Massachusetts law about criminal law and procedure

A compilation of laws, regulations, cases, and web sources on criminal law and procedure law.

Massachusetts laws

Massachusetts criminal laws are primarily in MGL chapters 263-272:

MGL c.263 Rights of Persons Accused of Crime
MGL c.264 Crimes Against Governments
MGL c.265 Crimes Against the Person
MGL c.266 Crimes Against Property
MGL c.267 Forgery and Crimes Against Currency
MGL c.268 Crimes Against Public Justice
MGL c.269 Crimes Against Public Peace
MGL c.270 Crimes Against Public Health
MGL c.271 Crimes Against Public Policy
MGL c.272 Crimes Against Morality
MGL c.274, s.1 Misdemeanors and Felonies "A crime punishable by death or imprisonment in the state prison is a felony. All other crimes are misdemeanors."

Massachusetts criminal procedure laws are primarily in MGL c.275-280.

District Court Complaint Manual, Mass. District Court
Includes suggested language and offense codes used by prosecutors to charge someone with any of approximately 5000 offenses mentioned in the General Laws, Code of Mass. Regulations, and municipal ordinances & by-laws, provides the authorized sentencing range for each offense, and, if the penalty for an offense is derived from a different statute, that statute is referenced.

Master Crime List, Mass. Sentencing Commission
Lists felonies and misdemeanors first by MGL reference, and then alphabetically by offense, specifying the penalty type and sentencing information.

Mass. Rules of Criminal Procedure

Superior Court Criminal Case Management (Standing Order 2-86: amended)

Massachusetts Guide to Evidence

Rules Governing Persons Authorized to Admit to Bail Out of Court

District Court Standards of Judicial Practice: The Complaint Procedure

Potential Money Assessments in Criminal Cases, District Court Dept.


Criminal procedure forms

Selected case law

Cell phone searches

Commonwealth v. Dorelas, 473 Mass. 496 (2016)
Police armed with a warrant to search a defendant's cell phone for communications were also permitted to search photograph files on the phone.

Commonwealth v. Estabrook, 472 Mass. 852 (2015).
A "request for historical CSLI [cellular site location information] for a period covering six hours or less does not require a search warrant in addition to a [18 USC] § 2703(d) order....This exception to the warrant requirement for CSLI applies only to 'telephone call' CSLI,..., and not to 'registration' CSLI. 'Telephone call' CSLI indicates the 'approximate physical location . . . of a cellular telephone only when a telephone call is made or received by that telephone.' ...By contrast, 'registration' CSLI 'provides the approximate physical location of a cellular telephone every seven seconds unless the telephone is 'powered off,' regardless of whether any telephone call is made to or from the telephone.'

Commonwealth v. White, 475 Mass. 583 (2016)
"Probable cause to search or seize a person's cellular telephone may not be based solely on an officer's opinion that the device is likely to contain evidence of the crime under investigation... also ... in these circumstances, the Commonwealth has not... met its burden of demonstrating that the delay of sixty-eight days between the seizure and the application for a search warrant was reasonable."

Riley v. California, 573 US __ (June 25, 2014). 
Warrantless search of cell phone incident to arrest is unconstitutional. "The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested."

Other topics

Commonwealth v. Adjutant, 443 Mass. 649 (2005). Self-Defense Evidence
Court held: "we are persuaded that evidence of a victim's prior violent conduct may be probative of whether the victim was the first aggressor where a claim of self-defense has been asserted and the identity of the first aggressor is in dispute. Consequently, when such circumstances are present, we hold, as a matter of common-law principle, that trial judges have the discretion to admit in evidence specific incidents of violence that the victim is reasonably alleged to have initiated."

Commonwealth v. Brown, 477 Mass. 805 (2017) Felony-Murder
"following the issuance of this opinion, a conviction of felony-murder will require a finding of actual malice, not merely constructive malice, and that as a result, felony-murder will no longer be an independent theory of liability for murder but will be limited to its statutory role under G. L. c. 265, § 1, as an aggravating element of murder that permits a jury to find a defendant guilty of murder in the first degree where the murder was neither premeditated nor committed with extreme atrocity or cruelty but was committed in the course of a felony punishable by life imprisonment."

Commonwealth v. Bruneau, 472 Mass. 510 (2015) Appealing not guilty by reason of mental illness
A criminal defendant who was found not guilty by reason of mental illness may appeal. "We recognize that Mass. R. Crim. P. 28 (c)... which provides for notification of the right to appeal "[a]fter a judgment of guilty is entered," does not by its terms require notification for defendants found not guilty by reason of mental illness of their right to appeal. We therefore refer the rule to the standing committee of this court for criminal rules." 

Commonwealth v. Clark, 461 Mass. 336 (2012). Invoking Miranda rights by shaking head
Shaking head "no" is sufficient invocation of Miranda right to remain silent.

Commonwealth v. Digiambattista, 442 Mass. 423 (2004). Taping confessions and jury instructions when interrogations are not recorded. "When the prosecution introduces evidence of a defendant's confession or statement that is the product of a custodial interrogation or an interrogation conducted at a place of detention (e.g., a police station), and there is not at least an audiotape recording of the complete interrogation, the defendant is entitled (on request) to a jury instruction advising that the State's highest court has expressed a preference that such interrogations be recorded whenever practicable, and cautioning the jury that, because of the absence of any recording of the interrogation in the case before them, they should weigh evidence of the defendant's alleged statement with great caution and care. Where voluntariness is a live issue and the humane practice instruction is given, the jury should also be advised that the absence of a recording permits (but does not compel) them to conclude that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt."

Commonwealth v. Dixon, 458 Mass. 446 (2010). DNA Indictment
"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.'"

Commonwealth v. Gautreaux, 458 Mass. 741 (2011). Notification to consulate of arrest. 
"We conclude that the notifications required by art. 36 [of the Vienna Convention] must be provided to foreign nationals on their arrest; and, if not provided, a challenge to the soundness of any conviction resulting therefrom may be made in a motion for a new trial. The standard to be applied in such circumstances is the substantial risk of a miscarriage of justice standard, one that the defendant has not met in this case."

Commonwealth v. Gelfgatt, 468 Mass. 512 (2014). Defendant can be compelled to disclose the encryption key to computer files.

Commonwealth v. Gomes, 459 Mass. 194 (2011). Judge must go on view.
"This court will henceforth require, as a matter of common law, that judges attend a view."

Commonwealth v. Gonsalves, 445 Mass. 1 (2005). Victim/Witness Statements.
Most statements given to police investigating a crime may not be used at trial unless the witness can be cross-examined.

Commonwealth v. Grassie, 476 Mass. 202 (2017) Grand Jury proceedings must be recorded.
"[T]he entire grand jury proceeding - with the exception of the grand jury's own deliberations - is to be recorded in a manner that permits reproduction and transcription. This shall include any legal instructions provided to the grand jury by a judge or a prosecutor in connection with the proceeding, as well as a record of all those present during the proceeding, excluding the names of the grand jurors."

Commonwealth v. Guzman, 446 Mass. 344, 845 NE2d 270 (2006). Accord and Satisfaction.
Case regarding the constitutionality of MGL c.272, s.55, which states "If a person committed to jail is under indictment or complaint for, or is under recognizance to answer to, a charge of assault and battery or other misdemeanor for which he is liable in a civil action, unless the offence was committed by or upon a sheriff or other officer of justice, or riotously, or with intent to commit a felony, and the person injured appears before the court or justice who made the commitment or took the recognizance, or before which the indictment or complaint is pending, and acknowledges in writing that he has received satisfaction for the injury, the court or justice may in its or his discretion, upon payment of such expenses as it or he shall order, discharge the recognizance or supersede the commitment, or discharge the defendant from the indictment or complaint, and may also discharge all recognizances and supersede the commitment of all witnesses in the case."

Commonwealth v. Harris, 11 Mass. App. Ct. 165 (1981). Citizen's Arrest.
"In Massachusetts a private person may lawfully arrest someone who has in fact committed a felony... The stricter requirement for a citizen's arrest -- that the person arrested be shown in fact to have committed a felony -- is designed to discourage such arrests and to prevent "the dangers of uncontrolled vigilantism and anarchistic actions." ...Generally, the person arrested must be convicted of a felony before the "in fact committed" element is satisfied and the arrest validated. If the citizen is in error in making the arrest, he may be liable in tort for false arrest or false imprisonment."

Commonwealth v. Montoya, 457 Mass. 102 (2010), and Commonwealth v. Quintos Q., 457 Mass. 107 (2010). Resisting Arrest.
Creating a "substantial risk of injury to police" by fleeing from a police stop is resisting arrest, whereas merely fleeing from police after being stopped is not.

Commonwealth v. Murphy, 448 Mass. 452 (2007). Jailhouse Informants
"Where the government has entered into an "articulated agreement containing a specific benefit," or promise thereof, the recipient inmate is a government agent for purposes of the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights even if the inmate is not directed to target a specific individual."

Commonwealth v. Narcisse, 457 Mass. 1 (2010). Stop and Frisk
"Today we mark the end of Fraser's role as an exception, and we state expressly that police officers may not escalate a consensual encounter into a protective frisk absent a reasonable suspicion that an individual has committed, is committing, or is about to commit a criminal offense and is armed and dangerous."

Commonwealth v. Patterson, 445 Mass. 626 (2005). Fingerprint evidence
The court held that while "the underlying theory and process of latent fingerprint identification, and the ACE-V method in particular, are sufficiently reliable to admit expert opinion testimony regarding the matching of a latent impression with a full fingerprint," the same theory and methodology cannot be "applied reliably to simultaneous impressions not capable of being individually matched to any of the fingers that supposedly made them."

Commonwealth v. Perez, 460 Mass. 683 (2011). CSI effect.
"Although anecdotal reports and media coverage have fueled concerns within the legal community about the so-called "CSI effect," there is little empirical evidence supporting its existence."... Nevertheless, "the trial judge did not abuse his discretion questioning the venire about their views on scientific evidence."

Commonwealth v. Portillo, 462 Mass. 324 (2012). English transcript of interrogation in foreign language
"where the Commonwealth intends in its case-in-chief to offer at a criminal trial statements made by a defendant in a foreign language in a tape-recorded interview, a judge has discretion to require the Commonwealth to provide defense counsel in advance of trial with an English-language transcription of the interview, and to exclude the statements where the Commonwealth declines to do so."

Commonwealth v. Rodriguez, 461 Mass. 256 (2012)
Judge can reduce sentence below recommendation by prosecutor in plea deal. "We conclude that where, as here, 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 whether a plea agreement includes an agreed sentence recommendation."

Commonwealth v. Warren, 475 Mass. 530 (2016) Running away
"Evasive conduct in the absence of any other information tending toward an individualized suspicion that the defendant was involved in the crime is insufficient to support reasonable suspicion.... We do not eliminate flight as a factor in the reasonable suspicion analysis whenever a black male is the subject of an investigatory stop. However, in such circumstances, flight is not necessarily probative of a suspect's state of mind or consciousness of guilt. Rather, the finding that black males in Boston are disproportionately and repeatedly targeted for FIO encounters suggests a reason for flight totally unrelated to consciousness of guilt. Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity."

McDonough, petitioner, 457 Mass. 512 (2010). "(1) where a witness with a disability requests accommodation in order to testify, MERA 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."

Miranda v. Arizona, 384 US 436 (1966). Required Warnings.
"In dealing with custodial interrogation, we will not presume that a defendant has been effectively apprised of his rights and that his privilege against self-incrimination has been adequately safeguarded on a record that does not show that any warnings have been given or that any effective alternative has been employed." See also, Miranda v. Arizona Explanation from National Paralegal College.

Jury instruction

Most wanted lists

Web sources

Appeals Court Frequently Asked Questions, Mass. Appeals Court
Provides essential information in a question and answer format on how to file an appeal in both civil and criminal cases. Covers everything from the notice of appeal to how long to expect to wait for a decision. Great resource!

Bail Basics: What Bail Is, How It Works, Mass. Trial Court Self-Help Center.
Explains the law and process of bail in Massachusetts.

Criminal Law: Desk Reference, Nolo, 2015
A-Z Guide to crimes, punishments and more. Requires library card for access.

The Criminal Law Handbook: Know Your Rights, Survive the System, Nolo, 2013
Explains the criminal system in plain English. Offers an overview of the criminal justice system from arrest to appeal and more. Requires library card for access.

Featured Practice Tips from the Superior Court Bench, MCLE
A "series of short video briefings offering practical and sage advice from more than forty active and alumni members of the Massachusetts Superior Court."

Frequently Asked Questions About Inquests, Boston Herald. Attribution is unclear, but we believe this was written by the District Court Dept. Explains how the inquest process works

Massachusetts Criminal Practice, 4th ed., by Blumenson, Eric D.
Full-text available via Suffolk University Law School. c 2012

Do No Wrong: Ethics for Prosecutors and Defenders, American Bar Association, 2009.

Massachusetts Criminal Law: A District Court Prosecutor's Guide, by Richard G. Stearns, loose-leaf.

Massachusetts Practice v.32 (Criminal Law), 3d ed, West, 2001 with supplement

Last update: October 17, 2017


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