’s life for forever
MC: Right. So the other thing is and I always have to stress this with the parents is the juvenile – the child – is my client. This the one circumstance in which a twelve- or thirteen- year-old kid has the right to order me around as the attorney so to speak. If they are smart they will listen to the advice that we’re giving them and guide them through this process. But they’re the client. Many times parents will want to overreach, again in the best interest of trying to help their own child however, they oftentimes will overstep but ultimately any major decisions that get made have to be made by the child with of course the support and guidance of the parents.
JR: Would you have a scenario an example in general terms of how doesn’t work well when a parent oversteps
MC: Sure, it confuses the situation oftentimes, we’re dealing with again, adolescents, children between the ages of twelve and eighteen. They don’t know where to turn. They want to listen to mom and dad, because they don’t want to go home and get yelled at a get in trouble for it. But they also want to listen to me because I actually have experience in the field. They get very confused very quickly. And sometimes they don’t make the best decisions under that enormous pressure that is between the two forces there and so ultimately a parent who may have no legal training and may have no experience in this either could get their child in certain circumstances to make a quite frankly a poor legal decision.
JR: Mike, we know that the ages twelve to eighteen in Massachusetts that legal definition of juvenile doesn’t necessarily correspond in other states that way though.
MC: It does not
JR: Okay. And the question that people probably have as I do is, what if under the age of twelve an individual commits some kind of crime or is accused of something what happens then?
MC: There is no punishment in the juvenile court a criminal charge cannot be brought against that person. Oftentimes there’s other mechanisms through the juvenile court that can be used. There is what they call a child requiring assistance petition that can be filed. The child can be provided services by the courts, such as counseling. If it’s bad enough they can be removed from the home and put into a group home setting. However, as far as a criminal record or criminal punishment there’s nothing that can be done.
JR: As an attorney who specializes in this area, I mean working with adults working with young people is different. Tell me in your own experience.
MC: It is different. But I will say I will stress one thing,
I stepped in the juvenile court after being an attorney for about five years. I
had never dealt with a juvenile case before. First time in I realized the similarities
in the system and I also realized,
“You know what? The kids have the same rights and I want to treat them the same I want to give them the same respect as I give any adult client.” So we have to, you know understand that they are children but at the same time not talk down to them you have to be straight forward with them.
JR: So, your job is, along with defending someone, is educating both that individual and their parents or guardian because the whole mess of stuff that people get themselves into and it’s very confusing and a lot of fear involved
MC: Of course. Fear and stress goes hand in hand with everything we do so we have to educate both the parents and the juvenile’s as to exactly what’s happening in the case that we have to make sure they understand everything that’s going on to make sure that they’re comfortable with it.
JR: Can you just speak to something we’re going to be focusing on in another podcast, that’s Miranda Rights. Very quick definition would be great to start and then I guess the Commonwealth of Massachusetts, as you point out to me, has put in safeguards in the case of a juvenile waving such rights. And we’re gonna do a whole podcast on this because it’s so important but what are the Miranda Rights in general and how are juveniles being affected.
MC: Most people understand the Miranda Rights from TV. You know everyone’s heard someone get … seen someone get arrested and hear that you have the right to remain silent, that you have the right to have an attorney, you have the right to have the attorney present during any questioning. You have the right to stop questioning at any time. Those are the basic Miranda rights and they’re meant and to make sure that someone doesn’t confess to the police without being properly advised of their rights in the situation. It goes hand in hand with the Fifth Amendment and the right against self-incrimination or as again I like to refer to it the right not to tell on yourself.
JR: And in the case of Massachusetts any changes in the law that people should know about that have affected juveniles.
MC: It’s less of a recent change, however, in addition to just being read those rights, juveniles have additional safeguards put into place. In if a child is under the age of fourteen it’s required that they consult the parent prior to waiving those rights. Police can’t just go pull a kid out of school and start questioning them if they’re say thirteen years old. Between the ages of fourteen and eighteen the better practice they say is that a parent should be present and the juvenile should have the opportunity to consult about what the rights are and whether or not they should waive those rights. And the only time it’s going to be allowed in court if that didn’t occur, is if the police can demonstrate that the person has a very high level of sophistication or experience in the court system.
JR: Okay. In summary then we’re talking about a very serious time in a young person’s life family involved maybe school, I mean there are a lot of moving parts. If people are concerned, confused and have questions obviously they can reach out to you but why is it so critical for anyone in this position to have the kind of expert help that they are going to need?
MC: Again, I look at it like this: most children and many adults are short-sighted, okay. They don’t, they can’t see beyond their own face sometimes, particularly children. Most kids don’t think about anything more than what’s going on that weekend and playing with their friends. So they don’t think about protecting themselves. They don’t think about how this case is going to affect them five, ten, fifteen or twenty years down the line. It’s very important because it can have long-reaching effects and I like to come in to be that guide and say, “Hey listen, you may not, you may want to do what the easiest thing is now and that could mean getting on probation or taking some sort of a plea and that’s gonna end things quickly, but it could come back to hurt you later on and you have a good case here. We want to see what we can do to make sure you have a better sentence or no sentence at all.
JR: Well, Mike as we’ve discussed, this could be a critical moment in someone’s life and it’s important to get professional, sound legal advice from someone who really knows what he or she is doing.
MC: That’d be the best advice.
JR: All right. Mike, thank you as always.
For more information about Contant Law and juvenile court visit: WWW DOT content dash law dot com. You can follow Contant Law on Facebook, Twitter and connect with them via Linkedin. For specific questions email Info at contant dash law dot com. We hope you found this episode informative. Please rate and review this episode and subscribe for additional ones to stay informed and protect your juvenile’s rights. All episodes are available on all platforms. Thank you for listening.
December 3, 2019
‘Tis the season to be jolly… or so the song goes, but often jolly includes drinking. The holiday parties and potlucks, the impromptu holiday drinks, the family gatherings these all usually include drinking. And the police know it. This is their busiest time of year. We’ve all heard about tragic, avoidable accidents during past holiday seasons. Perhaps you’ve wondered aloud why no one took the keys away from the person or how they could drink and drive. The reality is that any of us can make a poor choice.
Your kids are watching. Whether your kids are 7, 21 or 35, they are watching your example. You’ve taught them about making good choices. You’ve taught the older ones to have a designated driver, use an uber, call a friend or even to call you. So, set a good example by modeling the behavior you’ve been teaching.
If you don’t choose a designated driver ahead of time, ride sharing apps make it easier than ever to get a sober driver to take you home. There’s no shame in being safe and asking for help. Sleeping on a friend’s couch for a night is a far better option than sleeping in a jail cell because you got stopped for an OUI.
Have a plan before you go out if you know you will be drinking. Have an emergency plan if you find yourself at an impromptu celebration. Read more here about what to do if you get stopped by the police. And, if you decide to drive and get stopped, have our number in your contacts. We want your holidays to be happy and uneventful but if you need help contact us.