Faulty Breath Test evidence in Massachusetts undermines the reliability of OUI convictions

April 25, 2015,

The news this week of errors with breath testing in Massachusetts has had a major impact on the prosecution of drunk driving cases and raises the potential of hundreds of wrongful convictions and or wrongful pleas that were not supported by accurate evidence. One reason this has occurred is the ease with which prosecutors can admit breath test evidence at trial. The Commonwealth can admit the results without calling any witness that knows anything about how the machine operates. At a trial, the breath test operator will typically testify that they are taught to push the button, wait for the machine to run its self checks and if the machine does not report any error, the results are fine. The officer will often admit to not understanding the science behind the machine.

The Commonwealth is not required to call any expert witness from the Office of Alcohol Testing to verify the accuracy of the results. In a case known as Commonwealth v. Zeininger, 459 Mass. 775 (2011), the Massachusetts Supreme Judicial Court said that breath test records can come into evidence without live testimony because the records are not testimonial, meaning that the Court was saying that the records do not accuse a person of a crime but report "neutral" data. The Court's reasoning was flawed and allowed evidence to come in a trials without being properly tested through cross examination. In light of the disclosure of the problems with the machine, the SJC should reconsider its decision in the Zeininger case that is partly the cause of unreliable evidence being presented to jurors during OUI trials.

This bring us to the error that prompted many counties to hold off using breath test results, including Suffolk, Middlesex, Worcester, Essex, Northwestern, Barnstable County.

Prosecutors are explaining that the error is that the manufacturer has broader tolerance for errors than the State regulations and as a result the machine does not notify of the operator of an error. According to the MyFoxBoston report, police are trying to minimize the significance of the problem by claiming they were not properly trained and had inadequate understanding of the machine. Despite district attorneys declining to use the results, police departments will still offer breath tests for those arrested for OUI over this weekend according to a Boston Herald report.

When the breath test machine calibrates itself prior to each individual test, it was suppose to read between .076 and .084 on a known alcohol solution that was suppose to be .08 percent. The problem was that the machine was reading outside of the calibration without notifying the operator of the error. Accordingly, the machine did not have the ability to self-check its own errors as officers testified occurred during OUI trials.

The issue is that prosecutors and police officers have been testifying since the Alcotest 9510 was first used in 2012 in Massachusetts that the machine would not produce a result unless it was working properly. This testimony that occurred in almost every trial with breath test evidence was clearly wrong and inaccurate. The calibration numbers are at least evident from a breath test ticket, but the machine performs many functions that would be undetectable unless the machine was completely examined which does not happen during a trial or even during the annual certification of the breath test machine.

The breath test machine is suppose to have a mouth alcohol detector, a sensor that determines there is no alcohol in the chamber prior to the breath test and makes calculations to convert a breath alcohol reading into a blood alcohol percentage based on an individual partition ratio. All of these functions of the machine are assumed to work properly. The periodic testing of a breath test machine is simply running a known sample through the machine five times. The machine is never challenged to see if any of its features work during the periodic testing. The annual certification of the machine is not rigorous either with the machine being tested at different alcohol levels of .08, .10 and .20 with a sample made in a laboratory.

The problem with breath testing runs much deeper than officers not being trained to catch if the machine fails to calibrate, but centers around having a machine represent per se evidence of guilty in a criminal case and having no reliable evidence in court that it works, other than the machine did not tell us there was an error. Only in a drunk driving case can someone be convicted of a crime based solely on the result of a machine, that even during trials, police witnesses acknowledge they do not know how it works and simply push the buttons waiting for an error message.

The Office of Alcohol Testing should create meaningful testing of the breath test machine while the Courts should recognize that breath test evidence should require live testimony subject to cross examination at trial, rather than permitting the Commonwealth to submit documents, claiming to show accurate results without anyone to provide meaningful testimony as to how to interpret the records and verify that the machine was working properly.

To read more about breath testing and the error with the machine, you can see my previous Blog on the topic.

Breath Test Results in Massachusetts may be in jeopardy as report of faulty breath test machine in Essex County

April 22, 2015,

According to a news report in MyFoxBoston, Prosecutions in Essex County have stopped using breath test results as a problem has arisen with the calibration of the machine. This report was confirmed by several other media outlets. According to one report, the problem arose in a case out of the Lawrence District Court where a defendant accepted a plea but the machine read outside of the accepted range but produced a result anyway.

While I have not learned of the exact error at this point, I did experience a similar problem with a case out of the Attleboro District Court. In that case, the breath test machine appeared to produce a result, but when the machine self calibrated itself on a solution that was suppose to be .08, it read .071. When testing the calibration solution of .08, the machine is suppose to be within a range of .076 to .084. In this case, the machine was outside the range, but it produced a test result as if it was working properly. When the error was brought to the attention of the district attorney, the results were excluded from evidence.

There could be other ways that the machine provides a faulty calibration. Until further information about the problem is disclosed, it would be advisable as a Massachusetts OUI Lawyer to delay resolving any breath test case until the Commonwealth completes its investigation.

Aaron Hernandez convicted of murder where does the case against Carlos Ortiz and Ernest Wallace stand

April 19, 2015,

Where does the case against Ernest Wallace and Carlos Ortiz stand? While the prosecution did a great job proving that Aaron Hernandez orchestrated a murder, the charges against Ortiz and Wallace seem to be based on the fact that they were present with Hernandez at the time. Mere presence at a crime scene is insufficient to establish a conviction without evidence that they assisted and shared Hernandez's intent.

The case against Hernandez showed that Hernandez, demanded Ortiz and Lloyd come up from Connecticut to go out with him. Throughout the 139 witness trial, there was little mention of the role of Ortiz and Lloyd. The only mention was the inference that Lloyd must have been pushed from the car by either Wallace or Ortiz and that both had a history of drug use and used PCP.

There does not appear to be a strong case against either for murder. Wallace's DNA was not even tested indicating a lack of investigation as to his involvement. There was no testimony as to any relationship between Wallace, Ortiz and Lloyd. Had there been an adverse relationship, it would have been likely exploited by the defense as a possible motive.

Clearly, the prosecution wanted its conviction of Hernandez and got it this week.

Two other men are facing 1st degree murder charges when eight weeks of trial did not reveal what shared intent they had to assist Hernandez to carry out the murder. From the start, the Commonwealth had its theory that Hernandez was the shooter. MyFoxBoston has the timely of the case on its website.

At best, it appeared they have evidence that they assisted in getting Lloyd out of the car. But with only circumstantial evidence as to when the 1st shot was fired, it will be difficult to prove that either Lloyd or Wallace knew Hernandez's intent and assisted with it. Based on the trial, the evidence seems clear that the prosecution presented these two men as obeying Hernandez's every command.

At the trial of either Wallace or Ortiz, we could learn Hernandez's exact role as either could testify in their own defense. Both could also present evidence that they feared Hernandez and felt as though they had to go along as a result of his past behavior and the fact that he had a gun in his possession. While there could be other evidence that was inadmissible against Hernandez that would be used to prosecute Ortiz and Wallace, it is likely any evidence pointing to them would have been used by the Hernandez defense team.

Based on the evidence presented, it seems unlikely the Commonwealth could get a murder conviction against either co-defendant. The Government will likely want to resolve these cases and the family of Lloyd may not wish to go through another trial. To read more about this case you can see my Blog post on the trial. My final Blog on this trial will be geared toward what lawyers can learn from the trial and where to find great examples throughout the testimony. Look for that next week.

Aaron Hernandez Found guilty of 1st Degree Murder in Murder of Lloyd

April 15, 2015,

In the end, the detail after detail that the prosecution provided convinced the jury beyond a reasonable doubt that Hernandez murdered Odin Lloyd. Jurors spoke after the verdict with one juror leading the discussion and indicating that the testimony of Robert Kraft was critical as Hernandez would not have known the time of death given the jury never leaned it after eight weeks of testimony.

Prosecutor William McCauley, made a very passionate closing a statement linking each piece of evidence and its significance to the jury over the 8 week trial, with 139 witnesses called and over - exhibits.

Here are some of the facts that may have convinced the jury to return a verdict of guilty.

Hernandez went to pick Lloyd up at about 2:00 am the night of the murder. Clubs and bars were closed; Lloyd did not appear dressed to go out.

It was urgent according to Hernandez's texts for Wallace and Ortiz to come up to go out with him. Hernandez ordered Ortiz and Wallace to go out with him that night and made plans on Father's Day, texting many times from the South Street Cafe.

Video showed with Hernandez leaving his home with a gun and entering his home with a gun. The video surveillance also showed him apparently checking the seat when getting out of the cars minutes after the murder. McCauley argued that he was looking for shell cases from one of the shots fired from inside the car as the medical examiner testified that one of the shots was consisted with it being fired from inside the car.

It likely was the combination of Hernandez having the gun, ordering Ortiz and Wallace to accompany him, his complete control as exhibited through the text messages, his behavior in ordering Jenkins to get rid of the box and false statement to Kraft that left the jury convinced of his guilt.

Hernandez's defense argued that Ortiz and Wallace acted crazy and killed Lloyd suddenly without Hernandez knowledge and that he only covered up the crime because he did not know what to do. This argument likely failed because the video of Wallace and Ortiz getting out of the car after the murder, looked like they were simply following Hernandez's every move. It did not appear as though they were acting crazy, but the look on Ortiz's face appears to be one of shock, he walks slowly into the house.

The cross examination of the defenses PCP expert discredited him; the expert, did not offer any conclusion or solid basis to conclude that anyone was acting under the influence of PCP. His answers were evasive and did not provide a strong enough basis for the jury to credit that the murder was a sudden act of rage from Wallace or Ortiz.

The case does not end with the verdict; there will be an appeal, to the Massachusetts Supreme Judicial Court. One of the major issues on appeal with be that Judge Garsh, struck the testimony of the expert from Glock, Aspinwall, identifying the murder weapon as a Glock in the video. The judge allowed part of his testimony while excluding others parts, finding that it was proper for him to testify that the back strap but could not consider his testimony regarding the trigger lock and front strap. The defense would assert that his entire testimony was improper and may be there strongest grounds for appeal.

During closing argument, the defense referenced his testimony that had been struck from evidence, reminding the jury to disregard this evidence. I think the reference to the testimony during closing may help the defense argue that it was not content with a jury instructions, requested a mistrial and that the error prejudiced the outcome of the trial. The defense could argue that asking the jury to ignore powerful and incriminating testimony was unfairly prejudicial warranting a new trial.

Given that many of Judge Garsh's rulings benefited the defense, it is difficult to see the SJC overturning the conviction. I thought Garsh's ruling were extremely fair to both sides. She was very thoughtful in each of her rulings citing the case law to the lawyers when ruling on motion.

Other grounds for appeal likely would involve the Judge's decision regarding the Motion to Suppress Evidence along with the admission of statements from the defendant's jail house calls into evidence. As a Massachusetts Criminal Defense Lawyer, I have enjoyed watching the trial and plan to create a post highlighting the helpful part for defense attorneys as there were numerous examples of effective cross examination from both sides.

To read about the discussion of the jury, you can see the Video on the Yahoo.com.

How Strong is the Evidence in the Aaron Hernandez Trial as the Commonwealth has rested its Case

April 2, 2015,

The prosecution rested its case against Aaron Hernandez today after 39 days of trial.

Friday, the parties will address legal issues relating to a motion for required finding of not guilty by the defense, where the defense attorneys will argue to the judge that the Commonwealth has not presented enough evidence to allow the case to reach a jury. This motion will likely be denied by the judge, but is commonly filed in every criminal trial. The parties will also discuss jury instructions, with the defense presenting its case on Monday. The defense is expected to rest on Monday and the Court would likely have Closing Arguments on Tuesday.

Summary of the Highlights of the Commonwealth's Case

The prosecution established through video and cell phone evidence that Hernandez was with Lloyd at the time of the murder and was present at the scene. Hernandez's DNA was found on a marijuana blunt found near the body of Lloyd. Further connecting Hernandez to the scene were tire tracks of the rented Nissan matched those found at the murder scene.

Hernandez returned the car the next day and the manager found a shell casing and gum inside the car. She threw this evidence into the dumpster and it was retrieved by State and North Attleboro police. Hernandez's DNA was found on the shell casing found in the rental car. The defense argued that the DNA could have been transferred onto the casing from the gum. The defense will likely stress that the lack of proper DNA testing on the gum and from the co-defendant was based on their desire to pin the murder on Hernandez and deprived the jury of crucial evidence that it should have had to evaluate in the case.

The Six shell casing founds were from a Glock 45 indicating it was fired six times according to the testimony. Additionally, the Commonwealth showed that following the murder Hernandez had frequent cell contact with Wallace.

Where are the gaps in Evidence in the Commonwealth's Case

The defense will argue that the DNA testing was not complete that the casing at the scene could not be adequately tested; moreover, the defense will point to the lack of control over the crime scene as allowing evidence to be lost as well as the failure to test the DNA of co-defendant Wallace. Finally, the defense will point to the lack of DNA testing of the gum as a failure of the Commonwealth to properly investigate the case.

What Circumstantial Evidence links Hernandez to the murder

The surveillance video from Hernandez's home shows him with what looks like a gun shortly after the murder and with Ortiz and Wallace.

The testimony of Shayanna Jenkins establishes that the three were also together after the murder and that she made them a smoothie and they were hanging out by the pool. Further, Wallace is shown holding Hernandez's daughter the day after the murder.

In terms of the Government's theory of joint venture, the fact that the three are seen after the murder supports the Commonwealth's claim of a joint venture.

After the murder Hernandez is still controlling the actions of the alleged co-conspirators. This is one of the stronger parts of the Commonwealth's case is that even after the murder they can argue Hernandez is in control.

While Jenkins did not give the prosecution much evidence, the little is gave was extremely valuable, that he instructed her to drive to East Greenwich, Rhode Island late at night while he was at the police station to give Wallace money. The amount was intended to be greater than 500.

Additionally, Jenkins testified that Hernandez asked her to get rid of a black box in the house that the Commonwealth contends contained the murder weapon. Bradley testified that he saw a gun in the house in the basement around that same spot.

Jenkins clearly did not want to testify against Hernandez, claimed not to have remember many points where it would be nature for her to speak to him, so the fact that she claims she did not look into the box or that it smelled like marijuana was likely not accepted by the jury and the jury may have concluded she got rid of the murder weapon. Jenkins acknowledged using baby clothes to conceal the content of the box from the surveillance footage.

The testimony of Robert Kraft was also critical to the Commonwealth as it is inconsistent with the other evidence in the case. Hernandez had to speak to Kraft and the jury could infer that he lied to Kraft and knew he had to say something so claimed to not have been with Lloyd at the time of the murder.

The prosecution case rests entirely on circumstantial evidence, but they established an abundance of evidence, but still it is unclear who shot Lloyd, what was the motive. The men all smoked pot so the defense may claim that given the drug involvement of everyone involved it creates a reasonable doubt. The defense will point out to the inadequate investigation of Ortiz and Wallace to rule out, them having a motive to kill Lloyd, that from the start the investigation focused on Hernandez and there investigation was geared toward making the evidence fit there theory.

Where the jury may find Reasonable Doubt

A strong part for the defense was in the questioning of the footprint expert; he testified that he did not think one of the shoe prints was sufficient for analysis but was asked to reexamine the print after being directed by Trooper Benson. Further, the defense point out that the investigators did not use the recommended and best practices in securing the crime scene. The defense will point to the lack of accurate and reliable photographs of the crime scene and other precautions to preserve the crime scene. As a result of the lack of preservation of the crime scene, key evidence was lost and the jury cannot know what other evidence is missing, which the defense will argue raises a reasonable doubt.

The testimony of Bradley revealed that he saw a gun in the basement but did not believe that it was a Glock and also claims that the box in the basement had marijuana and money in it. Jenkins testified the box smelled like marijuana confirming the defense theory that Hernandez was getting rid of marijuana. In his article on SI.com, Michael McCann believes that Bradley's testimony may have helped Hernandez.

Bradley also indicated that Hernandez smoked a large amount of marijuana and was a chain smoker. Bradley's testimony was undermined by the fact that he had a criminal record, pending charges and may believe that testifying against Hernandez will assist him with his pending cases.

Bradley did testify that he held a Glock in a hotel in Florida in 2011 that resembles what prosecutors believe was the murder weapon. This testimony was impeached as Bradley did not reveal this before the grand jury previously. Though the description of the gun in the box did not match the murder weapon, Bradley confirmed that there was a box that contained a gun, strengthening the Commonwealth's proof that the murder weapon was not found because disposed of by Jenkins.

How will Reasonable Doubt be explained to the jury?

The Massachusetts Supreme Judicial Court recently clarified the jury instruction on reasonable doubt requiring judges to instruct a jury that reasonable doubt means the highest degree of certainty in the matter of human affairs; further, the jury will be instructed it must have an abiding conviction to a near moral certitude that the charge is proven to meet the standard of proof beyond a reasonable doubt.

Friday the parties will have a charge conference where the judge will review and listen to requests for specific jury instructions. Under the joint venture theory, Hernandez does not have to fire the shot that caused the death to be guilty of murder but is guilty under a joint venture theory.

Jury will be instructed that a joint venture is proven if the following is proven:

The test [for joint venture] is whether each defendant was (1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement is willing and available to help the other if necessary."


When you look at the circumstantial evidence in the case, it is compelling, but given the fact that the Commonwealth targeted Hernandez, he has no motive to kill Lloyd and the crime scene was not preserved, DNA testing was inadequate and crime scene investigations like the foot print expert were not qualfiied, those factors could lead the jury to find a reasonable doubt and find Hernandez not guilty.

For further coverage of the Trial, MyFoxBoston, has a complete timely of the trial on its website.

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.