Published on:

Talking on the Phone While Awaiting Trial is Often the Kiss of Death for People in Massachusetts Charged With a Crime

Not a day goes by where I don’t see of or hear of a criminal defendant in Massachusetts putting the final nails in his or her coffin by talking on the phone. No matter how smart or how stupid the accused, talking on the phone is going to cause you a major problem. Take a look at yesterday’s Boston Globe article written by Shelley Murphy about the James “Whitey” Bulger case. Murphy reported that in September of 2012 a conversation that Bulger had with his younger brother undermines the defense contention that Bulger was a government informant. The article quotes Bulger as saying that “I bought [expletive] information, I didn’t sell it,” and “I never gave them [expletive] information. Nothin’. Nothin.’” The purpose behind making those statements and the context of the statements is virtually meaningless. Rather, the content of what Bulger said is what is going to be more heavily weighed by either a judge or a jury when deciding whether or not to believe Bulger’s claim that he was a government informant.

Massachusetts Proposed Rule of Evidence 801(d)(2) states that the statement of a party opponent is admissible and is not hearsay. Case law in Massachusetts supports this concept and with limited exception any statement made by a defendant is admissible against him at trial. Most people awaiting trial understand this. Certainly those with substantial involvement with the legal system know 1) that their jail calls are being recorded and 2) that anything said by them during the course of those conversations can be used against them in court. Most jail telephones have a tape recorded warning advising the participants that the calls are being monitored. Any Experienced Massachusetts Criminal Lawyer will tell his client not to talk on the phone. Talking does no good. Whether you are accused of Rape, Robbery, Drug Trafficking, Child Pornography or any crime you have to remember to remain silent and never talk about the case. Keep in mind that the Constitution gives you the absolute to remain silent. Federal case law and Massachusetts law support this proposition. As I have mentioned in several previous posts, many of my clients would never have even been charged had then not opened their mouths. And those of them who continued to talk even after being charged with the crime complicated matters. The most famous case implicating the right to remain silent is the Miranda case. In 1963 Ernesto Miranda was convicted of multiple Sex Crimes. He confessed to these crimes and it was the confession, not the strength of the district attorney’s case that led to his conviction. In 1966 the United States Supreme Court reversed the conviction and held that Miranda’s rights had been violated. The Miranda case established the implementation of certain rights that must be afforded to anyone in custody being interrogated. It also reinforced the principle that criminal lawyers strongly embrace – - to keep your mouth shut.


The Law Offices of Stephen Neyman is committed to defending the accused. Call us at 617-263-6800 or send us an email if you need to talk to a Massachusetts Criminal Lawyer. We know that we can help you.