Cell phone searches
Child abuse and neglect
- See also: Law about child abuse and neglect
Comm. v. Dorvil, 472 Mass. 1 (2015)
Spanking. The court recognized a parent's right to use force in disciplining a child, "provided that the force used against the minor child is reasonable; that the force is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct; and that the force used neither causes nor creates a substantial risk of causing physical harm (beyond fleeting pain or minor, transient marks), gross degradation, or severe mental distress."
Comm. v. Millien, 474 Mass. 417 (2016)
Extensive discussion of "shaken baby syndrome." There is a heated debate in the medical community as to whether a violent shaking of a baby alone can generate enough force to cause the triad of symptoms of traumatic brain injury, and as to whether these symptoms can sometimes be caused by a short accidental fall....where the prosecution's case rested almost entirely on medical expert testimony, the defendant was denied his constitutional right to the effective assistance of counsel because, by not providing the jury with the other side of this debate, his attorney's poor performance "likely deprived the defendant of an otherwise available, substantial ground of defence."
Covell vs. Dept. of Social Services, 439 Mass. 766 (2003)
Provides an overview of statutory and regulatory requirements and procedural steps involved in the Department of Social Services (now DCF) investigation and recording of reports of suspected child abuse. This case also discussed the application of the “substantial evidence” test…substantial evidence may be based on hearsay alone if hearsay has “indicia of reliability.”
Lindsay vs. Dept. of Social Services., 439 Mass. 789 (2003)
Neglect. SJC interpretation of state regulations (110 CMR 2.00) and Federal regulations (45 CFR 1340.2(d)) that there is a requirement of actual harm or a substantial risk of harm for a finding of neglect.
Millis Public Schools v. M.P., 478 Mass. 767 (2018)
CRA/Truancy. We conclude that a child "willfully fails to attend school" when he or she acts purposefully, such that his or her behavior arises from reasons portending delinquent behavior.." The court vacated a CRA judgment where "where nothing in the record suggested that the child's behavior exhibited problems or tendencies that could lead toward juvenile delinquency, and where nothing in the record showed that a modification of the child's custody arrangements would help improve the child's attendance record."
Child custody and parenting time
General
Adoption of Franklin, 99 Mass. App. Ct. 787 (2021)
Saying that "we recognize that our own cases have not always been clear about this issue," the court explains the circumstances under which a parent whose parental rights have been terminated can still have standing to challenge his visitation rights.
A.H. v. M.P., 447 Mass. 828 (2006)
A woman who never adopted the child of her same-sex partner, "although she was well aware of the importance of doing so," and was not the primary caretaker for the child, did not have a legal right to parenting time or a support agreement as a "de facto parent." Further, the court declined to adopt a "parent by estoppel," theory as defined in the ALI Principles of the Law of Family Dissolution § 2.03 (2002). saying, in part, "the parent by estoppel principle is a most dramatic intrusion into the rights of fit parents to care for their child as they see fit." and "parent by estoppel status is most appropriate where "adoption is not legally available or possible.""
Della Corte v. Ramirez, 81 Mass. App. Ct. 906 (2012)
A child born of a same-sex marriage is the legitimate child of both people. "As a result, it follows that when there is a marriage between same-sex couples, the need for that second-parent adoption to, at the very least, confer legal parentage on the nonbiological parent is eliminated when the child is born of the marriage."
E.K. vs. S.C., 97 Mass. App. Ct. 403 (2020)
Explains the "standard to be used when a noncustodial parent, who is living out-of-State, seeks custody of a child and permission to move the child out-of-State."
E.N.O. v. L.M.M., 429 Mass. 824 (1999)
De facto parents. "A child may be a member of a nontraditional family in which he is parented by a legal parent and a de facto parent. A de facto parent is one who has no biological relation to the child, but has participated in the child's life as a member of the child's family. The de facto parent resides with the child and, with the consent and encouragement of the legal parent, performs a share of caretaking functions at least as great as the legal parent." In this instance, the court may order parenting time for the de facto parent.
Moving away
D.C. v. J.S., 58 Mass. App. Ct. 351 (2003)
"Applications for court decision in cases in which a parent seeks to relocate within the Commonwealth should not be routine but are proper only where the relocation would evidently involve significant disruption of the noncustodial parent's visitation rights and the parents cannot agree." When necessary, criteria for "relocation to a distant part of the State will resemble those applied to removal beyond the State boundaries."
Mason v. Coleman, 447 Mass. 177 (2006)
In order for a parent who shares joint physical custody to move out of state, s/he must meet a higher standard than a parent who has sole physical custody. "The importance to the children of one parent's advantage in relocating outside the Commonwealth is greatly reduced." Applying the "best interests of the child" test, the court determined that the mother would not be permitted to move the children out of state.
Miller v. Miller, 478 Mass. 642 (2018)
When there is no prior custody order to determine whether the Mason or Yannas analysis should apply, "we hold that the judge must first perform a functional analysis, which may require a factual inquiry, regarding the parties' respective parenting responsibilities to determine whether it more closely approximates sole or shared custody, and then apply the corresponding standard."
Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001)
Because "Efforts by a custodial parent to relocate a child out of the Commonwealth often give rise to a claim for custody by the parent not seeking the move," case outlines the different standards required by a request for modification of custody and a request to relocate, and details the necessary considerations in a request to relocate.
Smith v. McDonald, 458 Mass. 540 (2010)
Unmarried mother. "Permission to relocate... is not required when a child has only one legal parent. Such is the case for a nonmarital child prior to any proceedings to determine paternity or allocate custodial rights. When the paternity of a nonmarital child has not yet been established pursuant to G.L. c. 209C, § 2, the mother is the child's only parent. The putative biological father has no legal rights that need to be protected by the court, and the mother may relocate freely with the child."
Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985)
In detail, outlines how the "real advantage standard" is to be determined in deciding a case in which one parent who has sole physical custody wants to move out of state.
Child labor
Child sexual abuse and statutes of limitations
Selected cases on statutes of limitations
Commonwealth v. Buono, 484 Mass. 351 (2020)
The corroboration requirement in MGL c.277, § 63, is not subject to tolling. Any indictment filed more than 27 years after the crime must be supported by submission to the grand jury of “independent evidence that corroborates the victim's allegation.”
Commonwealth v. Santos, 100 Mass. App. Ct. 1 (2021) review denied 489 Mass 1104 (2022)
Corroborative, extrinsic, or forensic evidence, or expert or third-party witness testimony is not required to support the conviction of rape or sexual assault where the victim testifies at trial.
Doe v. Creighton, 439 Mass. 281 (2003)
"A plaintiff who brings suit beyond the normal statutory limitations period may not reach a jury simply by presenting evidence that sexual abuse took place. In order to survive a motion for summary judgment in those circumstances, a plaintiff must show that the nature of the abuse was such that it would cause an objectively reasonable person to fail to recognize the causal connection between it and the injuries that it caused."
Koe v. Mercer, 450 Mass. 97 (2007)
Once a plaintiff knows of the connection, the statute of limitations begins to run, even if he does not know the "full extent or nature of [the] injury."
Phinney v. Morgan, 39 Mass. App. Ct. 202 (1995) review denied 421 Mass. 1104 (1995)
The adult plaintiffs claimed they were harmed by their mother's failure to protect them from their father's sexual abuse while they were minors. The court did extend the "discovery rule" to non-perpetrators but concluded plaintiffs were still time barred.
Riley v. Presnell, 409 Mass. 239 (1991)
The court decided that the statute of limitations does not begin to run until the plaintiff knows or reasonably could have known that he may have suffered injury due to the psychotherapist's conduct (discovery rule). The question of when a plaintiff should have known about his cause of action is one of fact.
Child support (under 18)
Child support over age 18
- See also: Law about child support over age 18
Barnes v. Devlin, 84 Mass. App. Ct. 159 (2013)
A father could not unilaterally stop paying child support under an agreed-upon separation agreement despite the question of whether the support conformed to the law. His "proper recourse, as the judge stated, would have been to initiate appropriate modification proceedings, as opposed to unilaterally stopping payments."
Cabot v. Cabot, 55 Mass. App. Ct. 756 (2002)
In limited circumstances, the Court has the authority to make an award of college expenses retroactive.
Doe v. Roe, 23 Mass. App. Ct. 590 (1987)
Child born out of wedlock had same rights to support after age 18 from adjudicated father as children of divorced parents would have from their parents.
Kirwood v. Kirwood, 27 Mass. App. Ct. 1156 (1989)
This case sets out the test for determining whether or not to maintain, increase or cancel support after the age of majority by using specified criteria to decide whether or not the individual is "principally dependent" upon the parent with whom s/he resides.
Larson v. Larson, 28 Mass. App. Ct. 338 (Larson I) (1990); 30 Mass.App.Ct. 418 (Larson II) (1991)
In the first proceeding, court "declined to consider the question whether the child was emancipated as a matter of law upon attaining the age of eighteen, where the case had been tried on the theory that the matter would be resolved under the test for dependency set forth in G.L. c.208 sec. 28." In the second, the court retained jurisdiction over child support matters beyond the age of twenty-one.
LeBrecque v. Parsons, 74 Mass. App. Ct. 766 (2009)
The court found that “the child's status as an unmarried mother does not render her emancipated as matter of law.”
Mansur v. Vinal, Probate and Family Court, Essex Division (89D-2178), March 26, 2001, affirmed 59 Mass. App. Ct. 1101 (2003), further appellate review denied 440 Mass. 1106 (2003)
Where a father was obligated to support his son while the son engaged in a "full-time continuous course of study," but the son failed, withdrew or received incomplete grades in at least eight courses, the support obligation ended at the date of the son's originally anticipated graduation date.
McCarthy v. McCarthy, 36 Mass. App. Ct. 490 (1994)
The court held that the Probate Court exceeded their powers when they modified a marital separation agreement. The modification increased the amount of child support the husband was paying to include college expenses. The original separation agreement did not address the issue of college expenses of the children. It survived the divorce judgment and retained independent legal significance, and therefore more than a material change of circumstances would have to be established to alter the terms of the original agreement.
Tatar v. Schuker, 70 Mass. App. Ct. 436 (2009)
Under the child support law, a child is not automatically emancipated at 18. A judge does has the discretion to enter an order for child support that terminates when the child reaches 18, if, for example, it is unlikely that the child will continue to be dependent or live with the custodial parent when the child reaches age 18.
Vaida v. Vaida, 86 Mass. App. Ct. 601 (2014)
The Court can order child support after emancipation but only when an adult child is incapacitated and is under a guardianship under MGL c.215, § 6 (probate court equity jurisdiction).
Children's health care
Civil procedure
Consumer protection
- See also: Law about consumer protection
Anderson v. National Union Fire Insurance Co., 476 Mass 377 (2017)
Post judgment interest not part of damages trebled under chapter 93A.
Bridgwood v. A.J. Wood Construction, Inc., 480 Mass. 349 (2018)
The 6-year statute of repose in MGL c.260, § 2B can bar a MGL c.93A action for defective workmanship in home renovations if the claim is "sufficiently tort-like."
Feeney v. Dell, 454 Mass.192 (2009)
Provisions in consumer contracts forcing arbitration of claims under M.G.L.A. c. 93A and barring class claims in arbitration were unenforceable. Such provisions violate the fundamental public policy of the Commonwealth favoring consumer class actions under c. 93A.
Hopkins v. Liberty Mutual Insurance Co., 434 Mass. 556, 750 NE2d 943 (2001)
A claim against an insurance company for unfair settlement practices arising from a single act can constitute an actionable violation of MGL c.176D and MGL c.93A.
Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165 (2013)
"A claim under G. L. c. 93A ...survived the death of the decedent, where it presented a cause of action that was substantively akin to the types of torts within the scope of the Massachusetts survival statute, G. L. c. 228, § 1."
Moronta v. Nationstar Mortgage, LLC, 476 Mass. 1013 (Mass. 2016)
No demand letter is required under MGL c.93A, § 9 (3), where “the prospective respondent does not maintain a place of business … within the commonwealth,” regardless of whether it “keep[s] assets” here.
Piers v. Wheeler and Taylor, Inc., 8 Mass. Law Reporter 410 (1998)
Representing to a buyer of a home that the property is free of lead-contaminated paint without verifying that fact constitutes willful misconduct subjecting the seller and the seller's real estate agent to multiple damages under c.93A.
Rafferty v. Merck & Co., Inc., 479 Mass. 141 (2018)
To sue under MGL c.93A, "[i]t suffices that the plaintiff used the product, even if it was sold to another, and was injured as a result."
Schubach v. Household Finance Corporation, 375 Mass. 133 (1978)
"Intentionally filing collection actions against consumers in inconvenient distant courts, with the purpose and effect of securing default judgments and gaining unfair advantage," may be an unfair and deceptive act under MGL c.93A, "even though the company filed its actions in compliance with c. 223, Section 2."
Sullivan v. Five Acres Realty Trust, 487 Mass. 64 (2021)
Jury consultant fees are not recoverable under MGL c.93A.
Contraception
Copyright
- See also: Law about copyright
List of United States Supreme Court copyright case law
Major copyright decisions from the United States, Wikipedia.
In chart form, Wikipedia lists, links, and provides the principle findings of each major U.S. copyright decision through 2013.
Major copyright decisions, world-wide, Wikipedia.
Major world-wide copyright cases are listed by country and linked on this webpage.
Corporations
COVID-19
See: Law about COVID-19 (Note: This page is no longer being updated regularly and is for historical research purposes only).
Credit, banking, and interest rates
Criminal law and procedure
- See also: Law about criminal law and procedure
Court procedure
Brangan v. Commonwealth, 477 Mass. 691 (2017)
Setting of bail. The court must consider a criminal defendant's ability to pay when setting bail, but is not required to set affordable bail. Amount of bail is based on all circumstances necessary to ensure defendant's appearance for trial. See also Boisvert v. Commonwealth, 487 Mass. 1027 (2021) "where it appears that a defendant lacks the financial resources to post the amount of bail set, such that his indigency likely will result in a long-term pretrial detention, the judge must provide written or orally recorded findings of fact and a statement of reasons for the bail decision." (quoting Brangan, at page 1028).
Com. v. Bruneau, 472 Mass. 510 (2015)
Appeal of finding of not guilty by reason of mental illness. Discussion of the appropriate avenue by which a criminal defendant found not guilty by reason of mental illness may challenge that verdict.
Com. v. DiGiambattista, 442 Mass. 423 (2004)
Jury instructions when interrogations are not recorded. “A defendant whose interrogation has not been reliably preserved by means of a complete electronic recording should be entitled, on request, to a cautionary instruction concerning the use of such evidence.” See also Com. v. Colon, 483 Mass. 378 (2019): At a murder trial, although the defendant was entitled to an instruction to the jury regarding the failure of police officers to record the entirety of the interrogation in which the defendant confessed, the absence of such an instruction was not likely to have influenced the jury's conclusion and did not result in a substantial likelihood of a miscarriage of justice, where the fact that a brief, introductory portion of the interrogation was not recorded did not prejudice the defendant and, in the circumstances, the jury were well situated to determine the voluntariness of his statements.
Com. v. Dixon, 458 Mass. 446 (2010)
“John Doe” Indictment that described the defendant as John Doe with a certain DNA profile was sufficiently particular, and tolled the statute of limitations until the defendant could be identified and prosecuted.
Com. v. Gomes, 459 Mass. 194 (2011)
Judge must attend view.
Com. v. Gomez, 480 Mass. 240 (2018)
Conditional guilty plea permitted. "[A] conditional guilty plea is permissible if it is entered with the consent of the court and the Commonwealth and identifies the specific ruling from which the defendant intends to appeal." See also Mass.R.Crim.Proc. Rule 12 (b)(6).
Com. v. Guzman, 446 Mass. 344 (2006)
Accord and Satisfaction. Trial Court may discharge defendant from indictment or complaint upon victim's acknowledgment of satisfaction for injury pursuant to MGL c. 276, § 55.
Com. v. Hernandez, 481 Mass. 582 (2019)
When defendant dies during appeal. Instead of vacating a criminal conviction and dismissing the indictment after a defendant dies while his direct appeal pends (applying the doctrine of abatement ab initio), the trial court will record that the defendant's conviction removed the defendant's presumption of innocence as to that charge, but that the conviction was appealed from and was neither affirmed nor reversed because the defendant died while the appeal was pending and the appeal was dismissed.
Com. v. Lewis, 96 Mass. App. Ct. 354 (2019), rev. denied 484 Mass. 1106 (2020)
Guilty pleas are divisible. A court can vacate one guilty plea and leave others in place, even when the pleas were made at the same time in the same proceeding unless the plea colloquy expressed the intent that the pleas were indivisible.
Com. v. Martinez, 480 Mass. 777 (2018)
Describes refund of court costs, fees, fines, and restitution after defendant's conviction is vacated and the charge is dismissed with prejudice.
Com. v. Newberry, 483 Mass. 186 (2019)
Arraignment before pretrial diversion. On the state's motion, a judge must arraign a defendant before they can take advantage of a pretrial diversion program pursuant to MGL c. 276A, § 3. Alternatively, the prosecutor may decide not to pursue formal arraignment. Also, a judge has the authority to impose conditions of release in either situation.
Com. v. Norman, 484 Mass. 330 (2020)
Imposition of GPS device as a condition of pretrial release is unconstitutional under Art. 14 of the Massachusetts Declaration of Rights unless authorized by MGL c. 276, § 58, when for example the defendant is charged with a crime involving domestic abuse.
Com. v. Portillo, 462 Mass. 324 (2012)
English-language transcript of recorded foreign-language interview. "[W]here the Commonwealth intends in its case-in-chief to offer at trial statements made by a defendant in a foreign language in a tape-recorded interview, it is within a judge's discretion to require the Commonwealth to provide defense counsel in advance of trial with an English-language transcript of the interview, and to exclude the statements where the Commonwealth declines to do so."
Com. v. Rodriguez, 461 Mass. 256 (2012)
Judge can reduce sentence below agreed recommendation in plea deal. When “a judge acts on his own timely motion to revise or revoke a sentence, the judge has the authority to reduce a sentence where 'it appears that justice may not have been done' regardless of whether a plea agreement includes an agreed sentence recommendation."
Com. v. Vieira, 483 Mass. 417 (2019)
The court must use a “categorical approach” to determine whether a crime qualifies under the force clause of MGL c. 276, § 58A, to support a finding of dangerousness to warrant pretrial detention. “Where ‘physical force’ is an element of the offense charged, the offense qualifies under the statute.” See also, Scione v. Com., 481 Mass. 225 (2019) which held that the residual clause of MGL c. 276, § 58A, encompassing “any other felony that, by its nature, involves a substantial risk that physical force against the person of another may result” is unconstitutionally vague under Article 12 of the Massachusetts Declaration of Rights. See also, Com. v. Escobar, 490 Mass 488 (2022) which held that the force clause of Section 58A does not encompass reckless or wanton conduct.
Com. v. Yasin, 483 Mass. 343 (2019)
A "judge may not reserve decision on a motion for a required finding of not guilty under Mass. R. Crim. P. 25 (a) that is filed at the close of the Commonwealth's case. Nor may a judge allow such a motion, nunc pro tunc, after the jury have rendered their verdict."
District Attorney for the Northern District v. Superior Court Dept., 482 Mass. 336 (2019)
Outlines the standard for the retention or transfer of nondocumentary exhibits posttrial.
In re: McDonough, 457 Mass. 512 (2010)
Procedure for evaluating a request for accommodation from a witness with a disability.
Elements or definitions of crimes
Com. v. Adams, 482 Mass. 514 (2019)
Interference with a police officer. Interference with the lawful duties of a police officer is a common-law crime in Massachusetts. Decision looks to history to explain the elements of the crime – being upset and argumentative with police is not sufficient.
Com. v. Brown, 477 Mass. 805 (2017)
Liability for common law felony-murder prospectively narrowed to require that a defendant may not be convicted of murder without proof of one of the three prongs of malice.
Com. v. Carrillo, 483 Mass. 269 (2019)
Evidence of heroin transfer alone is not enough to support a conviction of involuntary manslaughter where the heroin caused a tragic death.
Com. v. Montoya, 457 Mass. 102 (2010)
Fleeing from police during an arrest is resisting arrest when a person “creates a substantial risk” of injuring an officer. In this case, defendant fled police in dimly lit conditions, jumped fence, and plunged twenty-five feet to shallow canal.
Com. v. Rivera, 482 Mass. 145 (2019)
Accessory after the fact. “The refusal to answer a police officer's questions or provide requested information alone cannot constitute 'aid' or 'assistance' under G.L. c. 274, § 4, because, unless a person is subpoenaed or ordered by a court to testify, no one has a legal obligation to answer a police officer’s questions or to provide information in a criminal investigation.” The court held that, consistent with common law, “a person may provide the principal felon with the ‘direct, personal assistance’ necessary to be an accessory after the fact through words alone spoken to the police during an interview, but only where he or she ‘aids’ or ‘assists’ the principal by providing the police with a false alibi or comparable information that would exculpate the principal, a false narrative of the crime that would give the principal a defense, or false information to assist in the principal's escape.
Com. v. Vick, 454 Mass. 418 (2009)
Duplicative offenses. Offenses arising out of the same course of conduct are not duplicative if each crime requires proof of an element that the other does not.
Criminal records
Death penalty
Debt collection
Defamation
- See also: Law about defamation
Barrows v. Wareham Fire District, 82 Mass. App. Ct. 623 (2012)
Summary judgment was granted for the defendant because "defamation is explicitly enumerated in G. L. c. 258, § 10(c), as one of the torts exempted from the provisions of the Massachusetts Tort Claims Act, and the level of fault pleaded (i.e., intentional, reckless, or simply negligent conduct) makes no difference."
LaChance v. Boston Herald, Inc., 78 Mass. App. Ct. 910 (2011)
The plaintiff, a prison inmate whose profile appeared on a dating site, was a "limited public figure," where he "actively sought the attention of those visiting the site by indicating that he was seeking friendship, romance, legal help, and monetary donations," and thus "voluntarily inject[ed] himself . . . into a particular public controversy."
Murphy v. Boston Herald, Inc. 449 Mass. 42 (2007)
Upholding a $2.1 million jury verdict against the Boston Herald for reckless reporting of a judge's demeanor and handling of several cases, the court was highly critical of reporter Dave Wedge and wrote, "The press, however, is not free to publish false information about anyone (even a judge whose sentencing decisions have incurred the wrath of the local district attorney), intending that it will cause a public furor, while knowing, or in reckless disregard of, its falsity."
New York Times v. Sullivan, 376 U.S. 254 (1964)
A public figure must prove an additional element of "actual malice" in a defamation case.
Noonan v. Staples, Inc., 556 F.3d 20 (1st Cir., 2009)
Truth may not be a defense to a libel claim. The 1st circuit on panel rehearing overturned the grant of summary judgment in a case in which true but unpleasant statements about an employee were emailed to 1500 employees. MGL c.231, s.92 says that in a libel case, "truth shall be a justification unless actual malice is proved." Shaari v. Harvard Student Agencies, 427 Mass. 129 (1998) held that statute unconstitutional when applied to matters of public concern, but did not address its application to private citizens. This court did not reach the constitutional issue, but instead focused on the definition of "actual malice," and rather than relying on the "modern" definition of "actual malice" used in defamation cases, the court here determined that a more accurate definition was to be found in Conner v. Standard Publishing, 183 Mass. 474 (1903): "malice in the popular sense of hatred or ill-will."
Scholz v. Delp, 473 Mass. 242 (2015)
In this case, it was okay for a newspaper to publish opinions based on disclosed facts that did not imply that the writer had knowledge of undisclosed defamatory facts. Such opinions are not defamatory.
Wolsfelt v. Gloucester Times, 98 Mass. App. Ct. 321 (2020)
Internet postings are subject to the single publication rule, which governs other types of aggregate communications. Under the rule, a person may bring one (and only one) cause of action for defamation against the publisher based on its publication of the defamatory statement. The statute of limitations for the action begins to accrue when the statement first is posted on the website.
Yohe v. Nugent, 321 F.3d 35 (1st Cir., 2003)
A review of the elements of defamation in Massachusetts.
Defending against a 209A order
Banna v. Banna, 78 Mass. App. Ct. 34 (2010)
"To extend an abuse prevention order, the plaintiff must 'make a showing similar to that of a plaintiff seeking an initial order'... No presumption arises from the fact that a prior order has issued ; it is a plaintiff's burden to establish that the facts that exist at the time extension of the order is sought justify relief."
Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725 (2006)
In distinguishing this case from Vaccaro, court held that "a judge has the inherent authority to expunge a record of a 209A order from the Statewide domestic violence registry system in the rare and limited circumstance that the judge has found through clear and convincing evidence that the order was obtained through fraud on the court."
Comm. v. Dufresne , 489 Mass. 195 (2022)
“While the defendant's constitutional right to counsel required that he be represented at trial for his violation of the abuse prevention order, it did not require that he be represented at the proceedings that led to the abuse prevention order being issued originally.”
Comm. v. Raymond, 54 Mass. App. Ct. 488 (2002)
Court held that a defendant cannot be convicted of violating a "no contact" provision under a 209A order where the violation is unknowing, accidental, or inadvertent.
Cordelia C. v. Steven S., 95 Mass. App. Ct. 635 (2019)
Standard of proof for modification. Clarifies that the standard of proof required to modify an existing order "depends upon the status of the existing order, the nature of the modification sought, and, in some cases, whether the plaintiff or the defendant seeks the modification."
Corrado v. Hedrick, 65 Mass. App. Ct. 477 (2006)
"When, at a contested hearing, a plaintiff fails to prove that "abuse" has occurred, a judge may not continue an ex parte order that directs the defendant to vacate and remain away from the household because of subjective concerns that violence may occur if both remain in the same household."
E.H.S. v. K.E.S., 424 Mass. 1011 (1997)
"In challenging domestic abuse order, pro se petitioner was not excused from requirement of raising and preserving his claims in trial court and presenting adequate record on appeal."
Fabre v. Walton, 436 Mass.517 (2002)
Walton had obtained and then extended a 209A restraining order against Fabre. Fabre sued, alleging that Walton had obtained the order to harass him, and had not been abused. Walton moved to dismiss the suit. Invoking the Anti-SLAPP statute (MGL c.231, § 59H), the SJC ruled that Fabre's lawsuit would not be allowed to go forward without a "substantial basis" that the domestic violence claim was "devoid of any reasonable factual support," and that since the order had been extended, the claim must have had some factual support. Clarifying a procedural issue, the court also decided that defendants in such suits have a right to bring an interlocutory appeal to the Appeals Court, "regardless of the court in which the SLAPP suit was brought."
Frizado v. Frizado, 420 Mass. 592 (1995)
Although the court in Zullo v. Goguen changed the appropriate method of appeal (see below), this case is still helpful for its discussion of the constitutionality of 209A proceedings and the process that should be followed in a 209A hearing
Jordan v. Clerk of the Westfield Division of the District Court Department, 425 Mass. 1016 (1997)
As husband was incarcerated, imminent fear of serious harm is questionable.
MacDonald v. Caruso, 467 Mass. 382 (2014)
To terminate an abuse protection order, "the significant change in circumstances must involve more than the mere passage of time, because a judge who issues a permanent order knows that time will pass. Compliance by the defendant with the order is also not sufficient alone to constitute a significant change in circumstances, because a judge who issues a permanent order is entitled to expect that the defendant will comply with the order."
Nelson N. v. Patsy P., 98 Mass. App. Ct. 78 (2020)
Mutual orders require written findings of fact, and an order should not issue on the theory that it will do no harm, i.e., seems to be a good idea or because it will not cause the defendant any real inconvenience.
Szymkowski v. Szymkowski, 57 Mass. App. Ct. 284 (2003)
A father appealed from a child protection order under ch. 209A. The Appeals Court held that there were "distinct overtones of the use of c. 209A as a weapon in circumstances of reciprocal hostility between divorced parents." While the father's conduct was unacceptable, "c. 209A is not designed as a prod toward better parenting. Rather, the statute, as we have said, aims to prevent physical harm." There are other, more appropriate remedies for poor parenting, and the order was vacated.
Vaccaro v. Vaccaro, 425 Mass. 153 (1997)
Even though a 209A order against him was vacated, a husband could not have record of the order expunged from the domestic abuse registry.
Wooldridge v. Hickey, 45 Mass. App. Ct. 637 (1998)
"A person against whom an abuse prevention order has issued may challenge the lawfulness of the order even after it has expired, … as the person may continue to be adversely affected by entry of the order in the Commonwealth's criminal records system."
Zullo v. Goguen, 423 Mass. 679 (1996)
"Henceforth review of orders pursuant to G.L. c.209A should not be initiated by petition under G.L. c.211 sec. 3, but rather by the filing of an appeal in the Appeals Court."
Disability rights in employment
Barbuto v. Advantage Sales and Marketing, LLC, 477 Mass. 456 (2017)
An employee who has been fired for using medical marijuana off-site, and not before or during work, may sue her employer for handicap discrimination.
Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001)
Suits against states are not allowed in federal courts under ADA as the Act does not provide Congress with the ability to waive states' sovereign immunity (abrogation).
Cox v. New England Telephone and Telegraph Company, 414 Mass. 375 (1993)
"Reasonable accommodation by an employer, under the provisions of G. L. c. 151B, Section 4 (16), does not require the employer to waive or excuse an employee's inability to perform an essential job function."
Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212 (2022)
Supreme Court held that emotional distress damages are not recoverable for victims of discrimination.
Dartt v. Browning-Ferris Industries, Inc. (Mass.), 427 Mass. 1 (1998)
"A plaintiff alleging handicap employment discrimination in violation of G. L. c. 151B, s. 4 (16), need not establish, as part of his prima facie case, that he was terminated or otherwise adversely treated by his employer 'solely' because of his handicap."
Garrity v. United Airlines, Inc., 421 Mass. 55 (1995)
"Plaintiff could not reasonably expect to prove that, in spite of her handicap [alcoholism], she was otherwise qualified for the position she had held" due to alcohol-related misconduct at work.
Godfrey v. Globe Newspaper Company, Inc., 457 Mass. 113 (2010)
"The employee bears the initial burden of producing some evidence that an accommodation that would allow him or her to perform the essential functions of the position would be possible, and therefore that he or she is a 'qualified handicapped person.'"
Hallgren v. Integrated Financial Corp., 42 Mass. App. Ct. 686 (1997)
"A temporary disability of short duration is not a handicap within the meaning of G. L. c. 151B, s. 1."
Labonte v. Hutchins & Wheeler, 424 Mass. 813 (1997)
A plaintiff who applies for and/or receives disability benefits after termination from employment is not automatically estopped from pursuing a claim under ADA. Inconsistencies in statements regarding the plaintiff's ability to work, however, must be explained by the plaintiff.
MCAD v. Middlesex Sheriff's Office, 07-BEM-00453 (2015).
"Conditions that impair one intermittently or that are not always symptomatic are considered disabling, if the impairment would substantially limit a major life activity when active."
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
Established the McDonnell Douglas 3-step framework, which shifts the burden of proof between parties in cases involving disparate treatment (under Title VII) in employment when direct evidence of discrimination is lacking. See also: St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993) and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), both of which helped further develop the framework.
Ocean Spray Cranberries, Inc. v. MCAD, 441 Mass. 632 (2004)
SJC upheld MCAD's decision that "an employer failed to provide a reasonable accommodation to a handicapped employee" in certain job duties that took significantly longer for the employee to perform.
Olmstead v. L.C., 527 U.S. 581 (1999)
Right to live and work integrated within communities. "Under Title II, the court concluded, unnecessary institutional segregation constitutes discrimination per se, which cannot be justified by a lack of funding."
Thurdin v. SEI Boston, LLC, 452 Mass. 436 (2008)
An employee of a business with fewer than six employees (who is thus unable to sue under MGL c.151B) can sue for employment discrimination under a provision of the Massachusetts Equal Rights Act (MGL c. 93, § 102).
Williams v. Kincaid, U.S. Court of Appeals, Fourth Circuit (2022), WL 3364824
The Americans with Disabilities Act (ADA) protects transgender people from discrimination. The ADA covers “gender dysphoria” a “discomfort or distress that is caused by a discrepancy between a person's gender identity and that person's sex assigned at birth.” This case involves a transgender woman who was placed in a men’s prison where she was denied hormone therapy and suffered harassment. The ruling applies also to workplace and public accommodations.
Disability rights in housing
Disability rights in public spaces and government services
Discovery
- See also: Law about discovery
Caron v. General Motors Corp., 37 Mass. App. Ct. 744 (1993)
"Requests for admissions should be thoughtfully structured to settle before trial issues as to which there may be no real contest. It is an abuse to deluge an opposing party with successive banks of requests for admissions hoping that he may inadvertently give away his case."
Doe v. Senechal, 431 Mass. 78 (2000)
A physical or mental examination is allowed only if the condition of the person to be examined is "in controversy," meaning his or her condition "relates directly to the proof or defense of the underlying cause of action," such as the condition of "a plaintiff in a negligence action who asserts mental or physical injury, or a defendant who asserts his mental or physical condition as a defense to a claim."
Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544 (2002)
Nonparties to litigation do not have a duty to preserve evidence that is within their control for use by the parties even if they know that the evidence is relevant to the litigation.
GTE Products Corp. v. Stewart, 414 Mass. 721 (1993)
"The purposes for which the discovery rules exist 'are to avoid surprise and the possible miscarriage of justice, to disclose fully the nature and scope of the controversy, to narrow, simplify, and frame the issues involved, and to enable a party to obtain the information needed to prepare for trial.'"
Gunn v. New York, New Haven & Hartford R.R. Co., 171 Mass. 417 (1898)
A person who is answering interrogatories as the representative of a business entity (e.g., the president of a corporation responding to interrogatories served on the corporation) has a duty to make reasonable inquiry of all of the business's employees and agents to obtain information that will help the person answer the interrogatories.
Kippenhan v. Chaulk Services, Inc., 428 Mass. 124 (1998)
A party is not responsible for the loss, destruction, or alteration of evidence unless the party knew or should have reasonably known, at the time the items were lost, destroyed or altered, that the items might be evidence in a possible court action.
In the Matter of a Subpoena Duces Tecum, 445 Mass. 685 (2006)
Discusses the broad scope of discovery.
Reynolds Aluminum Building Products Co. v. Leonard, 395 Mass. 255 (1985)
Failure to respond to a proper request for admissions establishes the truth of the admissions for purposes of the case.
Storm v. American Honda Motor Co., Inc., 423 Mass. 330 (1996)
“broad and literal treatment” to be given to discovery rules.
Discrimination
- See also: Law about discrimination
303 Creative LLC v. Aubrey Elenis 600 U.S. 570 (2023)
The plaintiff may refuse to create wedding websites for same-sex couples, holding that requiring her to do so under (Colorado) CADA would violate her free speech rights under the First Amendment.
Barbuto v. Advantage Sales and Marketing, LLC, 477 Mass. 456 (2017)
An employee who has been fired for using medical marijuana off-site, and not before or during work, may sue her employer for handicap discrimination.
Bostock v. Clayton County, Georgia, 590 U.S. 644 (2020)
The US Supreme Court held that "an employer who fires an individual merely for being gay or transgender violates Title VII [of the Civil Rights Act of 1964]."
Brookline v. Alston, 487 Mass. 278 (2021)
"The Civil Service Commission, in the context of its analysis whether a tenured firefighter was fired without just cause in violation of basic merit principles, could consider evidence of discriminatory or retaliatory conduct more typically addressed in the context of a claim under G. L. c. 151B."
Bulwer v. Mount Auburn Hospital, 473 Mass. 672 (2016)
"Massachusetts is a pretext only jurisdiction." "The plaintiff employee need only present evidence from which a reasonable jury could infer that the defendant employer's facially proper reasons given for its action against the plaintiff were not the real reasons for that action... To survive a motion for summary judgment, the plaintiff need only present evidence from which a reasonable jury could infer that "the respondent's facially proper reasons given for its action against him were not the real reasons for that action."
Charles v. Leo, 96 Mass. App. Ct. 326 (2019)
Discusses how a court should decide whether punitive damages are excessive. Includes jury instruction on punitive damages from Haddad v. Wal-Mart, 455 Mass. 91 (2009).
Comm. v. Long, 485 Mass. 711 (2020)
Pretextual traffic stops and racial profiling.
Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212 (2022)
Supreme Court held that emotional distress damages are not recoverable for victims of discrimination in a private action to enforce either the Rehabilitation Act of 1973 or the Affordable Care Act.
Flagg v. AliMed Inc., 466 Mass. 23 (2013)
SJC ruling approving an associational discrimination claim under the state’s non-discrimination statute, the Fair Employment Practices Act, or FEPA. View the case, the briefs and the oral arguments.
Groff v. DeJoy, 600 U.S. 447 (2023)
Supreme Court held that "Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs [as opposed to de minimus costs] in relation to the conduct of its particular business." Amends the 1977 standard issued in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63.
Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009)
Supreme Court held that a "plaintiff bringing an ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action...Unlike Title VII, which has been amended to explicitly authorize discrimination claims where an improper consideration was “a motivating factor” for the adverse action,... the ADEA does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor."
Joule, Inc. v. Simmons, 459 Mass. 88 (2011)
Arbitration clause does not preclude MCAD proceeding.
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. 617 (2018)
The U.S. Supreme Court ruled in favor of a baker who refused to make a wedding cake for a same-sex couple. But the decision was based on very narrow grounds (regarding neutrality at the hearing), and left the larger free speech issue of whether business owners have a right to refuse service to same-sex couples undecided.
McDonough, petitioner, 457 Mass. 512 (2010)
"(1) where a witness with a disability requests accommodation in order to testify, Mass. Equal Rights Act requires that the court provide such accommodation, so long as it is "reasonable," G.L. c. 93, § 103(a); (2) where there is a dispute concerning such a witness's request for accommodation, a judge should conduct a hearing to resolve the dispute, preferably before trial, and the witness should be provided with reasonable accommodation, if available, during the pretrial hearing; and (3) where a judge precludes a witness with a disability from testifying by denying a request for accommodation, the party proffering the witness, but not the witness, may appeal the judge's interlocutory ruling as a matter of right to the Appeals Court."
Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023)
Affirmative action. The Supreme Court held that race-based (affirmative action) admissions programs at educational institutions are unconstitutional and violate the Equal Protection Clause of the Fourteenth Amendment.
Thurdin v. SEI Boston, LLC, 452 Mass. 436 (2008)
An employee of a business with fewer than six employees (who is thus unable to sue under MGL c.151B) can sue for employment discrimination under a provision of the the Massachusetts Equal Rights Act (MGL c. 93, § 102).
Williams v. Kincaid, U.S. Court of Appeals, Fourth Circuit (2022), WL 3364824
The Americans with Disabilities Act (ADA) protects transgender people from discrimination. The ADA covers “gender dysphoria” a “discomfort or distress that is caused by a discrepancy between a person's gender identity and that person's sex assigned at birth.” This case involves a transgender woman who was placed in a men’s prison where she was denied hormone therapy and suffered harassment. The ruling applies also to workplace and public accommodations.
Yee v. Mass. State Police, 481 Mass. 290 (2019)
Denial of a lateral transfer to a preferred position "may constitute an adverse employment action within the meaning of G. L. c. 151B."
Divorce
DNA evidence
- See also: Law about DNA evidence
Comm. v. Anitus, 93 Mass. App. Ct. 104 (2018)
"Where the presence of the defendant's deoxyribonucleic acid (DNA) on moveable objects found at the scene of the crime...did not provide sufficient information to determine when the DNA was deposited on the objects, such DNA evidence alone, or in combination with other attenuated evidence presented by the Commonwealth, was insufficient to sustain the defendant's conviction."
Comm. v. Barnett, 482 Mass. 632 (2019)
Sets forth a model jury instruction for inconclusive DNA evidence: "In this case, you heard expert testimony about inconclusive DNA testing. Where DNA results are deemed inconclusive, the results provide no information whatsoever as to the source of the DNA. Therefore, inconclusive results may not be considered for any identification purpose. Inconclusive DNA results may be considered only if there is a suggestion that the Commonwealth failed to adequately investigate the crime."
Comm. v. Dixon, 458 Mass. 446 (2010)
The return of a DNA indictment tolled the 15 year statute of limitations in a rape case. "Probably more than proper names or physical characteristics, DNA profiles unassailably fulfil the constitutional requirement that an indictment provide 'words of description which have particular reference to the person whom the Commonwealth seeks to convict.'"
Comm. v. Duarte, 56 Mass. App. Ct. 714 (2002)
Expert testimony regarding DNA evidence admitted at trial did not require expert to be present during testing where expert had knowledge of DNA testing procedures, access to analyst's notes, and knowledge of training and proficiency testing required.
Comm. v. Hill, 54 Mass. App. Ct. 690 (2002)
Held that DNA testing conducted in accordance with valid scientific theory and reliable methodology provided a sound basis upon which an expert may formulate an opinion.
Comm. v. Johnson, 482 Mass. 830 (2019)
A person who is in custody for failing to register as a sex offender (and not for the original sex offense) has standing to ask for DNA testing of biological material related to his only sex offense.
Comm. v. Lanigan, 419 Mass. 15 (1994)
Held that reliability of scientific evidence (here, DNA evidence) can be shown by a means other than that of showing "general acceptance" by the scientific community.
Comm. v. Linton, 483 Mass. 227 (2019)
Provides extensive discussion about types of DNA testing. In this case, the court affirmed the denial of post-conviction testing, because they must consider the evidence that was available to the judge at a given point in time, even if enhanced testing now might represent a material difference from what was available at trial.
Comm. v. Mattei, 455 Mass 840 (2010)
Court found it was reversible error to admit evidence that defendant could not be excluded by DNA evidence in the absence of testimony to explain the statistical significance of the test results.
Comm. v. Moffat, 478 Mass. 292 (2017)
"Discussion of the statutory provisions governing postconviction motions for forensic and scientific testing of evidence."
Comm. v. Tassone, 468 Mass. 391 (2014)
The prosecution must, at a minimum, call an expert affiliated with the laboratory where the testing took place when offering an opinion about a match.
Comm. v. Williams, 481 Mass. 799 (2019)
G.L. c. 278A provides a way for a convicted defendant who claims to be factually innocent to get postconviction DNA testing to prove his innocence. In this case, the court said that if the defendant is asserting self-defense, which means a crime was never committed, he may also request DNA testing.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
Court found that the "general acceptance" principle regarding scientific evidence (including DNA evidence) was not necessary as a precursor to the admissibility of such evidence under the Federal Rules of Evidence. Note: "At this point, Rule 702 has superseded Daubert, but the standard of review that was established for Daubert challenges is still appropriate," United States v. Garcia Parra, 402 F.3d 752.
Landry v. Attorney General, 429 Mass. 336 (1999)
Court found that the involuntary taking of blood, without probable cause, did not violate the 4th Amendment of the U.S. Constitution or Article 14 of the Commonwealth's Constitution, as this type of search is not unreasonable.
Maryland v. King, 569 U.S. 435 (2013)
“Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure.”
Murphy v. Dept. of Correction, 429 Mass. 736 (1999)
Court stated that individuals incarcerated on or after 12/29/97 with [1 of 33] designated offenses were required to provide DNA samples under MGLA c. 22E.
Randolph v. Commonwealth, 488 Mass. 1 (2021)
Third parties who are ordered to provide DNA samples must be permitted to appeal before doing so.
U.S. v. Lowe, 954 F.Supp. 401 (D. Mass. 1996)
Held that DNA profiling evidence from Restriction Fragment Length Polymorphism (RFLP) analysis is sufficiently reliable to be admissible, and that the risk of contamination did not render the test results unreliable.
U.S. v. Shea, 957 F.Supp. 331 (D. N.H., 1997)
Held that Polymerase Chain Reaction (PCR) method of DNA testing was scientifically reliable, and so met the Daubert standard for the test to be admissible.
Domestic violence (209A)
- See also: Law about domestic violence (209A)
Bosse v. Bosse, SJC Single Justice 91-493 (1991)
"[W]here in-hand service is not reasonably possible, post-facto notice by mail to last known address and by publication is consistent with § 7...Mandating personal service where the defendant has, by disappearing, made personal service impossible would enable defendants, the perpetrators of abuse, to deny their victims the protection of our courts under G. L. c. 209A."
Boston Housing Authority v. Y.A., 482 Mass. 240 (2019)
Eviction and domestic violence. Even though the tenant did not tell her landlord that domestic violence was one reason she couldn't pay her rent, she did mention it in court to the judge. The judge should have asked further questions to decide if the tenant was entitled to protection under the Violence Against Women Act, 34 U.S.C. §§ 12291 et seq.
Calliope C. v. Yanni Y., 103 Mass. App. Ct. 722 (2024)
The effect a c. 209A order has on a defendant is not relevant to a judge’s assessment of whether to issue a 209A order.
Comm. v. Collier, 427 Mass. 385 (1998)
The Commonwealth must prove beyond a reasonable doubt that the defendant acted intentionally leading to a violation of the order when a third party is involved in the act that led to the violation.
Comm. v. Housen, 83 Mass. App. Ct. 174 (2013)
Defendant who had permission by former girlfriend to enter her home was still required to leave when each of her children came home because the children had the right to individual protection under the 209A order, and so could be charged with multiple offenses stemming from the same activity.
Comm. v. Jacobsen, 419 Mass. 269 (1995)
A warrantless arrest for abuse may be made under M.G.L. Ch. 209A, § 6(7) if there is reason to believe a person is in fear of serious imminent physical harm.
Comm. v. Sanborn, 477 Mass. 393 (2017)
This court concluded that G. L. c. 209A does not authorize the police to effectuate a motor vehicle stop to serve a civil abuse prevention order; instead, c. 209A requires law enforcement to take reasonable measures to serve abuse prevention orders, and in order for the service of such orders to be reasonable, the manner of service must comply with the terms of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.
Comm. v. Shea, 467 Mass. 788 (2014)
When an out-of-state abuse protection order is allegedly violated within the Commonwealth of Massachusetts, it is treated as a violation under Massachusetts law.
Comm. v. Telcinord, 94 Mass. App. Ct. 232 (2018)
A 209A order to “stay away from” a residence is not unconstitutionally vague. Judges should explain to the jury what the stay away order means and what it is should accomplish within the order.
Comm. v. Watson, 94 Mass. App. Ct. 244 (2018)
There are "two ways that someone can violate an order to stay away from a workplace or residence: (1) entering the property on which the workplace or residence is located, or (2) taking actions that directly intrude on the workplace or residence.” Close proximity to the property should be considered when determining whether a defendant has intruded on a workplace or residence in violation of the stay away order.
Cordelia C. v. Steven S., 95 Mass. App. Ct. 635 (2019)
Standard of proof for modification. Clarifies that the standard of proof required to modify an existing order "depends upon the status of the existing order, the nature of the modification sought, and, in some cases, whether the plaintiff or the defendant seeks the modification."
E.C.O. v. Compton, 464 Mass. 558 (2013)
Online dating counts. "Chapter 209A must be interpreted to protect all who are in a substantive dating relationship from abuse, regardless of whether the relationship was developed or conducted by the use of technology."
MacDonald v. Caruso, 467 Mass. 382 (2014)
To terminate an abuse protection order, "the significant change in circumstances must involve more than the mere passage of time, because a judge who issues a permanent order knows that time will pass. Compliance by the defendant with the order is also not sufficient alone to constitute a significant change in circumstances, because a judge who issues a permanent order is entitled to expect that the defendant will comply with the order."
M.G. v. G.A., 94 Mass. App. Ct. 139 (2018)
"Judges sitting in the District Court and Boston Municipal Court hearing a complaint for relief under G. L. c. 209A, after notice to the defendant, are not authorized to dismiss the complaint at the close of the plaintiff's case simply because they do not believe some or all of the plaintiff's testimony. Instead, the resolution of questions of credibility, ambiguity, and contradiction must await the close of the evidence."
Rauseo v. Rauseo, 50 Mass. App. Ct. 911 (2001)
Court held that even the sending of flowers by defendant who was under abuse prevention order could be construed by wife as a hostile and threatening act in light of the existing order.
Szymkowski v. Szymkowski, 57 Mass. App. Ct. 284 (2003)
Courts should not issue an order under MGL c. 209A because it would be a good idea or because it won’t cause any inconvenience to the defendant. Orders should be issued only when there is an imminent threat of serious physical harm.
V.M. v. R.B., 94 Mass. App. Ct. 522 (2018)
The "existence of a substantive dating relationship is an element of a c. 209A claim and not a prerequisite for subject matter jurisdiction."
Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184 (2020)
Where "the plaintiff seeks protection from the effects of past sexual abuse, she need not allege a fear of imminent future sexual abuse."
Drug detection dogs
Drunk or drugged driving
- See also: Law about drunk or drugged driving
Operating under the influence of alcohol
Burke v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, 90 Mass.App.Ct. 203 (2016)
An "admission to sufficient facts", or CWOF, counts as a previous conviction and thus the registrar has the authority to suspend the driver's license for more than 180 days.
Comm. v. Bohigian, 486 Mass. 209 (2020)
Blood cannot be drawn from a driver who has been charged with OUI without their consent, and obtaining a search warrant is not an alternative to consent.
Comm. v. Daigle, 99 Mass.App.Ct. 107 (2021)
Before the Commonwealth can introduce evidence of a breath test not registering an adequate sample as a refusal, they "must show, at a minimum, that the person administering the test is a certified operator and that the breathalyzer machine is functioning properly."
Comm. v. Dennis, 96 Mass.App.Ct. 528 (2019)
Police need a warrant or "exigent circumstances" to draw blood. If there are exigent circumstances, the person still has the right to refuse, and the blood can only be drawn with their consent.
Comm. v. Escobar, 490 Mass. 488 (2022)
Defendants charged with vehicular homicide as a result of drunk or reckless driving cannot be held without bail.
Comm. v. Hallinan, 491 Mass. 730 (2023)
"...defendants who pleaded guilty or who were convicted after trial, and the evidence against whom included breath test results from the Alcotest 9510 device from June 1, 2011, through April 18, 2019, are entitled to a conclusive presumption of egregious government misconduct. They may proceed in motions to withdraw their guilty pleas, and motions for new trials, without having to establish egregious government misconduct in each case..."
Comm. v. Mansur, 484 Mass. 172 (2020)
Having an open container in your vehicle is a civil, not criminal, offense.
Comm. v. Neary-French, 475 Mass. 167 (2016)
There is no right to counsel before a defendant decides whether to take a breathalyzer test.
Comm. v. Richards, 480 Mass. 413 (2018)
A defendant whose license is revoked for refusal to consent to a breathalyzer, and is later found not guilty of driving under the influence, may immediately request reinstatement of his license. The court will consider the facts as they exist at the time of acquittal, and if the reinstatement is denied, the defendant may not come back at a future date to request reinstatement.
Comm. v. Wolfe, 478 Mass. 142 (2017)
A "judge should not give a jury instruction that specifically mentions the absence of breathalyzer or other alcohol-test evidence unless the defendant requests it."
Comm. v. Zucchino, 493 Mass. 747 (2024)
The requirement for a defendant’s consent in order for blood alcohol content (BAC) tests to be admissible only applies to prosecutions of operating a motor vehicle while under the influence of alcohol or drugs in violation of G.L. c. 90 § 24 (1) (a) (simple OUI).
DiGregorio v. Registrar of Motor Vehicles, 78 Mass. App. Ct. 775 (2011)
When relying on an out-of-state drunk driving conviction to impose a license suspension, the suspension begins with the date of conviction, not the date the registry found out about it.
Operating under the influence of marijuana
Comm. v. Davis, 481 Mass. 210 (2019)
Police officer had probable cause to arrest the defendant for operation of a motor vehicle while under the influence of marijuana based on the officer’s observations of the defendant’s behavior.
Comm. v. Gerhardt, 477 Mass. 775 (2017)
"[T]here is as yet no scientific agreement on whether, and, if so, to what extent, [field sobriety] tests are indicative of marijuana intoxication...Neither a police officer nor a lay witness who has not been qualified as an expert may offer an opinion as to whether a driver was under the influence of marijuana." A police officer may testify, however, about his or her observations, including observations of the defendant's performance on requested behaviors.
Operating under the influence of prescription medication
Commonwealth v. Bishop, 78 Mass.App.Ct. 70 (2010), review denied 458 Mass. 1110
On the issue of involuntary intoxication, a judge should instruct the jury that a defendant is entitled to an acquittal if her intoxication was caused solely by her prescription medication, taken as prescribed, and she did not know or have reason to know of the possible effects of the drug on her driving abilities, but the jury can find the defendant guilty if they find that alcohol contributed to her intoxication.
Commonwealth v. Reynolds, 67 Mass.App.Ct. 215 (2006), review denied 447 Mass. 1112
Court correctly denied defendant's motion for required finding of not guilty of felony vehicular homicide where there was evidence on the essential element of intoxication that the defendant knew the consequences of taking the prescription drugs she consumed.
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