Legal Question in Criminal Law in Massachusetts

I don't buy it....

My original question asked if I could file a charge of false arrest charge against the police who placed a warrant out for my arrest based on an accusation that I had violated a RO (as I stated, I felt no need to initally challene the RO, I lived in a different city from the accuser, the affidavit was a joke, she admitted she was on strong meds to control her hysteria). There was no investigation into the accusation of a violation of the RO, the cop simply put a warrant out for my arrest. (I was accused of going through a mailbox, a shot at my job perhaps, I work as a letter carrier for the PO, and in fact the Postal Investigators themselves, who I was required to see, questioned the actions of the police who issued the warrant, it was so absurd.) I went to court, had charge dropped, RO dropped, but still fuming that a warrant was issued. The answer on this site was the accuser was considered an ''eyewitness'', so the warrant was justified without any other investigation. I have a hard time believing that. I want to make sure I understand this: if anyone calls the police with an accusation of a crime, the police will automatically put a warrant out for someones arrest because the accuser is an ''eyewitness''? Is this true?


Asked on 4/29/07, 10:07 am

1 Answer from Attorneys

Re: I don't buy it....

See Massachusetts General Laws, Chapter 209A, Section 6 (http://www.mass.gov/legis/laws/mgl/209a-6.htm) paragraph 7. Police are directed to ARREST a person once they have only probable cause (ie a report) of a violation of an Restraining Order. Probable Cause is the lowest burden of evidence and does not require more than a belief based on some fact that a crime has been committed. Probable Cause does nto require that there be enough evidence to prove that something is more likely to be tru than false (that is a Preponderance of the evidence), it just requires SOME small amount of evidence that a crime has been committed. Since filing a false police report is a Criminal Offense, probable cause is established by the report made by the alleged victim.

If there is a false report made against you, you can press criminal charges against the person who made it... if there is an arrest based on the false report, you can SUE the falsely reporting party.

Just because a person is accused and arrested, does not mean they are guilty of a crime... that's why the system has criminal defense lawyers as well as prosecutors. Each side presents evidence and the jury (or judge) decides whether a person is guilty of the crime they are accused of.

Massachusetts law recognizes that police fail to do adequuate investigations, and jury instructions include a caveat that if the jurors find that the police failed to do an adequate investigation and that the investigation likely would have turned up exculpatory evidence, then the jury can find someone not guilty based on this failure alone.

Probably 90% of these types of cases boil down to word of one person over another. Trials are designed to decide guilt or innocence. Even David Letterman was the subject of a restraining order from a fan who alleged he was tormenting her with coded on air messages (http://defamer.com/hollywood/david-letterman/david-letterman-ordered-to-stay-3-yards-away-from-psychotic-fan-144551.php). The trick is to fight the restraining order from the beginning instead of allowing it to enter (thereby 'implying' the facts alleged are true and that you are a dangerous person).

Lobbying your state legislative representative (or running against him or her) is your best way to see to it that this standard for arrest is changed.

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Answered on 4/29/07, 2:08 pm


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