Criminal Defense

Commonwealth v. Gomes: The SJC’s New Jury Instruction on Eyewitness Identification Attempts to Protect Defendants While Recognizing the Ever-Changing Nature of Scientific Evidence

Published on: January 22, 2015 | by Naomi Shatz

On January 12, 2015 the Supreme Judicial Court (“SJC”) issued an opinion in Commonwealth v. Gomes holding that from now on juries must be instructed on scientific principles regarding eyewitness identification, and drafted a provisional jury instruction for judges to give until an official model instruction is developed. The decision is not retroactive, and did not apply to Gomes’s case itself. The case followed closely after two other SJC cases highlighting the fallibility of eyewitness identification.

The provisional jury instruction requires jurors to be told of five “generally accepted” scientific principles about eyewitness identification, based on a report issued by the SJC’s Study Group on Eyewitness Evidence:

Human memory does not function like a recording, but is instead a complex, multi-stage process.
An eyewitness’s expressed certainty about the identification may not indicate the identification is accurate, particularly if the witness previously expressed less certainty
Stress can negatively impact a witness’s ability to make an accurate eyewitness identification
Information that witnesses receive before or after making an identification can influence the witness’s memory and recollection of the identification
Prior viewing of the same suspect in identification procedures may reduce the reliability of the later identification of that suspect

ZDB of-counsel attorney Elizabeth Lunt told the Boston Globe that jurors misunderstanding the accuracy of eyewitness identification has been a problem “for years and years,” and that this decision will help jurors understand the scientific principles at hand.

The Supreme Judicial Court’s Opinion in “In the Matter of a Grand Jury Investigation” Offers Fleeting Protection on a Misreading of the Supreme Court’s decision in Fisher v. United States

Published on: January 15, 2015 | by David Duncan

On January 12, the Supreme Judicial Court issued an opinion, In the Matter of a Grand Jury Investigation, which held that a grand jury subpoena, issued to a law firm for a cell phone containing text messages or other communications that the Commonwealth contended were evidence of a crime, and which had been provided to the firm by a client for the purposes of providing legal advice, must be quashed, meaning the attorneys did not have to turn the cell phone and its contents over to grand jury. Though no names were mentioned it was widely reported that the phone belonged to Aaron Hernandez and the grand jury is deciding whether to charge him with murders in Suffolk County. He was the “target” of the investigation.

Three legal issues and their interplay decided the case, but they also left open an alternative route for prosecutors to seek documentary evidence belonging to a client but held by an attorney.

Crayton & Collins: Preventing Eyewitness Misidentification in Massachusetts

Published on: January 2, 2015 | by Zoraida Fernandez

“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.

Change in Federal Law Regarding Marijuana Enforcement is Important for Massachusetts

Published on: December 23, 2014 | by Ruth O'Meara-Costello

A new federal spending law enshrines in statutory form the policy that federal agents will no longer seek to interfere with medical marijuana retail establishments in states where they are legal. As Massachusetts law with regard to marijuana possession and use continues to evolve, this change lessens the likelihood that Massachusetts residents will find themselves federally prosecuted for the sale or possession of marijuana for medical use. However, federal prohibitions on, and penalties for, possession of marijuana remain far broader and harsher than those under Massachusetts law, and the new provision affects only medical marijuana; Massachusetts residents therefore remain vulnerable to federal prosecution for conduct that is not criminal under state law.

Massachusetts law regarding marijuana possession has undergone major changes in the last few years. First, in 2008, voters passed a ballot question (question 2) decriminalizing (but not legalizing) possession (but not distribution or possession with intent to distribute) of less than an ounce of marijuana. In 2013, a second ballot question (question 3), legalizing the medical use of marijuana, also passed. There is currently a campaign seeking to put the question of legalization of marijuana for recreational use before voters in 2016.

New Case Illustrates the Strict Limits of Wiretapping in Massachusetts

Published on: November 25, 2014 | by Ruth O'Meara-Costello

The image of an informant wearing a wire or secretly recording phone conversations during a criminal investigation is extremely common on television and in the movies. In Massachusetts, however, the use of a wiretap as an investigative tool of law enforcement is subject to extremely strict limits and protections that go far beyond the limitations of the Fourth Amendment. In a November 21, 2014 decision in the case of Commonwealth v. Burgos, an appeal by a defendant convicted of a gang-related killing, the Massachusetts Supreme Judicial Court (“SJC”) reiterated that wiretapping is only available under Massachusetts General Laws chapter 272 section 99 in order to investigate narrowly delineated categories of crime.

The statute allows police to make recordings with the consent of only one party, acting undercover or as an informant, when investigating certain serious offenses committed “in connection with organized crime,” that is, “a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services.” In Burgos, police obtained a warrant to allow the defendant’s cellmate to secretly record him and were successful in obtaining a recording of his confession to a murder committed in retaliation for the killing of a member of his gang. Burgos was convicted largely on the strength of that surreptitious recording. On appeal, the SJC reversed the conviction, granting the defendant a new trial. Although the killing was gang-related–the affidavit in support of the warrant spoke of “two rival gangs . . . both involved in selling narcotics”–the affidavit failed to establish a nexus between the murder and “the narcotics or any other ongoing business enterprise of either gang.” In short, the court concluded, “A retaliatory killing alone, without a clear link to the goals of a criminal enterprise, does not amount to a connection to organized crime,” and the warrant was therefore invalid and the evidence illegally obtained.

Free Speech, Trespass, and the Massachusetts SJC’s decision in Glovsky v. Roche Bros. Supermarkets, Inc.

Published on: October 31, 2014 | by Ruth O'Meara-Costello

The Supreme Judicial Court’s October 10, 2014 decision in Glovsky v. Roche Bros. Supermarkets, Inc., is now the high-water mark in Massachusetts for the right to access private property, over the objection of the property owner, in order to fulfill a constitutional right. The decision addresses the right of a candidate for public office to solicit signatures for ballot access outside the entrance to a supermarket, but could have important implications for the exercise of free speech in Massachusetts. It also could have implications for certain criminal defendants; our firm has represented a defendant arrested for trespass when distributing literature or protesting on private property.

When a Roche Bros. employee told Steven Glovsky, a candidate for Governor’s Counsel, that the supermarket’s policy did not allow signature solicitation on its private property, preventing him from seeking signatures to get on the ballot, he proceeded to file suit. The SJC in Batchelder v. Allied Stores Int’l, Inc., 388 Mass. 83 (1983) (Batchelder I) previously upheld a candidate’s right under the Massachusetts Declaration of Rights Article 9 to seek signatures in the common areas of a shopping mall, comparing the mall to traditional public fora like downtown areas. In Glovsky, the SJC went a step further, clarifying that whether or not a location is functionally equivalent to a traditional public forum, signature solicitation must be allowed if the interests of the candidate outweigh the interests of the property owner. The SJC found that Glovsky had a “substantial interest” in soliciting signatures on the sidewalk of the supermarket, which was the only one in town, and that allowing such solicitation would not unduly burden Roche Bros.’ property interests by, for example, disrupting its business. (Glovsky’s suit was still unsuccessful, however, because the SJC found that the supermarket had not violated the Massachusetts Civil Rights Act.)

Old Wine in a New Bottle: Supreme Judicial Court Decision Reiterates Broad Scope of Fifth Amendment Protection

Published on: October 24, 2014 | by David Duncan

The Massachusetts Supreme Judicial Court (“SJC”) on Friday, October 10, 2014 decided Commonwealth v. Jason LeClair, No. SJC-11469, a Fifth Amendment case. It did not make new law but reiterated that the scope of the Fifth Amendment privilege is broad and liberally construed, something that many lawyers, including prosecutors, and many judges, including those in this case, do not seem to understand.

Sheehan was a witness in a domestic A&B case against LeClair, the defendant, and was called by the Commonwealth. He refused to answer questions by the defense about his consumption of drugs at the time of the incident, asserting his Fifth Amendment privilege. The prosecutor represented that the Commonwealth was not “interested” in prosecuting him and not “likely” to do so. On that basis the judge concluded that there was no substantial prospect that his answers could lead to his prosecution and ordered Sheehan to answer the questions. When he continued to refuse to answer, the judge found him in criminal contempt and sentenced him to a 90-day prison term. The sentence, and the trial, were suspended pending appeal. The SJC took the case on its own initiative.