Recently in Criminal Constitutional Law Category

May 9, 2014

Sufficiently Advising a Client of Immigration Consequences Upon Change of Plea

In circumstances where criminal defendants, for whatever reason, elect to change their plea to guilty, the attorney must ensure that the client understands the full panoply of potential consequences that might result. One of the issues that must always be addressed before any change of plea is ensuring that the client, if he is not a citizen, understands the potential consequences of deportation of a conviction.

A conviction for many crimes may lead to deportation, removal from the country, or denial of re-entry, and it is the attorney's duty to inform the client if the offense for which he pleads guilty to would result in removal. Following certain amendments to the 1952 Immigration and Nationality Act, if a non-citizen commits a removable offense, his removal is essentially inevitable, with a few exceptions.

Where a client elects to plead guilty to those removal offenses, simply advising the client that he is "eligible for deportation" or that he would "face deportation" is not enough.

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April 15, 2014

Murder Defendant Denied New Trial Despite Prosecutor's Inconsistent Closing Arguments

The Massachusetts SJC unfortunately decided a case, in my opinion, the wrong way. In Commonwealth v. Kevin Keo, the Supreme Judicial Court considered whether the defendant, convicted of first-degree murder, was entitled to a new trial where his attorney failed to obtain a full transcript of a witness's testimony from a separate trial and where the prosecutor gave two inconsistent closing argument at the two trials as to who the shooter was.

At the defendant's murder, trial the prosecutor presented a theory of deliberate premeditation and he was convicted by a jury. HIs trial, however, came after the trial of his co-defendant, in which the prosecutor proceeded under the theory that the co-defendant was the shooter. In this case and in the subsequent trial, the prosecutor suggested that the defendant was the shooter - arguably inconsistent theories.

The Massachusetts Supreme Judicial Court, however, held that the defendant's due process rights were not violated because the Commonwealth proceeded on a theory of aiding and abetting - that he had or shared the intent required to commit the crime of murder. The SJC also pointed out that that, in both trials, the prosecutor stated in his closing argument that it didn't matter who shot the victim and the evidence was similar in each trial.

In a forceful dissent, however, the court stressed that in circumstances where different theories are presented at separate trials, juries should be informed "that the government at one time believed...that its proof established something different from what it currently claims."

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March 12, 2014

Mass. SJC Rules Probable Cause Required to Obtain Cell Site Location Information

In a recent decision in Commonwealth v. Shabazz Augustine, the Massachusetts Supreme Judicial Court ruled that prosecutors seeking access to a defendant's cellular site location information are first required to obtain a search warrant based on probable cause.

In recent years as the popularity of cell phone use has become so widespread, prosecutors have increasingly sought search warrants of a defendant's cell phone records from their cell providers. The information commonly sought not only included a defendant's call list, incoming and outgoing phone calls, text messages and pictures on the phone, but also cell site location information.

Cell site location information, or CSLI, is when a user's cell phone transmits signals to cell phone towers that 'ping' the coordinates of the person's mobile phone. The cell phone towers assist the cell phone in connecting to a call, and if the person moves closer to a different cell tower, the call is automatically transferred to that closer cell tower. By triangulating these pings, the user's cell site location information can reveal a specific geographic location of where the phone was on a particular date and time.

When seeking cell phone records, prosecutors would submit a request pursuant to U.S.C. section 2703, which authorizes production from a cell phone provider to disclose records for a particular subscriber. The problem the Massachusetts Supreme Judicial Court found was that the standard required under section 2703(d) is something "less than probable cause."

In its decision, the court confirmed that the cell site location information, i.e., tracking the location of an individual cell phone user, implicates privacy concerns. In other words, persons do have a reasonable expectation of privacy in their cell site location information and as such, the warrant requirement of Article 14 of the Massachusetts Declaration of Rights applies.

Tracking a person's movement, therefore, through cell phone records and cell site location information, is of the type of privacy interest that would require government to obtain a search warrant establishing probable cause justifying the issuance of the warrant.

So how does this case apply to those defendant's that had their cell site location information obtain prior to this decision?

The court, in announcing the new rule requiring prosecutors to obtain a warrant establishing probable cause in order to be provided with cell site location information, applies prospectively to cases in which a defendant's conviction is not final. In other words, a defendant whose case has not yet been finalized and/or is pending on direct appeal in which this issue was raised may take advantage of this decision. Unfortunately, for those cases where the defendant has exhausted his/her appellate rights, this decision does not help them.

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December 30, 2013

Federal Judge Says NSA Data Gathering Constitutional

A New York federal judge ruled that the United States government's phone gathering system is constitutional and a necessary measure to combat possible terrorist attacks against the country. The judge further ruled that Congress was within its rights to establish the system and that it does not violate any citizen's constitutional rights.

Notably, this New York decision is contrary to the rulings of a Washington D.C. judge who held earlier in December that the program is likely unconstitutional. Essentially, one judge found that the NSA program is successful in thwarting potential terrorist attacks before they come to fruition; while the other judge ruled that he was not convinced that the program was producing any results at all. Given the contrary rulings and expected appeals in both cases, the issue will likely find its way to the United States Supreme Court at some point.

The New York federal court judge based his decision on several points, including reliance on a 1979 U.S. Supreme Court ruling that held that individual telephone consumers do not have privacy rights in the data that the company retains regarding their use of service.

He also ruled that Congress has complete discretion to grant power to the government to conduct secret surveillance; and that there is violation of individual privacy rights in the program developed by the NSA. In so holding, he concluded that the telephone data collected by the NSA does not belong to the individual consumers, but to the telephone companies themselves.

Obviously, there is still tremendous debate about the constitutional and privacy issues surrounding the NSA data gathering program. What is clear, however, is that there is no definitive legal authority on whether the program is constitutional or not. Until the issue reaches the United States Supreme Judicial Court, each jurisdiction will be deciding the issues inconsistently.

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December 11, 2013

Issues Following Arrest: Exercising Your Right to an Attorney and To Remain Silent

The Massachusetts Declaration of Rights and the United States Constitution afford every citizen with certain fundamental rights, including the right to remain silent and assert one's privilege against self-incrimination. Just about everyone has heard of that right, but believe it or not, many people charged with a crime either don't exercise it, or don't properly assert.

The United States Constitution states that "no person shall be compelled in any criminal case to be a witness against himself." Accordingly, every person subjected to a custodial interrogation must be warned that he (1) has a right to remain silent; (2) any statement he makes can be used as evidence against him; (3) that he has a right to consult with an attorney and that if he cannot afford one one will be appointed; and (4) that if he does choose to speak, that he has a right to stop questioning at any time. Once these warnings are provided, a defendant's subsequent statements are only admissible as evidence against him at trial if the government shows, by proof beyond a reasonable doubt, that the defendant gave a knowing, voluntary and intelligent waiver of those rights.

Against this backdrop, it's not enough to just tell the police that you "might" want to speak with a lawyer or are "considering" consulting with an attorney. Police are only required to stop questioning upon a clear and unambiguous request for counsel. In other words, the invocation of the right to an attorney must be sufficiently clear that the police officer understands the statement to be a request for a lawyer.

Yes, it may appear all too simple to simply say "No more questions, I would like to speak to a lawyer at this time" or words to that effect, but all too often that is not case. Whether because of duress of the circumstances and being under interrogation; the person's lack of knowledge or experience in the justice system or mere ignorance, it is all too common to see people who did really want to consult with a lawyer but unfortunately didn't properly assert their request so that the police stopped questioning them.

In fact, the Massachusetts Supreme Judicial Court has considered a wide variety of circumstances where the person's request for an attorney was too "ambiguous", thereby ruling that the request to stop questioning was sufficient. For example, the statement to police "I might need a lawyer and want to talk with him before talking to you" was held not to be a proper invocation of the right to counsel.

Accordingly, persons who find themselves in police custody and subject to an interrogation should unambiguously and clearly invoke their right to counsel and to remain silent by stating "I do not want to answer any questions until I first speak with a lawyer."

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July 15, 2013

Can a Defendant's Pre-Arrest Silence Be Evidence of Consciousness of Guilt?

In the case of Salinas v. Texas, the United States Supreme Judicial Court recently considered the question of whether a defendant's pre-arrest silence, prior to being placed in custody or receiving Miranda warnings, can be used against him in a subsequent criminal prosecution as evidence of consciousness of guilt.

In this case, prior to being taken into custody, the defendant voluntarily answered some questions from police about a murder. After answering several questions, the defendant remained silent when he was asked whether any ballistic evidence testing would yield matches between his shotgun and the shell casings found at the crime scene. Rather than answer, the defendant remained silent, shuffled his feet, and bit his lip.

After being silent for several moment, he then continued answering other questions from the police.

At trial for murder, the prosecution introduce evidence of the defendant's silence as evidence of consciousness of guilt.

The United States Supreme Judicial Court held that, in circumstances of pre-arrest and where a person has voluntarily chose to speak with police, merely being silent does not automatically assert your 5th Amendment Rights. Rather, the person being questions must expressly invoke the 5th Amendment Protection, i.e., right to remain silent, otherwise it is not invoked and prosecutors may then use that silence against the person at trial.

The court wrote:

"A witness's constitutional right to refuse to answer questions depends on his reasons for doing so and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim..."

In this regard, the U.S. Supreme Court rejected the argument that a person's silence should be understood as a Fifth Amendment plea because most people do not know the law.

The Massachusetts Declaration of Rights, however, offers greater protection to criminal defendants. In similar circumstances, the Massachusetts Supreme Judicial Court has previously suggested that a defendant's pre-arrest silence should not be used as evidence of consciousness of guilt.

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July 11, 2013

Can Police in Massachusetts Take a Person's DNA After Arrest?

In a recent case involving a constitutional challenge to seizing a person's DNA without his consent, the United States Supreme Judicial Court, in Maryland v. King, considered whether it is a constitutional violation for police officers to take a defendant's DNA as part of the normal booking procedure following an arrest. This was authorized by a statute enacted in Maryland.

In that case, the defendant was arrested on assault charges. During the booking process, officers used a cheek swab to take a DNA sample from the defendant. The swab was ultimately matched to an unsolved 2003 rape, and the defendant was charged with that crime as well.

The defendant moved to suppress the taken of his DNA without his consent or without a court order, and the case eventually made its way to the United States Supreme Court, which held that:

When police make an arrest supported by probable cause for a serious offense and the suspect is detained at the police station, it is reasonable under the 4th Amendment of the United States Constitution to take and analyze that persons DNA. This, the court held, is a legitimate booking procedure, much like taking a person's fingerprints or photographing the defendant.

Incredulously, the United States Supreme Court majority held that a buccal swab for the taking of DNA evidence is a relatively slight intrusion on the privacy interests of a person; while also ensuring the government's interest in accurate identifying those persons arrested.

Notably, Justice Scalia ripped the decision in his dissent, inferring that the real reason the police take a person's DNA is not to identify them, but to solve crimes.

Despite the Supreme Court's rulings, the Massachusetts Declaration of Rights generally affords greater constitutional and privacy protection for its citizens. With respect to the taking of DNA evidence, no Massachusetts statute permits police officers to routinely take a person's DNA as part of the booking process.

Rather, the taking of a person's DNA without his consent may only be compelled by court order or upon conviction by statute. Massachusetts General Laws Chapter 22E, Section 3, mandates that any person convicted of a felony must submit their DNA to be included into the state's database.

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July 3, 2013

Speedy Trial Issues in Massachusetts Criminal Cases

The Massachusetts Rules of Criminal Procedure establish time limitations as to when a criminal defendant is charged and to be brought to trial, and these protections are guaranteed in the United States Constitution and the Massachusetts Declaration of Rights.

But in many criminal cases, there are a variety of delays that often occur. Delays can result from simple discovery or evidentiary issues; witness issues; or in some cases, neglect.

By way of background, defendants are protected from potential criminal charges through the Statute of Limitations or where the initiation of criminal charges are delayed. By statute. Massachusetts General Laws Chapter 277, Section 63, many felonies must be charged within 10 or 15 years from the date of the commission of the alleged crime. The exception is murder, however, for which there is no statute of limitation. By contrast, most misdemeanor offenses must be charged within 6 years from the alleged commission of the crime.

Generally (with some exceptions and variations), the statute of limitations begins to toll (starts running) upon the completion of every element of the criminal offense.

Against this backdrop, a defendant's speedy trial rights, more specifically defined in Rule 36 of the Massachusetts Rules of Criminal Procedure, establish time limits for when a case should proceed to trial. Because criminal cases can vary in complexity, there are different time limits for cases that are non-complex (drug cases); somewhat complex (cases that might involve forensic evidence or unique evidentiary issues; and complex (murder, rape, etc.).

Rule 36 essentially mandates that all criminal defendants are guaranteed a trial within 12 months from arraignment. If the 12 months period expires without a trial, a defendant may petition the court to have the charges dismissed, which would bar prosecution for this offense.

However, simply because a criminal case went beyond the 12 month period without a trial does not guarantee that the case will be dismissed. The government may rebut the motion to dismiss by offering evidence that certain delays in the case were excusable.

Excusable delays or "excluded periods" of time can arise from any circumstances that was not the result of the conduct of the prosecution; or where those delays benefited the defendant or he agreed to such delays. A delay benefitting the defendant and that would thereby be 'excluded' from the computation for purposes of speedy trial issues include: unavailability of a witness or even the defendant; competence to stand trial; continuances that were granted by the court that were at the request of the defendant or upon the court's own motion; and some other extraordinary circumstances.

So when does the clock start ticking for purposes of speedy trial issues?

Under Article 11 of the Massachusetts Declaration of Rights, the clock starts ticking when a criminal complaint issues against the defendant.

Courts scrutinize speedy trial violations very carefully and, more often in not, the calculations do not benefit the defendant, particularly when the "excluded time period" is calculated. Nonetheless, extraordinary circumstances do present themselves in some cases.

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March 16, 2013

Massachusetts Law on Improper Storage of a Firearm and the Second Amendment

The Massachusetts Supreme Judicial Court recently decided a case involving a challenge to the constitutionality of a statute that criminalizes the Improper Storage of a Firearm.

G.L. c. 140, section 131L(a), which criminalizes the improper storage of a firearm that is not within the immediate control of the owner. By law, a firearm that is not within the immediate control of its owner must either be kept in a locked container equipped with a trigger lock.

In the case of Commonwealth v. John McGowan, the defendant was a licensed to carry firearms. He kept the firearm, however, loaded in his bedside table.

One evening, he got into an argument with his roommate, who took the firearm and tossed it outside in the bushes. The defendant called 911 and when police responded, they found the gun in the bushes. He was later charged with Improper Storage of a Firearm.

The defendant moved to dismiss the charges on the basis that the statute was unconstitutional as a result of the United States Supreme Court's decisions in District of Columbia v. Heller and McDonald v. Chicago.

The United States Supreme Court in Heller held that the Second Amendment to the United States Constitution protects the right of citizens to possess a handgun in the home for the purpose of self-defense. In so doing, the court ruled that the District of Columbia's ban on handguns was unconstitutional.

In McDonald v. Chicago, the United States Supreme Court held that the Second Amendment right, as explained in Heller, was incorporated into the Fourteenth Amendment and was therefore applicable to the states.

In a previous case of Commonwealth v. Runyan, the Massachusetts Supreme Judicial Court held that although a complete ban on the possession of all firearms would not be constitutional, Massachusetts is legitimately able to limit that right by requiring that all firearms that are not in the immediate possession or control of the owner or user be properly stored.

The question then became, does requiring that a firearm within the home be properly stored or locked infringe upon a citizens' constitutional right of self-defense?

The Massachusetts Supreme Judicial Court said no. Although a person's right to exercise self-defense might be delayed as a result of having the firearm in a locked container or equipped with a trigger lock, the requirement, whose purpose is to prevent accidents, does not invalidate the storage requirements.

The court explained that because the requirement that a firearm not within the immediate control of the owner/user be locked or equipped with a trigger lock is designed to prevent unauthorized access to the firearm, the statute is consistent with the right to bear arms of the Second Amendment in self-defense in one's home.

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October 15, 2011

Massachusetts Supreme Court Rules on Admission of 911 Call Where Caller Doesn't Testify at Trial

The Massachusetts Supreme Judicial Court recently considered whether the admission of a 911 call at trial was proper where the caller did not testify at trial, and whether admitting the call violated that defendant's constitution right of confrontation.

In this case, the defendant was charged with two counts of Assault & Battery, and prior to trial, moved to preclude the prosecutor from admitting the 911 call, in which the caller identified his as the perpetrator, and alleging that he had just beaten her.

By way of background, in the case of Crawford v. Washington, the United States Supreme Court ruled that the Confrontation Clause of the Sixth Amendment barred the admission of statements of witness who did not appear at trial [unless they were unavailable to testify and where the defendant had had a previous opportunity to cross-examine them].

However, in Davis v. Washington, the United States Supreme Court, defining what constitutes a 'testimonial statement', ruled that statements are not testimonial if they were made under circumstances to enable police assistance to an ongoing emergency. In contrast, statements are testimonial when their primary purpose is to establish or prove events relevant to a criminal prosecution.

In this case, the Massachusetts Supreme Judicial Court ruled that the 911 caller's statements were made in the course of an 'ongoing emergency', and that therefore her statements was non-testimonial in nature; and not, in other words, under circumstances to prove the facts for a criminal prosecution.

The prosecutor, therefore, was permitted to introduce the 911 call, even though the caller did not testify at trial, and according to the Massachusetts Supreme Judicial Court, this did not violate the defendant's constitutional Right of Confrontation under the Sixth Amendment.

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August 15, 2011

Massachusetts Sex Offenders Get Favorable Court Ruling

The Massachusetts Supreme Judicial Court recently decided the case of John Doe vs. Police Commissioner of Boston, ruling on the issue of whether a 2006 state law barring sex offenders from living in nursing homes or similar long term care facilities was constitutional. The Court ruled that it was not.

By way of background, the 2006 law passed by the Massachusetts state legislature barred Level 3 Sex Offenders from living in nursing homes, infirmaries or other homes for the elderly or developmentally disabled. Sex offenders who lived in such facilities in violation of the law were then punished with imprisonment, ranging from 30 days up to 5 years for subsequent violations.

In this case, "John Doe" had been previously convicted of Massachusetts Sex Crimes, and the Sex Offender Registry Board argued that, even at his age of 65, his criminal history and suggested a "high risk of re-offense and high degree of danger."

In the case of John Doe vs. Police Commissioner of Boston, the plaintiff in that case was a Level 3 Sex Offender who, had he been deprived the opportunity to reside in a nursing home or similar facility, would have ended up homeless.

In declaring this law unconstitutional, the Massachusetts Supreme Court reasoned that the law "presumes that all members of a class of sex offenders are dangerous to every community of rest home residents...[and] affords no opportunity for [the sex offender] to demonstrate that he represents no or a minimal danger to the community the law is intended to protect and makes no provision for the necessary balancing of the plaintiffs interest in protecting vulnerable elders from sexual assault."

Now, the Massachusetts Supreme Court has ruled, sex offenders should be provided a hearing to rebut the presumption that he/she poses no or minimal risk to the community; and if denied the opportunity to reside in such a permanent facility, whether the person will likely become homeless and expose himself to harm.

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January 26, 2011

Massachusetts Supreme Court Rules Simply Putting Key In Ignition Enough for DUI / Drunk Driving

In the recent case of Commonwealth v. Robert McGillivary, the Massachusetts Supreme Court addressed the legal issue as to whether an intoxicated driver, who only puts the key in the vehicle's ignition without turning the car on, can be found guilty of Drunk Driving in Massachusetts.

By way of background, Robert McGillivary was convicted after trial of Operating Under the Influence of Alcohol. At trial, the evidence presented by the prosecutor was simply that he was found in the passenger's seat of the car and had turned the ignition key once to activate the car's power - but not further to turn the car on. At some point, the defendant testified that he had moved from the passenger seat to the driver's seat, but did not recall ever putting the keys in the ignition. He ultimately found by the police slumped over the steering wheel. At his trial, there was absolutely no evidence that he actually drove the car at all.

McGillivary was convicted after trial and he appealed his conviction arguing that simply turning the car's power on was not "operation" for purposes of the crime of Operating Under the Influence of Alcohol or Drugs.

The Massachusetts Supreme Court, however, said that it was...

In reaching its decision, the court relied on previous Massachusetts caselaw that defined "operation" as anytime a person intentionally does an act or makes use of any mechanical or electrical agency which alone or in sequence sets in motion the motive power of that vehicle.

In following that definition, the court explained that turning the key in the ignition to the "on" position could therefore constitute a part of a sequence that would set the vehicle's engine in motion, thereby constituting "operation."

In my reading of this opinion, there is still an argument to be made that simply putting the keys in the ignition, without turning or activating the electrical power, does not constitute "operation" for purposes of Massachusetts Drunk Driving Laws.

The lesson learned here then, ladies and gentlemen, is that if you are in any way intoxicated and pass out in the car, make sure the keys are not in the ignition...

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May 29, 2010

Massachusetts Supreme Court Rules Police Need 'Reasonable Suspicion' to Conduct Pat Frisks

In reversing the Gun Crimes convictions of two men, the Massachusetts Supreme Judicial Court ruled that police officers can no longer frisk someone during a routine encounter unless they have 'reasonable suspicion' to believe the person is involved in criminal activity and is armed and dangerous.

In the case of Commonwealth v. Jamal Martin, that defendant had been convicted of Carrying a Firearm Without a License, Carrying a Loaded Firearm, and Assault & Battery on a Police Officer. The incident occurred on October 8, 2006, when, at 10:30 a.m., Boston Police Officers were patrolling a 'high crime area' in which 'numerous shootings' had occurred and looking for a specific juvenile to execute an arrest warrant. During their patrol, they observed a young man wearing a sweatshirt with the hood up around his face and walking in the opposite direction from which the police were traveling. Although the police could not see his face, they 'thought' that this person might have an outstanding default warrant...[how does that make sense when they couldn't see his face?]

The police turned their cruiser around and engaged the young man, a teenager, in conversation. Although the police quickly realized this young man was not the person they were looking for, and simply because the young man refused to continue to speak with the police, they proceeded to ask him if he had any weapons. Despite that Martin responded that he did not, the police nonetheless continued to frisk them "for their safety." The frisk revealed a loaded gun.

In reversing Martin's conviction, the Massachusetts Supreme Judicial Court held that when an individual is stopped and searched, the police conduct must satisfy two conditions.

  1. The investigatory stop must be lawful. In a street encounter, that requirement is met with the police officer reasonably suspects that the person apprehended is committing or has committed a crime.

  2. To then engage the person in a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.

The police can't just go up to people, without legitimate reason, and just detain and search them...In my opinion, the Massachusetts Supreme Court's recent decision serves as a message to law enforcement officers to pull the reigns a bit on questionable police practices.

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April 8, 2010

2nd Amendment Gun Laws Upheld by District Court

United States District Court Judge Ricardo M. Urbinia, in the Federal District Court of Columbia, recently applied the Supreme Court's decision in District of Columbia v. Heller which created a constitutional right to have a gun.

In Heller, the United States Supreme Court rejected a government's ban on handguns along with a separate requirement that guns in someones home be kept locked or disassembled. The Heller case marked the first time the U.S. Supreme Court interpreted the Second Amendment as guaranteeing the right to have a firearm. The Supreme Court stated that "[a] ban on handgun possession in the home violate[d] the Second Amendment, as its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense."

The Supreme Court did go on to say, however, that some form of gun control or regulation could still be valid despite the Second Amendment Right to Bear Arms.

The District of Columbia's new gun laws, which were upheld by Judge Urbina in light of the Heller ruling consist of:

  1. All guns must be registered.

  2. An assault weapons ban.

  3. A ban of large capacity magazines.

In Massachusetts, Gun Control Licenses vary, depending on the city in which you apply. Generally, to apply for either a Class A or Class B Firearms Identification Card, you must submit a written application; show proof of having attended a Firearms Safety Course confirming your having been educated with the proper use and safety of firearms; and submit to a 'test' by the local police department demonstrating your use of a firearm.

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April 5, 2010

Court Documents Admitted in Drunk Driving Trial Not Violative of Sixth Amendment's Right to Confrontation

If you have been following this blog, you have seen several recent posts about criminal convictions being reversed as a result of the Melendez-Diaz and Crawford decisions. These decisions have dramatically changed the landscape of permissible 'testimonial' evidence against a defendant at trial, but the scope of these decisions is limited.

In the recent case of Commonwealth v. Dale McMullin, the Massachusetts Supreme Judicial Court pulled the reigns, so to speak, on the scope of Melendez-Diaz. The criminal defendant in this case was charged with several drunk driving related offenses, including Operating of a Motor Vehicle While Under the Influence of Liquor, Fourth Offense (M.G.L. c. 90, section 24(1)(a)(1); Operating After Suspension, Second Offense (M.G.L. c. 90, section 23); and Failure to Stop for a Police Officer (M.G.L. c. 90, section 25). After his criminal conviction, the defendant appealed challenging the admissibility, competency and sufficiency of the public records used to establish his prior convictions.

Although the defendant acknowledged that the admissibility of Registry of Motor Vehicle records was permitted by Commonwealth v. Maloney, he argued that the Maloney decision was based on the Confrontation Clause analysis in Commonwealth v. Verde, which was later overturned by Melendez-Diaz.

In rejecting the defendant's argument, the Massachusetts Supreme Court explained that Melendez-Diaz explicitly acknowledged that a clerk's affidavit authenticating an official record is not 'testimonial' for purposes of the Confrontation Clause. Rather, business and public records are generally admissible and not confrontational because they have been created for the administration of an entity's affairs and not for the purposes of proving some fact at trial.

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