Massachusetts Criminal Defense Lawyer Blog

The United States Supreme Court has agreed to hear another case raising the issue of the scope of the Sixth Amendment Right of Confrontation. The case of Williams v. Illinois directly raises the confrontation clause issues raised in the concurring opinion of Justice Sotomayor. The filings in the Williams case can be found on the Scotus Blog, attached as a link here.

The Williams case involved charges of sexual assault, kidnapping and robbery. The defendant allegedly grabbed the victim while she was walking home and sexually assaulted her. In the case, according to the police, the victim initially identified her attacker as a man named McChristine, but later told the police that he was not the attacker.

Over a year later, the defendant was arrested and identified by the victim as her attacker through a line-up identification procedure. At trial, the State called a forensic scientist to testify, Sandra Lambatos who testified that samples from the victim's sexual assault kit were sent to Cellmark diagnostic laboratory for DNA analysis. Lambatos testified that Cellmark derived a DNA profile for the person whose semen was recovered from the victim. The expert witness testified that in her opinion the profile matched the defendant. The testifying expert at trial did not know what procedures were used by the lab, whether the lab calibrated its equipment, and how samples were handled once received. At trial, no witness from Cellmark testified and the report was not introduced into evidence.

The criminal defense lawyer moved to exclude the DNA evidence on the grounds that the defendant was being deprived his right of confrontation because no witness from the laboratory was brought to court to testify as to the procedures used to determine a genetic match.

The Illinois Supreme Court found no confrontation clause violation, holding that under Illinois's Rules of Evidence, the facts and data disclosed by a testifying expert to explain the basis of an opinion are not considered to be admitted for the truth of the matter asserted, meaning that the expert's testimony regarding the report of the DNA laboratory did not constitute hearsay.

In the case of Bullcoming v. New Mexico, decided on June 23, 2011, the concurring opinion of Justice Sotomayor specifically left this issue open. I have attached the Bullcoming decision here.

Since Bullcoming was a 5-4 decision, with the dissenting justice seeming to be firmly unified in limiting the scope of the confrontation clause, the resolution of the Williams case will likely turn on the vote of Justice Sotomayor.

The key language comes from Justice Sotomayor's concurring opinion where she states that Bullcoming should not be read to encompass the following circumstances:

While it is difficult to predict how the Court would vote if confronted squarely with the issue, the concurring opinion clearly suggests a limitation on the Bullcoming decision. However, the situation raised by the Williams case is different from that contemplated by Justice Sotomayor's concurrence. In the concurrence, she is suggesting that an expert can testify about reports used to arrive at the expert's opinion without violating the confrontation clause. As the petition for certiorari in Williams argued, the rationale behind Rule 703, is that an expert can testify as to data reasonably relied on by experts in that particular field. However, the court dispensed with the reliability rule in Crawford v. Washington, 541 U.S. 36 (2004) and specifically held in Melendez-Diaz that forensic analysis is neither fool-proof nor immune from manipulation. Accordingly, the Court is being faced squarely with the issue of whether the State can circumvent the confrontation clause by having an expert testify about the data contained in a forensic report when the underlying analyst is not called to testify.

The United States Supreme Court should hold that the defendant's right of confrontation was violated by the admission of the DNA evidence. The procedure essentially allowed the State to circumvent the requirements of the confrontation clause.

The Court may use this case to hold that the defendant can present evidence to point out the unreliability of expert testimony and that the confrontation clause does not require the state to present independent evidence of every detail that forms the basis for an expert opinion. However, in Williams in appears that admitting the underlying data behind the DNA testing was the primary purpose in calling the expert to testify. Accordingly, applying Justice Sotomayor's reasoning in her Bullcoming concurrence and opinion in Michigan v. Bryant, decided earlier this term. I would expect that the court to find that the defendant was denied his right of confrontation under the Sixth Amendment.

A Brockton man will need to hire an experienced Worcester criminal attorney after being charged with assault and battery as a result of a bar room brawl. Alexis Collado-Ortiz of Brockton was charged with assault and battery and held on $ 5000.00 cash bail out of the Milford District Court after allegedly kicking a man in the head outside of a Portuguese Club.
This is according to a new account written by Ashley Studley of the Milford Daily News.
The case against Collado-Ortiz involves allegations that he jumped out of a car and kicked and punched the alleged victim leaving him lying on the side walk with severe injuries.

The Milford, Massachusetts criminal lawyer argued during the bail hearing that this incident was a brawl involving a large number of people that were heavily intoxicated. Accordingly, at trial, the defendant could have a number of potential defenses, that he did not cause the injuries during the brawl, that he acted in self-defense or the defense of a third party. It appears to be in dispute from the news account how many people were involved and how the incident occurred. This may require the hiring of an investigator to interview potential witnesses. As a Massachusetts criminal attorney, in some cases like assault and battery, domestic assault or a sex crime, a criminal lawyer will hire an investigator to interview witnesses. It is perfectly permissible for a lawyer to interview witnesses to see if their statement is consistent with any version in the police report or to find out what a witness can add to the defense of the case. It is common for witnesses and even the victim of a crime to have a different version in the police report, and if this can be learned prior to trial in may be beneficial to the defense of the case.

At a Massachusetts criminal arraignment, there are two types of cases, those involving arrests where an individual is detained and those involving a summons to appear. For a charge like a First Offense DUI, you will receive a summons to appear in court either the next day or shortly after your arrest. Typically, the arraignment on a DUI charge is extremely brief with the court setting the case down for pretrial upon your promise to return for your next court date.

If you have a history of not appearing at court or are charged with a serious offense, the district attorney may request bail. In most cases where a defendant has little or no record, there will not be a bail request. In a domestic assault and battery case, the arraignment could involve a request for a 209A restraining or request for a no contact order.

The most important tips to remember when appearing at an arraignment is that you should arrive on time, dress appropriately and not say anything during the arraignment, other than to enter a not guilty plea.

An arraignment in Massachusetts is to formally advise you of the charges; it is not a trial and the court procedure does not provide you with an opportunity to contest the charges. It is following the arraignment date that you can contest the allegations by filing motions, such as a motion to dismiss, motion to suppress or you can request a trial date.

Continue reading "Massachusetts criminal lawyer discusses tips when appearing at an Arraignment " »

A 29-year-old woman faces Massachusetts drug charges out of the Attleboro District Court, alleging that she distributed crack cocaine, according to the Attleboro Sun Chronicle news account. The charges were brought after police appeared to search the home based on a search warrant to search the residence. The news account reports that police were investigating the residence for several months for suspected narcotics activity.

As an Attleboro criminal defense lawyer, any cases of drug distribution involving a search of a residence raises a question as to whether the police had probable cause for a magistrate to issue the search warrant. By challenging the Constitutional basis for the issuance of the warrant, a defendant charged with a drug possession or distribution offense can potentially avoid a conviction as if the motion is granted the Commonwealth generally will be unable to pursue the charges any further. Accordingly, if you are charged with drug possession with the intent to distribute, you should call an experienced drug crimes lawyer immediately.

As a Quincy, Massachusetts drug crime lawyer, in many drug cases the police will obtain probable cause to search a residence for suspected drug activity based on the signal of a drug detection dog that a particular car or residence contains illegal narcotics. In the case of Clayton Harris v. State, 2011 WL 1496470, the Florida Supreme Court addressed the issue what the State needs to show to demonstrate the reliability of these drug detection dogs to establish probable cause to conduct a search.

In a Quincy, Massachusetts drug arrest, a criminal lawyer would challenge the reliability of the dog and the probable cause for the search at a motion to suppress hearing. Typically, these hearing are held prior to trial; however, do to the busy schedule of the Quincy Court, the court has begun to schedule motion to suppress hearings on the same day as the trial.

The Florida Supreme Court held that the reliability of a dog as a detector of an illegal substance is subject to a totality of the circumstances analysis. Significantly, the Florida Supreme Court held that evidence that the dog is trained and certified is insufficient to establish the reliability of the dog for the purposes of determining probable cause. The court noted that since there is no standard training statewide for drug detections dogs, training alone cannot be the basis for concluding the dog reliable.

The Supreme Court of Florida held that the following needs to be shown:
The State must present evidence of the certification records of the dog;
An explanation of the meaning of the particular training records and evidence concerning the experience and training of the officer handling the dog as well as any other objective evidence known to the officer about the dog's reliability in being able to detect the presence of illegal narcotics. Further, the court held that to adopt the contrary view that the defendant has the burden to prove that the dog is not reliable is contrary to the proposition that the State has the burden to establish probable cause for a warrantless search and further it would be unfair to put the burden on the defendant when the State possesses the information demonstrating the reliability of the dog.

Continue reading "Quincy Drug Crimes Lawyer comments on reliability of Drug Detection Dogs in Recent Florida Supreme Court case " »

Charges of domestic assault and battery in Massachusetts often are accompanied with allegations that a defendant violated a 209A restraining order.

A Massachusetts restraining order violations, also referred to as a 209A violation requires the Commonwealth to prove the following elements:

First, a valid 209A order was entered by a judge and in effect on the date of the alleged violation;

Second, that the defendant violated the order;

Third, the defendant had knowledge of the order.

In the case of Commonwealth v. Shangkuan, decided by the Appeal Court on February 28, 2011, the court addressed the issue of what proof of service of the order when service is made in another state. The Shangkuan case arose out of the Eastern Hampshire District Court, which covers the area of Belchertown and UMass at Amherest.

The defendant's Massachusetts criminal lawyer argued that the Commonwealth could not prove that the defendant was served with the order unless it called as a witness the police officer from New Jersey that served the order. The attorney argued that without an opportunity to cross examine the officer, the defendant was being deprived of his right of confrontation under the Sixth Amendment to the United States Constitution.

The Appeals Court held that the return of service was admissible as a public record and that it was nontestimonial and accordingly, confrontation is not required. The Appeals Court held that the return of service is not created solely for the purpose of a criminal investigation and was not created for the purpose of proving some fact at a criminal trial.

Continue reading "Restraining Order Violations in Massachusetts and Proving Service without live testimony" »

Massachusetts domestic assault and battery charges were brought against a Quincy man Matthew Grahm. Grahm faces an indictment in superior court as it is alleged that the incident
caused his girlfriend to bleed from the lip and have trouble breathing according to a news report in the Patriot Ledger. Grahm was charged with aggravated assault and battery based on the severity of the injuries, witness intimidation and assault and battery with a dangerous weapon.

As a Quincy, Massachusetts criminal lawyer, generally charges of domestic assault and battery remain in the district court. If a case stays in the district court, the maximum sentence per count is 2.5 years in the house of correction. Given the seriousness of the alleged injuries, it is not surprising that the district attorney sought an indictment to bring the case to superior court where the district attorney can seek up to 10 years of State prison time under Massachusetts domestic assault and battery law.

Continue reading "Quincy Man faces indictment after Massachusetts domestic assault and battery arrest" »

A Milford, Massachusetts man, Jason Metivier faces Massachusetts Domestic Assault and Battery charges according to a report in the Daily News. The charges were brought in the Milford District Court.

According to the news account, the alleged victim kicked the defendant out of her house because of abuse. The defendant and victim met in the victim's car on Saturday where she was punched in the face according to the news account. She did not call the police regarding the incident on Saturday because she was scared. The complaining witness indicated that the defendant showed up the next night, began going through her phone, when she grabbed the phone, the defendant slapped her face and punched her left thigh a few times, and broke the phone.

The Judge of the Milford District Court, set a cash bail in the case of $ 2500.00 based on the defendant record.

As a Worcester criminal lawyer, charges of domestic assault and battery can be easily brought because they are based solely on the report that an alleged victim makes to the police. In the case before the Milford Court, I would expect the defendant to face multiple counts relating to both of the incidents. Each alleged domestic assault and battery can form the basis of a separate count of the criminal complaint.

In a case where there is a gap between the incident and reporting it to the police, a Massachusetts criminal attorney can use the delay to undermine the credibility of the victim's allegations. Of course, that tactic has its risks as most victims will claim that the incident was not reported to the police as a result of fear of intimidation by the defendant.

Typically, a domestic assault and battery defense will involve determining a motive as to why the victim may fabricate or exaggerate the allegations.

Continue reading "Milford man faces Massachusetts Domestic Assault and Battery Charges" »

The Massachusetts Appeals Court in the case of Commonwealth v. Figueroa, decided on April 29, 2011, upheld a defendant's conviction for indecent assault and battery in Chelsea, Massachusetts despite arguments that the court improperly allowed statements of the victim into evidence without providing an opportunity for cross examination.

In Figueroa, the defendant was working at Fairlawn Nursing Home in Leominster, Massachusetts and was alleged to have had sex with an eighty-six year old woman suffering from dementia. At trial, the victim did not testify, but two witnesses from the hospital did testify, including a witness that claimed to have witnessed the incident.

The legal issue surrounding this Massachusetts sex crime was whether statements that the victim made to another CNA describing the defendant's actions, in having sex with the victim and indicating that the defendant claimed to be performing a test on the victim. The Massachusetts criminal attorney objected to these statements being admitted into evidence.

The Appeals Court stressed that an excited utterance is admissible if it is made following an occurrence or event that is sufficiently startling to render inoperative the normal reflective process and the statement was a spontaneous reaction to the occurrence or event.

Having found that the statement was admissible under the rules of evidence, the next issue for the Appeals Court was whether the statement could be admitted without providing the defendant an opportunity for cross examination of the speaker. Accordingly, the Court addressed the issue of whether the statements were testimonial.

The Court discussed that statements made in response to law enforcement questioning are testimonial per se, except where the statements are meant to secure a volatile scene or to establish the need to provide medical care. The Court went on to stress that it will evaluate whether or not a statement is testimonial based on whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting a crime.

The Appeals Court concluded that the victim's statement that the defendant did the test again indicates that the victim understood the question to be about her medical condition. The Court held that the inquiry is whether a reasonable person in the declarant's position would objectively believe that the statement would be used in a criminal prosecution. The Court held that the declarant would not have reasonably believed her statements would be used to prosecute the defendant.

The decision of the Appeals Court is difficult to reconcile with the decision of the United States Supreme Court in Michigan v. Bryant and I would expect the SJC to reverse the conviction should further appellate review by sought. In Bryant, the United States Supreme Court held that the statement of a victim identifying the person that shot him was nontestimonial because the police were responding to an ongoing emergency.

In contrast, in the case of Figueroa, the victim was describing a past criminal act. The victims purpose in describing the actions of the defendant were not to obtain further medical treatment, but to describe what happened to her; the fact that the victim may not have known of the illegality of the conduct cannot negate that the objective purpose of the statement was to describe the criminal conduct of the defendant. Further, at the time of the statement, there does not appear to be any ongoing emergency as other hospital employees had come into the room. Additionally, the purpose of the victim being questioned was to determine whether the defendant had committed a criminal act in his care of the victim. Accordingly, when the victim was being questioned by the hospital employees, the employees were acting essentially as police officers trying to determine what had happened at a crime scene. In a footnote, the Appeals Court note that the employee testified that when she first spoke to the victim she did not think she would have to report anything to the police, but it was only after hearing the victim's response that she realized she would be required to notify the police.

The result in this case deprived the defendant of his Sixth Amendment Right of Confrontation and I would expect the SJC to reverse if further appellate review is granted.
The Court's decision undermines the basic purpose of the right of confrontation to allow for face to face confrontation of an individual accuser at a criminal trial.

Continue reading "Massachusetts Sex Crimes Lawyer reviews recent Indecent Assault and Battery Case addressing excited utterances and the Right of Confrontation" »