Law Commentary

Published on: May 1, 2015

SJC Rules the Interested Adult Rule Applies to Seventeen Year Olds

In a recent decision, Commonwealth v. Smith, the Supreme Judicial Court extended the “interested adult” rule applies to seventeen-year-old defendants. Under the United States Constitution and the Massachusetts Declaration of rights, the police must provide a suspect with Miranda warnings prior to questioning the suspect if the suspect is (1) in custody – meaning a reasonable person in his or her shoes would not feel free to leave; and (2) the police know or should know that the questioning is likely to elicit an incriminating response. The police must warn the suspect that:

s/he has the right to remain silent and refuse to answer questions;
Anything s/he says may be used him/her in a court of law;
s/he has the right to consult an attorney before speaking to the police and to have an attorney present during questioning; and
If s/he cannot afford an attorney, one will be appointed before any questioning if s/he desires

If the suspect then chooses to waive these rights and make a statement to the police, that statement may be admissible against the suspect in the event s/he is charged and prosecuted. When it comes to juvenile suspects, however, the police must take an additional step before such a waiver is considered to be valid. Specifically, the SJC has stated that the “circumstances and techniques of custodial interrogation which pass constitutional muster when applied to a normal adult” may not be “constitutionally tolerable” when applied to a juvenile. Thus, while juveniles may make an effective waiver of their Miranda rights, “special caution” must be taken in determining the validity of the waiver. The SJC has recognized that there are unique problems that arise with respect to waiver when the suspect is a juvenile, and therefore Massachusetts has adopted an “interested adult” rule regarding confessions. Under this rule, the Commonwealth must show that a parent or interested adult was present, understood the warnings, and had the opportunity to explain the rights to the juvenile so that s/he understands the significance of the waiver. Continue reading →

Published on: April 27, 2015

SJC Issues Decision on Parole for Juvenile Homicide Offenders

By Daniel Cappetta

On December 24, 2014, in Diatchenko v. District Attorney for the Suffolk District I, the Supreme Judicial Court ruled that all life-without-parole sentences for juvenile offenders, whether mandatory or discretionary, violate the prohibition against cruel and unusual punishment under Article 26 of the Massachusetts Declaration of Rights. This decision went beyond current federal law, which holds that mandatory life-without-parole sentences for juvenile offenders constitute cruel and unusual punishment under the 8th Amendment, but states that judges still have the discretion to impose such sentences following a hearing to determine whether life-without-parole is appropriate.

On March 23, 2015, the Supreme Judicial Court issued another decision, Diatchenko v. District for the Suffolk District II/Commonwealth v. Roberio, which addressed several questions “concerning how the opportunity for release on parole will be protected for juvenile homicide offenders” in Massachusetts. The decision specifically addresses three questions reported to the full SJC by the single justice regarding this issue. The SJC concluded that juvenile offenders convicted of homicide, sentenced to life, and seeking parole must have access to counsel, access to funds for counsel and expert witnesses if they are indigent, and an opportunity for judicial review of the parole board’s decision on their parole applications when they petition for release.

The Court explained that counsel must be provided to these juvenile offenders because “[a]n unrepresented … juvenile homicide offender will likely lack the skills and resources to [adequately] gather, analyze, and present” the “complex and multifaceted issues” involved in a parole hearing. The Court ordered that if an offender seeking parole is indigent, the public defender’s office – the Committee for Public Counsel Services – should provide representation.

In relation to the Court’s ruling that an indigent juvenile offender convicted of homicide must have access to funds to procure expert witnesses, the SJC explained that a psychologist or other expert may be crucial in explaining to the parole board the recent “scientific research on adolescent brain development [which] has revealed ‘myriad significant ways that this development impacts a juvenile’s personality and behavior,’ some of which suggest decreased moral culpability for certain juvenile homicide offenders or indicate a greater potential for them to mature to a point where they no longer engage in the behaviors that led to their crimes.” Continue reading →

Published on: April 1, 2015

SJC Mandates New Jury Instruction on Reasonable Doubt

By Daniel Cappetta

In a criminal case, the standard of proof is proof beyond a reasonable doubt. This means that the Commonwealth must prove the defendant’s guilt beyond a reasonable doubt before a jury can convict him. At the end of a trial, before the jury makes its determination as to whether the defendant is in fact guilty or not guilty, the judge provides the jury with instructions. These jury instructions are basically a set of legal rules that the jury must follow when deciding the case. One of the instructions provides a more in depth explanation of the meaning of reasonable doubt.

Over the years, two main instructions on reasonable doubt have developed. One comes from Commonwealth v. Webster, 5 Cush. 295, 320 (1850) and is referred to as the Webster instruction. The other comes from the Federal Judicial Center’s Pattern Criminal Jury Instructions. The Webster version informs the jury that reasonable doubt exists when “they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.” The Federal Judicial Center’s instruction states that “proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt.” Despite the length of time that has passed since the Webster instruction was written, and the fact that there has been some criticism of the charge for its outdated language, it has been the preferred version for criminal defendants for more than a century. While a defense attorney may request the Webster instruction, it has historically been up to the judge to determine the specific language of the reasonable doubt instruction.

Whether judges should continue to have such discretion, however, was recently addressed by the Supreme Judicial Court in Commonwealth v. Russell. The defendant in Russell was charged with indecent assault and battery on a child under the age of fourteen. The defendant’s lawyer requested the Webster instruction. The judge declined to give the Webster charge and instead gave an instruction that was a hybrid between Webster and the Federal Judicial Center’s instruction. The judge’s instruction omitted Webster’s directive that in order to find the defendant guilty, the jurors had to feel “an abiding conviction to a moral certainty of the truth of the charges.” In place of that language, the judge inserted the following language from the Federal Judicial Center’s instruction: “[P]roof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt…. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you think there is a real possibility that the defendant is not guilty, you must give him the benefit of the doubt and find him not guilty.”

Continue reading →

Published on: February 7, 2015

SJC Improves Jury Instructions on Eyewitness Identification

By Daniel Cappetta

In Commonwealth v. Gomes, a recent decision by the Supreme Judicial Court, the Court announced significant additions to the model jury instruction on eyewitness identification.

The facts of the case are as follows: In the early morning hours of September 10, 2011, the defendant walked into a gas station convenience store and bumped into a customer – Lindsay Holtzman. The defendant asked the clerk, Jordan Wilson, for matches and the clerk asked the defendant to apologize to Holtzman. The defendant declined to do so and challenged Wilson to a fight, which Wilson laughed off. The defendant then left the store. When the defendant exited, the victim and his friend, Gerald Mortensen, were sitting in the victim’s car in a well-lit section of the parking lot. The victim was in the driver’s seat and made eye contact with the defendant as he left the store. After the eye contact was made, the defendant asked the victim what he was looking at and the victim said he wasn’t looking at anything. The defendant then pulled a box cutter from his pocket, reached into the car, and slashed the victim’s face. Mortensen ran into the store and told the clerk to get help. Mortensen and Holtzman then left the store and watched the defendant walk backwards toward a corner of the parking lot.

Five days after the incident, Wilson went to the police station and a detective showed him close to a thousand photographs, including a photograph of the defendant. Wilson ultimately identified the defendant as the person who had been at the convenience store the evening of September 10^th and indicated that he was “110%” positive of the identification. The detective then created a photographic array with a total of eight pictures, including the defendant’s photograph, and showed the array to both Mortensen and the victim. Mortensen did not identify anyone in the array. The victim stated that he did not think that the assailant was in the photographs, but stated that he had to choose someone, it was the man with a similar chin; that person was the defendant. Holtzman did not view an array.

Several days later, on September 18^th, Holtzman, Mortensen, and the victim were together and stopped at a different gas station in the area. Holtzman and the victim went into the gas station’s convenience store, saw the defendant in the store, and recognized him as the assailant. They then left the store, confirmed with each other that they had just seen the assailant, and told Mortensen that the defendant was in the store. When the defendant left the store, Mortensen also agreed that it was the assailant. The victim called the police on his cellular telephone and, while speaking to the police, followed the defendant’s car to an apartment complex. The police arrived at the location shortly thereafter and asked the victim and Mortensen to participate in a show-up identification during which they both identified the defendant as the assailant. Holtzman was interviewed after the arrest and confirmed that the person in the convenience store on September 18^th was the same person that she had seen in the convenience store the night of the incident. Continue reading →

Published on: February 1, 2015

SJC Announces New Standard for Admission of Identification Testimony

By Daniel Cappetta

In Commonwealth v. Crayton and Commonwealth v. Collins, both issued on December 17, 2014, the Supreme Judicial Court established a new standard for the admission of in-court identifications of the defendant by eyewitnesses where the witnesses had not previously participated in an out-of-court identification procedure and/or the prior out of court identification was equivocal.

The facts in Crayton are as follows: two students studying in a public library claimed that a man seated near them at one of the library’s computers was looking at nude images of children. Prior to the trial, neither the police nor the prosecutor asked these eyewitnesses to participate in an identification procedure to determine whether they could identify the man they had seen at the computer – they were never shown a photographic array or asked to view a lineup. The first time they were asked to identify the man was on the witness stand at trial, which was more than two years after the first and only time they had seen him. At the trial, the prosecutor asked them whether they saw the man from the library in the courtroom and each of the witnesses identified the defendant.

The SJC held that where a prosecutor asks a witness at trial whether he or she can identify the perpetrator of the crime in the courtroom and the defendant is sitting at counsel’s table, the in-court identification is comparable in its suggestiveness to a show-up identification. The Court went on to state that in-court identifications may be more suggestive than show-ups because “the eyewitness knows that the defendant has been charged and is being tried for that crime. The presence of the defendant in the courtroom is likely to be understood by the eyewitness as confirmation that the prosecutor, as a result of the criminal investigation, believes that the defendant is the person that the eyewitness saw commit the crime. Under such circumstances, eyewitnesses may identify the defendant out of reliance on the prosecutor and in conformity with what is expected of them rather than because their memory is reliable.” In order to counter the risk of misidentification in such circumstances, the Court announced the following new rule based on common law principles: “where an eyewitness has not participated before trial in an identification procedure, we shall treat the in-court identification [of the defendant] as an in-court show-up, and shall admit it in evidence only where there is ‘good reason’ for its admission.” The Court stated that the new rule will apply prospectively. Continue reading →

Published on: January 7, 2015

Framingham Woman Charged with Driving to Endanger

By Daniel Cappetta

According to an article in the MetroWest Daily News, a Framingham woman was arrested after crashing her car into an apartment building this past week. The article states that the woman was driving her car in the area of Beaver Terrace Circle. She was reportedly circling through the area repeatedly and then parking and revving her car loudly. At one point, the woman apparently lost control of the car and crashed into a building at 107A Beaver Terrace Circle. She then reportedly reversed over the curb and hit a tree. The police were called to the scene and found the woman behind the wheel of the car with a bloody nose. She was reportedly speaking slowly and having trouble communicating, but she told police she had not been drinking and was not under the influence of drugs. Despite this statement, an officer overheard the woman tell a paramedic that she had taken Xanax. She was taken to Beth Israel Deaconess Medical Center in Boston to be treated, but police issued a summons for her to appear in court on a charge of driving to endanger. At the time that this alleged offense occurred, the woman was out on bail in a case out of the Marlborough District Court for charges of uttering and larceny. Because she was out on bail on the uttering and larceny case when she was charged with this new offense, the judge revoked her bail for ninety days at her arraignment on the new charge.

Under G. L. c. 276, § 58B, if a defendant is released on bail in a criminal matter and is subsequently charged with a new offense, a judge can revoke the defendant’s release on the open case and hold the defendant without bail for up to ninety days as long as three conditions are met. First, the court must find that there is probable cause to believe that the defendant committed a new offense while he or she was out on bail – generally a new arrest will satisfy this requirement. Second, the court must find that the defendant was given his or her “bail warning” at the arraignment on the pending case. In other words, the court must have warned the defendant that if s/he was arrested on a new case while s/he was out on bail then the bail in the pending matter could be revoked. The fact that such a warning was given should be marked on the court’s docket, and therefore a copy of the docket is generally sufficient to satisfy this requirement. Third, the court must find that there are no conditions of release that can satisfy the safety of the community, or a specific individual in the community. In other words, the court must find that there are not any conditions of release that could be imposed by the court that will ensure the community’s safety, or a particular person’s safety. Continue reading →

Published on: October 29, 2014

SJC Issues Decison on Fifth Amendment Privilege

By Daniel Cappetta

In its recent decision in Commonwealth v. LeClair, the Supreme Judicial Court reiterated that a witness’ ability to properly invoke his Fifth Amendment privilege does not depend on whether the prosecutor specifically intends to actually prosecute the case, rather what matters is whether the witness’ testimony could be used in a criminal prosecution, or could lead to other evidence that might be so used.

The facts of the case are as follows: in May of 2012, the defendant was arraigned on a charge of assault and battery as a result of an incident between him and his girlfriend. The alleged incident took place at a friend’s apartment. The friend, Mark Sheehan, was present in the apartment at the time of the alleged incident, and the Commonwealth summonsed him to testify at the trial. The trial judge appointed an attorney to represent Sheehan with respect to a potential assertion of his Fifth Amendment privilege against self-incrimination. Sheehan’s attorney reported to the court that Sheehan did indeed have a Fifth Amendment privilege not to testify, because, based on his answers to the questions expected to be posed to him, the testimony could expose him to criminal charges of possession of a controlled substance and conspiracy to violate the drug laws. The attorney further stated that Sheehan intended to assert his Fifth Amendment privilege.

Following a brief hearing, the judge ruled that Sheehan’s invocation of the privilege was not valid because Sheehan had not shown that he faced a real risk that his answers to questions would tend to incriminate him. The trial then started and the Commonwealth called Sheehan to the stand. The prosecutor did not ask Sheehan about his use of any illegal drugs during the evening prior to the alleged incident. On cross-examination, however, the defendant’s attorney did inquire as to Sheehan’s use of illegal drugs. Sheehan again attempted to invoke his Fifth Amendment privilege, but the judge ordered him to respond. Sheehan then answered two more questions, again, as a result of the judge’s orders. After those two questions were answered, Sheehan, upon advice of his attorney, continued to invoke his privilege and refused to respond to the defense attorney’s questions concerning his use of illegal drugs. The judge told Sheehan that his refusal to answer the questions based on a mistaken invocation of the Fifth Amendment privilege would result in a charge of contempt. The Commonwealth then filed a written statement with the court stating that it had no present, nor future interest in the prosecution of Sheehan for the illegal drug activity to which he would potentially be testifying. Sheehan, however, continued to invoke his Fifth Amendment privilege. The judge then found Sheehan in contempt and imposed a sentence of ninety days’ incarceration, but stayed the proceedings so that Sheehan could appeal the court’s ruling. Continue reading →

Published on: August 10, 2014

New Domestic Violence Bill Expected to be Signed into Law

By Daniel Cappetta

This past April, domestic violence legislation was proposed at the statehouse. Both the House and the Senate proposed somewhat different versions of the law, and this past week, a conference committee reconciled the two versions of the bill (SB1892 and H4037). Both the House and the Senate then passed the reconciled version – S2334 – into law. While the bill must still be signed by the governor before it actually becomes law, he is apparently expected to approve it shortly.

The legislation, formally named An Act Relative to Domestic Violence – creates a first offense domestic violence assault and battery charge, establishes a domestic violence offender registry, and provides education for judges and prosecutors about cycles of abuse. Though not every proposed new domestic violence offense, nor all suggested increases in fines/assessments for abuse victims or programs, were included in this compromised bill, most of the significant provisions of each version were incorporated.

Specifically, the bill includes the following changes to current law:

Amends the bail statute to require that persons charged with a variety of enumerated domestic abuse offenses may not be admitted to bail for six hours after arrest and before a written determination has been made with respect to conditions of release to reasonably assure the safety of the alleged victim;
Amends G. L. c. 276, § 58A dangerousness hearings to allow the hearings to be re-opened upon changed circumstances;
Requires a reasonable attempt be made to notify abuse victims of a defendant’s release from detention on bail;
Requires that police recruits, medical professionals, court personnel, district attorneys and assistant district attorneys all receive training relative to domestic and sexual violence;
Expands the amount of CORI information that may be disseminated to include dangerousness hearings, requests for dangerousness hearings, and determinations of dangerousness;
Establishes a Domestic Violence Fatality Review Team within the Executive Office of Public Safety (EOPS);
Requires that the Probation Department maintain a Domestic Violence Record Keeping System and requires that EOPS, in coordination with the Community Justice and Mediation Center (CJAM), adopt regulations for the standardization of rules relative to disseminating an individual’s criminal and civil court history to district attorneys, assistant district attorneys, defense attorneys, and judges in certain proceedings;
Authorizes eligible adults to possess self-defense (pepper) spray without a firearm identification card (which was previously required);
Makes communications between police and alleged victims of domestic violence confidential;
Prohibits visitation rights with a child for a parent who committed a rape, which resulted in the conception of that child, unless the child is old enough to choose to have contact with that parent;
Establishes a separate Domestic and Sexual Violence Prevention and Victim Assistance Fund;
Creates certain new offenses relative to assault and batteries on household and family members, and batteries involving suffocation/strangulation, as well as increasing certain domestic abuse penalties;
Establishes domestic violence leave pursuant to which an employee may take 15 days of leave a year from work if the employee suffers from domestic violence.

Continue reading →

Published on: July 15, 2014

SUPREME COURT RULES THAT POLICE MUST GET WARRANT TO SEARCH A SUSPECT’S CELL PHONE

By Daniel Cappetta

This past week, the United States Supreme Court issued a decision holding that “the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” The decision addressed two unrelated cases – Riley v. California and United States v. Wurie. Riley was stopped for a traffic violation in California. While searching Riley, a police officer seized Riley’s cell phone and searched it. The police found photos and video on the phone that linked Riley to a shooting that had occurred several weeks prior. Riley was subsequently charged with the shooting as a result of the evidence recovered from the phone. Wurie was arrested in Boston for drug distribution. After he was arrested, the police seized his phone. When they arrived at the police station, officers noticed that the phone was receiving several calls from a number saved as “my house.” Officers traced the number to what they believed was Wurie’s apartment, got a search warrant for the apartment, and ultimately recovered drugs, a gun, and ammunition from the apartment. Wurie was subsequently charged with additional drug and firearm charges as a result. While the underlying facts of each case were different, they both deal with the same issue: whether the police have the right to conduct a warrantless search of a suspect’s cellular phone after the suspect has been arrested.

Under the Fourth Amendment, a warrant is required before police can legally conduct a search. Despite this rule, however, there are a number of exceptions to the warrant requirement, including an exception for a search incident to lawful arrest. The search incident to lawful arrest exception allows for the warrantless search of a suspect after his arrest, which includes a search of the suspect’s person, and the area within the suspect’s immediate control. The rationale for the exception is that such a search is necessary to both ensure officer safety, and to prevent the destruction of evidence. In the cases of Riley and Wurie, the court was tasked with determining whether the police should be able to search the data contained on a suspect’s cellular phone in the same way that they can search a suspect’s pockets, or whether standards for cell phones should be different because of the vast amount of personal information they often contain.

When deciding whether an exception to the warrant requirement should be applied, the court must balance the degree of intrusion of an individual’s privacy interests against law enforcement’s need to promote a legitimate government interest. In these cases, the government argued that cell phones should not be treated differently from other objects found on an arrested suspect’s person, such as wallets, purses or address books, and noted that there was an inherent risk that data contained on cell phones could be remotely wiped and evidence lost if officers were required to obtain a warrant before searching the phone. Riley and Wurie argued that the very nature of cell phones and the quantity and quality of information that they contain set them apart from other items typically found on an suspect’s person, and therefore that a search of a cell phone constituted a greater intrusion on individuals’ privacy interests than the typical search incident to lawful arrest. Continue reading →

Published on: June 14, 2014

Massachusetts Parole Board Votes to Release Man Sentenced to Life Without Parole as A Juvenile

By Daniel Cappetta

Twenty years ago, a young man was sentenced to life in prison without the possibility of parole for a crime – felony murder – that was committed when he was seventeen years old. At the time of the crime, the defendant and a friend got into a car with three other men. The five drove around Brockton before the defendant’s friend told the driver of the car to stop at a house so that he and the defendant could rip off drug dealers that they thought lived there. When the defendant and his friend got back to the car, the friend told the driver to drive to a nearby park. Without a word, the friend shot the driver and the other two men in the car. One of the three survived by pretending to be dead and later identified the defendant’s friend as the shooter. The defendant told police he knew of the drug rip off, but did not know that his friend planned to shoot anyone and stated that the friend “just snapped.” The defendant and his friend were ultimately convicted of first-degree murder and both were sentenced to life in prison.

At the time of their conviction, Massachusetts judges were required to sentence defendants as young as fourteen to life in prison with no possibility of parole if they were convicted of first degree murder. Given the state of the law, the defendant went to prison with no reasonable hope that he would ever get out. Despite that fact, he signed up and participated in every educational and therapeutic program available to him. He also found a way to avoid any trouble or disciplinary tickets, which are issued for any failure to follow prison rules and regulations, including such minor infractions as taking too long in the shower. Prison life is extremely difficult and often violent – so much so that it is almost impossible for young prisoners to avoid conflict and thereby receive at least some sort of disciplinary citation. the defendant, however, managed to do so.

This past December, Massachusetts became the first state in the country to declare life without the possibility of parole sentences unconstitutional for juveniles. Specifically, in 2012, the United States Supreme Court ruled in Miller v. Alabama that it was unconstitutional to sentence defendants to life sentences without parole for crimes they committed as juveniles. The Court’s decisions was based largely on the growing scientific evidence that young brains are not as equipped as adult brains to control violent impulses and understand the consequences of rash behavior. The Miller decision led the Supreme Judicial Court to issue a similar ruling in December of 2013: Diatchenko v. District Attorney for the Suffolk District. The Diatchenko decision held that Massachusetts law imposing a mandatory life sentence without the possibility of parole for juveniles violated both the 8th Amendment prohibition on cruel and unusual punishment, and the analogous provision of the Massachusetts Declaration of Rights set forth in Article 26. Continue reading →