Massachusetts Criminal Defense Lawyer Blog

HGN field sobriety test

July 27, 2011 | by Michael DelSignore

In defending charges of DUI in Massachusetts, one of the field sobriety tests that appears frequently in police reports and causes the most confusion for people arrested for drunk driving is the Horizontal Gaze and nystagmus field sobriety test, sometimes referred to by those arrested as the pen test.

It is understandable why this test causes some much confusion because it does not appear to have an scientific basis or reliability. You are on the side of the road, cars going by, and the officer is waiving a pen quickly in front of your face. If you stopped and asked most officers what they are looking for, many probably could not correctly explain the correct procedure in administering the test.

Fortunately, the HGN test is typically not admitted into evidence at a Massachusetts DUI trial as a result of the decision of the Massachusetts Supreme Judicial Court in Commonwealth v. Sands. The HGN test can be admitted; however most prosecutors do not attempt to admit the test into evidence.

In some cases, I have used the HGN test to discredit the officer and demonstrate that the investigation was not properly conducted, so what are the signs that someone exhibits nystagmus.

The first clue that the officer looks for is lack of smooth pursuit. The officer is suppose to start with the pen in the center and move it to the left, taking two seconds out and two seconds back for a complete pass and following the same procedure for the right eye. The idea is that the officer is looking to detect any involuntary jerking of the eye, called nystagmus of which alcohol is one of many causes. Click here to read about court decisions regarding the HGN test.

The second clue is referred to as distinct and sustained nystagmus at maximum deviation. For this clue, the officer is suppose to move the pen until the eye has gone as far to the side as possible. The officer is then required to hold the pen in this position for a minimum of four seconds and observe to determine if there is an involuntary jerking of the eye. In many cases, the officer does not recall that the correct administration of this part of the test requires that the pen be held for four seconds at maximum deviation.

The final clue on the HGN test is called onset of nystagmus prior to 45 degrees. The officer is suppose to start with the stimulus in the middle and move it toward the right shoulder at a speed that would take four seconds to reach the edge of the left shoulder. In many cases, when officer perform this test, they are rapidly moving the stimulus contrary to the clear instruction of the police training manual.

With this clue, the officer is looking to see if there is any involuntary jerking of the eye prior to 45 degrees and is suppose to hold the stimulus to verify that it continues.

Although this test is rarely used in Massachusetts, according to the National Highway Traffic Safety Administration Study, the HGN test is the most accurate of the field sobriety tests at 77% reliable, as compared to 68% for the nine step walk and turn and 65% for the one leg stand. The head Police officer for the Massachusetts State police who speaks occasionally at drunk driving seminars for lawyers has repeatedly indicated his confidence in the reliability of the test. I have had an officer testify that he has never had a suspect fail the HGN test who was under the legal limit. During that hearing, the officer demonstrated how he conducts the test and did it in a very rapid fashion contrary to the careful and deliberate process outlined in the police manual.
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Man Charged With Trying to Kill Girlfriend in Marlborough Domestic Violence Incident

July 27, 2011 | by Michael DelSignore

A Franklin man has been charged with trying to kill his girlfriend in a Marlborough domestic violence incident, The MetroWest Daily News recently reported.

Domestic violence charges in Marlborough require an experienced Massachusetts Criminal Defense Attorney be immediately consulted to sort out the real facts.

In this case, Richard Waters, 26, was arraigned Wednesday in Marlborough District Court on 14 charges: attempted murder, assault with intent to intimidate, assault and battery, assault with a dangerous weapon, reckless endangerment of a child, car theft, threatening to commit a crime, vandalizing property, driving with a suspended license, failing to stop for police, negligent driving, using a car without authority, a marked lanes violation and speeding, police said.

According to police, the couple and their child spent the day together at Hopkinton State Park one day in early July. When they got home, the couple allegedly got into a fight, with Waters allegedly choking the woman three times, punching a hole in the wall and making several threats.

After the alleged outburst, he took her car keys and left, leading police on a high-speed chase. He was driving 70 mph in a 30 mph zone at times; the chase lasted until he drove off the road and ran into the woods. After officers searched the area using a police dog, they called off the search. An arrest warrant was issued and he was later detained.

The newspaper later reported that he was being held without bond after a dangerousness hearing. Prosecutors allege the man is a member of the Framingham street gang the Kendall Street Thugs.

In domestic violence cases, law enforcement officers typically have very little evidence on which to bring charges. But because of the stigma attached to these events, they are sometimes worried that not making an arrest could lead to further violence.

So, sometimes, they listen to the person who claims to be the victim and make an arrest with little evidence. With little corroborating evidence, a person is sometimes carted off to jail, has their mug shot published by the media and suffers other consequences.

Defense to domestic violence-related charges that an aggressive Massachusetts Domestic Violence Attorney will pursue, include:

Self defense. In this type of defense, an attorney can seek to suggest the alleged victim in fact perpetrated the violence. It’s possible to show they are the aggressor.

Fabrication by the victim. In cases of divorce, a break-up, or other situations, alleged victims will lie to police as a form of revenge or pay back.
Ulterior motivation. Sometimes, alleged victims believe that a partner picking up an arrest record or conviction can benefit them financially or otherwise and will stretch the truth.
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Massachusetts criminal defense attorney comments on court decision involving voluntariness of statement, police agree is “off of the record”

July 25, 2011 | by Michael DelSignore

The Massachusetts Supreme Judicial Court in the case of Commonwealth v. Mark Tremblay addressed whether the defendant’s statement was voluntary when the police agrees that it would be off of the record. The issue before the court was not whether Miranda warning had been given, as the Massachusetts criminal lawyer conceded that the defendant was not in custody triggering the requirements of Miranda. Click here to read a copy of the SJC decision in Tremblay.

A criminal defense lawyer can typically challenge an incriminating statement on two separate but related grounds. First, whether an incriminating statement was obtained in violation of Miranda; or second, whether the police violated a defendant’s privilege against self-incrimination and infringed upon due process of law by coercing a statement from a defendant.

The SJC held that the test for whether a confession is voluntary is to view it in light of the totality of circumstances surrounding the making of the statement. The Court will consider whether the will of the defendant was overborne to the extent that the defendant’s statement was not the result of a free and voluntary act. The SJC stressed that relevant factors include, but are not limited to, promises or other inducements, conduct of the defendant, age, education, intelligence and emotional stability, experience with the criminal justice system, physical and mental condition. Further, the SJC will consider who initiates the discussion of a deal for leniency, whether the defendant or the police and the detail of the interrogation including the recitation of Miranda warnings.

The Massachusetts Supreme Judicial Court in Tremblay emphasized that police should use caution in using deception or trickery during an interrogation. The Court stressed that trickery does not compel suppress of the statements but is one factor for the court to consider. Further, the SJC noted that suggestions by the police that the defendant would benefit from the confession may raise issues of whether the confession is voluntary.

In viewing the Tremblay case, the Court said that the officer’s actions did not fall neatly into either category of trickery or making assurances that the defendant would benefit from confessing.

Key to the SJC determination that the officer did not use trickery was the fact that he agreed to the defendant suggestion that the comments would be off of the record and not included in the written portion of the statement, but never made any promises of protection or leniency. The SJC found no evidence of coercion of the officer as a result of his agreeing that statements be off of the record and held that the statements were properly admitted at trial.

In a dissenting opinion, two members of the Massachusetts Supreme Judicial Court, Justice Gants and Ireland disagreed with the majority of the Court and would have suppressed the statements and wrote separately in a dissenting opinion discussing their reasoning.

Justice Gants wrote that in Commonwealth v. DiGiambattista, the SJC recognized that police trickery during an interrogation may cast doubt on the voluntariness of a suspect’s statement. The DiGiambattista decision held that a Massachusetts criminal lawyer may request an instruction that a jury can view a confession that was not recorded on video tape with caution if the police do not electronically preserve the interrogation.

Justice Gants outlined three forms of police trickery that may undermine the voluntariness of a confession: false promises of leniency in return for a suspects statement, false representation regarding the right to represent himself during trial, and false promises that the statement will not be used against a suspect. Justice Gants notes that the majority indicated that an assurance that a statement will be off of the record should be avoided, but failed to find the statement involuntary despite case law from other jurisdictions where suppression was deemed appropriate.
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Discussion on attacking the one leg stand field sobriety test at a DUI trial

July 11, 2011 | by Michael DelSignore

This is Massachusetts DUI lawyer, Michael DelSignore Second blog on field sobriety testing as part of a five part blog series that will be published on this Blog.

The One Leg Stand field sobriety test is the most difficult test given by the police because many people cannot perform this test even if no alcohol is consumed. Accordingly, the idea that failure on this test means someone is under the influence of alcohol is flawed from the start. Even when given under ideal conditions, the test is only 65% reliable according to the studies regarding this exercise. I have attached a link to a field sobriety test student manual used by police officers.

The One Leg stand has the following clues that the officer is suppose to observe:

Sways while balancing
Using arms for balance
Hopping
Puts foot down

If a person exhibits two or more clues, that is considered a failure. Though not listed as clues, an experienced Massachusetts OUI attorney will also point out other factors showing good mental ability and coordination.

Like the nine step walk and turn, the one leg stand has an instruction phase. Accordingly, when a person maintains balance during the instruction phase, and starts the test at the appropriate time, those factors showing that the motorist can follow instructions demonstrating, a normal mental ability. Typically, there is no mention of any difficulty maintaining balance during the instruction phase. The idea behind this test is to stress for the jury that the motorist had normal balance other than when required to perform the difficult exercise of balancing on one leg.

While the test requires someone to balance until the count of 30, most jurors probably would consider the test as successfully completed with someone who balances for a much shorter period of time. Further, the inaccuracies of the scoring can be pointed out as typically the officer will not put the details in the report that justified the conclusion. One of the clues on the one leg stand is that a person cannot use their arms for balance; however, the training of the officer states that the arms have to be more than six inches from the body. In many cases the details of how someone performed are missing from the police report.

If you read your police report and see that the officer found you failed the one leg stand, your case can still be won. In almost all cases, the police will claim that a motorist failed field sobriety tests. The one leg stand is the most difficult exercise to perform; even the police training manual, states that some people cannot perform the test, including someone over 50 pounds overweight or over the age of 65. As a result, the officer would have to admit that the test is easier for someone younger and in shape, then for someone older, who has been working throughout their life and may have physical injuries. In fact, the early versions of the police training manual stated that some people could not perform the one leg stand test even without consuming any alcohol; this language has since been removed from the manual.

Techniques to minimize the one leg stand at trial:

Point out that the motorist had no trouble with balance when on two feet, listening to the instruction to the one leg stand, no trouble with balance getting out of the car, did not stumble when walking on the nine step walk and turn, and had no difficulty with balance during booking.
Stress that this is a physical fitness test and is one size fits all, the officer gives the same test to a college student as a carpenter who has spent years working doing manual labor. The older person, with physical aliments, is disadvantaged from the start.
underscore that even the Government study indicates that the test is only 65% reliable, under perfect conditions. A 35% failure rate should raise a reasonable doubt.

The Nine Step Walk and turn field sobriety test

July 1, 2011 | by Michael DelSignore

Fighting a Massachusetts DUI charge at trial often involves contesting the reliability of field sobriety tests. To help readers better understand how these tests should be performed, what clues to look for and way to challenge these exercises at trial, I am going to write a series of blogs on the three standardized field sobriety tests, the nine step walk and turn, one leg stand, horizontal gaze test, other non-standardized tests that are used by police. The final Blog in this series will discuss what the police training manuals tells the officer to look for when observing your driving and making the initial contact with you at the scene of the motorist vehicle stop. In this Blog, I will discuss the nine step walk and turn field sobriety test.

The walk and turn field sobriety test is an exercise that many people perform very well on even when arrested for drunk driving in Massachusetts. While the officer will likely say you failed, the purpose of this blog is to explain to you what the officer should have been looking for and how the results of this test can be used in front of a jury to argue that you were not under the influence of alcohol and to achieve a not guilty verdict.

A police officer is suppose to score the nine step walk and turn according to his police training, which is based on the National Highway and Detection Field Sobriety Test Manual. I have a copy of these manuals for the various officer; there are about four different manuals depending on when an officer was trained; however, the testing procedure is basically the same for each manual. Click here to see a copy of a police training manual.

What does an officer look for on the nine step walk and turn.

Cannot keep balance during the instructions; this is maintaining the heel to toe stance during the instruction phase
Starts before the instructions are finished
Stops while walking
Does not touch heel to toe: This is an important clue because some officers make the test more difficult to perform by not recognizing that the feet do not have to touch. The training manual of the officer indicates that there can be a one-half inch space. Most officer do not recall from their training that the heel and toe do not have to touch for the test to be performed correctly.
Steps off of the line
Uses arms for balance: This is another clue that requires the arms to be more than 6 inches from the body. The arms do not have to be glued to the person’s body. Most officers do not tell the suspect that the arms do not have to be stuck to the person’s side.
Improper turn
Incorrect number of steps

It is considered a failure on the nine step walk and turn if two or more clues are present. However, the test is only deemed 68% reliable if given under ideal conditions. There are many ways to attack the reliability of the exercise based on medical conditions, weather conditions or conditions of the roadway where the test was performed, but for the purpose of this Blog Post, I will discuss how taking the officer’s training, this exercise can be used to help demonstrate normal coordination and mental ability, which is vital to winning a DUI trial.

In using this test at trial, one common method for a Massachusetts DUI lawyer is to change the jury view of the scoring on the test. Many reports do not contain any details of a motorist stepping off the line. Typically, there is no designated line, making the test harder. Given there are nine steps forward and nine back, one way to look at the scoring is to divide up each of the clues and base the scoring on a maximum of 18 points for each part of the test done correctly. This method of changing the scoring on the field sobriety tests is stressed at conferences held by the National College of DUI Defense.

Missing heel to toe: in some reports the officer states that the person missed heel to toe on 2 or 3 steps; if this is the case, the idea is to show the jury that overall the motorist did very well, scoring 16 for 18, on an unfamiliar test, under difficult conditions.

Taking the correct number of steps is also a good opportunity to demonstrate good mental ability, because it requires the person to count while performing a physical exercise.

Since the nine step walk and turn has so many different components and potential places for a defendant to make a mistake on the exercise, it provides a DUI lawyer with many opportunity to stress positive aspects of the performance that demonstrate good ability to follow instruction, to think clearly and to demonstrate good coordination.

When looking at your police report in your case, it is important to understand how the exercise is to be scored, what other clues the officer could have found, to evaluate how this exercise will be used at trial.
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United States Supreme Court agrees to hear Confrontation Clause case of Williams v. Illinois addressing questions raised in recent Bullcoming decision

June 29, 2011 | by Michael DelSignore

The United States Supreme Court has agreed to hear another case raising the issue of the scope of the Sixth Amendment Right of Confrontation. The case of Williams v. Illinois directly raises the confrontation clause issues raised in the concurring opinion of Justice Sotomayor. The filings in the Williams case can be found on the Scotus Blog, attached as a link here.

The Williams case involved charges of sexual assault, kidnapping and robbery. The defendant allegedly grabbed the victim while she was walking home and sexually assaulted her. In the case, according to the police, the victim initially identified her attacker as a man named McChristine, but later told the police that he was not the attacker.

Over a year later, the defendant was arrested and identified by the victim as her attacker through a line-up identification procedure. At trial, the State called a forensic scientist to testify, Sandra Lambatos who testified that samples from the victim’s sexual assault kit were sent to Cellmark diagnostic laboratory for DNA analysis. Lambatos testified that Cellmark derived a DNA profile for the person whose semen was recovered from the victim. The expert witness testified that in her opinion the profile matched the defendant. The testifying expert at trial did not know what procedures were used by the lab, whether the lab calibrated its equipment, and how samples were handled once received. At trial, no witness from Cellmark testified and the report was not introduced into evidence.

United States Supreme Court decision in Bullcoming v. New Mexico

June 23, 2011 | by Michael DelSignore

The United States Supreme Court issued its decision in Bullcoming v. New Mexico today, holding that the Sixth Amendment precludes the State from introducing a lab report of a forensic blood test without calling the analyst who conducted the analysis. The State attempted to satisfy the confrontation clause by calling a different analyst who did not conduct the test but was familiar with blood testing procedures. The United States Supreme Court found that the defendant’s right of confrontation was violated by this procedure in a 5-4 decision. Click this link to read a copy of the decision.

The decision of the Court is notable in that four justices viewed the result to be governed by the Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009). The Court rejected the argument that the seeming reliability of scientific evidence does not exclude this evidence from being subject to the Confrontation Clause. The Court cited argument raised in the brief of the National Association of Criminal Defense Lawyers that errors in forensic blood test are not so remote to be negligible.

Finally, the court rejected the argument that requiring live testimony is too burdensome for the State. As in Melendez-Diaz, the Court stressed that notice and demand procedures can be used to help reduce the expense of having a forensic expert testify in court.

Massachusetts Supreme Judicial Court holds that RMV documents are testimonial requiring the opportunity for Confrontation under the Sixth Amendment.

June 10, 2011 | by Michael DelSignore

The Massachusetts Supreme Judicial Court decided today that Registry of Motor Vehicle documents are testimonial, requiring the Commonwealth to present the testimony of a live witness to admit the records into evidence at the time of trial. The SJC announced its decision in the case of Commonwealth v. Parenteau.

In the case of Peter Parenteau, a judge of the Ayer District Court admitted a certification from the RMV stating that the defendant was mailed notice that his license was suspended for ten years. The defendant had accepted a guilty plea to an OUI charge in the Palmer District Court and believed that his license was suspended for two years. It is likely that the prosecutor did not know of the other, likely out-of-state convictions, and believed that the defendant only had one prior OUI offense; however, the RMV records must have indicated that the defendant had three other Prior DUI convictions in addition to the Palmer conviction to trigger the ten year license suspension. A Fourth Offense Massachusetts DUI charge carries with it a ten year license loss; in some case the RMV records differ from the record of conviction possessed by the court, in those cases, the RMV will always rely on its own records in imposing a license suspension.

In Parenteau, the RMV purported to mail the notice to the home of the defendant’s parents and at the time he was no longer living at that residence. Accordingly, at trial, the defendant was contesting the issue of whether he received notice of the suspension.

The SJC, following the landmark United States Supreme Court decision in Melendez Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) held that the RMV documents were testimonial because they were used to establish the fact that the defendant was mailed notice of the suspension. The Court held that the RMV documents were no different than the drug certification at issue in Melendez-Diaz as the certification was a solemn declaration created for the purpose of proving some fact.

The SJC rejected the Commonwealth’s argument that the RMV certification was a business record because the court held that it was not created at the time that the notice was purportedly mailed. The SJC indicated that it would have considered the notice a business record if the notice was created contemporaneous with the mailing of the notice to the defendant.

The SJC’s decision will likely result in the RMV changing its policy to create a contemporaneous business record when mailing notice of a license suspension. Even if a business record existed in this case, the defendant was contesting the issue of where the notice was sent and whether it was sent to the correct address; accordingly, the defendant still would have had the right to confront a witness from the RMV regarding where and when the notice was sent.

As a Massachusetts DUI lawyer, the decision of the SJC was contrary to several recent decisions rejecting Confrontation Clause challenges and could signal a change in the court’s interpretation of the right of confrontation. In the context of the Parenteau case, where the trial centered around the issue of whether the defendant received notice, it is clear that the SJC made the correct decision as the defendant was essentially denied any opportunity to contest the issue at trial without being provided the opportunity for cross examination.

For Massachusetts OUI lawyers, this decision may mean that the Commonwealth will be unable to prove any charge of operating with a license suspended for OUI or other unlicensed charges as the RMV does not have contemporaneous business records and likely has no ability to track the identity of the person who sent the notice to present live witness testimony. Accordingly, I would expect that many of these charges will be dismissed as a result of this decision.
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Fourth Offense Massachusetts OUI conviction upheld by the Appeals Court

June 7, 2011 | by Michael DelSignore

A Massachusetts Fourth Offense OUI conviction was upheld by the Appeals Court in the case of Commonwealth v. Russell Beaulieu, decided on March 18, 2011. The Beaulieu decision also involved the issue of refusing field sobriety tests which was the subject of an earlier blog.

In the Beaulieu case, the Massachusetts DUI lawyer argued that because the defendant was charged with a Fourth Offense drunk driving charge and the charge of operating with a suspended license because of an OUI conviction that the court should bifurcate the counts of the criminal complaint in order to ensure the defendant a right to a fair trial.

Ordinarily, in a charge of a Second or Third DUI, the jury does not learn of the prior convictions. The jury decides whether the driver operated under the influence of alcohol and in a separate proceeding either a judge or the same jury decides the number of prior offenses. Because of the charge of operating on a suspended license for OUI, the jury learned of the prior conviction.

The Massachusetts Appeals Court did not address the obvious prejudice to the defendant in refusing to severe the counts for trial, but held that the evidence of the prior conviction was necessary to prove the Count of operating on a suspended license for OUI. Additionally, the Court noted that the jury was properly instructed on the purpose for which that evidence was offered.

The Appeals Court distinguished the reason for the separate trial on the number of prior DUI offenses because it held that in those situations the court was dealing with a sentence enhancement and not an element of the offense.

As a Massachusetts DUI attorney, I would expect the Massachusetts Supreme Judicial Court to grant further appellate review. While courts do not like to severe counts of a criminal complaint because it is more time consuming for the court, here, that was required to preserve the defendant’s Sixth Amendment right to a fair trial. Having heard that the defendant had a prior OUI offense and continued to drive, the defendant was clearly prejudiced in front of the jury regarding this count.

While the defendant may not have been willing to accept a plea on the Operating on a suspended license charge, as it would have involved jail time, it would have been a way to avoid the prejudice of this evidence coming in at the time of trial. However, it is unfair to require a defendant to surrender his right to a jury trial in order to obtain a fair trial. In this case, the only avenue will be an appeal to the SJC in the hopes that the highest court in Massachusetts, reverses the conviction and orders a new trial.
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Massachusetts Sex Crimes Lawyer reviews recent Indecent Assault and Battery Case addressing excited utterances and the Right of Confrontation

June 2, 2011 | by Michael DelSignore

The Massachusetts Appeals Court in the case of Commonwealth v. Figueroa, decided on April 29, 2011, upheld a defendant’s conviction for indecent assault and battery in Chelsea, Massachusetts despite arguments that the court improperly allowed statements of the victim into evidence without providing an opportunity for cross examination.

In Figueroa, the defendant was working at Fairlawn Nursing Home in Leominster, Massachusetts and was alleged to have had sex with an eighty-six year old woman suffering from dementia. At trial, the victim did not testify, but two witnesses from the hospital did testify, including a witness that claimed to have witnessed the incident.

The legal issue surrounding this Massachusetts sex crime was whether statements that the victim made to another CNA describing the defendant’s actions, in having sex with the victim and indicating that the defendant claimed to be performing a test on the victim. The Massachusetts criminal attorney objected to these statements being admitted into evidence.

The Appeals Court stressed that an excited utterance is admissible if it is made following an occurrence or event that is sufficiently startling to render inoperative the normal reflective process and the statement was a spontaneous reaction to the occurrence or event.

Having found that the statement was admissible under the rules of evidence, the next issue for the Appeals Court was whether the statement could be admitted without providing the defendant an opportunity for cross examination of the speaker. Accordingly, the Court addressed the issue of whether the statements were testimonial.

The Court discussed that statements made in response to law enforcement questioning are testimonial per se, except where the statements are meant to secure a volatile scene or to establish the need to provide medical care. The Court went on to stress that it will evaluate whether or not a statement is testimonial based on whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting a crime.

The Appeals Court concluded that the victim’s statement that the defendant did the test again indicates that the victim understood the question to be about her medical condition. The Court held that the inquiry is whether a reasonable person in the declarant’s position would objectively believe that the statement would be used in a criminal prosecution. The Court held that the declarant would not have reasonably believed her statements would be used to prosecute the defendant.

The decision of the Appeals Court is difficult to reconcile with the decision of the United States Supreme Court in Michigan v. Bryant and I would expect the SJC to reverse the conviction should further appellate review by sought. In Bryant, the United States Supreme Court held that the statement of a victim identifying the person that shot him was nontestimonial because the police were responding to an ongoing emergency.

In contrast, in the case of Figueroa, the victim was describing a past criminal act. The victims purpose in describing the actions of the defendant were not to obtain further medical treatment, but to describe what happened to her; the fact that the victim may not have known of the illegality of the conduct cannot negate that the objective purpose of the statement was to describe the criminal conduct of the defendant. Further, at the time of the statement, there does not appear to be any ongoing emergency as other hospital employees had come into the room. Additionally, the purpose of the victim being questioned was to determine whether the defendant had committed a criminal act in his care of the victim. Accordingly, when the victim was being questioned by the hospital employees, the employees were acting essentially as police officers trying to determine what had happened at a crime scene. In a footnote, the Appeals Court note that the employee testified that when she first spoke to the victim she did not think she would have to report anything to the police, but it was only after hearing the victim’s response that she realized she would be required to notify the police.

The result in this case deprived the defendant of his Sixth Amendment Right of Confrontation and I would expect the SJC to reverse if further appellate review is granted.
The Court’s decision undermines the basic purpose of the right of confrontation to allow for face to face confrontation of an individual accuser at a criminal trial.
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