The defendant in Commonwealth v. Goncalves installed a camera high on the living room wall of his basement apartment in Edgartown and aimed the camera at the couch. In December 2021, the defendant and the victim, whom the defendant had met through an online application, had a sexual encounter that began on the couch. The defendant used the camera to photograph the nude victim without the victim’s knowledge.

Two weeks later, the defendant sent the victim a photograph from the encounter. The evidence at trial showed that the defendant sent the photograph only to the victim.

A jury in the Edgartown District Court found the defendant guilty of photographing an unsuspecting nude person under G.L. c. 272, § 105(b), and of disseminating the photograph under G.L. c. 272, § 105(c). On October 6, 2026, the Supreme Judicial Court (SJC) decided the defendant’s appeal under two rules. Commonwealth v. Goncalves, No. SJC-13880 (Mass. Oct. 6, 2026).

The first rule governs the photographing. The Commonwealth must prove that the defendant photographed the victim intentionally and intended to keep the photographing secret. The SJC held that the evidence was sufficient to prove an intent to record in secret and upheld the conviction for photographing an unsuspecting nude person.

The second rule governs dissemination. The Commonwealth must prove that the defendant disseminated the image to at least one third party, meaning a person other than the person shown in the image. Sending a secretly recorded image only to the person shown in the image is not dissemination under § 105(c). The SJC reversed the dissemination conviction and directed the entry of a judgment of not guilty, because the defendant sent the photograph only to the victim.

This post explains each rule, the evidence at trial, and how defense counsel uses the decision in a pending case.

Secretly Photographing a Nude Person and Disseminating the Image Under G.L. c. 272, § 105

Section 105(b) punishes a person who willfully photographs, videotapes, or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide the photographing, videotaping, or surveillance. The Commonwealth must also prove that the person photographed would reasonably expect privacy from being photographed in the place and circumstances where the photographing occurred. The photographing must have occurred without the knowledge and consent of the person photographed.

A judge may sentence a person convicted under § 105(b) to up to two and one half years in a house of correction, a fine of up to $5,000, or both. The § 105(b) offense is a misdemeanor.

Section 105(c) punishes a person who willfully disseminates the visual image of another person, knowing that the image was obtained in violation of § 105(b), without the consent of the person shown in the image. Section 105 does not define the word “disseminates.”

A judge may sentence a person convicted under § 105(c) to up to two and one half years in a house of correction or up to five years in state prison. The judge may also impose a fine of up to $10,000, instead of or in addition to imprisonment. Dissemination under § 105(c) is a felony under G.L. c. 274, § 1, because § 105(c) provides for a state prison sentence.

Section 105 applies to video and electronic surveillance as well as to photographs. Section 105(a) defines “electronically surveils” as viewing, obtaining, or recording a person’s visual image with a camera, cell phone, computer, television, or other electronic device. The SJC used the words “photograph” and “photographing” in Goncalves because the witnesses and the parties used those words.

A hidden camera can also record sound. The police can apply for a complaint under the Massachusetts wiretap statute, G.L. c. 272, § 99, against a person who secretly records a conversation without the prior authority of every party to the conversation.

The Evidence at Trial

The defendant’s profile on the online application stated, “I will never make videos.” On December 6, 2021, the victim came to the defendant’s apartment. The sexual encounter began on the living room couch, where the victim sat nude, facing the camera. The victim did not notice the camera or any other sign of recording. After about ten minutes, the defendant and the victim moved to the defendant’s bedroom.

The defendant had mounted the camera high on the living room wall, near a dark-colored pipe and a dark gap between the ceiling and the wall. The defendant had pointed the camera directly at the couch.

The defendant and the victim next communicated two weeks later, when the victim sent the defendant a text message. The defendant responded with a photograph from the December 6 encounter, showing the defendant and the victim, both nude, in the living room. The victim wrote back and questioned the defendant about “secretly recording guys that come over.” The victim also raised the possibility of reporting the defendant to the Edgartown police. The defendant replied, “Block u[.] Bye.”

Police later searched the apartment and saw the camera installed in the living room. The police also found the empty box in which the camera was sold, inside a dresser drawer in the defendant’s bedroom. The defendant had posted no signs in the apartment telling visitors about recording.

The police found no photograph or other recording of the victim in the defendant’s possession. The camera contained no memory card at the time of the search. The police could not open the defendant’s cell phone.

The defendant later told a police officer, “So I make porno,” and laughed.

A jury heard the case in the Edgartown District Court in March 2024. The defendant presented no evidence. The jury found the defendant guilty on both charges. The judge sentenced the defendant on each conviction to ninety days in a house of correction, with ten days to serve and the balance suspended for one year. The judge ordered the two sentences served at the same time and also imposed one year of administrative probation.

The SJC granted the defendant’s application for direct appellate review. The SJC therefore decided the appeal without a decision from the Appeals Court.

The Intent to Record in Secret Under § 105(b)

The SJC held that the evidence was sufficient for the jury to find that the defendant willfully photographed the victim in the nude and that the defendant intended to keep the photographing secret. The parties agreed that “willfully” means “intentional[ly] and by design[,] in contrast to that which is thoughtless or accidental.”

The defendant argued that the photographing was accidental. The SJC rejected the defendant’s argument that the evidence supported a finding of accident as strongly as a finding of willful photographing. The SJC pointed to five facts.

• The jury could infer from the empty camera box in the defendant’s dresser that the defendant installed the camera while living in the apartment.
• The defendant installed the camera high on the living room wall and pointed the camera directly at the couch where the sexual encounter began.
• The defendant showed that he knew he had photographed the encounter when he answered the victim’s text message with a photograph from the encounter.
• The defendant did not claim that the recording was accidental when the victim questioned him about “secretly recording guys that come over.” The defendant instead replied, “Block u[.] Bye.”
• The defendant told the police, while laughing, that he had made “porno.”

The SJC held that the jury could find that the defendant’s reply to the victim and the defendant’s statement to the police showed consciousness of guilt, meaning an awareness that he had done something wrong. The SJC described the statement to the police as an apparent attempt to minimize the defendant’s conduct.

The SJC also held that the evidence supported the jury’s finding that the defendant intended to keep the photographing secret. The jury could find that the defendant chose the camera’s location to make the camera less noticeable to visitors. The defendant never told the victim about the camera and never asked for the victim’s consent. Moreover, the jury could find that the defendant wrote “I will never make videos” in his profile to reassure prospective visitors.

The defendant argued that evidence of his failure to seek consent could not also prove his intent to hide the photographing, because lack of consent is a separate element of § 105(b). The SJC disagreed with the defendant. The SJC held that the defendant’s failure to tell the victim about the camera, considered together with the camera’s placement, tended to prove that the defendant intended to keep the photographing secret.

Dissemination to a Third Party Under § 105(c)

The SJC held that dissemination under § 105(c) requires dispersing the image to at least one third party. In the SJC’s words, “sending a photograph of a victim solely to the victim himself or herself does not amount to ‘disseminat[ing]’ the photograph.” The Commonwealth offered no evidence that the defendant sent the photograph to anyone other than the victim. The SJC therefore held that the Commonwealth did not prove the dissemination charge.

The SJC began with the ordinary meaning of the word “disseminates.” Dictionary definitions describe dissemination as spreading, dispersing, or scattering widely. From those definitions, the SJC concluded that the plain meaning of “disseminate” involves “spreading or dispersing material.”

The SJC also relied on the penalties in § 105. The Legislature set the penalties for dissemination under § 105(c) at twice the penalties for photographing under § 105(b). The SJC read the higher penalty as the Legislature’s recognition that spreading a secretly recorded image to other people causes a distinct and greater harm than creating the image.

The SJC identified the harm of dissemination as the exposure of the image to people such as friends, family members, employers, co-workers, teachers, classmates, and strangers on the internet. Sending the image only to the person shown in the image, the SJC wrote, “while no doubt in many cases a source of intense distress to the victim, does not entail these same harms.”

The Commonwealth argued that a victim who receives a secretly recorded image may treat the message as a veiled threat that the sender will send the image to others. The SJC responded that sending the image only to the victim does not cause the same harms as sending the image to third parties.

The Commonwealth also asked the SJC to apply the definition of “disseminate” in G.L. c. 272, § 31. Section 31 defines “disseminate” as to “import, publish, produce, print, manufacture, distribute, sell, lease, exhibit or display.” The SJC declined the Commonwealth’s request. The Legislature had expressly limited the § 31 definition to listed sections of chapter 272. Section 105(c) is not one of the listed sections.

Under the rule of lenity, a court resolves an ambiguity in a criminal statute in the defendant’s favor. The SJC held that any ambiguity about whether sending an image only to the victim is dissemination had to be resolved in the defendant’s favor.

The SJC described the case in terms of “sending” the photograph because the defendant sent the photograph to the victim. The SJC noted that a person can also disseminate an image by other methods.

The Jury Instructions on Intent and the SJC’s Model Instruction

The defendant argued for the first time on appeal that the judge’s instructions to the jury were flawed. According to the defendant, the instructions allowed the jury to convict him upon finding an intent to take photographs in general, without finding an intent to photograph the victim in the nude. The defendant’s trial counsel had not objected to the instructions. The SJC therefore applied the standard for errors that counsel did not raise at trial, asking whether any error created a substantial risk of a miscarriage of justice.

The SJC found no error in the instructions. The judge told the jury that the defendant’s act had to be intentional, “and not accidental or due to some inadvertence or inattentiveness,” and that the victim had to be nude or partially nude at the time. The defendant did not dispute that he was in the room with the nude victim at the time of the photograph. The SJC held that a reasonable jury would therefore have understood that a conviction required a finding that the defendant willfully photographed the victim while the victim was nude.

The SJC also set out a model jury instruction for the § 105(b) offense in an appendix to the opinion, for use in future cases. Defense counsel in a § 105(b) trial should compare the judge’s proposed instructions with the SJC’s model instruction and object at trial to any instruction that misstates an element. Counsel who objects at trial preserves the claim of instructional error for appeal.

Defending a § 105 Charge After Goncalves

The SJC upheld the § 105(b) conviction on circumstantial evidence of an intent to record in secret. The SJC relied on where the defendant placed the camera, where the defendant aimed the camera, what the defendant told prospective visitors in his profile, and how the defendant responded when the victim confronted him. Defense counsel in a § 105(b) case examines the same kinds of facts.

The facts to examine include who installed the camera, for what purpose, and what the camera was set to record. The facts also include whether visitors could see the camera or were told about the camera, and whether the person photographed would reasonably expect privacy from being photographed in the place where the photographing occurred.

Under Goncalves, the Commonwealth must prove that a person charged with dissemination under § 105(c) disseminated the image to at least one third party. Defense counsel can raise the third-party requirement at three stages of a § 105(c) case.

• At a clerk-magistrate hearing, counsel can argue that a § 105(c) application describing a message only to the person shown in the image does not establish probable cause of dissemination.
• Counsel can file a motion to dismiss a § 105(c) count when the complaint application describes a message only to the person shown in the image.
• At trial, counsel can move for a required finding of not guilty under Mass. R. Crim. P. 25 when the Commonwealth offers no evidence that anyone other than the person shown in the image received the image.

In a dissemination case, defense counsel examines who received the image, when, and by what method. The evidence of who received the image usually includes the messages themselves, phone extraction reports, records from the messaging platform or social media account, and the testimony of anyone who claims to have received the image.

Secretly Recorded Images Sent On or After September 18, 2024

The defendant in Goncalves sent the photograph in December 2021. An Act to Prevent Abuse and Exploitation took effect on September 18, 2024. In that Act, the Legislature added an offense to the criminal harassment statute, G.L. c. 265, § 43A(b), for the nonconsensual distribution of intimate images.

Section 43A(b) punishes the knowing distribution of visual material depicting another person who is nude, partially nude, or engaged in sexual conduct. The Commonwealth must prove that the distribution caused the person depicted physical or economic injury or substantial emotional distress. The Commonwealth must also prove one of two mental states.

• An intent to harm, harass, intimidate, threaten, coerce, or cause substantial emotional distress.
• Reckless disregard of the likelihood that the person depicted will suffer harm, harassment, intimidation, threat, coercion, or substantial emotional distress, of the person’s lack of consent to the distribution, and of the person’s reasonable expectation that the material would remain private.

Section 43A(b) contains a different word, “distributes.” Section 43A defines “distribute” as to “give, sell, transfer, disseminate, publish, upload, circulate, broadcast or engage in any other form of transmission, electronic or otherwise.” In Goncalves, the SJC interpreted the word “disseminates” in § 105(c), for conduct that occurred before § 43A(b) took effect. The SJC did not decide whether sending an intimate image only to the person shown in the image is distribution under § 43A.

For a secretly recorded image sent on or after September 18, 2024, the police can apply for a complaint under § 43A(b) as well as under § 105.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. The telephone number for Serpa Law Office is 617.936.0201.

Key Takeaways

• The Commonwealth must prove that a person charged with photographing an unsuspecting nude person under G.L. c. 272, § 105(b) photographed the person intentionally and intended to keep the photographing secret. In Commonwealth v. Goncalves, No. SJC-13880 (Mass. Oct. 6, 2026), the SJC held that the jury could find an intent to record in secret from the camera’s placement and aim, the defendant’s silence about the camera, and the defendant’s reply when the victim confronted him.
• The Commonwealth must prove that a person charged with dissemination under § 105(c) disseminated the image to at least one third party. Sending a secretly recorded image only to the person shown in the image is not dissemination. The SJC set aside the dissemination verdict in Goncalves and directed the entry of a judgment of not guilty.
• Dissemination under § 105(c) is a felony. A judge may sentence a person convicted of dissemination to up to five years in state prison. A judge may sentence a person convicted under § 105(b) to up to two and one half years in a house of correction.
• The SJC set out a model jury instruction for the § 105(b) offense in an appendix to the opinion.
• In Goncalves, the SJC interpreted only § 105(c). Since September 18, 2024, G.L. c. 265, § 43A(b) has also punished the nonconsensual distribution of intimate images. Section 43A defines “distribute” to include “give” and “transfer.”

Related Serpa Law Office resources

• Hidden Camera and Secret Recording Charges in Massachusetts
• Massachusetts Revenge Porn and Nonconsensual Intimate Image Law
• Massachusetts Revenge Porn and Nonconsensual Intimate Image FAQ
• Massachusetts Deepfake and AI-Generated Intimate Image Defense
• Secret Recordings and the Massachusetts Wiretap Statute (Mass. Gen. Laws ch. 272, § 99)
• Massachusetts Clerk-Magistrate Hearing Lawyer
• How Criminal Cases Get Dismissed in the Massachusetts District and Municipal Courts
• Rule 25: The Motion for a Required Finding of Not Guilty in Massachusetts
• Felonies and Misdemeanors in Massachusetts

This post is for general informational purposes only and is not legal advice. It is based on the Supreme Judicial Court’s public descriptions of the three appeals, the text of the statutes and rules, and news reporting. The Supreme Judicial Court has not decided the three appeals.

Federal immigration agents have arrested dozens of people who face pending criminal charges in Massachusetts courts. Immigration and Customs Enforcement (ICE) often holds these defendants in detention centers outside Massachusetts. Some are deported before their Massachusetts trials begin. The defendant cannot come to court, but the criminal case stays open. The Supreme Judicial Court (SJC) is now deciding what a Massachusetts judge should do with that criminal case.

The Boston Globe reported on October 2, 2026 that the SJC will hear three of these appeals in the coming week. According to the Globe, the Massachusetts courts recorded 614 immigration arrests at or near courthouses in 2025, more than double the 282 recorded in 2024. This post describes the three appeals, the questions the SJC will answer, and the state law that already governs ICE detainers and courthouse arrests.

The Three Appeals Before the Supreme Judicial Court

The SJC identified the three cases when it invited friend-of-the-court briefs earlier in 2026.

In Commonwealth v. Noralus, SJC-13882, ICE held the defendant in a detention center in Kentucky while his Massachusetts case was pending. The trial judge declined to issue a writ of habeas corpus to bring him to Massachusetts for trial. According to the Globe, the judge believed the court lacked authority to order his return once ICE had custody. The SJC will decide whether the trial judge erred in declining to issue the writ.

In Commonwealth v. Loredo, SJC-13875, the defendant faced drug charges. ICE detained him out of state and later deported him before his trial. He had moved to compel his presence at trial or, in the alternative, to dismiss the charges because the Commonwealth did not secure his appearance. The trial judge denied that motion. According to the Globe, the judge had issued writs for the defendant to appear by video. ICE honored some of those writs before it deported him.

In Commonwealth v. Martell-Lebron, SJC-13920, ICE agents arrested the defendant on March 27, 2025, during a lunch recess in his own trial at the Edward W. Brooke Courthouse in Boston. He was on trial in the Boston Municipal Court for charges arising from a driver’s license application. Judge Mark Summerville dismissed the charges with prejudice, which means the Commonwealth cannot bring them again. Judge Summerville also held the ICE agent in contempt. The Suffolk District Attorney’s Office appealed the dismissal and has stated that its prosecutors had no advance knowledge of the arrest.

The Questions the SJC Will Answer

In these three appeals, the SJC will decide what a Massachusetts judge can do when a federal agency holds a defendant who must appear for trial in a Massachusetts court. The Globe identified five questions before the SJC.

• Whether a Massachusetts judge can order ICE to bring a detained defendant to court for trial.
• What happens when ICE does not comply with a state court writ.
• Whether a judge should issue an arrest warrant for a defendant who misses court because ICE is holding the defendant.
• When a judge should dismiss the charges because the defendant cannot be brought to trial.
• Whether prosecutors must disclose that they know ICE plans to arrest a defendant.

Prosecutors and defense lawyers have both asked for guidance. A Bristol County assistant district attorney told the Globe that these cases “will become functionally unprosecutable” without guidance from the SJC. The Globe reported that the SJC is expected to rule within several months.

The Writ of Habeas Corpus and ICE Custody

A writ of habeas corpus to bring a prisoner to court is the ordinary order a Massachusetts judge issues when another jail or prison holds a defendant. The judge orders the custodian to deliver the defendant to the courtroom on a set date. A sheriff or a state prison complies because the Massachusetts court has authority over the sheriff and the state prison.

ICE is a federal agency. A federal immigration detention center operates under the authority of the federal government rather than a Massachusetts court. In the Noralus appeal, the trial judge concluded that the court had no power to order ICE to produce the defendant. The SJC will decide whether that conclusion was correct. In the Loredo case, the trial judge took a second approach and ordered that the defendant be made available by video.

The Speedy Trial Rule and an Unavailable Defendant

Rule 36 of the Massachusetts Rules of Criminal Procedure requires the Commonwealth to bring a defendant to trial within twelve months, after excluded periods of delay are subtracted. A defendant who is not tried within that time is entitled, on motion, to dismissal of the charges.

Rule 36(b)(2)(B) excludes delay caused by the absence or unavailability of the defendant. Under the rule, a defendant is unavailable when the defendant’s whereabouts are known but the defendant’s presence for trial “cannot be obtained by due diligence.” ICE usually holds a detained defendant at a known location. Under the text of Rule 36, the judge therefore asks what the Commonwealth did to obtain the defendant’s presence. The SJC’s decision on writs will affect what the Commonwealth must do to show due diligence when ICE holds the defendant.

What Massachusetts Law Already Says About ICE Detainers and Courthouse Arrests

The SJC has already limited what Massachusetts officers may do for ICE. In Lunn v. Commonwealth, 477 Mass. 517, 537 (2017), the SJC declared that Massachusetts law gives Massachusetts court officers no authority to arrest and hold a person solely on a federal civil immigration detainer after the person is otherwise entitled to release from state custody.

The Legislature added new rules in Chapter 163 of the Acts of 2026, which Governor Healey signed on August 5, 2026. The new G.L. c. 221D takes effect on November 3, 2026. Under G.L. c. 221D, no law enforcement officer may make a civil arrest in a courtroom. An officer who seeks to make a civil arrest elsewhere in a courthouse must show a judge, justice, or magistrate sitting in that courthouse a judicial warrant or judicial order authorizing the arrest. The chapter defines the courthouse to include its steps, plazas, sidewalks, walkways, and judicial branch parking lots. An ICE administrative warrant is not a judicial warrant. Serpa Law Office explains the rest of the new statute in a separate post on Chapter 163 and Massachusetts criminal cases.

Chapter 221D governs arrests at courthouses only. ICE agents may still arrest a defendant at home, at work, or on the street. The three SJC appeals address the criminal case that remains open after an arrest of that kind.

Steps for a Noncitizen Defendant With a Pending Case

A noncitizen charged with a crime in Massachusetts can face two proceedings at once. In the criminal case, a judge or jury decides whether the defendant is guilty, and a judge imposes any sentence. In federal immigration proceedings, an immigration judge decides whether the person may remain in the United States. A conviction or an admission to sufficient facts in the criminal case can lead the federal government to seek the person’s removal.

Defense counsel can take several steps while the SJC appeals are pending.

• Counsel can ask the judge to issue a writ of habeas corpus or an order for a video appearance if ICE detains the client.
• Counsel can move to dismiss under Rule 36 when the Commonwealth has not tried to bring a detained client to court.
• Counsel can ask the prosecutor whether the Commonwealth knows of any planned ICE action against the client.
• Counsel can have an immigration lawyer review any plea or admission to sufficient facts before the client offers one.

Under G.L. c. 278, § 29D, a judge must warn every defendant before accepting a guilty plea, a plea of nolo contendere, or an admission to sufficient facts. The judge warns that, for a person who is not a United States citizen, the plea or admission may lead to deportation, exclusion from admission to the United States, or denial of naturalization. The same statute provides that the defendant does not have to tell the court the defendant’s immigration status at the plea. The judge gives the same general warning to every defendant. The judge’s warning does not tell a particular defendant what will happen in that defendant’s immigration case. Serpa Law Office describes the federal rules in more detail on its pages about criminal convictions for immigrants and visa holders and motions for a new trial based on immigration advice.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. He represents clients in the Boston Municipal Court, the district courts, and the Superior Court. He also works with immigration counsel when a client’s immigration status is at stake.

Key Takeaways

• ICE has detained many people with pending Massachusetts criminal charges and has held some of them outside Massachusetts. ICE deported some of those defendants before trial.
• The SJC is hearing three appeals, Noralus, Loredo, and Martell-Lebron, on writs to ICE, missed trial dates, warrants, dismissal, and prosecutors’ disclosure duties.
• Rule 36 excludes delay from a defendant’s unavailability only when the defendant’s presence cannot be obtained by due diligence.
• Lunn v. Commonwealth bars Massachusetts court officers from holding a person solely on a civil immigration detainer.
• Beginning November 3, 2026, G.L. c. 221D bars civil arrests in courtrooms and requires a judicial warrant for a civil arrest elsewhere at a courthouse.
• A noncitizen defendant should have an immigration lawyer review any plea or admission before offering one.

Related Serpa Law Office resources

• Massachusetts Chapter 163 Changes Immigration Enforcement and Criminal Cases
• Immigration Consequences of Massachusetts Criminal Charges
• Criminal Convictions for Immigrants and Visa Holders
• Motions for a New Trial Based on Ineffective Assistance of Counsel Under Padilla v. Kentucky and Commonwealth v. Clarke
• Crimes Involving Moral Turpitude and Aggravated Felonies in Massachusetts
• Massachusetts Bail: Release, Conditions, and Review

This post is for general informational purposes only and is not legal advice. It is based on published court decisions, the text of the statutes, public statements by New York officials, and news reporting. The Cornell allegations have not been proved in any court. The case is pending in New York under New York law.

On October 3, 2026, the Washington Post reported that the rape allegations at a Cornell University fraternity have reignited a debate over laws on intoxication and consent. The debate is about one sentence in New York’s Penal Law. Under that sentence, a person who drinks or takes drugs willingly is not “mentally incapacitated,” however impaired that person becomes, unless the substance was administered without the person’s consent.

The Tompkins County District Attorney relied on that rule when he declined to charge anyone in 2024. Governor Kathy Hochul has now promised to work with the Legislature to pass a bill that removes the rule by January. The Speaker of the Assembly has appointed a working group to review the state’s rape laws by the end of the year.

Massachusetts settled the question in 1870. The Supreme Judicial Court held that year that a man who has intercourse with a woman who is too drunk to consent commits rape, and that the source of her condition makes no difference. The court restated the rule in 2008 and again in 2024. A Massachusetts jury asks whether the complainant was so impaired that she could not give or refuse consent and whether the defendant knew or reasonably should have known it. The jury does not ask who poured the drinks.

The Massachusetts rule is the right rule, for the accused as well as for the complainant. This post explains why.

The New York Rule

New York Penal Law § 130.05 provides that every sexual offense requires lack of consent. Lack of consent results from forcible compulsion, from incapacity to consent, or, for some offenses, from the complainant’s clear expression that she did not consent. A person is incapable of consent when the person is under 17, “mentally disabled,” “mentally incapacitated,” or “physically helpless,” among other categories.

The definitions in § 130.00 create the problem. A person is “mentally incapacitated” only when the person “is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent.” A person is “physically helpless” only when the person “is unconscious or for any other reason is physically unable to communicate unwillingness to an act.”

A woman who drinks ten drinks of her own choosing, takes a drug that someone hands her, and stays conscious and able to speak is not incapacitated under either definition. A prosecutor in New York must then prove forcible compulsion or a clearly expressed refusal. A woman who was too impaired to refuse clearly can supply neither.

District Attorney Matthew Van Houten explained his 2024 decision on September 28, 2026. He said that Jane Doe’s sworn statement “described her participation in drug use and sexual conduct as voluntary, conscious, and consensual,” and that New York law requires lack of consent through forcible compulsion, incapacity, physical helplessness, or a clearly expressed refusal. He has since reopened the investigation. The Governor has since replaced him with Attorney General Letitia James as special prosecutor. He has also acknowledged, according to Newsweek, that the pending bill would have required his office to investigate further what the men knew about her condition.

The Bill New York Has Not Passed

The bill is not new. Then-Senator Alessandra Biaggi introduced it in 2019. Assemblymember Jeffrey Dinowitz sponsors it in the Assembly as A.101, and Senator Nathalia Fernandez sponsors the companion bill in the Senate. The bill would add a new ground of lack of consent to Penal Law § 130.05. Lack of consent would result when the complainant was “under the influence of any drug, intoxicant, or other substance to a degree which rendered the victim temporarily incapable of appraising or controlling such person’s conduct” and the defendant knew or reasonably should have known of that condition.

The Senate passed the bill in 2020, 2021, 2023, 2024, and 2025, the last time unanimously. The Assembly has never brought it to a vote. The Assembly’s Codes Committee holds it now.

New York is one of nineteen states, by the count reported this week, that treat intoxication as incapacity only when the drug or alcohol was administered without the person’s consent. Minnesota changed its law in 2021 after its Supreme Court held that the old statute did not protect a woman who had been drinking voluntarily. Michigan and Texas changed their laws after that.

The New York State Association of Criminal Defense Lawyers opposes the bill as written. The association argues that the current law already allows prosecution on other theories and that a statute built on whether a person could “appraise or control” the person’s own conduct is too vague.

Yung-Mi Lee of the association told Newsweek that “there has to be outward signs.” The objection is a fair one. The bill already answers part of that objection, because the bill requires proof that the defendant knew or reasonably should have known of the complainant’s condition. Massachusetts answered the rest of the objection eighteen years ago.

The Massachusetts Rule Since 1870

Massachusetts has no statute that defines consent or incapacity. The rule comes from the Supreme Judicial Court, beginning with Commonwealth v. Burke, 105 Mass. 376 (1870). The defendant in Burke helped another man have intercourse with a woman who was, as both men knew, “so drunk as to be utterly senseless and incapable of consenting.” The court held that the act was rape.

The court then rejected the argument that a woman who drank herself into that state deserved less protection. It wrote that “any woman in a state of utter stupefaction, whether caused by drunkenness, sudden disease, the blow of a third person, or drugs which she had been persuaded to take even by the defendant himself, would be unprotected from personal dishonor” if the rule were otherwise, and that “the law is not open to such a reproach.” 105 Mass. at 380-381.

The Supreme Judicial Court modernized the rule in Commonwealth v. Blache, 450 Mass. 583 (2008). Intoxication by itself is not incapacity. “The question instead is whether, as a result of the complainant’s consumption of drugs, alcohol, or both, she was unable to give or refuse consent.” 450 Mass. at 591-592. The court added that “whatever the factor or factors, the question is the same,” which is whether those factors left the complainant incapable of giving or refusing consent. 450 Mass. at 592.

The model instruction the court wrote in Blache tells the jury that a person who is so impaired “because of the consumption of drugs or alcohol” that the person cannot consent has not consented. The instruction does not ask who supplied the drugs or the alcohol. The Supreme Judicial Court restated the rule in Campbell v. Commonwealth, 494 Mass. 750 (2024).

The second half of Blache answers the objection the New York defense bar is raising now. A prosecutor who relies on incapacity must also prove beyond a reasonable doubt that the defendant “knew or reasonably should have known that the complainant’s condition rendered her incapable of consenting to the sexual act.” 450 Mass. at 594.

The “outward signs” that Ms. Lee asked for are part of the Commonwealth’s burden of proof in Massachusetts. A jury that doubts whether a reasonable person in the defendant’s position would have seen that the complainant could not consent must acquit on the incapacity theory. If the Commonwealth proves both incapacity and knowledge, the only force it must prove is the force of the penetration itself. 450 Mass. at 590-592.

What the Massachusetts Rule Does for the Accused

The Massachusetts rule protects an accused person in three ways that the New York rule does not. The Commonwealth must prove incapacity, not intoxication. The Supreme Judicial Court has said in plain terms that a person who has been drinking can still consent.

The Commonwealth must prove what the defendant knew or should have known, so the case is tried on what the defendant saw and heard, not on a toxicology report alone. A judge gives the incapacity instruction only when the evidence supports a finding of incapacity, so the Commonwealth cannot convert every drunken encounter into a rape prosecution by naming the theory.

A defense lawyer in Massachusetts cross-examines on all three points. The complainant’s own messages before and after the encounter, the accounts of the people who saw her walk, talk, and make decisions, the bar tab, the video, and the timing of each act all bear on whether she could consent and on what the defendant could see.

The firm’s page on consent in Massachusetts rape and sexual assault cases explains the rules on incapacity, force, and the defendant’s knowledge in full.

How the Cornell Facts Would Be Charged in Massachusetts

The reason the District Attorney gave for declining to charge in 2024 does not exist in Massachusetts. A Massachusetts prosecutor reading the same sworn statement would not ask whether Jane Doe drank and took the ketamine willingly. The prosecutor would ask whether she was so impaired that she could not give or refuse consent to each act, and whether each man knew or should have known of her condition.

The men who gave her the drug, the member who advertised her in the fraternity’s group chat, and the member who apologized for being too impaired “to shut it down” would answer the second question for a jury. The firm’s post on the Cornell fraternity rape case under Massachusetts law applies the Massachusetts rules to the full public record.

My Assessment

The New York rule is a relic of the idea that a woman who drank assumed the risk of whatever followed. Massachusetts rejected that idea in 1870, when the Supreme Judicial Court wrote that the law “is not open to such a reproach.”

New York’s Legislature has had the bill in front of it for seven years and has passed it through one chamber five times. The Cornell case shows what the delay costs. A woman who, on her own account, was given ketamine by the men in the room and could not stand by the end of the night was told by the prosecutor that the law did not cover what happened to her because she took the drug herself.

The defense bar’s concern about vagueness deserves an answer. Massachusetts has given that answer. Massachusetts defines incapacity as the inability to give or refuse consent, requires the prosecutor to prove that the defendant knew or reasonably should have known of that incapacity, and allows the instruction only where the evidence supports a finding of incapacity.

That rule has governed Massachusetts rape trials since 2008. In my experience it has not produced the wave of prosecutions built on regret that opponents of the New York bill predict.

Key Takeaways

• New York Penal Law § 130.00 treats a person as “mentally incapacitated” only when the drug or alcohol was “administered to him without his consent,” so a person who drinks or takes drugs willingly and stays conscious is not incapacitated under the statute. The Tompkins County District Attorney relied on that rule when he declined to charge anyone in the Cornell case in 2024.
• A bill to remove the distinction has passed the New York Senate five times since 2020 and has never come to a vote in the Assembly. Governor Hochul has promised to work with the Legislature to pass a bill by January 2027. The Assembly Speaker has appointed a working group to report by the end of 2026.
• Massachusetts has applied the opposite rule since Commonwealth v. Burke, 105 Mass. 376 (1870). Intercourse with a person too impaired to consent is rape whether the impairment came from drink, drugs, illness, or injury, and regardless of who caused the impairment.
• Under Commonwealth v. Blache, 450 Mass. 583 (2008), the jury decides whether the complainant was unable to give or refuse consent. The Commonwealth must also prove that the defendant knew or reasonably should have known of her condition. Intoxication alone is not incapacity.
• The knowledge requirement is the safeguard that the New York defense bar is asking for. Massachusetts has had it since 2008.

Related Serpa Law Office resources

• How the Men of Cornell University Failed Jane Doe: The Cornell Fraternity Rape Case Under New York and Massachusetts Law
• Consent in Massachusetts Rape and Sexual Assault Cases
• Sexual Assault and Rape Defense in Massachusetts
• Charged With Indecent Assault and Battery in Massachusetts: Defenses, Penalties, and the Sex Offender Registry
• College and University Student Criminal Defense Lawyer: Boston and Cambridge
• Cross-Examination in Massachusetts Criminal Trials

This post is for general informational purposes only and is not legal advice. It is based on the civil complaint, public statements by Cornell University and New York officials, and published news reporting, including reporting on documents from Cornell’s Title IX investigation. The complaint’s allegations have not been proved in any court. The case is pending in New York under New York law. No criminal charge had been filed as of October 3, 2026. Lawyers for several of the men named in the lawsuit have denied the allegations.

On the night of October 19, 2024, a 20-year-old Cornell University sophomore walked alone to the Chi Phi fraternity house in Ithaca, New York, after drinking at her sorority house and at a downtown bar. She says that over the next seven hours fraternity members gave her ketamine and more alcohol, that one member posted in the fraternity’s group chat that there was “free” sex upstairs, and that seven members of the fraternity sexually assaulted her while she was too impaired to consent. She lost consciousness at about 5:45 a.m. She reported the night to the Cornell University Police Department nearly three weeks later.

The Tompkins County District Attorney reviewed her sworn statement in November 2024 and declined to charge anyone. Cornell’s Title IX office held at least twelve hearings in May 2025. The hearing panel expelled two of the men and suspended others. In September 2026 the woman, identified in court papers as Jane Doe, sued Cornell, the fraternity, her sorority, a bar, and the seven men in the Supreme Court of the State of New York in Manhattan. Public reaction to the lawsuit was swift and angry. The District Attorney reopened the criminal investigation on September 28, 2026. On October 1, 2026, Governor Kathy Hochul removed the District Attorney from the case and appointed Attorney General Letitia James as special prosecutor.

Any criminal or civil case will be heard in New York. New York courts will decide it under New York law. New York’s rape law is similar to Massachusetts law in most respects. Both states require the prosecution to prove that the complainant did not consent. Both treat intercourse by force, and intercourse with a person incapable of consenting, as rape. The two states define incapacity differently, however. The second part of this post explains that difference.

The first part of this post is about something no court will decide, which is what the young men in that house owed Jane Doe, how they failed her, and what every man should learn from their failure. The second part examines how Massachusetts criminal law would apply if the same events had happened at a fraternity house in Massachusetts, how a college panel, a Title IX hearing, and a criminal jury apply different standards to the same night, and why a criminal courtroom is a hard place for a woman who reports a rape. Nothing in the second part predicts what New York’s special prosecutor or a New York grand jury will do. The question for a jury is whether the Commonwealth has proved a crime beyond a reasonable doubt. The question of decency is different. This post takes it up first.

How the Men of the Cornell Fraternity Failed Jane Doe

A woman who is impaired and alone in a room with men coming into the room by profane invitation is in danger. Every man who saw Jane Doe at Cornell that night had one obligation. He had to stop what was happening. He had to intervene to help her, make sure she remained safe, and call the police.

This obligation is universal and comports with basic humanity and human decency. It was owed Jane Doe even if only one person in the house had the courage to stand up, as the others laughed at him, threatened him, and if it cost his standing in the fraternity. Stopping a sexual assault is not heroism. It is the minimum that one human being owes another. A young man who cannot meet that minimum should not be trusted in a room with a woman who has been drinking or using drugs, whether voluntarily or under duress.

Put differently, we should not live in a world where the obligation to stay safe from men is imposed on women. We should have moved beyond this long ago.

The men at Cornell that night understood that most basic decency even if they could not comport with it. One wrote two days later in pointless hindsight that he was sorry he had been too impaired “to shut it down and kick people out before it got way out of hand.” He knew right and wrong, not only because he described it, but because it is so fundamental. He knew he should have intervened. He did not. He blamed alcohol. His attention should be on his own character. His post-hoc shame is not absolution.

Others, as we know, joined the sexual assault. Yet others turned a blind eye, and one of them advertised Jane Doe as there for the taking.

Massachusetts law does little to create a legal obligation consistent with this duty of basic humanity. Under G.L. c. 268, § 40, a person who knows that another person is the victim of a rape and is at the scene must report the crime to the police as soon as reasonably practicable, as long as he can do so without danger to himself or others. A person who violates § 40 faces a fine of $500 to $2,500.

The Legislature enacted that statute in December 1983, nine months after the Big Dan’s tavern rape in New Bedford, where patrons laughed and cheered while a woman was raped on a pool table and no one called the police. The statute creates a baseline of the very least a bystander must do. The criminal law does not require a person to intervene. Under the Massachusetts joint venture rule, discussed in the second part of this post, a person who stands in the room and does nothing is not guilty of the rape.

Decency requires far more than the statute does.

Standing up for a victim in that moment may mean being the odd person out. Standing up means telling the people you live with that their conduct is detestable and vile, in a setting where others have already disregarded that basic truth.

Young men should all reflect on whether they have the courage to do what is right in the face of social pressure. If they decide they do not, they should reflect on that and second-guess whether they deserve to be in the company of potential victims of sexual violence. The lesson is for all people, not only fraternity members. The same duty applies at a bar on Boylston Street, at a wedding, at an office party, or in an apartment when a friend brings home someone who is obviously incapacitated or has reduced judgment. Seeing that a person cannot protect themselves is all it takes to step in.

The obligation to step in at Cornell continued after that night. The decent response was to offer support by telling the truth. Cornell’s own survey, released in November 2025, found that 35 percent of its undergraduate women reported nonconsensual sexual contact since arriving on campus. The young men on that campus, and on every campus in Massachusetts, are solely responsible for lowering that percentage to zero.

How Cornell and the District Attorney Failed Jane Doe

The men in the room were not the only ones who failed Jane Doe. Two institutions had the duty to respond to her report. Cornell’s Title IX process and the Tompkins County District Attorney’s office each had the power to act on that report. Both failed.

Cornell’s failure began before the Title IX process did. On October 22, 2024, Jane Doe went to Cornell Health and reported an infection contracted in “a traumatic way.” No one there referred her for a sexual assault evidence kit. By the time Jane Doe asked for a kit at an emergency room on November 7, any DNA evidence was gone.

The Title IX office opened a formal investigation in January 2025 and held its hearings in May 2025. The panel expelled two of the men, found two not responsible, and suspended two others for multiple semesters. The two suspended men can return to Cornell when their suspensions end. Cornell could not sanction the seventh man at all because he had already graduated. Jane Doe is the person who left Cornell.

The District Attorney’s office did less than Cornell did. The office reviewed Jane Doe’s six-page sworn statement in November 2024 and decided not to charge anyone. The Cornell police had more evidence. The investigator had interviewed other witnesses and had the transcript of the interview in which Jane Doe said, “I can say with 100% confidence I was raped.”

Records that the New York Times obtained and reported in October 2026 show that the investigator offered the District Attorney’s office more than the sworn statement in November 2024. The investigator’s notes record that a member of the District Attorney’s staff said the office had no interest in additional interviews and that criminal charges would not be pursued in the case.

The District Attorney has said that the office never received the transcript. The District Attorney told the New York Times that the additional records were “not pertinent to our analysis.” The Governor removed the District Attorney from the case on October 1, 2026. A prosecutor who wants to know whether a crime occurred reads every page the police have.

In my view Cornell’s failures and the District Attorney’s failures are not separate accidents. The conduct of the men that night, the outcome of Cornell’s Title IX process, and the District Attorney’s refusal to look at more evidence all reflect an institutional, structural imperative to protect boys and men, especially those privileged to attend a school like Cornell. Cornell had seven of its own students and its own reputation to protect. The District Attorney chose not to read the evidence against seven Cornell students. Jane Doe had no institution on her side.

A Victim’s Minimization After a Sexual Assault

Jane Doe’s messages over three weeks record a woman who first described the night as something she had done to herself. Over time she saw that it was something that had been done to her. In my experience, victims of sexual assault often minimize the assault afterward, to themselves and to others, for reasons that have nothing to do with whether it happened. Some minimize to preserve a friendship or a social world they cannot afford to lose. A sophomore in a Greek system at a university far from home is in exactly that position.

Others minimize because admitting the truth means becoming a victim in their own eyes. Some minimize because they were drunk or drugged and blame themselves for being there. Some minimize because the men involved are telling them, in friendly texts, that it will “blow over soon.” The Supreme Judicial Court recognized this in Commonwealth v. King, 445 Mass. 217, 242 (2005), when it abolished the requirement of a “fresh” complaint and wrote that “victims often do not promptly report a sexual assault for a variety of reasons that have nothing to do with the validity of the claim of assault.”

The sexual double standard is another reason women stay silent. Within two days, the rumor at Cornell was that Jane Doe was promiscuous in vile terms. She first accepted the label. “Unfortunately they are true,” she wrote. By contrast, no one at Cornell used slurs against the men. She found a lifeline for what had happened to her only when an anonymous stranger on a forum named it. “That’s the first time I had ever heard the narrative change that I wasn’t a whore and that I was assaulted.” A woman who expects to be judged about having sex rather than protected from the assault has too much reason not to come forward. The people who shamed her gave her that reason.

Shortly after her assault, the fraternity told her she was no longer welcome. This was a new and atrocious insult after severe injury. The disinvitation from a fraternity Halloween party made her silence more likely. She understood what the chapter president’s call meant and said so. “Yall aren’t my friends. Yall are covering your asses.” The fraternity made clear whose reputation the men in the house intended to protect.

What the Public Record Shows

The complaint alleges that Jane Doe drank vodka at her sorority house beginning at about 8:30 p.m., then drank more at a downtown bar even though she was under 21, and had consumed about ten standard drinks in three hours by the time she arrived at Chi Phi at about 11 p.m. to meet a friend who was a member. The friend gave her a beer and took her inside. Upstairs, according to the complaint, members pressured her to snort a white powder they said was ketamine, gave her marijuana and high-proof liquor, and began sexual activity with her.

Transcripts of her interviews, reported by CBS News, show that she described the first sexual encounter, with two men she knew, as something she “was OK with” at the time, even though she was heavily intoxicated. At 1:42 a.m. a fraternity member posted in a Snapchat group called “Chi Phi Actives” that there was “free” sex upstairs, using a vulgar word for a woman’s body. Another member asked whether the “shop” was “still open” and was told that it was. Jane Doe says that more men came into the room, that she was pressured to take more ketamine until she was “completely incapacitated,” and that she was struck during the night. She told investigators, “I’m a naked woman and they are getting in bed with me.” She lost consciousness at about 5:45 a.m.

Over the next three weeks her messages changed. On October 21 she told her sorority “big sister” that rumors calling her a slut were “unfortunately” true. She told her roommates, “If anyone asks about this, say it didn’t happen.” The same day one of the men texted an apology “for how things went down the other night” and wrote that he felt terrible for being “too under the influence of drugs and alcohol to shut it down and kick people out before it got way out of hand.” She answered that “non[e] of the sexual stuff was illegal.” On October 23 she texted that the night was “RUINING my life temporarily” and, in another message, “My reputation is destroyed and I’m utterly ashamed.” One of the men told her that Chi Phi “is your house and you are welcome here.” The chapter president then called to tell her not to come to the fraternity’s Halloween party, “for her own good.” She wrote back, “I knew this was going to happen. The woman will always get the short end of the stick. Yall aren’t my friends. Yall are covering your asses.”

Late in October she saw an anonymous post on a campus forum that said the fraternity’s members “do drugs and gang r*ped a sophomore.” She later told investigators, “That’s the first time I had ever heard the narrative change that I wasn’t a whore and that I was assaulted.” On November 3 she texted one of the men that “90% of what happened that night was not consensual.” She had gone to Cornell Health on October 22 and reported an infection contracted in “a traumatic way,” but no one referred her for a sexual assault evidence kit. She asked for one at an emergency room on November 7. By then any DNA evidence was gone. On November 8 she reported the assault to the Cornell University Police Department. On November 14 she signed a six-page sworn statement and told the officer, “I can say with 100% confidence I was raped.”

Cornell suspended the chapter and the seven men on an interim basis the same week. The university’s Title IX office opened a formal investigation in January 2025, interviewed 32 witnesses, and held at least twelve hearings in May 2025. According to CBS News, the panel expelled two of the men, suspended two for multiple semesters, found two not responsible, and could not sanction one who had already graduated. Cornell has said that it did not offer any of the men an essay as his only sanction. The Chi Phi national organization says it expelled the accused members from the fraternity within days of her report and later closed the chapter. Jane Doe withdrew from Cornell.

District Attorney Matthew Van Houten explained his 2024 decision in a statement on September 28, 2026. He said that her sworn statement “described her participation in drug use and sexual conduct as voluntary, conscious, and consensual,” and that under New York Penal Law § 130.05 a sex crime requires lack of consent through forcible compulsion, incapacity, physical helplessness, or a clearly expressed refusal. He also said that his office never received the transcript of the interview in which she said she was raped. He reopened the investigation the same day. Three days later the Governor replaced him with the Attorney General, who now decides whether to present the case to a grand jury.

Four Standards for One Night: the College Code, Title IX, the Criminal Law, and Basic Human Decency

Cornell judged the men under its own code of conduct. New York requires every college in the state to adopt the same definition of consent, which the statute calls affirmative consent and defines as “a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.” N.Y. Education Law § 6441. Under that definition, silence or lack of resistance is not consent, consent to one act is not consent to another, consent may be withdrawn at any time, and a person who is incapacitated by alcohol or drugs cannot consent. A college panel decides whether the responding student violated the code, usually by a preponderance of the evidence. The most severe sanction a college can impose is expulsion.

Title IX is the federal law that requires a college receiving federal funds to respond to sexual harassment, including sexual assault, as sex discrimination. The regulations in force for a college disciplinary case are the 2020 regulations, which the Department of Education restored and formally re-adopted on September 29, 2026. Under those regulations a college must give the accused student notice and a presumption that he is not responsible, must share the evidence with both sides, must hold a live hearing, and must let each party’s advisor cross-examine the other party and the witnesses. The college chooses whether it will decide the case by a preponderance of the evidence or by clear and convincing evidence. The college also writes its own definition of consent, because the federal regulations do not impose one.

Massachusetts adds its own campus statute. G.L. c. 6, § 168E requires every public and private college in the Commonwealth to adopt a sexual misconduct policy, to designate a confidential resource provider trained in trauma-informed response, to tell students that they have the right to notify the police or to decline to notify the police, and to let a student pursue the college’s disciplinary case and a criminal case at the same time. The policy must presume the responding student not responsible until the panel decides, must state the standard of evidence the college uses, and must prohibit the two students from questioning each other directly. The statute does not define consent. Each Massachusetts college writes its own definition, and a student’s case depends on the definition in that college’s policy.

The criminal law is a separate system with a separate decision-maker. A college panel decides whether a student violated a policy. A grand jury decides whether to indict, and a trial jury decides whether the Commonwealth has proved a crime beyond a reasonable doubt. The district attorney decides whether to seek an indictment, what to charge, and what plea to offer. The complainant does not control those decisions. A college can expel a student. A judge can sentence a man convicted of rape to state prison for up to twenty years, or for life if the rape was aggravated.

The most fundamental human decency is the fourth standard. No panel enforces it. The first part of this post is about that decency.

How Massachusetts Defines Rape

From this point on, this post treats the Cornell allegations as if the fraternity house stood in Massachusetts and a Massachusetts district attorney, rather than a New York prosecutor, were reviewing them. New York law governs the real case. Massachusetts defines rape in G.L. c. 265, § 22(b). The Commonwealth must prove that the defendant had sexual intercourse or unnatural sexual intercourse with the complainant, and that he compelled her to submit by force and against her will, or by threat of bodily injury. The Supreme Judicial Court treats “by force” and “against her will” as two separate elements, so the Commonwealth must prove both force and lack of consent. Commonwealth v. Lopez, 433 Mass. 722, 726-727 (2001). Any penetration, however slight, is sexual intercourse under the statute. The jury decides whether the woman consented at the moment of each act of penetration, so consent to one act is not consent to the next. A person convicted of rape under § 22(b) faces up to twenty years in state prison.

Section 22(a) defines aggravated rape. The Commonwealth proves aggravated rape when it proves a rape that caused serious bodily injury, a rape committed during certain other felonies, or a rape “committed by a joint enterprise.” A person convicted of aggravated rape faces imprisonment in state prison for life or for any term of years. An allegation that several men raped one woman together is, in Massachusetts, an allegation of aggravated rape against each man who participated. The Commonwealth has fifteen years from the date of the rape to indict a defendant for rape. G.L. c. 277, § 63.

The Commonwealth does not have to prove that the defendant knew the woman was not consenting. Rape is a general intent crime. The Commonwealth proves it by proving that the defendant intended intercourse by force and that the woman did not in fact consent. Lopez, 433 Mass. at 727-728. The Supreme Judicial Court in Lopez declined to recognize a defense of honest and reasonable mistake about consent, reasoning that “[p]roof of the element of force, therefore, should negate any possible mistake as to consent.” 433 Mass. at 729. The court left the question open for a future case in which a claim of reasonable mistake is “at least arguably supported by the evidence.” 433 Mass. at 732. The defendant in Lopez testified that the complainant consented. The court held that his claim of actual consent did not entitle him to a mistake instruction. The court reaffirmed the rule in Commonwealth v. Urban, 450 Mass. 608 (2008), decided the same day as Blache, and wrote that Massachusetts does not require the Commonwealth to prove in every rape case that the defendant lacked a reasonable and good faith belief in the complainant’s consent. The Appeals Court has since restated the rule. Massachusetts does not recognize mistake of fact about consent as a defense to rape, except to the extent that Blache, discussed next, recognizes it in incapacity cases. Commonwealth v. Butler, 97 Mass. App. Ct. 223, 230-231 (2020).

The “mistaken belief in consent” that lawyers in other states treat as a defense is therefore, in a Massachusetts case built on force, an argument about the facts rather than a separate defense. The defendant argues that the woman consented. The jury must acquit if it has a reasonable doubt about force or about consent. The exception is the case in which the Commonwealth relies on the woman’s incapacity rather than on force, which is exactly the kind of case the Cornell facts present. The firm’s page on consent in Massachusetts rape and sexual assault cases covers the rules on force, incapacity, age, mistaken belief, and withdrawn consent in full.

Alcohol, Ketamine, and the Capacity to Consent

A woman who is so impaired by alcohol or drugs that she cannot give or refuse consent cannot consent. Massachusetts applies that rule whether or not she took the alcohol or the drugs willingly. The Supreme Judicial Court set out the rules in Commonwealth v. Blache, 450 Mass. 583 (2008). Intoxication by itself is not incapacity. “The question instead is whether, as a result of the complainant’s consumption of drugs, alcohol, or both, she was unable to give or refuse consent.” 450 Mass. at 591-592. The complainant does not have to have been unconscious or nearly so. A jury that finds beyond a reasonable doubt that she was so impaired as to be incapable of consenting has found lack of consent. The Commonwealth then needs to prove only the force needed to accomplish the penetration itself. 450 Mass. at 590-592.

Blache protects the defendant as well. A prosecutor who relies on incapacity must also prove beyond a reasonable doubt that the defendant “knew or reasonably should have known that the complainant’s condition rendered her incapable of consenting to the sexual act.” 450 Mass. at 594. The knowledge requirement is the Massachusetts form of the mistaken-belief defense. A man who had sex with a woman who was in fact too impaired to consent is not guilty of rape on an incapacity theory if the jury has a reasonable doubt about whether he knew or should have known of her condition. A man who ignored a woman’s clear refusal cannot make that argument. Commonwealth v. Kennedy, 478 Mass. 804, 811 (2018).

New York defines incapacity more narrowly than Massachusetts does. Under New York Penal Law § 130.00, a person is “mentally incapacitated” only when a drug or intoxicant was “administered to him without his consent,” and a person is “physically helpless” only when she is unconscious or otherwise physically unable to communicate unwillingness. A woman who willingly drinks ten drinks and willingly snorts ketamine, and who remains conscious and able to speak, is not incapacitated under those definitions, however impaired she is. The District Attorney said that her 2024 statement described none of the circumstances that New York law requires. New York legislators have had a bill to remove that distinction in front of them since 2019. The Governor has promised to work with the Legislature to pass the bill by January. The firm’s post on voluntary intoxication and consent explains the New York rule, the bill, and the Massachusetts rule that has applied since 1870.

A Massachusetts jury answers a different question. The source of the impairment is irrelevant under Blache. The jury decides whether the woman was so impaired that she could not give or refuse consent, and whether the man knew or should have known of her condition. On the facts Jane Doe alleges, a Massachusetts prosecutor would point to about ten drinks in three hours before she arrived, repeated doses of ketamine that the men themselves gave her, a roommate’s account that she told one of the men her “eyes were crossed” from the drug when he had sex with her, the group-chat invitation to other members, and the apology text from a participant who wrote that he had been too impaired “to shut it down and kick people out before it got way out of hand.” The men gave her the drug, which is evidence of what they knew about her condition. The evidence of her drinking and her drugging bears on her capacity. The men’s own messages bear on their knowledge.

The defense would answer with her own words. She told the police that she “was OK with” the first encounter. She texted one of the men two days later that “non[e] of the sexual stuff was illegal.” She told the police that she swatted away hands she did not want on her, which the Commonwealth would offer as evidence of refusal but which a defense lawyer would offer as evidence that she was capable of refusing. She agreed to the first encounter. She remembers parts of the night in detail. A Massachusetts jury would have to decide whether she was capable of consenting act by act and man by man. A woman who was capable of consenting at midnight can be incapable of consenting at 4:00 a.m. The jury judges a man who joined the room at 4:00 a.m. on what he saw and knew at 4:00 a.m.

Drugging a Person for Sexual Intercourse

Massachusetts also makes it a separate crime to drug a person for sex. G.L. c. 272, § 3 punishes anyone who “applies, administers to or causes to be taken by a person any drug, matter or thing with intent to stupefy or overpower such person so as to thereby enable any person to have sexual intercourse or unnatural sexual intercourse with such person.” A person convicted under § 3 faces imprisonment in state prison for life or for any term of years not less than ten. The statute applies to a man who gives a woman a drug so that another man can have sex with her, because it covers enabling “any person” to have intercourse. The Commonwealth would have to prove the intent to stupefy or overpower her for that purpose. The men’s own messages would be the prosecutor’s evidence of that intent.

Joint Venture Liability and Aggravated Rape by Joint Enterprise

Massachusetts punishes a man who helps or encourages a rape as a participant in the rape. The jury may convict a defendant who “knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense.” Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009). Under the model instruction in the appendix to Zanetti, participation includes personally committing the act, aiding another in it, or “asking or encouraging another person to commit the crime.” Mere presence is not enough. A man who stood in the room, knew what was happening, and did nothing is not guilty of rape under Massachusetts law. Knowing about the crime and failing to prevent the crime is not participation in the crime. A man who posted a message inviting his fraternity brothers upstairs to a woman he knew was impaired has done more than stand there. A prosecutor would argue that the message was encouragement. The jury would then decide whether the man who sent it knew her condition and intended that others have sex with her.

Participation by several men also makes the crime aggravated rape. Rape “committed by a joint enterprise” is aggravated rape under § 22(a), punishable by life or any term of years. In the Big Dan’s tavern case, which arose in New Bedford in 1983, the Supreme Judicial Court upheld the aggravated rape convictions of men who raped a woman on a pool table while other patrons, according to the trial testimony, laughed and cheered. Commonwealth v. Cordeiro, 401 Mass. 843 (1988). In Cordeiro the court stated the same rule that Lopez later confirmed. The Commonwealth “is not required to prove either that the defendant intended the sexual intercourse be without consent or that he had actual knowledge of the victim’s lack of consent.” 401 Mass. at 851 n.11.

The jury judges each man separately. The Commonwealth must prove each defendant’s own participation and intent. The jury judges a man who had consensual sex with Jane Doe early in the evening and left on that act alone. The jury judges a man who came upstairs in response to the message on what he did and on what he knew when he did it. Cornell’s panel found two of the seven not responsible under the university’s own standard of evidence, which shows how differently the evidence can come out against different men in the same room.

Consent Given Earlier in the Night and Consent Withdrawn

Jane Doe says she initially agreed to sex with two men she knew and did not agree to what followed. Massachusetts law treats the two parts of the night separately. The jury decides whether the woman consented at the moment of each act of penetration, so a woman’s consent to intercourse with one man at midnight is not consent to intercourse with a different man at 3:00 a.m. For the men who came into the room later, the Commonwealth would have to prove that she did not consent to each act at the time it occurred.

A victim need not fight back for the jury to find that they did not consent. Lopez, 433 Mass. at 729. For the two men Jane Doe first agreed to be with, the question is whether she withdrew her consent and whether they continued anyway. The Supreme Judicial Court held in Commonwealth v. Sherman, 481 Mass. 464, 473-475 (2019), that intercourse that begins with consent becomes rape when the woman withdraws consent, reasonably communicates the withdrawal, and the man continues by the force needed to continue. The communication need not be in words. “Physical gestures, such as trying to push the defendant away or attempting to move in a way that would require the defendant to end the penetration, may suffice,” the court wrote, as long as a reasonable person in the defendant’s position would have understood them.

The Commonwealth does not have to prove that the defendant understood the withdrawal. The requirement that the victim communicate the withdrawal applies only to an act they consented to at first. For an act they never consented to, the Commonwealth does not have to prove that there was a communicated refusal at all. Jane Doe told the police that several men approached her and that she swatted them away. A Massachusetts jury would treat that gesture as a communicated withdrawal of consent.

A sexual touching without intercourse is a separate crime. Indecent assault and battery on a person fourteen or older, G.L. c. 265, § 13H, punishes an intentional, indecent touching without consent. A person convicted under § 13H faces up to five years in state prison or up to two and one-half years in a house of correction. Lack of consent is an element the Commonwealth must prove. The Blache rules on intoxication also apply to this charge, as the firm’s page on indecent assault and battery explains. Because the Commonwealth does not have to prove force for this charge, the appellate courts have discussed whether a defendant may be entitled to a mistake-of-fact instruction in a case where the evidence supports an honest and reasonable belief that the complainant consented. They have refused the instruction where the complainant said no and where the evidence did not support the claim. Kennedy, 478 Mass. at 811. Butler, 97 Mass. App. Ct. at 230-231.

The Burden of Proof and Cross-Examination in a Massachusetts Rape Trial

A Massachusetts jury may convict only when the Commonwealth has proved every element beyond a reasonable doubt. The judge tells the jury that proof beyond a reasonable doubt leaves them with “an abiding conviction, to a moral certainty, that the charge is true,” and that “it is not enough for the Commonwealth to establish a probability, even a strong probability, that the defendant is more likely to be guilty than not guilty.” Commonwealth v. Russell, 470 Mass. 464, 477-478 (2015). The reasonable doubt standard is the same for every crime, but it is harder to meet in a rape case built on the word of a complainant who was intoxicated, who remembers parts of the night and not others, and who waited nearly three weeks to report. A college panel that found two men responsible under the university’s standard of evidence was answering an easier question than a jury would answer.

Under the Sixth Amendment and Article 12 of the Massachusetts Declaration of Rights, the accused has the right to confront the witnesses against him. His lawyer cross-examines the complainant directly. Title IX hearings assign that questioning to an advisor. In Massachusetts, G.L. c. 6, § 168E forbids the two students in a college case from questioning each other at all. A criminal trial puts no one between the complainant and the defense lawyer’s questions. Jane Doe would face a defense lawyer whose job is to show the jury every reason to doubt her account.

The cross-examination would be built from her own messages. A witness’s prior inconsistent statement is admissible to impeach her. The defense would read her texts to the jury in her own words. She wrote that “non[e] of the sexual stuff was illegal,” that she “really liked being” with two of the men, and that her roommates should “say it didn’t happen” if anyone asked.

She described the night to the first people she spoke with in terms that did not describe a rape. Under the first complaint doctrine, the first person a complainant told that she was sexually assaulted may testify to what she said and when. The jury may consider the timing of the complaint and the circumstances in which it was made in weighing her credibility. King, 445 Mass. at 242-245.

The civil lawsuit seeks compensatory and punitive damages. The defense would argue that the money is her motive. A defendant has a constitutional right to cross-examine a complainant about bias and motive to lie. Commonwealth v. Joyce, 382 Mass. 222, 229-231 (1981). Defense counsel may also ask a judge for access to her counseling records under the protocol in Commonwealth v. Dwyer, 448 Mass. 122 (2006), which lets counsel inspect privileged records under a protective order after a judge finds them relevant and necessary.

Massachusetts law would protect Jane Doe in several ways. The rape shield statute, G.L. c. 233, § 21B, bars nearly all evidence of a complainant’s past sexual conduct. The statute likewise bars evidence of her specific sexual conduct with anyone other than the defendant unless the conduct explains a physical condition the Commonwealth relies on. Even evidence of past sexual conduct with the defendant can be admitted only after a non-jury hearing on a written motion and a finding by the judge that its weight and relevancy outweigh its “prejudicial effect to the victim.”

The constitutional right to show bias can override the rape-shield statute, but a judge must limit that evidence as far as possible without infringing the right. Joyce, 382 Mass. at 231. A victim’s name in court and police records is not open to public inspection. G.L. c. 265, § 24C. Their communications with a sexual assault counselor at a rape crisis center are privileged and are not subject to discovery without their written consent. G.L. c. 233, § 20J. A jury would hear from the judge that sexual assault complainants “may delay reporting the crime for a variety of reasons,” because the first complaint instruction says so. King, 445 Mass. at 247-248. The Commonwealth could call an expert, moreover, to explain in general terms why victims delay reporting and why they may stay in contact with the men who assaulted them, although the expert may not testify about Jane Doe herself or say that she was assaulted. Commonwealth v. Mamay, 407 Mass. 412, 421-422 (1990).

My assessment is that a Massachusetts prosecutor would have a stronger legal basis to charge the men than the Tompkins County District Attorney believed he had under New York’s definitions. Under Blache, impairment, not how a victim becomes impaired, creates non-consent. The group-chat message and the apology text are evidence of knowledge and intent. The same prosecutor would face a hard trial, because the Commonwealth’s case would rest on the memory of a woman who was drugged and impaired. They would also need to confront the victim’s messages in which she minimized what happened to her for nearly three weeks. A young woman deciding whether to report deserves to hear all facets of the prosecution, good or bad.

Key Takeaways

• Attorney Serpa’s position is that every man in that house owed Jane Doe the simple decency of stopping what was happening and getting her to safety, even as the odd man out, and that the same duty applies to every man, in every setting, who sees a woman who cannot protect herself. Massachusetts law requires only that a bystander at the scene of a rape report it. G.L. c. 268, § 40. Decency requires more.
• Jane Doe alleges that seven Chi Phi members at Cornell sexually assaulted her over seven hours on October 19 and 20, 2024, after giving her ketamine and alcohol, and that one of them advertised her in the fraternity’s group chat. The Tompkins County District Attorney declined to charge in 2024, reopened the case on September 28, 2026, after she sued, and was replaced three days later by New York Attorney General Letitia James as special prosecutor. New York law governs the case. This post examines how Massachusetts law would apply if the same events had happened in Massachusetts.
• A college panel, a Title IX hearing, and a criminal jury apply different standards to the same night. Cornell’s panel applied New York’s affirmative consent definition under the university’s own standard of evidence and expelled two men. A criminal jury must find every element proved beyond a reasonable doubt.
• In Massachusetts, a woman who is so impaired by alcohol or drugs that she cannot give or refuse consent cannot consent, whether or not she took the alcohol or drugs willingly. The Commonwealth must also prove that the defendant knew or reasonably should have known of her condition. Commonwealth v. Blache, 450 Mass. 583 (2008). New York’s definition of “mentally incapacitated” covers only a drug administered without the person’s consent.
• Massachusetts does not recognize an honest and reasonable mistake about consent as a defense to forcible rape. Commonwealth v. Lopez, 433 Mass. 722 (2001). The Commonwealth must prove the defendant’s knowledge only in an incapacity case, under Blache.
• A rape committed by a joint enterprise is aggravated rape under G.L. c. 265, § 22(a), punishable by life or any term of years. A man who encourages others to join is a participant under Commonwealth v. Zanetti, 454 Mass. 449 (2009). Drugging a person for sexual intercourse is a separate crime under G.L. c. 272, § 3, punishable by life or any term of years not less than ten.
• A criminal trial is hard for an accuser. Defense counsel cross-examines her directly, her texts minimizing the assault are admissible to impeach her, her civil lawsuit is evidence of motive, and the Commonwealth must prove the case beyond a reasonable doubt. The rape shield statute, the confidentiality of her name under G.L. c. 265, § 24C, and the first complaint instruction protect her in part.
• Victims commonly minimize an assault afterward, out of shame, self-preservation, and the sexual double standard. Massachusetts law recognizes that delay in reporting is consistent with a true account. Commonwealth v. King, 445 Mass. 217 (2005).

Related Serpa Law Office resources

• Consent in Massachusetts Rape and Sexual Assault Cases
• Voluntary Intoxication and Consent After the Cornell Case: The New York Rule and the Massachusetts Rule
• Sexual Assault and Rape Defense in Massachusetts
• Charged With Indecent Assault and Battery in Massachusetts: Defenses, Penalties, and the Sex Offender Registry
• College and University Student Criminal Defense Lawyer: Boston and Cambridge
• Cross-Examination in Massachusetts Criminal Trials
• Massachusetts Student Criminal Defense FAQs
• Massachusetts Text Message and Phone Evidence FAQs
• Testifying at a 209A Restraining Order Hearing While the Criminal Case Is Pending

The Commonwealth charges Ms. Clancy with murder in the deaths of her three children in Duxbury on January 24, 2023. The jury deliberated for seven days before the mistrial. News reports describe the jury as divided 11 to 1.

What Happened at the Hearing

Ms. Clancy appeared in court with her attorneys, including Kevin Reddington, for the first time since the mistrial. Judge Sullivan set November 2 for arguments on the motion to dismiss. According to CBS Boston, prosecutors needed more time to prepare their response to that motion.

Judge Sullivan described the defense motion about the holdout juror as one that “addresses a lot of issues that we need to resolve sooner rather than later.” He added, “I’m trying to move this as fast as we can.”

Edward Paltzik, the attorney for the holdout juror, told the court that he lacked access to the impounded materials he needed to file a response. Coverage of the juror motion differs on the date. CBS Boston reported that Judge Sullivan set it for November 2. WRGA reported that Mr. Reddington and the Commonwealth agreed to continue the motion out of professional courtesy, and it did not report a new date.

The District Attorney’s Office filed an opposition to the renewed defense motion for a required finding of not guilty. The opposition argues that the court should evaluate the sufficiency of the evidence “based solely on the evidence presented at trial.”

The Commonwealth also asked Judge Sullivan to enter a gag order restricting extrajudicial statements by the attorneys. The Commonwealth’s motion asserts that defense statements have “tainted any further venire.” Judge Sullivan deferred a ruling on that motion to November 2.

The Defense Motion to Dismiss on Double Jeopardy Grounds

The defense filed the motion to dismiss on September 22, 2026, with Martin Weinberg as co-counsel. The motion argues that no manifest necessity justified the mistrial because Judge Sullivan did not adequately investigate the holdout juror before declaring it. The defense therefore contends that a second trial would violate the double jeopardy protection of the Fifth Amendment.

The Fifth Amendment and Massachusetts law generally bar a second trial of a defendant whose first trial ends over the defendant’s objection without a conviction. The Supreme Judicial Court stated that rule in Ray v. Commonwealth, 463 Mass. 1, 3 (2012). A second trial is permitted when the trial judge declared the mistrial because of manifest necessity. A jury that cannot agree on a verdict is the traditional example of manifest necessity. Commonwealth v. Troila, 410 Mass. 203, 206 (1991).

The trial judge decides whether to declare a mistrial, and a reviewing court asks whether the judge abused that discretion. Two principles guide the review. Counsel must have had a full opportunity to be heard, and the judge must have given careful consideration to alternatives to a mistrial. Ray, 463 Mass. 1. The Supreme Judicial Court also identified factors that often apply, including statements by the jury that it cannot agree, and the length of deliberations compared with the length of the trial and the complexity of the factual disputes. Ray, 463 Mass. 1.

The Supreme Judicial Court applied those principles to Karen Read’s case in February 2025. The trial judge in that case directed the jury to continue deliberating after the first note. The judge gave the Tuey-Rodriquez instruction after the second note, which encourages a deadlocked jury to give more serious consideration to opposing points of view. The judge declared a mistrial after a third note stating that further deliberation would be futile. The Supreme Judicial Court held that the mistrial was manifestly necessary and that double jeopardy did not bar a retrial. Read v. Commonwealth, 495 Mass. 312 (2025). Ms. Read was later acquitted of murder at her retrial.

The record of what Judge Sullivan did before the mistrial is public. The jury reported on the fourth day of deliberations that it could not reach a unanimous verdict. Judge Sullivan sent the jurors back to continue deliberating. After a second report on September 2, 2026, Judge Sullivan gave the Tuey-Rodriquez instruction. On September 3, the jury foreperson told Judge Sullivan that one juror had refused to follow the law on reasonable doubt. On September 4, the foreperson submitted a note stating, “It is with a heavy heart that we report we are unable to come to a unanimous decision.” Judge Sullivan then declared the mistrial. According to PBS NewsHour, Mr. Reddington had asked Judge Sullivan to give the instruction again and to continue deliberations.

Attorney Joe Serpa’s assessment is that the motion to dismiss is unlikely to succeed. Judge Sullivan took steps similar to those of the trial judge in Ms. Read’s case. He sent the jury back to deliberate after the first report, gave the Tuey-Rodriquez instruction after the second report, and declared the mistrial only after the foreperson’s final note. The Supreme Judicial Court held in Read that those steps made the mistrial manifestly necessary.

The jury deliberated for seven days. The Supreme Judicial Court reviews a mistrial only for abuse of discretion. The decision whether to give the Tuey-Rodriquez instruction belongs to the trial judge even when the parties request it. Ray, 463 Mass. 1. The defense claim about the holdout juror asks the court to inquire into what happened in the jury room, and the court in Read refused a posttrial inquiry of that kind.

The Holdout Juror Motion

The defense asked Judge Sullivan to investigate the holdout juror. According to news reports, the defense alleged that the juror scrolled on a cellphone during deliberations and disregarded the instructions on reasonable doubt. The defense also requested the juror’s cellphone records and jury selection questionnaire.

Massachusetts courts protect the secrecy of jury deliberations. The Supreme Judicial Court has called that secrecy a “bedrock of our judicial system.” Commonwealth v. Moore, 474 Mass. 541, 548 (2016). In Ms. Read’s case, the court refused to permit a posttrial inquiry into what the jurors privately agreed on, and it cited the prohibition on probing the content of deliberations. Read, 495 Mass. 312.

Judge Sullivan has not yet ruled on whether to order any inquiry of the juror. Mr. Paltzik now represents the juror and told the court that he required access to the impounded materials before responding.

The Renewed Motion for a Required Finding of Not Guilty

Mr. Reddington renewed the defense motion for a required finding of not guilty under Rule 25(b)(2) of the Massachusetts Rules of Criminal Procedure. The rule allows a defendant to renew that motion after the jury is discharged.

The motion is governed by the standard of Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Under that standard, the judge views the evidence in the light most favorable to the Commonwealth and asks whether any rational jury could find each element of the crime beyond a reasonable doubt. The Commonwealth opposed the motion and argued that the trial evidence meets that standard. Mr. Reddington argued that the Commonwealth had failed to prove criminal responsibility because all six experts who testified agreed that Ms. Clancy suffered a serious mental illness.

Judge Sullivan already denied the defense motion for a required finding of not guilty twice during the trial, once after the Commonwealth rested and again before deliberations began, according to Boston.com. The renewed motion asks Judge Sullivan to reverse those rulings on the same trial evidence.

Attorney Serpa’s assessment is that the renewed motion is unlikely to succeed. Under Latimore, the judge views every disputed inference in the Commonwealth’s favor and asks only whether any rational jury could find that the Commonwealth proved criminal responsibility beyond a reasonable doubt. The weight of the expert testimony is a question for the jury. The Commonwealth presented evidence of planning and of Ms. Clancy’s conduct afterward. Judge Sullivan has twice found that evidence sufficient to send the case to the jury.

Judge Sullivan’s ruling on this motion can end the prosecution. The Supreme Judicial Court applied its double jeopardy rule for hung juries in Ray where the defendant made no claim that the trial evidence was legally insufficient to support a conviction. The Double Jeopardy Clause prohibits retrial when a conviction is reversed because the evidence was insufficient. Commonwealth v. Tinsley, 487 Mass. 380, 389 (2021).

Whether the Commonwealth Can Retry Ms. Clancy

The District Attorney’s Office decides whether the Commonwealth retries Ms. Clancy, offers a plea, or seeks a different resolution. Plymouth County District Attorney Tim Cruz stated after the mistrial that he would not make an immediate decision. As of the September 29 hearing, the office had not announced one.

Judge Sullivan must first rule on the double jeopardy motion, the holdout juror motion, and the renewed motion for a required finding. A defendant who loses a double jeopardy motion in the trial court can petition the Supreme Judicial Court before a retrial begins, as Ms. Read and the petitioner in Ray did. The November 2 hearing is the next scheduled date in Ms. Clancy’s case.

Key Takeaways

• Judge William Sullivan heard the first post-mistrial hearing in the Clancy case on September 29, 2026, and set November 2 for arguments on the defense motion to dismiss.
• The defense argues that a second trial violates double jeopardy because Judge Sullivan did not adequately investigate the holdout juror before declaring the mistrial. Attorney Joe Serpa’s assessment is that the motion is unlikely to succeed, because Judge Sullivan took steps similar to those the Supreme Judicial Court upheld in Read.
• The Supreme Judicial Court has held that a mistrial for a deadlocked jury is manifestly necessary when the judge gave counsel a full opportunity to be heard and carefully considered alternatives. It applied that rule in Ray and in Read.
• The renewed motion for a required finding of not guilty asks Judge Sullivan to rule that the trial evidence was legally insufficient. He denied the same motion twice during the trial, and Attorney Serpa’s assessment is that the renewed motion is unlikely to succeed. The Commonwealth has filed an opposition.
• The Plymouth County District Attorney’s Office has not announced whether it will retry Ms. Clancy.

Related Serpa Law Office Resources

• Mistrials in Massachusetts Criminal Cases
• Rule 25: The Motion for a Required Finding of Not Guilty in Massachusetts
• After the Mistrial: The Renewed Motion for a Required Finding of Not Guilty in the Clancy Case
• The Clancy Mistrial and the Juror Questionnaire
• Juror Nondisclosure and Misrepresentation in Massachusetts Criminal Trials
• The Lindsay Clancy Jury Dispute: When Massachusetts Law Permits Removal of a Deliberating Juror
• The Lindsay Clancy Trial: A Cruel, Insensitive, and Out-of-Touch Prosecution
• Filming Jurors in the Lindsay Clancy Trial and Massachusetts Witness Intimidation Law

This post is for general informational purposes only and is not legal advice. It is based solely on public court proceedings, public reporting, and published decisions and does not reflect any non-public information. Reading it does not create an attorney-client relationship. This may constitute attorney advertising.

September 28, 2026

Shortly before 2 A.M., a Cambridge police officer walking through Harvard Square saw Shyam Khadgi striking a woman in the face and arms. The officer saw Khadgi strike her ten to fifteen times, hard enough to lift his own foot off the ground. The officer separated the two people, arrested Khadgi, and called an ambulance. The woman was extremely distraught and could not speak to the officer at first. Her face was bruised and she was crying, and photographs later showed large bruises on her face and scratches on her arm. After the ambulance arrived and she began receiving medical care, she told the officer that Khadgi had been beating her for about eight minutes before the officer arrived, that he had kicked her, and that the two of them had been dating for seven years. The woman did not testify at trial. A judge of the District Court, sitting without a jury, found Khadgi guilty of assault and battery on a family or household member under G. L. c. 265, § 13M.

Read the full decision: Commonwealth v. Khadgi, No. 25-P-1208 (Mass. App. Ct. Sept. 24, 2026).

The confrontation issue

The Sixth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights give a defendant the right to confront and cross-examine the witnesses against him. Under Crawford v. Washington, 541 U.S. 36 (2004), the prosecution cannot introduce a testimonial out-of-court statement against a defendant unless the person who made the statement testifies and is cross-examined. A statement is testimonial when a person makes it to establish past events for a later prosecution, rather than to help the police respond to an ongoing emergency.

Because the woman did not testify, the Commonwealth proved its case entirely through the responding officer, including the woman’s statements to him. Before trial, a District Court judge ruled that the statements were admissible as spontaneous utterances, meaning statements made under the stress of a startling event. On appeal, Khadgi did not challenge that hearsay ruling. He argued instead that the statements were testimonial, so admitting them violated his right of confrontation.

Why the Appeals Court described the confrontation argument as strong

The Appeals Court agreed that Khadgi had a strong argument that the statements were testimonial. By the time the woman spoke to the officer, Khadgi was already under arrest, the officer had personally witnessed the assault, and the woman was receiving medical treatment and was about to be taken to a hospital. The court explained that statements are ordinarily testimonial when the emergency has ended and the statements describe past events rather than help the police address a present danger. See Commonwealth v. Rand, 487 Mass. 811, 826 (2021). See also Commonwealth v. Rodriguez, 90 Mass. App. Ct. 315, 326 (2016).

Why the conviction still stood: harmless error

The Appeals Court affirmed Khadgi’s conviction. The court did not decide whether admitting the statements violated the confrontation right, because it held that any error was harmless beyond a reasonable doubt. When a defendant preserves a confrontation objection at trial, an appellate court upholds the conviction only where it is satisfied beyond a reasonable doubt that the improperly admitted evidence did not affect the verdict. The court weighs the properly admitted evidence and the improperly admitted evidence together across the whole record. See Commonwealth v. Gordon, 496 Mass. 554, 584-585 (2025).

Two features of the record made the error harmless. First, the officer personally witnessed the beating and the photographs showed the woman’s injuries, so the woman’s account of the beating added nothing the properly admitted evidence had not already proven. Second, the Commonwealth had to prove that Khadgi and the woman were family or household members, which for this charge means that they were or had been in a substantive dating relationship. In the Commonwealth’s own case, only the woman’s statements established that relationship. Khadgi, however, testified in his own defense that the woman was his girlfriend and that they had lived together for seven years.

The rule that a defendant’s own testimony counts against him

The Appeals Court relied on Commonwealth v. Mendes, 463 Mass. 353 (2012). In Mendes, the Supreme Judicial Court held that a court deciding whether a constitutional error is harmless considers both the Commonwealth’s case and the defendant’s case. The defendants in Mendes had testified about the drugs after the prosecution introduced drug certificates that the United States Supreme Court later held were improperly admitted testimonial hearsay in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). The Supreme Judicial Court considered the defendants’ own testimony and concluded that the error was harmless. Applying that rule, the Appeals Court held that Khadgi’s testimony about the seven-year relationship established the family or household member element, so any confrontation error was harmless beyond a reasonable doubt.

What the decision means for a person charged with domestic assault in Massachusetts

A complaining witness who does not appear at trial does not always end the Commonwealth’s case. Where a police officer witnessed the assault, or where photographs or other evidence prove the assault independently, a Massachusetts court can find that the admission of the absent witness’s statements did not affect the verdict. The decision also shows the consequence of a defendant’s own testimony. For a charge of assault and battery on a family or household member, the Commonwealth must prove the qualifying relationship, and that relationship is often provable only through the complaining witness. A defendant who confirms the relationship from the witness stand can supply the element the Commonwealth needs, and an appellate court will consider that testimony when it decides whether an error at trial was harmless. The decision whether a defendant should testify is a serious one, and a person facing a domestic assault charge should make that decision with the advice of a lawyer who has weighed what each element of the charge requires.

Key Takeaways

• The Confrontation Clause bars a testimonial out-of-court statement unless the person who made it testifies and is cross-examined. See Crawford v. Washington, 541 U.S. 36 (2004).
• A statement to the police is more likely to be testimonial once the emergency has ended and the statement describes past events.
• Even where a court admits a statement in violation of the confrontation right, an appellate court upholds the conviction if it is satisfied beyond a reasonable doubt that the error did not affect the verdict.
• A court deciding whether an error was harmless considers the defendant’s own testimony along with the rest of the record. See Commonwealth v. Mendes, 463 Mass. 353 (2012).
• In Commonwealth v. Khadgi, the defendant’s testimony that he had dated the complainant for seven years established the family or household member element, so the Appeals Court affirmed the conviction.

Related Serpa Law Office resources

• Arrested for Assault and Battery on a Family or Household Member in Massachusetts
• Boston Domestic Violence Defense Lawyer
• Massachusetts Criminal Law Updates

September 28, 2026

At about 1 A.M. on September 2, 2024, Boston police officers on patrol in Dorchester saw that the registration on an Acura sport utility vehicle had expired. The officers confirmed through their database that the registration was expired and non-renewable, activated their lights, and stopped the vehicle. The driver, Lorenzo Beechman, was the only person in the vehicle, and he pulled off the road into a gasoline station as directed. The vehicle belonged to his girlfriend. One officer testified that he intended to tow the vehicle the moment he stopped it, because his commanding officer had instructed him to impound, tow, and inventory any vehicle with an expired registration. The officers had the vehicle towed and searched the passenger compartment. Under the front passenger seat they found a loaded firearm. The Commonwealth then charged Beechman with unlawful possession of a firearm and related offenses under G. L. c. 269.

Read the full decision: Commonwealth v. Beechman, No. 25-P-1082 (Mass. App. Ct. Sept. 21, 2026).

The motion to suppress and what the Superior Court judge decided

A motion to suppress asks a judge to exclude evidence that the police obtained in violation of the Fourth Amendment to the United States Constitution or Article 14 of the Massachusetts Declaration of Rights. Beechman filed a motion to suppress the firearm, and a Superior Court judge held an evidentiary hearing. The judge allowed the motion and ordered the firearm excluded from evidence. The judge found that impounding the vehicle was not reasonably necessary and that the officers had acted against their own department policy. The judge found that the vehicle was not obstructing traffic, was not on a public way, and could have been parked to await a tow truck in a number of locations. The judge also found that the officers never asked Beechman or his girlfriend whether either of them wished to arrange an alternative to a police tow.

What the Appeals Court decided

The Appeals Court affirmed the Superior Court judge’s order allowing the motion to suppress. The court decided the appeal through an unusual procedure. The appeal began before a three-justice panel, and after the panel circulated a proposed majority opinion and a proposed dissent, all of the justices of the Appeals Court decided to participate under G. L. c. 211A, § 11. The justices then split evenly. When the Appeals Court divides equally, the court affirms the lower court’s order in the case before it, but the decision does not create binding precedent that other courts must follow. Eleven justices, in an opinion by Justice D’Angelo, concluded that the firearm was properly suppressed. Eleven justices, in an opinion by Justice Meade, would have reversed the suppression order and allowed the firearm into evidence.

Because the appeal was an interlocutory appeal, meaning an appeal the Commonwealth took before trial, the Superior Court will now try the case without the suppressed firearm.

When Massachusetts law allows the police to impound and inventory a vehicle

An inventory search is a warrantless search that the police conduct to catalog the contents of a vehicle they have taken into custody. The lawfulness of an inventory search depends on whether the police lawfully impounded the vehicle in the first place. Impoundment happens when the police take custody of a vehicle and arrange to have it towed and stored.

The Supreme Judicial Court has held that an impoundment must serve a legitimate, non-investigatory purpose, and it must be reasonably necessary based on the totality of the circumstances. See Commonwealth v. Goncalves-Mendez, 484 Mass. 80, 83 (2020). See also Commonwealth v. Oliveira, 474 Mass. 10, 13 (2016). The concurring justices identified the recognized purposes that can justify impoundment. The police may impound a vehicle to protect the vehicle and its contents from theft or vandalism, to protect the public from dangerous items inside the vehicle, to protect public safety where the vehicle as parked creates a dangerous condition, or to spare a private property owner the burden of a vehicle left behind after the driver is arrested. See Oliveira, 474 Mass. at 13-14.

The concurring justices held that the Commonwealth did not meet its burden to justify the impoundment under any of these purposes. Beechman was not under arrest when the officers decided to impound the vehicle. The vehicle sat in a gasoline station lot, not on a public way, and it created no hazard. Under Goncalves-Mendez, when a passenger or another person is available to take custody of a vehicle, the police must consider that practical alternative before impounding the vehicle. The officers here never asked Beechman or his girlfriend whether she wished to retrieve her own vehicle. On these findings, the concurring justices concluded that the impoundment was not reasonably necessary, so the inventory search that produced the firearm was unlawful.

What the decision means for a driver stopped in Massachusetts

A traffic violation, including an expired registration, does not by itself give the police authority to impound and search a vehicle. The Commonwealth must prove that the impoundment served a legitimate, non-investigatory purpose and that impounding the vehicle was reasonably necessary under the circumstances. Where the driver is not under arrest, where the vehicle is parked safely off the roadway, and where another person is available to take the vehicle, a Massachusetts judge can find the impoundment unreasonable and suppress whatever the inventory search produced.

The equal division of the Appeals Court also shows that experienced judges disagree about how these rules apply to a stopped vehicle. A defendant charged after a vehicle search should expect the Commonwealth to defend the impoundment, and the specific facts of the stop, the location of the vehicle, and the available alternatives to a police tow will shape the outcome of a motion to suppress.

Key Takeaways

• An inventory search of a vehicle is lawful only when the police lawfully impounded the vehicle first.
• The Commonwealth must prove that an impoundment served a legitimate, non-investigatory purpose and was reasonably necessary under the totality of the circumstances.
• When another person is available to take custody of the vehicle, the police must consider that alternative before impounding it. See Commonwealth v. Goncalves-Mendez, 484 Mass. 80 (2020).
• In Commonwealth v. Beechman, an equally divided Appeals Court affirmed the suppression of a firearm found during an inventory search after officers impounded a lawfully parked vehicle without asking whether the owner wished to retrieve it.
• A decision by an equally divided Appeals Court affirms the order in that case, but it does not create binding precedent for later cases.

Related Serpa Law Office resources

• Illegal Searches and Seizures in Massachusetts: Motions to Suppress
• Massachusetts Criminal Defense of Firearms Offenses
• Massachusetts Criminal Law Updates

September 23, 2026

The Holyoke police chief denied Randy Westbrook a license to carry a firearm, pointing to charges filed more than a decade earlier that never led to a conviction. Westbrook asked a court to overturn the denial. The Supreme Judicial Court has now agreed to decide whether the Massachusetts suitability standard, which allows a licensing authority to deny a license to an applicant it considers a risk to public safety, is consistent with the Second Amendment after the United States Supreme Court decided New York State Rifle & Pistol Association v. Bruen. This post describes the case, the licensing standard now in force, and what the decision could change for a person who applies for a license or faces a firearms charge in Massachusetts.

The Massachusetts Suitability Standard

A person in Massachusetts needs a license to carry to possess a handgun. A resident applies to the local police chief or the Colonel of the State Police. The 2024 firearms law, St. 2024, c. 135, recast the licensing scheme so that under G.L. c. 140, § 131(d), the licensing authority shall issue a license to an applicant who is neither a prohibited person nor found unsuitable under G.L. c. 140, § 121F. The suitability limit is the part of the scheme the Court will examine.

The licensing authority may find an applicant unsuitable only on a defined basis. Under G.L. c. 140, § 121F, a determination of unsuitability shall be based on reliable, articulable, and credible information that the applicant has exhibited or engaged in behavior that suggests that, if issued a license, the applicant may create a risk to public safety or a risk of danger to self or others. The authority states the specific reasons for a denial in writing.

A person denied a license to carry may petition the District Court for review within 90 days under G.L. c. 140, § 121F. The court may order the license issued where it finds no reasonable ground for the denial and finds that the applicant is not prohibited by law from holding one. Westbrook took that review path after the Holyoke chief denied his application. His case reached the Supreme Judicial Court from there.

What the Second Amendment Requires After Bruen

The Supreme Court held in Bruen that the Second Amendment protects an individual’s right to carry a handgun in public for self-defense. The Court struck down a New York law that issued a carry license only to an applicant who showed a special need for protection beyond that of the general public. The Court rejected that kind of open-ended discretion, under which an official weighed whether an ordinary applicant had a good enough reason to exercise the right.

The Court distinguished two kinds of licensing systems. A system that grants an official broad discretion to decide who may carry, based on the official’s own judgment of need or worthiness, is unconstitutional. A system that issues a license to any applicant who meets objective criteria, such as a background check, a training requirement, and defined disqualifications, remains permissible. In a footnote the Court cautioned that even an objective system can be applied in a way that denies ordinary, law-abiding citizens their rights through lengthy delays or standards that operate as open-ended discretion in practice.

Massachusetts amended its statute after Bruen to fit the permissible category, replacing discretionary issuance with a shall-issue rule and a defined suitability exception. Whether the suitability exception, as written and as applied to an applicant like Westbrook, is the objective screening the Court approved in Bruen or the open-ended discretion the Court rejected is the question now before the Supreme Judicial Court.

The Question in Pratt v. Westbrook

Pratt v. Westbrook, SJC-13822, asks whether the Massachusetts suitability standard for a license to carry violates the Second Amendment as the United States Supreme Court construed it in Bruen. The Holyoke police chief denied Westbrook’s application after finding him unsuitable. The finding rested on charges from more than a decade earlier that did not result in a conviction. The Second Amendment Foundation and other organizations filed an amicus brief supporting the challenge.

The challenge argues that a denial based on old, unproven allegations is the discretionary judgment the Court rejected in Bruen, because it lets an official disarm a person who was never convicted of anything, on the official’s own assessment of future risk, without objective disqualifying criteria. The Commonwealth’s position is that the suitability standard is the kind of objective public-safety screen the Court preserved in Bruen, applied on reliable, articulable, and credible information rather than on an official’s unguided preference. The Supreme Judicial Court construed the public-safety suitability standard after Bruen in the nonresident licensing context in Commonwealth v. Marquis (2025). Pratt v. Westbrook presses the question for a resident denied on old charges that never led to a conviction. The Supreme Judicial Court will decide which description the standard fits.

The case remains pending before the Supreme Judicial Court, which has not yet ruled. Nothing here predicts how the Court will decide it.

What the Decision Could Change for Applicants and Defendants

A ruling in Pratt v. Westbrook would affect two groups directly. The first is applicants denied a license on suitability, particularly on a record of old charges that never led to a conviction. A decision narrowing the suitability standard would limit the reasons a licensing authority may give for a denial. A decision upholding the standard would confirm the authority’s ability to deny on credible public-safety information.

The second group is people charged with a firearms offense. A person who possesses or carries a firearm without the required license faces prosecution whatever the reason the license was denied. Carrying a firearm without a license is charged under G.L. c. 269, § 10(a). Possessing a firearm or ammunition without a firearm identification card is charged under G.L. c. 269, § 10(h). A person denied a license on suitability who then possesses a firearm anyway is exposed to those charges. Because the license determines who may lawfully possess and carry, the standard that governs a denial also shapes who ends up charged. A defendant who was denied a license under a standard the Supreme Judicial Court later limits may have an argument that depends on the Court’s reasoning. Counsel would assess that argument against the specific record and the decision as written.

Key Takeaways

• The Supreme Judicial Court agreed to decide in Pratt v. Westbrook, SJC-13822, whether the Massachusetts firearm suitability standard for a license to carry is consistent with the Second Amendment after New York State Rifle & Pistol Association v. Bruen.
• Under the standard now in force, a licensing authority may find an applicant unsuitable where reliable, articulable, and credible information shows the applicant may create a risk to public safety or a risk of danger to self or others.
• The Holyoke police chief denied Randy Westbrook a license based on charges from more than a decade earlier that never led to a conviction, a denial Westbrook then challenged in court.
• Under Bruen, a licensing system built on objective criteria is permissible and one that gives an official open-ended discretion over who may carry is not, so the outcome depends on which description the suitability standard fits.
• The suitability standard governs who may lawfully hold a license, so it also affects who can be charged with carrying a firearm without a license under G.L. c. 269, § 10(a) or possessing a firearm or ammunition without a firearm identification card under G.L. c. 269, § 10(h).

Related Serpa Law Office resources

• Carrying a Firearm Without a License in Massachusetts (G.L. c. 269, § 10(a))
• Possession of a Firearm or Ammunition Without an FID Card (G.L. c. 269, § 10(h))
• Massachusetts Firearms Charges and Gun Crime Defense

The reporting raises a question worth separating from the commentary. A juror who conceals something material can be grounds to undo a trial. That route runs through a motion for a new trial, and it attacks a verdict.

The Clancy trial produced no verdict. There is nothing for a nondisclosure claim to set aside, and the remedy it offers, a new trial, is what a mistrial already produces. The rules that govern a false or incomplete answer at each stage of a case are set out on this firm’s page on juror nondisclosure and misrepresentation.

Two questions are live. The first is whether District Attorney Cruz will seek a second trial. The second is the defense’s renewed motion for a required finding of not guilty, filed September 10 and set for a conference on September 29. That motion depends on the sufficiency of the Commonwealth’s evidence of criminal responsibility, not on the composition of the jury. Neither question depends on the questionnaire.

This post is for general informational purposes only and is not legal advice. It is based solely on public court proceedings, public reporting, and published decisions and does not reflect any non-public information. Reading it does not create an attorney-client relationship. This may constitute attorney advertising.

Massachusetts police departments operate a growing network of automatic license plate readers, and prosecutors use the data these cameras collect as evidence in criminal cases. The cameras photograph passing vehicles, convert each plate to text, and store the plate number with the time, date, and location of the sighting. Officers query the stored records to place a specific car at a specific location on a specific day. That record can become central to the Commonwealth’s case.

Two matters drew attention in September 2026 to who controls this data. On September 14, 2026, the Boston Globe reported that outside law enforcement agencies were able to access Boston Police Department license plate reader data during a 2025 pilot program. The city’s contract with the vendor had required that access to be disabled. A bill pending in the Legislature would bar police from sharing the data with another agency except as required in a judicial proceeding. It would also bar them from obtaining another entity’s license plate reader data without a search warrant. A defendant facing charges built on license plate reader evidence can use these developments to test how the data in the case was collected and controlled.

How Automatic License Plate Readers Work

An automatic license plate reader is a camera paired with software that reads license plates. Some units are fixed to poles, bridges, and traffic signals. Others are mounted on police cruisers and read plates as the cruiser moves through traffic.

Each read creates a record. The record contains the plate number, a photograph of the vehicle, and the time, date, and location of the sighting. Vendors store these records in searchable databases. A single camera generates thousands of reads each day, and a regional network combines reads from many departments into one system.

Aggregation is what makes the stored data revealing. One read shows a car at one place. Thousands of reads across several weeks show a pattern of movement, including a driver’s home, workplace, and regular destinations.

Use of the Data in a Criminal Case

Prosecutors use license plate reader data to establish location and movement. In a case that depends on whether the defendant was present at a scene, a read that places the vehicle nearby at the relevant time supports the Commonwealth’s theory. In a case built on travel between two points, a series of reads can show a route.

Officers also use the data during investigations before charges issue. An officer queries a plate to learn where a vehicle has traveled, then builds the rest of the case from those leads. When the case reaches court, the reads may appear as exhibits, and the officer who ran the query may testify about what the database showed.

The evidence appears objective because it comes from a machine. That appearance of precision is a reason to examine the data closely. The reliability of a read and the lawfulness of the search that produced it are separate questions from the number on the screen.

The Constitutional Standard After Commonwealth v. McCarthy

The Supreme Judicial Court addressed license plate readers in Commonwealth v. McCarthy, 484 Mass. 493 (2020). The Court held that a person has a constitutionally protected expectation of privacy in the whole of their public movements under Article 14 of the Massachusetts Declaration of Rights. Widespread license plate reader surveillance can invade that interest.

On the facts before it, the Court found no search. The police used four fixed cameras at the ends of two bridges connecting Cape Cod to the mainland. Those cameras showed only whether the defendant was passing onto or off of the Cape at a given moment. The Court held that this limited surveillance did not permit the Commonwealth to monitor the whole of the defendant’s public movements, and it affirmed the denial of the motion to suppress.

The Court also described when the result would change. With enough cameras in enough locations, the historic location data from a license plate reader system would invade a reasonable expectation of privacy and would require a warrant, the same authority police must obtain to search a phone or computer. The Court explained that camera placement governs how invasive the surveillance becomes. Cameras near a home or a place of worship produce more revealing data than cameras on a highway. The Court declined to fix a bright line for how detailed the picture must be, which leaves the question open for litigation in each case.

The result is a fact-specific inquiry. The defense examines how many cameras contributed to the data, where those cameras stood, how long the records were kept, and how completely the combined reads mapped the defendant’s movements. The more complete the picture, the stronger the argument that the surveillance required a warrant.

Recent Massachusetts Developments

Two connected problems surfaced in 2026: unauthorized access to the data and misuse of the systems by officers.

On the access side, the Boston Globe reported on September 14, 2026 that outside law enforcement agencies were able to access Boston Police Department license plate reader data during a 2025 pilot program. The city’s contract had required that access to be disabled. Over the following five months the department received 77 requests for its data from other agencies. The department and the city have committed not to use the vendor going forward.

On the misuse side, reporting in 2026 has documented officers in Massachusetts departments, including Stow and New Bedford, using the databases to search for former partners. Reporting in 2025 described a Texas law enforcement agency searching the vendor’s nationwide network, including Massachusetts data, for a woman believed to have had an abortion. The sponsor of the pending House bill has cited out-of-state searches for people seeking reproductive or gender-affirming care as one reason for the bill.

On the local-control side, twenty-five Massachusetts municipalities have canceled contracts with the vendor Flock Safety or discontinued pilot programs over eighteen months, according to the American Civil Liberties Union of Massachusetts. The town of Boylston suspended its cameras in September 2026. A Suffolk County Superior Court judge has also ordered the Massachusetts State Police to release the audit logs of its license plate reader system and records of its camera locations.

These developments give the defense concrete facts to investigate. Where a department cannot show who accessed the data or under what authority, both the chain of custody and the lawfulness of the search come into question.

Proposed Legislation, House Bill 3755

Representatives Steve Owens and Lindsay Sabadosa filed House Bill 3755, An Act establishing driver privacy protections, in January 2025. The bill would regulate how law enforcement uses automatic license plate readers in Massachusetts.

The bill would prohibit anyone acting under color of state law from obtaining license plate reader data from another entity, governmental or private, without a valid search warrant. It would also prohibit disclosing the data or permitting access to it except as required in a judicial proceeding. It would bar the sale, lease, or purchase of the data. It would limit retention to fourteen days unless the records connect to a specific criminal investigation based on articulable facts linking the data to a crime. It would bar use of the technology to track or monitor activity protected by the First Amendment or by Articles II and XVI of the Massachusetts Declaration of Rights.

The House members of the Joint Committee on Transportation voted eleven to zero to report the bill favorably. The bill was referred to the House Committee on Ways and Means on March 23, 2026, where it remains. The provisions may be folded into a broader data privacy bill.

House Bill 3755 has not become law. The current rules for challenging license plate reader evidence come from Article 14 and McCarthy. The bill is relevant because its warrant and retention standards match the arguments the defense already makes under existing constitutional law.

Challenging License Plate Reader Evidence

The defense attacks license plate reader evidence on two fronts: the constitutionality of the search and the reliability of the data.

The constitutional challenge proceeds by motion to suppress. Counsel develops the extent of the surveillance, the number and placement of the contributing cameras, and the period the combined reads cover. Where the reads together show a detailed picture of the defendant’s movements, counsel argues under McCarthy that the collection was a search that required a warrant, and that the absence of a warrant requires suppression. Counsel also examines the lawfulness of any traffic stop that followed a read, and points to any outside agency that obtained the data without authority.

The reliability challenge tests the data itself. Automatic plate readers misread plates. Software can drop or transpose a character, so that the stored text shows a different plate than the vehicle photographed. Counsel compares the stored text against the photograph, examines the vendor’s error rate, and cross-examines the officer about the query and the database. Counsel also probes the chain of custody, because a record accessed and shared outside proper channels may be unreliable or inadmissible.

Where the motion to suppress succeeds, the location evidence leaves the case. Where the reliability challenge succeeds, the fact finder gives the evidence less weight at trial.

Obtaining the Records in Discovery

A person charged with an offense that rests on vehicle location should assume that license plate reader data may be part of the file. Counsel obtains the underlying records in discovery, including the reads, the photographs, the query logs, and the records of who accessed the data. Those materials determine whether a motion to suppress is available and whether the data can be challenged for accuracy. The same suppression practice governs a warrantless search of a vehicle and a motion to suppress in a motor vehicle stop.

Attorney Joe Serpa reviews the discovery in each case for evidence of this kind and litigates the constitutional and reliability questions the records present.

Key Takeaways

• Massachusetts police use automatic license plate readers, and prosecutors use the reads as evidence of a vehicle’s location and movement.
• In Commonwealth v. McCarthy, 484 Mass. 493 (2020), the Supreme Judicial Court held that a person has an Article 14 privacy interest in the whole of their public movements, and that a dense enough camera network can be a search requiring a warrant.
• The defense challenges this evidence by motion to suppress and by testing the accuracy of the reads.
• Reports in 2026 of unauthorized access to Massachusetts license plate reader data give a defendant new facts to investigate in a suppression motion.
• House Bill 3755 would require a search warrant before police obtain license plate reader data from another entity and would limit retention to fourteen days. It would also bar disclosure of the data except as required in a judicial proceeding. It has not become law.

Related Serpa Law Office Resources

• Illegal Searches and Seizures in Massachusetts: Article 14 and the Motion to Suppress
• Phone, Computer, and Digital Searches in Massachusetts
• Massachusetts Traffic Stops, Exit Orders, and Pretext Searches
• The Modern Massachusetts Traffic Stop: Phones, GPS, License Plate Readers, and the Fruit of the Poisonous Tree
• A Practitioner’s Guide to the Motion to Suppress in Massachusetts Motor Vehicle Stops
• Can Police Search My Car in Massachusetts Without a Warrant?
• Digital Search Warrants in Massachusetts

Bloomberg reported on September 11, 2026, that Apple’s new ambient audio features are testing eavesdropping laws in Massachusetts and other states. Massachusetts users face a real statutory risk. Secret use may support a felony prosecution, but the answer depends on what the device does, what notice it gives, and whether the wearer intends to capture the conversation secretly.

What Apple Watch Audio Intelligence Does

Apple announced Audio Intelligence for Apple Watch Series 12 and Apple Watch Ultra 4. Apple plans to release the two principal features, Siri Recap and Live Rewind, in beta later in 2026.

Apple describes Siri Recap as a feature that can take notes on conversations while it is active and create a high-level summary. The wearer can activate it manually or schedule it by time or location. The summary automatically deletes after seven days unless the wearer saves or exports it.

Live Rewind returns text from the preceding 15 seconds of speech. Apple says the Watch sounds a chime and shows a full-screen animation when the wearer requests the text. That warning comes after the relevant words have already entered the device’s temporary buffer.

Apple says neither feature creates or stores an audio recording. For Siri Recap, Apple says the Watch transmits encrypted audio to the paired iPhone, where a protected hardware compartment transcribes and condenses it. The system sends only condensed text to Private Cloud Compute to generate the summary, and Apple says the wearer does not receive the full transcript. Live Rewind displays a 15-second text snippet that the wearer may save or submit to Siri.

The absence of a saved audio file may affect the analysis, but it does not answer whether the wearer has secretly heard or recorded a communication within § 99.

Massachusetts Law Covers More Than Saved Audio

Massachusetts law governing wiretapping and secret recordings is unusually broad. G.L. c. 272, § 99 defines an intercepting device as equipment capable of transmitting, receiving, amplifying, or recording a communication. An interception includes secretly hearing or secretly recording the contents of an oral communication through such a device. The statute defines contents to include the substance, meaning, and existence of the communication.

Section 99’s definitions do not require a permanent audio file. They support an argument that a wearer who directs a device to receive speech and return its meaning in text has secretly heard the communication through an intercepting device. The Supreme Judicial Court has also held that § 99 does not depend on whether the speaker had a reasonable expectation of privacy. Commonwealth v. Hyde, 434 Mass. 594, 599-600 (2001).

The Supreme Judicial Court has also rejected an artificially narrow view of the word record. In Commonwealth v. Moody, 466 Mass. 196, 209 (2013), the Court concluded that secretly viewing and transcribing text messages can qualify because record includes setting information down in writing for later use. Moody involved transmitted text messages, not temporary AI processing of oral speech, so it supports the argument by analogy without resolving the new issue.

The better conclusion is that ambient AI creates a substantial risk under the existing statute, not that every use is automatically unlawful.

What Criminal and Civil Penalties Can Apply

Section 99 punishes a person who willfully intercepts, attempts to intercept, or procures another person to intercept a wire or oral communication. The maximum penalty includes five years in state prison and a $10,000 fine. The firm’s explanation of felonies and misdemeanors in Massachusetts addresses why the authorized state-prison sentence makes the offense a felony.

That does not mean every complaint produces a felony conviction. The Commonwealth still must prove the statutory elements, including willfulness and secrecy, beyond a reasonable doubt. The device’s design, what the wearer intended, what other people could see or hear, and whether they knew the device was capturing or processing their words may all matter.

If authorities charge a § 99 offense, willfulness and secrecy remain contested elements. The firm addresses procedures that can end a complaint before trial on its page about Massachusetts criminal dismissal rules.

Making or attempting a willful secret interception is the felony offense under § 99 C 1. Knowingly using or disclosing the contents of an unlawful interception is a separate misdemeanor under § 99 C 3, punishable by up to two years in a jail or house of correction, a fine of up to $5,000, or both.

Section 99 Q also permits a civil action for actual damages, but not less than $100 per day of violation or $1,000, whichever is higher, together with punitive damages, reasonable attorney’s fees, and other reasonably incurred litigation expenses.

Does a Chime, Light, or Screen Warning Prevent a Wiretap Violation?

Lawyers often describe Massachusetts as an all-party consent state, but § 99’s criminal prohibition depends on secret interception. Under Commonwealth v. Jackson, 370 Mass. 502, 507 (1976), a recording is not an interception when all parties actually know about it, even if they have not affirmatively authorized or consented to it. The Supreme Judicial Court later described the relevant inquiry as actual or constructive knowledge. The Commonwealth may prove that knowledge through clear and unequivocal objective manifestations. Commonwealth v. Morris, 492 Mass. 498 (2023).

In Commonwealth v. Grimaldi, 497 Mass. 615 (2026), the Supreme Judicial Court held that a willful violation requires an intent to record secretly, not merely an intent to record. The Court relied on a large reflective warning sign, openly displayed body-worn cameras, visible red recording lights, and the brightly lit setting to conclude that the troopers lacked an intent to record secretly, although the motion judge found no evidence that the defendant saw the sign. Because the Court found no willfulness, it expressly did not decide whether the recording itself was secret. The Court therefore did not establish that any light, icon, or chime by itself provides sufficient notice.

Apple makes Live Rewind and Siri Recap opt-in. A decision to activate or schedule a feature may show that its operation was intentional, but the Supreme Judicial Court required more for a felony in Grimaldi. The Commonwealth would still have to prove an intent to capture another person’s words without that person’s knowledge. The Supreme Judicial Court decided criminal willfulness in Grimaldi. Whether the same facts defeat a civil claim turns separately on whether an unauthorized secret interception occurred.

Apple’s two features provide different potential forms of notice. Apple currently identifies an audible chime, a full-screen animation, and a microphone indicator for Live Rewind, but it does not identify a comparable signal to nearby people while Siri Recap operates. Live Rewind also retrieves speech from the 15 seconds before the wearer invokes the feature. A court would have to decide how those facts affect secrecy and willfulness in a particular case.

A wearer can reduce the legal risk by giving clear notice before activating a feature that hears, records, transcribes, translates, or summarizes another person’s words.

AirPods, Meta Glasses, and Other AI Wearables

Current AirPods do not contain cameras or store recordings themselves. With a compatible paired Apple device, however, they can supply microphone input to recording applications and serve as a camera remote. They also support Live Translation. The paired device or application records the audio or displays the translated text. Secretly using that combination can still implicate § 99 and create the digital-evidence issues discussed by the firm. Bloomberg reports that Apple is developing camera-equipped AirPods, but those are not a current consumer product.

Section 99 excludes a hearing aid or similar device only when it is actually used to correct subnormal hearing to no better than normal. Use of AirPods that satisfies that narrow condition may fall outside the definition of an intercepting device. The exception does not categorically protect earbuds used for recording, remote listening, or translation.

Meta glasses can take photographs and record video with sound. Their ordinary recording mode presents an important difference: Meta says a front-facing capture LED continues blinking throughout video recording. Beginning with its second generation of glasses, blocking the LED disables the camera, and Meta says it is updating the glasses to detect physical tampering with the light. That visible signal may support an argument that the wearer neither recorded secretly nor acted willfully. Courts applying Grimaldi must consider the surrounding circumstances rather than adopt a categorical rule based on one indicator.

Translation, amplification, and other AI functions can be harder to evaluate because they may use microphones without creating a conventional audiovisual recording or displaying the same capture light. Because Section 99 refers to receiving, amplifying, and secretly hearing, users cannot safely assume that the absence of a saved audio file ends the inquiry.

Other body-worn AI products can present the same questions, including smart pins, pendants, camera headsets, translation earpieces, and assistants that rely on a paired phone’s microphones. Section 99 may apply when the system receives, amplifies, transcribes, summarizes, or records speech. Criminal exposure also depends on whether the wearer intentionally activates the feature, intends nearby speakers to remain unaware, and uses any available notice signal.

How a Secret Wearable Recording May Be Discovered

Secret ambient processing may never become known to the speaker or law enforcement. Police may learn about it only when a wearer saves or shares a summary, relies on a transcript in a family dispute or workplace dispute, produces digital evidence in a criminal case, turns over a device during a phone or computer search, or describes how the wearer obtained the information.

Detection affects whether conduct produces an investigation or complaint; it does not determine whether the conduct satisfies § 99. If the evidence establishes probable cause for a willful secret interception, the statute permits felony prosecution. A complaint does not establish guilt, and the Commonwealth must still prove every element beyond a reasonable doubt.

If a party offers a saved snippet or AI summary as evidence, the judge must address authentication, attribution, completeness, hearsay, relevance, and unfair prejudice. The guide to courtroom use of wearable-generated recordings, snippets, and summaries covers suppression and the rules that vary by proceeding. The firm’s Massachusetts Text Message and Phone Evidence FAQs address related questions involving messages, phones, and other digital records.

Give Clear Notice Before a Wearable Captures Another Person’s Speech

Wearable technology is becoming capable of hearing and preserving the meaning of conversations without looking like a recorder. Section 99 defines an intercepting device broadly and does not limit its prohibition to tape recorders or telephone bugs.

Massachusetts users should provide clear advance notice before activating audio capture, transcription, translation, or summarization around other people. A privacy-preserving product design may reduce the amount of data retained by Apple, Meta, or another company. It does not necessarily eliminate the wearer’s exposure under Massachusetts law governing secret recordings.

Additional answers about knowledge, home cameras, police encounters, admissibility, and criminal penalties appear in the firm’s Massachusetts wiretap and secret-recording FAQs.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. Serpa Law Office represents people in wiretap and digital-evidence matters and publishes additional Massachusetts criminal law updates. People seeking representation may contact the firm through its contact page.

This post explains what the motion argues, how a required finding works, and why the Commonwealth’s ability to try the case again depends on the difference between a hung jury and a court-ordered acquittal.

This office set out its view of the decision to bring this case to trial in an earlier post, The Lindsay Clancy Trial: A Cruel, Insensitive, and Out-of-Touch Prosecution. This post addresses what happens after the mistrial.

The Charges and the Deadlock

A Plymouth County grand jury returned indictments on September 15, 2023, charging three counts of murder and three counts of strangulation. The charges arose from the events of January 24, 2023. According to the motion, Clancy was arraigned from a hospital bed on February 7, 2023, while she was treated for life-threatening injuries from a suicide attempt.

The jury deliberated over seven days. According to the motion, the jury reported that eleven jurors were prepared to find Clancy not guilty by reason of lack of criminal responsibility, and one was not. The foreperson reported that the remaining juror acknowledged a doubt but declined to apply it as the law directs.

The defense asked the Supreme Judicial Court to order an inquiry of that juror. A single justice denied the petition the same day. See Commonwealth v. Clancy, No. SJ-2026-0402 (Sept. 4, 2026). The trial court then declared a mistrial. The firm covered the underlying juror dispute in an earlier post on when Massachusetts law permits the removal of a deliberating juror.

What the Motion Asks the Court to Do

The motion is brought under Massachusetts Rule of Criminal Procedure 25(b)(2). That rule allows a defendant to renew a motion for a required finding of not guilty within five days after the jury is discharged. See Mass. R. Crim. P. 25(b)(2), 378 Mass. 896 (1979). The defense had moved for a required finding at the close of the Commonwealth’s evidence and again at the close of all the evidence, and it now renews that motion. The firm explains this device in detail on its page on the motion for a required finding of not guilty under Rule 25.

A required finding is not a request for a new trial. If the court allows the motion, it enters a finding of not guilty. That finding is an acquittal, and it ends the case. This is the point that separates a required finding from the ordinary consequence of a hung jury, addressed below.

The Sufficiency Standard

A motion under Rule 25 tests the sufficiency of the evidence. The court asks whether the evidence, viewed in the light most favorable to the Commonwealth, would permit a rational trier of fact to find each element beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Slight evidence is not enough. The court must find evidence that could satisfy a rational factfinder of each element beyond a reasonable doubt, and no element may rest on conjecture. See Commonwealth v. Combs, 480 Mass. 55, 61 to 62 (2018).

The Commonwealth’s Burden on Criminal Responsibility

Clancy raised the defense of lack of criminal responsibility. A person is not criminally responsible if, because of a mental disease or defect, the person lacked substantial capacity either to appreciate the wrongfulness of the conduct or to conform the conduct to the requirements of law. See Commonwealth v. McHoul, 352 Mass. 544, 546 to 547 (1967). The firm’s page on criminal responsibility and the insanity defense in Massachusetts explains the standard and how it is litigated.

Once the evidence raises the defense, the Commonwealth bears the burden. It must prove criminal responsibility beyond a reasonable doubt in one of two ways. It may prove that the defendant had no mental disease or defect, or it may prove that, despite one, the defendant retained the substantial capacity the law describes. See Commonwealth v. Berry, 457 Mass. 602, 612 (2010). The Commonwealth may not rest on a presumption that most people are sane. See Commonwealth v. Lawson, 475 Mass. 806, 814 to 815 (2016).

A required finding of not guilty may rest on the failure of proof of criminal responsibility. See Lawson, 475 Mass. at 812. The Appeals Court applied that rule in 2026. It ordered the entry of findings of not guilty by reason of lack of criminal responsibility where the conduct was undisputed but the Commonwealth’s proof of criminal responsibility was legally insufficient. See Commonwealth v. Brunette-Silveira, No. 24-P-1351 (Mass. App. Ct. May 12, 2026). The Supreme Judicial Court has cautioned that such a result will be the rare case. See Lawson, 475 Mass. at 817.

The Defense Argument

The motion contends that neither way of proving criminal responsibility was available on this record.

The Commonwealth’s own witnesses foreclosed the first. According to the motion, all six forensic experts, three called by each side, agreed that Clancy suffered from a serious mental illness on January 24, 2023. The motion states that the Commonwealth’s rebuttal experts disputed the diagnosis, not the fact of illness, describing a major depressive episode and bipolar II disorder with dissociation. On that record, the motion argues, no rational jury could find beyond a reasonable doubt that Clancy had no mental disease or defect.

The second required proof that, despite the illness, Clancy retained the substantial capacity to appreciate wrongfulness or to conform her conduct to the law. The motion argues that the Commonwealth’s capacity evidence, that Clancy could perform familiar tasks and act in sequence on the day in question, does not prove that element.

The motion points to unrebutted testimony that a person in psychosis can perform practiced activities such as driving, and it characterizes the rebuttal opinions as describing delusional reasoning rather than a preserved capacity to appreciate wrongfulness. The motion argues that inference from competence at routine tasks, during a crisis every witness agreed was acute, is the conjecture that the sufficiency standard forbids.

The motion states that it does not rest on the jury’s division. A required finding depends on the record, not on the vote. The Commonwealth opposes the motion.

Separation of Powers: Who Decides What

The motion is, at bottom, a separation-of-powers argument. The Massachusetts Constitution divides authority among the branches under Article 30 of the Declaration of Rights, and each branch has a defined role in a criminal case.

The Legislature defines the offense and sets the burden of proof. It defined murder and strangulation, and it fixed the Commonwealth’s obligation to prove criminal responsibility once the defense is raised. The firm’s page on what the Massachusetts Legislature decides in a criminal case explains that role.

The District Attorney decides whether to seek an indictment and whether to retry a case after a mistrial. That power is broad, but it is not unlimited. The firm’s page on what a Massachusetts District Attorney can and cannot decide sets out where prosecutorial discretion ends.

The judge decides questions of law, including whether the evidence can sustain a conviction. A motion for a required finding puts that question to the court. The firm’s page on what a Massachusetts judge can and cannot decide describes the limits on judicial power in a criminal case. The required-finding motion asks the court to use a power the law reserves to it. That power is to end a prosecution the evidence cannot support, even after a jury has been unable to agree.

Double Jeopardy and Retrial

Whether the Commonwealth may try the case again depends on the distinction between a hung jury and an acquittal.

A hung jury does not end jeopardy. When a jury is discharged because it cannot agree, the case is not over, and the Commonwealth may ordinarily retry the defendant. See Richardson v. United States, 468 U.S. 317, 325 to 326 (1984). A deadlocked jury is the classic basis for a mistrial, and double jeopardy does not bar a retrial after one. See Commonwealth v. Steward, 396 Mass. 76, 78 to 79 (1985); Commonwealth v. Troila, 410 Mass. 203, 206 (1991).

The firm’s pages on mistrials, double jeopardy, and retrial and on double jeopardy in Massachusetts explain the rule and its exceptions.

A required finding is different. When a court enters a finding of not guilty because the evidence is insufficient as a matter of law, that ruling is an acquittal, and double jeopardy bars a retrial. See Smith v. Massachusetts, 543 U.S. 462, 467 to 468 (2005). That is why the motion asks the court to decide the sufficiency question now. If the court allows the motion, the case is over. If the court denies it, the District Attorney may retry the case on the same record.

If the Motion Succeeds

The motion asks the court to enter a finding of not guilty by reason of lack of criminal responsibility on each indictment. Such a finding is not a release. It leads to the procedure that Massachusetts law provides after that verdict, an evaluation and possible commitment for psychiatric care under G. L. c. 123, § 16. The distinction between an acquittal and a dismissal, and what each outcome means, is addressed on the firm’s page on dismissal compared with a finding of not guilty.

What Happens Next

The court has set a conference for September 29, 2026, and the motion asks to be heard then. The court will decide whether the evidence could support a finding of criminal responsibility beyond a reasonable doubt. The District Attorney must separately decide whether to seek a second trial. Three outcomes are possible. The court may enter a required finding of not guilty, which would end the case. If the court denies the motion, the District Attorney may retry the case or decide not to proceed.

The Rules for Any Massachusetts Defendant After a Hung Jury

The Clancy case illustrates rules that apply to any defendant whose trial ends without a verdict. A hung jury is neither a conviction nor an acquittal. The defense may still ask the court to test the sufficiency of the evidence after the jury is discharged. When lack of criminal responsibility is raised, the burden falls on the Commonwealth, and it cannot be met by the presumption that most people are sane. The firm’s approach to this kind of motion practice is described on its page on trial motion practice in Massachusetts criminal cases.

This post is for general informational purposes only and is not legal advice. It is based solely on public court proceedings, public reporting, and published decisions and does not reflect any non-public information. Reading it does not create an attorney-client relationship. This may constitute attorney advertising.

The Results as Reported

The results below come from press reports published on September 1 and 2, 2026, and are unofficial.

In Suffolk County, the incumbent district attorney, Kevin Hayden, won the Democratic primary over Linda Champion and Rachael Rollins, who previously held the office. No Republican filed for the seat, so the primary decided the office for the term that begins in January 2027.

In Middlesex County, the incumbent district attorney, Marian Ryan, won the Democratic primary over David Solet, a former prosecutor in her office. No Republican filed, and the primary decided that office as well.

In Norfolk County, the seat is open because Michael Morrissey did not seek another term. Seven candidates ran in the Democratic primary. Djuna Perkins, a former prosecutor, won narrowly over Adam Deitch, a former federal prosecutor. Perkins faces Joe Pagliarulo, a former prosecutor running as an independent, in the general election on November 3, 2026. Norfolk County is the only one of the three Greater Boston districts with a contested general election for district attorney.

In the Cape and Islands district, the incumbent, Robert Galibois, held the seat.

What a District Attorney Decides

The district attorney decides whether the Commonwealth proceeds on a charge once it is in court, whether to seek an indictment and move the case to the Superior Court, and whether to enter a nolle prosequi under Mass. R. Crim. P. 16. The district attorney also decides whether to move for pretrial detention under G.L. c. 276, § 58A, what plea to offer, and what sentence to recommend. The power to make those decisions is executive power under Article 30 of the Massachusetts Declaration of Rights.

Under Article 30, a judge may not dismiss a legally adequate charge over the Commonwealth’s objection before a verdict, finding, or plea. The Supreme Judicial Court so held where a judge had dismissed indictments in the interests of public justice, because the decision to prosecute belongs to the executive. Commonwealth v. Cheney, 440 Mass. 568, 573 to 575 (2003).

A clerk-magistrate, an assistant clerk, or a judge authorizes the complaint on a finding of probable cause under Mass. R. Crim. P. 3 and G.L. c. 218, § 33. The district attorney does not issue it.

A judge, a clerk, or a bail commissioner sets bail under G.L. c. 276, § 58. A jury decides guilt or innocence and issues a verdict at trial, or a judge does in a jury-waived trial. The judge imposes the sentence within the range the statute provides. The full allocation, decision by decision, is on the page on what a Massachusetts district attorney can and cannot decide.

What Does Not Change on Election Day

A pending case continues on the same schedule and under the same law after a primary. Court dates stand. The statutes that define the offenses and the sentences do not change. The Massachusetts Rules of Criminal Procedure, the law of evidence, and the decisions of the Supreme Judicial Court bind every district attorney’s office in the same way. The judge assigned to a case decides the motions in it under the same law after the election as before.

The prosecutor’s disclosure duty binds every office in the same way. Under Mass. R. Crim. P. 14(a)(1)(A), the prosecutor must disclose exculpatory facts to the defense automatically and without a request. The duty covers facts in the possession, custody, or control of the prosecutor and of persons under the prosecutor’s direction and control. It also covers facts held by persons who participated in investigating or evaluating the case and who regularly report to the prosecutor’s office or did so in the case.

The same subsection requires disclosure of any written or recorded statements, and the substance of any oral statements, made by the defendant. It requires the names, addresses, and dates of birth of the Commonwealth’s prospective civilian witnesses, and the names and business addresses of its prospective law enforcement witnesses. It requires the relevant police reports and the other categories the rule lists. Under Rule 14(d) the duty continues as new material is obtained.

The duty is also a constitutional one under Brady v. Maryland, 373 U.S. 83 (1963), and a professional one under Mass. R. Prof. C. 3.8. No incoming or returning district attorney can narrow it.

What Can Change When an Office Changes Hands

Within the decisions that belong to the district attorney, policy changes with the person who holds the office. A district attorney sets office policy on which charges to prosecute and which to decline, and on when to seek an indictment. The district attorney also sets policy on when to move for pretrial detention under § 58A and what position to take on bail. It sets policy on diversion and treatment alternatives, and on the plea offers and sentencing recommendations that assistant district attorneys may make.

Those policies are lawful because the executive branch makes those decisions. Once the Commonwealth has begun a prosecution, “the decision to nol pros a criminal case is within the discretion of the executive branch of government, free from judicial intervention.” Cheney, 440 Mass. at 574, quoting Commonwealth v. Gordon, 410 Mass. 498, 500 (1991).

The Supreme Judicial Court has described the district attorney as the people’s elected advocate for a broad spectrum of societal interests, from ensuring that criminals are punished for wrongdoing to allocating limited resources to maximize public protection. Gordon, 410 Mass. at 500.

Three rules govern the effect of a policy change on a case that is already pending.

First, a prosecutor may withdraw a plea offer at any time before the defendant accepts it, under the contract principles to which plea bargaining is analogized. Where there is no detrimental reliance and the offer is withdrawn, the defendant is left with the adequate remedy of having a trial. Commonwealth v. Johnson, 447 Mass. 1018, 1020 to 1021 (2006), quoting Commonwealth v. Smith, 384 Mass. 519, 522 (1981).

The test for enforcing a prosecutor’s promise is whether the defendant’s reliance on it was reasonable and whether the defendant in fact relied on it to their detriment. Johnson, 447 Mass. at 1020. In Johnson the prosecutor’s superiors ordered the offer withdrawn. The judge found that the defendant had not accepted it. The Supreme Judicial Court held that the defendant had no right to enforce it. An offer made by one administration can be withdrawn by the next.

Second, once a judge has accepted a guilty plea under Mass. R. Crim. P. 12, the disposition belongs to the court. A later administration cannot withdraw the plea or vacate the conviction. A motion to withdraw a guilty plea is the defendant’s motion, treated as a motion for a new trial under Mass. R. Crim. P. 30(b). A judge may allow it at any time it appears that justice may not have been done. Commonwealth v. Scott, 467 Mass. 336, 344 (2014).

Third, a nolle prosequi entered under Mass. R. Crim. P. 16 is the prosecuting attorney’s written declaration, with a statement of reasons, that the Commonwealth will not further prosecute the charge. Under Rule 16(b), a nolle prosequi entered after jeopardy attaches, without the defendant’s consent, has the effect of an acquittal. A nolle prosequi entered before jeopardy attaches does not have that effect. Whether to charge the offense again is then a charging decision for whoever holds the office at the time.

A dismissal ordered by a judge is a judgment of the court. A change of administration does not disturb it. A new district attorney inherits the office’s prior decisions in the cases where they were made.

Suffolk and Middlesex Counties

In Suffolk and Middlesex counties the incumbents won. The press reports no opponent on the November ballot, so the offices continue under the same district attorneys. For a defendant with a case in the Boston Municipal Court, the Chelsea District Court, or the Suffolk Superior Court, the office policies in place on September 1 remain in place. The same is true in the Middlesex District Courts and the Middlesex Superior Court. The four-year term that begins in January 2027 belongs to the same officeholder in each county.

Norfolk County

In Norfolk County the office changes hands whoever wins in November. Under G.L. c. 12, § 12, the winner of the November 3, 2026 general election takes office on the first Wednesday of January after the election and serves for four years. That day is January 6, 2027. Until then the current district attorney and the current assistant district attorneys hold the office and make its decisions.

For a defendant with a case pending in the Quincy, Dedham, Stoughton, Wrentham, or Brookline District Court, or in the Norfolk Superior Court, the three rules above apply directly. An offer that is outstanding in the fall can be accepted before January or withdrawn after it. A plea accepted by a judge before January is a disposition that the new administration cannot reopen. A nolle prosequi entered before January keeps the effect Rule 16 gives it.

Whether to resolve a case before the transition or after it depends on the particular case, the particular offer, and the policies each candidate has described. That is a judgment counsel makes with the client.

The Attorney General’s Role

Under G.L. c. 12, § 27, the district attorney appears for the Commonwealth in the Superior Court in all cases in which the Commonwealth is a party or interested. The Attorney General, when present, has the control of those cases. That authority does not depend on any county’s election. A defendant whose case the Attorney General’s office prosecutes deals with an office elected statewide, not by the county.

What This Means for a Defendant Today

A defendant with a pending case in Suffolk or Middlesex County should expect the same office, the same policies, and the same assistant district attorneys. A defendant with a pending case in Norfolk County should expect the same until January 6, 2027. Some office policies may change after that date.

In every county a clerk-magistrate, an assistant clerk, or a judge authorizes the complaint. A judge, a clerk, or a bail commissioner sets bail. A jury decides guilt or innocence and issues a verdict at trial. In a jury-waived trial a judge does so. A judge imposes the sentence. No district attorney election chooses the clerk-magistrate, the judge, or the jury. The prosecutor’s disclosure duty is owed in full regardless of who holds the office.

Attorney Joe Serpa represents defendants in the District Courts and the Superior Courts of Suffolk, Norfolk, Middlesex, Essex, Worcester, and Bristol counties.

The disputed question was whether postpartum psychosis deprived Clancy of the substantial capacity either to appreciate the wrongfulness of her conduct or to conform her conduct to the law. Kevin Reddington argued that command hallucinations left her without control over her actions. A defense forensic psychiatrist testified that Clancy heard a voice directing the killings. The Commonwealth argued that she planned the deaths, arranged for her husband to be out of the house, understood the wrongfulness of her conduct, and did not have the condition the defense described.

This post examines how the Commonwealth chose to present that case. In opening and closing, the prosecution told the jury that Clancy was a murderer who coldly wanted her children dead. The Commonwealth called witnesses who testified that the injuries to her neck and wrists were consistent with an insincere attempt to die by suicide. Massachusetts law permitted those choices. In Attorney Serpa’s assessment, those choices were cruel, insensitive, and out-of-touch, and they amounted to a serious tactical error.

After the killings, Clancy cut her neck and wrists and went out a second-story window. She survived and is paralyzed. The Commonwealth’s motive theory was that she wanted to die and saw her children as the reason she remained alive, so ending their lives cleared the way for her own death. At the same time, the prosecution asked jurors to conclude that the wounds were shallow by design and that the suicide attempt was staged.

The two theories were inconsistent. A mother who killed her children to clear the way for her own death, and a suicide attempt the Commonwealth characterized as staged, cannot both be true without an explanation that reconciles them. The Commonwealth did not provide one. That inconsistency illustrates the cost of using every available argument without considering what the combination did to the prosecution’s credibility or to its treatment of Clancy and her family.

What the Law Allowed the Commonwealth to Argue

Massachusetts uses the standard adopted in Commonwealth v. McHoul, 352 Mass. 544 (1967). A person is not criminally responsible if, as a result of mental disease or defect, that person lacked substantial capacity either to appreciate the wrongfulness of the conduct or to conform the conduct to the requirements of law.

Once the defense is raised and the evidence would permit a reasonable doubt, the Commonwealth must prove criminal responsibility beyond a reasonable doubt. Commonwealth v. Keita, 429 Mass. 843, 849 to 850 (1999). The Supreme Judicial Court has described what that burden requires. The Commonwealth must prove that the defendant had no mental disease or defect, or, failing that, that no mental disease or defect deprived the defendant of substantial capacity. Commonwealth v. Lawson, 475 Mass. 806 (2016).

Lawson also identifies how a prosecutor may meet that burden. The Commonwealth may rely on the circumstances of the offense, including evidence that the defendant planned the offense, acted on a rational motive, made rational decisions during the offense and in avoiding capture, and attempted to conceal what happened. It may also rely on the defendant’s words and conduct before, during, and after the offense, including evidence of malingering.

So the Commonwealth in this case did what the case law invites a prosecutor to do. The planning argument, the timing argument, and the suggestion that Clancy overstated her condition all sit within Lawson. The question is not whether those arguments were permitted. The question is whether making them at that volume, to this jury, about this defendant, served the Commonwealth’s interest in a conviction.

A Cruel, Insensitive, and Out-of-Touch Posture

Sympathy is not an element of any offense, and no juror is asked to weigh it. But jurors are people, they sit ten feet from the defendant for weeks, and they form a judgment about whether the account they are being given matches the person in front of them. Whether a particular jury will accept a hard argument is something a trial lawyer begins assessing during jury selection, long before the evidence closes.

Lindsay Clancy is an obviously sympathetic defendant. She lost all three of her children. She attempted to die by suicide and survived. Her mental illness was documented before the killings by the medications she had been prescribed and the treatment she had sought. She has been left paralyzed. Whatever a juror concludes about criminal responsibility, none of that is in dispute.

Against those facts, telling a jury that this woman coldly wanted her own children dead asks it to accept something that does not correspond to what it can see. The Commonwealth made that argument at the opening of the trial, before the jury had heard any evidence about her illness, and made it again at the close. In the assessment of Attorney Joe Serpa, the Commonwealth misread the courtroom it was standing in. Jurors notice cruelty, and they hold it against the party who displays it.

The juror interviews now provide evidence of how some members of the panel received that presentation. Their criticism supports the concern that the Commonwealth’s treatment of Clancy weakened its persuasiveness. The interviews also require a more precise account of the deadlock: the foreperson described eleven jurors favoring acquittal by reason of insanity and a single juror resisting that result.

The Suicide Attempt

The most costly decision was the treatment of the suicide attempt. The Commonwealth called witnesses who testified that her injuries were consistent with an insincere attempt to die by suicide, and argued that Clancy killed her children because they were the reason she was still alive. Reddington answered that she had made a very significant suicide effort, and told the jury that the Commonwealth had taken the soul out of his client.

The Commonwealth built that argument on first responders, who described the injuries to her neck and wrists as superficial and said the wounds were not bleeding when they reached her. From that testimony the Commonwealth asked the jury to find that the attempt was staged. Commentators covering the trial read the Commonwealth’s position as an accusation that she could take her children’s lives but lacked the resolve to take her own.

That testimony is the clearest instance of the same error. A woman who cut her own neck, cut her wrists, and then went out a second-story window did not make an insincere attempt to die by suicide. Asking twelve jurors to find otherwise requires them to disbelieve the one piece of evidence that is visible from the jury box, because the wheelchair was in front of them every day of the trial.

A jury that concludes the Commonwealth is being unfair about one thing will wonder what else the Commonwealth is being unfair about. The doubt does not stay confined to the point that produced it.

What a More Measured Prosecution Looks Like

The Commonwealth could have conceded everything that was not in dispute. It could have acknowledged the severity of the illness, accepted the suicide attempt as real, and expressed regret for what happened to this family. It could then have argued the one issue that decides the case: that even a genuinely and severely ill person may retain substantial capacity to appreciate wrongfulness, and that the evidence of planning showed she retained it here.

That version of the case gives up nothing the Commonwealth needed. It concedes facts the jury was going to accept anyway, and it spends the credibility saved on the single contested question. A prosecutor who is visibly fair about the parts that hurt is far more persuasive on the contested part, and a closing argument built that way is harder for a defense lawyer to answer. Attorney Serpa believes a prosecution presented that way would have had a better chance of the verdict the Commonwealth wanted.

Where the Case Stands

On Friday, September 4, after the jury reported again that it could not agree, Judge Sullivan announced that he would declare a mistrial. Kevin Reddington objected and asked the court to poll the jurors about partial verdicts, arguing that jeopardy had attached to any charge the jury had already resolved. The judge gave the defense one hour to file an emergency petition with the Supreme Judicial Court.

Earlier that day the same judge had taken the juror dispute up in camera and had neither excused nor disqualified the juror. Those developments are covered in the firm’s post on when Massachusetts law permits removal of a deliberating juror.

A mistrial is not an acquittal, and the Commonwealth ordinarily may retry a case that ends in a deadlocked jury. A second trial would begin again with pretrial motions and evidentiary rulings. If this case is tried again, the Commonwealth will have the same evidence, the same law, and one advantage it did not have the first time. It will know how a jury responded to the way it chose to talk about Lindsay Clancy.

What the Mistrial Rules Mean Here

Whether the Commonwealth may try Lindsay Clancy again depends on two questions. Was there a manifest necessity for ending the first trial, and did the defense object or consent? Reddington objected, asked for a stay, and went to the Supreme Judicial Court. Nothing in that sequence reads as consent, so the question is preserved rather than waived.

On the first question the Commonwealth is in a strong position. A jury that genuinely cannot agree is the prototypical example of manifest necessity. Commonwealth v. Ellis, 432 Mass. 746, 751 (2000). Jeopardy does not end when a jury is discharged for inability to agree. Richardson v. United States, 468 U.S. 317, 326 (1984). This jury deliberated for roughly seven days and reported an impasse more than once.

The statute pushed in the same direction. Where a jury report twice after due and thorough deliberation that they are deadlocked, they shall not be sent out again without their own consent, unless they ask the court for some further explanation of the law. G.L. c. 234A, § 68C. By the third report the judge had little room left to keep the jury working.

The partial verdict request faced a rule rather than a discretionary call. Clancy faces three counts of murder in the first degree, and each has lesser included offenses. Where counts are charged as separate indictments, a jury may return verdicts on some and deadlock on others. Within any single indictment, a judge is prohibited from asking whether the jury has settled on a lesser offense. Commonwealth v. Roth, 437 Mass. 777, 787 (2002).

Public accounts of an eleven to one division do not change the analysis either. A verdict is effective only when the jurors affirm it in open court, and posttrial descriptions of what a jury discussed in private cannot convert a deadlock into an acquittal. Read v. Commonwealth, 495 Mass. 312 (2025).

The emergency petition to a single justice under G.L. c. 211, § 3 did not succeed. Relief under that statute requires both a substantial claim that substantive rights were violated and an error that cannot be remedied under the ordinary review process, and interlocutory rulings in criminal cases are not ordinarily reviewed because the regular appellate process protects the defendant. Morrissette v. Commonwealth, 380 Mass. 197, 198 (1980). The full framework, including every ground for a mistrial and the consent rules that decide whether a case can be tried twice, is set out on the firm’s page on mistrials in Massachusetts criminal cases.

In the assessment of Attorney Serpa, that standard is the likely reason the petition was denied rather than any view of the merits. The single justice did not decide whether double jeopardy bars a second trial. That question survives, and it can be raised by a motion to dismiss before any retrial.

What Happens After a Verdict of Not Guilty by Reason of Insanity

A verdict of not guilty by reason of insanity does not send a person home. General Laws chapter 123, section 16 governs what follows. The court may order hospitalization for examination, and within sixty days the district attorney or the facility may petition for commitment.

If the court commits the person, the initial order lasts six months, and later orders may be renewed for successive one-year periods on the findings the statute requires. The district attorney receives notice of the commitment proceedings and may be heard. The result is a system of confinement and periodic judicial review, not release.

Mental Impairment and Specific Intent

A defendant who does not meet the full standard for lack of criminal responsibility may still offer evidence of mental impairment. Under Commonwealth v. Grey, 399 Mass. 469 (1987), a jury may consider evidence of a defendant’s mental impairment in deciding whether the Commonwealth has proved a required specific intent. In a murder case, that evidence can bear on premeditation and on the intent element of malice. This is not a complete defense, but it can lower the degree of a conviction or defeat a charge that requires a particular state of mind.

Key Takeaways

• A mistrial from a hung jury is not an acquittal. The charges remain and a retrial is usually permitted.
• The insanity defense in Massachusetts is the lack of criminal responsibility under the McHoul standard, and the Commonwealth must prove criminal responsibility beyond a reasonable doubt.
• A verdict of not guilty by reason of insanity leads to hospitalization and possible commitment under General Laws chapter 123, section 16, not release.

The Jurors’ Accounts After the Mistrial

On September 8, NBC10 Boston interviewed foreperson Roni Carlson and jurors Kellie Farina and Paula Devlin. In its September 9 report on the interviews, NBC10 stated that all three jurors criticized the prosecution. Farina described the prosecutors as cold and lacking compassion. “I just found it to be harsh. Very, very harsh,” she said. The jurors regarded Kevin Reddington’s presentation as more authentic.

Carlson identified Clancy’s journals and her former mother-in-law’s testimony as evidence that Clancy loved her children. For Carlson, that evidence supported the defense’s account of Clancy’s mental condition. The jurors also described the distress of listening to Patrick Clancy’s 911 call, which they replayed during deliberations. Their doubts about criminal responsibility coexisted with a full appreciation of what had happened to the children.

The NBC10 interviews also described deliberations that changed jurors’ positions. The station reported that the discussions persuaded three jurors to favor acquittal by reason of insanity. Carlson said the remaining holdout acknowledged reasonable doubt but still declined to agree to that verdict. NBC10 sought his response, but its report did not include his account.

On September 9, CBS Boston published a separate interview with juror No. 5. She said the prosecution lacked a “figurative smoking gun” and that the evidence left too much uncertainty for a guilty verdict. She said she began deliberations believing Clancy was criminally responsible, but ultimately concluded that Clancy was experiencing a profound mental health crisis. She also defended the holdout in part, explaining that several jurors entered deliberations firmly committed to their positions.

The interviews establish what the speakers now say about their experience. They do not establish every juror’s reasoning or isolate the prosecution’s tone as the cause of the mistrial. The holdout juror has not provided his account. Still, the criticism comes from people who heard the evidence and participated in deliberations. A prosecutor asking jurors to reject a mental illness defense must address the evidence of illness and explain the inference the Commonwealth wants them to draw. Repeatedly emphasizing the brutality of an admitted act does little to resolve the disputed question of the defendant’s mental capacity. The jurors’ reactions give the Commonwealth a concrete reason to reconsider how it presents the case if it seeks another trial.

This post is for general informational purposes only and is not legal advice. It is based solely on public court proceedings, public reporting, and published decisions and does not reflect any non-public information. Reading it does not create an attorney-client relationship. This may constitute attorney advertising.

Police-misconduct scandals in Massachusetts have reopened many old convictions. Hood marks the limit of that remedy. Corruption proven in one investigation does not, by itself, undo a plea in a different case.

The Decision in Commonwealth v. Hood

In June 1995, Craig Hood pleaded guilty to two counts of murder in the second degree and related firearm charges. The charges arose from the 1993 shooting deaths of two women in the Mattapan section of Boston. By pleading guilty to second-degree murder, Hood avoided the risk of two mandatory sentences of life without the possibility of parole.

In July 2020, Hood moved to withdraw his pleas. He argued that the Commonwealth had failed to disclose exculpatory evidence, that newly discovered evidence undermined his guilt, that his plea counsel was ineffective, and that his pleas were involuntary. His arguments drew on the investigation into the murder of Boston police Detective John Mulligan, an investigation later shown to have been compromised by serious police corruption. Some detectives worked on both the Mulligan investigation and the investigation into the murders to which Hood pleaded guilty.

A Superior Court judge held an evidentiary hearing and denied the motion. The Supreme Judicial Court granted direct appellate review and affirmed.

The Standard for Withdrawing a Guilty Plea

A motion to withdraw a guilty plea is treated as a motion for a new trial under Mass. R. Crim. P. 30 (b). A judge may allow it “any time it appears that justice may not have been done.” Commonwealth v. Scott, 467 Mass. 336, 344 (2014).

On appeal, the reviewing court asks whether the motion judge abused her discretion or committed a significant error of law. Commonwealth v. Henry, 488 Mass. 484, 490 (2021). Where the judge held an evidentiary hearing, the appellate court accepts findings supported by the record and defers to the judge’s credibility determinations. The court decides for itself whether the judge applied constitutional principles correctly.

The Materiality Requirement

Hood’s claims about withheld evidence, newly discovered evidence, and ineffective assistance all depended on one showing. He had to prove a reasonable probability that he would not have pleaded guilty had he known the Mulligan investigation material, and that rejecting the plea offer would have been rational. Commonwealth v. Lastowski, 478 Mass. 572, 577 (2018). The question is not whether the information had some arguable value. The question is whether it “would have materially influenced” the decision to plead guilty. Scott, 467 Mass. at 360.

The court held that the material failed that test. Some of it addressed who killed Mulligan, not who killed the two women three days later. Some of it was cumulative, because plea counsel already possessed the core facts of the third-party culprit theory. A third-party culprit defense requires acts “so closely connected in point of time and method of operation” that they raise doubt about the defendant’s identification. Commonwealth v. Andrade, 488 Mass. 522, 532 (2021). Motive alone does not satisfy that standard.

The court also weighed the strength of the Commonwealth’s case. That case included a detailed confession containing facts only the killer would have known, ballistics evidence, and a witness who placed Hood at the scene. Against that evidence, Hood identified no substantial defense that would have made rejecting the pleas rational.

Egregious Government Misconduct and the Nexus Requirement

Hood also argued that police corruption rendered his pleas involuntary. A plea may be defective where government misconduct that has since been discovered induced it. To withdraw a plea on that ground, a defendant must show two things. First, that egregious government misconduct took place in connection with his case and preceded the plea. Second, that the misconduct was material to his decision to plead. Commonwealth v. Hallinan, 491 Mass. 730, 744 (2023); Commonwealth v. Claudio, 484 Mass. 203, 206 (2020).

The first requirement decided the case. It demands a nexus between the misconduct and the defendant’s own case. Commonwealth v. Ruffin, 475 Mass. 1003, 1004 (2016). The court found no such nexus. The corruption proven in the Mulligan investigation gave those officers a specific incentive to short-circuit that investigation. No comparable evidence connected the corruption to the investigation of the two murders here.

The court rejected the broader argument that a poisoned investigation poisons every investigation it touches. Shared detectives, shared witnesses, and shared leads do not transfer corruption from one case to another. The inquiry asks whether misconduct infected the investigation of this defendant.

The Limits of the Drug-Laboratory Presumption

Hood asked the court to presume that egregious misconduct occurred in his case. Massachusetts law does provide a conclusive presumption of government misconduct in narrow circumstances. The court created that presumption for defendants affected by a State drug-laboratory chemist’s misconduct, because there it would have been impossible for those defendants to show the required nexus. Scott, 467 Mass. at 352; Hallinan, 491 Mass. at 747.

Those conditions were absent here. Hood did not show that establishing a nexus was impossible. The presumption is a remedy for systemic misconduct that taints an entire category of cases, not a substitute for proof in an individual case.

Challenging the Voluntariness of a Confession

Hood argued last that the officers coerced his confession. A voluntary statement is the product of a rational intellect and a free will, not induced by physical or psychological coercion. Commonwealth v. Williams, 486 Mass. 646, 659 (2021).

The court explained an important distinction. Evidence that an officer engaged in misconduct in other matters may serve as impeachment material. Matter of a Grand Jury Investigation, 485 Mass. 641, 652 (2020). It does not, without more, establish that a confession in a separate case was involuntary. Hood identified no coercive act during his interrogation. The content of his confession, corroborated by independent evidence, supported the finding that it was reliable.

What the Decision Means for Defendants

Hood confirms that later-discovered police misconduct can support a motion to withdraw a guilty plea in Massachusetts. It also confirms the limit on that remedy. The defendant has the burden of tying the misconduct, or the withheld evidence, to his own case and to his own decision to plead.

That burden is a factual one, and it is met with a developed record. An effective motion identifies the specific evidence, shows how it connected to the defense, and explains why an informed defendant would have gone to trial. A defendant who believes that misconduct or nondisclosure affected his conviction should have the record reviewed by counsel, because the strength of the motion depends on the connections the record can prove.

Attorney Joe Serpa represents people seeking to challenge convictions and guilty pleas in Massachusetts. This office reviews the plea record, the discovery history, and any later-discovered evidence to assess whether a motion for a new trial is supported.

That distinction now controls the dispute unfolding in the Lindsay Clancy murder trial in Plymouth Superior Court. After six days of deliberations, the foreperson sent the judge a note concerning one juror. According to defense attorney Kevin Reddington’s public account, the note said the juror was not following the court’s reasonable-doubt instruction. Reddington asked Judge William Sullivan to remove the juror and seat an alternate. Judge Sullivan did not remove the juror immediately. He questioned the jurors individually, repeated the reasonable-doubt instruction, and directed the jurors and alternates to return on Friday, September 4. Reddington told reporters that the judge would then question the identified juror. The day’s events are described in the BBC’s live coverage and an Associated Press report.

On Friday, September 4, Judge Sullivan took the matter up in camera. He neither excused nor disqualified the juror, and the jury returned to its deliberations. Later that day, after a further report of deadlock, he announced that he would declare a mistrial, and he entered it after the Supreme Judicial Court declined to grant the defense emergency relief. The defense at trial was lack of criminal responsibility, based on postpartum illness.

The foreperson’s report presented a legitimate question for the judge. It did not answer that question. The court had to determine whether the juror had refused to perform the duties required by law or instead remained unpersuaded after participating in the deliberations. That difference determines whether removal is lawful.

The Legal Standard for Removing a Deliberating Juror

General Laws c. 234A, § 39 permits a judge to discharge a juror after deliberations have begun only after a hearing establishes an emergency or another compelling reason. The judge must identify the reason on the record. The statute does not permit removal based solely on suspicion, frustration, or another juror’s characterization of the disagreement.

The Supreme Judicial Court described the inquiry as a particularly sensitive undertaking in Commonwealth v. Connor, 392 Mass. 838, 843 to 847 (1984). The hearing must establish a demonstrable inability to perform the duties of a juror. The reason must be personal to the juror and unrelated to the juror’s view of the merits, relationship with the other jurors, or position in the deliberations.

If that demanding standard is met, Massachusetts Rule of Criminal Procedure 20(d)(3) permits an alternate to be seated. The rule does not allow the judge or either party to select a preferred alternate. The clerk places the available alternates’ names in a box and draws one at random.

Disagreement Is Not Misconduct

A Massachusetts criminal verdict must represent the independent judgment of every juror. The Supreme Judicial Court’s deadlock instruction requires jurors to consult with one another, reconsider their views, and remain open to persuasion. It also provides that no juror should surrender an honest conviction solely because other jurors disagree or simply to produce a verdict. Commonwealth v. Rodriquez, 364 Mass. 87, 101 to 102 (1973).

An eleven-to-one division is therefore not a majority verdict. It is no verdict. The lone juror has the same duty to listen and deliberate as the other eleven, but the lone juror has no duty to agree with them.

The Supreme Judicial Court applied that distinction directly in Commonwealth v. Tiscione, 482 Mass. 485, 489 to 493 (2019). The Court held that Massachusetts law does not allow the removal of a dissenting juror to resolve an impasse. A juror may be discharged for an inability to serve, but not because the juror’s assessment of the evidence prevents unanimity.

The same distinction applies in the Clancy trial. A juror who refuses to listen, discuss the evidence, or apply the judge’s instructions presents a different problem from a juror who listens but applies the reasonable-doubt standard differently. A foreperson may describe either situation as a refusal to follow the law. The judge cannot accept that description without conducting an independent and carefully limited inquiry.

What the Judge May Ask

The court may ask whether the juror can follow the instructions, remain impartial, and continue to participate in good-faith deliberations. The inquiry should not reveal the juror’s vote, the reasons for the juror’s view, which evidence the juror accepts, or whether the juror agrees with the other eleven.

Those limits protect both the secrecy of deliberations and the juror’s independence. In Commonwealth v. Torres, 453 Mass. 722, 728 to 732 (2009), the Supreme Judicial Court emphasized that judicial questioning must avoid intruding into the substance of deliberations or pressuring a juror to abandon an honestly held view.

The reported inquiry on Friday should therefore be narrow. The controlling question is not whether the juror’s interpretation of reasonable doubt is correct in the view of the foreperson or the other jurors. It is whether the juror is willing and able to apply the court’s legal instructions and participate meaningfully in deliberations.

The Limited Role of Alternate Jurors

The presence of six alternates does not make replacement routine. Alternates are retained to address death, illness, incapacity, or another legally sufficient inability to serve. They are not a reserve pool for replacing a juror who is difficult to persuade. The firm’s guide to jury selection in Massachusetts criminal trials explains the broader role of jurors and alternates.

If Judge Sullivan lawfully discharges a juror and an alternate is drawn, the reconstituted jury must begin deliberations again. The judge must instruct the jurors to set aside the prior deliberations and consider the case anew with the alternate participating from the beginning. Commonwealth v. Carnes, 457 Mass. 812, 829 to 831 (2010). That requirement has practical importance after six days of deliberations.

The September 4 Ruling

Conducting the inquiry in camera was the correct method. A closed hearing protects the anonymity of the individual juror and the integrity of deliberations that are still under way.

Judge Sullivan did not state his reasoning on the record, and he was not required to. In the assessment of Attorney Joe Serpa, the ruling rests on a single conclusion. The judge found that the juror is impartial and remains able to perform the duties of a juror, and that the foreperson reported disagreement rather than a refusal to deliberate. Judge Sullivan is an experienced and well respected trial judge, and that is the conclusion the record before him supports.

Disagreement is part of the work a juror is sworn to do. It is not a ground for disqualification. A juror who has listened, has deliberated, and has remained unpersuaded has performed that duty rather than abandoned it.

One development could still change the analysis. A juror who develops a medical or a mental health condition may be excused even at this stage of the deliberations, and that remains true when the condition arises from the stress of serving. The question is the present ability of the juror to perform the duties of a juror, not the source of the difficulty.

The Possible Outcomes in the Clancy Trial

Judge Sullivan had three principal options. He could find that the juror remains able to serve, remind the panel of its duties, and allow deliberations to continue. He could find a compelling, legally sufficient reason for discharge, seat a randomly selected alternate, and order the jury to begin deliberations anew. Or, if the juror remains able to serve but the jury cannot reach a unanimous verdict after full and fair deliberations, the court may declare a mistrial. He chose the first of these. The third arrived that same afternoon.

On Friday, September 4, after the jury reported again that it could not agree, Judge Sullivan announced that he would declare a mistrial. Kevin Reddington objected and asked the court to poll the jurors about partial verdicts, arguing that jeopardy had attached to any charge the jury had already resolved. The judge gave the defense one hour to file an emergency petition with the Supreme Judicial Court. The court declined to grant relief, and the mistrial was declared.

Where a judge apprehends that a jury is deadlocked, the court may give the supplemental instruction drawn from Commonwealth v. Tuey, 8 Cush. 1 (1851), as revised in Commonwealth v. Rodriquez, 364 Mass. 87 (1973). The Supreme Judicial Court approved that instruction while cautioning that it is not to be given prematurely or without evident cause. If the jury reports after the instruction that it still cannot agree, a mistrial follows.

A mistrial based on a genuinely deadlocked jury is not an acquittal. It returns the prosecution to an earlier point in the Massachusetts criminal process, and the Commonwealth ordinarily may retry the case. Neither the defense request nor the availability of alternates lowers the legal standard for removing a deliberating juror. The standard a judge must satisfy before ending a trial without a verdict, and its effect on a second trial, are set out on the firm’s page on mistrials in Massachusetts criminal cases.

The Purpose of the Inquiry

The procedure protects two equally important principles. Every juror must obey the judge’s instructions and engage in genuine deliberation. Every juror must also remain free to exercise independent judgment without being removed because the juror is outnumbered.

The court cannot resolve the present dispute by counting votes or accepting the majority’s assessment of the dissenting juror. It must determine ability to serve without probing the merits or coercing a verdict. Massachusetts law permits an alternate to replace a juror who is legally unable to continue. It does not permit an alternate to replace a juror whom the other jurors cannot persuade.

This post is for general informational purposes only and is not legal advice. It is based solely on public court proceedings, public reporting, and published decisions and does not reflect any non-public information. Reading it does not create an attorney-client relationship. This may constitute attorney advertising.

The accused was charged with aggravated intimidation under G.L. c. 268, § 13B after prosecutors alleged that she recorded jurors leaving the Plymouth courthouse during deliberations on September 1, 2026. The reported facts also raise two separate, uncharged questions: whether moving the recording into the phone’s deleted-files folder could constitute evidence tampering under G.L. c. 268, § 13E, and whether denying to State Police that she had recorded jurors could constitute misleading an investigator under § 13B. The reported court order and the possibility of recorded audio present additional issues. Each issue has its own elements.

The accused pleaded not guilty. Defense counsel stated that she was attempting to photograph Lindsay Clancy and did not intend to interact with jurors. The accused was separately reported as saying that she did not realize she had recorded jurors. This article analyzes the allegations as publicly reported. It does not assume that the allegations are true, and no factfinder has decided whether the accused committed any offense.

The central distinctions are straightforward. Taking a video of jurors is not automatically witness intimidation. Deleting a video is not automatically evidence tampering. Making an inaccurate statement to police is not automatically misleading an investigator. The result depends on the elements of each statute, including the nature of the conduct, the required mental state, and its connection to a proceeding or investigation.

The Allegations and the Present Status of the Case

According to the prosecutor’s account at arraignment, court officers saw the accused in a restricted parking area behind the Plymouth courthouse while jurors were leaving after a day of deliberations. The Commonwealth alleges that she had backed her vehicle into a space facing the exit and recorded multiple jurors with her phone.

The prosecutor further alleged that the accused told State Police she was waiting to record Clancy and denied recording the jurors. According to that account, the accused consented to a search of the phone. Troopers reportedly found a video of jurors in the phone’s deleted-files folder.

A not-guilty plea was entered on the accused’s behalf. The judge denied the Commonwealth’s request for cash bail and released her on personal recognizance. Conditions require the accused to stay away from the courthouse, jurors, and witnesses and to refrain from disseminating images from the incident. Those release conditions protect the proceeding while the charge is pending. They are not findings that any element of the charge has been proved.

Published reports also describe a June 2026 order in the Clancy case that prohibited filming or photographing the jury before discharge and prohibited contact, following, communication, harassment, or tampering. The public reporting does not establish whether the accused knew of that order before the alleged recording.

Section 13B Expressly Protects Jurors

The offense is commonly called witness intimidation, but that common label understates the statute’s reach. General Laws c. 268, § 13B expressly protects jurors, along with witnesses, potential witnesses, judges, lawyers, investigators, police officers, court employees, and several other participants in legal proceedings.

The Commonwealth generally must prove three components beyond a reasonable doubt:

1. The defendant willfully engaged, directly or indirectly, in conduct the statute prohibits. The listed conduct includes misleading, intimidating, or harassing a protected person.
2. The person at whom the conduct was directed belonged to a protected statutory category. A sitting juror is expressly protected.
3. The defendant intended to impede, obstruct, delay, prevent, or otherwise interfere with a qualifying proceeding, or acted with reckless disregard that the conduct might do so. The statute also covers specified retaliatory conduct.

The first and third components answer different questions. The Commonwealth must prove that the alleged act was willful, meaning intentional rather than accidental. It must separately prove the required purpose or reckless disregard concerning the proceeding. Commonwealth v. Rezac, 494 Mass. 368 (2024).

Misleading, intimidating, and harassing are alternative forms of prohibited conduct. Proof of one does not by itself prove either of the others.

The statutory definition of harassment is narrower than the term’s ordinary use. The act must be directed at a specific person or group, must seriously alarm or annoy that person or group, and must be conduct that would cause a reasonable person or group to suffer substantial emotional distress. An intimidation theory does not always require proof that the target experienced actual fear or that the effort succeeded. Commonwealth v. Gordon, 44 Mass. App. Ct. 233, 235 to 236 (1998); Commonwealth v. Robinson, 444 Mass. 102, 109 to 110 (2005).

Whether Filming the Jurors Can Constitute Intimidation

Massachusetts already has a published decision involving a camera directed at a protected participant outside a courtroom. In Commonwealth v. Casiano, 70 Mass. App. Ct. 705 (2007), a defendant awaiting trial pointed a cellular telephone camera at an undercover officer who was waiting to testify against him. The defendant pressed buttons as though taking photographs and later stated that he had already emailed the photographs to his home. The Appeals Court held that the evidence permitted the jury to find intimidation.

The court explained that intimidation need not take the form of an express threat. The camera conduct could threaten the undercover officer’s continuing safety, and the time, place, and circumstances permitted an inference that the defendant intended to influence the officer’s impending testimony. The conviction did not depend on proof that a photograph had been taken or disseminated. Casiano, 70 Mass. App. Ct. at 708 to 710. Casiano interpreted an earlier version of § 13B. The Legislature amended the statute in 2018, but the current Massachusetts model jury instruction continues to cite Casiano as an example of camera conduct from which a jury may infer intimidation.

Casiano answers one legal question but not the whole case. It establishes that directing a camera at a protected person can constitute intimidation. It does not establish that every photograph or video of a juror is intimidation.

Several facts in Casiano made the inference stronger. The person holding the camera was the defendant in the underlying prosecution. He knew the person he photographed was an undercover officer about to testify against him. The officer saw the conduct. The defendant then made a statement implying that the images had been sent elsewhere and could be used later.

The reported allegations differ from Casiano in important respects. The accused was a spectator rather than a party in the Clancy prosecution. Defense counsel says the intended subject was Clancy rather than the jurors. No public report alleges that the accused spoke to, threatened, followed, or attempted to communicate with a juror. No dissemination of the video has been alleged. The public reporting does not establish that any juror saw the recording as it occurred.

If the Commonwealth relies on harassment rather than intimidation, it must also prove that the act seriously alarmed or annoyed the jurors and would have caused a reasonable person or group to suffer substantial emotional distress. The public reports do not disclose the jurors’ answers during the judge’s inquiry or otherwise establish those facts.

Those distinctions do not prevent the Commonwealth from presenting a § 13B theory, but they affect whether the evidence proves qualifying conduct and the required mental state. Actual fear and successful interference are not always required, and intent may be inferred from circumstances. The Commonwealth can point to the reported location of the vehicle, its orientation toward the restricted exit, the timing as jurors left during deliberations, the number of jurors appearing in the video, the location of the file in the deleted-files folder, and the reported statement to police. It may argue that those circumstances establish intentional targeting and at least reckless disregard that the conduct might interfere with the trial.

The defense can point to the stated purpose of trying to photograph Clancy, the absence of reported contact or threats, the absence of reported dissemination, the uncertainty about whether the accused recognized the people as jurors, and her reported consent to the phone search. The defense can also argue that deleting an unintended recording of jurors is consistent with an effort to remove footage that should not have been taken, rather than an effort to intimidate anyone.

Recording a juror is neither automatically criminal nor automatically outside § 13B. Casiano forecloses the argument that camera conduct can never constitute intimidation. Its fact-specific reasoning does not support the opposite claim that the presence of jurors in a video proves intimidation by itself. The Commonwealth must prove that the accused willfully intimidated or harassed protected jurors and either intended to interfere with the Clancy proceeding or acted with reckless disregard that the conduct might do so.

The Aggravated Penalty Under Section 13B

Upon a guilty plea or a finding of guilty under Section 13B, a defendant can ordinarily be sentenced to state prison for not more than ten years or to the house of correction for not more than two and one-half years. The second penalty paragraph of Section 13B raises the state-prison maximum to twenty years when the misconduct is directed at the investigation or prosecution of a crime punishable by life imprisonment. It retains an alternative maximum of two and one-half years in the house of correction. The two imprisonment periods are alternatives, not consecutive parts of a twenty-two-and-one-half-year sentence.

The Clancy trial concerns murder charges punishable by life imprisonment. That supplies the prosecution’s basis for the aggravated form of the charge. The Commonwealth must still prove that the alleged misconduct was directed at that qualifying prosecution. The aggravated label does not relieve it of proving any element of § 13B.

Whether Deleting the Video Can Constitute Evidence Tampering

The deleted-file allegation belongs under a different statute. General Laws c. 268, § 13E applies when a person alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair its integrity or availability for use in an official proceeding. The proceeding need not already be pending, and the item need not ultimately be admissible in evidence.

The statute does not make every deletion criminal. It requires proof of a specific purpose: impairing the file’s integrity or availability in an official proceeding.

In Commonwealth v. Martinez, 98 Mass. App. Ct. 545, 550 to 552 (2020), the defendant asked another person to take a second phone, smash it, and throw it into a river after he learned of an accusation and had been arraigned. The phone was not destroyed. The Appeals Court upheld an attempted-tampering conviction because § 13E expressly reaches attempts and the circumstances supported an inference that the purpose was to keep the phone and its images from the prosecution.

No published Massachusetts appellate decision has held that moving a digital file into a phone’s deleted-files folder necessarily completes destruction or concealment under § 13E. Pressing delete can support an attempted-destruction or attempted-concealment theory, and recovery of the file does not defeat an attempt charge. The Commonwealth would still have to prove who deleted the file, when the deletion occurred, and why.

The timing and surrounding circumstances of the deletion bear directly on intent. If the video was deliberately deleted after the accused learned that police or the court wanted it, and for the purpose of preventing its use in a contemplated intimidation or contempt proceeding, those facts could support § 13E. If the file was deleted before any police contact because it captured jurors unintentionally, or because the person believed juror footage should not be retained, the required evidence-tampering purpose would be substantially harder to prove.

The ongoing Clancy trial is an official proceeding, but the video does not appear to concern proof of the charges against Clancy. One possible § 13E theory would connect the video to a contemplated proceeding concerning the alleged juror recording itself. The statute permits that proceeding to be contemplated rather than already filed, but it still requires proof that impairing the video’s use in such a proceeding was the reason for the deletion.

The Supreme Judicial Court’s decision in Commonwealth v. Tejeda, 476 Mass. 817, 820 to 821 (2017), reinforces the separation between the statutes. Destroying evidence in plain view does not automatically mislead an investigator under § 13B because it may create no false impression. Evidence destruction instead presents the elements of § 13E.

As of September 2, 2026, no separate evidence-tampering charge has been publicly reported against the accused. The deleted-files location may nevertheless be offered as circumstantial evidence of intent on the pending § 13B charge. It remains circumstantial evidence, not an automatic admission of intent.

Whether the Reported Denial to Police Can Violate Section 13B

Section 13B also prohibits willfully misleading a police officer or investigator in connection with a criminal investigation. The leading decisions impose an important limit: a statement is not criminal merely because it is inaccurate.

In Commonwealth v. Morse, 468 Mass. 360, 372 to 375 (2014), the Supreme Judicial Court held that a simple exculpatory denial, without affirmative misdirection or other evidence of an intent to interfere, was insufficient. Police stood in the same position after the denial as they would have occupied if the person had remained silent.

In Commonwealth v. Paquette, 475 Mass. 793, 797 to 805 (2016), the court explained that a statement is misleading within § 13B only if it reasonably could cause investigators to pursue a materially different course. Whether a statement can do that depends on its content, the stage of the investigation, and what police already know. The Commonwealth need not prove that police were successfully diverted, but it must prove more than falsity.

Both decisions predate the 2018 amendment of § 13B. That amendment expanded the statute and added reckless disregard as an alternative in the third element, but the Legislature retained the word “misleads.” The current model instruction continues to use the requirement stated in Paquette: the statement must be reasonably likely to lead investigators onto a materially different course. The two decisions therefore continue to define what counts as misleading, while the third-element instruction must follow the current statute and the theory charged.

The reported statement here contains two parts: a denial that the accused recorded jurors and an affirmative explanation that she was waiting to record Clancy. The denial alone resembles the bare exculpatory response addressed in Morse. The alternative explanation gives the Commonwealth a possible argument that the statement was more than a bare denial and was calculated to direct attention away from the juror recording.

The counterargument arises under Paquette. Court officers reportedly observed the conduct, police approached the accused because of that report, and troopers soon examined the phone with her consent. If police already knew why they were investigating and immediately checked the source evidence, the statement may not reasonably have been capable of sending them onto a materially different course.

The exact words, their sequence, what the officers knew before asking the question, and the scope and timing of the phone search will determine the issue. A person has a right to remain silent. That right does not authorize an affirmative lie, but an alleged lie becomes a § 13B offense only if the Commonwealth proves the statutory form of misleading and the required connection to the investigation.

The false-report statute, G.L. c. 269, § 13A, addresses knowingly making a false report of a crime. A denial of one’s own alleged conduct does not become a false report of a crime merely because police dispute it. No separate charge based on the reported statement has been publicly reported.

The Court Order Presents a Separate Contempt Question

A clear court order can impose restrictions beyond the generally applicable criminal statutes. To prove criminal contempt, the Commonwealth must establish beyond a reasonable doubt that a clear and unequivocal order was in effect, that the defendant knew of the order, that the defendant clearly and intentionally disobeyed it, and that the defendant had the ability to comply. Commonwealth v. Delaney, 425 Mass. 587, 596 (1997).

Supreme Judicial Court Rule 1:19 separately regulates photography and recording in courtrooms, hearing rooms, judicial offices, chambers, and the lobby of a judge or magistrate. It also permits a judge to impose additional limits needed to protect a fair proceeding. Trial Court Administrative Order 21-1 generally prohibits members of the public from taking photographs or video anywhere inside a courthouse, subject to stated exceptions. The conduct alleged here occurred in an exterior parking area. Rule 1:19 supplies part of the background, but any alleged violation outside its covered spaces must be analyzed under the exact case-specific order and the applicable law.

That issue cannot be resolved from the public report that an order existed. The evidence would have to establish the order’s exact terms, whether those terms reached the location and conduct at issue, how the accused received notice or otherwise learned of the order, and whether any violation was intentional. No contempt charge has been publicly reported.

The general rules governing juror conduct during a Massachusetts criminal trial protect jurors from outside communication and require the judge to investigate a possible outside influence. The Clancy judge reportedly questioned each juror about impartiality before deliberations continued. That inquiry protected the underlying trial; it did not decide the accused’s criminal case.

A Silent Video and a Secret Audio Recording Are Different

A silent recording alone does not establish witness intimidation, a wiretap violation, or contempt. A case-specific court order and the purpose and effect of the recording can independently matter. The camera alone does not answer those questions.

The Massachusetts wiretap statute, G.L. c. 272, § 99, addresses secret interception of oral or wire communications. It does not apply to silent images alone. Commonwealth v. Hyde, 434 Mass. 594 (2001). A video that secretly captures intelligible juror conversations could require a separate wiretap analysis. The public reports reviewed for this article describe video of jurors and do not allege that the accused secretly recorded any juror conversation.

The Evidence That Will Resolve the Principal Questions

The same phone may contain evidence relevant to the three principal statutory issues, but each issue remains distinct. A forensic examination may identify when the video was created, when it entered the deleted-files folder, whether it was edited or transmitted, and what associated metadata remains. The proponent must authenticate digital evidence in a Massachusetts criminal case. Authorship, completeness, and the reliability of the extraction may also matter depending on what the proponent claims the video proves and the objections raised.

Other evidence may include courthouse surveillance, the court officers’ observations, recordings of the police encounter, the exact content and distribution of the judge’s order, and testimony about whether jurors saw or later learned of the recording. The reported consent to search may also require examination of the words used, voluntariness, and scope under the rules governing illegal searches and seizures.

The evidence must answer different questions:

• For § 13B based on filming, did the accused willfully intimidate or harass jurors, either intending to interfere with the Clancy trial or acting with reckless disregard that the conduct might interfere with it?
• For § 13E based on deletion, did she delete or attempt to conceal the video for the purpose of impairing its availability in an official proceeding?
• For § 13B based on the reported statement, did she willfully make a statement capable of sending police onto a materially different investigative course, either intending to interfere with the investigation or acting with reckless disregard that the statement might do so?

The Present Legal Assessment

The publicly reported facts support a legally recognized § 13B theory by analogy. Section 13B expressly protects jurors, and Casiano establishes that directing a phone camera at an undercover officer waiting to testify can constitute intimidation when the circumstances support the required inference. The reported facts do not establish a violation as a matter of law. The differences between an accused person photographing a known undercover witness before testimony and a spectator allegedly recording jurors while claiming to wait for the defendant are substantial and require evidence rather than assumption.

The deleted-files allegation likewise supports further investigation but does not establish evidence tampering. Section 13E requires proof of the actor, the timing, and the purpose of the deletion. Recovery does not defeat an attempt theory, but recovery also does not prove an attempt.

On the public record now available, the alleged denial presents a more limited § 13B theory. A bare denial is ordinarily insufficient under Morse. An affirmative alternative account can qualify under Paquette only if it was capable of materially redirecting the investigation and was made either with the intent to interfere with the investigation or with reckless disregard that it might do so.

The pending case contains one publicly reported count under § 13B. The charge, the publicity surrounding it, and the release conditions imposed at arraignment do not decide the legal questions. Each element must be proved beyond a reasonable doubt on admissible evidence.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. To discuss a witness-intimidation, evidence-tampering, or related Massachusetts criminal charge confidentially, call Serpa Law Office at 617.936.0201.

Related Serpa Law Office Resources

• Massachusetts Witness Intimidation FAQs
• Massachusetts Criminal Court Practice
• Text Message and Phone Evidence FAQs
• Digital Search Warrants in Massachusetts

Before trial, I file a motion to exclude any evidence that the driver refused the breathalyzer. I also ask the judge to exclude testimony, forms, audio, and portions of the booking video that would reveal the refusal indirectly. At trial, I commit the officer to the contemporaneous police report and then examine the entire encounter in chronological order. The roadside exercises usually occupy only a few minutes. The officer often spent much longer speaking with the driver, watching the driver move, transporting the driver, and completing the booking process. When the report records no slurred speech, confusion, loss of balance, difficulty walking, or other concerning conduct during that longer period, I put those omissions directly before the jury.

That is how I try the case.

I Review the Complete Record Before Trial

I begin with the police report, the Registry refusal report, dispatch records, cruiser and body-camera video, booking video, photographs, roadside-exercise paperwork, and every form used at the station. I put the events in time order and determine exactly how long the officer observed the driver. This review is part of how I prepare a Massachusetts criminal case for trial.

The narrative police report and the Registry refusal report serve different purposes and may describe the incident differently. I compare them before trial for inconsistencies bearing on the officer’s recollection and account. I do not disclose the Registry refusal report to the jury without a ruling and the necessary redactions because the document itself reveals the protected refusal.

I then separate three questions that are sometimes blurred together in the paperwork. Did the driver refuse the breathalyzer? Did the driver consent but fail to provide an adequate sample? Did a medical or mechanical problem prevent completion of the test? Evidence of an inadequate sample after consent is not automatically protected as refusal evidence. Commonwealth v. Curley, 78 Mass. App. Ct. 163, 167 to 168 (2010); Commonwealth v. Daigle, 99 Mass. App. Ct. 107, 112 (2021). I resolve that issue before I build the trial strategy.

The videos also show what the report leaves out. I compare every claimed sign of impairment with the driver’s conduct at the window, during the roadside exercises, on the walk to the cruiser, during transport, in the sallyport, and throughout booking. That comparison becomes the cross-examination.

I Exclude Refusal Evidence Before the Jury Is Selected

General Laws c. 90, § 24(1)(e) prohibits the Commonwealth from using a refusal against the defendant in the criminal trial. Article 12 of the Massachusetts Declaration of Rights independently protects the decision from use as testimonial evidence. Opinion of the Justices, 412 Mass. 1201, 1210 to 1211 (1992); Commonwealth v. Zevitas, 418 Mass. 677 (1994). Commonwealth v. McGrail, 419 Mass. 774, 779 to 780 (1995), applies the same protection to a refusal of field sobriety exercises.

I file a written motion in limine before jury selection. I ask the judge to exclude the refusal, any statement that amounts to a refusal, the implied-consent exchange, and any indirect testimony that would reveal what happened. I do not wait for an officer to disclose it in front of the jury. A curative instruction cannot reliably remove the inference after the jury hears that the driver declined the test.

I inspect the booking video frame by frame. If the breath-testing device, a refusal form, or the implied-consent discussion appears, I ask the judge to crop, obscure, mute, or redact that portion while preserving the driver’s admissible conduct. In Commonwealth v. Derosier, 103 Mass. App. Ct. 518 (2023), jurors saw a breath-testing device in the booking video and later asked whether a test had been offered or refused. The case shows why the video must be addressed before trial.

I also address other recurring evidentiary limits. Under Commonwealth v. Sands, 424 Mass. 184, 186 to 187 (1997), the Commonwealth needs the required scientific foundation for horizontal gaze nystagmus. Under Commonwealth v. Canty, 466 Mass. 535, 544 (2013), an officer may offer an opinion about sobriety or level of intoxication but may not tell the jury that alcohol diminished the defendant’s ability to operate safely. The officer may describe the roadside movements but should not replace those observations with a supposed passing or failing score. The detailed field sobriety defense depends on what the officer instructed, demonstrated, observed, and recorded.

I Address the Independent-Examination Right Before Trial

General Laws c. 263, § 5A gives a person held in custody and charged with OUI the right, upon request and at the person’s expense, to an immediate examination by a physician selected by that person. Police must inform the person of the right immediately upon booking, supply a copy of the statute unless it is conspicuously posted, and provide a reasonable opportunity to exercise it.

I review the booking materials and video to determine whether police complied, whether the driver requested an examination, and whether police frustrated the request. A supported Section 5A violation requires a pretrial motion, not merely a few questions during cross-examination. Commonwealth v. Hampe, 419 Mass. 514 (1995); Commonwealth v. Baez, 106 Mass. App. Ct. 219 (2025).

I Decide Whether to Request the Instruction on the Missing Test

I do not decide before trial whether to request an instruction concerning the absence of breath-test evidence. I decide after I hear the Commonwealth’s evidence.

In Commonwealth v. Downs, 53 Mass. App. Ct. 195, 198 (2001), the Appeals Court approved an instruction telling jurors that no breath-test evidence had been introduced, that several reasons could explain its absence, and that they must not speculate. In Commonwealth v. Wolfe, 478 Mass. 142, 146, 148 to 150 (2017), the Supreme Judicial Court recognized that the instruction can protect the defendant or create a question the jury had not considered. The judge ordinarily should not give it unless the defense requests it.

If nothing has directed the jury toward a missing test, I do not introduce the subject through an instruction. If the booking video, testimony, or another circumstance has made the absence obvious, I may request the approved instruction. The evidence presented at trial controls that decision.

I Open on the Officer’s Account

I open on the evidence the Commonwealth chose to present. I do not mention an absent test, and I do not invite the jury to speculate about one. I tell the jury that the case will depend on what the officers observed, what they recorded, and what the video shows during the entire encounter.

I also do not claim that the driver complied with every police request. In Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 104 (2011), the defense created a misleading impression that police had not asked the defendant to perform field sobriety exercises. That opened the subject of the refusal. I describe cooperation accurately and make only the promises the evidence will prove.

I Commit the Officer to the Police Report

I do not begin by arguing that the officer was wrong. I begin by defining the officer’s own reporting standard.

I establish the officer’s report-writing training, when the report was prepared, why officers prepare reports promptly, and how the officer used the report to prepare for trial. The officer was investigating impaired operation. The officer was trained to watch for signs of impairment. The report was supposed to preserve the material observations supporting the arrest. The prosecutor, defense lawyer, and court would later rely on it. The officer reviewed it before testifying.

I then identify the observations that would have been material: slurred speech, unsteadiness, confusion, inability to follow directions, difficulty walking, trouble handling ordinary objects, or another sign of impairment during transport or booking. I secure the officer’s agreement that those observations belonged in the report.

I lock the officer into those commitments before asking about any disputed observation. The sequence affects the result. Once the officer agrees that the report should contain the material signs of impairment observed during the investigation, the jury can measure the trial testimony against the account written while the events were fresh.

If the officer adds a concerning detail for the first time at trial, I establish that the officer had the detail in mind when the report was prepared, considered it relevant to impaired operation, and did not record it. I do not ask the officer to explain the omission. That question invites a repair. I establish the reporting standard and the omission, then move to the next subject.

I Cross-Examine the Entire Encounter

The Commonwealth usually concentrates on the shortest part of the investigation: the initial contact and the roadside exercises. I examine the entire interaction. Commonwealth v. Hourican, 85 Mass. App. Ct. 408, 417 (2014), identifies driving performance, appearance, demeanor, field sobriety performance, and conduct at booking as evidence bearing on impaired operation.

I establish the exact duration of the encounter and proceed in chronological order.

The driving and stop. I address the reason for the stop, the distance observed, the response to the blue lights, the use of a signal, the stopping location, and whether the vehicle struck anything or endangered anyone.

The first conversation. I establish what the officer asked and whether the driver gave responsive answers. I address orientation to place, destination, and direction of travel. If the officer claims slurred speech, I identify the precise words, the duration of the conversation, and where that observation appears in the report.

The license and registration. Producing those documents requires the driver to locate a wallet or glove box, distinguish the correct items, handle them, and pass them to the officer. Officers routinely record fumbling or difficulty when it occurs. I establish what the driver did and whether the report identifies any problem.

The exit and walk. I address the seat belt, door handle, movement from sitting to standing, surface, lighting, distance, and walk to the testing location. I ask whether the driver needed assistance, leaned on the vehicle, stumbled, or failed to follow a direction. Then I compare the answers with the report and video.

The roadside exercises. Direct examination emphasizes the movements the officer associated with impairment. I establish the instructions the driver followed and everything the driver performed correctly: assuming the instructional position, walking in the correct direction, counting aloud, completing the turn, returning, raising the requested foot, and maintaining balance. The separate article on cross-examining the field sobriety opinion addresses the manual, testing conditions, demonstrations, and scoring criteria in detail.

The walk to the cruiser and transport. I address how the driver walked after the arrest, entered the cruiser, sat during transport, answered questions, and carried on any conversation. If the driver did not become ill, fall asleep, speak incoherently, or require assistance, I establish each fact. I then establish that the officer recorded no such concern.

The sallyport and station. A handcuffed person must leave the cruiser, cross the sallyport, pass through doors and corridors, and reach the booking area. I ask whether the driver completed those movements without falling, stumbling, or receiving physical assistance.

Booking. Booking commonly lasts much longer than the roadside exercises. The driver answers questions about name, address, date of birth, employment, medical conditions, and an emergency contact. The driver may remove jewelry, a belt, and shoelaces, read forms, sign documents, use the telephone, sit, stand, and walk while officers observe. I identify the length of that recorded interaction and every opportunity the officers had to observe speech, comprehension, balance, coordination, and demeanor.

Only after examining the complete encounter do I return to the report. It may describe slurred speech once at the roadside but never record slurred speech during transport or booking. It may describe unsteadiness during an exercise but never record difficulty walking to the cruiser, entering the station, or moving through booking. It may claim confusion at the window but record no incorrect or incoherent answer during the longer station interaction.

That silence is the point. The officer had a long interaction with the driver, knew which signs of impairment to look for, and wrote a report for the prosecution. The report records no concerning observation during most of the encounter.

I do not ask why the later observations were omitted. I establish the officer’s reporting standard, the extended opportunity to observe, and the absence of any such observation from the report. The omission does not conclusively prove that an event did not occur. It supports the direct argument that a material observation that naturally belonged in the contemporaneous report was not recorded.

I Close on the Recorded Encounter

I close in the same order as the cross-examination. I compare the brief roadside portion with the much longer period that followed. I identify the normal driving decisions, responsive answers, coordinated movements, completed tasks, and coherent conduct established through the officer and the video.

Then I return to the report. The officer was trained to record material signs of impairment and prepared the report while the events were fresh. The officer observed the driver during transport and booking but recorded no continuing slurred speech, no confusion, no loss of balance, no difficulty walking, and no inability to complete ordinary tasks. The Commonwealth cannot replace that contemporaneous silence with a broader account at trial and still satisfy its burden beyond a reasonable doubt.

I do not mention the refusal. I do not ask the jury to speculate about a missing test. I ask the jury to decide the case on what the officer observed, what the officer recorded, and what the video shows.

The Registry Suspension Is Separate

The refusal suspension and the criminal prosecution present different questions. A favorable criminal disposition does not automatically end the administrative suspension. The complete breathalyzer decision and license analysis explains the refusal periods, prior-offense definition, rules for drivers under 21 and commercial drivers, Registry hearing, and restoration procedure. The separate page on OUI suspensions and reinstatement addresses post-disposition suspensions and hardship eligibility.

Cases Involving Blood Evidence or an Alcotest Result

A hospital blood result or a police-directed blood draw changes the evidence and requires the separate breath-test and blood-alcohol science analysis. A pure refusal case contains no breath result to exclude under Commonwealth v. Hallinan and the Alcotest 9510 remedy.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. Serpa Law Office represents defendants charged with OUI in the Boston Municipal Court and District Courts throughout Eastern Massachusetts. Call 617.936.0201 for a free and confidential consultation.

Official reporter citations have not yet been assigned to these decisions, so each is cited by docket number and decision date. This survey covers the published decisions issued in the period. It follows the July 2026 roundup, and it opens with the three Supreme Judicial Court decisions that issued in the final three days of July, after that survey closed.

Commonwealth v. Shaw: What an Attested Copy of a Prior Conviction Requires

In Commonwealth v. Shaw, No. SJC-13852 (Mass. July 29, 2026), the Commonwealth proved a 2002 drug conviction, the predicate for a sentence enhancement under G. L. c. 269, § 10G (a), with a nine-page copy of a District Court docket. Every page carried an embossed court seal and five pages carried the clerk-magistrate’s stamped signature. No page carried a written certification that the copy was correct.

The Supreme Judicial Court held the copy was not properly authenticated. Self-authentication of an official record under Mass. R. Crim. P. 40 (a) (1) requires an attestation, and an attestation is a written, signed certification by the custodian that the document is a correct copy. The court drew the distinction plainly: an attestation certifies accuracy, and a seal identifies the source.

The court did not need to decide whether the District Court is a department of the Commonwealth under G. L. c. 233, § 76, because that statute requires the same attestation and the document failed under either provision. Commonwealth v. Deramo, 436 Mass. 40, 47 to 48 (2002), supplied the governing definition.

The conviction was affirmed anyway. Trial counsel had not objected, and in fact referred to the docket as evidence of the prior conviction, so review was for a substantial risk of a miscarriage of justice. The court declined to apply the usual practice of measuring the Commonwealth’s case with the improper evidence removed, reasoning that the defect was one the Commonwealth could readily have cured had it been raised at trial.

The practical lesson is about timing rather than about appeals. On any subsequent-offense or armed career criminal proof-up, examine the tendered docket copy for a written, signed certification and object on the record when it is missing. An objection made at trial forces the Commonwealth to produce an attested copy or live testimony. An objection made for the first time on appeal will not succeed.

Commonwealth v. Dorsey: What a New Trial Affidavit Must Establish

In Commonwealth v. Dorsey, No. SJC-13232 (Mass. July 30, 2026), the Supreme Judicial Court affirmed a conviction of murder in the first degree and the denial of a motion for a new trial that alleged ineffective assistance of counsel. The defendant argued that counsel abandoned an investigation into post-traumatic stress disorder and failed to investigate the victim’s history of violence.

The court rejected the first claim on the record counsel made. Counsel had retained an expert to inquire into the disorder, and the defense expert concluded that the conduct was likely the product of marijuana and PCP resulting in a temporary psychosis, on which counsel built an actual defense of lack of intent. Because trial counsel’s own affidavit left out what the retained expert concluded, the claim rested on speculation.

On the Adjutant evidence of the victim’s prior violence, the court assumed without deciding that the investigation was inadequate and found no substantial likelihood of a miscarriage of justice. The supporting affidavits came from people close to the defendant, surfaced years late, and described conduct that would not have changed the verdict. The court put the proportionality point directly: slapping, punching, and scratching are markedly different from threatening someone with a deadly weapon.

The court also held that the failure to present expert testimony that a palm laceration was a defensive wound was not ineffective assistance, because the proffer of the proposed expert’s credentials was weak and counsel had elicited the same point from the treating paramedic and argued it in closing.

For postconviction practice the message is about the record rather than the merits. When taking trial counsel’s affidavit, establish what each expert was asked, what each concluded, and why counsel stopped. An affidavit that recites counsel’s conclusion without those facts invites the court to treat the claim as speculation, and gaps in the movant’s own affidavit are held against the movant.

Hall, petitioner: Postconviction Claims Belong in the Superior Court

In Hall, petitioner, No. SJC-13657 (Mass. July 31, 2026), a defendant whose first degree murder convictions had been affirmed on direct appeal filed a petition in the county court seeking state habeas corpus relief under G. L. c. 248. He alleged that the Commonwealth withheld exculpatory evidence and engaged in prosecutorial misconduct. A single justice denied the petition without a hearing.

The Supreme Judicial Court affirmed. Habeas relief must rest on grounds distinct from the issues at the indictment, trial, conviction, or sentencing stage. Claims about errors in the criminal proceedings themselves belong in a motion under Mass. R. Crim. P. 30, and because the convictions had been affirmed, that motion must be filed in the Superior Court rather than in the Supreme Judicial Court.

Review of the denial of such a motion is then available only by leave of a single justice under the gatekeeper provision of G. L. c. 278, § 33E. A petition filed in the county court in the first instance cannot be used to get around that requirement.

Counsel advising a client after an affirmed first degree murder conviction should route every constitutional claim through a rule 30 motion in the Superior Court and preserve each issue before the single justice, because the court refused to enlarge the record to reach issues never presented there.

Commonwealth v. Sanders: Treatment Records and the Criminal Responsibility Defense

Commonwealth v. Sanders, No. SJC-13552 (Mass. Aug. 6, 2026), is the most consequential decision of the period for trial practice. The defendant was convicted of two counts of murder in the first degree in the killing of her two young sons. There was no dispute that she committed the killings, and the only issue at trial was criminal responsibility.

Her expert based his opinion that she was grossly psychotic on two interviews, seven hours of testing, and thousands of pages of treatment records from MCI-Framingham and the Worcester Recovery Center and Hospital. Those records documented paranoid delusions and hallucinations, a 2019 diagnosis of schizophrenia spectrum and other psychotic disorders, and a 2020 discharge diagnosis of schizoaffective disorder.

Defense counsel moved to admit the records under G. L. c. 233, § 79, before the expert testified. The judge denied the motion and ruled that the facts and opinions in the records could be elicited only by the Commonwealth on cross-examination, and by the defense on redirect if that door opened. The prosecutor never asked, so the door never opened, and the expert was limited to saying he had reviewed records that were of significance.

The Supreme Judicial Court held that was error. Once counsel moved to admit the records, the judge was required to decide whether they were admissible under § 79 rather than to resolve the question under the common-law rule limiting an expert’s direct testimony about facts not in evidence. If admissible in whole or in part, the expert could then have testified to their contents as evidence already in the record.

The court also refused to affirm on grounds the trial judge never adopted. The judge had rejected the argument that postarrest records were too remote, never weighed probative value against unfair prejudice, and never exercised discretion to pare the volume or excise unreliable second-level hearsay. The exclusion rested solely on the erroneous rule.

The error was prejudicial. The exculpatory content of the records far exceeded the inculpatory content, and the exclusion stripped the sole defense of the medical foundation that supported it. The judgments were vacated, the verdicts set aside, and the matter remanded for a new trial.

On an issue likely to recur, the court held that the prosecutor’s repeated use of the word evil was permissible because it was grounded in the defendant’s own notebook writings and recorded calls and bore on her appreciation of wrongfulness under Commonwealth v. McHoul, 352 Mass. 544, 546 (1967). Argument connecting the killings to a television program playing at the scene hours later was impermissible, because no evidence linked the program to the offense.

In any case depending on a mental health expert, move the underlying treatment records into evidence under § 79 before the expert takes the stand, and insist on a ruling that applies the four-part test of Bouchie v. Murray, 376 Mass. 524, 528 (1978). Postarrest psychiatric records are not categorically irrelevant to responsibility at the time of the offense, and inculpatory material inside a voluminous record is not a reason to exclude the whole of it.

Commonwealth v. Figueroa: A Foreign Language Interrogation Used in Rebuttal

In Commonwealth v. Figueroa, No. 25-P-1027 (Mass. App. Ct. Aug. 7, 2026), a published decision, the defendant’s first language is Spanish and a Spanish-speaking detective interrogated him on video after his arrest. The recording was produced in discovery, but the Commonwealth never provided an English transcript. On a motion in limine the judge barred the Commonwealth from using the statements in its case-in-chief, warning that they might come in if the defendant testified.

The defendant testified and claimed self-defense, saying both brothers had knives and that he used a tree branch. In rebuttal, the detective testified that the defendant had mentioned neither the knives nor the branch during the recorded interview.

The Appeals Court affirmed. Commonwealth v. Portillo, 462 Mass. 324, 332 (2012), leaves to the trial judge’s discretion whether the Commonwealth must produce a translated transcript before using a defendant’s prior inconsistent statements in rebuttal. The panel declined to extend Portillo to require a transcript whenever the Commonwealth uses a defendant’s statement against him, stating that it is not for an intermediate appellate court to alter a rule established by the Supreme Judicial Court.

Evidence properly excluded from the case-in-chief may be admissible in rebuttal, and a defendant who takes the stand may be impeached like any other witness. The panel relied on what the record did not contain: the defendant never showed the detective’s translation or memory was inaccurate, never argued he was unprepared to cross-examine, and never sought a continuance to obtain a translation.

A footnote preserves the argument for the next case. The judge retains discretion to exclude even rebuttal statements where the Commonwealth declines to translate, and the panel observed that prudence would dictate translating such an interview and providing counsel with a copy. Counsel should demand the translated transcript before trial, move for a continuance if trial arrives without one, and state on the record why cross-examination of the officer’s recollection is not adequate. This site has a fuller case note on the decision.

Commonwealth v. Palmer: A Seizure Begins When the Pursuit Begins

In Commonwealth v. Palmer, No. SJC-13873 (Mass. Aug. 10, 2026), a detective who had reviewed complex surveillance footage of an armed robbery many times developed her own description of the robber, including a distinctive two-toned jacket and a checkered hat with the price tag still on the brim. Twelve days later officers went to the same complex, called out to the defendant, and pursued him when he ran. He discarded drugs and money during a three to four second chase.

The Supreme Judicial Court held that the defendant was seized when the officers began to pursue him, before he discarded anything. Two groups of officers, badged detectives approaching from one direction and uniformed officers from another, converging on him in a crowded residential parking lot after calling out to him was a show of authority that a reasonable person would consider coercive.

The court distinguished Commonwealth v. Franklin, 456 Mass. 818 (2010), on two grounds. There the flight was not prompted by anything the police did and began before officers left an unmarked car. Here the defendant fled after officers approached on foot and called out, and here two groups converged from different directions rather than merely following.

Because the seizure preceded the discard, the drugs played no part in the reasonable suspicion analysis. The court nonetheless found reasonable suspicion. This was not a stop based on a witness’s generalized description: the detective had built her own detailed description from repeated review of the footage, had confirmed the same person unmasked in the same location the day after the robbery, and matched size, complexion, hairstyle, and the distinctive hat when she saw him.

Two limits in the opinion are useful. Flight and the characterization of a location as a high crime area each added little, and the second counted at all only because the robbery had occurred in the same complex. The court also declined to apply the collective knowledge doctrine, because the Commonwealth introduced no evidence that the officer who spotted the defendant on camera knew anything the detective had not independently seen.

The conviction was affirmed, but the seizure holding is the part to use. Where officers call out and then converge from more than one direction, the seizure occurs at the onset of pursuit, so anything discarded during flight is the fruit of that seizure and is suppressible if reasonable suspicion was lacking when the chase began. Litigate that moment, and require the Commonwealth to prove what each officer knew rather than aggregating knowledge by assumption.

Commonwealth v. Solis and Commonwealth v. Diaz: Delay in Applying for a Cell Phone Warrant

In Commonwealth v. Solis and Commonwealth v. Diaz, Nos. SJC-13823 and SJC-13835 (Mass. Aug. 12, 2026), police lawfully seized cell phones and then waited 109 days and 123 days to apply for search warrants. Two Superior Court judges allowed motions to suppress on the ground that the delay was unreasonable. The Supreme Judicial Court reversed both orders.

The governing test under art. 14 remains the totality of the circumstances balancing of Commonwealth v. White, 475 Mass. 583 (2016): the defendant’s possessory interest and the extent of the intrusion, weighed against the Commonwealth’s justification for continued retention. There is no bright line past which a delay becomes unreasonable, and exceeding the sixty-eight day delay in White is not determinative.

The court declined to adopt the Federal approach treating a device’s independent evidentiary value as effectively dispositive. That value may substantially strengthen the Commonwealth’s interest in retaining a device, but the court held it does not excuse neglect and does not permit extended delay in every case.

The opinion sets out what reduces a possessory interest: whether the defendant sought the device’s return, whether he showed a concrete need for it for work, family, financial, or medical obligations, the strength of his ownership claim, whether he owned another phone with equivalent functionality, and whether he admitted the phone held illicit material. Neither defendant sought return, and neither offered evidence that the phone was important to him.

On the other side, the court weighed the basis for the seizure, the device’s evidentiary value independent of its contents, the seriousness of the offense, the complexity of the investigation, secure storage, and police diligence. Diligence is not dispositive where other circumstances supply a continuing, case-specific basis for retention. The court was explicit that generalized workloads do not excuse delay, and that warrant applications for digital devices must be treated as a priority rather than an afterthought.

A delay motion built on the calendar alone will now lose. Build the possessory interest record before the hearing: move for return of the property, and put in evidence of concrete reliance on the phone. Attack the device’s independent evidentiary value directly, arguing that the phone was a container of data rather than an alleged instrumentality of the charged offense.

Commonwealth v. Hempel: A Waiver Colloquy Is Required Before Any Self-Representation

In Commonwealth v. Hempel, No. 19-P-63 (Mass. App. Ct. Aug. 12, 2026), a published decision, trial counsel told the judge he could not ethically call the witness the defendant insisted on because of a concern about perjury. The judge adapted the narrative testimony procedure of Commonwealth v. Mitchell, 438 Mass. 535 (2003), so that the defendant could call and examine the witness himself while counsel handled the rest of the trial.

After that examination the defendant said he no longer wished to speak with counsel, and counsel reported that the defendant would cross-examine any rebuttal witnesses and deliver his own closing. The defendant asked that counsel remain as standby counsel and then gave his own closing argument. At no point did the judge conduct a colloquy, ask any questions, or give any warning about the risks of self-representation.

The Appeals Court vacated the convictions. Where a defendant proceeds with standby counsel, the judge must ensure the waiver of counsel is knowing and intelligent exactly as in a case with no standby counsel. The court adopted that as a bright-line rule so that trial and appellate courts need not measure how much self-representation occurred.

Mitchell does not supply an exception. Directing narrative testimony does not leave a defendant unrepresented and does not implicate the right to counsel at all, as the Supreme Judicial Court explained in Commonwealth v. Leiva, 484 Mass. 766 (2020).

Reviewing the record under Commonwealth v. Barros, 494 Mass. 100 (2024), the panel was not confident the defendant understood the disadvantages of self-representation or the magnitude of the undertaking. What decided it was that he did not know the elements of the charged offenses, even though he understood the seriousness of the punishment and had prior experience in the system. Violations of the right to counsel are not subject to harmless error analysis.

Justice Brennan dissented, and would have treated the arrangement as the cocounsel form of hybrid representation, which in her view leaves a defendant fully represented and requires no colloquy. The split makes this a candidate for further appellate review, so counsel should preserve the issue on both theories.

The immediate use is straightforward. The moment a judge lets a client take over any part of the trial with counsel dropping to a standby role, object and demand the full inquiry on the record. The failure is structural.

Commonwealth v. Ramos: When Adjutant Evidence Is the Wrong Trade

In Commonwealth v. Ramos, No. SJC-12678 (Mass. Aug. 13, 2026), the Supreme Judicial Court affirmed a conviction of murder in the first degree on a theory of deliberate premeditation, along with the denial of a motion for a new trial. Surveillance video showed the defendant quickening his pace behind the victim, who was walking ahead with his back turned, and bringing his arm down in a slashing motion.

The defense at trial was self-defense, and the defendant argued on appeal that trial counsel was ineffective for failing to introduce Adjutant evidence of the victim’s prior violence. Counsel averred that he declined because the defendant had the more significant record for violence, and introducing the victim’s record would have opened the door to his own.

The court held the decision was a tactical one that was not manifestly unreasonable. The victim’s 2010 child sexual assault convictions had minimal probative value on who first used deadly force and created a real risk of prejudice, and the defendant was the only one of the two men with a conviction of assault and battery by means of a dangerous weapon.

The court also held that the judge had no obligation to instruct on voluntary manslaughter by sudden combat on his own initiative, particularly where counsel had specifically withdrawn the request. Viewed most favorably to the defendant the evidence showed a preexisting dispute, a planned fight, a defendant who armed himself in advance, and an ambush from behind, so nothing about the encounter was sudden.

Two practical points follow. Before moving to admit Adjutant evidence, compare the client’s record of violence against the complainant’s, because the door swings both ways and a client with the worse record makes the motion a losing trade that will also defeat a later claim of ineffective assistance. And never withdraw a request for a lesser included offense instruction that may matter on appeal, because the withdrawal itself becomes a reason for affirmance.

Doe No. 526105: Expert Funds at a Sex Offender Registry Board Hearing

In Doe, Sex Offender Registry Board No. 526105 v. Sex Offender Registry Board, No. SJC-13847 (Mass. Aug. 18, 2026), the board classified the plaintiff at level two six separate times. The fourth classification was vacated after the board conceded that the hearing examiner had misapplied a factor requiring findings of both repetitive and compulsive behavior. On remand the board announced it would instead weigh the multiple offenses through a different factor bearing on degree of dangerousness.

Before the sixth hearing the plaintiff moved for funds to retain an expert to address that application of the factor and the state of the research on repetitive sexual behavior where there is no evidence of prior sex offenses or compulsive behavior. The hearing examiner denied the motion on the ground that such testimony would not be unique to the plaintiff.

The Supreme Judicial Court held the denial was an abuse of discretion. Special to the offender, in the regulation permitting expert funds, does not mean unique to the offender. The request was not generic; it identified a specific and novel application of a single factor to the plaintiff’s circumstances.

The board had told the court that it presented no research supporting that application because such research does not exist. The court answered that the board, not the offender, bears the burden of justifying its application of the regulatory factors, and that the board’s assertion that no relevant research exists does not justify denying the offender the opportunity to prove or refute it.

The judgment was vacated and the matter remanded to the board with an order granting the request for expert funds. The constitutional question whether that factor may be applied to multiple offenses committed before arrest or conviction remains undecided, and the court attributed the undeveloped record in part to the denial of the funds.

Counsel with a pending classification should file the expert funds motion and build it to this pattern: name the specific factor and the specific application challenged, identify the type of expert, and attach an affidavit with the supporting literature and the procedural history. The board’s answer that no such research exists is now an argument for the funds rather than against them.

What These Decisions Change

Two themes run through the period. The first is that the record made at the trial court decides the case: Shaw depended on an objection never made, Dorsey on an affidavit that omitted what the expert concluded, Solis and Diaz on possessory interests never put in evidence, and Figueroa on a continuance never requested. The second is that the courts continue to police the boundary between what a judge may resolve by discretion and what a judge must decide by rule, in Sanders, in Hempel, and in Doe No. 526105.

Counsel with a pending motion to suppress should read Palmer and the Solis and Diaz opinions together, because the first fixes the moment of seizure during a foot pursuit and the second sets out what a court will weigh when police hold a phone for months before applying for a warrant.

Referring counsel may reach Attorney Serpa at 617.936.0201.

When a Massachusetts defendant claims self-defense and the parties dispute who began the physical confrontation or who first used or threatened deadly force, the defendant may ask the judge to admit evidence of specific violent incidents that the alleged victim is reasonably alleged to have initiated. Commonwealth v. Adjutant, 443 Mass. 649 (2005). The rule also covers qualifying violent acts by a third party acting in concert with or to assist the alleged victim. The judge retains discretion over whether the evidence will be admitted.

Using Adjutant evidence can also permit a response from the prosecution. Under Commonwealth v. Morales, 464 Mass. 302 (2013), the Commonwealth may seek to rebut qualifying evidence about the alleged victim with specific incidents of the defendant’s prior violent conduct. That does not make the defendant’s entire criminal record admissible, and a conviction is not interchangeable with proof of a qualifying violent incident.

The analysis focuses on the particular incidents and the disputed issue they may help resolve. Massachusetts Rule of Criminal Procedure 14.3(c) requires timely notice, and the proffer needs an adequate evidentiary foundation. The judge must then apply the governing balancing test and give a precise limiting instruction. This is not a comparison of two criminal records.

The Adjutant First-Aggressor Rule

Evidence that a person acted violently on another occasion ordinarily cannot be used merely to show that the person probably acted the same way in the charged incident. Commonwealth v. Adjutant, 443 Mass. 649 (2005), created a focused exception for a defendant who raises self-defense and disputes the identity of the first aggressor. The court held, as a matter of common law, that a trial judge has discretion to admit specific incidents of violence that the alleged victim is reasonably alleged to have initiated. Adjutant, 443 Mass. at 664.

The Massachusetts Guide to Evidence states the current rule at § 404(a)(2)(B) (2026). Where the identity of the first aggressor or the first to use deadly force is in dispute, a defendant may offer evidence of specific incidents of violence allegedly initiated by the alleged victim, or by a third party acting in concert with or to assist the alleged victim, whether or not the defendant knew of them. The same subsection permits the prosecution to rebut with specific incidents of violence by the defendant.

The jury may use that evidence to decide who initiated the confrontation or who escalated it by first using or threatening deadly force. The firm’s Massachusetts self-defense page explains the elements of the defense itself.

The Two First-Aggressor Disputes

Commonwealth v. Chambers, 465 Mass. 520, 529 to 530 (2013), holds that the first aggressor may be either of two people: the person who initiated the confrontation, or the person who first escalated it by using or threatening deadly force. Commonwealth v. Deconinck, 480 Mass. 254, 263 (2018), restates the rule as two circumstances, and Commonwealth v. Souza, 492 Mass. 615 (2023), confirms that Adjutant evidence is admissible only when one or both of those issues are genuinely in dispute. Evidence may be relevant to one issue, the other, or both.

The distinction applies when the parties agree that one person began a nondeadly confrontation but dispute who first used or threatened deadly force. There is no Adjutant issue when the relevant identity is undisputed. In Commonwealth v. Andrade, 496 Mass. 144 (2025), exclusion was proper where the alleged victim was undisputedly the initial aggressor and the defendant unilaterally escalated the encounter by using deadly force.

Commonwealth v. Camacho, 472 Mass. 587 (2015), supplies two further limits. The evidence is inadmissible where the parties dispute only whether the defendant was legally entitled to use the level of force employed, rather than who began or escalated the altercation. Camacho, 472 Mass. at 594. And the evidence is admissible only where the alleged victim was involved in the altercation that led to the charge.

Souza states the outer limit on purpose. Adjutant evidence is admissible exclusively to help the jury decide who initiated the conflict or who first used or threatened deadly force. It is not admissible more broadly to show that the Commonwealth failed to meet its burden on self-defense.