Voir dire, or what to ask?

 When going to trial, a lawyer needs to know who is sitting on the jury. Ask the right questions and you may get a sympathetic jury. Ask the wrong ones, and you miss the fact that one of the jurors has a close relative who is a doctor, and you represent an injured patient. Or belongs to a church that disapproves of alcohol, and your client is facing an OUI charge. This is where voir dire comes into play. 

There are many good books on this subject, and the James Publishing Company has just released a new one, “Pattern voir dire questions” . Written by Susan Broome, Ph.D., it contains the how and why of conducting voir dire, as well as sample questions. This title is available for check-out or interlibrary loan. Just contact your local Trial Court Law Library, or use the online catalog to request a copy.

Mass. Mental health records and FBI background checks

You may have read various reports lately that Massachusetts law prohibits the sharing of mental health records with the FBI for purposes of background checks, in the National Instant Criminal Background Check System or NICS. The Globe has a review of the situation in Massachusetts here. While the state has had mental health laws since 1895, it wasn't until 1970 that we added a provision protecting the records of those with a mental illness. (1970 ch. 888) Governor Patrick has introduced legislation to require participation in the NICS database. A review of the history of disclosure by states is posted here. More information about gun licenses is available at our Law about Guns and other Weapons page. We also have a page on the Law of Mental Health.

SJC Upholds Gun Storage Law

In Comm. v. McGowan, decided yesterday, the Mass. Supreme Judicial Court ruled that the state's gun storage law, MGL c.140, § 131L(a) does not violate the Second Amendment. The court said, in part:

"We hold that, because § 131L is consistent with the right to bear arms in self-defense in one's home and is designed to prevent those who are not licensed to possess or carry firearms from gaining access to firearms, it falls outside the scope of the Second Amendment. As a result, it is subject only to rational basis analysis, which it easily survives. Therefore, we conclude that § 131L (a ) is constitutional under the Supreme Court's holdings and analysis in Heller and McDonald, and that Massachusetts may enforce § 131L (a ) to protect the health, safety, and welfare of its citizens."

More information on weapons in Massachusetts is available at Law About Weapons. More on the McGowan case is available from the Boston Globe.

Drug overdose _no criminal charge if one goes to hospital

Effective August 2, 2012, the law in Massachusetts reads:

Massachusetts General Law ch. 94C, § 34A (2012)
§ 34A. Controlled Substances -- Drug-Related Overdose.

(a) A person who, in good faith, seeks medical assistance for someone experiencing a drug related overdose shall not be charged or prosecuted for possession of a controlled substance under sections 34 or 35 if the evidence for the charge of possession of a controlled substance was gained as a result of the seeking of medical assistance.

(b) A person who experiences a drug-related overdose and is in need of medical assistance and, in good faith, seeks such medical assistance, or is the subject of such a good faith request for medical assistance, shall not be charged or prosecuted for possession of a controlled substance under said sections 34 or 35 if the evidence for the charge of possession of a controlled substance was gained as a result of the overdose and the need for medical assistance.

(c) The act of seeking medical assistance for someone who is experiencing a drug-related overdose may be used as a mitigating factor in a criminal prosecution under the Controlled Substance Act, 1970 P.L. 91-513, 21 U.S.C section 801, et seq. 

(d) Nothing contained in this section shall prevent anyone from being charged with trafficking, distribution or possession of a controlled substance with intent to distribute.

(e) A person acting in good faith may receive a naloxone prescription, possess naloxone and administer naloxone to an individual appearing to experience an opiate-related overdose.

(See Acts of 2012, chapter 192, section 32)

MUTC Advisory and Updated Trust Forms

The Mass. Probate and Family Court Department issued a Procedural Advisory on Trust Matters along with new and revised trust forms on January 24, 2013.  This document provides a summary of the general procedural changes as a result of the enactment of the MUTC, St. 2012, c. 140, sec. 56, effective July 8, 2012.  "Chapter 140 amended various sections of G.L. c. 190B, the Massachsuetts Uniform Probate Code ("MUPC") and incorporated the MUTC as Chapter 203E of the General Laws."  According to the Press Release, the following forms have been added or changed:

"The following new trust forms have been created:Pp

• MPC 275- Statement of Confirmation of a Testamentary Trustee
• MPC 351- General Trust Petition for Appointment of Guardian ad Litem
• MPC 777- Decree and Order on General Trust Petition Appointing Guardian ad Litem
• MPC 266- Petition for Registration/Removal/Appointment of a Successor Trustee
• MPC 782- Decree and Order on Petition for Resignation/Removal/Appointment of a Successor Trustee 
• MPC 267- Petition to Terminate a Trust
• MPC 783- Decree and Order to Terminate a Trust"

"The following trust forms have been revised:

• MPC 201- General Trust Petition
• MPC 857- Petition for Allowance of Account
• MPC 791- Decree and Order of Allowance of Account
• MPC 295- Petition to Modify Bond
• MPC 776- Decree and Order to Modify Bond"

"The following trust forms have been deleted and replaced by form MPC 275- Statement of Confirmation of Testamentary Trustee:

• MPC 275- Petition for Appointment of Testamentary Trustee
• MPC 781- Decree and Order on Petition for Appointment of Testamentary Trustee"

The new and revised forms are included on the Court's main MUPC Forms Page.  More information about the MUTC and MUPC can be found at our Mass. Law About Trusts and Mass. Law About Wills and Estates.

Law Journal Articles with TCLL Borrower's Card

Link to HeinOnline and use your Trial Court Law Library (TCLL) borrower card number to access 1,200 law review articles, the Federal Register from 1936, as well as treaties, statutes-at-large, and US Supreme Court decisions.  If you don't have a card, visit one of the Commonwealth's 17 free public law libraries to fill out an application.  Remember to bring photo ID.  For the hours and locations of these 17 free public law libraries, link to http://www.lawlib.state.ma.us/libraries/index.html

Thinking about divorcing?

Even a no-fault divoce is not a simple process.  Before going to court, learn about Massachusetts divorce basics on our webpage "Law about Divorce."   There are links to forms and instructions, as well as court procedures and rules.  The "Best Bet" is an entire online book written for non-lawyers about divorce, child custody, alimony and other related issues.   All you need is a computer and internet access.

FY2014 State Budget Proposal

On Wednesday, January 23, 2013, Governor Deval Patrick submitted his Fiscal Year 2014 budget proposal to the House of Representatives. The final budget (after it is enacted by the Legislature and approved by the Governor) will take effect on July 1, 2013 and run through June 30, 2014.  The full text is available at www.mass.gov/budget/governor.   For an overview on how the budget moves from a proposed document to law? Read a summary of the budget process provided by http://www.mass.gov/

Check out the Atlas of Historical County Boundaries!

The homepage of the Atlas of Historical County Boundaries has (at the bottom right hand corner) animated the historical development of county, state and territorial boundary lines!

You can select Massachusetts (or any state), and will have use of all these features for each state:
- Interactive map allows you to select a date & view county boundaries on that date (Mass begins w/ 1629).
- The Consolidated Chronology lists everything that has happened to all Mass. county boundaries from 1606 to 1947.
- Individual County Chronologies groups events from each county's boundary history from the Consolidated Chronology.
- Bibliography of sources lists the primary and secondary sources found useful in the historical research of territorial, state, and county boundaries.

And there are other features available to explore on the website.

Publicly accessible estate and administration cases now available electronically

The Probate and Family Court has announced new access to their records through eAccess. Only those cases that are publicly available, and were created in, or coverted to, electronic format will be available.

Tax time

Don't forget to mail your 2012 1099 and W-2 statements to your contractors and employees by January 31, 2013. To order official IRS forms, call 1-800-TAX-FORM (1-800-829-3676) or you can order online. You may file Forms W-2 and W-3 electronically on the Social Security Administration's website . If you are getting ready to file your own taxes, you might find some tips in Deduct It or Easy Ways to Lower Your Taxes. Don't forget to check out the U.S. Master Tax Guide and Bender's Tax Return Manual while you're at it.

Service Animals and Twinkie the Pig

Under the Americans with Disabilities Act (ADA) and Massachusetts General Law c. 272, § 98A, businesses that serve the public are prohibited from discriminating against individuals with disabilities. In Massachusetts discrimination by a business against persons with disabilities is also a violation of the Massachusetts Consumer Protection Act, G.L. c. 93A. Other laws, including fair housing and employment discrimination laws, allow animals other than dogs, miniature horses, and animals that do not have training, such as “emotional support animals” if it is a reasonable accommodation for a disability. What about miniature pigs? According to ABC News, city officials in Coral Springs, Florida were recently asked that very question. The owner of a mini Juliana pig named Twinkie was initially denied an exemption from the city's ordinance prohibiting the keeping of pigs. Twinkie had been doctor recommended as an emotional therapy pet for the owner's disabled son. Many months later, and after requiring family medical documentation, city officials relented and granted Twinkie's waiver. For more information visit our webpage Massachusetts Law About Service Animals.

Martin Luther King, Jr. and holidays

Massachusetts passed it's MLK, Jr. holiday law in March of 1971, as Chapter 6 section 15S of the general laws. The act was Chapter 69 of the Acts and resolves of 1971. While it states that the governor shall proclaim the 15th of January to honor the man, we can find the first record of an executive order on January 8th, 1991 by Governor Weld. The holiday for the memory and work of Martin Luther King Jr. became a federal holiday in 1983, and was first observed in 1986. It wasn't until 2000 when all 50 states recognized the holiday. The list of state holidays and what work can be performed has been compiled by the state Dept. of Labor and Workforce Development here.

Can you carpool with a corporation?

Of course, the bigger question is whether or not a corporation is a person. One could ask the United States Supreme Court (oops, that has already been done, and even the justices could not agree). Or, one could do what most Americans do when a librarian is not available:  ask an "expert".  All in all the question has proven perplexing to many.

However, theSuperior Court in Marin County, California http://www.loweringthebar.net/2013/01/no-you-cant-carpool.html did not have a problem in upholding a citation given to Jonathan Frieman for driving in the car pool lane with only a set of "corporate papers" beside him. For the purposes of section 21655.5 of the California Vehicle Code, a corporation was found not to be a person.

The Massachusetts Department of Transportation has posted information, including frequently asked questions, concerning the Massachusetts Highway High Occupancy Vehicle Program on their website. To date, it appears that no one has asked about corporate riders.

Unemployment Overpayment - What to do?

If you have been overpaid by the Division of Unemployment Assistance, you can apply for a Waiver of Overpayment, as long as no fraud has been committed.  According to Massachusetts General Law chapter 151A section 69(c), you may not be required to repay the money. MassLegalHelp has a great page that will guide you through the process. MassLegalServices has a great explanation of unemployment overpayment. Also, take a look at our Law About Unemployment page.

Live Webcast commemorating Gideon v. Wainwright

The American Bar Association is commemorating the 50th anniversary of Gideon v. Wainwright with a live webcast on Friday, January 18, 2013 from 10:30am to 12:00pm EST.  "This decision recognized a constitutional right to the appointment of counsel for indigent criminal defendants charged with felonies. Mr. Gideon was in prison when he submitted his handwritten petition to the U.S. Supreme Court requesting counsel."

New Consumer Financial Protection Bureau Regulations Strenthen Mortgage Consumer Protection Safeguards

The Ability to Pay determination and the definition of Qualified Mortgages will be tightened as of January 10, 2014. Lenders will be required to use more stringent underwriting standards in assessing whether a borrower can actually repay a consumer transaction secured by a dwelling. The definition of a Qualified Mortgage has also been changed to protect consumers from liability for loans containing balloon payments, interest only payments and terms over 30 years, among other provisions. The Consumer Financial Protection Bureau amended Regulation Z of the Truth in Lending Act in order to implement sections of the Dodd-Frank Wall Street Reform and Consumer Protection Act. For more information about mortgages see our page: Massachusetts Law About Mortgage Brokers and Lenders.

Two new Massachusetts Practice Guides from LexisNexis

Lexis Nexis has recently published two new books as part of their Practice Guide Series.  The first, Massachusetts e-Discovery and Evidence, ..."is the source for in-depth practical guidance on conducting discovery of electronically stored information and successfully using that electronic evidence in federal or state court litigation in Massachusetts in light of the Proposed Amendments to the Massachusetts Rules of Civil Procedure Dealing with eDiscovery."  The second, Massachusetts Pretrial Practice, contains checklists, practice tips, and  forms and covers jurisdiction and venue, preliminary relief, complaints and responsive pleadings, cross claims and interpleader, discovery, summary judgments, and interlocutory relief. 

Massachusetts background check law expanded for school employees, child care workers, adoptive and foster parents

Governor Patrick signed H4307  into law on January 10, 2013 to help protect children.  Under the new law, public and private school teachers, child care workers, school bus drivers, or persons seeking to adopt or become foster parents are required to submit fingerprints for a national background check.  Under the previous law, fingerprints were not required and only a Massachusetts Criminal Offender Record Information check was done.  All newly hired teachers, bus drivers and other school employees who may have direct unsupervised contact with children are required to undergo the national background check before the start of the 2013-2014 school year.  All current employees must undergo the background check prior to the start of the 2016-2017 school year.  See also our law about page on criminal records.

Refund of sales tax on returned merchandise?

This summary of a 2009 post on the Dept. of Revenue's own blog is particularly relevant in the post-holiday season. 

“The law is pretty straightforward: Retailers must refund the sales tax within 90 days of purchase of the item, as long as the consumer has the sales receipt or the retailer is able to verify the purchase from their store in Massachusetts.

After 90 days, the retailer may still return an amount equal to the sales tax, but the state is no longer required to in turn credit or refund the collected sales tax to the retailer, so if the retailer does return the sales tax in this instance, it is coming out of their own pocket.”

Check the 2009 post for additional information.  (Text of Letter Ruling 09-04)

Social Security is going paperless in 2013

Though most payments from the Social Security Administration (SSA) are now being made electronically, there are still 5 Million checks being mailed out monthly. To save money, “the U.S. Treasury will stop mailing paper checks to Social Security beneficiaries on March 1, 2013, when all benefit recipients will then receive their payments by direct deposit to a bank or credit union account or loaded onto a Direct Express Debit Master Card.” Articles summarizing the change: Social Security to Go Paperless in 2013, No More Paper Social Security Checks Come March.  Sign up for direct deposit here.

The SSA's website includes information about signing up for electronic deposits (.pdf and .html versions). The SSA's easy-to-use website includes 2 new links for getting your benefit verification letter on line and your Social Security Statement online, so your Social Security information will be available at your fingertips!

You can also set up your own personal page at My Social Security, allowing you to view an online version of the statement that used to be mailed every year plus estimates of your future retirement benefits, lifetime earnings to date, and the Social Security and Medicare taxes you have paid. Visit the page, answer a series of questions to verify your identity and then create a username and password.

Rule change for written fee agreements

The Rules of Professional Conduct have been amended effective January 1 to require written fee agreements, under Rule 1.5 Where previously, the agreement shall be communicated "preferably in writing", the new rule now states that the agreement "shall be in writing." Any changes to the rate or expenses should also be in writing. For more information on the law of attorneys and for the complete Rules of Professional Conduct see our page on the Law About Lawyers.

CALM Act Regulates Volume of TV Commercial​s

The Commercial Advertisement Loudness Mitigation (CALM) Act,  was enacted on December 15, 2010 in response to consumer complaints about loud commercials. In the (CALM) Act, Congress directed the Federal Communications Commission to establish rules and make mandatory a technical standard  for the volume of television commercials. Effective Dec. 13, 2012, these rules require commercials to have the same average volume as the programs they accompany.  They apply to TV stations, cable operators or other multichannel video program distributors. 

If you hear a commercial louder than the TV show it accompanies, you can file a complaint with the FCC  by providing detailed information about the commercial.

Learn more at the FCC Encyclopedia.

Cross-examination "brush up"

Intererested in improving your cross-examination skills? Some recent titles in our collections may help, for example: MacCarthy on Cross-Examination, Relentless Criminal Cross-Examination, and Take the Witness: the Experts Speak on Cross-Examination. To find additional books, videos and CDs on this or any other topic, try searching our online catalog. You can request a title online and have it sent to your local Trial Court Law Library for pickup. And here's Irving Younger's 10 Commandments of Cross Examination. See if you agree with him....

Abortion clinic buffer zone upheld

Federal appeals court again upholds Mass. abortion clinic buffer zone law. According to a Boston Globe article: A federal appeals court has again upheld the Massachusetts abortion clinic buffer zone law, saying that the regulation protects the rights of patients while, at the same time, allowing others to express their opinions. “... the right of the state to take reasonable steps to ensure the safe passage of persons wishing to enter health care facilities cannot seriously be questioned.” Read the Feb. 2012 case which was upheld on Jan. 9th, 2013 at McCullen v. Coakley, 844 F.Supp. 2d 206.

Socrates to be retried - at last!

       If you missed the first trial, don't worry.  There is still time to sign up for the retrial. 

     On Thursday, January 31, 2013, at 6:00 p.m. the National Hellenic Museum will present the "Trial of Socrates", billed as the "most significant legal appeal in nearly 2500 years."  A posting in the ABA journal, Law News Now,  provides further information on the retrial.  For those interested in "famous trials" the ABA posting provides links both  to a University of Missouri-Kansas City Law School website dedicated to the subject and a Time Magazine list of the "Top Ten Trials That Shook the World."

 

Domestic violence victim bill allows broken lease

Governor Patrick has signed a bill (SB2402)  designed to expand Massachusetts General Law 186 to give victims of domestic violence, stalking, and sexual assault added protection from assailants. This bill will give victims who live in private housing the same protections as residents of public housing. This includes letting them break a lease without penalty. The bill also allows the victims to request timely changing of locks. Landlords may request verification of victim status, but will be required to keep it confidential.

Where in the code are those laws?

The Boston Globe article, "Antiquated state laws stir modern-day worry" http://tinyurl.com/bzzos97 cited many laws, but how do they read? Here are links to the actual laws:

"The Star-Spangled Banner" law can be found at Chapter 264, section 9. http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter264/Section9

Cursing at a sporting event can be found at Chapter 272, section 36A.  http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter272/Section36A

Joining a subversive organization: http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter264/Section19

Declaring the Communist Party is a subversive organization: http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter264/Section16A

And permitting the Communist party to hold a funtion: http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter264/Section22

Committing blasphemy: http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter272/Section36

Consensual sex outside marriage: http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter272/Section14

Spitting on a sidewalk can be found at Chapter 270, section 14. http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter270/Section14

Fornication: http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter272/Section18

Anal sex: http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter272/Section35

FTC Amends Children's Online Privacy Protection Rule

The Federal Trade Commission is changing how it implements The Children's Online Privacy Act of 1998 (or COPPA). The rule is being modified to keep up with changing technology and will become effective on 7/1/2013.

The FTC adopted final amendments to the Children’s Online Privacy Protection Rule that strengthen kids’ privacy protections and give parents greater control over the personal information that websites and online services may collect from children under 13.

See the Statement of FTC Chairman Jon Leibowitz dated 12/19/2012.

For more information, visit our webpage on Law About Internet and Online Privacy.

Domestic Violence Trial Notebook

The Massachusetts District Attorneys Association has just published a new book entitled Domestic Violence Trial Notebook.  "This trial notebook is to aid district court prosecutors in handling the many issues that arise in prosecuting domestic violence cases."  It covers arraignment through sentencing with an appendix of sample motions.

Massachusetts Criminal Practice, 4th ed.

The full text of Massachusetts Criminal Practice, 4th ed., edited by Eric D. Blumenson and Arthur B. Leavens, is available on the web:  http://www.law.suffolk.edu/MCP/download.cfm

Make sure that new wood stove can be used in MA

Residents who are in the market for a wood or pellet stove are cautioned to make sure the model they purchase can be used in Massachusetts according to The Sun Chronicle.  

Wood stoves have been approved for use in Massachusetts if they have a UL approval number 1482, which is located on a metal tag riveted to its side.  Pellet stoves should have a similar metal tag, but should bear an Americans Standard Testing Method number 1509 on it.

Also said factory-built fireplaces, which are rare, but occasionally purchased by residents should have a UL number 127 on them. 

The Official Website of the Executive Office of Public Safety and Security has a list of general requirements along with frequently asked questions regarding wood-burning stoves and other solid fuel-burning heating appliances.

Facebook post not "soliciting" ex-employer's customers

A decision from a Massachusetts Superior Court case is getting national attention on legal blogs, from Massachusetts to California. In Invidia, LLC v. DiFonzo, the court opined that a hairdresser who posted news of her job change on Facebook, was not soliciting clients from her former employer, even though she had signed a Noncompetition Agreement with Invidia. For more information, visit our webpage on Massachusetts Law about Noncompetition Agreements.

Mass. Lawmakers Approve Bill for the Safety of Social Workers

The state legislature this week passed bill, H4254, sponsored by the Joint Committee on Health Care Financing, which seeks to improve safety in the workplace for social workers.  You can find an explanation of the bill at masslive.com.  The bill is now before Governor Deval Patrick, who is expected to sign it into law.

New requirements for motor vehicle registration effective January 1

Proof of Massachusetts residency will be necessary to obtain a registration for a motor vehicle. The new requirements are outlined on the RMV’s website, with a link to a complete list of acceptable documents. A driver’s license number, a Massachusetts ID Card number or a Social Security Number (SSN) is an acceptable document for proof.

Chapter 178 of the Acts of 2012 directs the registrar of motor vehicles to create new regulations no later than January 1, 2013 to implement the new law.  Expect a change in 540 CMR 2.05.

The RMV1 Form should also change to reflect the new law. Registration forms are available from the RMV website.

Ideas for the New Year

According to Boston.com this week, “Walking drunk is one of the biggest New Year’s Eve risks”. If you’re hosting a party, it’s important to know what the Social Host Law is on providing alcohol to minors. If you plan on drinking and enjoying your New Year’s Eve, then you might want to look at our webpage on Massachusetts Laws about Drunk Driving . Best wishes to all our readers for a Happy, Healthy New Year! And if you’re interested, here’s the link to the WebMd site on Frequently Asked Questions on Alcohol and Your Health.