Massachusetts Criminal Practice

Mass. Criminal Practice

ERIC BLUMENSON, Research Professor of Law, Suffolk University Law School
ARTHUR B. LEAVENS, Professor of Law, Western New England University School of Law
and MEMBERS OF THE MASSACHUSETTS CRIMINAL LAW BAR

Terms of Use: To proceed, the reader must acknowledge that this book is intended as an aid to research. Given the depth and breadth of the criminal law, it makes no claim to completeness or infallibility. Therefore, the reader should research any authorities cited herein before relying on them regarding any issue of consequence, and should note that chapters in this edition were completed at various times which are indicated on the first page of each chapter. 

4TH EDITION COPYRIGHT © 2012 by Eric Blumenson
3RD EDITION COPYRIGHT © 2003 by New Law Publishing
2ND EDITION COPYRIGHT © 1998 by LEXIS® Law Publishing
1ST EDITION (published as Massachusetts Criminal Defense, by Eric D. Blumenson), © 1990 by Butterworth Legal Publishers



Comments: All comments, corrections, or suggestions are appreciated and may be emailed to eblumens@suffolk.edu

Mass. Criminal Practice Book


PREFACE TO THE FOURTH EDITION

This Fourth Edition marks a new era in the life of Massachusetts Criminal Practice.Commenced in 1990 as a hardcover book, and continuing through the following two editions, Massachusetts Criminal Practice was available only to subscribers and purchasers. But the purpose of the project was always to disseminate legal knowledge to lawyers, law students, and others involved in the criminal justice system, including defendants – and the commercial imperatives of book publishing necessarily detracted from this goal. With this edition, we take a long step towards making the book more accessible  to  our intended readers: Massachusetts Criminal Practice is now available to all who can access the internet, without charge. All of its contributors – listed here  -- have donated their time and expertise, in service to the profession and to the cause of justice in the criminal courts. We thank them for their prodigious work in the midst of the daily demands of practice or teaching; this book, of course, would not exist without them.

We are also grateful for the support of our universities, Suffolk University Law School and Western New England University School of Law; to the support staff who contributed so much to the production of this book, including James Barrett, Gina Doherty, James Gardner Long III, Eileen Koven, Donna Moray, and Janine La Fauci; and to the tireless efforts of our research assistants John Brooks, Michelle Dame, Chad Dauman, Noah Ertel, Laura Miller, Bridget Mullally, Stephanie O'Neil, Mara Shulman Ryan, Anastasia Simmons, Matthew Szalkowski, and Katherine Wyporek.

Eric Blumenson

Arthur Leavens

July, 2012

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PREFACE TO SECOND EDITION

(Massachusetts Criminal Practice, 1998)

Almost a decade has passed since the original publication of Massachusetts Criminal Defense — a decade of great change and unanticipated challenges for lawyers practicing in the criminal justice system.  At the federal  level,  the  laws now  governing  habeas corpus, immigration, police procedure, and drug offenders are distant cousins to their antecedents in the 1980s. In Massachusetts during this period, we lost our centuries-old de novo court system and gained a new code of professional responsibility; and the legislature substantially rewrote the laws applying to bail, juveniles, parole, and sentencing. (Mandatory sentencing guidelines and major changes to the Rules of Criminal Procedure are visible on the horizon.) Such consequential developments could not justly be relegated to a pocket part; it was clearly time to take stock of these events and produce a wholly revised edition of the book. What you now have in your hands is in some respects a new book, covering much new ground, and produced this time by a team of three coeditors with both prosecutorial and defense experience. It also bears a new title — Massachusetts Criminal Practice — on the conviction that all participants in the criminal process are equally concerned with guaranteeing the delivery of the rights and procedures we describe herein.

This Second Edition has benefited from the insights and hard work of a great many people  who  contributed to the three  intermediate  supplements  and  to  this new edition. In addition to the authors and to those identified in the Preface to the First Edition, many of whom have continued to participate in this project, we wish to acknowledge the contributions of David McCord, Stephanie Page, James R. Pingeon, Sara Burgess Reed, and Thomas A. Reed. We also thank our research assistants over the past decade for their work on supplementing the original book, including Jason Bassett, Mary Kuusisto Bejar, Kevin G. Collimore, Jeffrey Colwell, Therese Dillingham, Christopher Drinan, Jenny Epstein, Tamar Finkelstein, Gina Finocchio, Lisa Fisher, Christine Fortune, Andrea E. Girolamo, Margaret R. Guzman, Laura Hancock, Michael D. Handler, Casey McCarthy, Kamyar Mehdiyoun, Moyenda Mutharika, Brett W. Newkirk, Jacqueline Perczek, Kimberly Pope, Jennifer A. Rudd, Vanessa Rush, Lawrence J. Sheh, Catherine V. Tannen, and Christine Verity. For patient and thorough secretarial assistance, we thank Alice Drew, Tracey Hefner, William Kaleva, Jeannie Kelly, Barbara Koocher, Joan Luke, and Nicole York. *

Eric Blumenson

Stanley Z. Fisher

Daniel Kanstroom

September 1998

* Since publication of the second edition, we have benefited from the research assistance of several lawyers and law students in the preparation of the 2001 supplement and this CD edition.  We gratefully acknowledge the assistance of James Coburn, Michael Duffy, Jeremiah Johnston, Louis Lehot, Kathleen Linde, Linda Mahoney, Robin Morris, Sarah Ragland, Payam Siadat-pour, Jennifer Smith, and Laura Suchon.

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PREFACE TO FIRST EDITION

(Massachusetts Criminal Defense, 1990)

This book constitutes the collective effort of many people over many years. It began in 1980 as a manual for my clinical students at Suffolk Law School, and over the years benefited greatly from the suggestions, comments, and contributions of students who tested it daily in the district courts. But it was always clear to me that the amount of law out there was so vast, and the experiential wisdom of practicing lawyers so useful if it could be made accessible, that a defense manual should enlist the efforts of many specialists within the field. Members of the defense bar proved more than willing to contribute to the project, devoting prodigious time and effort in the midst of the daily demands of practice or teaching, and the result is this first edition.

Many colleagues, friends, and students have provided generous and enthusiastic support for this project. Jay Carney, Stanley Fisher, Eva Nilsen, and William Robinson read extensive portions of the manuscript and offered exceptionally insightful and detailed comments. Many others were willing to share their expertise or answer my incessant questions, including Jack Cunha, Fran Burns, Helen Fremont, William Genego, Nancy Gist, Richard Hamilton, Marjorie Heins, Richard Klein, Daniel Klubock, William Leahy, Ray Loomis, Michael McEneaney, Martin Rosenthal, Joseph Rousseau, John Salsberg, Robert Sheketoff, and Norman Zalkind. I am also fortunate to have been able to draw on the advice of valued Suffolk colleagues such as Professors Steven Callahan, Charles Kindregan, and Sarah Landis.

I am grateful for the support of Suffolk University Law School in this long endeavor, its President, David Sargent, its Dean, Paul Sugarman, its librarian, Ed Bander, and its support staff. I am fortunate to teach at a law school that values scholarship that might help make legal rights a reality for more persons, wherever situated. I am especially grateful to Elizabeth McGlynn, who typed much of this volume (I hope that her painstaking work on the drafts and redrafts finds new relevance for her as she begins her legal career); to Jeff Clark, Diane Burke, and Kimberly Short for their work in typing portions of this manuscript; and to Linda Watlack and Gina Gaffney at the Suffolk Computer Resource Center for rescuing me and the book from electronic oblivion on numerous occasions. Students who contributed unstinting research and illuminating advice include Meaghan Barrett, Kathleen Duggan, David  Feakes, Kari Kipf, Margaret Lundy,  Alexander McCann,  Susan  Naughton,  Dennis Sargent, James Thom, Amy Merlo-Valletta, and Sirdeaner Walker. Some of the contributing authors also wish to acknowledge the assistance of their students: Helaine Gregory, Thomas Hayman, Robert Kester, Norah Shapiro, and Webb Steadman.

I also wish to acknowledge the authors and scholars whose books preceded this volume, and whose work and wisdom made our efforts immeasurably easier: the Massachusetts Committee for Public Counsel Services, whose training manuals guided us to many of the cases cited herein; Smith’s Criminal Practice and Procedure; the District Court’s Jury Trial Manual; Liacos’s Handbook of Massachusetts Evidence; McNaught and Flannery’s Massachusetts Evidence: A Courtroom Reference; and Amsterdam’s Trial Manual for the Defense of Criminal Cases. The West Publishing Company made its Westlaw database available for this project.

I know that I could not have sustained this project without the encouragement, critical advice, and patience of my wife, Eva Nilsen, and without the delightful and essential efforts of my daughter, Claire, to entice me away from the computer for interludes of play.

Finally, this book would not have been written had not my parents, Beatrice and Seymour Blumenson, taught me to care about and write about the public interest. This book is dedicated to them.

Eric Blumenson

Cambridge, Massachusetts

May, 1990

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MCP Editors & Contributors

Current (4th) Edition

4th EDITION

Previous Editors and Contributors

Editors

ERIC D. BLUMENSON

Research Professor of Law at Suffolk University Law School; J.D., Harvard Law School, 1972. In addition to his teaching, Professor Blumenson has long been involved in the provision of legal services to indigent clients, as Director of the Suffolk Voluntary Defenders, an attorney in the Seattle Public Defenders Office, a visiting attorney in a South African legal clinic, and a local legal services board member. As an attorney, he has represented litigants at all levels of the state and federal courts, and has argued cases concerning criminal justice on behalf of the ACLU, CLUM, and Massachusetts Association of Criminal Defense Lawyers. His articles in the areas of criminal justice and human rights have appeared in such journals as The Nation, the University of Chicago Law Review, the Harvard Civil Rights/Civil Liberties Law Review, and the Texas Law Review. Professor Blumenson also served as Reporter for the S.J.C. Advisory Committee on the Criminal Rules from 1995-2004; a research fellow at the Open Society Institute; and the first resident academic in the Office of the Chief Prosecutor of the International Criminal Court.

ARTHUR B. LEAVENS

Professor of Law, Western New England University School of Law, where he has taught criminal law and procedure for 29 years. Prior to coming to Western New England, Professor Leavens was for several years a staff attorney for the Public Defender Service of the District of Columbia, doing both trial and appellate work. Before that, he was an associate attorney in the litigation department of Paul, Weiss, Rifkind, Wharton & Garrison in New York and a law clerk for Federal District Court Judge John F. Dooling Jr. in the Eastern District of New York. His areas of scholarly interest include criminal law and procedure and state constitutionalism. For many years he served on the Massachusetts Supreme Judicial Court’s Standing Advisory Committee on the Rules of Criminal Procedure, and he currently serves as its Reporter. Professor Leavens is a graduate of Harvard Law School and Duke University.

Contributors

JULIE BAKER

Associate Professor of Legal Writing, Suffolk University Law School; J.D., Boston College Law School 1990; S.B., MIT 1987. After law school, Ms. Baker clerked for the Honorable Douglas P. Woodlock, USDJ, D. Mass. She subsequently worked as a public defender in the CPCS Boston Trials Unit and in the Youth Advocacy Project, and then as a litigation associate at Rubin and Rudman LLP. She has been at Suffolk University Law School since 2001, where she has taught Legal Practice Skills, Advanced Legal Writing, and Advanced Legal Methods. She has also supervised students in the Juvenile Justice Clinic for two semesters, and she coaches the National Moot Court team. Ms. Baker continues to write trial memoranda and appellate briefs in Massachusetts criminal cases, and scholarship in the area of cognitive psychology and effective written communication.

JOHN J. BARTER

Attorney at Law; J.D., Northeastern University School of Law, 1981. Mr. Barter is engaged in the general practice of law in Boston, concentrating in criminal and civil litigation, appeals, and post-conviction matters, in the state and federal courts. He served for several years as a clinical supervising attorney at the Suffolk University Law School.

NANCY BENNETT

Deputy Chief Counsel for the Private Counsel Division of the Committee for Public Counsel Services (CPCS); J. D., Northeastern University School of Law. Beginning as a staff public defender handling felony trials from 1981-89, for the past 20 years Ms. Bennett has been engaged in developing systems for statewide oversight of the more than 2000 private attorneys who provide over 90% of the criminal defense representation to the indigent in Massachusetts. These systems include certification requirements, performance standards, mentoring, performance evaluations of private counsel, affirmative action to increase the ethnic and linguistic diversity of assigned counsel, required continuing legal education and client complaint investigation. A member of the American Council of Chief Defenders, Bennett has been a presenter at the NLADA Annual Conferences 2006-2008, and a guest faculty annually at Harvard Law School’s Trial Advocacy Workshop 1993-2005.

JAY DAVID BLITZMAN

First Justice, Juvenile Court, Middlesex Division; J.D.; Boston College Law School 1974. Prior to his judicial appointment, Judge Blitzman was a founder and the first director of the Roxbury Youth Advocacy Project, a community based interdisciplinary public defenders unit. He also co-founded Citizens for Juvenile Justice (CfJJ). Presentations include: “Theory and Scope of Juvenile Court” before National Academy of Sciences National Resource Council (D.C. 1999); keynote at the annual Connecticut Juvenile Court Conference (2004); and presentations at annual DOJ/National Defender Conference and as judicial panelist at national ABA conferences (2008, 2009). Judge Blitzman also testified before the Presidential National Rape Enforcement Act Commission and submitted written testimony to the Massachusetts Access to Justice Commission. Publications include “Children's Rights and Relationships” (with Fran Sherman), Ch. 4 in "Juvenile Justice" (2011); “Gault’s Promise,” 9 Barry L. Rev. 67 (Fall, 2007); Access to Justice In Juvenile Court,” 93 Mass. L. Rev. 230 (2010); and, as co-editor, the “Massachusetts Juvenile Court Bench Bar Book” (MCLE 2003, 2008, 2011). Judge Blitzman teaches Juvenile Courts at Northeastern University School of Law and Community Courts at Boston University School of Law. The Committee for Public Counsel Services (CPCS) annually awards the Jay D. Blitzman Youth Advocacy Award. Jay is also a member of Actor’s Equity and the Screen Actor’s Guild and has been a writer’s consultant on the T.V. programs The Trials of Rosie O’Neill and Judging Amy.

STEPHAN J. CALLAHAN

Professor of Law, Emeritus Suffolk University Law School; J. D. Suffolk University Law School 1975. Professor Callahan teaches Criminal Law and Constitutional Law. He developed and directs Suffolk University Legal Services, a housing clinic staffed by evening students in Chelsea, Massachusetts. He has previously taught at Gonzaga Law School in Spokane, Washington and served as an attorney with Texas Rural Legal Aid in Rio Grande City, Texas.

D. CHRISTOPHER DEARBORN

Clinical Professor at Suffolk University Law School; J. D.,Vermont Law School. At Suffolk, Prof. Dearborn teaches in the Suffolk Defenders Program and also teaches classes on trial practice and the Massachusetts Constitution. He was previously a Senior Associate at the law firm of Rankin & Sultan, where his practice focused on criminal defense in state and federal courts, and a staff attorney with the Committee for Public Counsel Services (CPCS) for nine years, representing indigent defendants. He has also served as an adjunct faculty member at New England School of Law and at Western New England College of Law. Professor Dearborn's scholarship focuses on the intersection between state constitutional law and criminal procedure. He is a frequent statewide contributor to Continuing Legal Education programs. For this edition, Prof. Dearborn provided memoranda on significant changes since 2002 to be included in relevant chapters.

DAVID DUNCAN

Partner, Zalkind Duncan & Bernstein, LLP; J.D., University of Pennsylvania Law School, 1982. Mr. Duncan clerked for the late .Edward R. Becker on the Third Circuit Court of Appeals and practiced with a small commercial law firm in Philadelphia for two years, then relocated to Boston and into criminal defense work in 1985, where he has been ever since. He was an associate, and since 1990 he has been a partner, at his current firm. His practice includes civil and criminal trial and appellate work. He also has a practice in university discipline cases. He serves on the federal Criminal Justice Act panel of trial attorneys, representing indigent persons accused of crimes in the federal system. He has taught criminal defense as an adjunct clinical instructor at Suffolk University Law School.

ROGER GELLER

Assistant Bar Counsel to Board of Bar Overseers; J.D., Boston University School of Law 1971. Mr. Geller was in private practice from 1971 to 1989, when he joined the Office of Bar Counsel to the Board of Bar Overseers.

RANDY GIOIA

Attorney-in-charge, Roxbury Defenders Unit, Committee for Public Counsel Services; J.D. Boston University, 1977. Mr. Gioia was in private practice specializing in criminal defense law for 33 years before he became a full-time public defender in 2011. He is the attorney-in-charge of the Roxbury Defenders Unit of the Public Defender Division of the Committee for Public Counsel Services. He has contributed chapters to the MCLE books “Trying Murder Cases,” “Defending Sex Offenses,” and “Crime and Consequences.”

ANNE GOLDBACH

Forensic Services Director for the Committee for Public Counsel Services; J.D., Boston College Law School. On graduating law school, Ms. Goldbach joined the Massachusetts Defenders Committee as a public defender in 1978. After the creation of CPCS, she joined the staff of Roxbury Defenders in January, 1985, where she became a supervising attorney, and she was selected as Attorney in Charge of the Boston office in November, 1987. After running the Boston Trials Unit for 10 years, she became CPCS’ Director of Forensic Service in November of 1997. In that capacity, she acts as a resource on forensics issues and experts for public defenders and bar advocates across the state. Attorney Goldbach has been a guest lecturer and judge in mock trials in the Massachusetts law schools and a frequent lecturer, writer and moderator for Mass. Continuing Legal Education, CPCS and other CLE training programs. She has served on the Board of Directors of the Mass. Council for Public Justice. She serves on the board of the Thomas J. Drinan Memorial Fellowship Fund at Suffolk University Law School. In May, 2000, Ms. Goldbach received the Hon. David S. Nelson Public Interest Law Award from the Boston College Law School Alumni Association. She is a past president of MACDL, Massachusetts Association of Criminal Defense Lawyers and sits on MACDL’s board.

STEPHANIE ROBERTS HARTUNG

Professor of Legal Writing, Suffolk University Law School; J.D., Boston College Law School, 1994. After law school, Ms. Hartung clerked for the Alaska Superior Court in Fairbanks, AK. She subsequently worked as a public defender in Alameda County, CA. She has been at Suffolk University Law School since 2003, where she has taught Legal Practice Skills, Advanced Legal Writing, Criminal Appellate Practice, and an Innocence Project Seminar. She currently serves as a member of the Case Review Board of the New England Innocence Project. Her scholarship focuses on legal analysis and criminal procedure, with a particular emphasis on postconviction issues.

KAREN HURVITZ

J.D., Georgetown University Law Center, 1976; LL.M., Georgetown University Law Center, 1979. After graduating law school, Attorney Hurvitz worked in the anti-trust division of the Federal Trade Commission in Washington, D.C. Later, as an E. Barrett Prettyman fellow at Georgetown, she defended indigents charged with felonies in the District of Columbia Court and the Federal District Court of the District of Columbia, and taught classes to and supervised students in the Juvenile Justice Clinic. Since moving to Boston in 1979, she has combined an active criminal defense and general litigation practice with a clinical teaching career. She has taught evidence at Northeastern University Law School, supervised in and then became Director of the Suffolk University Voluntary Defenders Program, and was a Visiting Associate Clinical Professor at Boston University Law School.

DANIEL KANSTROOM

Professor of Law, Boston College Law School; J.D., Northeastern University School of Law, 1983; LL.M., Harvard Law School, 1992. At Boston College, Professor Kanstroom teaches Immigration and Refugee Law, International Human Rights Law, and Administrative Law. He is the Director of the International Human Rights Program, and the founder of the Post-Deportation Human Rights Project and the Immigration and Asylum clinic in which students represent indigent migrants and asylum-seekers. He is also an Associate Director of the Center for Human Rights and International Justice. Together with his students, he has provided counsel for hundreds of clients, won many immigration and asylum cases, and authored amicus briefs for the U.S. Supreme Court and other courts in immigration and human rights cases. Professor Kanstroom has published widely in the fields of immigration law and human rights law, including Deportation Nation: Outsiders in American History (Harvard University Press 2007) and Aftermath: Deportation Law and the New American Diaspora (Oxford University Press 2012).

WENDY J. KAPLAN

Clinical Associate Professor, Boston University School of Law; J.D., Boston College Law School, 1974. Following law school, Professor Kaplan was a public defender in Massachusetts. She joined the clinical faculty at Boston University School of Law in 1977 where she teaches criminal trial practice and supervises in the Student Defender Program. Professor Kaplan has also taught courses in sentencing theory and juvenile delinquency. She is a board member for the bar advocate program, Suffolk Lawyers for Justice, Inc. and serves on the Disproportionate Minority Contact subcommittee of the Juvenile Justice Advisory Committee. She has published articles in the Massachusetts Law Review and The Duke Forum for Law and Social Change.

TIMOTHY E. MAGUIRE

Attorney at law, Greenberg Traurig, LLP; J.D., Suffolk University Law School, 1995. Mr. Maguire is a former prosecutor for the Commonwealth, who has been in private practice for the past 13 years concentrating on criminal defense work and commercial litigation in both state and federal courts. He has tried numerous criminal and civil jury cases and prosecuted and defended numerous criminal and civil appeals at the state and federal level. Mr. Maguire has also authored material for both legal and nonlegal publications, including co-authoring the annual Massachusetts Criminal Law Sourcebook & Citator (MCLE).

LISA MARDIN

J.D. Boston University, 2011. Attorney Mardin works for the Committee for Public Counsel Services

PAT NEWCOMBE

Associate Dean for Library and Information Resources, Western New England University School of Law; J.D. Western New England University School of Law, 2001; M.S.L.I.S., Pratt Institute, 1984; M.A. George Washington University, 1982. After receiving her Masters in Library and Information Science, Ms. Newcombe worked as a private law firm librarian for Morrison & Foerster’s Washington, D.C. office. For the past 16 years she has been at Western New England University School of Law in a variety of library positions. She teaches “Advanced Legal Research” at the Law School, and is also an adjunct faculty member at the University of Rhode Island’s Graduate School of Library and Information Studies, where she teaches both “Law Librarianship” and “Information Policy.”She is a chapter contributor to the legal research treatise Fundamentals of Legal Research. Ms. Newcombe’s articles on librarianship have appeared in American Libraries, Library Journal, and Government Technology.

EVA S. NILSEN

Associate Clinical Professor Emeritus, Boston University School of Law; J.D., University of Virginia School of Law, 1977; LL.M., Georgetown University Law Center, 1980. After law school, Ms. Nilsen worked as a public defender in Virginia, Maryland, and the District of Columbia under the auspices of the E. Barrett Prettyman Program at Georgetown University. At Boston University School of Law from 1979-2011, she taught the Criminal Defense Clinic, as well as courses concerning drug policy, criminal trial advocacy, sentencing theory, and prisoners’ rights. Ms. Nilsen served on the boards of both the Committee for Public Counsel Services and Suffolk Lawyers for Justice, served on ABA and AALS committees on criminal justice and legal education, and helped draft the CPCS Performance Guidelines Governing Representation of Indigents in Criminal Cases. Her publications on criminal justice and drug policy have appeared in numerous journals and magazines including the Federal Sentencing Reporter, University of Chicago Law Review, Criminal Justice, Sentencing Advocacy, and The Nation.

JAMES R. PINGEON

Litigation Director, Prisoners Legal Services; J.D., Boston College Law School, 1983. Mr. Pingeon has represented prisoners in civil rights cases and other matters in state and federal courts for over 25 years.

RENEE Y. RASTORFER

Head, Research Services, Western New England University School of Law; J.D., Boston University School of Law; M.L.I.S., University of California/Los Angeles. Ms. Rastorfer has been a Law Librarian since receiving her M.L.I.S. in 2002. Before becoming a librarian, she practiced law in both Massachusetts and California, among other career pursuits which she will reveal if pressed.

DAVID ROSSMAN

Professor and Director of Clinical Programs in Criminal Law at the Boston University School of Law; J.D., Harvard Law School, 1971. Professor Rossman has been a defense attorney who has represented clients at every level of the state and federal court systems. He has also served as an Assistant District Attorney.

MICHAEL R. SCHNEIDER

Partner, Salsberg & Schneider; J.D., Columbia University Law School, 1983; MALD, Fletcher School, Tufts University, 1997. Michael Schneider is an experienced criminal defense attorney, concentrating in appeals, habeas corpus, and post-conviction litigation, in the state and federal courts, including cases involving national security, international law, and civil liberties issues. Michael also represents scientists and researchers accused of research misconduct as students accused of plagiarism and academic misconduct at area universities, law schools, and medical schools. Michael began his career working as a public defender in New York and at the Committee for Public Counsel Services, after which he worked as law associate to Alan Dershowitz. Attorney Schneider also served for ten years as Of Counsel to The Spangenberg Group, a consulting firm providing technical assistance to local, state, and foreign governments in the area of legal aid and indigent criminal defense delivery systems. Michael is currently an adjunct professor at Boston University Law School where he has been teaching a seminar on "Wrongful Convictions & the US Criminal Justice System." He serves on the Board of Directors of the American Civil Liberties Union of Massachusetts.

MICHAEL A. VITALI

Visiting Assistant Professor, Boston University School of Law, and Attorney at Law, Law Offices of Michael A. Vitali, Esq. Prior to his current work as a Visiting Professor and Supervising Attorney for Rule 3:03 students in the Criminal Clinical Program at BUSL, Attorney Vitali worked as a trial attorney at Pavlos & Vitali, a criminal defense practice in Eastern Massachusetts. In addition to his private practice, he served for seven years as a Supervising Attorney for Pilgrim Advocates, Inc., the Plymouth County Bar Advocate program. Previously, he worked for five years in the Committee for Public Counsel Superior Court Trial Units in Springfield and Brockton. He is a 1993 graduate of Dartmouth College and a 1998 graduate of Boston University School of Law. Atty. Vitali’s practice has been concentrated in criminal defense and litigation. He also teaches as an Adjunct Professor of Criminology at Stonehill College in Easton. He has participated in numerous continuing education programs for MCLE and CPCS and has chaired training seminars for MCLE, including “Crafting More Effective Motions to Suppress,” “Evidentiary Issues in the District Court,” and “Guns, Drugs & Money.” He also has created jury skills training programs and taught or lectured attorneys for CPCS, the Massachusetts Bar Association and numerous county bar advocate programs.

MASSACHUSETTS CRIMINAL PRACTICE

EDITORS OF PREVIOUS EDITIONS
Eric Blumenson
Frank R. Herman
Daniel Kanstroom
Stanley Z. Fisher
Brownlow Speer


CONTRIBUTORS TO PREVIOUS EDITIONS
John J. Barter
Janice Bassil
Deborah Beard-Bader
Nancy T. Bennett
Jay David Blitzman
Stephen J. Callahan
J.W. Carney, Jr.
Holly Anne Clarke
David Duncan
Jinanne S. J. Elder
Stanley Z. Fisher
Howard Friedman
Hon. Nancy Gertner
Phyllis Goldfarb
M. Yvonne Gonzalez
Kimberly Homan
Daniel Kanstroom
R. Marc Kantrowitz
Benjamin Keehn
David L. Kelston
Timothy E. Maguire
David McCord
Eva S. Nilsen
Peter M. Onek
Christopher Pierce
Mary Prosser
William W. Robinson
Lory D. Rosenberg
David Rossman
Evan Slavitt
James L. Sultan
Ellen K. Wade
Robert H. Weber
Milly Whatley


4th Ed.

PART I: PROCEEDINGS AND STRATEGIES IN DISTRICT COURT

  1. Trial or Probable-Cause Hearing: Determining the Role of the District Court [PDF]
  2. Probable-Cause Hearings [PDF]
  3. District Court Trials [PDF]

PART II: INITIATION OF CRIMINAL PROCEEDINGS

  4. Complaints and Indictments [PDF]
  5. Grand Jury Issues [PDF]
  6. Interstate Rendition and the Agreement on Detainers [PDF]

PART III: ARRAIGNMENT AND RELATED ISSUES

  7. Arraignment and Related Issues [PDF]
  8. The Right to Counsel [PDF]
  9. Pretrial Release, Bail, and Pretrial Detention [PDF]
10. Competency to Stand Trial [PDF]

PART IV: PREPARING THE CASE

11. Investigation and Interviewing; Directory of Sources [PDF]
12. Forensic Science and Expert Testimony [PDF]
13. Summoning Witnesses [PDF]

PART V: PRETRIAL PROCEEDINGS

14. The Pretrial Conference [PDF]
15. Pretrial Motions and Pretrial Hearings [PDF]
16. Discovery [PDF]
17. Search and Seizure [PDF]
18. Issues in Eyewitness Identification Cases [PDF]
19. Confessions [PDF]
20. Defects in the Complaint or Indictment [PDF]
21. Double Jeopardy [PDF]
22. Joinder and Severance [PDF]
23. Speedy Trial and Related Issues [PDF]
24. Selective or Vindictive Treatment [PDF]
25. Judicial Disqualification: The Motion to Recuse [PDF]
26. Motions Related to Prejudicial Publicity [PDF]
27. Motion for a Continuance [PDF]

PART VI: TRIAL PROCEEDINGS

28. Defendant’s Presence and Appearance at Trial / Security Restraints [PDF]
29. Record of the Proceedings [PDF]
30. Juror Examination and Selection [PDF]
31. The Opening Statement [PDF]
32. Examination of Witnesses [PDF]
33. Witness’s Privilege Against Self-Incrimination [PDF]
34. Trial Motions [PDF]
35. The Closing Argument [PDF]
36. The Jury: Contamination, Instructions, Deliberation, and Verdict [PDF]

PART VII: PLEAS, SENTENCES, & COLLATERAL CONSEQUENCES

37. Plea Bargaining and Guilty Pleas [PDF]
38. Directory of Sentencing Alternatives [PDF]
39. Dispositions and Sentencing Advocacy [PDF]
40. Imprisonment and Release from Custody [PDF]
41. Probation Revocation [PDF]
42. Immigration Consequences of Criminal Proceedings [PDF]
43. Civil Consequences of Criminal Cases [PDF]

PART VIII: APPELLATE AND POST-CONVICTION REMEDIES

44. Post-Conviction Remedies [PDF]
45. Appeals [PDF]

PART IX: SPECIAL ISSUES

46. Contempt [PDF]
47. Operating Under the Influence [PDF]
48. Cases Alleging Child Abuse [PDF]
49. Delinquency Proceedings [PDF]
50. Restraining Order Violations [PDF]

PART X: RESEARCHING MASSACHUSETTS CRIMINAL LAW

51. Guide to Researching Massachusetts Criminal Practice and Procedure [PDF]
52. Links to Court Rules [PDF]


Massachusetts Rules of Criminal Procedure
Massachusetts Rules of Appellate Procedure
Massachusetts Rules of Professional Conduct (Supreme Judicial Court Rule 3:07)
District/Municipal Courts Rules of Criminal Procedure
District Court Rules for Probation Violation Proceedings
Rules Governing Persons Authorized to Take Bail
Trial Court Rule XI: Uniform Rule for Probable Cause Determination for Persons Arrested without a Warrant
District Court Criminal Model Jury Instructions
Sentencing Guidelines
Massachusetts Guide to Evidence