Texas State Appeal Court Judge Arrested for DUI

July 24, 2014,

In McAllen, Texas, a state appeals court judge has been arrested for drunken driving following a traffic stop this weekend. After failing field sobriety tests and admitting to drinking five beers beforehand, the judge was charged with a DUI was subsequently released from police custody on a $2,000 bail posting based on her personal recognizance.

Judge Nora Longoria was originally pulled over for speeding, after a police officer caught her doing 69mph in a 55mph zone. According to Texas Lawyer, the police officer Longoria stated that she was driving home from having "dinner with friends" and proceeded to tell the officer that she was a judge, but the officers asked her to exit the vehicle due to the smell of alcohol on her breath, had bloodshot, glossy eyes and slurred speech during the conversation. After exiting the vehicle, Longoria failed the field sobriety tests as she had trouble with her balance and continuously had to use her arms for balance throughout the walk-and-turn and one-leg-stand tests.

The officer advised Longoria that she was being arrested for driving while intoxicated, which is when Longoria became emotional and refused to be handcuffed. Longoria stated the officer was "ruining her life" and that she had "worked hard for 25 years to be where I am today". The officer told Longoria she would be charged with resisting arrest if she did not comply with the officer's requests but Longoria was further uncooperative and asked to speak with a supervisor. The supervisor allowed the judge to be handcuffed with her hands in front of her to put her at ease and she was eventually taken back to the station, where she admitted to drinking 5 beers that night and refused additional procedures, including an interview and the breathalyzer test. Longoria was later released from jail after posting a $2,000 personal recognizance bond.

Those facing a DUI commonly experience Judge Longoria's concerns about the impact of her arrest. A DUI jeopardizes not only the driver's career, but it can also affect their social ties and overall reputation. Most people in Judge Longoria's situation would feel hesitant to fight their case, as they would believe that statements about how much alcohol they had to drink would be detrimental to their case and that failed field sobriety tests result in an instant guilty verdict. However, these assumptions are false and it is important to understand that during trial, DUI attorney can file the relevant motions to dismiss certain evidence, such as admissions of guilt or field sobriety test results, from trial. This case appears very defensible and it shows that it is easy to get arrested, but securing a conviction at trial is a much higher standard.

Defending Drug Offenses in Plymouth County in light of recent SJC ruling limiting police searches in drug cases

July 18, 2014,

The Massachusetts Supreme Judicial Court recently published an important decision on Commonwealth v. William White, Jr. vacating a trial judge's conviction and ruling that a police officer acted unlawfully when he searched the defendant and opened medical vials found in the defendant's pockets and vehicle. This decision limits the scope of police authority to search an individual and his vehicle for drugs upon an arrest - even where the individual is arrested on a warrant issued for a prior drug crime.

The defendant in this case was pulled over by two Cambridge police officers when the officers ran his vehicle registration and discovered two outstanding arrest warrants issued against the defendant. The first warrant was for a violation of a protective order, and the second was for a drug offense. After confirming that the driver of the vehicle was the owner who had the warrants issued against him, the cops ordered him to exit the vehicle and arrested him with handcuffs.

One of the officers then pat frisked the defendant, and felt a small prescription pill container in a pant pocket. The defendant told the officer that it was a vial of blood pressure medication, but the officer still removed it from the defendant's pocket for a closer look. The container was labeled with the defendant's name on it, and had one pill inside. The officer then discovered another small vial which he officer knew normally would contain the thin strips used with a blood sugar testing kit. But after shaking the container and hearing a sound of pills rather than testing strips, the officer opened that container and saw a different type of pills inside. The officer seized this container for further testing. The officer then entered the defendant's vehicle to lock he vehicle and remove the keys at the defendant's request, and while doing so found another prescription pill container, unlabeled, on the front passenger seat, with pills identical to the unknown pills discovered in the defendant's pocket. This container was also seized for further investigation.

At the station, the officer compared the physical characteristics of the unknown pills to an Internet database and identified them as 10 mg methadone pills. The defendant was charged with illegal possession of a class B substance. The defendant moved to suppress all the evidence seized during the arrest, but the trial judge denied the motion. The defendant later admitted to having possessed the pills without a prescription, and was then found guilty and convicted.

In reviewing the appeal of this case, the SJC addressed three types of legal doctrines that enable police officers to search arrestees and their vehicles: 1) search incident to arrest; 2) weapons search or "pat frisk"; 3) inventory search; and 4) the "plain view" doctrine.


1) Search incident to arrest

Ordinarily, under federal law and its interpretation of the Fourth Amendment, officers may conduct a "search incident to arrest" for warrants and contraband whenever it is reasonable to do so. The SJC, however, cited to a Massachusetts statute (G.L. c. 276, § 1) that was enacted to provide more protection against searches and seizures then does the U.S. Constitution. Under the state statute, a police search incident to an arrest is reasonably only if conducted:

a) for the purpose of seizing evidence of the crime for which the defendant was arrested, in order to prevent the evidence from being destroyed or concealed; or
b) for the purpose of removing weapons that might be used by the defendant to resist or escape.

The SJC finds here that the officer did not act reasonably in conducting the search incident to the arrest because there was no evidence known to the officer to lead him to reasonably believe that the defendant either possessed evidence of a crime. Even when the Court considered the officer's knowledge of the outstanding arrest warrants, the warrants were for a drug offense and a violation of a protective order, both from an unknown time in the past. According to the Court, therefore, the officer could not have reasonably believed that evidence of those crimes was still on the defendant's person at the time of his arrest.

The only other grounds for a search incident to arrest would be to search for weapons that may be sued to resist or escape the arrest. Such a search is essentially similar to a pat frisk, but a bit more thorough.


2) Pat frisks

Pat frisks are conducted by officers to search for weapons, or items that may be used as weapons, on the individual's person. Pat frisks are generally limited to the individual's outer clothing, and are conducted to ensure the safety of the officers and the public during the police interaction with the individual.

In this case, the Court found that it was reasonable for the officer to pat frisk the defendant and to examine the first hard object that the officer felt in the defendant's pocket. The Court suggested that it would be reasonable to believe that the medicine vial contained a razor blade in the closed container. However, once the officer shook the container and heard the sound of pills inside, it was no longer reasonable to believe that it contained a blade or any other weapon, and so the officer was not authorized to open the container.


3) Inventory Searches

Although the first vial could be searched under the pat frisk doctrine, the second vial in the defendant's pocket and the third vial on the front passenger seat could not be examined as part of a weapons search/pat frisk because they were clearly not weapons. But the Court discussed yet another doctrine, which is often used by cops after an arrest. This is the "inventory search" doctrine.

Inventory searches are lawful when they are conducted under standard written procedures for the purposes are safeguarding the arrestee's property, to protect police against false claims of theft or stolen property, and to keep unlawful items out of jails and prisons. These searches must be "noninvestigatory," meaning an officer is only permitted in observing the obvious qualities of the item for the purposes of categorizing it in the inventory log. The officer should not examine the items closely, as if to investigate the items.

Although the officer in the defendant's case may have acted permissibly in examining the outside of the second vial found in the defendant's pockets for the purposes of logging it into the inventory of, the officer was not authorized to seize the pills inside the vial and cross reference them with the internet database. This conduct was clearly investigatory - it was to investigate the identity of the pills in order to criminally charge the defendant. The Court held that this search required a warrant, and the trial judge should have suppressed these pills from coming into evidence.


4) Plain view

A fourth search doctrine addressed by the Court is the "plain view" doctrine, and it applies to items which the officers observe in plain open view, without searching the defendant or his property. The Court considered this doctrine with regard to the final vial found on the passenger seat of the defendant's vehicle as the officer entered the vehicle to retrieve the keys from the ignition at the request of the defendant himself.

The plain view doctrine authorizes police officers to seize objects in plain view only where:
i. The officer is lawfully in a position to view the object;
ii. The officer has a lawful right of access to the object;
iii. The object is clearly unlawful, or indicative of criminal activity of which the police is already aware; and
iv. The officer comes across the object inadvertently.

The Court found that that the third element above was lacking in the case of the defendant. The officer arrested the defendant on an outstanding warrant for violation of a protective order and a drug offense; on those grounds alone, the Court held that the officer could not have reasonably believed that the medicine vial on the passenger seat is related to either one of those crimes for which an arrest warrant was issued against the defendant.

In sum, the Court ultimately ruled that the trial judge incorrectly allowed the evidence of the pills seized by the officer and compared to an Internet database to be presented into evidence. And since the defendant was only charged with unlawful drug possession as a result of the officer's investigation of those pills, the conviction was vacated and the Court ordered a new trial for the defendant.

This decision severely limits the prosecution's efforts to charge the defendant for unlawful possession of the methadone pills, since the pills seized where the most important piece of evidence for the prosecution. Furthermore, this decision also affirms the Court's stance against unreasonable searches and seizures, limiting police searches and ensuring that experienced Massachusetts defense attorneys have the tools they need to raise the defenses necessary to protect their client's constitutional rights.

Warrantless Search of Cell phones declared Unconstitutional by the Supreme Court

June 28, 2014,

The Supreme Court has just issued a landmark ruling banning law enforcement officers from searching an arrestee's cell phone or mobile device without a warrant. According to all nine justices of the Supreme Court, a warrantless search of a mobile device, even a search incident to an arrest, is unconstitutional as a direct infringement on an arrestee's sacred Fourth Amendment protections.

The Cases on Appeal

The ruling arrived as a decision on two companion cases: Riley v. CA and U.S. v. Wurie. In the matter of U.S. v. Wurie, which was litigated here in the U.S. District Court in Boston, police officers arrested the defendant after observing him sell two bags of crack cocaine out of a car. After the arrest, the officers performed a routine warrantless search of the defendant's person (known as a "search incident to arrest") and seized more than $1000 cash, keys, and two cell phones. One of the cell phones - a flip phone - was repeatedly receiving calls from a number labeled "my house;" the officers recorded the calling number and entered it into an online telephone directory. Their investigation led to a residence alleged to belong to the defendant, where they discovered more crack cocaine, marijuana, cash, a firearm, and ammo. Defendant was charged with three federal offenses.

In the matter of Riley v. CA, originating in the CA state courts, officers searched the defendant's smartphone after he was arrested for driving an unregistered vehicle. While searching the smartphone, state police officers discovered texts, videos, and other data connecting the defendant to heavy gang activity, an attempted murder, and a prior incident involving an assault with a semi-automatic. The defendant was convicted on all counts by a state trial court, and the conviction was affirmed by the appellate court. After the California Supreme Court refused to accept another appeal, the U.S. Supreme Court decided to hear the matter together with U.S. v. Wurie.

The Court's Landmark Decision

The ruling in these two cases marks an enormous victory for criminal defense attorneys, free speech advocates, and criminal defendants all across the nation. Not only did the Supreme Court unanimously extend Fourth Amendment protections to cell phones and mobile devices, but it also rejected all arguments and suggestions offered by both the U.S. attorneys and the California state attorneys seeking any leeway for law enforcement officers to search these devices.

The Supreme Court made no compromises in this decision; it categorically refused to allow any search of any mobile device when the officers do not have a warrant and when no emergency exists. The reasoning underlying this broad decision stems from the Court's recognition that cell phones and mobile devices in today's society require substantially more protection because of their storage capacity and their interconnectivity to remote servers (also known as "a cloud").

Unlike past cases where defendants challenged (unsuccessfully) a search of their suitcase or vehicle after an arrest, the Supreme Court recognized that modern cell phones and mobile devices house incredibly vast amounts of information on their carrier. A search of a common smartphone may enable law enforcement officers to view messages, emails, photos, videos, financial information, personal documents, call log data, contacts, web history, and GPS information on the carrier's locations - among other things.

Since most smart phone users store (either knowingly or not) hosts of private information on their cell phones and in "a cloud," permitting a warrantless search of a cell phone would render the owner substantially more vulnerable to intrusion on privacy than if law enforcement officers were to search every corner of the owner's home. And under American law, a home is traditionally the most protected space by the Constitution - a fundamental constitutional protection that the Founding Fathers highly treasured and fought to protect from infringement by Great Britain. This decision therefore equates - if not raises - protections over mobile devices to those over homes.

Implications of the Court's Decisions
The greatest concern that immediately arises from this decision is whether law enforcement officers will be able to adequately protect the public given the heavy restrictions on searches imposed by this decision. In the words of the Supreme Court: "We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime." The being said, however, the Supreme Court affirms: "Privacy comes at a cost."

Furthermore, the decision still allows police to search cell phones and mobile devices where they reasonably believe that an emergency exists. An emergency in this context would require that either the public or police officers are in immediate danger, or that evidence may be at immediate risk of being destroyed. Outside of these two sets of circumstances, however, it would be unreasonable - and so unconstitutional - to search an arrestee's cell phone.

The Supreme Court also reassured law enforcement agencies all across the nation that its decision neither overturns any past decision, nor does it render mobile device data completely immune from searches. Instead, all the Court's decision requires is that a warrant be sought and obtained prior to searching the cell phone. Outside of emergencies, officers may always seize the cell phone, apply for a complaint, and then search the cell phone once the warrant issues. And as the Court notes, several jurisdictions have recently allowed expedited warrants through email, telephone, and other electronic transmission. A warranted search of a cell phone, therefore, should not be too delayed from the time of arrest.

Ultimately, the Court does not believe its decision is too intrusive on law enforcement. In the words of Chief Justice Roberts, the solution is simple - "Get a warrant"

Lawyers for Aaron Hernandez argue that the prosecution taint the Grand Jury proceeding in motion to dismiss

June 20, 2014,

Defense attorneys for Aaron Hernandez appeared before the Fall River superior court on Monday to ask the court to dismiss the murder indictment against Hernandez. The defense attorneys premised their motion to dismiss on the argument that the prosecutors injected unfair prejudice into the grand jury proceeding to bias the grand jury against Hernandez without meeting their burden of proof to establish probable cause. From the perspective of a Massachusetts criminal defense attorney, this is a common motion filed by defense lawyers.

According to one of the defense attorneys, the prosecutors presented highly harmful and irrelevant evidence before the grand jury in 2013 to portray Hernandez as a violent individual who does not abide by the law. In doing so, argued the defense attorney, the prosecutors predisposed the grand jury against Hernandez without truly establishing probable cause to charge Hernandez with the murder of Odin Lloyd. The underlying premise is that in predisposing the grand jury against a defendant, the defendant is deprived of his constitutional right to due process of law. My Fox Boston reported on the motion to dismiss and had video footage of the argument.

Hernandez's defense attorneys have a very heavy burden to meet in order to succeed on this motion. Courts will not generally look into the validity or quality of the evidence presented to a grand jury. A court will only review a grand jury indictment if there is insufficient evidence to support a finding by the grand jury that the defendant likely committed the alleged offense, or if the defendant argues that the prosecutor has impaired the integrity of the grand jury proceeding. See Commonwealth v. Freeman, 407 Mass. 279 (1990), This second claim is the one raised by the prosecutors in the Hernandez matter, and it essentially alleges that there was prosecutorial misconduct at the time of the grand jury proceeding.

In order to succeed on their motion, the defense attorneys needed to demonstrate that the prosecutor actually presented to the grand jury false or misleading testimony, which the prosecutor knew or should have known was false or misleading, and nonetheless used this evidence to obtain an indictment. Furthermore, there has to be some probability that the prosecutor's deception or misconduct actually influenced the grand jury's determination. See Commonwealth v. Richardson, 37 Mass. App. Ct. 482 (1994).

In the case of Hernandez, the prosecutor argued that there was sufficient evidence presented to the grand jury to not only establish that Hernandez was with Lloyd on the night of the murder, but was also the murderer. The prosecutor alleged he presented ample evidence to establish modus operandi or a pattern of violent behavior that Hernandez exhibits following night club fights, linking his murder of Lloyd to other violent acts committed by Hernandez on similar nights. The judge took the motion under advisement. The motion is likely to be denied by the judge.

Retrograde Extrapolation discussed as a defense at a OUI Trial by Massachusetts Appeals Court

June 16, 2014,

In a recent blog, I discussed a problematic decision by the Massachusetts Appeals Court in Com. v. Dacosta upholding a defendant's conviction on the charge of unlawful operation with a BAC of .08 or greater, when the defendant's BAC level was tested approximately an hour after the traffic stop. In so ruling, the Appeals Court denied the defendant the right to present "retrograde extrapolation" evidence, which may have relieved the defendant of criminal culpability in this case.

The defendant in Dacosta asked the trial judge to require the Commonwealth to present retrograde extrapolation evidence confirming that the defendant's BAC level did not rise between the time of the stop and the time the breath test was taken. Without such evidence, argued the defendant, no reasonable jury could infer the BAC level at the time the defendant was actually operating the vehicle. And since the jury convicted on a per se charge only, the conviction must be vacated since the Commonwealth failed to establish the defendant's precise BAC level at the time of operation. You can read the DaCosta decision by following this link.

The doctrine of retrograde extrapolation essentially stands for the scientific phenomenon whereby an individual's BAC level in the past can be determined from a later measurement by factoring the amount of alcohol consumed, the timing of the consumption, the individual's weight, and any food he may have eaten while or after he consumed the alcohol. In some instances where the doctrine is applied, the individual's BAC level at a point in time soon after consumption may be lower than the BAC level later in time. That is because BAC is a measure of the amount of alcohol that is absorbed in the blood at the time it is measured; as time passes, the body (liver) metabolizes and eliminates alcohol absorbed in the blood at a consistent rate, while the rate at which the alcohol is absorbed in the blood may vary depending on the amount of food consumed and the weight of the individual. Therefore, as in the Dacosta matter, the defendant's BAC may have actually been below the statutory limit at the time of operation an hour earlier than when he was tested, depending on his meal earlier that evening.

The science underlying retrograde extrapolation is not novel; it has been used by prosecutors across the nation to convict defendants on per se charges for several years. However, as the science developed over the years, it has advanced our knowledge of how alcohol is absorbed into the blood, and how rates of absorption may vary depending on several different factors. Because of these advancements, defense attorneys may now call expert testimony to present evidence that the defendant's BAC was actually lower at the time of operation than it was later in the evening due to the differing rates of absorption.

Although the defendant had no burden of proof by virtue of the fact that he is presumed innocent until proven guilty, the defendant's attorney may have opted to call his own expert witness to testify to the likelihood that the defendant's BAC level was actually below .08 at the time of operation. And since information on the defendant's weight, alcohol consumption, and meal earlier that evening can probably only be provided by the defendant himself, the Commonwealth would have likely failed to rebut this testimony.

The unfortunate reality I have encountered as an OUI Lawyer in Massachusetts
is that resources such as expert witnesses are not equally available to the Commonwealth and the defendant. Expert witnesses are rarely called by defendants in such cases because they are very expensive, and many defendants are indigent or simply unable to pay such high charges in addition to attorney fees and taking time off from work to attend court hearings. The only relief for individuals such as Dacosta, therefore, is for the SJC to review this Appeals Court decision, and require the Commonwealth to present expert testimony on the principles of retrograde extrapolation since the burden rests on the Commonwealth to establish the defendant's guilt if it chooses to prosecute.

When Can Police order Field Sobriety Tests in a Massachusetts OUI Arrest?

June 15, 2014,


Police Authority to Order Sobriety Tests

You were stopped for speeding after having consumed alcohol? Can a police officer order you to take field sobriety tests in Massachusetts. This Blog will explain under what circumstances field sobriety tests can be ordered and the type of legal motion an OUI Lawyer can make to challenge the officer's conduct.

Police officers have the authority to conduct field sobriety tests if they reasonably suspect that the driver was operating his or her vehicle while under the influence of alcohol. This standard, known as the "reasonable suspicion" standard, is the lowest criminal standard used by courts, and its application to roadside sobriety tests makes drivers much more vulnerable to arrest.

In the matter of Blaise v. Commonwealth, the state's Supreme Judicial Court ruled that an officer does not necessarily need to have the same level of conviction to order a sobriety test as he would to arrest or search a driver. The standard applied by the court to determine the constitutionality of a search or seizure is the probable cause standard. This standard requires a higher showing that the defendant likely committed the alleged offense, thereby authorizing the police officer to arrest and conduct a search incident to the arrest.

The primary distinction between the reasonable suspicion test used to constitutionally conduct a brief stop and frisk an individual (known as a "Terry stop") and the probable cause test needed before a full search and seizure is in the level of evidence needed to satisfy each standard. If the standards were to be compared on a spectrum, reasonable suspicion would be on one end of the spectrum requiring minimal evidence, while the trial standard of "beyond a reasonable doubt" would fall on the opposite end of the spectrum requiring a complete conviction that the defendant committed the offense. In between the two extremes would be the probable cause standard, used for searches and arrests.

As explained by the SJC in Blaise, the probable cause standard is used in cases involving arrests and full searches because such cases pose a significant intrusion on the individual's 4th Amendment right under the US Constitution and article 14 rights under the Massachusetts Declaration of Rights. In contrast, however, the SJC found that a field sobriety test does not imply a similar infringement on the driver's privacy rights. Instead, the court ruled that a field sobriety test that follows a typical traffic stop is comparable to a brief detention of the driver while the officer checks his ID - in neither instance is the defendant's privacy rights implicated.

In reaching this decision, the SJC expanded the US Supreme Court's ruling in the famous case of Terry v. Ohio, which permits officers to conduct a temporary stop and frisk of individuals if the officers have reason to suspect that the individuals pose a threat to public safety. The SJC in Blaise held that a field sobriety test is constitutionally permissible as long as it is reasonable under the circumstances to suspect that the driver may have been operating while under the influence.

In the case of Blaise, the officer initially pulled the defendant over for a traffic stop because the defendant was speeding and had one blown headlight. After stopping the defendant, the officer testified to having observed the defendant with glassy red eyes and slurred speech. The officer asked the defendant if he had any alcohol, and the defendant replied that he had a couple of beers.

Under these circumstances, the SJC ruled that it would be reasonable to suspect that the driver was in fact operating under the influence, and so the officer was justified in ordering the defendant to exit the vehicle for field sobriety tests.


Motions Challenging an Officer Decision to Order Field Sobriety Tests

To challenge an officer decision to order field sobriety tests, a defense attorney would file a motion to suppress, contesting the stop and the exit order. The attorney would argue that both the stop and exit order were unlawful, and that the officer unreasonably prolonged the duration of the stop in ordering field sobriety tests. While many times this motion will be denied, it is a useful step in trial preparation and one that I recommend in most cases.

Motion to Suppress Next Step in Aaron Hernandez Fall River Superior Court Murder Charge

June 13, 2014,

This past Thursday there was another important development in the prosecution of Aaron Hernandez. The Bristol County District Attorney's Office filed a response to Hernandez's earlier motion asking the court to prevent evidence discovered at Hernandez's home from coming into trial. According to a recent article, the Fall River Superior Court will hear arguments on the motion and the prosecutor's response this coming Monday, June 16.


Filing a Motion to Suppress

The prosecutor's submission Thursday was in opposition to what is referred to as a "Motion in Limine" or a "Motion to Suppress," filed by Hernandez's attorneys. In short, both motions are mechanisms by which a party asks the court to preclude certain evidence or statements/testimony from being presented at trial because the evidence was not obtained lawfully or the statements were coerced and/or are unreliable.

In the case of Hernandez, officers obtained a search warrant from a clerk magistrate and searched Hernandez's home after Odin Lloyd's body was discovered in a nearby industrial park. The officers conducting the search seized multiple tablet computers, cell phones, and Hernandez's home video surveillance system. It is this evidence that Hernandez's attorneys seek to suppress from admission at trial.


The "Probable Cause" Standard

What makes this evidence problematic is the way it came into the custody of the investigative officers. In order to seize the cell phones, tablets, and surveillance system, the officers applied for and obtained a search warrant authorizing the search. But obtaining a search warrant is not a simple procedure; the applicant is required to present to the magistrate reviewing the application enough evidence to establish "probable cause" that evidence of a crime exists at a certain location. Courts have defined probable cause as reasonably trustworthy information sufficient to warrant a prudent man in believing that a evidence of a crime exists (or will exist) at a certain location. The officers were therefore burdened with presenting sufficient evidence leading a person to believe that evidence related to the murder of Odin Lloyd was likely at Hernandez's home. It is a question of probability, not absolute certainty, so it is much easier to obtain a search warrant than it is to convict Hernandez of the crime.


Arguments to Expect

Hernandez's defense attorneys will argue Monday that the officers did not have enough evidence to establish probable cause in support of their application for the search warrant. As a result, the warrant was invalid and any evidence discovered using the search warrant is inadmissible as an unconstitutional infringement on Hernandez's right to privacy.

The prosecutors will rebut, however, by arguing that the home's proximity to the industrial park, Hernandez's relationship with Lloyd (Lloyd was dating the sister of Hernandez's girlfriend), and his presence with Lloyd on the night of the murder is sufficient to suspect Hernandez in the death of Lloyd, and in turn to search Hernandez's home for evidence such as a murder weapon.

Defenses can be raised against evidence seized by search warrants not only because of the insufficiency of the warrant application, but also because of the manner in which the warrant was executed at the search site, leading to the discovery of the evidence. To be valid, search warrants must be supported by probable cause and must state with particularity the place to be searched and items to be seized. In executing the warrant, the officers must make sure not to cross the limits of their authority as dictated by this particular language of the warrant itself. In other words, if the warrant specifically states that the officers may enter the residence of Aaron Hernandez in search of weapons, the officers may only search places within the home where it would be reasonable to suspect that Hernandez was storing or hiding a weapon. If officers acted outside the authority dictated in the warrant, any evidence they discovered accordingly could be suppressed.

Although that is the route used in the Hernandez investigation, a search warrant is not the only way for officers to gain entry onto a premises to search for evidence. Both Massachusetts and federal law allow for certain exceptions to the warrant requirement; officers need not obtain a warrant if they are conducting a search incident to an arrest, or if they have probable cause to believe evidence exists at a location but may not remain there long enough to wait for a warrant. There are several other exceptions under the case law that are not as relevant to the Hernandez matter.

Almost as important as the motion to dismiss filed by Hernandez's attorneys last month, this motion to suppress will set the stage for the success or failure of the prosecution. If the defense's motion to suppress is granted, the prosecutors will be severely limited in the amount and quality of evidence they present to a jury. And the less potent evidence they present, the weaker the link between Hernandez and the murder of Lloyd, and the greater the likelihood that a jury would not convict.

Colorado State drug lab denounces lab test results used in prosecution of DUI cases

June 12, 2014,

A state forensic lab has just announced that it will no longer endorse several of its test results used in the prosecution of DUI cases. The Colorado Department of Public Health and the Environment's Chief Medical Officer stated last Thursday that the State's blood test lab will not stand by 33 of the 12000 test results reviewed during the investigation. Experienced defense attorneys may soon take advantage of this breaking news to possibility vacate their client's OUI convictions or dismiss the charges all together if the prosecution has relied on lab reports released from the state's lab.

The Department's Chief Medical Officer sent a letter to a local police chief stating that an internal investigation led to the discovery of an incorrect procedure followed by one of the lab's employees over the span of 7 months in 2013-2014. According to the letter, this was strictly an isolated incident of human error, and does not effect the results of any other test conducted by the lab.

This news comes less than a year after the criminal sentencing of Annie Dookhan who pleaded guilty to more than two dozen counts of filing false reports, tampering with evidence, and misleading police officers.

The primary distinction between the controversy in Colorado and Dookhan is in the actual validity of the evidentiary reports released by each lab. The criminal investigation in the Dookhan matter revealed that the reports released by the Hinton lab in Boston were falsified, thereby completely undermining the validity of those tests.

In contrast, the Colorado lab's problematic reports were not explicitly invalid. According to the Chief Medical Officer's letter, the Department is unable to endorse the 33 reports merely because of failures to meet the state quality control measures in those tests. An employee of the state lab evidently failed to properly calibrate the specific Intoxilyzer 9000 device that was used in those 33 tests, thereby resulting in the tests falling outside the acceptable range of quality control calibration checks. Nonetheless, the Chief Medical Officer assured the Police Department that while the Department can no longer endorse the results due to state Board of Health regulations, the results of this investigation do not suggest that the test results are invalid.

This announcement still raises serious concern for the 33 cases reported to have been affected by the state employee's errors. When a driver submits to a chemical test or provides a blood sample to police, the police department transports the sample to the state lab (or third party contractor) for testing. After the lab analysts test the blood for alcohol/drug content, they release a report to the state prosecutor's office. The prosecutor then attempts to admit the test results into evidence during trial, or uses them as leverage in a plea bargain, to reach some form of conviction.

A discovery such as the one made by the Colorado state lab jeopardizes the reliability and credibility of the entire state lab, and presents the possibility for an appeal on prior convictions or a dismissal of ongoing prosecutions.

Breath Test Manual Appeal Heard by Massachusetts Appeals Court

June 7, 2014,

A panel of Justices of the Massachusetts Appeals Court heard oral arguments this Thursday, June 5th, on the admissibility of breathalyzer test results where Commonwealth failed to comply with defense counsel's discovery request for the operator's manual to the breathalyzer device used. The arguments were raised in the matter of Com. v. Kristopher Cormier (2013-P-1923. This issue is of critical importance for Massachusetts OUI Lawyers as a result for the defendant in this case could result in the suppression of breath test results.

The issue is whether the Commonwealth should be allowed to rely on breathalyzer test results during trial where the test results were offered through a testifying police officer who administered the test, and without allowing defense counsel an opportunity to review the manual in preparing his case for trial.

This case was brought to the Appeals Court on an interlocutory appeal filed by the defendant after a trial judge of the Fitchburg District Court denied the defendant's motion to suppress the breathalyzer test results.

In presenting his arguments to the Appellate Court, the defense lawyer referred to the Code of Massachusetts Regulations, chapter 501 section 2. This section of the CMR outlines the purpose and duty of the state's Office of Alcohol Testing (OAT) in creating an alcohol testing program, certifying officers to administer breathalyzers, and regulating alcohol testing procedures. Most importantly for this case is section 2.04(f), which delegates to the OAT the responsibility of "creating and maintaining the Breath Test Operator's Manual." The regulation also charges the Director of the OAT with the duty to "establish a uniform statewide training and certification program for Breath Test Operators." 501 CMR §2.07(1).

The defense argued that the Commonwealth should be precluded from presenting breathalyzer test results in his case because the defendant was not provided with a copy of the operator's manual and so was unfairly deprived of the opportunity to scrutinize the breathalyzer test results and the training of the officer administering the test. The essence of the argument, raised by Attorney Steven Panagiotes was that the OAT failed to comply with the regulation, thus resulting in the Commonwealth failing to provide the manual to the defendant.

One Justice stated we wouldn't be here if OAT complied with the regulation and [OAT] didn't seem to even care." The defendant therefore did not have access to the detailed procedures and methods used by the testifying officer in administering the test, and so was unable to adequately cross-examine the witness.

In disputes arising from breathalyzer testing, the details really are of upmost importance to a defendant's case. In failing to provide a defendant with the detailed description of the procedures and protocols in breathalyzer testing, the Commonwealth essentially shields testifying police officers from having to answer difficult questions that may lead to the discovery of a mistake in their tests.

Furthermore, even if it is more challenging for a defendant to examine an officer's qualifications or knowledge of the testing protocol without access to the officer's training material, the requirement of creating a manual may still not address the underlying problem at all. As suggested by one of the panel justices and later admitted by the Commonwealth in its own oral arguments, the regulation does not explicitly require that officers be trained on the operator's manual. In other words, even if the manual did exist at the time of the defendant's arrest (as was required under the regulation), there is no requirement that the certification process for the officers include training on the manual. Under this version of the regulation, police officers are shielded from rigorous scrutiny from all sides.

The Appeals Court is likely to issue a decision within two months. Any result could eventually be appealed further to the Massachusetts Supreme Judicial Court.

Breathalyzer test results struck down by Massachusetts Appeals Court as unreliable

June 5, 2014,

In the recent matter of Commonwealth v. Hourican, the Appeals Court reversed a trial judge's denial of a motion to suppress breathalyzer test, ruling that the test results were invalid under state regulations. The Appeals Court's decision is a significant victory for Massachusetts OUI defense attorneys as the Court placed a greater burden on the Commonwealth requiring prosecutors to offer more reliable evidence to establish a defendant's BAC level to reach a conviction.

The defendant in Hourican was operating a pickup truck late at night when he collided with a Boston police patrol wagon. A Boston police officer observed signs of intoxication and arrested the defendant after the defendant failed multiple field sobriety tests. The defendant later consented to two breathalyzer tests, the first read a BAC level of .121 percent, and the second read .143 percent. The breathalyzer device used was the "Alcotest 9510".

Although both results were above the statutory limit of .08 percent, the results were problematic in that they differed by .022 percent. Massachusetts state regulations provide that a breath test sequence (two consecutive tests with a time lapse of a few minuets in between) is only valid if the results are within +/- .02 percent of one another.

The issue before the trial judge, and subsequently the Appeals Court, was whether the third digit in the differential between the defendant's BAC two results should be truncated so as to preserve the validity of the results under the regulation, or whether the third digit automatically invalidates the results as it sets the differential outside the +/- .02 range specified in the regulation.

After reviewing the history of the relevant Massachusetts regulation enacted by the Executive Office of Public Safety, the Appeals Court decided to interpret the regulation literally so as to require the sequential BAC results to be within +/- .020 of each other. Any differential figure outside of this range would invalidate the results and require the Commonwealth to present a valid sequential test.

This holding particularly applies to breathalyzers utilizing a "gas calibration standard" - such as the Alcotest 9510 used in this case - rather than the "liquid calibration standard" used by other devices. The distinction stems from the language of the state regulation itself, which specifically requires that the results of a gas calibrated breathalyzer test be reported to three decimal places, in contrast to liquid calibrated breathalyzer results which are only required to be reported to at least two decimal places. See 501 Code Mass. Regs. § 2.15(1) (2010).

Although the language of the regulation seems clear, the confusion arises from the different sections of the regulations which were drafted at different points in time. More specifically, the regulation was first drafted in 2006 and contained a provision (501 Code Mass. Regs. § 2.56(5) (2006)) requiring that any third or subsequent decimal place be truncated prior to comparing the results. This same 2006 version of the regulation also provided the +/- .02 range within which BAC results in a sequential test must fall, in 501 Code Mass. Regs. § 2.57 (2006).

In 2010, however, a new regulation was enacted requiring that results using the gas calibration standard be reported in three decimal places. 501 Code Mass. Regs. § 2.15(1) (2010). This new regulation, however, did not revise the language used in § 2.57 in the 2006 version which provided the range of validity for sequential results in only two decimal places (.02). Confronted with this inconsistency, the Appeals Court determined that the regulation should be read literally so as to interpret +/- .02 to the third decimal place as +/- .020, thus invalidating the results in this case.

In so ruling, the Appeals Court reaffirmed the Commonwealth's heavy burden of demonstrating police compliance with state regulations in breathalyzer test administration. The Court reasoned that the critical objectives of Massachusetts DUI law is to require breathalyzer testing to be accurate and reliable. Reading the state regulation broadly, as the Commonwealth suggested, will only damage the reliability of the Commonwealth's inculpatory evidence, thus increasing the likelihood that an otherwise innocent driver might be convicted unlawfully.

The Appeals Court encouraged law enforcement officers to exercise more caution and diligence in utilizing breathalyzer testing equipment, and invited the Secretary of the Executive Office of Public Safety to revise the regulation so as to be more specific if a different result was intended by the regulation.

Time lapse and admissibility of breath test evidence in DUI trial

June 1, 2014,

The Massachusetts Appeals Court addressed the issue of proving a motorist has a blood alcohol content over .08 under the per se law when there is a substantial time lapse between the time of the breath test and driving observations. This issues frequently arises as one of the many defenses in an OUI charge with breath test results.

The Appeals Court in Commonwealth v. Dacosta recently upheld a defendant's conviction on the "per se" charge of operating a vehicle with a BAC level of .08 or greater when the defendant's BAC level was tested approximately an hour after the traffic stop. According to the Court, no "retrograde extrapolation" evidence was required where a breathalyzer test was administered 55 minutes after the traffic stop. To learn about the science behind retrograde extrapolation see the attached Article by Kurt Dubowski.

The defendant was stopped when an officer noticed a faulty inspection sticker on the windshield. During the stop, the officer observed that the defendant had red glassy eyes and so administered two sobriety field tests. The defendant failed both tests, and so was arrested and transported to a nearby police station.

At the station, officers administered two breathalyzer tests - one 50 minutes after the traffic stop, and the other 5 minutes later. Both tests showed a BAC level of .09. The defendant was charged with driving under the influence, as well as the per se charge of operating a motor vehicle with a BAC level of .08 or greater. The jury found the defendant guilty on only the per se charge.

After the conviction, the trial judge granted the defendant's motion for a required finding of not guilty notwithstanding the jury verdict. The trial judge determined that it is not possible for a reasonable jury to infer the BAC level of the driver at the time he was driving from a Breathalyzer test administered an hour after he was stopped. The Appeals Court recognized that the trial judge was concerned that the driver's BAC level may have changed between the time he was stopped and when he actually submitted to the Breathalyzer. By this reasoning, the Commonwealth would be required to submit evidence to prove that the BAC level could not have risen between those two points in time. The Appeals Court disagreed.

The concern here is that the defendant's BAC level readings may not have accurately represented the defendant's actual BAC level at the time of operation. A driver's BAC level rises immediately after consumption of alcohol, prior to the alcohol's complete absorption into the bloodstream, before the BAC level begins to fall and stabilize. This evidence leads to the argument that the defendant's Breathalyzer readings, standing alone, were not accurate readings of the defendant's BAC level at the time of operation. Therefore, without the Commonwealth presenting "retrograde extrapolation" evidence - mathematical computations estimating a BAC level backwards in time - the jury could not have had enough facts to find the defendant guilty on the per se charge.

Citing to its prior decisions, the Appeals Court found this argument inapplicable because the Breathalyzer were administered within a "reasonable time." According to the Court, a Breathalyzer may be administered up to three hours after the operation of a vehicle. The three hour time period is a reasonable time frame for the defendant to be tested without the Commonwealth having to provide retrograde extrapolation evidence. The three hours allow for the officers to arrest the driver and transport him to a local police station for testing. As the defendant's Breathalyzers were administered within one hour, the Court held that no further evidence was required to be presented to satisfy the per se charge.

Criminal prosecution involving Breathalyzer and blood sample testing can be very complicated and often requires a thorough understanding of both the law as well as the forensic science underlying the evidence.

Confrontation Clause challenge in DUI case before the Supreme Court

May 27, 2014,

The United States Supreme Court will soon consider the case of Yohe v. Pennsylvania involving a DUI arrestee's right to confront the lab technicians who analyzed his blood sample. The petition for writ of certiorari was filed by Attorney Justin McShane and is scheduled for conference later this week.

In the matter of Yohe, the defendant was arrested for operating under the influence during a traffic stop. The defendant subsequently provided a blood sample which was shipped to a 3rd party forensic lab for analysis for blood alcohol content. The lab then reported its findings to the prosecutor's office, which offered them into evidence during trial through the testimony of an assistant director at the lab.

The forensic lab's analysis consisted of three tests on three different portions of the defendant's blood sample. The first analysis was an enzymatic assay test, conducted by one lab technician; another technician retrieved two more portions from the blood sample and conducted a Headspace Gas Chromatography test on each. The results of all three tests were reported to an assistant lab director who compared the results against certain lab protocols and electronically signed the reports certifying their accuracy.

After the defendant was convicted, the trial judge granted a post-sentence motion asserting a Confrontation Clause challenge to the prosecutor's admission of the lab results through the lab director rather than the technicians that conducted the actual analysis. The trial judge found the defendant's right of confrontation was unfairly limited when he was only provided an opportunity to cross examine the lab director and not the individual technicians. According to the judge, the technicians' analyses inherently consist of certain exercises of judgment which should be scrutinized by the defendant. By this reasoning, the defendant's Sixth Amendment right to confront requires that the technicians be made available to cross-examination by the defendant.

The state appellate courts, however, reinstated the initial conviction. The appellate courts reasoned that although the lab director did not personally conduct the analyses or measure the chemical contents in the blood sample, the lab director did conduct an independent analysis of the data and results reported by the lower technicians. The lab director's involvement to this extent in independently reviewing the data was sufficient to confirm him as a "witness" for sixth amendment purposes who has personal knowledge of the analyses and is able to testify on that basis.

Attorney McShane, the author of the appellate petition, has raised the argument that the state appellate courts applied the Crawford and Bullcoming decisions too broadly so as to incorporate the lab director as a "witness" in the Confrontation Clause analysis. The Pennsylvania state courts' interpretation of the Supreme Court's holdings thereby allow the prosecution to contravene the Framer's intent to protect criminal defendants from being deprived of the opportunity to expose the truth to the jury through the cross-examination of the defendant's actual accusers.

The Yohe matter presents an interesting opportunity for the Supreme Court to finally resolve the confusion resulting from its Confrontation Clause decisions over the past decade. The Court currently has several cases on its docket raising Confrontational Clause challenges to the admissibility of evidence in different criminal contexts. If the Court does choose to hear the Yohe matter, it will hopefully mend the split in court decisions all across the nation over government admission of forensic evidence in both OUI's and drug charges, preparing a clear path for courts, prosecutors, and defense attorneys in Massachusetts to argue this important Sixth Amendment issue in the future.

United States Supreme Court reviews a Series of Sixth Amendment Confrontation Clause cases that may clarify the law after the Williams decision

May 25, 2014,

The United States Supreme Court has before it several pending petitions that could clarify the scope of the Sixth Amendment right of confrontation. Until today lower courts have been completely split in their reasoning in their attempts to resolve Confrontation Clause challenges.

In the case of Turner v. United States, the defendant is appealing his conviction in the United States District Court for a drug distribution charge based on the fact that the chemist that performed the analysis of the cocaine at issue did not testify.

To prove that the substance was cocaine, the Government called a lab supervisor who reviewed the report of the original forensic analyst and concluded that he would have reached the same conclusion even though he did not personally conduct any of the testing. In the Turner case, the technician who actually tested the cocaine was on maternity leave.

The lab supervisor that was called to the stand in her place was an expert in the field, and testified as to the proper procedure for testing a narcotic. The trial court then heard the supervisor testify that the proper procedure was followed in Turner's case even though he himself did not have personal knowledge of the analysis conducted by the absent technician. The supervisor did state, however, that he reviewed the handwritten notes and generated data, and reached the same conclusion based on the information provided.

The 7th Circuit affirmed the conviction finding the following with regard to the defendant's confrontation clause challenge to the supervisor's testimony:


  1. Applying Williams, the circuit court found that the analysis targeted the defendant, and that the statement would likely be considered for its truth because the case was a jury trial; and

  2. The circuit court found the report the functional equivalent of the report in Bullcoming.

Given these inferences, the circuit court found that the lab report was in fact testimonial, and so subject to the Confrontation Clause. Despite this conclusion, however, the circuit court did not find a confrontation clause violation, holding that

  1. The lab supervisor could testify regarding the procedures and safeguards of the lab that he supervises based on his own experiences;

  2. The lab supervisor only testified to his own opinions; and

  3. FRE 703 permits an expert to rely on the opinion of another expert.

Further, the court found any error harmless because there was considerable evidence that was consistent with the lab results. The Turner petition is pending but would seem to be the appropriate case to clarify the meaning of the Court's earlier Williams decision.

Galloway v. Mississippi

In another Confrontation Clause challenge pending review, Galloway v. Mississippi, the petitioner is a defendant who was convicted of murder. DNA evidence tested and analyzed at a lab was a critical component of the prosecution's case at trial.

The prosecution did not call the technician that performed the DNA testing analyses. Instead, it called another analyst who merely interpreted the data and results reached by the technician. The testifying analyst was not present during the original analysis and so had no personal knowledge.

In the petition for certiorari, defense counsel argued that the state court's holding was contrary to Bullcoming. The Bullcoming decision prohibits the prosecution from insulating a forensic analyst from testifying by calling another analyst who did not observe or participate in the testing, and is testifying to the reliability of the original analyst's findings.

The defense argued that the defendant had the right to confront the technician who conducted the DNA testing (collected the DNA samples), and not merely the analyst who only subsequently analyzed the samples collected by the original technician. The defense argued that this prosecutorial tactic insulated the original technician from cross examination while allowing the jury to hear the results of her analysis.

Like Turner, this case should be overturned by the Court. I would expect the Court to allow the petition given the clear error in not following the Bullcoming decision.

Brewington v. North Carolina

The United States Supreme Court is also considering the case of Brewington v. North Carolina, which concerns the North Carolina Supreme Court's reversal of a lower appellate court's decision to vacate a conviction on cocaine possession charge.

The defendant was pulled over by an officer while riding a bicycle that was not equipped with reflectors. During a consensual search, the officer discovered a napkin containing an off-white substance tucked in the defendant's sock. That substance was transported to the state drug lab, where it was analyzed and tested by an assistant supervisor who issued a certified report confirming the substance to be cocaine.

At the time of the trial, the prosecution called another lab technician to testify as to the nature of the powder, and did not attempt to even explain to the court if the assistant supervisor herself was not herself available to testify. Instead, the trial court allowed the testifying technician to rely on the notes and reports issued by the absent assistant supervisor, and form an independent opinion, based on the information provided, that the substance was in fact cocaine.

The defendant was subsequently convicted, and appealed the conviction to the lower state appellate court. The lower appellate court vacated the conviction on the grounds that the trial court's order allowing another lab technician to testify as to the results reached by an absent technician was a clear violation of the defendant's Confrontation Clause rights under Bullcoming and Menandez-Diaz.

In short, the appeals court found that although the testifying technician was also an expert in the field, her expert opinion as to the nature of the white powder is only as reliable as the data and information that was measured and observed by the absent assistant supervisor. By offering the expert opinion testimony of another technician using the data collected and measured by absent technician, the prosecution essentially contravened the Confrontation Clause by not allowing the defendant an opportunity to cross-examine the absent assistant supervisor on her methods and practices in collecting the data that both she and the testifying technician relied on.

The bottom line, according to the appeals court, was that the testifying technician was not herself involved in any of the testing leading to the accumulation of the data that her testimony relied on; nor did she conduct her own analysis of the powder.

The state's high court accepted the reasoning of the lower appeals court, but a slight majority attempted to distinguish Brewington from the earlier federal precedent in Confrontation Clause cases by holding that the expert testimony was not unconstitutional since the testifying technician did form her own independent expert opinion.

It seems that the North Carolina Supreme Court ruled incorrectly in direct opposition to prior case law. The case law, although unclear, is consistent in holding that surrogate expert testimony is not admissible if the defendant has not had a prior opportunity to cross examine the original technician.

DUI Case at the Supreme Court on Sixth Amendment Issue

In the context of an OUI offense, an interesting petition for writ of certiorari was filed by Attoreny Justin McShane under the title of Yohe v. Pennsylvania. In Yohe, the defendant was pulled over for broken tail lights and was arrested for an OUI and subsequently provided blood samples for analysis.

The defendant's blood samples were transported to a state lab and examined by two separate analysts. The lab results from each analysis were delivered to the assistant lab director, who reviewed the procedures and results of each lab analyst, and found the two results to be consistent and conclusory in verifying the blood alcohol level of the defendant to be above the statutory limit.

The lab director then issued his electronic signature of approval on one of the lab reports. This signed lab report was offered into evidence by the prosecution over the defendant's objection, and the lab director testified as to the accuracy and validity of the conclusion of the report. The lab director also admitted, however, that he did not personally handle, observe, or perform the test leading to the results relied on by the prosecution.

In his petition appealing the conviction, Attorney McShane argued that the state supreme court erroneously extended the Court's reasoning in Bullcoming to the lab director. The crux of the argument is that the state court misinterpreted the term "witness" as used in a Confrontation Clause analysis to a lab director who relied completely on the tests and observations of non-testifying analysts in forming his conclusion.

Yohe presents an interesting set of facts that merges the circumstances discussed in both Brewington and Galloway as described above:

  • As in Galloway, the lab analysis in Yohe consisted of multiple lab technicians conducting the lab analysis. Yet, the prosecution failed to call all of the original analysts to testify and face cross-examination; instead, the prosecution relied on only one lab staff member who offered conclusions which relied on the measurements and observations collected by his colleagues rather than conducting his own tests.
  • The lower courts in Yohe also accepted the lab director's testimony because it found the testimony to be an independent expert opinion. The courts in Brewington also accepted similar expert testimony on the same grounds.

One of the main distinctions between Yohe and Brewington and Galloway, however, is in the manner the lower courts interpreted the case law and applied the term "witness" to the lab director. The lower courts in Yohe primarily accepted the lab director's testimony on the reasoning that the term "witness" extended to the lab director, since he reviewed the separate lab analyses, compared the results, and issued his signature certifying the report offered into evidence.

According to the lower courts in Yohe, the lab director's involvement to this extent was sufficient to qualify him as a witness through which the prosecution could offer the lab results and who could be cross examined by the defendant for reliability.

James v. United States

Another petition addressing the right of confrontation is James v. United States, which considers whether pathology reports are testimonial under the confrontation clause. The petition for certiorari filed by the defendant reveals the split amount lower courts in determining whether pathology reports are testimonial. The petition outlined the different approaches being taken by courts.

In James, the defendant was charged with conspiracy to commit murder to obtain life insurance benefits. The prosecution sought to establish that the victim died of ammonia poisoning. The prosecution called a medical expert to testify to both the contents of a toxiocology report and an autopsy report. The defendant objected to the introduction of the toxiocology report without the opportunity to confront the maker of the report in court and subject the author to cross examination.

The Court held that autopsy reports are not testimonial and that the toxicology report was an integral part of the autopsy report. The medical expert then testified to the cause of death based on his reading of the toxicology and autopsy reports.

Confrontation clause challenges became popular defenses to the admissibility of expert testimony only very recently, with most of the case law emerging from the last decade. Despite the different cases addressing this Sixth Amendment claim, the United States Supreme Court has continuously been unclear on how lower courts ought to apply its decisions to protect the defendant's right to confrontation. And, unfortunately, the most recent decision in Williams has only confused the lower courts further.

The cases currently pending before the Court provide ample opportunity for the Court to finally explain its reasoning in its earlier precedents, giving much more guidance to trial courts on how confrontational clause challenges should be addressed in the future.

If you have a Sixth Amendment Confrontation Clause issue in the trial or appellate courts, feel free to contact Attorney DelSignore to discuss the issue. Attorney DelSignore has chaired the MCLE Sixth Amendment seminar for the past two years and would be pleased to add your case to the material.

Legal Arguments in Hernandez's attempt to dismiss Fall River Superior Court Indictment after new Indictment issued for Murder out of Suffolk County

May 18, 2014,

Aaron Hernandez was recently indicted on two additional murder charges arising out of an incident that predated the Fall River murder case. The Fall River murder case is also now set for the court to consider a motion to dismiss filed by Hernandez's defense attorneys.

In the recent charges arising from Suffolk County, a grand jury issued indictments against Hernandez for two first degree murders that took place in South Boston in 2012. The victims of the double murder are 28-year-old Daniel Abreu and 29-year-old Safiro Furtado.

The 2012 double homicide is alleged to have occurred around 2am after the victims left a nightclub in a BMW. According to a detective's investigation, Hernandez was also at the same nightclub before the victims were murdered. Witnesses alleged that Hernandez followed the victims in a light colored SUV, from which he fired multiple rounds at the BMW, killing Abreu and Furtado while injuring a backseat passenger.

These indictments were issued the same day that Hernandez's defense attorneys filed a motion to dismiss the charges of the first degree murder of Odin Lloyd and unlawful possession of a firearm. The motion was filed on the grounds that the Commonwealth failed to offer sufficient evidence to establish that Hernandez committed these crimes.

The defense attorneys in this Fall River case argue that the Commonwealth's eighty witnesses and "mountain of documentary and video evidence" that was presented to the grand jury did nothing more than unfairly prejudice and inflame the jury against Hernandez by portraying him as a violent drug abuser with criminal tendencies. In the words of the actual motion, "Basically, all that the Commonwealth showed the grand jury is that Hernandez was in a car with Lloyd and several individuals shortly before Lloyd was shot to death."


What does the Defense have to show to have the Indictment Dismissed

A motion to dismiss is a procedural motion by which a defendant asks the court to set aside the charges against him.

The Hernandez defense team will have a difficult time getting the indictment dismissed given the standard favors the Commonwealth. Ordinarily, to support a criminal complaint or a grand jury indictment, the Commonwealth must present sufficient evidence to establish "probable cause." Courts have defined probable cause as reasonably trustworthy information sufficient to warrant a prudent man in believing that a crime has been committed. Massachusetts courts have frequently held that probable cause to sustain an indictment is a significantly lower standard requiring less evidence than to convict a defendant of a crime.

The probable cause standard requires the Commonwealth to present enough evidence to establish probable cause to arrest the defendant on the crime charged, as well as to allow the grand jury to identify the defendant as the particular perpetrator. Commonwealth v. McCarthy, 385 Mass. 160 (1982). With regard to the first prong of probable cause, the Massachusetts Supreme Judicial Court has required that the Commonwealth must offer proof in support of all of the "elements." A charge of first degree murder, for example, consists of multiple "elements;" briefly stated, the Commonwealth must provide evidence supporting not only the allegation that there was a death, but that the death was intentionally done with premeditation and malice. The Commonwealth will then also be required to offer evidence allowing a reasonable grand jury to believe that the defendant himself had the requisite premeditation and malice, and is likely to have caused the death of the victim.

Hernandez's defense lawyers have not provided the public with the memorandum of law that typically accompanies a motion to dismiss because the memorandum contained confidential records from the grand jury proceeding. Grand jury proceedings are entirely protected from the public, and any documents citing to them are sealed by statute. However, one can predict that Hernandez's lawyers will likely rely heavily on the case of
See Commonwealth v. Moran, 453 Mass. 880 (2009) in arguing that no evidence was offered to the grand jury leading to the belief that Hernandez was the actual murderer.

However, the Commonwealth may respond by citing to the more recent case of Commonwealth v. Hanright, 466 Mass. 303 (2013).

The case of Commonwealth v. Hanright involves a motion to dismiss an indictment of felony-murder against a defendant who was an accomplice (or "joint venturer") to the principal offender who murdered a man during an escape from an armed robbery. The Massachusetts Supreme Judicial Court held that although the defendant did not have the intent to harm the man murdered by the principal offender, the defendant was nonetheless a willing accomplice in the underlying felony (the escape from the armed robbery) that lead to the death of the victim. The principal offender and the defendant accomplice had planned the escape following the armed robbery, and the defendant accomplice facilitated the escape of the principal offender. The SJC held that the motion to dismiss the indictment was properly denied.

This reasoning may be applied to Hernandez if the Commonwealth argues that although Hernandez may not have personally murdered Lloyd, he was complicit in the underlying criminal conduct leading to Lloyd's death. The Commonwealth will argue that given the low standard of proof to establish probable cause and that inferences at this stage at constructed in favor of the Commonwealth, that the motion should be denied.

The next step after the motion to dismiss is likely to be a motion to suppress hearing. This hearing would involve the defense team attempting to suppress any evidence seized during the search of the house or any other evidence that Hernandez believes was seized in violation of his Constitutional rights.

Texas Judge under criticism for lenient sentence and suggesting the victim was promiscuous after plea in Rape case

May 9, 2014,

A Judge is under fire for sentencing a defendant who admitted to Rape to a 45 day jail sentence with probation. The judge from Texas Judge Jeanine Howard based her sentence in part on what she called the promiscuous nature of the victim and the fact that the defendant was not your typical sex offender. The media criticism of the judge has been on the fact that she denigrated the victim when the defendant admitted the Rape occurred. The story was reported on CNN in its Justice Section.

The Judge's sentence suggests that she may not have believed there was a factual basis for the plea. The Judge should have declined to accept the plea; if a defendant admits to an offense, which the Court accepts, the facts have been determined and at that point the Court should not minimize the offense in imposing sentence and certainly should not be critical of the victim.

A recent case in the Attleboro District Court demonstrates what should have occurred in the Young case. Prosecutors sought a one year jail sentence while the defendant sought probation in what is known as a defendant capped plea, meaning that if the court exceeds the defendant's proposed sentence, the plea can be withdrawn. The defendant was charged with a domestic assault and battery. The Judge in the Attleboro case refused to impose either sentence, ruling that he would give the defendant a two year jail term based on the nature of the facts.

In accepting a plea, a judge has a duty to ensure that the elements of the offense can be met. Judge Howard should have either refused to accept the plea or recused herself from the case. As a criminal defense lawyer in Attleboro, judges sometimes reject plea offers when the court feel as though there is not a sufficient factual basis for the plea or when the court believes the sentence recommended is inappropriate based on the offense charged.