HGN test ruled in admissible by the Kansas Supreme Court during DUI trial

February 21, 2015,


The Kansas Supreme Court recently issued a decision dismissing one of the most controversial pieces of evidence used in an OUI trial - the horizontal gaze nystagmus test (HGN). Finding no evidence to support the reliability of HGN test results, the high court forbade trial judges from admitting HGN test results for ANY purpose at all, until expert scientific evidence is presented to establish the test's reliability in measuring intoxication levels.

The Kansas court issued this important ruling in the recent case of City of Wichita v. Molitor. In Molitor, the defendant was pulled over for failing to signal a right turn at a stop sign. Though the defendant correctly stopped at the sign, and properly completed the turn, he did so without signaling. And though the defendant passed two of three sobriety tests, the officer still required him to take a breath test, which registered a BAC level of .09 percent. The defendant was then arrested for an OUI.

After the officer stopped the defendant, the officer approached the vehicle and detected an odor of alcohol. The officer also noticed that the defendant had watery and bloodshot eyes, and so asked the defendant if he had consumed alcohol earlier that evening. The defendant replied that he had a couple beers, and the officer ordered him to exit the vehicle for field sobriety testing.

The HGN Test
The first test conducted by the officer was the HGN test, which examines the driver's ability to direct his gaze at an object that the officer holds up about a foot away from the defendant's eyes. As the officer moves the object across the driver's visual spectrum, the officer watches the driver's eyes closely for any particular clues of intoxication - such as jerking of the eyeballs. According to the theory used by state scientists, a person who is intoxicated will have difficulty in maintaining his gaze without jerking away from the sides of the visual spectrum. Once the officer identifies a certain number of cues, he determines that the driver failed the test, and continues to conduct other tests to confirm these results.

In the case of Molitor, the officer testified that the defendant failed the HGN test, and so conducted two additional tests - the walk-and-turn test and the one-legged stand test. Unlike with the HGN test, however, the defendant passed both of these latter tests. Despite passing the two tests, the officer administered a preliminary breath test, which showed that the defendant was above the legal limit.

The Defendant's Arguments - No Reasonable Suspicion

Under Kansas state law, an officer can request a breathalyzer test only if he has a reasonable belief based on specific observations ("reasonable suspicion") that the driver is intoxicated. The defendant in this case asked the trial judge to exclude the breathalyzer test results from coming into evidence because the officer did not have a reasonable basis for ordering the breath test. Because the defendant passed the two subsequent field sobriety tests, it was clear that he was not intoxicated. Therefore, no reasonable suspicion existed to request the breath test. But both the trial court and appeals court rejected with this argument, ruling that the results of a HGN test alone provided reasonable suspicion to justify the breath test request. The Kansas Supreme Court, however, strongly disagreed with both lower courts, and reversed their decisions in favor of the defendant.

The HGN Test is Not Reliable for ANY Purpose
The Kansas Supreme Court was not persuaded by the results of the HGN, finding the test itself to be completely unreliable. The Court examined past case law and scientific research, and ultimately found no reliable evidence to support the scientific theories underlying the HGN test as used by police. Under the legal standard known as the "Frye test", no expert scientific evidence has been submitted to prove as a matter of law that the HGN test is generally accepted in the scientific community as a reliable measure of a person's intoxication. And until enough scientific evidence is presented to establish the test's reliability, the Kansas Supreme Court held that the test can not be given any more credit than a Magic 8 ball or a compared the HGN test to a Magic 8 ball or Ouija Board.

One of the most important reasons for the Court's finding in this case is the fact that a person's irregular eye movements (which the HGN test is designed to test) can be caused by many other factors that are completely unrelated to intoxication. For example, a person who has the flue, or drank coffee, or even ingested aspirin could exhibit similar eye behavior. And without any real substantive scientific evidence to support the HGN test's theory, there is simply no reason to conclude that a person is intoxicated merely because he failed an HGN test.

This decision falls closely in line with many other state court decisions, such as in Massachusetts. Though Massachusetts courts do not use the Frye standard to measure the reliability of scientific evidence, the Supreme Judicial Court in Comonwealth. v. Sands ruled that the HGN test is based purely on scientific evidence, which can only come into court through an expert's testimony. And because most district attorneys do not call experts to testify in OUI trials, the HGN test results rarely ever come into trial. This case is a great indicator that more and more courts are beginning to realize that many of the common tests used by officers - including breath tests - are simply too unreliable to support an OUI conviction.

New Jersey Legislature to vote on Bill requiring interlocking ignition devices for all DUI convictions

February 3, 2015,

New Jersey legislators are voting on a bill that would require the installation of an ignition interlock device for all drivers convicted of a DUI. If enacted, this bill would require all drivers operating a motor vehicle within a period of time after their DUI conviction to periodically breathe into an electronic device to determine whether they are sober enough to operate a vehicle. If the device registers a breath of .08 percent or greater, it will prevent the driver from starting their vehicle.

New Jersey joins many states in seeking to add and tighten existing restrictions and sanctions on repeated offenders. In 2005, for example, the Massachusetts legislature enacted "Melanie's Law," which not only requires the installation of ignition interlock devices for repeat offenders, but also enhanced license suspension sanctions and mandatory confinement sentences. Under Melanie's law, a person charged with an OUI with a license that was currently suspended faces a one year mandatory minimum jail sentence. The law also creates a jail penalty for anyone tampering with the interlock device.

New Jersey has already enacted legislation that requires ignition interlock devices to be installed in the vehicles of drivers charged with a second or subsequent OUI. The new bill, however, seeks to require the installation of the device for not only repeat offenders, but also first time offenders as well. According to the official statement to Senate Bill No. 385, anyone convicted of a first offense OUI with a BAC level between .08 percent and .10 percent would not only lose his license for 10 days, but would be required to install an ignition interlock device for a period of three months. The ignition interlock device will remain installed for longer periods of time if the BAC level was greater than .10 percent. The bill also includes a provision that allows for the automatic extension of this time period if the driver fails the breath test within the last thirty days.

As with any legislation, the effects that these measures may have on drunk driving are speculative. According to the Massachusetts Bar Association, it is very difficult to ascertain whether requiring the installation of ignition interlock devices actually yields fewer drunk driving incidents. Another question that will likely be an issue of future litigation is whether these forms of heavy restrictions create an unconstitutional infringement on a person's constitutional right to travel.

Reasonable doubt in a Massachusetts criminal trial defined by the SJC

January 29, 2015,

The Massachusetts Supreme Judicial Court has just issued a decision establishing a single definition of reasonable doubt, the standard by which jurors are to find the defendant guilty of a crime. The decision, published and released under the case heading of Commonwealth v. Gerald Russell, marks a significant effort to protect the most important legal principal in Constitutional law.


The 150-year-old Webster Instruction

Proof beyond a reasonable doubt is a difficult concept to understand and to explain, and is the most difficult standard for any party to meet. Courts have been relying specifically on one definition of this standard, published over 150 years ago in the case of Commonwealth v. Webster, 59 Mass. 295 (1850). The Supreme Judicial Court explained the standard of finding guilt beyond reasonable doubt to mean that the jury, after considering the facts and the reasonable inferences drawn from them, reached a "satisfactory conclusion" of "moral certainty" that the defendant committed the charged offense. The courts then derived from this decision what has become the model "Webster instruction" - which requires a "moral certainty" and an "abiding conviction."

The reality is that judges have never been required to use the "Webster instruction" in their trials. However, it was always good practice to stick to this language in order to avoid a reversal on appeal. For example, in the case of Com. v. Russell, the trial judge did not use the Webster instruction, and instead incorporated the instruction adopted by the Federal Court system, which defines proof beyond a reasonable doubt as "proof that leaves you firmly convinced of the defendant's guilt...[without] a real possibility that he is not guilty..." The SJC did not find this instruction to be incorrect, but it was concerned with the confusion that might still arise with this type of language. Though the judge in Russell failed to give the correct jury instruction, many judges were reading the jury instruction properly and giving the Webster Instruction.

The Russell Court redefines "Moral Certainty"
In its decision in Com. v. Russell, the SJC created a new instruction to replace the Webster instruction. The Court also required all Massachusetts trial judges to use this new language in all future criminal trials. According to the SJC, the new language provides a clearer and more modern definition of the standard that today's jurors could better understand, particularly with regards to the words "moral certainty" as founded on facts rather than feelings. If a trial judge uses veers from this instruction, the entire case could be deemed a mistrial and the defendant would be entitled to a new trial - or possibly even a dismissal.

Beginning on January 27, 2015, Massachusetts trial courts must instruct the jurors that proof beyond a reasonable doubt means that a juror has considered all the evidence and is left with "an abiding conviction, to a moral certainty, that the charge is true." The Court then defines "moral certainty" as "the highest degree of certainty possible in matters relating to human affairs - based solely on the evidence that has been put before you in this case." The evidence must create "a certainty that convinces your understanding and satisfies your reason and judgment..."

Will It Really Make a Difference?
It is critical for a judge in particular in an OUI arrest to properly instruct the jury on the definition of proof beyond a reasonable doubt. The language an abiding conviction to a near moral certitude conveys that to a jury that the standard is not suspicion, it is not whether the jury believes something is more likely than not or even probable, but that it is a near moral certitude and this definition properly defines proof beyond a reasonable doubt. As a Massachusetts OUI Lawyer, I have always been arguing this standard to the jury but it will require that the judge provide this precise instruction at trial when instructing the jury.

SJC rules in favor of Defendant in license suspension case

January 28, 2015,

The Massachusetts Supreme Judicial Court has just issued an important decision in the license suspension case of Commonwealth v. Oyewole (click here for my previous blog on the case). After the Appeals Court rejected the defendant's arguments that he was not properly notified of his suspension, the Supreme Judicial Court officially reversed this decision, agreeing with Appeals Court Justice Agnes's dissent that the State must be required to prove notice beyond all reasonable doubt.

The Oyewole case involved a defendant who was charged with an OUI, and who was subsequently stopped by an officer operating within the 60 day license suspension period. The defendant's license was temporarily suspended as a result of the OUI conviction that was continued by the trial judge for one year. And although the trial court generally confiscates the defendant's license for the duration of the license suspension period, the officer who later stopped the defendant within the 60 day period testified that the defendant had his license with him at the time of this subsequent stop.

The defendant argued that he was not properly notified of his license suspension, and that the State failed to meet its burden of proof on this element of the charge. To convict on a charge of operating with a suspended license, the State must prove that the defendant not only operated a vehicle during the suspension term, but that the defendant did so while on notice that his license was suspended.

The State claimed, and the Appeals Court agreed, that the defendant's presence in the courtroom when the judge issued the temporary sentence was sufficient to put the defendant on notice of his license suspension. The State reasoning relies on the fact that it is regular practice for the court to inform the defendant of a suspension. Since this is common practice, there should be an automatic presumption that the defendant was put on notice where the defendant was present in the courtroom.

The Supreme Judicial Court, however, refused to presume notice merely from the fact that it is regular practice for the court to inform the defendant of the suspension. The Court's decision emphasized its refusal to shift the burden of proof from the State in proving all the elements of a crime against the defendant. As part of every defendant's right to a presumption of innocence, the State is required to prove every element of the charge against the defendant beyond any reasonable doubt. In this case there was no evidence to infer actual notice from the record. The Court reviewed the record and found no evidence from the docket, hearing transcript, or the trial court's rulings that the defendant was actually informed that his license had been suspended. Regardless of whether it is common practice for courts to inform defendants of their license suspension, there simply was no reason to suggest this was the case in the defendant's matter.

SJC rules in favor of Aaron Hernandez in Suffolk County Double Homicide case

January 16, 2015,

The Supreme Judicial Court quashed a Grand Jury subpoena approved by a Suffolk Superior Court judge that required Aaron Hernandez's defense lawyers to turn over his cellphone, the Boston Herald reports. According to the SJC, the subpoena was an attempt by prosecutors to misuse the Grand Jury to obtain evidence in the double homicide prosecution, rather than using the proper channels to obtain a valid warrant.

The authority and function of the Grand Jury is derived from the Fifth Amendment, and is regulated in Massachusetts by Mass. Rule of Criminal Procedure 5. The Grand Jury serves an entirely different function than the better known trial jury, also known as the "petit" jury because of its smaller size. In contrast to the petit jury that actually observes a trial and renders a verdict on either a criminal or civil case, the Grand Jury's sole function is to investigate a crime at the direction of the prosecutor, and to determine whether the alleged suspect likely committed the crime (probable cause).

There are three more important distinctions between the Grand Jury and the petit/trial jury. First, the Grand Jury only hears from the prosecutor, and the witnesses which either the prosecutor presents or the Grand Jury summons. There is no judge, and no defense attorney present. Second, the identity of the Grand Jurors and the evidence presented in a Grand Jury are completely secret throughout the length of each Grand Jury. Only the prosecutor and any testifying witnesses could know what is said in a Grand Jury proceeding. The last important distinction is the investigative power wielded by the Grand Jury, the exercise of which triggered this SJC decision.

As part of its investigative function, the law allows a Grand Jury the power to compel witnesses to testify on the record to answer its questions, as well as the power to compel witnesses or third parties to disclose information pertinent to the investigation. This power, however, is limited by certain rules, such as the attorney-client privilege. In Hernandez's case, the Suffolk County Grand Jury issued a subpoena for Hernandez's cell phone, which Hernandez had already delivered to his lawyers for safekeeping. Suffolk County prosecutors asked the trial court to order the surrender of the cell phone at the Grand Jury's request, because the cell phone's content was believed to be pertinent to the double homicide.

Though the Suffolk judge approved the subpoena, the SJC granted the defense team's appeal and essentially quashed the subpoena. Though the SJC's decision is impounded (unavailable to the public), the Boston Herald reports that the SJC found the prosecutor to be attempting to misuse the Grand Jury to request a search of a cell phone that the prosecutor would not otherwise have access to. The SJC explained that because the cell phone was already in the defense attorneys' possession, it was protected by the attorney-client privilege, and so the defense attorneys had an ethical and legal duty to protect that property for their client. If the prosecutor wants access to the phone, he will need to obtain a valid search warrant.

Learn the Process in Court when charged with OUI out of the Westborough District Court

January 13, 2015,

Drivers who were stopped and charged with an OUI out of Westborough can expect to appear before the Westborough District Court for pretrial matters. As the case progresses towards trial, the case will be transferred to the Worcester Trial Court, where it will be scheduled for a jury session.

When you face an OUI charge out of Westborough, your case will first be heard at the courthouse at 186 Oak Street - right off of Route 9. There you will be arraigned by the court, and will be asked whether you will be representing yourself or if you have retained a lawyer. If you cannot afford a lawyer, you should speak with the probation office to determine whether you are eligible for a court-appointed lawyer.

Following the arraignment, you will be given later court dates on which you will appear with your lawyer. The court will also schedule later dates to hear motions by either party. During these later court dates, you will have an opportunity to discuss additional evidence that the district attorney has not provided at the first court date as well as discuss a resolution of the case. For someone charged with a First OUI with no record, the standard plea offer is a CWOF or continuance without a finding on the OUI charge. I have discussed this type of resolution on my website.


In the above video, I explain the court process in handling an OUI arrest in the above video.
If after weighing the evidence you and your attorney decide to proceed to trial, your attorney will ask the court for a trial date. Cases from Westborough have to be transferred to the courthouse in Worcester on Main street, since Westborough does not hold its own jury sessions. Once your case is transferred, it is important to understand that the Worcester court begins to call cases at 8:30 AM, so be sure to be on time. Your case will likely remain in Worcester from this point forward till it is fully resolved.

This video is one of many informational videos that you can find about OUI Defenses on my Youtube channel and on my web page, all designed to answer your questions about an OUI arrest.

Understanding the Jury Selection Process in the Hernandez Murder Trial

January 12, 2015,

With Hernandez's first murder trial underway, scores of potential jurors have started appearing at Bristol County Superior Court to prepare for empanelment for this highly publicized trial. Hernandez's first murder trial (for the murder of Odin Lloyd) began on Friday, January 9th and is expected to last several weeks. The double homicide prosecution in Suffolk County has been pushed off till later in the year, to allow Hernandez's defense team an opportunity to complete the first trial this month.

The Significance of the Jury Selection Process
The jury selection process is one of the most important stages of a trial for both the state and the defendant. Despite the public's perception of this trial stage, the jury selection process can often be one of the most complicated and most thought-provoking stages for litigators - especially with the enactment of a new law that allows attorneys to now question potential jurors directly (to take effect next month). But because the actual interview and selection process happens quietly at the judge's bench and through written questionnaires, most jurors have very little awareness of what goes on at this stage, and are more likely frustrated by the lengthy wait times and constant questioning.

It is sometimes possible for experienced attorneys to predict whether a verdict will be returned guilty or innocent simply by examining the composition of the jury panel. In fact, the jury selection process is such a critical strategic process that lawyers sometimes hire a professional consultant with expertise on jury composition and profiling in order to assist with selecting the right jurors to sit for the trial. To illustrate the role of the jury selection process in the outcome of a trial, let's take a look at the Aaron Hernandez trial and the different factors that each party (and the judge) must weigh throughout the process.

The Sixth Amendment Right to an Impartial Jury
As in all criminal trials, Aaron Hernandez has a Sixth Amendment right to have his case decided by an impartial jury. The actual panel of jurors who will hear the case are selected by an individual interview process from a larger body of potential jurors known as the jury venire (Note: not the "Grand Jury"). The jurors in the venire typically receive a notice in the mail months before the trial date informing them of their duty to appear at a particular courthouse in their district to serve jury duty. When the jurors appear on the scheduled day, they are gathered together by court personnel, assigned numbers, and escorted from one courtroom to another until they are "selected" for a trial (or to serve as Grand Jurors). We refer to this selection process as "empanelment." In the case of Hernandez's trial, 1000 prospective jurors were summoned to the Bristol County Superior Court, from which only 18 jurors will be selected to preside over his trial.

The Mechanics behind the Jury Selection Process
Why does Hernandez need a jury pool of 1000 individuals? The answer lies in both the circumstances of Hernandez's trial as well as in the actual mechanics behind jury selection. As is most often the case, the larger pool of jurors are typically given short questionnaires about their personal characteristics, which they complete and then submit to the court for review. The court, in turn, produces copies of the completed questionnaires to both the defense and the prosecution. The two parties - as well as the court - carefully review each questionnaire and flag any and all jurors that each party believes may be biased for or against them. The attorneys and the court then convene and begin to call the jurors to the judge's bench one by one for a quick interview by the judge in the presence of the lawyers (sometimes the judge permits the lawyers to ask the jurors questions directly).

After each interview, the juror is asked to step back while the court and the litigators deliberate as to whether this juror should be selected or "excused." There are two ways to excuse jurors: 1) for cause, and 2) through preemptive strikes. A juror may be excused by the court for cause if the court (after deliberating with the lawyers) is persuaded that a juror will likely be incapable of deciding this case on the facts alone and without any partiality for either party. A preemptory strike, in contrast, is a request by either party to dismiss a juror without having to provide any justification for the strike. Each party, however, is only allowed a small number of strikes as determined by statute, and may not strike a juror on the basis of race or sex.

Difficulties in Selecting an Impartial Jury for Hernandez

Returning to the Hernandez trial, it may now be more understandable as to why the court needed to summon 1000 potential jurors for this one murder trial, whereas other trials typically have a jury pool of 100 jurors or less. As I explained before, the reason is both due to Hernandez's publicity as well as the mechanics of selection. The court has an affirmative duty to ensure that all biased jurors be excused from the jury pool. But this is not an easy task when it comes to someone as renowned (whether for good or ill) former NFL Patriots star Aaron Hernandez. And Hernandez's fame for his NFL history is compounded even more by the extremely heavy publicity that he has received as a result of the prosecution in both this murder trial, as well as in the double homicide in Boston, and even the allegations arising out of other states like Florida.

Considering all of these factors, it is very likely the case that many - if not most - of the 1000 jurors summoned will already be predisposed either in favor or against Hernandez. And now add on the negative publicity that has attached itself to both the NFL and NFL players in general over the last several months due to allegations of domestic abuse against several of its players, and now it is almost impossible to assemble an impartial jury to hear Hernandez's murder trial. Hence the large number of potential jurors.

Alternative Solutions for a Biased Jury

Increasing the jury pool size is only one way to protect a defendant from facing a biased jury. Another remedy used by courts includes summoning potential jurors from other counties or jurisdictions. Doing so would decrease the likelihood of bias since those jurors have probably been less exposed to the publicity surrounding the case. But in a case as publicized and as heavily followed as Hernandez's murder trials, this is not likely to be an effective solution.

New legislation, however, has recently been enacted in Massachusetts that will provide stronger protection against bias at least for Hernandez's double homicide trial in Boston later this year. Scheduled to take effect in February, the new legislation allows lawyers to ask the jurors their own questions - either directly or through the judge - in an effort to better gauge each juror's thoughts on the case. Massachusetts lawyers will be able to take advantage of this new law both to exercise their cause challenges and preemptive strikes more carefully, as well as to get a stronger impression of each of the jurors impaneled. Unfortunately for Hernandez's defense team in this Bristol trial, however, they have only a thousand questionnaires and the interviews conducted by the judge. the

Police Increase enforcement of Massachusetts OUI Laws over New Year's Eve

December 31, 2014,

New Year's Eve is a time for increased DUI patrol. Police are always looking to crack down on drunk driving, but New Year's Eve sees a greater police presence. It is important to be careful and consider public transportation or taking a taxi when driving in Massachusetts tonight.

Getting arrested for DUI even if you are found not guilty is an enormous stress for all of my clients. It impacts their work, health and family situation. As a Massachusetts OUI Lawyer, I frequently have to discuss difficult choices with people in proceeding through the legal system after an OUI arrest.

If it is not possible to avoid driving or consuming alcohol, there is always a chance that you will be subject to an arrest for OUI because the crime is based on opinion. Before driving after consuming alcohol, make sure you understand how much you drank and its impact on your ability to drive. Also, make sure you correctly calculate how much you consumed. One of the more frequent mistakes that can lead to an arrest is assuming that one glass of wine is really just one glass of wine. At nicer restaurants the size of the glass makes one glass closer to two glasses.

If you are arrested for OUI, you will have to appear in Court on Friday for an arraignment. You can feel free to contact me on New Years Day and will be able to schedule an appointment that day in most cases.

In the spirit of helping your toward having a great"_blank"year, I would suggest you read a Book called the Silght Edge by Jeff Olson. Feel free to follow me on Google +1 where I talk about changes in the law and interesting books I have discovered.

Myself and entire staff which you a safe New Year's Eve.

Montana Jury rejects Stand-Your-Ground self-defense in Murder trial

December 20, 2014,

A Montana jury recently rejected a "stand your ground" defense offered by a defendant charge with the murder of a German exchange student earlier this year. The defendant argued that he was only acting out of self-defense in protecting his home against intrusion by burglars, but the jury instead found the defendant guilty of deliberate homicide.

The victim in this case was a 17-year old German exchange student who was lured by the defendant into the defendant's garage using a purse left in plain sight inside the open garage. Witnesses testified that the defendant and his girlfriend planned to capture suspects of prior burglarizes, believing that local law enforcement were not responding effectively. A hair stylist also testified that the defendant himself told her that he would be killing the teenagers who were responsible for the break-ins, and that he had been on a stake-out waiting for the burglars to accept his bait. When the exchange student finally entered the garage, the defendant fired multiple shotgun rounds at him, ultimately killing him on sight.

Self-Defense Laws
The defendant's arguments fell under the purview of self-defense. Once a defendant successfully invokes the doctrine of self-defense, the burden typically shifts to the prosecutor to prove beyond a reasonable doubt that the defendant was not acting out of self-defense.

Most states have self-defense laws that fall within three different theories or categories: 1) stand your ground laws, 2) duty to retreat, and 3) castle doctrine:


  1. Stand Your Ground - Stand your ground laws generally state that any person is entitled to resort to deadly force if it is reasonably necessary to deter bodily injury or harm threatened by the attacker. Under such laws, a person who is threatened with imminent physical injury never needs to retreat - not even if there are several avenues of escape that would avoid harm to him. This doctrine falls on one extreme end of the spectrum of self-defense laws.

  2. Duty to Retreat - The polar opposite of the "stand your ground" doctrine is the duty to retreat, adopted by some states. Within this category of self-defense law, a person threatened by physical injury always has a duty to attempt to retreat before resorting to violence or deadly force. In other words, states that have adopted this form of self-defense law do not accept any self-defense argument as a matter of law where the defendant had a reasonable opportunity to retreat or escape but failed to do so - even if it means escaping from your own home.

  3. The Castle Doctrine - The "castle doctrine" lies as the median between stand-your-ground laws and the strict duty-to-retreat rule. As adopted by most states, the castle doctrine charges the defendant with a duty to retreat if retreat is reasonably likely to avoid injury, unless the defendant is in his own home. Under the castle doctrine, a homeowner/occupant facing an imminent threat of substantial bodily injury to himself or another in his own home may resort to deadly force to ward off the threat, if that is what is reasonably necessary under the circumstances. The traditional reasoning behind this doctrine is that a person's home is a person's "castle," and every person has the right to defend the security of their castle against attackers. Massachusetts is one state that adopts the duty to retreat rule together with the castle doctrine.

In the murder case in Montana (which adopted the "stand your ground" theory of self-defense), the jury refused the verdict because the defendant knowingly and deliberately lured the burglar into the home only to shoot him on sight. But, as the defendant will likely argue on appeal, the defendant is the real victim here, not the wrongdoer. It makes no difference how the burglar entered; the fact of the matter is that the burglar entered into the home of an individual residing in a jurisdiction that allows him to "stand his ground" when faced with a threat of harm.

The Standard of Reasonableness
If this argument is raised on appeal in the Montana case, it would have to explain reasonableness of the defendant's response to the burglary. Regardless of which category of self-defense law a jurisdiction adopts, the standard used by courts to measure the culpability of a defendant's conduct is one of reasonableness. In other words, the lawfulness of the force used by the defendant is determined by what a prudent person would consider to be reasonably necessary under the circumstances to deter the harm threatened. The weight of the analysis falls on whether it was in fact reasonable for the defendant to lure the burglar into his own, and then to shoot him with multiple shotgun rounds on sight.

In Massachusetts, the law permits deadly force by defendant who is attacked in his own home only if it was reasonably necessary to deter the threat of great bodily harm to the defendant or his guests. In other words, Massachusetts courts look for moderation of force - deadly force may only be used to respond to a threat of serious physical harm or death, and may not be used where it is unreasonable for the defendant to fear threat of serious harm or death. In the Montana case, there was no substantial evidence that the defendant reasonably feared for his life - especially considering that the defendant had himself lured the victim into the home and was prepared, armed with a shotgun. In the Montana case, a defense attorney must persuade the court that the defendant could not have known whether the burglar was armed or not, and that was reasonable for the defendant to act to eliminate the threat before he himself was injured. The Montana defendant is currently facing a minimum 10 year prison sentence.

Washington Appeals Court address Right to Remain Silent in recent decision

December 19, 2014,

The Constitution protects us when we make statements under police interrogation without being advised of our rights, or when we decide not to make any statements at all. One of the key rights stated in a Miranda warning is the right to remain silent. This right guarantees that a defendant will not be portrayed in a negative light before a jury simply for choosing not to respond to a question posed by police. But a Washington Court of Appeals recently ruled that a prosecutor is allowed to reference the defendant's post-arrest silence because the reference to the defendant's silence was not made with the intention proving the defendant's guilt.

The Recent Case of Washington v. Price

In the matter of Washington v. Price, the defendant was pulled over by police after they observed him run a stop sign and hit a curb while turning. During the traffic stop, the officers noticed signs of intoxication and also discovered that he was operating with a suspended license. The officers then informed the defendant that he was under arrest, and ordered him to exit the vehicle. The defendant refused to comply, so the officers tazed the defendant.

As a result of the electric shock from the taser, the defendant began to have "seizure-like" symptoms, and was subsequently transported to a hospital by an ambulance. While at the hospital, the officers conducted a DUI interview per protocol after reading him his Miranda rights. Throughout the 30-question interview, the officers asked the defendant for various information, and the defendant answered voluntarily. But when the officers asked when, where and how much alcohol he had ingested that day, the defendant did not answer. He was then charged with a DUI and for driving with a suspended license.

During the defendant's trial, the prosecutor called the officers to testify as to their observations of the defendant at the time of the stop, as well as to the responses provided by the defendant. But while the prosecutor did not prompt the officers to testify about the defendant's silence in response to the questions but his alcohol consumption, the defendant's attorney did raise his silence during cross-examination. Defense counsel elicited testimony that the defendant did not answer some of the questions in an attempt to persuade the jury that the defendant was still suffering from the shock of being tazed when the officers interviewed him at the hospital. During closing arguments, the prosecutor then referred to the defendant's silence raised by his attorney, and argued that the defendant was not mentally debilitated by the tazer but was in fact thinking clearly enough to know when to answer and when to invoke his right to remain silent in order to avoid incriminating himself. The defendant was then convicted, and appealed his conviction accusing the prosecutor of misconduct for referencing his silence during closing arguments.

The Fifth Amendment Right to Remain Silent

The right to remain silent comes from the Fifth Amendment of the U.S. Constitution, which provides that no person shall be compelled to testify against himself. But despite its longstanding existence in the Bill of Rights, it was not until the mid-20th century that the Supreme Court elaborated on the actual protections that this Fifth Amendment right guarantees. In the early 1900's, local and federal law enforcement agencies began to employ severe and brutal interrogation tactics that were physically and psychologically coercive in order to obtain confessions from their arrestees. But as these confessions were attacked by zealous defense lawyers on cross-examination, it became increasingly clear that this aggressive law enforcement frequently resulted in false confessions or inaccurate information from the interrogation subjects. This phenomenon was primarily due to the fact that interrogation subjects often believed in their desperation that providing information sought by their interrogators would end their pain sooner.

The Birth of Miranda Warnings

In 1966, the Supreme Court delivered its landmark opinion in the case of Miranda v. Arizona, explicitly rebuking police agencies for their aggressive tactics, and banning the admission of any evidence that resulted from such tactics. It is this Miranda decision that requires police to warn the defendant of his rights before the defendant is questioned (and if he is in a position where he reasonably feels as though he were not free to leave). Among these "Miranda warnings" is the right to remain silent - the right to refuse to answer any questions posed by police under those circumstances. If officers do not recite the Miranda warnings before questioning their arrestee, any statement made by the arrestee will not be admissible against the defendant in court to prove the defendant's guilt.

Following the Miranda decision, the Supreme Court has also ruled that a prosecutor could never direct the jury's attention to the fact that a defendant remained silent during police questioning. The Court reasoned that since a defendant has a right to remain silent, the jury will likely infer that the defendant chose to remain silent simply because he was conscious of his guilt. The premise is that if someone is innocent, he would feel free to answer any and all questions posed by police, and that it is only the guilty that refuse to answer in order to avoid incriminating themselves. Concerned that this incorrect inference would undermine the whole purpose of the Fifth Amendment right to remain silent, the Supreme Court forbade admission of any evidence by the prosecutor of the defendant's lack of response to police questioning.

In this Washington case, the appellate court found that since the defendant's own attorney was the first to reference his client's silence, he effectively "opened the door" to the prosecution commenting on the silence as well. And since the prosecutor argued that the defendant's silence was evidence of the defendant's ability to think clearly (rather than the defendant's consciousness of guilt), there was no prosecutorial misconduct. The prosecutor's reference to the defendant's silence in this manner was therefore permissible under the Fifth Amendment.

Police Opinion on Ultimate Issues

Another issue that arose both during trial and on appeal was the officer's opinion testimony. During the State's direct exam of the officer, the prosecutor asked the officer to state his opinion as to whether the defendant's intoxication level was inhibited his ability to drive safely. The officer replied "In my opinion, he was too intoxicated to operate a vehicle."

The defendant argued that this testimony was unlawful in that it was an opinion on the ultimate issue of fact that was supposed to be resolved by the jury alone - i.e. the question of whether the defendant was in fact intoxicated while operating his vehicle. Some state courts have held that these types of opinions are inadmissible because they come too close to the issue that is supposed to be determined by the jurors.

The Massachusetts Supreme Judicial Court, for example, specifically held that an officer's opinion testimony that a defendant's "ability to drive was diminished by his consumption of alcohol" is inadmissible. See Com. v. Canty, 466 Mass. 535 (2013). The court was concerned that a jury may be inclined to "bow" to the testifying officer's opinion, as jurors often perceive officers as experts in law enforcement. But since the law charges jurors with the responsibility to independently weigh all of the evidence presented before it to reach its own conclusions as to the defendant's guilt, exposing jurors to such testimony essentially undermines their fact-finding function.

The Washington trial court and the Washington Court of Appeals, however, both ruled that this testimony was permissible. According to the appellate court, while a witness may not opine as to the defendant's guilt, this testimony was not a direct comment on guilt or innocence, and was purely based on the officer's inferences from his own observations of the defendant. The court held that as long as the officer's opinion testimony was based on the officer's own observations and inferences, it was permissible testimony.

Winning on Appeal

While this evidence may be impermissible in Massachusetts trials, it is not necessarily the case that it would be enough to overturn a conviction on appeal. In Massachusetts, as in many other states, a defendant must demonstrate both an error in the trial proceeding, as well as harm that the defendant actually suffered as a result of this error. In many cases, while a prosecutor would make an improper statement (or a judge an improper ruling), appellate courts will refuse to overturn the conviction if there is clear evidence in the record to support a guilty verdict even if the erroneous evidence was never admitted in trial. It is a high standard for a defendant to meet, and many appeals fail to overturn a conviction because they do not persuade the appellate court that, but for the error, no rational juror would have found the defendant guilty beyond a reasonable doubt.

Hernandez defense team attempts to block evidence of prior criminal behavior from trial

December 9, 2014,

Aaron Hernandez's defense attorneys are once again asking the trial court to prevent the prosecution from raising certain evidence against Hernandez during his murder trial in the Fall River Superior Court. In particular, FOX25 News reports that the motion seeks to exclude eight separate instances of the defendant's past behavior that have no direct relation to the investigation of the Odin Lloyd murder. but, if admitted, would likely portray Hernandez in a very negative light. Among these "prior bad acts" include a TMZ photograph of Hernandez holding a gun, evidence of firearms and ammo located near Hernandez's North Attleboro home, and evidence of the Hernandez's involvement in the 2012 double murder from Suffolk County, a 2013 incident outside a Provide night club, and the Florida shooting of Alexander Bradley in 2013.

Massachusetts Evidence Rules and Trial Practice

Admission of evidence in a Massachusetts trial is regulated by common law - or case law, derived from past decisions of the state's highest courts. These courts also look to some federal law, as well as the codified federal rules of evidence, for additional guidance. Because Massachusetts does not have a codified set of rules of its own, however, there is often greater room for argument on evidentiary issues in the state's courts.

An example of an evidentiary issue that frequently arises in criminal proceedings is the question of whether certain evidence of prior bad acts or behavior by the defendant is admissible against the defendant. The general rule in Massachusetts was outlined by the Supreme Judicial Court in Com. v. Trapp, 396 Mass. 202 (1985), and Com. v. Baker, 440 Mass. 519 (2003). (It's federal equivalent is Federal Rule of Evidence 404(b).) In these, and other, cases, the Court explained that evidence of prior bad acts are not admissible if they are offered merely to show that the defendant misbehaved in the past, and so has a bad character or propensity to commit the crime with which he is currently charged. The reason is that such evidence would cause a jury to improperly assume that the defendant is guilty merely due to his bad reputation or criminal past, rather than weighing fresh evidence before it.

Although evidence of prior bad acts is generally inadmissible to show a defendant's bad character and propensity to commit crimes, the Massachusetts court did rule that such evidence may be admitted for other purposes. For example, a prosecutor may admit evidence of prior bad acts to show a pattern of operation or "modus operandi" ("M.O.") - i.e. that the defendant committed a past crime in a certain unique manner that is duplicated in this present offense. Other permissible purposes include using this evidence to prove the defendant's intent, identity, or motive.

A Look at the Hernandez Motion

In the case of Aaron Hernandez's murder trial, Hernandez's motion to exclude demonstrates two concerns on his attorney's minds: 1) that the prosecutors will misuse the prior bad acts evidence (the TMZ photograph, etc.) to persuade the jury that Hernandez is a violent criminal and so is guilty of murdering Odin Lloyd, or 2) that the jury will be too heavily influenced or "enflamed" by the prior bad acts evidence to be able to rationally assess the weight of all the evidence before it. And while trial judges to generally instruct jurors to limit their consideration of such evidence to the narrow purpose they were admitted to serve, there's always a significant concern that jurors will not be able to follow the court's instructions.

While we do not know exactly if or how the prosecutors will seek to offer this evidence during trial, it is likely the case that they will respond to the defense motion by arguing that the evidence shows serves as circumstantial proof of Hernandez's identity and opportunity. The prosecutor may argue that Hernandez has a history of being violent towards those who he perceives as challenging his sense of superiority. Law enforcement agents from Suffolk county, North Attleboro, Rhode Island, and Florida have alleged to some degree or another that Hernandez's involvement in the violent crimes in each of their respective districts are linked to some personal conflict or confrontation with Hernandez himself. This goes to prove Hernandez's identity in Odin murder, since Odin was involved in an intimate relationship with Hernandez's own girlfriend. The evidence of the discovered weapons, as well as the TMZ photograph, also go to show that Hernandez had the opportunity to commit the murder since he often had firearms in his possession.

The Trial Judge's Role as Gate-Keeper

Whatever the trial court decides, it will do so after carefully weighing the arguments by both parties. Generally speaking, as long as the evidence does not elicit the inference that a defendant is guilty on a present charge merely because he has committed bad acts in the past, Massachusetts courts are open to admission of such evidence. However, the analysis conducted by the trial judge as the "gate-keeper" of evidence is a bit more complex. That's primarily because the evidentiary question is rarely as clear cut as the rules suggest. The decision ultimately requires a trial judge to weigh the value of the evidence to satisfy whatever purpose its proponent is offering it for, against the risk of unfair harm to the defendant case by enticing jurors to make an impermissible inference as to the defendant's character. See Com. v. Yelk, 19 Mass. App. Ct. 465, 471-472 (1985)

Courts are more inclined to allow evidence that is not too remote in time, or that is sufficiently connected to the facts of the present case. Admissible evidence of prior bad acts is always purely circumstantial; that is, it does not speak directly to the defendant's commission of the present act, but provides support for the inference that the defendant did commit the act. But because of its circumstantial nature, a party's use of prior bad acts evidence must be limited strictly to the narrow purpose for which it was admitted (i.e. to prove intent, identity, motive). Courts do not approve of a party's attempts to use this evidence beyond the scope of the circumstantial purpose that it was initially intended to serve.

In my opinion as a Massachusetts criminal defense attorney, we can expect the trial judge in Hernandez's case to look at each "bad act" carefully, both independently as well as in light of the remaining evidence in this case, to determine which, if any, will be admitted or excluded, and whether the prosecutor will be able to limit the use of this evidence to its specific circumstantial purpose.


Supreme Court hears Fourth Amendment challenge to warrantless police searches of hotel guest lists

December 8, 2014,

The U.S. Supreme Court has agreed to hear the City of Los Angeles' appeal of a Ninth Circuit decision holding that a city ordinance requiring hotels to maintain detailed records of each guest's identity and personal information unconstitutional. In a split decision, the Ninth Circuit found the ordinance to violate the Fourth Amendment on its face, and prevented LA police from accessing the register without a search warrant or the hotel's consent.

Hotel Registries and the Right to Privacy
In most jurisdictions, each hotel guest is required to provide certain personal identification information. Not only does this information serve basic record keeping functions necessary to hotel management and guest services, but it may also be used by law enforcement under a legislative enactment. For example, a current Massachusetts statute requires hotel administrators to maintain a registry of names of hotel guests, and to produce this information to law enforcement upon request. And unlike various other forms of searches and seizures, the state Supreme Judicial Court has upheld this statute as constitutional under the Fourth Amendment.

This is primarily the issue in the City of LA's appeal with the Supreme Court. Like Massachusetts, the City of LA enacted an ordinance requiring hotel owners and managers to maintain a registry of guests, and to make this registry available to police upon request. Analogizing to the facts of the Massachusetts case of Com. v. Blinn, 399 Mass. 126 (1986) (where the SJC unanimously held that no search warrant was needed since hotel operators do not have a reasonable expectation of privacy in the registry), the City of LA argues that the Ninth Circuit was incorrect in deciding that consent or a search warrant is needed for LAPD to access the registry.

However, a distinguishing factor between the Massachusetts statute and the LA ordinance is the amount of information called for by the ordinance - not only the name of the guest (which is all that is required under the Massachusetts statute), but information about their stay, identification numbers, vehicle registration information, and credit card/financial information as well. The LA ordinance is therefore much more expansive, providing LA police with access to substantially more information on a hotel's guests.

Hotel Registries as Private Property

Unlike the Massachusetts decision, the Ninth Circuit also had two distinct bases for its ruling against the City - the hotel had both a privacy interest in its records, as well as a property-based right to exclude others from property. Under the second basis, the Ninth Circuit ruled that the Fourth Amendment expressly protects "papers" (such as the hotel's business records and registries) as the hotel's private property. As such, the hotel has a right to exclude others from prying into the contents of its record property. Therefore, the ordinance raises constitutional problems on both right-to-privacy grounds as well as on the basis of a property owner's right to exclude. The latter basis was never addressed by the Massachusetts Supreme Judicial Court.

Potential Changes in Law
Although this issue is not as ripe as others which the U.S. Supreme Court has preferred to hear in the past, the case has been accepted and so will likely lead to a landmark decision effecting many jurisdictions across the nation with similar legislation. If the Supreme Court affirms the Ninth Circuit decision, states such as Massachusetts may need to revisit their legislation to ensure compliance with the Supreme Court's decisions, since the U.S. Supreme Court has supreme authority in addressing of federal constitutional rights. This would likely translate to more federal constitutional protection for defendants.

Regardless of the outcome, this decision is an important reminder for the need of an experienced Massachusetts appellate attorney to identify and argue the relevant issues of a case. In the present case, the hotel's attorneys mounted a powerful defense in opposition to the City's appeal, which may ultimately benefit criminal defendants both in LA as well in Massachusetts, among others.

United States Supreme Court to determine whether threats are protected free speech under First Amendment

December 6, 2014,

Many crimes require proof that the defendant specifically intended to cause the harm alleged by the crime. In Massachusetts, obtaining a civil harassment protective order requires the complainant to prove that the defendant intentionally placed someone in fear of harm using their words or acts. Just recently, however, the Supreme Court heard arguments to determine whether the First Amendment actually protects such expressions, if the speaker/actor did not intend to place anyone in fear.

Threats and First Amendment Protection
It is a federal offense to transmit any communication threatening to injure another person. The Supreme Court has repeatedly held the First Amendment does not protect individuals who threaten others, whether in person, by phone, email, or even social networking programs. But until today, the Court has never explained how a trial judge should determine what a "true threat" is, such that it would not be protected by the First Amendment. More specifically, the Court has not determined whether a threat is only a true threat if the speaker/actor intended to place another in fear, or whether it is enough that a reasonable person would be put in fear.

Relevance of Subjective Intentions
In the case of Elonis v. U.S., the defendant was charged and indicted on five counts of the federal offense of making threats, including one against his ex-wife and another against a FBI agent. The defendant's wife moved out of the family home with their children, causing the defendant to suffer an emotional breakdown. The defendant began to publish postings on Facebook that included violent rap lyrics and photographs, particularly directed at his ex-wife. The defendant's Facebook page subsequently caught the attention of the FBI, which visited the defendant to investigate further. After his in-house interview with the agent, the defendant created more violent rap lyrics, this time referring to the FBI agent, and posting them on his public Facebook page.

The defendant challenged the prosecutor's case, arguing that the First Amendment protects his statements as free expressions, unless the prosecutor could prove that the defendant actually intended to threaten or place others in fear. In other words, it is not enough that either his ex-wife or the agent felt threatened; it is not an objective analysis as to whether a reasonable person would feel threatened. Instead, the defendant argued that for the charge to survive the constitutional challenge, the prosecutor must satisfy a subjective standard - that the defendant subjectively intended to threaten others. The trial court applied the objective standard, however, and instructed the jury accordingly. This is also how the Massachusetts Supreme Judicial Court interprets its own state laws on this issue as well. See Our First Circuit Court of Appeals, however, applies the objective standard.

Supreme Court Seeks Balance
During arguments, the Supreme Court seemed very on edge and troubled by the question of how it should instruct lower courts to distinguishing "true threats" (which are criminal offenses) from seemingly threatening statements that are protected free speech. The Court heavily questioned the attorneys, seeking a prudent balance between freedom of expression as weighed against the public's interest in safety and the government's interest in preventing harm to its citizens. The defendant's appeal warned that lowering the threshold for "speech crime" by adopting an objective standard would result in the unintended and unforeseeable consequences of innocent citizens being imprisoned "for negligently misjudging how others would construe his words," which would "erode the breathing space that safeguards the free exchange of ideas."

Since this case falls under both federal statutes as well as the First Amendment, the Supreme Court's decision will only trump state court decisions applying federal law. Massachusetts courts, however, may choose to extend protection to defendants under the Massachusetts declaration by continuing to require proof of specific intent. A Massachusetts criminal defense attorney may therefore continue to argue that the state courts ought to protect the defendant's expressions under the Declaration of Rights, requiring state and county prosecutors to continue to prove specific intent on charges based on state crimes.

Marijuana Breath Tests in Development at Washington State University may result in increased OUI Drugs arrests

December 4, 2014,

A Washington State University professor is currently developing the first portable breathalyzer that tests for marijuana substance consumed by a driver. Washington law enforcement agencies are particularly enthusiastic about the test, as more and more drivers are operating while under the influence of marijuana in one of only two states who have legalized marijuana.

Currently, law enforcement can only test for marijuana consumption through blood tests at a lab. These tests are time consuming, complicated, and expensive. The new marijuana breath test is designed to detect a primary chemical ingredient - THC - in the driver's breath immediately after the driver is pulled over. A portable breath test for marijuana will enable officers to more accurately identify drivers who operate while under the influence of marijuana, by allowing them to rely on the breathalyzer's measurements rather the officers' own observations.

Like most alcohol breathalyzers, marijuana breathalyzer devices will likely be susceptible to error. There are currently several ways for an experienced criminal defense attorney to challenge the results of an alcohol breathalyzer - from the manner in which the test was administered to the significance of the chemical ingredients that a breathalyzer actually detects and measures. These challenges could also be expected in a prosecution relying on a marijuana breathalyzer test result. But still, the invention of a marijuana breathalyzer is likely to lead to substantially tougher prosecution of this type of offense - not only in Colorado and Washington where driving while under the influence of marijuana is explicitly a crime, but in other states as well. USA Today along with several media outlets reported on this story.

Under existing Massachusetts law, for example, a person could be charged with operating under the influence of drugs, which is distinct from the charge of operating with a BAC level greater than .08 percent (the "per se" charge) and even the charge of operating under the influence of alcohol. Prosecutors could (and frequently do) charge drivers with a combination of these offenses, since the OUI charges only address impaired driving due to consumption of a substance, while the per se offense requires only a showing that a driver's blood-alcohol-content level was greater than the statutory limit. Equipped with these new marijuana breathalyzer devices, Massachusetts law enforcement is likely to increase OUI Drugs arrests.

This technology would be the newest tool in the state's large arsenal used for regulating and prosecuting individuals for substance use. It is expected to be completed by the end of this year, and will be tested throughout 2015.

United States Supreme Court may address whether statements to mandatory reports are testimonial under the Confrontation Clause

December 1, 2014,

The U.S. Supreme Court will soon determine whether it will hear an appeal on the 6th Amendment Confrontation Clause rights of a defendant convicted of assault and domestic violence on his girlfriend's children. The petition requesting Supreme Court review was filed by the State of Ohio after the Ohio Supreme Court ruled that a defendant had a 6th Amendment right to confront the child victim of his alleged criminal acts, and that testimony of teachers and physicians acting as mandated reporters violated his constitutional right to confront his accuser.

The Case of Ohio v. Clark
The case, Ohio v. Clark, stems out of a grand jury indictment against the defendant on five counts of felonious assaults on children, two counts of endangering children, and two counts of domestic violence. The child victims in this case, two and three years old at the time, were dropped off at a Head Start program by the defendant when one of the daycare teachers noticed bruises and markings on the children. After asking the children several times about the bruises, the children mentioned a name later discovered to be the defendant's nickname.

The injuries were then reported to Ohio's department of children and family services, where social workers conducted interviews of the children, who implicated the defendant as the abuser once again. The social worker subsequently notified law enforcement, and took both children to the hospital to be examined by a physician, who concluded that the children were victims of recent abuse. A jury convicted the defendant of all but one charge, and the defendant was sentenced to a total of 28 years.

Confrontation Clause Challenge
Defense counsel attempted to exclude any testimony about the statements made by the children incriminating the defendant as the abuser. During the trial, defense counsel successfully argued that the children were incompetent to testify because of their young age. Since the children were barred from testifying, defense counsel raised a Confrontation Clause challenge to the admission of any of the children's statements through any of the mandated reporters who investigated this case as "testimonial," since the declarant children would not be available for cross-examination. The trial judge overruled the objection, and allowed the daycare teachers, investigating social workers and police officers to testify to the statements made by the children incriminating the defendant.

The Ohio Supreme Court agreed with the defendant by a slim majority, finding that the testimony of all the teachers, social workers, and police officers violated the defendant's Confrontation Clause. Under U.S. Supreme Court precedence outlined in Davis v. Washington and Michigan v. Bryant, every defendant has a 6th Amendment right to confront his accusers. This right of confrontation requires the trial court to exclude any "testimonial" out-of-court statements by a declarant incriminating the defendant, where the defendant has not had an opportunity to cross-examine the declarant on those statements.


In the case of Ohio v. Clark, the Ohio Supreme Court found that the children's statements to the teachers, social workers, and police officers were in fact testimonial, and so barred from evidence since the children were not competent to take the stand and be subject to cross-examination. The court's determination relied on an analysis of the function of mandated reporters and the nature and purpose of the children's incriminatory statements to the reporters.

Mandated Reporters as Agents of Law Enforcement

First, the court found that mandated reporters are effectively agents of law enforcement. By statute, teachers and social workers (among others) are obligated by law to report child abuse and neglect primarily to protect children. However, the court found that the legislature contemplated an inherent obligation to identify the perpetrators to law enforcement so that they may be prosecuted and prevented from causing more harm to the victim children. When mandated reporters identify such perpetrators to law enforcement, they are effectively acting as agents of law enforcement with the primary purpose of prosecuting the perpetrator. Therefore, any statements obtained by mandated reporters are testimonial and subject to the Confrontation Clause.

Testimonial vs. Non-Testimonial

Second, the court also found that the statements of the child victims to the teachers and social workers were in fact testimonial. A statement is testimonial if its primary purpose was to assist law enforcement in the investigation of a possible crime. Non-testimonial statements, which do not trigger the Confrontation Clause, are distinguishable in that their primary purpose is to assist law enforcement in meeting an ongoing emergency. Supreme Court case law emphasizes the importance of timing in these types of analyses - when viewed objectively, the circumstances surrounding a testimonial statement indicate that the statement serves a future goal of apprehending and prosecuting a criminal offender, whereas a non-testimonial statement is primarily relevant to an imminent and ongoing emergency.

The teachers and social workers did questioned the children both to determine the cause of their injuries and to identify their abusers in order to prevent them from causing the children more harm. In other words, the reporters were acting out of their statutory reporting duties when they questioned the children about their injuries. They did not question the children in order to provide emergency medical attention, and the children neither needed nor requested medical attention. Therefore, since the children made their statements in response to the repeated questioning of the mandated reporters acting as agents of law enforcement, the statements were testimonial.

To date, the U.S. Supreme Court has not determined whether the Confrontation Clause applies to statements made to non-law enforcement. To avoid infringing on the Supreme Court's federal constitutional law jurisdiction, the Ohio Supreme Court interpreted the state legislation on mandatory reporting broadly so as to find mandatory reporters to be agents of law enforcement. By doing so, the Ohio court was able to apply Confrontation Clause review - which is applicable to only law enforcement personnel - to mandatory reporters as well. If the U.S. Supreme Court chooses to hear arguments in this case, defense attorneys will expect the Court's decision to substantially impact a defendant's Sixth Amendment rights, and possibly trigger changes in mandatory reporting legislation all across the country.

Continue reading "United States Supreme Court may address whether statements to mandatory reports are testimonial under the Confrontation Clause" »