MASSACHUSETTS CRIMINAL PROCEDURE DISTINCTIONS PROFESSOR ISAAC BORENSTEIN SUFFOLK UNIVERSITY LAW SCHOOL

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1 MASSACHUSETTS CRIMINAL PROCEDURE DISTINCTIONS PROFESSOR ISAAC BORENSTEIN SUFFOLK UNIVERSITY LAW SCHOOL CHAPTER 1: THE FOURTH AMENDMENT AND MASSACHUSETTS LAW A. General Principles In rder fr the Furth Amendment (r Articles 14 and 12 f the MA Cnstitutin) t be implicated, there must be: actin; and Either directly by law enfrcement r law enfrcement using civilians as agents A r a (r bth). Massachusetts Cnstitutin is ften referred t as the. Applicable Articles are 12 and 14 If n search r seizure - Furth Amendment implicatin. If n gvernment actin - Furth Amendment implicatin. B. Seizure and Search Defined 1. Seizure Lks t the ttality f the circumstances bjectively viewed Wuld a persn feel reasnably t leave the presence f plice? If a persn (lking at all the circumstances and viewed bjectively) des nt feel reasnably free t leave, there has been a under the Furth Amendment. 2. Search A search takes place if an area f has been recgnized as reasnably prtected under the Furth Amendment (r Articles 12 r 14) and has been invaded by a gvernment agent.

2 C. Seizure 1. Federal Rule Hdari case There is n seizure under the Furth Amendment if an individual has nt either been r has nt t the physical authrity f law enfrcement. 2. Massachusetts Distinctin A persn is cnsidered seized even while, running away frm plice. Even if the individual has nt submitted t the authrity f the plice Greater prtectin than under federal law If an individual is seized while in flight, the plice must have a justificatin: Either that the individual has cmmitted a crime; r t believe the individual has cmmitted a crime. D. Right t Phne Call In Massachusetts, the individual must be given the right, within f his arrival at the plice statin, t make a phne call. Failure t d this will make any statements made at the statin subject t. This is prvided by state statute des nt exist at federal level. E. Reliable Infrmant/Infrmatin In Massachusetts, the infrmatin that supplies the prbable cause must be,, and trustwrthy. Unlike the federal law gverned by Illinis v. Gates (ttality f the circumstances test), Massachusetts cntinues t use the Aguilar-Spinelli test. Massachusetts rule - In rder t have prbable cause t search r prbable cause t arrest: The surce f the infrmatin has t have a ; and The surce f the infrmatin has t be r the infrmatin has t be trustwrthy r reliable Themis Bar Review, LLC MA Criminal Prcedure Distinctins

3 Much mre difficult t get search warrants in Massachusetts. F. Warrants 1. Return f Warrant In Massachusetts, a return n an executed search warrant must be made within days f the executin f that search warrant. Federal law des nt have the same hard-and-fast rule. 2. Executin f a Warrant Massachusetts - In rder fr a search cnducted pursuant t a search warrant t be valid, the search warrant must be f the plice and at the lcatin f the search. If the search warrant is nt present, the search will nly be justified if there is an t the search warrant requirement. Differs frm federal law G. Exceptins t the Warrant Requirement 1. Exigent Circumstances Bth federal law and Massachusetts law recgnize exigent circumstances as an exceptin t the search warrant requirement. Strictly cnstrued in Massachusetts 2. Stp f Autmbile Under federal law and Massachusetts law, t stp a vehicle, plice must have either reasnable suspicin f criminal cnduct r prbable cause t arrest smene in that vehicle. a. Minr Mtr Vehicle Offense Massachusetts if smene is stpped justifiably fr a minr mtr vehicle ffense nly, the plice may ask fr a drivers license and registratin. If they appear t be valid and the vehicle appears t be validly registered and inspected, then the individual must be allwed t g and n is allwed (unless there is reasnable suspicin r prbable cause). Differs frm federal law greater prtectins in Massachusetts b. Passengers Massachusetts a passenger cannt be rdered ut f the vehicle r asked fr identificatin unless there is MA Criminal Prcedure Distinctins 2016 Themis Bar Review, LLC 3

4 that individual f cmmitting a criminal ffense. c. Marijuana In Massachusetts, unlike federal law, the f marijuana alne is nt enugh fr reasnable suspicin f criminal cnduct r prbable cause t arrest. d. GPS Tracking Massachusetts the placement f a GPS device nt a mtr vehicle is deemed a fr which a warrant is necessary. 3. Plain-view Dctrine Under Massachusetts law, the plain-view bservatin and seizure must be. Plice must nt knw in advance. 4. Cnsent Searches Massachusetts and the federal law are similar. Apparent authrity Massachusetts requires that where the plice have infrmatin that the apparent authrity they have might nt be valid, a duty is impsed n the plice t make a t determine if the apparent authrity fr the granting f cnsent is valid. Apparent authrity is allwed fr cnsent in bth Massachusetts and under federal law nly Massachusetts adds this extra requirement. CHAPTER 2: THE FOURTH AMENDMENT AND MASSACHUSETTS LAW (CONT D) A. Exceptins t the Warrant Requirement (Cnt d) 1. Urinalysis Testing Massachusetts law in this area is nt that different frm federal law. Massachusetts - must have reasnable suspicin, prbable cause, r a strng interest. Example 1: Cnducting urinalysis testing f schl bus drivers 2. Inventry Searches Nrmally ccur when smene is arrested Pssessins, clthing, backpacks etc. can be subject t an inventry search withut reasnable suspicin f criminal cnduct r prbable cause Themis Bar Review, LLC MA Criminal Prcedure Distinctins

5 Car is legally twed t the plice statin because the driver/wner has been arrested r the car has been abandned inventry search can be cnducted. Massachusetts distinctin: 3. Radblcks Requires an inventry plicy t be in Permitted under bth Massachusetts law and federal law Massachusetts distinctin: T be valid, there must be a set f prcedures that take the place f a warrant. There must be a and f the plice wh are ging t engage in the radblck. The plicies must be annunced. Greater prtectin than under federal law 4. Wiretapping Unlike federal law, Massachusetts des nt allw t third-party audi taping t be perfrmed. is required. B. Standing Massachusetts gives standing t individuals seeking t exercise their rights under the Furth Amendment and Massachusetts law. Federal law prvides less rights regarding standing. Massachusetts - Where the pssessin f seized evidence was remved frm a hme r an autmbile, the defendant has autmatic standing t challenge the legality f the search and seizure. Easier t bring a mtin t suppress in MA C. Exclusinary Rule 1. Gd-Faith Exceptin Massachusetts the gd faith exceptin. Such as if a search warrant is executed withut prbable cause in MA, the gd faith f the fficers executing the warrant is NOT cnsidered. Federal law prvides fr a gd faith exceptin t the search warrant requirement. MA Criminal Prcedure Distinctins 2016 Themis Bar Review, LLC 5

6 Nte 1: errrs (scrivener s errrs) in the issuance and executin f a search warrant might nt result in the exclusin f evidence seized. 2. Inevitable Discvery Dctrine Recgnized in Massachusetts and under federal law Even thugh there might have been an unlawful search r seizure, the evidence will nt be excluded if it wuld have been inevitably discvered anyway. Massachusetts impses a requirement n the part f the plice. Federal law des nt impse this requirement. CHAPTER 3: THE FIFTH AMENDMENT AND MASSACHUSETTS LAW A. The Privilege Against Cmpulsry Self-Incriminatin 1. Article 12 f the Massachusetts Cnstitutin N subject shall be cmpelled t accuse r furnish evidence against himself. Article 12, MA cmmn law, and MA statutes prvide greater prtectins than under federal law. 2. Refusal t Take a Breathalyzer Test a. Federal Law Refusal is against a criminal defendant. b. Massachusetts Refusal is against a criminal defendant. B. The Fifth Amendment in a Plice Interrgatin Cntext 1. Vluntariness Massachusetts distinctin: Under Article 12, the vluntariness f a cnfessin, admissin, r waiver f Miranda rights must be prven by the gvernment. Higher standard than required under the U.S. Cnstitutin Massachusetts has the humane practice rule : At the request f a defendant in a criminal case, a judge (if there is evidence f an admissin r cnfessin) must give a humane practice instructin Themis Bar Review, LLC MA Criminal Prcedure Distinctins

7 Jurrs are instructed that they have the right t the cnfessin r statements made by a defendant t law enfrcement, either in part r in whle, unless the gvernment prves beynd a reasnable dubt that the cnfessin r statement was made vluntarily. 2. Electrnic Recrding f Interrgatins Distinctin frm federal law Massachusetts requires that fr any statements r cnfessins made by a defendant either in r at a place f detentin (e.g., plice statin) defendant must be prvided with an pprtunity t make that statement r cnfessin in an audi recrding (at least an audi recrding, culd be vide). If the plice fail t prvide the defendant with the right t have his statements r cnfessin recrded, the defendant is entitled t an instructin t the jury that it shuld lk with and at any statement where the ptin t have the statement recrded was nt prvided t a defendant. Case: Cmmnwealth v. DiGiambattista 3. Infrming Defendant f Presence f Cunsel MA differs frm federal law Massachusetts distinctin: require the plice t stp questining a defendant and him that an attrney has cmmunicated t the plice that he r she des nt want questining t cntinue, r that the attrney is trying t reach the defendant. Failure t infrm the defendant can lead t the suppressin f any statement r cnfessin made. 4. Waiver f Miranda Rights - Defendant s Silence Federal law allws a waiver t be valid when the defendant is silent when given the Miranda warnings. Editr's Nte 1: Silence alne n the part f the suspect is nt sufficient t waive his Miranda rights. The suspect must als receive and understand the warnings, refrain frm invking his rights, and then make an uncerced statement. Massachusetts prvides even greater prtectin by requiring an affirmative waiver. Massachusetts distinctin des nt presume waivers by silence. Silence in the face f Miranda warnings carries as t whether there has been a vluntary, knwing, and intelligent waiver f Miranda rights. MA Criminal Prcedure Distinctins 2016 Themis Bar Review, LLC 7

8 C. Fruits f a Tainted Cnfessin 1. Physical Evidence Miranda vilatin Massachusetts des nt fllw the Patane decisin. Patane decisin (federal law) a mistake in giving Miranda warnings r an invalid waiver f Miranda rights t the suppressin f physical evidence (nt autmatically). Massachusetts distinctin a vilatin f Miranda rights results in the f physical evidence. 2. Cnfessins After Miranda Vilatins Massachusetts any statements r cnfessins made after a Miranda vilatin are presumed t be. Differs frm federal law under federal law, Miranda vilatin des nt mean autmatic exclusin f evidence. D. Fifth Amendment in the Trial Cntext Massachusetts gives, as ppsed t use immunity. Arises in the cntext f a defendant r suspect making a deal with the gvernment t prvide infrmatin ften the statements implicate the defendant r suspect. Transactinal immunity: thse statements cannt be used against the defendant r suspect and any evidence fund as a result f thse statements cannt be used against them. Mst prtective type f immunity Federal law immunity gives much less prtectin t defendants. CHAPTER 4: THE SIXTH AMENDMENT AND MASSACHUSETTS LAW A. Right t Cunsel 1. Basic Principles Sixth Amendment prvides the right t an attrney in any case in which actual r suspended is ging t be impsed. A persn has the right t cunsel under the Sixth Amendment at all stages f a prsecutin. Typically after frmal criminal prceedings have begun. Includes after an has been brught r a criminal cmplaint has been brught frmal charge. Cntinues until the sentencing stage f a trial if a defendant is cnvicted Themis Bar Review, LLC MA Criminal Prcedure Distinctins

9 2. Infrmant Cellmate If the plice put an infrmant in a defendant s cell wh has been frmally charged r an indictment has been issued, that vilates the Sixth Amendment. Defendant s right t cunsel has attached at that pint. 3. Critical Stage f the Prsecutin Right t cunsel under the Sixth Amendment attaches at the fllwing critical stages: Pst-indictment and identificatins; Pst-indictment, whether custdial r therwise; Arraignment and preliminary hearing t determine prbable cause t prsecute; Plea bargaining, guilty pleas, and sentencing; and as a matter f right. 4. Frfeiture f Right t Cunsel Massachusetts distinctin: befre a persn waives their right t cunsel, they are entitled t a. N such prvisin under federal law. 5. Nncritical Stage f the Prsecutin Right t cunsel under the Sixth Amendment des nt apply t the fllwing: A witness viewing phts f the alleged defendant (even pst-indictment, pst-charge); Pre-charge (investigative) lineups; Taking f, handwriting exemplars, vice exemplars, r bld samples; Hearings t determine prbable cause t detain the defendant (Gerstein hearing) 48 hurs is the presumptin under federal law; Discretinary appeals; and Pst-cnvictin prceedings, such as r hearings (including habeas crpus). Massachusetts distinctins: Gerstein hearing must be dne within hurs. Bld samples if a bld sample is being btained as evidence that may be used against an individual, there must be a where prbable cause must be established by the gvernment. The individual has the right t cunsel at the hearing. MA Criminal Prcedure Distinctins 2016 Themis Bar Review, LLC 9

10 B. Cnflict f Interest MA and federal law if there is an actual r ptential cnflict f interest n the part f an attrney, there must be a. Federal law prvides a clear-cut required hearing n the issue. MA law is a little mre vague but case law suggests a hearing wuld be imprtant t explre the apparent r actual cnflicts. Des nt prvide the specific requirements under Federal Rule f Criminal Prcedure 44(c). C. Identificatin Prcedures In Massachusetts, if a defendant can shw there has been an impermissibly ut-f-curt identificatin prcedure by a prepnderance f the evidence, the identificatin is. Federal curts might be admissible nevertheless. D. Grand Jury Indictment In Massachusetts, a persn be charged in superir curt withut a grand jury indictment. Applies t any felny Federal curts prvide fr indictment by grand jury in serius felnies nly. E. Vir Dire Massachusetts vir dire f prspective jurrs must be. F. Right t Cnfrntatin The accused in a criminal case has the right under the Sixth Amendment t cnfrnt witnesses. Massachusetts distinctin the right t cnfrntatin must be. Required under the specific language f Article 12 G. Juveniles Massachusetts juveniles have the right t a n a delinquency charge. Right created by statute Under federal law, there is n right t a jury trial in juvenile curt. H. Death Penalty Massachusetts the death penalty Themis Bar Review, LLC MA Criminal Prcedure Distinctins

11 I. Jury Trial in Capital Cases Massachusetts - Defendant des nt have the right t a jury trial in a capital case. Only capital case in MA is first-degree murder life imprisnment withut parle. J. Jury Verdicts Massachusetts requires jury verdicts t be in criminal cases. N requirement f unanimity in federal curt. [END OF HANDOUT] MA Criminal Prcedure Distinctins 2016 Themis Bar Review, LLC 11

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