Cross Examination by Aaron Hernandez Defense team discredits key evidence at murder trial

March 24, 2015,

Last week during the Aaron Hernandez trial there were a few great examples of cross examination issues that reoccur at criminal trials. One was impeaching a witness with a prior inconsistent statement. During the Cross Examination of Hernandez Lawyer Michael Fee, the witness, Kwami Nicholas continued to deny making any prior statements. The witness was particularly difficult in that even after being shown video and audio recording of his statement he continued to deny making that statement. As a Criminal Defense lawyer in Massachusetts, the Hernandez trial has raised many interesting legal issues that have been covered on this Blog.

Fee was careful in his impeachment of the witness because he wanted the jury to accept the prior version of events recorded at the police station. He avoided giving the witness any opportunity to minimize his statements at the police station. When the witness denied remembering the statement he moved on to his next statement, as any response from the witness would have been unpredictable. His final series of questions after establishing that the witness did not remember anything from the recorded interview, he asked the witness if he a poor memory, which he denied, but given his prior statement it would be difficult to conceive of the jury placing any weight on his testimony.

The other interesting cross examination example came from the cross examination of the Commonwealth's footprint expert, Steven Bennett, from the Massachusetts State Police.

The Full Cross Examination can be found at the Website WildAboutTrials, Day 31.

On cross examination, Bennett denied being influenced by the fact that Trooper Benson requested that he reexamine the shoes after Trooper Benson told Bennett that he believed the shoes matched Hernandez's shoes. Trooper Bennett changed his opinion about the shoe impression after initially stating he could not draw a comparison. Bennett acknowledged realizing that by changing his opinion he assisted the prosecution in the case.

Bennett was also asked about conformational basis, meaning that when a scientist is told about expected results there may be a bias in the result. Bennett denied being influenced by Benson and also rejected any notion that footwear impressions are subjective. Though when pressed, he acknowledged there are no standards for footwear comparisons.

Bennett's qualifications were attacked by the defense as the Commonwealth's expert only took one three day course. He admitted that he never took the certification test by the International Association of Identification. Further, Bennett was confronted with the standards identified by the Scientific Working Group, set up by the Department of Justice for footwear and tire tracking examiners. This group indicated that proper photography of footwear impressions is essential. Earlier in test trial the defense attacked the care and skill taken by Detective Arrighi in photographing the scene.

Bennett acknowledged if the impression lacks sufficient detail no comparison could be conducted. Further, Bennett was also asked if he knew what Sergeant Arrighi did at the scene, suggesting that he may have compromised the crime scene.

The last piece of authority that was used for impeachment was a book written by William Bodziak, Footwear Impression Evidence. According to Bodziak, it is always preferable to make a dental stone impression to examine footwear impressions is possible, but this was not done. Bennett was read an execerpt from the book on the importance of casting three dimension impressions. The book said necessary to cast every impression at the crime scene. All impressions should be casted evidence left at the crime scene is lost. Bennett said he was aware of the statement but disagreed that cast should always be made of 3 dimension impressions. Hernandez's defense lawyer asked Bennett: based on your one three day course in footwear examination in 2006, you have a different opinion. The witness stated he disagreed with the one sentence that defense counsel read.

MyFoxBoston has been live streaming the trial and has a section on its website dedicated to coverage of the trial and has been a great resource for accurate and information about the trial.


Massachusetts Court ruling gives police chief broad discretion to deny gun license

March 19, 2015,


The state's highest court decided this week to uphold Shrewsbury police Chief Gemme's decision to revoke a Raymond Holden's license based on an assault and battery charge that was ultimately dismissed. The case is important for those looking to apply for an LTC or those who fear suspension or revocation, because it showed just how broad a licensing authority's discretion is.

The licensing authority in Massachusetts may deny an application or suspend or revoke for any of the following reasons under G. L. c. 140, § 131 (d) and (f). :

1. A felony conviction as a juvenile or adult- ineligibility waived after 5 years
2. Being the subject of a current 209A restraining order
3. Conviction for possession or sale of drugs
4. Confinement to a hospital for mental illness-may be waived with statement from treating physician
5. Conviction of a misdemeanor punishable by imprisonment for more than two years-waived after 5 years
6. Conviction of a violent crime-never waived
7. Conviction of any weapons charge for which imprisonment may be imposed-waived after 5 years
8. Past or current treatment for drug or alcohol addiction-waived after 5 years with affidavit from physician
9. Being the subject of an outstanding state or federal arrest warrant
10. Not a "suitable person" in the eyes of the licensing authority

Mr. Holden's license was suspended, revoked and eventually his reapplication denied based on the "suitable person" standard.

The case itself arose out of an incident that occurred in 2005. Raymond Holden's license to carry was suspended following his arraignment in Westborough district court for assault and battery of his wife in September 2005. Chief Gemme suspended his license 2 days after the arraignment, relying on the fact that he was charged with assault and battery. The charges were subsequently dismissed at his wife's request 2 weeks later.

Three months after the dismissal Mr. Holden, filed a complaint for judicial review of his suspension in the Worcester District Court. A hearing was held and the judge ordered the restoration of Mr. Holden's license stating that the suspension was "arbitrary and capricious" because it was based on a charge that was ultimately dismissed.

On January 30, 2006, the chief reinstated Mr. Holden's license and revoked it on the same day. The Chief released a written decision justifying the revocation. He stated that the original suspension was based on the mere existence of a criminal complaint. He distinguished this from his decision to revoke by stating that the revocation was based on the underlying facts that he found to be credible in the police report.

The case continued to be appealed by both side until it was brought before the state's highest court in 2014. The SJC decided this week to uphold the Chief's decision to withhold licensing based on the suitable person standard and granted a licensing authority broad discretion in deciding what a suitable person is, allowing licensing authorities to consider the facts of an underlying charge even when the charge is ultimately dismissed.


While acknowledging that the "suitable person" standard gives licensing authorities "broad discretion" in making licensing decisions, the court noted that it allows authorities to keep guns out of the hands of those who might pose a risk to public health and safety.

The court said Mr. Holden's license was revoked and his application for license renewal denied "not on a generalized, subjective determination of unsuitability, but on specific and reliable information that he had assaulted and beaten his wife.

The court reasoned that "the fact that there was no conviction removes the incident as a license disqualifier, but it does not remove the chief's consideration of the incident on the question of Holden's suitability".

Responding to Mr. Holden's argument that the chief must show he is "currently unsuitable," the court said a period of five years following an alleged incident of domestic abuse "without professional intervention" was "hardly stale evidence." The court declined to offer an example or standard for how old an incident would have to be to make it too stale.

A person denied a license to carry, or one whose license is suspended or revoked based on the suitable person standard may appeal the decision in district court. However the ruling in Holden's case illustrates just how difficult it may be to be successful on appeal. For now, the courts have determined that the purpose of G. L. c. 140, § 131, is to "limit access to deadly weapons by irresponsible persons." Ruggerio v. Police Comm'r of Boston, 18 Mass. App. Ct. 256, 258 (1984) and that they would rather deny a license than mete out punishment after an unfortunate event.

Defining Circumstantial Evidence in the Aaron Hernandez Trial

March 18, 2015,

The case against Aaron Hernandez is circumstantial; sometimes in the minds of the public this makes for a weaker case. While circumstantial evidence is viewed as lesser evidence by the public and likely by a jury, under the law, the two forms of evidence direct and circumstantial are viewed as the same, one form of evidence is not better than the other and either type of evidence can support a conviction.

At the end of the case, the judge will give the jury instructions on the definition and application of circumstantial evidence that will help the jurors understand how they should weight the evidence and the language of this instruction is one of the many important aspects of the case.

The judge will explain the difference between direct and circumstantial evidence. Circumstantial evidence is evidence where a witness cannot testify directly about a fact, but the witness presents evidence of other facts that the jury may draw reasonable inferences from.

Mail Carrier Analogy Often Used in Massachusetts Trials

In Massachusetts judges often use the mailman analogy to help jurors understand the difference between direct and circumstantial evidence:

"Your daughter might tell you one morning that she sees the mailman at your mailbox. That is direct evidence that the mailman has been to your house. On the other hand, she might tell you only that she sees mail in the mailbox. That is circumstantial evidence that the mailman has been there; no one has seen him, but you can reasonably infer that he has been there since there is mail in the box.

While this instruction is part of the model instruction, the defense should probably object to it as it allows proof based on assumptions and does not apply in this case. The mailbox analogy often used unfairly overstates the persuasiveness of circumstantial evidence because only the mail carrier delivers the mail and the mail in the box in marked with a stamp from the post office. The circumstantial evidence that the mail carrier must have put the mail there is not based on the chance that something is in the mailbox.

Other States use different examples of circumstantial evidence as discussed in Paul Callan's Article on CNN where New York uses an example of seeing people board a train with umbrellas and wet clothes and leading to the conclusion that it was raining.

In a case where circumstantial evidence is the sole proof, the jury instruction must be careful to prevent the jury from allowing the charge to be proven based on assumptions and speculation and in filling in the gaps. The mailbox example permit the jury to infer it must have been the mail carrier when the Hernandez case does not contain such convincing circumstantial evidence.

The judge will then explain how the jury should apply circumstantial evidence. In Massachusetts there is no difference in probative value between direct and circumstantial evidence. In criminal prosecutions, circumstantial evidence is competent to establish guilt beyond a reasonable doubt. This means that one type of evidence is not necessarily more important or factual then the other.

The judge will instruct the jurors that they may only draw inferences from facts proved to them and that any inferences drawn must be reasonable and based on common sense and experience of life. These inferences do not have to be inevitable or without question but they must be reasonable and logical conclusion from the prior inference. The jury may not use conjecture or guesswork to choose between alternative inferences.

A good example of this type of inference piling is the gum evidence in the Hernandez trial. The prosecution introduced evidence that Hernandez purchased a certain type of gum and that same brand of gum was found in a rental car next to a shell casing with of the same caliber as the gun used to shoot Odin Lloyd. The shell casing had Hernandez's DNA on it. This line of evidence requires jurors to infer that because he bought the same type of gum, the gum found in the car must be his and because that gum was found next to a shell casing of the same caliber gun used in the shooting, and because his DNA was on the casing that he therefore shot Odin Lloyd.

The defense has argued that it just as likely that the DNA casing from the bullet was transferred from the gum. The defense has also used this line of evidence as a tool to discredit the police's investigation of Odin's death. The defense was able to elicit testimony from the prosecution's DNA witness that showed that

1. The bubblegum wasn't subjected to DNA testing;
2. Hernandez's DNA on the shell casing may have simply been transferred from the bubblegum and
3. The co-defendant's DNA was never collected or tested against the gum or the casing

Collectively, this testimony raises a possible alternative to the prosecution's theory.

In closing argument, the defense is likely to emphasize that while the jury can consider circumstantial evidence, they cannot use it to fill in for a lack of proof in the case and if there are multiple inferences permitted, than the fact has not been proven by circumstantial evidence and the Commonwealth has not proven its case beyond a reasonable doubt as required under the Constitution.

Trial Judge's ruling may be grounds for appeal in Aaron Hernandez Murder Trial

March 14, 2015,

The trial judge presiding over the Aaron Hernandez murder trial in Fall River has just reversed a critical decision she made on Wednesday that could have been fatal to Hernandez's case. During trial on Wednesday, the prosecution called an employee of the gun manufacturer Glock to testify about home surveillance footage taken in Hernandez's home only minutes after the murder of Odin Lloyd. My Fox Boston reported on the events.

The Testimony
The footage revealed an unclear depiction of Hernandez walking through his home at 3:30am carrying a black object that resembled a gun of some sorts. The prosecutor asked the witness whether he recognizes the object, and the witness testified that the object looked identical to what he recognizes from his experience as being a Glock 21. And although the defense attorneys attempted to strike that testimony from the record, the trial judge decided that the testimony was permissible. This testimony is arguably the most fatal part of Hernandez's defense, since it connects Hernandez to the alleged murder weapon at the time of the crime.

The Rule: Lay vs. Expert Witnesses
There was at least one major problem with the court's ruling on this testimony. The witness who testified was never "qualified" or "certified" as an expert witness. Instead, he was simply testifying as a "lay" witness. The distinction is critical because lay witnesses are much more limited in their testimony than expert witnesses. The rules of evidence do not permit a lay witness to render an opinion about an area of expertise - such as gun models and component parts. A lay witness is only allowed to testify as to his observations or knowledge of facts, and may only state opinions that are common knowledge to any reasonable person. An expert, however, is allowed to render a scientific opinion or an opinion based on specialized knowledge, as long as the opinion is found by the trial court to be relevant and reliable as based on actual science. The court would ordinarily conduct what is called a "Daubert Hearing" to determine whether the expert could give any particular opinion testimony; this hearing is conducted outside the jury's presence.

The witness in the Hernandez trial who stated an opinion that the surveillance image did in fact depict a Glock 21 was never qualified as an expert - for one reason or another. Therefore, he can only testify as a lay witness, and so may not state an opinion based on any scientific or specialized expertise - even if he actually does possess such expertise. In this case, the witness was an employee of the gun manufacturer, and during his testimony he described the component parts of a Glock 21, and identified those parts for the jury in the surveillance video depicting Hernandez. The witness then explicitly stated that it was his opinion that Hernandez was carrying a Glock 21 in the video. This testimony is impermissible because it now exposes the jury to what is possibly unreliable testimony, which could influence the jurors and taint their verdict.

Grounds for Appeal
The trial judge ultimately recognized her mistake and returned to court the next morning reversing her decision and instructing the jurors to disregard that portion of the witness's testimony. A problem for Hernandez remains however. Even though the court specifically instructed the jurors to disregard the testimony, it is highly impractical to ask someone to forget something they have just heard and has so much significance to them - especially when you remind them of the statements that are to be forgotten. The fact that such an enormous mistake was made by the trial judge gives the defense attorneys a substantial basis to appeal the case should Hernandez be convicted. The defense may ague on appeal that the jury's thoughts were permanently and fatally tainted by the improper testimony, because there is a high probability that the jury was influenced by the testimony. Whether this argument would succeed, however, depends on the strength of the remainder of the case.

Massachusetts Court decides No 4th Amendment Violation where Anonymous Tip leads to DUI stop

March 6, 2015,

There are often times when police officers have to rely on anonymous callers who dial 911 to tip police off on a crime they had observed. Whenever a defendant is arrested as a result of such a tip, the trial court must determine the caller's reliability before allowing the case to proceed to trial. In the case of Com. v. Depiero, the Appeals Court determined that it was lawful for police to arrest a driver with a history of drunk driving after receiving an anonymous 911 call reporting erratic driving.

The 911 Call
Police dispatch received a call stating that a "drunk driver" operating on Memorial Drive was "swerving all over the road." The caller did not identify him/herself, but did provide the dispatcher with a license plate number, make, and model of the car. A state trooper was then dispatched to the driver's address, where he observed the driver pull into his driveway. After the driver parked, the officer turned on his emergency lights and conducted a traffic stop. The driver admitted to having drunk alcohol, and subsequently failed the field sobriety tests.

Arguments Before the Court
The issue before the court was whether the trooper conducted the stop on an unlawful basis, in violation of the driver's Fourth Amendment and Article 14 rights. The driver's argued that the trooper had not observed any indication of erratic driving to suspect that the driver was intoxicated. In fact, the trooper testified that he observed the driver operate the vehicle normally and without incident as pulled into his driveway. The State argued that the police were entitled to rely on the anonymous tip provided through the 911 wall, and that the tip was sufficiently reliable to give the officers reason to suspect that the driver had been operating under the influence.

The Aguillar-Spinelli Test
Massachusetts courts have adopted the Aguillar-Spinelli test to determine whether an informant's tip is reliable. The test has two prongs. First, the court looks to determine whether the caller had a sufficient basis of knowledge to support his reports. The court then looks to whether the call can be deemed credible; i.e. whether the caller can be trusted to give accurate reports. Credibility can be established by either the police corroborating the tip through their own observations of the defendant's conduct, or through other indications reliability.

Here, the information provided in the call established the caller's basis of knowledge because the information suggested that the caller had just observed the erratic driver first-hand. As to the caller's reliability, the court held that the judge could infer from the caller's report that the caller had dialed 911 in response to the shocking event that the caller witnessed. There was no reason to think that the caller was trying to falsely accuse the driver. This report, coupled with the officer's knowledge of the driver's past criminal history, made this arrest reasonable.

The important point to take home from this case is that police officers are given wide latitude to use information collected from many different sources to justify an arrest. The best way to challenge these arrests is to challenge each source of information, and the actual information communicated through these sources. The court's analysis in this decision is consistent with the Massachusetts Supreme Judicial Court's own decision in Com. v. Anderson, as well as the U.S. Supreme Court's decision in Navarette v. California. Together, these decisions establish greater bases for officers to stop and arrest individuals based on anonymous tips.

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.