Tuesday, December 20, 2011

Probate and Family Court Rules are Up

We've added the new Probate and Family Court Rules to our site. Here's what you'll find:

Friday, December 16, 2011

New Probate and Family Court Rules

With the effective date of the Massachusetts Uniform Probate Code (MUPC) just a few weeks away, the Probate and Family Court has issued the following court rules:


The rules are effective January 2, 2012, and will be added to our site in the next few days.

Thursday, December 15, 2011

Miranda Waivers

In Comm. v. Hoyt, decided today, the SJC determined that an invocation of Miranda rights was unequivocal in the following exchange:
EASON: "This right here states that you understood everything I just read to you. Having these rights in mind, do you wish to speak to us now?"
DEFENDANT: "I'd like an attorney present. I mean but I can't afford one. So I guess I'll just speak to you now. I don't have an attorney."
EASON: "Okay. If you want to speak to us later, that's fine as well. I mean but we're not, you know, we don't get you an attorney, we can let you use a phone book and stuff like that, but it's up to you."
DEFENDANT: "I'll just talk to you now."
EASON: "Okay."
STROUT: "Roy, I just want to make it clear. You want to talk to us now, and you don't want an attorney?"
DEFENDANT: "Uh, I'd have to wait here until an attorney came right?"
STROUT: "You can ... we can let you use the phone and the phone book to call an attorney. I can't tell you if they're gonna come here, I don't know what they would do."
DEFENDANT: "I'll just talk to you without an attorney." 
The court stated: "In these circumstances, the statement "I'd like an attorney present," in response to the question, "Do you wish to speak to us now?," was an unambiguous invocation of the defendant's right to counsel."

Further, "the defendant not only demonstrated a desire to invoke his right to appointed counsel, but also showed a clear ignorance of the meaning of that right. Any arguable ambiguity in the defendant's invocation was a product of this fundamental misunderstanding of his right to appointed counsel." Therefore, the waiver of the right to counsel could not have been voluntary or knowing.

Wednesday, December 14, 2011

Impoundment in Criminal Cases

In Globe Newspaper Co., Inc, Petitioner decided yesterday, the SJC clarified procedures for impoundment in criminal cases. This case involved the impoundment of an inquest report. MGL c. 38, § 10  makes specific provision for the impoundment of inquest transcripts, but is silent on inquest reports, and so the court provided guidance on the impoundment of inquest reports specifically, and also on impoundment in criminal cases in general, saying in part:

"We declare under the common law, however, a rule that an inquest report shall be impounded until the transcript presumptively becomes a public document under G.L. c. 38, § 10."
...
To give all interested parties an opportunity to respond before a report or transcript is no longer impounded, "we exercise our superintendence authority to require the extended impoundment of the inquest transcript and report for a period of ten calendar days after the filing of the required notice or certificate by a district attorney under § 10. At the conclusion of this ten-day period, the report or transcript shall be available for public inspection in the absence of an impoundment order or a judicial order pending adjudication of a motion to impound."
...
"In criminal cases, we have declared that the "[p]ractice regarding orders of impoundment entered in criminal proceedings should hew as closely as possible to the protocol established by the uniform rules," and require that appellate review of impoundment orders conform to the uniform rules... We conclude that in the future the practice regarding orders impounding or refusing to impound an inquest report or transcript should also "hew as closely as possible to the protocol established by the uniform rules [of Impoundment Procedure]," and that, as in the uniform rules, such orders may be appealed to a single justice of the Appeals Court."

Thursday, December 08, 2011

New and Revised 209A forms

The Mass. Trial Court has issued new and revised forms pursuant to MGL c.209A (Abuse Prevention) effective January 1, 2012. The page also links to Highlights of Revisions to G.L. c.209A Forms Effective January 1, 2012, which lists the changes in the old forms and details the five new forms.

Information on Juries

We've added two new pages: Law About Juries and Jury Service, and Law About Jury Selection. The first covers the right to a jury, jury service, and the conduct of a jury trial; the second, issues surrounding voir dire and other aspects of jury selection.

Tuesday, December 06, 2011

"First Complaint" Doctrine Modified

In Comm. v. Aviles, issued today, the SJC announced its intention to modify the first complaint doctrine.

"Until now, we have considered the first complaint doctrine to be an "evidentiary rule"...  The admission of evidence in violation of such evidentiary rule, that is, in violation of the established parameters of the first complaint doctrine, will always be deemed error. ... Where a defendant has objected to the admission of the evidence, an appellate court then will determine whether the error was prejudicial, ... and where a defendant has not raised an objection, an appellate court will determine whether the error created a substantial risk of a miscarriage of justice. ...
" ...Rather than considering the first complaint doctrine as an evidentiary "rule," it makes greater sense to view the doctrine as a body of governing principles to guide a trial judge on the admissibility of first complaint evidence. .... The judge who is evaluating the facts of a particular case is in the best position to determine the scope of admissible evidence, keeping in mind the underlying goals of the first complaint doctrine, our established first complaint jurisprudence, and our guidelines for admitting or excluding relevant evidence. ... Once a judge has carefully and thoroughly analyzed these considerations, and has decided that proposed first complaint evidence is admissible, an appellate court shall review that determination under an abuse of discretion standard.
"The modification we announce today in no way should be construed as a relaxation or erosion of our first complaint jurisprudence. ... The importance of maintaining a balance between the interests of a complainant (who still may be a child) "in having her credibility fairly judged on the specific facts of the case" and the interests of a defendant "in receiving a trial free from irrelevant and potentially prejudicial testimony" cannot be overstated. "