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In Massachusetts. A police report filed for Criminal

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In Massachusetts. A police report...

In Massachusetts. A police report filed for Criminal Harassment (c265, s43A) contained firearms license status, and "he purchased 20 guns in the year leading up to this dispute." No malice, no threats, no firearms are alleged in the report. No prior criminal actions. We argue that this is a violation of the Fair Information Practice Act, specifically (c66, s10B). The police department was informed in writing that the information was false, and the defendant had actually purchased the 20 guns over 30 years (not the 1-yr leading up to the dispute). Then again, a week before the probable cause hearing, the police prosecutor was reminded, in writing, that the gun information was in error. He did not offer a supplemental report, and no attempt was made to correct the information. At the probable cause hearing the complaining witness asked the clerk to "find probable cause, but hold the complaint in abeyance for 6 months." The clerk issued the complaint anyway. A Motion to Dismiss was filed, arguing that the knowingly false information submitted to the clerk made it more likely than not that complaint would issue. We cite c66, s10B and O'xxxxx (which refers to superior court and grand juries). We contemplate an Interlocutory Appeal. Can you offer any case law and/or advice?

Submitted: 1 month ago.Category: Criminal Law
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Answered in 22 hours by:
11/25/2017
Criminal Lawyer: James Daloisio, Lawyer replied 1 month ago
James Daloisio
Category: Criminal Law
Satisfied Customers: 190
Experience: 30 years experience in criminal law, continuing education.
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Hi, my name is ***** ***** welcome to Just Answer. I am sorry that it has taken so long to get to this question but it was not showing up on my list.

Your specific issue dealing with the time frame in which you purchased these firearms is a "collateral issue." The offense with which you are charged does not require any evidence of firearms ownership or attendant circumstances (i.e., when or where you purchased or otherwise obtained them). The relevance of the fact that you may possess 20 firearms is marginal; the victim/complaining witness can allege that he/she was aware of that fact and that knowledge contributed toward the "seriously alarms" and "emotional distress" elements of the offense. In that regard, it makes no difference whether you purchased the weapons over the past 30 years or the past 12 months. The relevant issue is that you were in possession of them when the "pattern of conduct or series of acts" constituting the alleged offense took place. If in fact the complainant intentionally lied about when you purchased the weapons, it would be evidence going toward their credibility as a witness. As your question is written, it sounds like this was just something that was added by the police officer taking the report. If that's the case, then the complainant may have been unaware of the firearms and they had no effect at all on establishing the elements of the offense.

Assuming for the sake of argument that the complainant did lie about it, and that it wasn't just a mistake by the reporting officer or an erroneous assumption by the witness, it doesn't affect the evidence that goes toward proving the violation. A court would simply "strike and re-weigh" the evidence, in other words, eliminate the evidence of the firearms purchases, and then consider the remaining evidence. The fact that you own multiple firearms does not make you guilty of criminal harassment. At best, ***** ***** the complainant's credibility and puts you in a position of alleging that the complainant lied about other things in the complaint as well: "He lied about that, how do we know what else he's lying about?"

But the fact that the complainant may have misrepresented the time period within which your firearms were purchased is simply insufficient to substantiate a dismissal because it is too remote from the substance of the offense. If you've looked at the elements of the offense (and I'm sure you have because your question is articulated very well) you will not see any reference to weapons or firearms. Here's the statute: Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress.

Consider the evidence that was presented at the probable cause hearing without regard to the firearms. That's what the case is based upon. And remember, probable cause is substantially less than proof beyond a reasonable doubt, which is what the state has to prove at trial.

Bot***** *****ne: A violation of the Fair Information Practices Act by a police agency, which would constitute a "licensing authority" under the Act, does not get your case dismissed. Also, placing that information in a police report would not constitute a "disclosure. Chapters 66 and 66A relate to public information requests. At best, ***** ***** be able to argue that the disclosure of your ownership of multiple weapons was made at a time AFTER the "period of time" mentioned in the statute, and thus has prejudiced your case by providing the complainant with confidential evidence. But there would have to be evidence that the complainant was made aware of that fact in the first place.

I know this gets a little complex and I apologize for not being able to state it in simpler terms but you seem to be up to the task. I hope this has clarified some of the issues in your case for you and assists in providing focus on your defense. A positive rating would be appreciated, and you can always return with follow up questions on this topic at no additional charge. Thank you for using Just Answer.

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