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Recently, the Supreme Judicial Court ruled on what the government must show in order to obtain an order compelling a defendant to enter his password into a locked phone. While holding that compelling such an act is testimonial in nature and does implicate a person’s right agaiiphone-smartphone-apps-apple-inc-40011nst self-incrimination under the Fifth Amendment and art. 12 of the Massachusetts Declaration of Rights, the Court held that where the government can prove beyond a reasonable doubt that it already knew that the defendant knows the password, the information sought is a foregone conclusion and compelling the defendant to enter the password is constitutionally sound.  Continue reading

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Recently, national news outlets reported that President Trumps’ attorney, Michael Cohen, had surreptitiously recorded conversations between the two discussing a deal with Stormy meeting-with-phoneDaniels. While it seems that Trump had no indication that he was being recorded, and, according to his tweets, was shocked and indignant with Cohen’s actions, New York is a one-party consent state and (putting attorney/client confidentiality issues aside) Mr. Cohen’s actions appear not to have been illegal. That would not be the case in Massachusetts. Our Commonwealth is a two-party consent state; the Massachusetts Wiretap Statute requires that all parties to the communication consent to the recording. In this post, I will explain what actions are illegal, the potential consequences of violating the law, and whether the law applies to recording of police officers. Continue reading

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On June 28, 2018, Charlie Baker signed An Act Relative to Minimum Wage, Paid Family Medical Leave and the Sales Tax Holiday, part of a “grand bargain” between social justice advocates who pushed for paid family leave and a higher minimum wage and retail business representatives who urged a lower sales tax.

Family-LeaveWith passage of this law, Massachusetts is now the sixth state (plus Washington D.C.) to offer paid family and medical leave to employees. It will also outdo the U.S., which is currently the only country in the 41 Organization for Economic Cooperation and Development (OECD) and European Union nations that does not offer any paid family or medical leave.

In this post, I will focus on the family and medical leave portion of the new law, which will take effect in 2021, and the legal protections it will provide for Massachusetts employees.

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SJC-Victim-Sentencing-Recommendations

In the recently decided Commonwealth v. McGonagle, the Supreme Judicial Court considered whether a Massachusetts statute that allows victims of crimes to recommend a sentence violates (1) the Eighth Amendment to the U.S. Constitution and Article 26 of the Massachusetts Declaration of Rights (particularly in light of the U.S. Supreme Court’s recent decision in Bosse v. Oklahoma, 137 S. Ct.  1 (2016)); and (2) the defendant’s due process rights. The SJC concluded that consideration of a victim’s sentence recommendation in a non-capital case does not violate either the federal or Massachusetts constitutions. While victims’ accounts regarding the effect of the crime provide relevant information for a sentencing judge, allowing victims to make a specific sentence recommendation seems unfairly prejudicial to the defendant and irrelevant, and the SJC’s reasoning in this case does not go far enough in addressing these concerns.

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In August 2014, former Massachusetts Governor Deval Patrick signed into law An Act Relative to Domestic Violence. This law ushered in many changes in Massachusetts criminal law and procedure, which will be a topic of several blog posts here at bostonlawyerblog.com. In today’s post I will be addressing one of two new crimes created by the law: domestic assault/assault and battery, Mass. Gen. Laws. ch. 265, § 13M.

A&B on a Family or Household Member 

Before delving into how this new crime of domestic assault/assault and battery is different, we must first examine the existing crimes of assault and assault and battery. An assault is either (1) an attempted battery or (2) an immediately threatened battery, where a battery is a harmful or unpermitted touching of a person.

To convict a defendant of an assault and battery, the Commonwealth must prove that:

(1) the defendant touched the person of another without having any right or excuse for doing so;
(2) the defendant intended to touch that person; and
(3) the touching was either harmful or was done without the person’s consent.

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“Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in 72% of convictions overturned through DNA testing.”

Innocence Project.

Two cases recently decided on the same day by the Supreme Judicial Court (“SJC”) have made important strides in helping prevent wrongful convictions due to misidentification.  In Commonwealth v. Crayton, the SJC excluded an in-court identification of the defendant where the witnesses were never asked to identify the defendant before trial. The Court also held that the in-court identification of the defendant in Commonwealth v. Collins should have been excluded where the witness had been unable to make a positive identification prior to trial.

To examine the importance of these recent cases, we should first explore why eyewitness identification evidence, while powerful evidence to juries, can be so unreliable that it can lead to the extraordinary rate of wrongful convictions noted above.

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