Massachusetts Criminal Defense Lawyer Blog

The 4th Amendment Implications of Police Officer Bodycam Footage

January 19, 2023 | by Michael DelSignore

The Massachusetts SJC heard arguments in Commonwealth v. Rainey regarding the 4^th amendment implications of police officer bodycam footage. In this case, an officer responded to a call at the defendant’s house and had a bodycam recording the outside and what could be seen of the inside of their house without a warrant. The basis for the claim was both the 4th Amendment of the Constitution and Article 14 of the Massachusetts Declaration of Rights.

There were two arguments. The first argument was that it was error to rely on an illegal audio recording to determine that Mr. Rainey had committed a new crime, therefore violating his probation. Here, the illegal audio recording formed the entire basis of the judge’s revocation of Rainey’s probation and drove the result. The Massachusetts Wiretap Statute makes it a crime to “willfully commit an interception, attempt to commit an interception, or procure any other person to commit an interception or to attempt to commit an interception of any wire or oral communication.” An interception means “to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or personal communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.”

In Commonwealth v. Yusuf, the SJC addressed privacy concerns of police body cameras recording the inside of people’s homes. This case mainly talked about video recording what was visible in plain view. The body cam was not obvious, and the officer even warned fellow officers that it was there since it wasn’t visible. The exceptions that would make this type of recording admissible are investigating organized crime or responding to a dangerous situation that is more than just an assault and battery. However, there is no exception for recording people in their private homes just because they sought the assistance of police.

The Role of the First Amendment Right to Free Speech in Public Town Meetings.

January 11, 2023 | by Michael DelSignore

The Massachusetts SJC grappled with a First Amendment free speech appeal in Barron v. Southborough Board of Selectman. The defendant had participated in a public meeting to present comments about recent illegal activity the town was committing. The defendant quietly waited for the public comments section of the meeting and then began by asking basic questions. When she asked about the reasoning behind a proposal for a town manager instead of a town administrator, she was told by the moderator that there was “no back and forth during public comment.” She then wanted to ask about the board participating in irresponsible spending and allegations of violations of law. When she began to do so, the moderator interrupted Barron saying, “if you want to slander town officials who are doing their very best then we will stop this public comment session.” Subsequently, the defendant stated, “you need to stop being a Hitler, I can say anything I want.” The moderator then got up, came toward the defendant, and started pumping his fist at her, yelling at her aggressively, calling her disgusting and threatening to have her removed. The transcript from this public meeting only reflected the defendant’s inappropriate comment, not the threatening and aggressive acts of the moderator that followed. Barron was then traumatized and afraid to go to any other meetings or participate in local affairs like she had done her entire adult life.

The defendant claimed a violation of her First Amendment right to free speech and Article XIX of the Declaration of Rights in Massachusetts. The case explained that “speech on public issue occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” In First Amendment cases, a plaintiff must prove that their “exercise or enjoyment of constitutional rights has been interfered with, or attempted to be interfered with, and that the interference was by threats, intimidation, or coercion.”

Additionally, both state and federal courts have developed the Public Forum Doctrine, where the extent the Government can limit access for those seeking to exercise protected speech in a particular forum “depends on whether the forum is public or nonpublic.” There are three categories of forums: Traditional Public Forums, Designated Public Forums, and Non-Public Forums. Traditional public forums include places such as public streets. Designated refers to places where the government has invited the public to a certain place to assemble and speak together. Lastly, non-public forums are forums which are limited to use by certain groups or isolated to certain subjects. The court determined that this meeting was a designated public forum since the public comment aspect invited public participation and the purpose was to invite the residents of the town to assemble and speak.

The powerful impact of hair comparison identification evidence in homicide cases.

January 4, 2023 | by Michael DelSignore

The Massachusetts SJC heard oral arguments on November 2, 2022 in Commonwealth v. Eagles, a case regarding hair comparison evidence in homicide cases. The defendant was a lookout for a breaking and entering of what he thought was an empty home and he later went inside to find a man lying on the floor bleeding and the man eventually died. Hair was found on the deceased victim’s hand and the Commonwealth went through various hair comparison techniques and determined that two of the hairs found were consistent with the victim’s head hair, and two other hairs were consistent with the defendant’s head hair.

According to hair comparison statistics at the time of the first trial, there was only about a 1 in 4,500 chance that a hair would match with someone, meaning it is consistent with various hair characteristics. These characteristics include but are not limited to hair shaft, hair length, whether the hair was forcibly removed, etc. It was determined during the first trial that Eagles’ hair matched the hair found at the scene, inferring that he was inside the home during the assault. Additionally, the victim’s hand where Eagles’ hair was found was tucked under his body, and that implied the defendant must have been inside the home when the assault occurred, because it was highly unlikely the hair accidentally got underneath the body.

The defense presented two arguments on appeal: 1) the hair evidence presented at the first trial was recently proved invalid, and 2) the hair comparison statistics were a large determinant in the jury’s decision to convict the defendant of first-degree murder. The statistical evidence about hair comparisons that was presented at Eagles’ trial was generally accepted at the time, but after a report and FBI agreement came out, it became evident that this type of evidence was invalid. The 2009 NAS report revealed fundamental flaws in hair comparison evidence, the most important being that there is no generally accepted number of characteristics required to match in order to deem hairs consistent with someone. And an FBI agreement from 2012 asserted that testimony which explicitly or implicitly suggests a statistical probability of a hair match like in the Eagles case goes beyond scientific proof and is erroneous. The report and FBI agreement became available after the Eagles case, and they cast doubt on this case as well as many others which relied on hair comparison as the main evidence upon which the defendant was convicted.

The Massachusetts SJC hears arguments in a case discussing searches and seizures of firearms based on anonymous tips.

December 27, 2022 | by Michael DelSignore

The Massachusetts Supreme Judicial Court heard oral arguments on December 5, 2022, in a case that discussed searches and seizures from a vehicle at one’s workplace based on anonymous tips. The defendant filed a motion to suppress the evidence found as a result of the search of his vehicle on the basis it was unlawful, and the court denied it. The defendant had two arguments as to why the previous court erred in ruling the Commonwealth did not violate Guardado’s 4th and 14th amendment rights and protection under Article 14 of the Massachusetts Declaration of Rights. First, the Commonwealth failed to demonstrate either the credibility of their informant or the credibility of the information, thus violating the Aguilar-Spinelli test, and also that the Commonwealth refused to instruct the jury about the exemption from liability that occurs when individuals have a firearm “in or on their place of business.”

Under the Aguilar-Spinelli test established by the US Supreme Court, police are required to demonstrate that an informant is credible or that their information is credible when they use that info to conduct a search warrant or warrantless arrest. Although this standard was abandoned by the Supreme Court in Illinois v. Gates and replaced by a “totality of the circumstances” approach, Massachusetts is one of the few states that has adopted this standard based on their own state constitution. In Guardado’s case, the officers searched the glovebox of his vehicle at his place of work based on an anonymous informant telling them a firearm was in a backpack within his vehicle. There were four reasons the search was improper:

The evidence didn’t establish the informant’s veracity or if he had firsthand knowledge of the info, as required under Aguilar-Spinelli

Massachusetts SJC hears argument in Commonwealth v. Hallinan raising the possibility of dismissing all OUI cases impacted by misconduct at the OAT

December 15, 2022 | by Michael DelSignore

The Massachusetts Supreme Judicial Court heard oral arguments on December 7th in Commonwealth v. Lindsey Hallihan. This case deal with the fall out from the Ananias litigation and the serious discovery violations that occurred, undermining the integrity of breath test results for a period of time from 2011 to 2019. In the Hallihan case, the defendant filed a motion for new trial based on the fact that her breath test was in the period of time where the discovery violations occurred. The trial judge denied the motion to vacate. The SJC has to decide what standard and remedy to apply when a defendant brings a motion to vacate.

The SJC looked to its case on prosecutorial misconduct from the drug lab scandal. The SJC was wrestling with the issue of whether it should:

Apply a global remedy and dismiss all cases with prejudice; or

Massachusetts SJC hears oral arguments in Commonwealth v. Hallinan regarding reopening old OUI cases based on problems with breath test evidence

December 6, 2022 | by Michael DelSignore

The Impact of OUI Cases Involving the Draeger Alcotest 9510 breathalyzer test

A case on appeal with the Supreme Judicial Court of Massachusetts presents several novel and important issues that could affect potentially tens of thousands of operating under the influence (OUI) cases in the state. In Commonwealth of Massachusetts v. Lindsey Hallihan, the Court must decide two major issues: 1) What is the standard to be awarded a new trial after a the accused plead guilty when it is disclosed that the State withheld exculpatory evidence? And 2) If a motion for new trial is allowed, can the Court require the RMV to give a defendant credit for any license loss should there be a conviction after a retrial when a retrial is based on the failure to disclose exculpatory evidence?

Background

Massachusetts Sexual Assault Conviction stands despite improper remarks by District Attorney regarding defendant immigration status

November 22, 2022 | by Michael DelSignore

In a Massachusetts sexual assault trial, the evidence can be fairly contested the job of the jury can be very difficult, given the emotions of these charges. Improper arguments by prosecutors can result in a defendant not receiving a fair trial.

“When Mexico sends its people, they’re not sending their best . . . They’re bringing drugs. They’re bringing crime. They’re rapists.” This harmful rhetoric espoused by former President Donald Trump may shock the senses for some, but, at its core, his words brought to light just how widespread prejudice against undocumented immigrants was. Knowing this, the injustice is almost palpable when you consider the prosecutorial missteps in the trial of undocumented immigrant, Claudiano Santana.

In Commonwealth v. Santana, released last month, the Massachusetts Appeals Court ruled against appellant Claudiano Santana, upholding his convictions of three counts of indecent assault and battery on a child under the age of fourteen. The focus of the appeal? Prosecutorial remarks and questions about Santana’s immigration status and ability to speak English.

Is A Defense Lawyer Breaching His Ethical Duty To A Defendant When He Discloses Evidence That Points To A Defendant’s Guilt? The Massachusetts SJC To Decide.

July 3, 2022 | by Michael DelSignore

A defense attorney has a duty to represent their client “zealously within the bounds of the law.” An attorney also must share evidence through discovery with opposing counsel. A defendant, as per the Fifth Amendment, has the right not to incriminate themselves. This right spans from a defendant not incriminating themselves during police interrogation, all the way to the courtroom and not requiring a defendant to testify against themselves. These basic principles of criminal law work in tandem to protect the accused and make sure they are “innocent until proven guilty.” The work of these two principles is essential in protecting the rights of the accused.

In a case of first impression for the Massachusetts, Commonwealth v. Tate, the SJC is to decide whether defense counsel disclosing the location of a jacket and gun used in the commission of an alleged crime to the prosecution was a violation of the duty to the defendant.

How did the defense attorney find out about the evidence?

Massachusetts SJC Considered How A Bar Applicant Could Show They Were Qualified for Admission to the Bar with Prior Transgressions?

July 1, 2022 | by Michael DelSignore

The character and fitness portion of the bar exam serves the purpose of ensuring that barred attorneys are morally fit for the practice of law and deserving of the trust of the people. The character and fitness questionnaire usually asks about past criminal conduct or civil violations, academic or employment misconduct, mental health or substance abuse issues, and financial history. If an applicant does not pass the character and fitness portion of the bar, they cannot sit for the test portion.

If an applicant has prior transgressions, it does not mean they are automatically disqualified from the bar. An applicant must show they appreciate the wrongfulness of their past misconduct and they understand professional conduct for Massachusetts lawyers. The applications are reviewed on a case-by-case basis. This was the question in Lionel Porter v. Board of Bar Examiners decided by the Supreme Judicial Court.

What prior transgressions did Lionel Porter have?

Is Expert Testimony Required To Explain Email Subscriber Information In a Massachusetts criminal trial?

June 29, 2022 | by Michael DelSignore

As society and technology evolve, the courts need to evolve with it. A pressing issue that courts have had to deal with is the use of digital data in criminal cases against defendants, particularly emails.

Not only can the contents of an email be evidence against a defendant, but the metadata behind the email and the account, such as date and time of creation and IP address, are being used more frequently in courts. The Court in Commonwealth v. Michael Middleton considered whether expert testimony is required to explain email subscriber information in a criminal case.

What is the standard for admitting electronic communications?