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Matthew Farwell Convicted in the Death of Sandra Birchmore: The Evidence, the Elements and the Verdict

Attorney Joe Serpa — Tue, 10 Nov 2026 20:24:31 GMT

By Attorney Joe Serpa | Georgetown University Law Center

On Tuesday, November 10, 2026, a federal jury in Boston found former Stoughton police officer Matthew Farwell guilty on both counts of the superseding indictment that charged him in the death of Sandra Birchmore, according to WBUR. Count One charged him with killing a witness or victim, 18 U.S.C. § 1512(a)(1)(C). Count Two charged him with causing the death of Ms. Birchmore’s unborn child, 18 U.S.C. § 1841. The jury of eight men and four women returned its verdict at about 2 p.m., according to Boston.com.

The jury began deliberating on the afternoon of Friday, November 6, after closing arguments, according to Boston.com. On Monday, November 9, it reported that it was deadlocked. Chief Judge Denise J. Casper sent the jurors home for the day, and they resumed deliberating on Tuesday, according to WBUR. They reached their verdict on their second full day of deliberations, according to NBC Boston.

Our October 16 post on the trial describes Ms. Birchmore’s life, the three Stoughton officers, the investigation that ruled her death a suicide, and the federal charges. This post explains what the government had to prove on each count, the evidence the jury heard, and how the jury likely reached its verdict.

What the Government Had to Prove

The news reports of the trial do not describe Judge Casper’s instructions to the jury on the elements of each count. The elements below come from the statutes and from the Supreme Court’s decision in Fowler v. United States.

Count One: Killing a Witness or Victim

Section 1512(a)(1)(C) makes it a federal crime to kill another person with intent to prevent any person from telling a federal law enforcement officer about the commission or possible commission of a federal offense. To convict Mr. Farwell on Count One, the jury had to find three things beyond a reasonable doubt.

First, the jury had to find that Mr. Farwell killed Ms. Birchmore. The central dispute at trial was whether she was strangled or died by suicide. Second, the jury had to find that he killed her with malice aforethought, the state of mind required for murder. 18 U.S.C. § 1111(a). Third, the jury had to find that he killed her with intent to prevent her, or anyone else, from reporting a federal offense to a law enforcement officer.

The indictment named three federal offenses that Mr. Farwell allegedly wanted to hide. They are deprivation of rights under color of law, 18 U.S.C. § 242, coercion and enticement of a minor, 18 U.S.C. § 2422(b), and wire fraud, 18 U.S.C. § 1343.

The government did not have to prove that Mr. Farwell knew a report would go to a federal officer. 18 U.S.C. § 1512(g). Where a defendant kills to prevent a report to law enforcement in general, the government must show a reasonable likelihood that at least one relevant communication would have been made to a federal officer. Fowler v. United States, 563 U.S. 668, 677 (2011). The likelihood must be more than remote, outlandish, or simply hypothetical. The government need not prove that a federal report was more likely than not. Id. at 678.

Count Two: The Death of the Unborn Child

Section 1841 makes it a separate crime to cause the death of a child in utero while committing one of the federal offenses the statute lists. Section 1512 is one of those offenses. 18 U.S.C. § 1841(b)(1). Count Two therefore depended on Count One. A finding that Mr. Farwell killed Ms. Birchmore in violation of § 1512, and that the killing ended her pregnancy, supported a conviction on Count Two. The government did not have to prove that he knew she was pregnant or that he intended to cause the death of the child. 18 U.S.C. § 1841(a)(2)(B). Ms. Birchmore had in fact told Mr. Farwell that she was pregnant.

The Evidence at Trial

The jury heard from about 50 witnesses and saw about 500 exhibits over nearly a month, according to the Associated Press. Mr. Farwell did not testify.

How Ms. Birchmore Died

Dr. William Smock, a medical expert called by the government, testified that Ms. Birchmore died of asphyxia from strangulation and that she was the victim of a homicidal act, according to Boston 25 News. He testified that the right side of her hyoid bone, a small bone in the neck, was fractured inward. He said that injury is consistent with strangulation and not with a partial hanging. He also testified that a mark on her upper chest matched the clasp of the duffel bag strap, which was tied to the door handle when police found her. He concluded that the clasp made the mark before the strap was tied to the door, and he called the scene altered, according to Boston 25 News and the Boston Globe.

The state medical examiner, Dr. María Del Mar Capó-Martínez, testified that she first ruled the death a suicide by hanging and later changed the manner of death to undetermined. She testified that she had not seen the surveillance video or the phone data when she made her first ruling, according to WJAR.

Dr. Thomas Andrew, a former chief medical examiner of New Hampshire called by the defense, testified that the manner of death was undetermined and that the autopsy findings favored suicide, according to the Boston Globe. He testified that the hyoid could have broken after death or during convulsions, according to WPRI. On cross-examination, he agreed that strangulation can occur without external injuries and that a hanging can be staged after death, according to NBC Boston. NBC Boston also reported that he acknowledged that hyoid fractures are far more common in strangulations than in hangings. Other defense experts testified that the hyoid fracture did not show one cause or the other and that the photographs of the chest mark were inconclusive, according to Boston.com.

The Night of February 1, 2021

Building surveillance video showed Mr. Farwell entering Ms. Birchmore’s building at about 9:14 p.m. in a surgical mask and a hood, and leaving at about 9:43 p.m., according to Boston.com and the Boston Globe. A forensic examiner testified that Ms. Birchmore sent her last text message at 9:13 p.m., telling him the door was open. Her phone recorded its last movement at 9:40 p.m., according to WJAR. The Associated Press reported that her phone stopped moving about three minutes before the lobby camera showed Mr. Farwell leaving. A defense expert testified that step data should be interpreted cautiously, according to WPRI.

The January 20 Call and the Motive

A former Stoughton police dispatcher testified that he took the January 20, 2021 call from a woman who suggested that Mr. Farwell had a relationship with her friend, and that he told Mr. Farwell about it. The dispatcher testified that Mr. Farwell became visibly upset and told him never to talk about it again, according to Boston.com and WJAR. An FBI agent testified that Mr. Farwell texted Ms. Birchmore that day that her friend had called his job, according to WJAR.

The jury also saw text messages in which Ms. Birchmore threatened in October 2020 to tell Mr. Farwell’s wife about the relationship. The jury saw his reply to her news of the pregnancy, that she was the worst person on the face of the earth, according to WJAR and Boston.com. An FBI agent testified that there were no texts, searches or journal entries about suicide on the night Ms. Birchmore died, and that she had been texting about baby shower themes, according to Boston 25 News.

William Farwell, Mr. Farwell’s twin brother, testified under a grant of immunity. He admitted that he had a sexual relationship with Ms. Birchmore when she was an adult, according to NBC Boston. He also testified that his brother later told him he had wiped his phones, according to Boston 25 News. An FBI examiner testified that a phone linked to Mr. Farwell searched in February 2021 whether deleted messages could be recovered, according to Boston.com. Jason Pickard, whom DNA testing identified as the father of the child, testified that he encouraged Ms. Birchmore to report Mr. Farwell and that she was not suicidal, according to WJAR.

The Defense Case

The defense presented evidence of Ms. Birchmore’s mental health history through a forensic psychiatrist, including a suicide attempt in early adolescence and a psychiatric hold in May 2020, according to the Boston Globe. The jury also heard about a 2017 journal entry that read as a suicide note, according to WJAR. In closing, defense attorney Kimberly Stevens argued that Ms. Birchmore took her own life. She also argued that Ms. Birchmore was never going to go to federal law enforcement or any other law enforcement, according to Boston.com.

The Closing Arguments

Assistant United States Attorney Brian Fogerty argued that Mr. Farwell planned the killing after he learned of the January 20 call. He pointed to evidence that Mr. Farwell obtained a key to her apartment, inspected her closet and bathroom, and timed his visit to a coming snowstorm, according to CBS Boston and Boston.com. Ms. Stevens answered that there was no evidence that Mr. Farwell ever had a key, according to Boston.com.

How the Jury Likely Reached Its Verdict

Jurors do not explain their verdicts, and the public reports do not show what the jurors discussed. The verdict and the evidence nonetheless suggest how the jury resolved each element.

The jury first had to decide how Ms. Birchmore died. The medical experts disagreed, and the medical examiner had changed her ruling to undetermined. The jury likely did not decide the cause of death on the medical testimony alone. The defense’s own expert agreed on cross-examination that strangulation can occur without external injuries and that a hanging can be staged after death. Once the medical evidence permitted a finding of strangulation, the jury likely relied on the timeline to decide the question. Ms. Birchmore’s phone stopped moving while Mr. Farwell was still in the building, and he left minutes later with his hood up and his mask on. The defense theory required the jury to accept that Ms. Birchmore took her own life in the few minutes after he left. The phone data made that theory difficult to accept.

The jury next had to decide whether Mr. Farwell acted with malice aforethought and with intent to silence Ms. Birchmore. The order of events supported both findings. A friend called the Stoughton police on January 20, 2021. Mr. Farwell learned of the call that day and texted Ms. Birchmore that her friend had called his job. Ms. Birchmore had threatened to tell his wife, and she was preparing for the birth of a child she believed was his. Twelve days after the call, she was dead. The jury likely inferred that he killed her because she could expose him. The evidence that he wiped his phones and searched whether deleted messages could be recovered likely reinforced that inference.

The federal element was the strongest defense argument. No witness testified that Ms. Birchmore contacted or planned to contact the FBI. The defense argued that she never intended to report anyone. Under Fowler, however, the government did not have to prove that a federal report was more likely than not. It had to show only a reasonable likelihood that a report would have reached a federal officer. A report that a police officer began a sexual relationship with a 15-year-old girl he met through his department’s Explorers program describes possible federal offenses, including deprivation of rights under color of law and coercion and enticement of a minor. A former Stoughton deputy chief testified that the department would likely have opened an investigation had it learned of the relationship while Ms. Birchmore was alive, and that he later alerted the FBI, according to the Boston Globe and Boston.com. The jury likely concluded from that evidence that a report of Mr. Farwell’s conduct was reasonably likely to reach federal investigators.

The deadlock note on Monday shows that at least one juror was not yet persuaded on at least one element. The public reports do not show which element divided the jurors. Judge Casper told the jurors to take the time they need, and they returned unanimous verdicts on both counts the next afternoon, according to the Boston Globe and Boston.com. The conviction on Count Two rested on the same findings as Count One, because the killing of Ms. Birchmore ended her pregnancy.

What Happens Next

Judge Casper scheduled sentencing for February 3, 2027, according to WBUR and Boston.com. The Associated Press and the Boston Globe reported that the conviction on Count One requires a life sentence. Under 18 U.S.C. § 1512(a)(3)(A), the punishment for a killing is the punishment that 18 U.S.C. §§ 1111 and 1112 provide. A defendant convicted of first-degree murder under § 1111 receives death or life imprisonment, and the Department of Justice is not seeking death. The public reports do not say whether the jury was instructed on first-degree murder alone or also on second-degree murder, which permits a sentence of any term of years.

Federal law requires a judge to detain a defendant found guilty of a crime of violence, or of an offense punishable by life imprisonment, while the defendant awaits sentencing, unless narrow exceptions apply. 18 U.S.C. § 3143(a)(2). Mr. Farwell has been held without bail since his arrest in August 2024.

The defense may ask Judge Casper to enter a judgment of acquittal or to order a new trial. Both motions are due within 14 days after the verdict, unless the judge extends the deadline. Fed. R. Crim. P. 29(c)(1), 33(b)(2). A motion for a new trial based on newly discovered evidence may be filed up to three years after the verdict. Fed. R. Crim. P. 33(b)(1).

After sentencing, Mr. Farwell may appeal to the United States Court of Appeals for the First Circuit. The notice of appeal is due within 14 days after the judgment is entered. Fed. R. App. P. 4(b)(1)(A).

The civil suit brought by Ms. Birchmore’s estate against the Town of Stoughton, Mr. Farwell and others is set for a hearing after the federal trial, according to NBC Boston. Later posts in this series will cover the sentencing.

Key Takeaways

On November 10, 2026, a federal jury in Boston convicted former Stoughton police officer Matthew Farwell of killing Sandra Birchmore to prevent a report of federal offenses, 18 U.S.C. § 1512(a)(1)(C), and of causing the death of her unborn child, 18 U.S.C. § 1841.
To convict on Count One, the jury had to find that Mr. Farwell killed Ms. Birchmore with malice aforethought and with intent to prevent a report of a federal offense. Under Fowler v. United States, the government had to show a reasonable likelihood that a report would have reached a federal officer.
The medical experts disagreed on whether Ms. Birchmore was strangled. Phone data showed that her phone stopped moving while Mr. Farwell was still in her building.
Mr. Farwell learned of a friend’s call to the Stoughton police about the relationship twelve days before Ms. Birchmore died.
Sentencing is scheduled for February 3, 2027.

Related Serpa Law Office Resources

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

Judge Denies Lindsay Clancy’s Double Jeopardy Motion: The November 9, 2026 Rulings

Attorney Joe Serpa — Tue, 10 Nov 2026 19:42:45 GMT

By Attorney Joe Serpa | Georgetown University Law Center

On Monday, November 9, 2026, Judge William Sullivan denied Lindsay Clancy’s motion to dismiss the murder charges on double jeopardy grounds. He also denied her request for records about the holdout juror and her request to question that juror under oath. He denied the Commonwealth’s request for a gag order on the defense, without prejudice. The Commonwealth may now retry Ms. Clancy on the murder indictments.

Judge Sullivan heard the three motions in Plymouth Superior Court on November 2, 2026. Our post on the November 2 hearing explained why the motion to dismiss was unlikely to succeed. Judge Sullivan had said he would announce his decision on November 16. He issued written decisions on November 9 instead. The case returns to court on Monday, November 16, according to WCVB and WBUR.

The Double Jeopardy Ruling

Judge Sullivan declared a mistrial on September 4, 2026, after the jury reported that it could not reach a verdict. The defense argued that the mistrial was not necessary and that a second trial would violate Ms. Clancy’s right not to be tried twice for the same offense.

Judge Sullivan rejected that argument. He concluded that there was “a manifest necessity for a mistrial based on the jury’s deadlock,” and that a retrial on the murder indictments therefore does not violate double jeopardy, according to ABC News.

What the Judge Relied On

According to Boston.com, Judge Sullivan pointed to the steps he took before he declared the mistrial. He declined to remove the holdout juror after the first jury note. He polled each juror individually. He instructed the jury again on reasonable doubt. Judge Sullivan wrote that he had to avoid coercing a verdict, according to WBUR and Boston.com, and that his primary concern was protecting the fairness of the proceedings, according to WBUR.

Judge Sullivan also rejected the defense argument that information learned after the trial undermined the mistrial, according to Boston.com. That ruling follows Read v. Commonwealth, 495 Mass. 312 (2025), where the Supreme Judicial Court judged a deadlock mistrial on the information the trial judge had when he or she declared it.

Why the Ruling Follows Massachusetts Law

Double jeopardy protections prohibit a second trial of a defendant whose first trial ended over the defendant’s objection without a conviction, unless the judge declared the mistrial out of manifest necessity. Ray v. Commonwealth, 463 Mass. 1, 3 (2012). A jury that cannot agree on a verdict is a traditional example of manifest necessity. Commonwealth v. Troila, 410 Mass. 203, 206 (1991). The Supreme Judicial Court upholds a deadlock mistrial where the judge gave counsel a full opportunity to be heard and carefully considered the alternatives. Judge Sullivan’s written decision describes the alternatives he considered.

The Holdout Juror Records

The defense had asked for court sign-in sheets, cellphone sign-in records, jury room video, the juror’s confidential questionnaire, and phone records, according to Boston.com. The defense also asked Judge Sullivan to question the juror under oath.

Judge Sullivan denied both requests. He wrote that Ms. Clancy had failed to show that the records were relevant and material to her defense, according to WCVB. He also wrote that he could see no valid reason to examine the juror under oath, according to WCVB. WBUR reported that Judge Sullivan called the proposed inquiry an improper intrusion that would discourage citizens from serving as jurors. Judge Sullivan referred to the juror as “Juror Doe.”

The Gag Order Request

The Commonwealth had asked Judge Sullivan to bar the lawyers in the case from speaking publicly about it. Prosecutors described defense statements to the press as inflammatory, according to Boston.com.

Judge Sullivan denied the request without prejudice, according to WCVB. He wrote that the Commonwealth had not met its burden to justify the extreme remedy of a prior restraint, according to WBUR. The Commonwealth may renew the request if circumstances change and it can show that a prior restraint is necessary, according to WCVB.

A court order forbidding speech before the speech occurs is a prior restraint. Massachusetts courts permit one only on detailed findings of a compelling interest and the absence of a reasonable, less restrictive alternative. A lawyer’s public statements remain subject to Rule 3.6 of the Massachusetts Rules of Professional Conduct, with or without a court order.

What Comes Next

The November 16 Hearing and a Trial Date

Judge Sullivan has scheduled a hearing for Monday, November 16, in Plymouth, according to WCVB and WBUR. Judge Sullivan has discussed a March 2027 trial date, and the defense prefers April, according to Boston.com. The Commonwealth has not said whether it will seek a conviction of murder in the first degree or a lesser degree at a second trial, according to WBUR and Boston.com. District Attorney Timothy Cruz said that he would say more after the November 16 hearing, according to WCVB.

An Appeal Before the Second Trial

A defendant ordinarily cannot appeal the denial of a motion to dismiss until after trial. Massachusetts recognizes a narrow exception for double jeopardy claims, because the right protects a defendant from being tried a second time. See Neverson v. Commonwealth, 406 Mass. 174, 175 (1989). The defendant files a petition with a single justice of the Supreme Judicial Court under G.L. c. 211, § 3. Karen Read used that route after her mistrial in Read v. Commonwealth.

Defense lawyer Martin Weinberg said that the defense expects to seek review in the Supreme Judicial Court in the very near future, according to Boston.com. The single justice decides whether to grant relief, deny it, or report the question to the full court.

Key Takeaways

On November 9, 2026, Judge William Sullivan denied Lindsay Clancy’s motion to dismiss on double jeopardy grounds, finding a manifest necessity for the mistrial based on the jury’s deadlock.
Judge Sullivan denied the defense requests for records about the holdout juror and for questioning of that juror under oath.
Judge Sullivan denied the Commonwealth’s request for a gag order without prejudice, so the Commonwealth may renew it if circumstances change.
A jury that cannot agree on a verdict is a traditional example of manifest necessity for a mistrial.
Massachusetts permits review of a double jeopardy ruling before a second trial through a petition to a single justice of the Supreme Judicial Court under G.L. c. 211, § 3.
The case returns to Plymouth Superior Court on November 16, 2026, and Judge Sullivan has discussed a March 2027 trial date.

Related Serpa Law Office Resources

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.

Lindsay Clancy Hearing on November 2, 2026 and the Double Jeopardy Motion

Attorney Joe Serpa — Tue, 03 Nov 2026 01:34:18 GMT

By Attorney Joe Serpa | Georgetown University Law Center

Lindsay Clancy returned to Plymouth Superior Court on Monday, November 2, 2026, for a hearing before Judge William Sullivan. Her lawyers asked Judge Sullivan to dismiss the murder charges on double jeopardy grounds. The Commonwealth asked Judge Sullivan for a gag order on the prosecutors, the defense lawyers, and law enforcement, according to the Boston Globe. Judge Sullivan said that he would decide the motions later and scheduled a hearing for November 16, when he intends to announce his decision on the motion to dismiss.

The hearing lasted about three hours. The defense also asked Judge Sullivan to review court and cellphone records about the one juror who disagreed with the other eleven jurors at the first trial. Judge Sullivan set the November 16 hearing for 10 a.m., according to ABC News and TMZ.

The Commonwealth charges Ms. Clancy with murder in the deaths of her three children in Duxbury on January 24, 2023. At trial, the defense argued that Ms. Clancy was not criminally responsible because she was suffering from postpartum psychosis. Judge Sullivan declared a mistrial on September 4, 2026, after the jury reported that it could not agree on a verdict. News reports describe the jury as divided 11 to 1 and call the one juror in the minority the holdout juror.

A Plymouth County grand jury indicted Ms. Clancy for murder and strangulation in the deaths of Cora, Dawson, and Callan Clancy. News reports describe the eleven jurors in the majority as favoring a verdict of not guilty by reason of lack of criminal responsibility.

Judge Sullivan denied the defense’s renewed motion for a required finding of not guilty on October 1, 2026, according to NBC10 Boston and Boston 25 News. The defense filed the renewed motion under Mass. R. Crim. P. 25(b)(2), which permits a defendant to renew a motion for a required finding of not guilty after the judge discharges a jury that returned no verdict. Judge Sullivan ruled that the Commonwealth presented enough evidence for a jury to find beyond a reasonable doubt that Ms. Clancy killed the children and that she was criminally responsible, according to Boston 25 News.

The Double Jeopardy Motion

Defense attorney Martin Weinberg argued the motion to dismiss. Before the mistrial, the jury foreperson sent Judge Sullivan notes reporting that one juror was not following the instructions on the law. Judge Sullivan questioned each juror individually about whether the juror could follow the instructions and then repeated the instruction on reasonable doubt to the jury. Judge Sullivan also denied a defense request to replace the holdout juror with an alternate.

Mr. Weinberg argued that Judge Sullivan should have conducted a more probing inquiry after receiving the foreperson’s notes and before declaring the mistrial. According to CBS Boston and the Associated Press, Mr. Weinberg told Judge Sullivan that further questioning could have shown whether the holdout juror was following the instructions on the law. The firm’s earlier post on the Clancy jury dispute explains when Massachusetts law permits a judge to remove a deliberating juror.

Mr. Weinberg represented Karen Read on her double jeopardy petition to the Supreme Judicial Court in 2025. He told Judge Sullivan, “A probing voir dire could have disclosed that the 12th juror was not following instructions,” according to CBS Boston. The defense argues that the Commonwealth cannot establish the manifest necessity required for a second trial because Judge Sullivan declared the mistrial without questioning the jurors further, according to Newsweek.

Judge Sullivan questioned Mr. Weinberg from the bench. He asked Mr. Weinberg whether the judge had already conducted a voir dire, sworn the jurors, and asked each juror whether the juror could follow the instructions. Judge Sullivan said that he also had to guard against coercing the jurors, according to CBS Boston. He told the defense that he understands the argument and does not take it personally, according to ABC News.

Assistant District Attorney Jennifer Sprague argued that Judge Sullivan handled the deadlocked jury correctly. Ms. Sprague wrote in the Commonwealth’s opposition that singling out the holdout juror for questioning would have led to judicial coercion of the juror and an intrusion into the jury’s private deliberations, according to ABC News and the Boston Globe. The Commonwealth also argued that the foreperson did not report any bias, outside influence, or other personal reason affecting the holdout juror.

At the hearing, Ms. Sprague told the court that Judge Sullivan questioned the jurors individually, reinforced his instructions, and stayed out of the substance of the deliberations. She said that the holdout juror “did not refuse to deliberate. He refused to agree,” according to Newsweek. The Commonwealth further argued that a reviewing court judges the mistrial by what Judge Sullivan knew when he declared it, without regard to information the defense gathered afterward.

Double jeopardy protections prohibit a second trial of a defendant whose first trial ended over the defendant’s objection without a conviction, unless the judge declared the mistrial out of manifest necessity. Ray v. Commonwealth, 463 Mass. 1, 3 (2012). A jury that cannot agree on a verdict is a traditional example of manifest necessity. Commonwealth v. Troila, 410 Mass. 203, 206 (1991). The September 29 update describes the steps Judge Sullivan took before he declared the mistrial and how the Supreme Judicial Court applied the manifest necessity rule in Karen Read’s case.

The Deliberations Before the Mistrial

The jury deliberated for more than 38 hours over seven days and reported three times that it could not agree, according to WBUR. Judge Sullivan sent the jury back to deliberate after the first report. After the second report, on September 2, Judge Sullivan gave the jury the Tuey-Rodriquez instruction. On September 3, the foreperson reported that one juror refused to follow the law on reasonable doubt. After the foreperson’s final note on September 4, Judge Sullivan declared the mistrial. The Supreme Judicial Court declined the defense request for emergency relief the same day.

The Tuey-Rodriquez Instruction and the Limit on Further Deliberations

The Tuey-Rodriquez instruction is the charge a Massachusetts judge gives a jury that reports a deadlock. The judge asks the jurors in the majority and the jurors in the minority to reconsider their positions in light of the views of the other jurors, without surrendering an honest conviction. Commonwealth v. Rodriquez, 364 Mass. 87, 101 (1973). The Supreme Judicial Court has held that the instruction is ordinarily the preferable course but that a judge is not required to give it, even when both parties request it. Ray v. Commonwealth, 463 Mass. 1, 5-6 (2012). In Rodriquez, the court cautioned that the instruction “has a sting” and should not be given prematurely or without evident cause. 364 Mass. at 100.

Massachusetts law limits how many times a judge can send a deadlocked jury back to deliberate. Under G.L. c. 234A, § 68C, a judge may restate the evidence or explain the law again and send the jury out for further deliberation after the jury first reports that it cannot agree. After the jury returns a second time without a verdict, the judge may not send the jury out again without the jurors’ own consent, unless the jury asks for a further explanation of the law.

The Manifest Necessity Rule

The manifest necessity rule governs Ms. Clancy’s motion to dismiss because Ms. Clancy objected to the mistrial on September 4 and asked the Supreme Judicial Court for emergency relief. The Supreme Judicial Court applies the rule as the United States Supreme Court stated it in Arizona v. Washington, 434 U.S. 497, 505 (1978), and United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824). Ray, 463 Mass. at 3.

The Supreme Judicial Court reviews a mistrial declared because of a deadlocked jury for an abuse of discretion by the trial judge. Ray, 463 Mass. at 4. The court applies two principles in that review. The judge must give counsel a full opportunity to be heard. The judge must also give careful consideration to the alternatives to a mistrial. Ray, 463 Mass. at 4, quoting Commonwealth v. Nicoll, 452 Mass. 816, 818 (2008).

The Supreme Judicial Court applies no mechanical formula to determine whether a deadlock mistrial was proper. The court considers the jury’s statements that it cannot agree and the time the jury spent deliberating, measured against the length of the trial and the complexity of the factual disputes. Ray, 463 Mass. at 4-5. A judge who follows the two principles is not required to consider every conceivable alternative before declaring a mistrial. Read v. Commonwealth, 495 Mass. 312 (2025), quoting Commonwealth v. Cassidy, 410 Mass. 174, 179 (1991). The judge is also not required to give the Tuey-Rodriquez instruction. Ray, 463 Mass. at 5-6.

Double jeopardy does not prevent a second trial after a deadlock where the judge followed those principles and the evidence at trial was legally sufficient to support a conviction. Ray, 463 Mass. at 4, quoting Ferrari v. Commonwealth, 448 Mass. 163, 167 (2007). Judge Sullivan ruled on October 1 that the evidence was sufficient. The double jeopardy motion therefore depends on whether Judge Sullivan abused his discretion when he declared the mistrial on September 4 without questioning the jurors further.

The Information Before the Judge When He Declared the Mistrial

The Supreme Judicial Court judges a deadlock mistrial on the information the trial judge had when the judge declared it. Read v. Commonwealth, 495 Mass. 312 (2025), citing Commonwealth v. Torres, 453 Mass. 722, 736 (2009). In Ms. Read’s case, the defense offered juror accounts after the mistrial reporting that the jurors had privately agreed to acquit on two charges. The Supreme Judicial Court held that those posttrial juror accounts did not establish an acquittal and did not require the trial judge to question the jurors. The court explained that a jury verdict is valid only when the jury returns it unanimously in open court. Read, 495 Mass. 312, citing Mass. R. Crim. P. 27(a). The court reviews a trial judge’s refusal to conduct a posttrial juror inquiry only for an abuse of discretion. Read, 495 Mass. 312, citing Commonwealth v. Guisti, 434 Mass. 245, 251 (2001).

Judge Sullivan applied the same rule in his October ruling denying the defense request for an evidentiary hearing. The allegations about the holdout juror’s phone use and questionnaire answers surfaced after the mistrial. Under Read, a reviewing court examines the foreperson’s notes, the jurors’ answers to Judge Sullivan’s individual questions, and the rest of the record as it stood on September 4.

The sequence Judge Sullivan followed resembles the sequence the Supreme Judicial Court upheld in Read. The trial judge in Ms. Read’s case sent the jury back after the first deadlock note, gave the Tuey-Rodriquez instruction after the second note, and declared a mistrial after the third note. Judge Sullivan took the same three steps. He also questioned each juror individually after the foreperson’s note about the holdout juror. The defense argues that Ms. Clancy’s case differs from Read because the foreperson’s notes described one juror who would not apply the reasonable doubt instruction.

The Limits on Questioning or Removing a Holdout Juror

A Massachusetts judge may discharge a juror during deliberations only after a hearing and only on a finding of an emergency or other compelling reason. G.L. c. 234A, § 39. The Supreme Judicial Court has construed the discharge statutes to permit discharge only for reasons personal to the juror, unrelated to the case itself or to the juror’s relationship with the other jurors. Commonwealth v. Connor, 392 Mass. 838, 844-845 (1984). An alternate replaces a deliberating juror whom the judge discharges. The reconstituted jury then begins its deliberations anew. G.L. c. 234A, § 68.

The Supreme Judicial Court has warned that a report from other jurors that a juror cannot follow the juror’s oath may be a euphemism for a different fact, namely that the juror persists in a minority position. Connor, 392 Mass. at 846. A juror’s own statement that the juror cannot abide by the oath does not establish good cause for discharge. Connor, 392 Mass. at 846. A judge who questions the juror should first tell the juror that discharge is possible only for a personal problem unrelated to the juror’s views of the case or relationships with the other jurors. The judge should stop the questioning unless the juror reports a personal problem. Connor, 392 Mass. at 845.

The Connor rule is the basis of the Commonwealth’s argument that questioning the holdout juror further would have coerced him. The defense answers that the foreperson’s notes reported a refusal to apply the reasonable doubt instruction rather than a disagreement about the evidence. According to Fox News, the defense motion cites the foreperson’s report that the holdout juror acknowledged doubt but refused to apply it.

Why the Motion to Dismiss Is Unlikely to Succeed

Attorney Joe Serpa’s assessment is that the motion to dismiss is unlikely to succeed. A reviewing court asks only whether Judge Sullivan abused his discretion when he declared the mistrial. Ray, 463 Mass. at 4. The public reports of the trial describe a judge who followed both principles that review applies. Judge Sullivan heard the defense requests before he declared the mistrial, including the request to replace the holdout juror with an alternate. He considered alternatives to a mistrial. He questioned each juror individually, repeated the reasonable doubt instruction, and gave the Tuey-Rodriquez instruction.

Judge Sullivan also followed the three steps the Supreme Judicial Court upheld in Read. He sent the jury back after the first deadlock report, gave the Tuey-Rodriquez instruction after the second, and declared the mistrial after the third. The jury had deliberated for more than 38 hours over seven days, according to WBUR.

The further inquiry the defense seeks is the kind of inquiry Massachusetts law discourages. The Supreme Judicial Court has discouraged polling a deadlocked jury about its division because of the risk of coercing the jurors in the minority. Ray, 463 Mass. at 5 n.5. A judge may not discharge a deliberating juror because of the juror’s views of the evidence, and a report that a juror will not follow the law may describe a juror who holds a minority position. Connor, 392 Mass. at 844-846. G.L. c. 234A, § 39. Judge Sullivan was not required to consider every conceivable alternative before he declared the mistrial. Read, 495 Mass. 312, quoting Cassidy, 410 Mass. at 179.

The allegations about the holdout juror’s phone and questionnaire surfaced after the mistrial. A reviewing court judges the mistrial on the information Judge Sullivan had on September 4. Read, 495 Mass. 312, citing Torres, 453 Mass. at 736. Those later allegations therefore do not show that the mistrial lacked manifest necessity. Judge Sullivan ruled on October 1 that the evidence at the first trial was legally sufficient. Where the judge followed the two principles and the evidence was sufficient, double jeopardy does not prevent a second trial. Ray, 463 Mass. at 4.

Evidence About the Holdout Juror

Defense attorney Kevin Reddington asked Judge Sullivan to consider evidence about the holdout juror that became known after the mistrial. Mr. Reddington alleged that the juror used a cellphone during deliberations and was not truthful about his criminal history during jury selection. Judge Sullivan admonished Mr. Reddington for naming the juror in open court and called the lawyers to sidebar after the Commonwealth objected to Mr. Reddington’s statements about the juror.

Mr. Reddington told the court that another juror saw the holdout juror scrolling on his phone and that the holdout juror researched terms related to the trial, according to Newsweek. Mr. Reddington further told the court that the holdout juror did not disclose a past domestic violence arrest on his juror questionnaire, according to the Boston Globe. Judge Sullivan told Mr. Reddington that there was no need to use the juror’s name in the courtroom and directed counsel to refer to the juror as Juror Doe, according to the Boston Globe and Newsweek. Mr. Reddington answered that the name was already on the internet. Judge Sullivan responded that the juror’s exposure in the media did not result from any ruling he made. The court placed some of the questionnaire material under seal.

The defense also asked Judge Sullivan to review the juror’s cellphone records, according to ABC News and Boston.com. In October, Judge Sullivan denied a defense request for an evidentiary hearing about the holdout juror, according to WBUR and ABC News. Judge Sullivan wrote in the October ruling that information about the juror that surfaced after the trial “simply is not relevant to whether there was a manifest necessity for a mistrial,” according to WBUR.

The defense records request covers the juror’s confidential questionnaire, the juror’s cellphone records from the days of deliberation, and court records of the juror’s criminal history and of a civil restraining order, according to the Boston Globe. Heather O’Connor, the lawyer for the holdout juror, opposed the defense requests. Ms. O’Connor told the court that the juror disclosed a prior arrest on his questionnaire and that the defense reviewed the questionnaire, questioned him, and accepted him onto the jury, according to Newsweek. Ms. O’Connor said that the court allowed every juror to keep a phone. She argued that the defense investigated the juror because of his vote and warned that searching a juror’s phone after a mistrial would deter people from serving on juries. Ms. Sprague told Judge Sullivan that a further inquiry could require the court to examine the statements and actions of the other eleven jurors as well, according to the Boston Globe.

In September, news organizations began reporting on the juror’s answers on the juror questionnaire and on his phone use during deliberations. The firm’s page on juror nondisclosure and misrepresentation explains the rules that apply when a juror gives a false or incomplete answer during jury selection.

The Confidential Juror Questionnaire

Every prospective juror in Massachusetts completes a confidential juror questionnaire that the Office of Jury Commissioner provides. G.L. c. 234A, § 22. The completed questionnaires are not public records. The clerk provides copies to the trial judge and counsel for use during jury selection. Every copy other than the judge’s copy and the clerk’s original must be destroyed as soon as practicable after jury selection ends. G.L. c. 234A, § 23.

The court, the jury commissioner, and the clerk of court may obtain the criminal history records of jurors for the limited purpose of confirming their qualifications for jury service. The persons who receive those records must keep them confidential. G.L. c. 234A, § 33. A juror who wilfully misrepresents a material fact on the questionnaire to avoid or to secure jury service commits a crime. On a conviction for that misrepresentation, the judge may fine the juror up to $2,000. G.L. c. 234A, § 32.

Ms. Clancy’s jury returned no verdict. The defense therefore raises the questionnaire allegations in support of the double jeopardy claim and the request for records, rather than in a motion for a new trial after a verdict.

Contact With Jurors After They Are Discharged

A lawyer may contact a discharged juror without first asking the court’s permission, subject to the limits in Mass. R. Prof. C. 3.5(c). Commonwealth v. Moore, 474 Mass. 541, 547-548 (2016). The lawyer may not contact a juror when the law or a court order prohibits the contact, when the juror has said that the juror does not want to communicate, or when the contact involves misrepresentation, coercion, duress, or harassment. Mass. R. Prof. C. 3.5(c). Before contacting any juror, the lawyer must give opposing counsel five business days’ notice describing the manner of the proposed contact and the substance of the proposed inquiry. Moore, 474 Mass. at 552.

The law permits inquiry into extraneous influences on the jury, such as outside information a juror brought into the deliberations. The law prohibits inquiry into the substance of the deliberations, the jurors’ thought processes, or the reasons for their votes. Moore, 474 Mass. at 548, citing Commonwealth v. Fidler, 377 Mass. 192, 196-198 (1979). The Supreme Judicial Court has called the secrecy of jury deliberations a bedrock of the judicial system. Moore, 474 Mass. at 548. Under those rules, the defense allegation that the holdout juror researched terms related to the trial describes an extraneous influence. The foreperson’s report that the juror refused to apply the reasonable doubt instruction describes the deliberations themselves.

The Jurors’ Names

The list of jurors’ names in a Massachusetts criminal trial is a court record open to the public unless a judge finds good cause to impound it. The court file must contain the list by the end of the trial. Commonwealth v. Fujita, 470 Mass. 484 (2015). Good cause may include a risk of harm to the jurors or to the integrity of their service. Fujita, 470 Mass. 484. Judge Sullivan entered an impoundment order protecting the identities of the jurors in Ms. Clancy’s case, according to Fox News.

The Commonwealth’s Request for a Gag Order

The Commonwealth asked Judge Sullivan to bar the prosecutors, the defense lawyers, and law enforcement from making prejudicial statements to the media while the case is pending, according to the Boston Globe. The Commonwealth argued that public statements by the defense could taint the pool of potential jurors for a second trial, according to the Boston Globe and ABC News.

The Plymouth County District Attorney’s Office filed the motion for a gag order on September 28, 2026. According to the Boston Globe, the proposed order would remain in effect until every posttrial proceeding, including any appeal, has ended. The Commonwealth proposes enforcement through contempt proceedings, fines, or a referral to the Board of Bar Overseers.

At the hearing, Ms. Sprague argued that Mr. Reddington’s comments to the press were inappropriate and could taint the pool of potential jurors for a second trial. She cited his public remark that the holdout juror should “sleep well at night” and his statement that he would try to hire Judge Sullivan after the judge retires, according to the Boston Globe.

The defense argued in its written response that the proposed order would be a prior restraint on speech, according to the Associated Press and the Boston Globe. Laura McConnell, a lawyer for Ms. Clancy, wrote that the harm the Commonwealth feared was speculative because there was no jury and no trial date.

Ms. McConnell’s six-page response argued that the proposed order would infringe the First Amendment rights of Mr. Reddington and Ms. Clancy. The response further argued that the Commonwealth offered no detailed evidence to support the order and that the order addresses only one side’s comments about discharged jurors, according to the Associated Press. At the hearing, Ms. McConnell argued that Mr. Reddington has a right to respond to unsubstantiated and prejudicial public statements about Ms. Clancy.

Rule 3.6 of the Massachusetts Rules of Professional Conduct applies to the lawyers whether or not Judge Sullivan enters a gag order. Rule 3.6 prohibits a lawyer participating in a case from making a statement outside court that the lawyer knows or reasonably should know will be publicly disseminated and will have a substantial likelihood of materially prejudicing a proceeding in that case. Mass. R. Prof. C. 3.6(a).

What Rule 3.6 Permits a Lawyer to Say

Comment 5 to Rule 3.6 lists subjects more likely than not to cause material prejudice in a criminal case. The list includes the character, credibility, reputation, or criminal record of a party or witness, and any opinion as to the guilt or innocence of the defendant. Comment 6 states that criminal jury trials are the proceedings most sensitive to statements made outside the courtroom.

Rule 3.6(b) lists statements a lawyer may make despite Rule 3.6(a). A lawyer may state the claim, offense, or defense involved, information contained in a public record, and the scheduling or result of any step in the case. Under Rule 3.6(c), a lawyer may also make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity that neither the lawyer nor the client initiated. The lawyer must limit the statement to the information necessary to counter that publicity. Ms. McConnell’s argument that Mr. Reddington has a right to answer public statements about Ms. Clancy corresponds to Rule 3.6(c).

The Gentile Decision on Lawyers’ Public Statements

The United States Supreme Court has held that a State may regulate the public statements of lawyers representing clients in pending cases under the substantial likelihood of material prejudice standard. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074-1075 (1991). The Court explained that a State may hold a participating lawyer to a less demanding standard than the standard governing restraints on the press, because the lawyer takes part in the case and the public is likely to receive the lawyer’s statements as especially authoritative. Gentile, 501 U.S. at 1074. The Court described the limits as aimed at two harms. The first harm is comments likely to influence the actual outcome of the trial. The second harm is comments likely to prejudice the pool of potential jurors, even if an untainted jury can ultimately be found. Gentile, 501 U.S. at 1075.

The Massachusetts Standard for an Order Restricting Speech

A court order forbidding speech before the speech occurs is a prior restraint. A judge who enters an order restraining speech must base the order on detailed findings of fact. The findings must identify a compelling interest the restraint will serve and must show that no reasonable, less restrictive alternative exists. Commonwealth v. Barnes, 461 Mass. 644, 652 (2012), citing George W. Prescott Publishing Co. v. Stoughton Division of the District Court Department of the Trial Court, 428 Mass. 309 (1998).

In Shak v. Shak, 484 Mass. 658 (2020), the Supreme Judicial Court set aside orders that barred two divorcing parents from disparaging each other. The court held that a prior restraint is permissible only where the harm expected from the speech is grave, the likelihood of that harm without the restraint is all but certain, and no less restrictive means can reduce the harm.

Neither Barnes nor Shak involved a lawyer in a pending criminal case. Barnes involved the publication of courtroom recordings by a radio station. Shak involved parties to a divorce. Judge Sullivan must apply the Massachusetts prior restraint decisions together with Gentile, which permits more regulation of a participating lawyer’s speech than of speech by the press. In Barnes, the Supreme Judicial Court held that questioning of prospective jurors and cross-examination at a later trial were among the alternatives that protected a defendant’s right to a fair trial when a radio station published recordings of a court proceeding. Barnes, 461 Mass. at 659-660.

A Second Trial and the Next Court Date

Ms. Sprague indicated that the District Attorney’s Office intends to retry Ms. Clancy, according to the Boston Herald and Boston 25 News. Ms. Sprague also told Judge Sullivan that the office has not decided which murder charge the Commonwealth will pursue at a second trial. According to NBC10 Boston and the Boston Herald, the office will decide the charge after Judge Sullivan rules on the pending motions.

“This would be a retrial,” Ms. Sprague told the court, according to ABC News. Plymouth County District Attorney Timothy Cruz said outside the courthouse that his office is reviewing the case and will make a methodical decision, according to the Boston Globe.

Mr. Reddington told Judge Sullivan that the defense wants a trial this spring. Ms. Clancy remains held at a state psychiatric hospital. Judge Sullivan indicated that a second trial could begin in March 2027 and said that he would set a trial date at the November 16 hearing if he denies the motion to dismiss.

Mr. Reddington said that Ms. Clancy should not remain held for two more years, according to the Boston Globe. Ms. Clancy has been held at Tewksbury State Hospital under psychiatric care since 2023. Mr. Reddington also asked Judge Sullivan to remain on the case, according to TMZ. Judge Sullivan said that discussing a trial date does not prevent him from allowing the motion to dismiss, according to Newsweek. He described the November 16 hearing as brief, with no arguments, according to TMZ.

Ms. Clancy can petition a single justice of the Supreme Judicial Court to review the double jeopardy claim before a second trial begins if Judge Sullivan denies the motion to dismiss. A defendant who raises a double jeopardy claim of substantial merit is entitled to review of the claim before retrial, through a petition to a single justice under G.L. c. 211, § 3. Neverson v. Commonwealth, 406 Mass. 174, 175 (1989).

Karen Read used that procedure, as did the petitioner in Ray. Conversely, the Commonwealth may appeal to the Appeals Court if Judge Sullivan allows the motion and dismisses the indictments. Mass. R. Crim. P. 15(a)(1).

The Charges at a Second Trial

The District Attorney’s Office decides whether the Commonwealth asks a second jury to convict Ms. Clancy of murder in the first degree or proceeds only on murder in the second degree. The Commonwealth may retry a defendant on the same indictments after a mistrial declared because the jury could not agree. Troila, 410 Mass. at 206.

The judge sentences a defendant convicted of murder in the first degree for a killing committed as an adult to life imprisonment without eligibility for parole. G.L. c. 265, § 2(a). The judge sentences a defendant convicted of murder in the second degree to life imprisonment and fixes a minimum term of between 15 and 25 years, after which the defendant is eligible for parole. G.L. c. 265, § 2(c), and G.L. c. 279, § 24.

A defendant tried on an indictment for murder in the first degree must be tried by a jury. General Laws c. 263, § 6 permits a defendant to waive a jury only in a criminal case “other than a capital case.” An indictment that charges murder in the first degree makes the case a capital case for that purpose. Commonwealth v. Francis, 450 Mass. 132, 136-137 (2007). The court looks to the charge in the indictment rather than to the definition of a capital case in G.L. c. 278, § 33E, which applies after a conviction. Francis, 450 Mass. at 136-137. The Supreme Judicial Court has held that any change to that rule must come from the Legislature. Commonwealth v. O’Brien, 371 Mass. 605, 607 (1976).

News reports, including CBS Boston, note that Ms. Clancy could ask to be tried by a judge without a jury if the Commonwealth proceeds only on murder in the second degree. Section 6 requires the defendant to sign a written waiver and file it with the clerk before a jury is impanelled. In a trial without a jury, the judge would decide whether the Commonwealth proved beyond a reasonable doubt that Ms. Clancy was criminally responsible.

Criminal Responsibility and Hospitalization After a Verdict

Commitment proceedings under G.L. c. 123, § 16 may begin after a verdict of not guilty by reason of lack of criminal responsibility. Section 16 describes that verdict as a finding of not guilty by reason of mental illness or mental defect. The court that heard the criminal case may order the defendant hospitalized for 40 days for observation and examination. G.L. c. 123, § 16(a). Within 60 days after the verdict, the district attorney, the superintendent of a facility, or the medical director of Bridgewater State Hospital may petition that court to commit the defendant. A first commitment order lasts six months. G.L. c. 123, § 16(b). A court may then order additional commitments of one year each on the findings required by G.L. c. 123, §§ 7 and 8. G.L. c. 123, § 16(c).

The district attorney receives notice of every commitment hearing and has the right to be heard. G.L. c. 123, § 16(d). The superintendent must notify the court and the district attorney before discharging the defendant or before deciding not to seek a further commitment. The district attorney then has 30 days to petition for commitment. The defendant remains at the facility during those 30 days. G.L. c. 123, § 16(e).

Key Takeaways

Judge William Sullivan heard arguments on November 2, 2026, on the defense motion to dismiss the murder charges against Lindsay Clancy on double jeopardy grounds and said that he would decide the motion later.
The defense argued that Judge Sullivan should have questioned the jurors further before he declared the mistrial. The Commonwealth argued that further questioning would have led to judicial coercion of the holdout juror and an intrusion into the jury’s deliberations.
Defense attorney Kevin Reddington alleged that the holdout juror used a cellphone during deliberations and was not truthful about his criminal history during jury selection.
The Commonwealth asked for a gag order barring the prosecutors, the defense lawyers, and law enforcement from making prejudicial statements to the media about the case. The defense called the proposed order a prior restraint on speech.
Prosecutors indicated that the District Attorney’s Office intends to retry Ms. Clancy but has not decided which murder charge to pursue.
Judge Sullivan scheduled a hearing for November 16 and indicated that a second trial could begin in March 2027 if he denies the motion to dismiss.
Attorney Joe Serpa’s assessment is that the double jeopardy motion is unlikely to succeed because Judge Sullivan heard the defense, considered the alternatives, and followed the sequence the Supreme Judicial Court upheld in Read v. Commonwealth.
The Supreme Judicial Court upholds a deadlock mistrial where the judge gave counsel a full opportunity to be heard and carefully considered the alternatives. Under Read v. Commonwealth, the court judges the mistrial on the information the trial judge had at the time.
Massachusetts law permits a judge to discharge a deliberating juror only for a reason personal to that juror, unrelated to the juror’s views of the case or relationships with the other jurors.
A Massachusetts judge may enter an order restraining speech only on detailed findings of a compelling interest and the absence of a reasonable, less restrictive alternative.
A defendant tried on an indictment for murder in the first degree must be tried by a jury.

Related Serpa Law Office Resources

Gunshot Residue Evidence in a Massachusetts Murder Trial: Commonwealth v. Williams

Attorney Joe Serpa — Mon, 19 Oct 2026 19:43:05 GMT

By Attorney Joe Serpa | Georgetown University Law Center

October 19, 2026

On September 22, 2026, the Supreme Judicial Court held that a judge may not let a jury hear an opinion that gunshot residue particles were found on a defendant as evidence that the defendant fired a gun, unless the Commonwealth first proves that the particle count is reliable evidence of having fired a shot. The jury in the case heard that police found one particle on the defendant’s hand and one on his T-shirt, even though the State Police counted both tests as negative. The Commonwealth’s own expert testified that nothing could be drawn from the results. The court vacated the defendant’s first-degree murder conviction and ordered a new trial.

A Suffolk County jury had convicted Keith Williams in 2017 of murder in the first degree, armed assault with intent to murder, assault and battery by means of a dangerous weapon, and carrying a firearm without a license. The charges arose from a shooting at a parade in Dorchester in August 2014. The Supreme Judicial Court vacated all four convictions. The Commonwealth may retry Williams for murder in the first degree. The decision is Commonwealth v. Williams, SJC-12702 (Mass. Sept. 22, 2026).

The Shooting on Blue Hill Avenue

On the morning of August 23, 2014, a crowd gathered on Blue Hill Avenue in Dorchester to watch a parade. Security cameras recorded two groups of young men with a tense encounter at a convenience store. Shortly afterward, a man in the second group pulled a handgun and pointed it toward the first group. A man in the first group then fired at least five bullets toward him. None of the bullets hit the man with the gun or his companion. One bullet killed a woman crossing the street, and another struck a woman sitting on the median in the leg.

No witness identified Williams as the shooter. A witness who lived nearby watched Williams and two companions walk away from the scene, heard one companion tell him to “get rid of it,” and saw Williams dispose of a revolver at a house across the street. Police found a .357 revolver under the porch, and ballistic testing linked it to both victims. Tests of the revolver for DNA and fingerprints were inconclusive. Police stopped and handcuffed Williams and the two companions a short distance away.

The defense at trial was that Williams was not the shooter. Witnesses described the shooter differently, and some of the details did not fit Williams. One defense witness described a shooter whose clothing matched one of the two companions.

The Gunshot Residue Tests

Police collected samples from the hands of all three men at 11:53 A.M., more than three and one half hours after the shooting. Police collected Williams’s T-shirt the next day, and a criminalist collected samples from it thirteen months later. A State Police criminalist examined each sample with a scanning electron microscope. A gunshot residue particle contains three components that are not generally found together in nature. Those components are barium nitrate, lead styphnate, and antimony sulfide.

The State Police and the Federal Bureau of Investigation require three or more particles for a positive test, and a laboratory cannot add up particles found on separate samples. Every test in the case was negative. The criminalist found one particle on one sample from Williams’s hands and one particle on the T-shirt. He found no particles on either companion. The criminalist agreed on cross-examination that there was “nothing to be drawn from” the negative results. He also agreed that the threshold exists in part to account for contamination.

The criminalist testified that gunshot residue particles are resilient and transferable, and that they persist on handcuffs and on surfaces in police cruisers and police stations. Police had handcuffed and transported all three men before collecting the samples.

The Trial Judge Admitted the Particle Counts

Before trial, the Commonwealth asked to present the expert’s testimony that one particle was found on each of the two samples from Williams. The Commonwealth acknowledged that the expert would testify that the results were negative. The Commonwealth cited Commonwealth v. Johnson, 463 Mass. 95, 108-109 (2012), and planned to argue that the jury could infer from the particles that Williams was the shooter.

Williams opposed the request. He argued that the Commonwealth was using a negative result as if it were positive, and that the particles could have come from contamination. He submitted the laboratory report on the T-shirt, which stated that no conclusions could be drawn from the results. He also submitted a Boston police policy stating that it was not yet possible to assess scientifically the significance of a gunshot residue identification. The judge allowed the testimony, ruled that Williams’s objections went to the weight of the evidence, and left it to the jury to decide what inferences to draw.

The Commonwealth then relied on the particles in its opening statement and its closing argument. In closing, the prosecutor told the jury that the three-particle threshold was “not [their] protocol” but a State Police standard, and that the jury could interpret the evidence however it wanted.

The Reliability Holding

The Supreme Judicial Court held that the judge should not have admitted the testimony as evidence that Williams was the shooter. Expert testimony is admissible under the Daubert-Lanigan standard only when the party offering it proves that it is reliable. The Commonwealth had to prove that the method is reliable and that the expert applied it reliably to the facts of this case. Commonwealth v. Hinds, 487 Mass. 212, 220 (2021); Commonwealth v. Davis, 487 Mass. 448, 453 (2021).

The court held that the Commonwealth offered no evidence that detecting one particle in each of two negative results reliably showed that Williams fired the gun. The only evidence on the point was its own expert’s statement that nothing could be drawn from the results. The Commonwealth also offered no measure of reliability for the particle counts. The Commonwealth argued that the jury could draw the inference and that Williams’s objections went to weight, but the court held that the Commonwealth had to lay the foundation first.

The Court Limits Johnson

The Commonwealth relied on Johnson, in which the Supreme Judicial Court said that the jury could infer a greater likelihood of guilt from two particles found on a sweatshirt. The court explained that in Johnson the defendant did not object to the testimony, and that the court had not decided whether particle counts below the positive threshold are reliable evidence that a person fired a gun. The court disavowed any suggestion in Johnson that such counts support the inference by themselves.

The court did not hold that a below-threshold particle count is always inadmissible. Admissibility depends on the foundation the Commonwealth lays and the inference it asks the jury to draw. The court contrasted Commonwealth v. Linton, 483 Mass. 227, 241-242 (2019), in which an expert showed that a DNA result below a minimum threshold still provided relevant data. The Commonwealth in Williams made no comparable showing.

The Error Required a New Trial

The Supreme Judicial Court held that the error was prejudicial. The prosecutor used the particles in both the opening statement and the closing argument. The prosecutor also used them to answer the defense argument that contamination explained the particles. Both companions had also been handcuffed and transported, yet no particles were found on them.

The Commonwealth’s other evidence of identity was not overwhelming. Williams was seen with the companions seconds after the shooting and disposing of the revolver, and one witness described the shooter as the largest of the three men. However, no witness or forensic test identified him as the shooter. The strongest description for the Commonwealth also included details that did not fit him. Another witness described a shooter who matched a companion’s appearance. The court could not conclude that the error had little or no effect on the jury, so it ordered a new trial on the murder, armed assault, and assault and battery charges.

Retrial for First-Degree Murder Remains Possible

Williams also argued that the evidence did not prove deliberate premeditation, which would have barred a retrial for first-degree murder. The court rejected the argument. Deliberate premeditation can form in a few seconds, and the jury could infer from the events that Williams decided to kill the man with the gun before he fired at least five rounds toward him. The Commonwealth may therefore retry him for first-degree murder.

The court separately vacated the conviction for carrying a firearm without a license. The judge had not instructed the jury that the Commonwealth must prove the defendant had no valid license. Commonwealth v. Carleton, 497 Mass. 11, 13 (2026).

Gunshot Residue Evidence After Williams

When the Commonwealth offers gunshot residue evidence that falls short of a positive result, the defense can ask the judge to exclude it unless the Commonwealth proves, before the jury hears it, that it reliably shows what the Commonwealth says it shows. The defense can ask for a hearing under the Daubert-Lanigan standard, often with a defense expert, and can use the laboratory’s own reports, its protocols, and the expert’s own statements about the threshold.

The decision also shows what a defense lawyer can ask in these cases. When did the police collect the samples? Where was the person held and transported before collection? Did the other people tested have the same contact with handcuffs and cruisers? The expert in Williams agreed that particles persist on those surfaces. The answers can support a motion to exclude the evidence and can support cross-examination if the judge admits it.

Serpa Law Office defends firearms charges in the Boston Municipal Court, the District Court, and the Superior Court. Gunshot residue testing is one of several kinds of forensic evidence that can arise in a firearms case.

Key Takeaways

In Commonwealth v. Williams, SJC-12702 (Mass. Sept. 22, 2026), the Supreme Judicial Court vacated a first-degree murder conviction because the jury heard gunshot residue particle counts from negative test results.
The Commonwealth must prove that expert testimony is reliable before the jury hears it, including that the method was reliably applied to the facts of the case.
A laboratory’s own positive threshold, and its expert’s statement that nothing can be drawn from a negative result, can support a motion to exclude particle counts below the threshold.
The court limited Commonwealth v. Johnson, 463 Mass. 95 (2012), and held that below-threshold counts are not automatically admissible as evidence that a person fired a gun.
The court did not bar retrial for first-degree murder, and it separately vacated the license conviction under Commonwealth v. Carleton, 497 Mass. 11, 13 (2026).

Related Serpa Law Office resources

The Effort to Expose Cornell’s Jane Doe: Doxing, Misogyny, and the Law

Attorney Joe Serpa — Sun, 18 Oct 2026 20:40:24 GMT

By Attorney Joe Serpa | Georgetown University Law Center

This post is for general informational purposes only and is not legal advice. It is based on the court’s October 16, 2026 decision in Jane Doe’s civil case, the statutes and decisions cited below, and published news reporting by Reuters, CNN, The Washington Post, Courthouse News and ABC News. Jane Doe’s allegations have not been proved in any court. The men she sued deny them. No criminal charge had been filed as of October 19, 2026.

Jane Doe, a former Cornell University student, sued Cornell University, the Chi Phi fraternity, seven fraternity members, and others in New York in September 2026. She alleges that the seven men sexually assaulted her at the fraternity house in October 2024 after giving her alcohol and ketamine. The men deny the allegations. No court has decided them.

Within days of the filing, strangers on social media began trying to learn her name and publish it. One commentator posted a name and deleted it. Others named the wrong women. Someone leaked her phone number and her family’s address. On the night of October 6, police officers arrived at her family’s home with guns drawn because a caller had falsely reported that someone inside was killing people.

The firm examined how the men and the institutions at Cornell failed Jane Doe in an earlier post. This post is about the people who have tried to expose her since she sued. The campaign to identify her is misogyny, and it deserves condemnation on its own. Some of the conduct in that campaign is also a crime or a civil wrong. Some of that conduct is speech the First Amendment protects. A published name, a leaked address, a threat, and a false call to the police are four different acts under the law, and this post explains how a court treats each one.

Jane Doe’s lawsuit is pending in the Supreme Court of the State of New York, New York County, which is New York’s trial court. New York law governs her case. The Massachusetts statutes and decisions discussed below show how a Massachusetts court would treat the same conduct. Nothing in this post predicts what a New York court or prosecutor will do about any commentator.

What the Reporting Shows

Reuters reported on October 3 and 4 that a political commentator had asked his followers earlier that week to name Jane Doe, had posted a name early on October 2, and had deleted the post within hours, saying his point had been made. Reuters could not verify the name. The commentator described publishing it as journalism protected by the First Amendment and said he sympathized with the men over the harassment they had faced. He also told Reuters that he did not want anyone to threaten or harass her.

The Washington Post reported on October 17 that posts on X claiming to identify Jane Doe drew more than 87 million views over two weeks. The first posts appeared on September 29, the day after the Tompkins County District Attorney reopened the criminal investigation, and the posts peaked around the weekend of October 3. X’s chatbot, Grok, repeated the purported name in replies to users at least 300 times. Facebook, Instagram and TikTok blocked searches for the name. Her lawyer, Thomas Giuffra, said that users had named at least three different women as Jane Doe. Young men who share a name with one of the defendants were harassed as well.

CNN reported on October 8 what followed. On October 5, Jane Doe received a text message containing three gun emojis. Callers demanded that she drop the lawsuit. On the night of October 6, someone called the police and reported that people were being killed inside her family’s home. An officer who believed he was responding to an active shooter stopped a car backing out of the driveway. The car was carrying her boyfriend and her brother. Her lawyer said that officers threw her boyfriend to the ground and pointed guns at her father. Her father told the police that his daughter is Jane Doe and that the family was being threatened by people they did not know. Her phone rang without stopping while the officers were still in the house. The next day she taped paper over the windows. The police and the FBI are investigating the false call. The judge sealed the complaint and other filings in the case because of the doxing.

The Campaign to Expose Jane Doe Is Misogyny

A commentator who asks a large audience to find and name a woman who reports a rape has chosen whose life will be exposed. He controls nothing that follows. Strangers decide whether to threaten her, whether to leak her address, and whether to call the police to her house. Other strangers guess wrong, and women who have nothing to do with the case receive the same abuse.

Sexualized degradation of a woman who reports a rape is misogyny. She must defend her account while strangers pick over her body, her sexual history, her family and her private life. A public debate about the evidence in her lawsuit does not require that degradation. The men she sued are entitled to a fair trial and to protection from threats. She is entitled to the same fair hearing and the same protection. Respect for the men’s rights does not require cruelty toward the woman who asked a court to hear her claims.

The commentator who posted her name said he did so because her lawsuit named seven men. The lawsuit named the men in a court filing, where they can answer it with lawyers, evidence and a judge. He exposed her to a crowd. Naming a defendant in a complaint and exposing a plaintiff to a crowd are different acts, and his excuse has put a woman, her family, and several uninvolved women in danger.

Doxing is vile. Doxing is not always a crime. The remaining sections explain what the law does about it, and what the law leaves to decency.

Confrontation Rights Belong to a Defendant in a Courtroom

Some commentators have defended the effort to name Jane Doe as a form of confrontation. The Sixth Amendment gives a criminal defendant the right to confront the witnesses against him at trial. The United States Supreme Court explained in Crawford v. Washington, 541 U.S. 36, 61-62 (2004), that the right guarantees adversarial testing through cross-examination in court. The right belongs to the accused. He exercises it through his lawyer in a courtroom. Spectators, commentators and strangers online have no confrontation right against anyone.

No one has been charged with a crime in the Cornell case. The Attorney General of New York is investigating. Jane Doe’s case is a civil lawsuit, and the seven men she sued, along with their lawyers, know who she is. The pseudonym shields her from the public, not from the people defending the lawsuit. The defendants have full discovery rights. New York law requires disclosure of all information material and necessary to the case (CPLR 3101), lets each side examine and cross-examine witnesses at depositions (CPLR 3113(c)), and lets the judge limit discovery to prevent unreasonable annoyance, embarrassment or prejudice (CPLR 3103). The defendants lose nothing when the public does not know her name.

A commentator who posts her name online is not confronting a witness. He is exposing a woman to strangers. The firm’s page on cross-examination in Massachusetts criminal trials explains what confrontation is in a courtroom. Whether a particular publication has First Amendment protection is a separate question, addressed below.

The Judge Declined to Gag the Lawyers

On October 16, 2026, Justice Phaedra Perry-Bond declined to sign an order that one of the seven men proposed in Jane Doe v. Cornell University, Inc., Index No. 161704/2026. The proposed order would have barred the parties and their lawyers from making statements about the case outside court, including to the media, and from disclosing or republishing certain statements and documents. The judge called the application a possible “side show” meant to distract from the merits of the claims and defenses. She found that the statements the defendant complained of, made by Jane Doe’s lawyer, were expressions of the lawyer’s opinion, that the defendants can answer them, and that a judge can instruct a jury to disregard publicity. She also found the proposed order too broad. She rebuked the defendant’s lawyers for filing another lawyer’s email as an exhibit, ordered the exhibit sealed, gave the parties until October 20 to file redacted papers, warned all counsel against “mudslinging” and possible sanctions, and urged every party to cooperate on safeguards against further doxing and harassment.

The ruling follows settled New York law. A gag order is a prior restraint on speech, and a party who asks for one must prove that publicity poses a serious threat to a fair trial and that nothing less restrictive will protect the trial. The Appellate Division reversed a civil gag order on the parties and their lawyers in Cleveland v. Perry, 175 A.D.3d 1017 (4th Dep’t 2019). The Appellate Division also vacated an order restricting a litigant’s letters to his condominium’s owners in Ash v. Board of Managers of the 155 Condominium, 44 A.D.3d 324 (1st Dep’t 2007), because the defendants had not shown a clear and present threat to the administration of justice. A federal judge likewise denied a gag order on the parties, lawyers and witnesses in Andrea Constand’s civil sexual assault case against Bill Cosby. Constand v. Cosby, 229 F.R.D. 472 (E.D. Pa. 2005). Lawyers in the Cornell case are bound by Rule 3.6 of the New York Rules of Professional Conduct, 22 NYCRR § 1200.0, which prohibits a lawyer in a pending matter from making a public statement that the lawyer knows or reasonably should know will have a substantial likelihood of materially prejudicing the proceeding. Justice Perry-Bond wrote that lawyers bound by that rule should not need a gag order to litigate the case properly.

Two points follow for the people outside the case. First, a gag order binds the parties and their lawyers. A nonparty is bound by a court’s injunction only when the nonparty knows of the order and acts as a party’s agent or in collusion with a party. Ricatto v. Ricatto, 4 A.D.3d 514, 515 (2d Dep’t 2004). The judge’s sealing orders restrict access to court records. They do not order the public to stop discussing the case. Second, the refusal to gag the lawyers gives no commentator a right to expose Jane Doe. Justice Perry-Bond declined the gag order and, in the same decision, urged the parties to protect Jane Doe from doxing.

Truthful Reporting and the First Amendment

The United States Supreme Court has twice protected the publication of a rape victim’s name. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975), the Court held that Georgia could not punish a television station for broadcasting the name of a rape victim that a reporter had copied from court records open to the public. In The Florida Star v. B.J.F., 491 U.S. 524, 541 (1989), the Court reversed a damages award against a newspaper that had printed a rape victim’s name from a police report, and held that a state may punish the publication of truthful, lawfully obtained information only under a law narrowly tailored to a state interest of the highest order.

Those decisions mean that a court cannot treat the publication of a sexual assault complainant’s name as a crime in every case. They do not protect every way of obtaining a name, every act that accompanies the publication, or the threats that follow. A court deciding whether a particular commentator broke the law asks how he obtained the information, what he published with it, what he asked his audience to do, and which statute applies.

The constitutional right to publish also does not answer the question of decency. A publisher may have a legal right to print a name and every reason to withhold the name. A commentator can report on Cornell’s failures and argue about the evidence in the lawsuit without naming Jane Doe, publishing her address, or sending an audience to her family’s door.

New York Law on a Victim’s Identity, Threats, Stalking, and False Reports

New York Civil Rights Law § 50-b requires public officers and employees to keep confidential the records that identify the victim of a sex offense, subject to exceptions, and allows a court to restrict further disclosure by the people authorized to receive those records. The statute binds officials. It does not prohibit a private person from publishing a name he learned from another source.

New York Penal Law § 240.30 criminalizes a communication that threatens physical harm when the sender intends to harass, annoy, threaten or alarm the recipient and knows or reasonably should know that the communication will cause reasonable fear of harm. A prosecution for a threat must also satisfy the First Amendment. In Counterman v. Colorado, 600 U.S. 66 (2023), the Supreme Court held that the prosecution must prove at least that the speaker consciously disregarded a substantial risk that the communication would be understood as threatening violence. A prosecutor who charges the person who sent Jane Doe three gun emojis must prove that state of mind.

New York Penal Law § 120.45 criminalizes stalking in the fourth degree. The prosecution must prove an intentional course of conduct directed at a specific person, undertaken without a legitimate purpose, that the defendant knows or reasonably should know is likely to cause reasonable fear of material harm to that person’s physical health, safety or property, or that causes material harm to the person’s mental or emotional health by following, calling or contacting the person after the person has clearly told the defendant to stop. A single post naming Jane Doe is not a course of conduct. Repeated calls to her phone after she asked the caller to stop can be a course of conduct.

A person who knowingly makes a false report of a crime or emergency to the police commits a crime under New York Penal Law § 240.50. The police and the FBI are investigating the caller who sent armed officers to Jane Doe’s family home.

How Massachusetts Law Treats the Same Conduct

Massachusetts gives every person a statutory right against unreasonable, substantial or serious interference with privacy under G.L. c. 214, § 1B, and the Superior Court may enforce that right in equity and award damages. The Supreme Judicial Court confirmed in Polay v. McMahon, 468 Mass. 379, 382 (2014), that a plaintiff must prove an interference that is both unreasonable and either substantial or serious. A judge weighing a claim under § 1B asks what was disclosed, how private it was, and how the defendant obtained it. Publishing a woman’s home address and phone number so that strangers can reach her is a far more serious interference than repeating a name. New York recognizes no comparable claim. The New York Court of Appeals declined to recognize a common-law right of privacy in Howell v. New York Post Co., 81 N.Y.2d 115, 123 (1993), so a Massachusetts privacy claim has no counterpart in Jane Doe’s case.

Massachusetts criminalizes a willful and malicious pattern of conduct or series of acts, directed at a specific person over a period of time, that seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress. G.L. c. 265, § 43A(a). A person convicted of criminal harassment for a first offense faces up to two and one-half years in a house of correction, a fine of up to $5,000, or both. The Supreme Judicial Court upheld criminal harassment convictions in Commonwealth v. Johnson, 470 Mass. 300, 309-313 (2014), where the defendants posted false online advertisements that sent strangers to the victims’ home. The court held that the defendants’ speech was an integral part of their criminal conduct and that harassment carried out through third parties is still harassment by the person who set it in motion. In Commonwealth v. Bigelow, 475 Mass. 554, 563-566 (2016), the court reversed a conviction based on letters criticizing a town official, because the letters were political speech. The court distinguished Johnson, where the defendants had used speech to recruit others to commit the harassment. The firm’s post on First Amendment limits in Massachusetts criminal harassment and 258E cases explains the line between the two decisions. A judge or jury judges a commentator who invites a crowd to find a woman, and the strangers who then call her, on the pattern, the purpose and the content of what each of them did. Recruiting strangers to harass a person is the conduct the court punished in Johnson. A single truthful statement is not criminal harassment.

A Massachusetts woman in Jane Doe’s position could also ask a court for a harassment prevention order under G.L. c. 258E against any person she can identify. A judge issues the order when the plaintiff proves three or more acts of willful and malicious conduct aimed at her, committed with the intent to cause fear, intimidation, abuse or damage to property, that did cause fear, intimidation, abuse or damage to property. The firm’s page on how a plaintiff gets a 258E harassment prevention order explains the hearing and the proof. Anonymous accounts are the practical obstacle, and the firm’s post on proving who sent anonymous emails in a Massachusetts stalking case explains how prosecutors trace a message to its sender.

A false report of a crime to the police is a crime in Massachusetts under G.L. c. 269, § 13A. A person convicted of it faces a fine of $100 to $500, imprisonment for up to one year, or both.

What a Person Who Is Being Threatened Should Do

A person who receives threats should keep the complete messages, the original files, the dates and times, the account names and the links, and should call the police at once when a threat describes violence. Lawyers and investigators need proof of who did what and when. Reposting a victim’s name or address, even to condemn the person who published it, exposes the victim again. The firm’s text message and phone evidence FAQs explain how a court decides who wrote a message and what it meant.

Jane Doe’s allegations deserve a fair examination in court. Filing a lawsuit should not cost her safety, her family’s safety, or her privacy. People can argue about the evidence in her case without helping strangers find her. The law punishes the threats, the false police report, and any pattern of harassment. The rest is a question of decency, and the people who tried to expose her have none.

Key Takeaways

Jane Doe sued Cornell University, the Chi Phi fraternity, seven fraternity members, and others in September 2026 under a pseudonym. Since then, strangers have posted a purported name, named at least three other women as Jane Doe, leaked her family’s address, threatened her, and sent armed police to her family’s home with a false report. The men deny her allegations, and no court has decided them.
The Sixth Amendment right of confrontation belongs to a criminal defendant at trial. Crawford v. Washington, 541 U.S. 36 (2004). The men Jane Doe sued know who she is and have full civil discovery rights. No spectator or commentator has a right to confront her.
On October 16, 2026, Justice Phaedra Perry-Bond declined to gag the lawyers and parties, called the application a possible “side show,” and urged the parties to cooperate against doxing. New York treats a gag order as a prior restraint that requires proof of a serious threat to a fair trial. Cleveland v. Perry, 175 A.D.3d 1017 (4th Dep’t 2019). A court order binds a nonparty only when the nonparty acts as a party’s agent or in collusion with a party. Ricatto v. Ricatto, 4 A.D.3d 514 (2d Dep’t 2004).
The First Amendment protects the publication of a rape victim’s name obtained from public records or other lawful sources. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). The Florida Star v. B.J.F., 491 U.S. 524 (1989). It does not protect threats, a false report to the police, or a pattern of harassment.
New York criminalizes threatening communications (Penal Law § 240.30), stalking (§ 120.45), and false reports to the police (§ 240.50). A threat prosecution must prove at least recklessness about the threatening character of the message. Counterman v. Colorado, 600 U.S. 66 (2023).
Massachusetts criminalizes a pattern of harassment under G.L. c. 265, § 43A, including harassment carried out by recruiting strangers. Commonwealth v. Johnson, 470 Mass. 300 (2014). A victim may seek a 258E harassment prevention order against an identified harasser. A privacy claim under G.L. c. 214, § 1B requires an unreasonable and substantial or serious interference. Polay v. McMahon, 468 Mass. 379 (2014).
A person who receives threats should preserve every message and call the police when a threat describes violence. No one should repost a victim’s name or address, even to condemn the people who published it.

Related Serpa Law Office resources

When the Police Protect and Serve Only Themselves: Sandra Birchmore and the Federal Trial of Matthew Farwell

Attorney Joe Serpa — Sat, 17 Oct 2026 01:27:13 GMT

By Attorney Joe Serpa | Georgetown University Law Center

This post is for general informational purposes only and is not legal advice. It is based on the superseding indictment, the public rulings of the United States District Court for the District of Massachusetts, the Stoughton Police Department’s public statements about its internal affairs investigation, and published news reporting on the trial. Matthew Farwell has pleaded not guilty and is presumed innocent. An indictment is an accusation and not evidence. William Farwell and Robert Devine have not been charged with any crime and have denied wrongdoing. Reading this post does not create an attorney-client relationship. This may constitute attorney advertising.

Update, November 10, 2026: The jury found Mr. Farwell guilty on both counts. Our post on the verdict explains the evidence, the elements of each count and how the jury likely reached its verdict.

Sandra Birchmore was 23 years old and eight to ten weeks pregnant when she died in her apartment in Canton on February 1, 2021. She worked as an instructional assistant at a school. She had told her friends for years that she wanted to be a mother, and she had told the man she believed was the father that she was keeping the baby.

Police found her body three days later, on February 4, 2021, with a duffel bag strap around her neck tied to a closet door handle. The State Police detectives assigned to the Norfolk County District Attorney’s Office and the Office of the Chief Medical Examiner ruled her death a suicide.

Three and a half years later, on August 28, 2024, FBI agents arrested Matthew Farwell, a former Stoughton police detective, in Revere. A federal grand jury had charged him with killing Ms. Birchmore to keep her from reporting that he had been having sex with her since she was 15 years old.

His trial is now under way in the Moakley Federal Courthouse in Boston before Chief Judge Denise J. Casper of the United States District Court. The lawyers delivered their opening statements on October 9, 2026. Testimony began on October 13, and the trial is expected to last about five weeks.

Mr. Farwell has pleaded not guilty. His lawyer told the jury that he had an affair with Ms. Birchmore, that he made regrettable mistakes, and that she took her own life after he ended the relationship.

This is the first in a series of posts on the trial. It describes who Sandra Birchmore was, the three Stoughton police officers who, according to the department’s own investigation, had sexual relationships with her, the telephone call a friend made to the Stoughton police twelve days before she died, the investigation that closed her death as a suicide, the federal charges that reopened it, and what the jury must decide.

It is written from her side. Attorney Serpa’s view is that the men who were sworn to protect her failed her while she was alive, and that the investigators who were supposed to speak for her after her death failed her a second time.

Sandra Birchmore

Sandra Birchmore grew up in Stoughton and admired police officers from the time she was a child. She applied to join the Stoughton Police Explorers in March 2010, when she was 12 years old. The Explorers was a program the police department ran to teach local teenagers about careers in law enforcement. She stayed in the program until about 2016.

The officers who ran the program were her instructors and her mentors. A Stoughton police sergeant testified at the trial that she was impressionable and looked up to the police.

By 2020 she was living alone in an apartment in Canton and working as an instructional assistant at a school. Her friends testified that she talked constantly about wanting to be a mother. One friend called her phone her third hand because she was never without it.

Sandra spent Thanksgiving and Christmas of 2020 alone. She learned in December 2020 that she was pregnant. She believed that Mr. Farwell was the father, and she told him so. She was eight to ten weeks pregnant with a boy when she died.

The Three Stoughton Officers

Matthew Farwell was a volunteer with the Explorers before the Stoughton Police Department hired him in March 2012, and he became an instructor in the program when he joined the department.

In September 2022, after an 18-month internal affairs investigation, Stoughton Police Chief Donna McNamara announced that three officers of her department had sexual relationships with Ms. Birchmore. According to the department’s findings, Mr. Farwell’s sexual relationship with her began in 2013, when she was 15 and he was 27.

His twin brother, William Farwell, who was also a Stoughton officer, and Robert Devine, a former deputy chief who had run the Explorers program when the Farwell brothers were themselves teenage participants, had sexual relationships with her when she was an adult.

All three men resigned. Chief McNamara said that they had violated their oaths of office and should never again have the privilege of serving any community as police officers. She said the department’s investigation found that the three men misled the investigators who looked into Ms. Birchmore’s death.

She asked the Massachusetts Peace Officer Standards and Training Commission to decertify all three. Mr. Farwell has been decertified and is barred from police work in Massachusetts. The department shut down the Explorers program in 2022. Ms. Birchmore’s estate has sued Matthew Farwell, William Farwell and Robert Devine for wrongful death.

The federal grand jury’s allegations go further than the department’s findings. The superseding indictment alleges that Mr. Farwell had sexual intercourse and other sex acts with Ms. Birchmore before she turned 16 and continued until early 2021.

It alleges that he had sex with her during shifts when the Town of Stoughton was paying him to work as a police officer and that he concealed that conduct from the department. Prosecutors told the jury that investigators recovered about 40,000 messages between the two of them from her devices, and that the relationship was built on secrecy and control.

In Massachusetts, sexual intercourse with a child under 16 is rape of a child under G.L. c. 265, § 23. The child’s consent is not a defense. A person convicted under § 23 faces imprisonment in state prison for life or for any term of years. The Commonwealth may indict a person for rape of a child at any time after the offense. G.L. c. 277, § 63.

The Norfolk County District Attorney’s Office received the Stoughton Police Department’s findings in 2022. No Massachusetts prosecutor has charged Mr. Farwell with rape of a child or with any other crime.

The Pregnancy and the Call to the Stoughton Police

Ms. Birchmore told Mr. Farwell in December 2020 that she was pregnant and that he was the father. According to court papers filed by prosecutors, she told him that she was keeping the baby and that the birth certificate was going to be signed, and he answered that she was the worst person on the face of the earth.

Over the following weeks she sent him messages about her due date, her ultrasounds and her doctor’s appointments. A friend testified at the trial that Ms. Birchmore said Mr. Farwell shoved her to the ground when she asked whether he would sign the birth certificate, and that he refused because, he said, the child was not his.

On January 20, 2021, a friend of Ms. Birchmore’s called the Stoughton Police Department and told a department employee that Mr. Farwell had been having sex with her. The friend did the right thing. She reported the officer to his own department.

According to the indictment, a department employee then told Mr. Farwell about the call. Prosecutors told the jury that Mr. Farwell decided to kill Ms. Birchmore after he learned of the call. Twelve days later she was dead.

DNA testing after her death showed that Mr. Farwell was not the biological father of the child. The indictment does not allege that he was. It alleges that she told him he was. The federal charge depends on what he intended when he went to her apartment, not on the paternity of the child.

February 1, 2021

Mr. Farwell asked to visit Ms. Birchmore on the evening of February 1, 2021. Surveillance video from her building shows him walking into the lobby that evening and leaving about 30 minutes later.

Minutes before he left, her phone stopped moving. It stayed where it was until the battery died. Police found her body three days later. There was no suicide note.

The grand jury alleges that Mr. Farwell strangled her and then arranged her apartment to make her death look like a suicide. The defense says that he went there to end the relationship, told her the baby was not his, and left her alive.

The Investigation That Called Her Death a Suicide

State Police detectives assigned to the Norfolk County District Attorney’s Office and Canton police officers investigated the death. Trooper Matthew Dunne testified that he interviewed Mr. Farwell in a parking lot soon after the death and that Mr. Farwell admitted going to the apartment that night.

Mr. Farwell told investigators that the affair began when Ms. Birchmore was 22 and lasted less than a year. Trooper Dunne testified that he did not treat the death as suspicious. The Office of the Chief Medical Examiner ruled the manner of death a suicide.

In 2022 the Norfolk County District Attorney’s Office said that its investigation found no evidence of foul play. Chief McNamara testified that she first saw the lobby video of Mr. Farwell when it was published online.

The people who loved Ms. Birchmore never accepted the ruling. Her family said that she was not suicidal and never believed that she killed herself. A friend testified that she went to the police after the death and urged them to investigate Mr. Farwell. Chief McNamara said in 2022 that her department’s investigation was not a death investigation, but that she had come to believe Ms. Birchmore’s death was probably not a suicide and that Mr. Farwell was probably responsible.

Federal investigators took up the case in 2024. A medical expert consulted by federal prosecutors found that Ms. Birchmore’s injuries were not consistent with suicide. In April 2026 the Office of the Chief Medical Examiner withdrew its suicide finding and changed the manner of death to undetermined.

Why the Case Is in Federal Court

The Norfolk County District Attorney’s Office prosecutes murder in Norfolk County. The office presents the case to a grand jury and tries the indictment in Norfolk Superior Court. The office accepted the suicide ruling and brought no case.

The United States Attorney’s Office charged Mr. Farwell instead, under a federal statute that makes it a crime to kill a person in order to stop that person from reporting a federal crime. Massachusetts has its own witness intimidation statute, G.L. c. 268, § 13B, and its own strangulation statute, G.L. c. 265, § 15D. The Commonwealth has used neither.

Count One charges Mr. Farwell under 18 U.S.C. § 1512(a)(1)(C) with killing a witness or victim. The jury must find beyond a reasonable doubt that he killed Ms. Birchmore with malice aforethought, which is the state of mind required for murder, and with the intent to prevent her, or anyone else, from telling a law enforcement officer about the commission or possible commission of a federal offense.

The indictment names three federal offenses that it alleges he wanted to hide. The first is deprivation of rights under color of law, 18 U.S.C. § 242, which punishes a police officer who uses his official position to violate a person’s constitutional rights. The second is coercion and enticement, 18 U.S.C. § 2422(b), which punishes an adult who uses a phone or the internet to persuade a child under 18 to engage in sexual activity that is a crime. The third is wire fraud, 18 U.S.C. § 1343, based on the allegation that he collected his police pay for hours he spent with her and concealed that from the department.

The statute requires the government to prove a federal connection. The Supreme Court held in Fowler v. United States, 563 U.S. 668 (2011), that where a defendant kills to prevent communication with law enforcement generally, the government must show a reasonable likelihood that at least one relevant communication would have been made to a federal officer. Before trial, Judge Casper denied Mr. Farwell’s motion to dismiss the indictment, including his argument that the indictment failed to allege a federal connection.

Count Two, added by a superseding indictment on October 28, 2025, charges Mr. Farwell under the Unborn Victims of Violence Act, 18 U.S.C. § 1841, with causing the death of the child in utero during the killing. The statute does not require the government to prove that he knew she was pregnant.

If the jury convicts Mr. Farwell on either count, the judge must sentence him to life in prison. On January 20, 2026, the Department of Justice notified the court that it would not seek the death penalty. Mr. Farwell has been held without bail since his arrest, at a detention facility in Rhode Island. On October 1, 2026, Judge Casper denied his motion to move the trial to Rhode Island.

What the Jury Must Decide

The central dispute at trial is how Sandra Birchmore died. The government says Mr. Farwell strangled her. The defense says she hanged herself. Judge Casper ruled in September 2026 that the government’s medical experts may testify that she was strangled, that the defense may present evidence of her mental health history, and that her journals, text messages and social media posts are admissible.

Assistant United States Attorney Torey Cummings told the jury that Mr. Farwell first had sex with Ms. Birchmore when she was 15 and he was 27, that he used her admiration for police officers to control her for the rest of her life, and that he killed her after her friend’s call to the police department, because he feared that she would expose him.

She said that Ms. Birchmore held information that could end his career and his freedom, and that he ended her life first. She told the jury that the government’s medical witnesses will testify that Ms. Birchmore’s injuries are far more consistent with homicide than with suicide, and that Mr. Farwell counted on everyone who saw a vulnerable young woman tied to a door handle to assume that she had killed herself.

Defense attorney Kimberly Stevens told the jury that Mr. Farwell had an affair with Ms. Birchmore and made regrettable mistakes, but did not kill her. She said that he went to the apartment that night to end the relationship and told her the baby was not his, and that Ms. Birchmore, alone, with a few dollars in her bank account, and abandoned by the man she loved, took her own life.

She told the jury that no forensic evidence of Mr. Farwell was found under Ms. Birchmore’s fingernails, that FBI meeting notes recorded that federal examiners at first saw no evidence contradicting the suicide finding, and that Ms. Birchmore had attempted suicide once as a young teenager.

The jury will decide one question, whether the government has proved beyond a reasonable doubt that Mr. Farwell killed Ms. Birchmore to silence her. The question of what the adults around her owed her is different, and the answer is already in the public record.

The Stoughton Police Department’s own investigation found that a 27-year-old officer who was her instructor began a sexual relationship with her when she was 15, and that two more officers of the same department had sexual relationships with her when she was an adult.

A friend reported the relationship to the police. Someone at the department then told the officer. Police found Ms. Birchmore dead three days after that officer visited her apartment. The state investigators accepted that she had killed herself, and the Commonwealth closed the case.

Those facts are established whatever the jury decides about the night of February 1, 2021. No Massachusetts prosecutor has charged anyone for any of them.

The Trial Schedule and What Comes Next

Jury selection began on October 6, 2026, from a pool of more than 400 prospective jurors who completed questionnaires. The lawyers delivered their opening statements on October 9. Testimony began on October 13 and is expected to continue into November. Federal courts do not allow cameras, so there is no video of the trial.

The witness lists include William Farwell. Later posts will cover the medical testimony on how Ms. Birchmore died, the cross-examination of the investigators who ruled her death a suicide, and the verdict.

Key Takeaways

Sandra Birchmore was 23 years old and eight to ten weeks pregnant when she died in Canton on February 1, 2021. State investigators and the medical examiner ruled her death a suicide. In April 2026 the medical examiner changed the manner of death to undetermined.
The Stoughton Police Department’s internal investigation found in 2022 that three of its officers had sexual relationships with Ms. Birchmore, whom they met through the department’s Explorers program when she was 12, and that Matthew Farwell’s relationship with her began when she was 15 and he was 27. All three resigned. No Massachusetts prosecutor has charged any of them.
Twelve days before she died, a friend reported the relationship to the Stoughton police. The indictment alleges that a department employee told Mr. Farwell about the call.
A federal grand jury charged Matthew Farwell with killing Ms. Birchmore to prevent her from reporting federal crimes, 18 U.S.C. § 1512(a)(1)(C), and with causing the death of her unborn child, 18 U.S.C. § 1841. If the jury convicts him on either count, the judge must sentence him to life in prison. The government is not seeking the death penalty.
The trial before Chief Judge Denise J. Casper began with opening statements on October 9, 2026, and is expected to last about five weeks. The central dispute is whether Ms. Birchmore was strangled or died by suicide.
Mr. Farwell has pleaded not guilty. His lawyer concedes the affair and denies the killing.

Proving Who Sent Anonymous Emails in a Massachusetts Stalking Case: Commonwealth v. Hayes

Attorney Joe Serpa — Fri, 16 Oct 2026 14:57:08 GMT

By Attorney Joe Serpa | Georgetown University Law Center

October 16, 2026

On September 24, 2026, the Massachusetts Appeals Court upheld the convictions of a man who pursued a woman he met in high school for about fifteen years, violated the harassment prevention order she obtained against him, and threatened her family in emails sent from other women’s accounts. A Middlesex Superior Court jury convicted Michael Hayes, who represented himself at trial, of stalking, criminal harassment, violating a harassment prevention order, witness intimidation, identity fraud, attempted identity fraud, and unauthorized access to a computer system. The decision is Commonwealth v. Hayes, Nos. 25-P-347 and 25-P-607 (Mass. App. Ct. Sept. 24, 2026).

On appeal, the defendant argued that the police exceeded the search warrant for his phone, that the judge’s instructions about anonymous emails lowered the Commonwealth’s burden of proof, and that a mailing he sent from jail to a witness was protected speech. The Appeals Court rejected each of those arguments. The Commonwealth separately appealed the judge’s decision, almost two years after the original sentencing, to reduce the defendant’s sentence. The Appeals Court upheld the reduction.

The Contact, the Harassment Prevention Orders, and the Threats

The defendant met the woman in 2005, when they were high school juniors. She declined his request for a date and offered to be friends. He called her repeatedly, told her he loved her, waited outside her classes, and followed her around school. When she asked him to leave her alone, he yelled and swore at her until other people intervened. At a meeting with school officials and his parents, the defendant was told to leave her alone. He kept contacting her with notes and emails. After she went to college, his emails used profanity and became angry and threatening.

In 2009, the woman found her car keyed from top to bottom. She reported the damage to the police and obtained an order requiring the defendant to stay away from her. A few years later he twice approached her at a gym. She gave up her membership. In December 2015, while he was hospitalized after a stroke, the defendant emailed her at work to say that he would not stalk her but would always love her. She then obtained a one-year harassment prevention order that barred all direct and indirect contact.

During that year the woman received emails that apparently came from the defendant through anonymous addresses. The emails threatened suicide, blamed her family, and asked her to have the order lifted. The defendant also told her mother on Facebook that the order was ruining his hopes of a career in law enforcement, and that he would make the family come back to court every year to renew the order. In December 2016, the woman obtained a permanent harassment prevention order.

After she obtained the permanent order, the woman began receiving alerts about attempts to log in to her social media accounts. In March 2019, a stranger who described himself as a hacker texted her that someone had tried to hire him to break into her Facebook and Google accounts. She reported the text to the police. In November 2019, she received five unanswered calls in quick succession, the last from a number she connected to the defendant. The police then obtained a warrant for his arrest and a search warrant for his electronic devices.

After the police searched his devices, the defendant was charged with violating the harassment prevention order. The threats continued while that charge was pending. One email told the woman that the sender had succeeded in what he was attempting to do and would embarrass her if she did not stop going forward with the trial. Another email, sent to her mother, threatened to have the woman arrested for possession of child pornography and to ruin her teaching career. In August 2020, the mother received emails threatening to kill her and her husband.

The August 2020 emails came from the accounts of four women. Each woman testified that she did not know the defendant and did not send the emails. Each woman also had private Snapchat photographs that had been compromised. The police obtained a second arrest warrant and a second search warrant. The defendant remained in custody after that arrest. The threats to the family then stopped.

The Search of the Defendant’s Phone

The 2019 search warrant for the defendant’s electronic devices authorized the police to search for internet search history and communication history relating to the woman or her mother, login history for email and social media applications, and data related to software that could be used to break into the woman’s accounts. The police found screenshots of login pages for other people’s accounts, including the woman’s, and screenshots of his conversations with the hacker. The Notes application held entries titled “Hacking Facebook profiles” and “Hacking Snapchats.” A pictures folder held a folder with the woman’s name and a photograph altered to make her appear partially nude.

The defendant argued that the warrant did not authorize the police to search photographs, screenshots, or notes. The Appeals Court held that a search of electronic devices “may be as extensive as reasonably required to locate the items described in the warrant.” Commonwealth v. Dorelas, 473 Mass. 496, 502 (2016). When a warrant does not name particular files or applications, the police may search any file or application that could reasonably contain the evidence the warrant describes. Commonwealth v. Henley, 488 Mass. 95, 119-120 (2021).

A defendant who claims that the police exceeded a warrant bears the burden of showing that the search went beyond its terms. Commonwealth v. Carleton, 497 Mass. 11, 29 (2026). The Appeals Court held that the warrant’s authorization to seize login history included the screenshots of login pages. The authorization to seize communication history and data about software for breaking into accounts included the screenshots of the conversations with the hacker. The police could reasonably open a folder bearing the woman’s name, because communications can be stored in photographic form. The Notes entries about hacking fit the warrant’s description of data about breaking into her accounts.

Authentication of an Anonymous Email

Much of the Commonwealth’s evidence consisted of emails, texts, and calls from anonymous addresses or other people’s accounts. The Commonwealth must authenticate an email or a text, with evidence that the defendant wrote it, before a jury may consider it as the defendant’s message. The judge first decides “whether there is evidence sufficient, if believed, to convince the jury by a preponderance of the evidence that the item in question is what the proponent claims it to be.” Commonwealth v. Purdy, 459 Mass. 442, 447 (2011). The jury then decides for itself, by a preponderance of the evidence, whether the defendant wrote the message.

The defendant argued that the jury had to decide beyond a reasonable doubt who wrote the emails, because authorship was an element of nearly every charge. Authentication, however, is a preliminary question of fact. A preliminary question of fact requires only a preponderance of the evidence, even when the question is closely tied to an element of the crime. Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 366-367 (2014). The jury must still decide whether the Commonwealth proved each element of each charge beyond a reasonable doubt.

The jurors asked the judge twice which standard applied to authorship of the emails. The judge told the jurors to decide whether it was more likely true than not true that the defendant wrote an email before considering its content. He told them to disregard any email they could not attribute to the defendant by that standard and to decide the charges on the remaining evidence. He also told them that the Commonwealth always had the burden of proving each charge beyond a reasonable doubt. The Appeals Court held that those instructions were correct and presumed that the jury followed them.

In Commonwealth v. Alden, 93 Mass. App. Ct. 438, 444 (2018), the Appeals Court explained that “authenticity and identity are different legal concepts.” A defendant can still challenge an email after the judge admits it. The defendant can attack the reliability of the email and argue to the jury that someone else wrote it. The jury weighs those arguments with the rest of the evidence. Commonwealth v. Meola, 95 Mass. App. Ct. 303, 313 (2019).

A Mailing From Jail as Witness Intimidation

In March 2021, while he was in custody awaiting trial, the defendant mailed the hacker a printout of the hacker’s driver’s license information, including his date of birth and home address. The printout had a photograph of the hacker’s face with a swastika drawn on the forehead, along with handwritten insults and slurs that named people involved in the prosecution. The return address identified the defendant as an inmate at the jail. The jury convicted the defendant of witness intimidation under G.L. c. 268, § 13B for that mailing.

The defendant argued that the witness intimidation statute punishes only speech that the First Amendment does not protect, and that the mailing was not a true threat. The Appeals Court agreed that the statute may not punish protected speech. The court held, however, that the jury could find the mailing to be a true threat. A court measures a true threat objectively, by asking “whether, in light of the attendant circumstances, the words justifiably caused the recipient to fear violence.” Commonwealth v. Cruz, 495 Mass. 110, 113 (2024).

The jury could find that the defendant targeted the hacker because the hacker had helped start the investigation. The jury could also find that the mailing showed the hacker that the defendant could obtain his personal information and send mail to his home while sitting in jail. In addition, the Commonwealth must prove that the defendant was at least aware that others could regard the communication as threatening violence. The United States Supreme Court set that requirement in Counterman v. Colorado, 600 U.S. 66 (2023). The defendant did not raise that element on appeal.

The Reduced Sentence

After the trial, the judge sentenced the defendant and denied his timely motion to revise or revoke the sentence under Rule 29 of the Massachusetts Rules of Criminal Procedure. The judge treated the defendant’s later filings as a motion to reconsider that denial. The judge then asked the Probation Department for a Brief Risk Assessment for Violent Offending, known as a BRAVO report, from a program that did not exist at the original sentencing. After a hearing, almost two years after the original sentencing, the judge reduced the time the defendant had to serve in custody and revised his probation terms.

The Commonwealth argued that the judge could not rely on a report that did not exist at sentencing. On a motion to revise or revoke, a judge may not consider the defendant’s conduct after sentencing, which is a question for the parole board. Commonwealth v. DeJesus, 440 Mass. 147, 152 (2003). Commonwealth v. McGuinness, 421 Mass. 472, 476 n.4 (1995). The judge in Hayes stated that he did not rely on any rehabilitation after sentencing. He used the BRAVO report to analyze the information that existed at sentencing and to impose a just sentence. The Appeals Court held that the judge acted within his discretion.

Stalking and Harassment Prevention Order Cases After Hayes

Many stalking, criminal harassment, and harassment prevention order cases depend on messages from anonymous numbers, new accounts, or accounts that belong to someone else. In Hayes, the evidence connecting the messages to the defendant included screenshots and notes on his devices, account information on his devices for the women’s accounts that sent the threats, records of calls that matched the five missed calls, and the end of the threats once he was held in custody. A person accused of sending anonymous messages can contest each piece of that evidence, first when the judge decides whether to admit a message and again before the jury.

A person seeking a harassment prevention order should keep every message, login alert, and call record, and should report each one to the police when it happens. The woman in Hayes reported the keyed car, the email from the hospital, the hacker’s text, the missed calls, and the threats to her family. Serpa Law Office represents both plaintiffs and defendants in harassment prevention order cases, and defends people charged with stalking, criminal harassment, and violating a harassment prevention order.

Key Takeaways

A phone search warrant that lists categories of evidence authorizes the police to search any file or application that could reasonably contain that evidence, including photographs and notes. Commonwealth v. Dorelas, 473 Mass. 496, 502 (2016).
A defendant who claims that the police exceeded a search warrant bears the burden of showing that the search went beyond its terms.
A jury may consider an email or text as the defendant’s message only if the jury finds, by a preponderance of the evidence, that the defendant wrote it. Commonwealth v. Meola, 95 Mass. App. Ct. 303, 313 (2019).
The Commonwealth must still prove every element of every charge beyond a reasonable doubt.
A mailing that uses a witness’s photograph and personal information to frighten the witness can be a true threat and witness intimidation under G.L. c. 268, § 13B.
On a motion to revise or revoke a sentence, a judge may use a new assessment tool to analyze the information that existed at sentencing, but may not consider the defendant’s conduct after sentencing.
In Commonwealth v. Hayes, Nos. 25-P-347 and 25-P-607 (Mass. App. Ct. Sept. 24, 2026), the Appeals Court upheld every conviction and the reduced sentence.

Related Serpa Law Office resources

Voluntary Intoxication and Consent After the Cornell Case: The New York Rule and the Massachusetts Rule

Attorney Joe Serpa — Sat, 03 Oct 2026 17:21:59 GMT

By Attorney Joe Serpa | Georgetown University Law Center

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

Attorney Joe Serpa — Sat, 03 Oct 2026 16:42:26 GMT

By Attorney Joe Serpa | Georgetown University Law Center

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.

Attorney Serpa examines the doxing campaign against Cornell’s Jane Doe and the related questions of privacy, harassment, gag orders, and confrontation rights in a follow-up article.

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.

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.

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).

Lindsay Clancy Hearing on September 29, 2026 and the Retrial Question

Attorney Joe Serpa — Tue, 29 Sep 2026 19:01:22 GMT

Judge William Sullivan held a hearing on the morning of September 29, 2026, in Plymouth Superior Court in the murder case against Lindsay Clancy. The hearing was the first since Judge Sullivan declared a mistrial on September 4, 2026. Judge Sullivan set arguments on the defense motion to dismiss for November 2. The Plymouth County District Attorney’s Office has not announced whether it will retry Ms. Clancy.

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

Confrontation Rights and Harmless Error in a Family or Household Member Assault Case: Commonwealth v. Khadgi

Attorney Joe Serpa — Mon, 28 Sep 2026 14:03:55 GMT

By Attorney Joe Serpa | Georgetown University Law Center

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

The Clancy Mistrial and the Juror Questionnaire

Attorney Joe Serpa — Thu, 17 Sep 2026 23:32:12 GMT

On September 4, 2026, a Plymouth County jury could not agree in the murder trial of Lindsay Clancy, and the judge declared a mistrial. In the two weeks since, reporting has turned to the lone holdout and to what he did or did not disclose before he was seated. A judge impounded the jury list on September 14 after the juror was identified online.

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.

After the Mistrial: The Renewed Motion for a Required Finding of Not Guilty in the Clancy Case

Attorney Joe Serpa — Sun, 13 Sep 2026 15:04:21 GMT

On September 4, 2026, a Plymouth County jury reported that it could not agree, and the court declared a mistrial in the case against Lindsay Clancy. On September 10, 2026, the defense filed a renewed motion for a required finding of not guilty. The motion asks the court, not a second jury, to end the case as a matter of law. It is set to be heard at a conference scheduled for September 29, 2026.

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.

Medical Expert Testimony in Massachusetts Criminal Cases: The Hsu Decision on Abusive Head Trauma

Attorney Joe Serpa — Fri, 11 Sep 2026 14:11:45 GMT

Medical experts can help a Massachusetts jury understand how an injury occurred and whether the medical findings support the prosecution’s account. The judge must first decide whether the opinion is reliable and whether its wording risks unfairly influencing the jury’s decision about guilt. On September 9, 2026, the Supreme Judicial Court addressed both questions in Commonwealth v. Shu Feng Hsu, affirming an involuntary manslaughter conviction involving testimony about abusive head trauma.

The court upheld the admission of testimony that the child’s injuries were “consistent with” abusive head trauma. It also approved the trial judge’s decision to prohibit experts from stating that abusive head trauma caused those injuries. The distinction explains why a defense challenge can address both the scientific basis of an opinion and the precise conclusion the expert proposes to give.

The decision concerns a child’s fatal head injuries. Its discussion of reliability, alternative explanations, and limits on expert testimony also offers guidance for counsel preparing domestic violence cases, assault and battery cases, and other criminal trials involving disputed medical evidence. Applying that guidance requires attention to the particular injury and opinion, rather than assuming that every case requires the restrictions approved in Hsu.

The Decision and the Disputed Medical Evidence

In Commonwealth v. Shu Feng Hsu, No. SJC 13855 (September 9, 2026), the defendant challenged the admission of expert testimony concerning abusive head trauma. The appeal required the Supreme Judicial Court to consider the medical acceptance of the diagnosis, the risk associated with the word “abusive,” and testimony about whether a short fall could explain the child’s injuries.

Abusive head trauma describes a medical diagnosis encompassing several possible mechanisms, including blunt impact, shaking, or a combination. The court considered evidence that national and international medical organizations recognize the diagnosis and that physicians evaluate it through clinical history, examination, laboratory findings, and imaging.

The defense disputed the reliability of the diagnosis and relied on contrary scientific materials. The court concluded that scientific unanimity was unnecessary and that the trial judge had acted within the judge’s discretion on the record presented. The Supreme Judicial Court affirmed the conviction.

General Acceptance and the Particular Opinion

Under the Daubert-Lanigan standard discussed in Hsu, a judge examines the reliability of proposed expert testimony before allowing the jury to consider it. General acceptance in the relevant scientific community can establish reliability. A disagreement among scientists does not, by itself, require exclusion.

That conclusion requires counsel to identify precisely what the expert claims. Acceptance of a medical diagnosis and the explanation for a particular patient’s injuries are related but distinct questions. A defense review should examine the medical history, the images and other findings, the proposed mechanism of injury, and the reasons the expert accepts or rejects alternative explanations.

The distinction also affects the assignment given to a defense consulting or testifying expert. Reviewing whether the prosecution’s opinion has adequate support is different from offering an affirmative opinion about what caused the injury. Counsel should determine which work the evidence requires before deciding who should testify.

The Limits on the Word “Abusive”

The trial judge recognized that the word “abusive” could influence the jury beyond the medical information the experts were qualified to explain. The judge allowed testimony that the injuries were consistent with abusive head trauma but prohibited testimony that abusive head trauma was their cause.

The Supreme Judicial Court approved those limits as a way to reduce unfair prejudice and preserve the jury’s responsibility to determine guilt. A medical expert could explain the injuries and the possible mechanism without deciding the defendant’s legal culpability.

The court upheld that exercise of discretion. It did not require every judge to use the same wording in every injury case. Nor does adding “consistent with” establish reliability by itself. Counsel still needs to examine what the opinion means, what supports it, and what the witness can reliably conclude from the findings.

Short Falls and Alternative Explanations

The trial judge prohibited a categorical statement that short falls cannot cause abusive head trauma. The experts nevertheless testified that the particular child’s injuries were inconsistent with the short falls described in the case.

The Supreme Judicial Court found no violation of the order. A general assertion about all short falls differs from an opinion based on a particular child’s injuries and a particular proposed fall.

For the defense, that distinction requires a specific medical inquiry. Counsel should identify the proposed fall, the surface, the height, the position of the body, and the findings the expert relies on to reject that explanation. A general statement that falls can cause injuries does not answer whether the proposed fall explains the findings in the case.

The same preparation supports cross-examination of a medical expert. Counsel can ask which findings support the opinion, which alternatives the expert considered, and which assumptions would change the conclusion.

The Question About Shaking Without Impact

The court did not resolve the scientific reliability of shaking alone, without blunt impact, as the explanation for the injuries associated with abusive head trauma. The case involved blunt impact, and the court distinguished that record from the disputed shaking-only theory.

A future case alleging shaking without impact therefore requires examination of that specific mechanism and the evidence offered to support it. Hsu should not be cited as a decision resolving a question the court left unanswered.

Medical Evidence in Assault and Domestic Violence Trials

Injury evidence can affect several disputed questions in an assault prosecution: what contact occurred, how much force was involved, when the injury occurred, and whether the prosecution’s account fits the medical findings. Counsel should separate those questions rather than treat the presence of an injury as proof of the entire accusation.

In a prosecution for assault and battery by means of a dangerous weapon, for example, a dispute may concern the alleged mechanism or the extent of an injury. Testimony about abusive head trauma is also offered in prosecutions for assault and battery on a child under G.L. c. 265, § 13J. In a domestic violence case, counsel may need to compare medical findings with photographs, recordings, and the sequence described by the witnesses. These are applications of the evidentiary questions discussed in Hsu, not additional holdings about those offenses.

The medical testimony must remain tied to what the witness can explain reliably. Counsel should distinguish the physical findings from assumptions about the event and from the elements the Commonwealth must prove.

Pretrial Motions in the Superior Court

In a Superior Court prosecution involving disputed injury evidence, counsel should address the proposed expert testimony before trial. A motion in limine can identify the opinion, explain the objection, and request either exclusion or specific limits on the testimony.

Hsu illustrates why counsel should state alternative requests. If the judge admits the diagnosis, counsel can still seek limits on causal conclusions, emotionally charged terminology, or categorical assertions that exceed the supporting science. The requested order should identify the particular statements the witness may and may not make.

After the judge rules, counsel should compare the testimony with the order and raise an objection when the expert exceeds the permitted testimony. The broader rules for evidence, examination of witnesses, and courtroom procedure appear in the firm’s Massachusetts criminal court practice guide.

Reviewing a Case Involving Medical Testimony

A useful review identifies the complete medical record, the expert’s precise opinion, the scientific basis for that opinion, and the explanations the expert considered and rejected. Counsel then determines what to challenge before trial and what to address through cross-examination.

Hsu permits the testimony the judge admitted on that record. It also demonstrates that the wording and scope of a medical opinion remain subjects for a specific defense motion. Both parts of the decision belong in the preparation of a case involving disputed injury evidence.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and represents defendants in the District Court, Boston Municipal Court, and Superior Court. Serpa Law Office can be reached at 617.936.0201.

This article provides general information based on a published court decision. It is not legal advice and does not create an attorney-client relationship. It may constitute attorney advertising.

The Lindsay Clancy Trial: A Cruel, Insensitive, and Out-of-Touch Prosecution

Attorney Joe Serpa — Thu, 10 Sep 2026 01:29:44 GMT

Lindsay Clancy, a labor and delivery nurse from Duxbury, was tried in Plymouth Superior Court in 2026 on three counts of murder in the first degree for the January 2023 deaths of her children, Cora, age five, Dawson, age three, and Callan, age eight months. She did not dispute that she caused their deaths. Her defense was lack of criminal responsibility based on postpartum psychosis. After seven days of deliberations, the jury could not reach a unanimous verdict, and Judge William Sullivan declared a mistrial on September 4, 2026.

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.

Does the mistrial mean the case is over?

No. A mistrial ends the trial without a verdict. The charges remain, and the District Attorney decides whether to try the case again.

Can the defendant be tried a second time after a hung jury?

Yes. A retrial after a genuine deadlock does not violate double jeopardy. The double jeopardy bar applies in other situations, such as an acquittal or a reversal for insufficient evidence.

What is the insanity defense in Massachusetts?

It is called the lack of criminal responsibility. Under Commonwealth v. McHoul, a person is not responsible if a mental disease or defect deprived that person of substantial capacity either to appreciate the wrongfulness of the conduct or to conform the conduct to the law.

Who has to prove sanity?

The Commonwealth. Once the issue is raised, the Commonwealth must prove criminal responsibility beyond a reasonable doubt.

If a jury returns a verdict of not guilty by reason of insanity, is the person released?

No. General Laws chapter 123, section 16 provides for hospitalization, possible commitment, and periodic review.

Is postpartum psychosis a defense to murder in Massachusetts?

Postpartum psychosis is not a separate defense. A defendant who raises it relies on the defense of lack of criminal responsibility under Commonwealth v. McHoul, 352 Mass. 544 (1967). The jury decides whether, as a result of a mental disease or defect, the defendant lacked substantial capacity either to appreciate the wrongfulness of the conduct or to conform the conduct to the requirements of law. Postpartum psychosis is the mental disease the defense offers through expert testimony. In the Clancy trial, a defense forensic psychiatrist testified that command hallucinations directed the killings. The Commonwealth disputed that she had the condition the defense described.

How does the Commonwealth prove that a defendant was criminally responsible?

By proving beyond a reasonable doubt either that the defendant had no mental disease or defect, or that no mental disease or defect deprived the defendant of substantial capacity. Commonwealth v. Lawson, 475 Mass. 806 (2016). 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 tried to conceal what happened. The Commonwealth may also rely on the defendant’s words and conduct before, during, and after the offense, including evidence that the defendant exaggerated symptoms.

Can a prosecutor argue that a defendant faked a suicide attempt?

Yes. Massachusetts law permits the Commonwealth to rely on the defendant’s conduct after the offense, including evidence of malingering, to prove criminal responsibility. Commonwealth v. Lawson, 475 Mass. 806 (2016). In the Clancy trial, the Commonwealth called first responders who described the injuries to her neck and wrists as superficial and argued that the attempt was staged. In Attorney Joe Serpa’s assessment, that argument asked jurors to disbelieve what they could see from the jury box. The argument cost the Commonwealth credibility on the one contested question. The law allowed the argument. The judgment about making it belonged to the prosecutors.

What is a hung jury?

A jury that cannot agree on a unanimous verdict after deliberating. In Massachusetts, every verdict in a criminal case must be unanimous. When the jury reports that it is deadlocked, the judge may give the Tuey-Rodriquez instruction, which asks the jurors to deliberate further with an open mind. When the jury reports again that it cannot agree, the judge may declare a mistrial. A deadlocked jury is the classic example of manifest necessity for a mistrial, so the Commonwealth may retry the defendant. In the Clancy trial, the jury deliberated for seven days before Judge Sullivan declared a mistrial on September 4, 2026.

What does substantial capacity mean under the McHoul standard?

Less than total incapacity. The defendant does not have to prove that the defendant had no understanding at all of what the defendant was doing. The question is whether a mental disease or defect left the defendant without substantial capacity to appreciate the wrongfulness of the conduct, or without substantial capacity to conform the conduct to the requirements of law. A defendant who understood that the conduct was wrong but could not control the conduct because of command hallucinations lacks substantial capacity under the second part of the test. Commonwealth v. McHoul, 352 Mass. 544 (1967). The jury applies the standard to the evidence.

Who decides whether a defendant was criminally responsible?

The jury, or the judge in a trial without a jury. Both sides ordinarily call forensic psychiatrists or psychologists who examined the defendant and reviewed the records. The jury is not required to accept any expert’s opinion. The jury may rely on the circumstances of the offense, the defendant’s statements, the medical and treatment records, and the testimony of lay witnesses who saw the defendant before and after the offense. Once the defense raises the question with evidence that would permit a reasonable doubt, the Commonwealth must prove criminal responsibility beyond a reasonable doubt. Commonwealth v. Keita, 429 Mass. 843 (1999).

What is the difference between not guilty by reason of insanity and incompetent to stand trial?

Criminal responsibility concerns the defendant’s mental state at the time of the offense. A verdict of not guilty by reason of lack of criminal responsibility ends the prosecution and ordinarily leads to a civil commitment proceeding under G.L. c. 123, § 16. Competence to stand trial concerns the defendant’s mental state now. A defendant is incompetent when the defendant cannot understand the proceedings or assist defense counsel. G.L. c. 123, § 15. A finding of incompetence pauses the case rather than ending it. A defendant can be competent to stand trial and still not criminally responsible for the offense.

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.

How I Research, Write, and Argue a Motion to Suppress or Dismiss

Attorney Joe Serpa — Thu, 27 Aug 2026 10:54:40 GMT

By Attorney Joe Serpa | Georgetown University Law Center | Massachusetts Criminal Defense Since 1995

A motion to suppress and a motion to dismiss are the two filings that can end a criminal case before a jury hears anything. Other motions can be important in getting to a good outcome. These two can produce an outcome, and end the case for the client before trial. That is why they are written first.

This page is about method rather than doctrine: how I find the issue, how I build the record before I file, how the motion gets written, and what I do at the hearing. The governing law on searches appears on the illegal searches and seizures page, and the grounds for dismissal appear on the page about how criminal cases get dismissed.

Where I Look First

I read the police report backward. The report is written to justify the outcome, so it presents the arrest as inevitable. Read from the end, the same document exposes a series of separate decisions, each of which needed its own justification at the moment it was made.

Each of those moments is a potential motion. Why was the car stopped. Why was anyone ordered out of it. Why was there a patfrisk. Why was the container opened. Why was the phone taken. Why was the question asked before the warning was given. An officer who has justified the last step frequently has not justified the third.

I then check the report against everything else in the file: the booking sheet, the dispatch log, the citation, the video. The suppression issue is often not in the report at all. It is in the fifteen minutes the report does not account for, or the time stamp that puts the officer somewhere else.

Building the Record Before I File

A motion to suppress is only as good as the affidavit under it, and the affidavit is where most of these motions are lost. A memorandum can argue. An affidavit has to assert facts, and those facts have to come from somewhere.

That creates the recurring problem in this practice: the facts I need are frequently known only to my client, and a client affidavit has a cost. It is not evidence of guilt, but if the client later testifies inconsistently with it, the Commonwealth may use it for impeachment. See Simmons v. United States, 390 U.S. 377 (1968); Mass. G. Evid. § 104(d) note.

So I look for every other source first. Video. A civilian witness. The officer’s own report used against itself. A record obtained by summons. The work of assembling those sources is described in how I prepare a case for trial.

Where a client affidavit is genuinely necessary, it is drafted narrowly, to establish the one fact that gives the client standing or that puts the encounter where I say it was. It does not tell the client’s story. A defendant who explains too much in a suppression affidavit has handed the Commonwealth impeachment material for cross-examination if the defendant testifies at trial.

What a Motion to Dismiss Really Asks

Clients hear dismissal and think a judge is being asked whether the case is weak. That is not the question, and a motion written as though it were will be denied.

A court ordinarily will not inquire into the competency or sufficiency of the evidence before a grand jury. The narrow exception is whether the grand jury heard sufficient evidence to establish the identity of the accused and probable cause for the arrest. Commonwealth v. McCarthy, 385 Mass. 160, 162 to 163 (1982). A defendant may challenge sufficiency by such a motion. Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002).

Where the grand jury received no evidence of criminality on the part of the accused, the indictment must be dismissed. Commonwealth v. Coonan, 428 Mass. 823, 825 (1999), quoting Commonwealth v. Angiulo, 415 Mass. 502, 510 (1993). Short of that, dismissal is a remedy of last resort. Commonwealth v. Troy, 405 Mass. 253 (1989).

So the motion I write does not argue that the witness is unreliable. It identifies an element and demonstrates that nothing before the grand jury addressed it. That is a much narrower claim, and it is the only version that succeeds. In the District Court the analysis runs against the four corners of the complaint application rather than a grand jury transcript, but the discipline is identical.

Operating Under the Influence

These cases have more suppression points than any other category in the District Court, because so many separate decisions are made in twenty minutes at the side of a road.

The exit order is the one most often assumed to be lawful and most often is not. An exit order during a traffic stop is justified where police are warranted in the belief that the safety of the officers or others is threatened, where there is reasonable suspicion of criminal activity, or where police are conducting a search of the vehicle on other grounds. Commonwealth v. Torres-Pagan, 484 Mass. 34, 38 (2020).

Those are three defined grounds, not a general power. So the question at the hearing is which one the officer is relying on, and what specific facts they had at that moment. An officer who answers by describing what was found afterward has answered the wrong question, and the record then shows it.

The roadside assessments and the breath test each have their own foundation requirements, and those are where an expert review pays for itself. That analysis is covered in how I use experts.

The Motion That Is Filed Too Rarely

In 2020 the Supreme Judicial Court rebuilt the framework for challenging a traffic stop as racially selective, concluding that the previous standard had placed too great an evidentiary burden on defendants. Commonwealth v. Long, 485 Mass. 711 (2020).

Under the current standard the defendant must point to specific facts from the totality of the circumstances raising a reasonable inference that the decision to stop was motivated at least in part by race or membership in another protected class. Id. at 713. Those facts may come from personal knowledge, the defendant’s own investigation, evidence obtained in discovery, and other sources. Id. at 724. A bald allegation is not enough.

If the inference is raised, the defendant is entitled to a hearing at which the Commonwealth bears the burden of rebutting it, and absent a successful rebuttal the evidence derived from the stop is suppressed. Id. at 713. The test looks to the true or subjective motivation of the officer at the time of the stop. Id. at 726 to 727.

The Commonwealth must do more than point to the validity of the traffic violation it relied on. Commonwealth v. Robinson-Van Rader, 492 Mass. 1, 17 (2023). The decision also confirms that equal protection forbids any degree of racial motivation in traffic enforcement. Id. at 23.

These motions do not require statistical data. The inference may rest on the totality of the circumstances of the particular stop. Commonwealth v. Long, 485 Mass. 711 (2020). Data still helps, and getting the stop history takes a summons and time, so it has to be started early.

Digital Evidence

This is the category where the law has moved furthest and where the affidavits supporting warrants have moved least. Probable cause to search or seize a cellular telephone may not be based solely on an officer’s opinion that the device is likely to contain evidence of the crime under investigation. Commonwealth v. White, 475 Mass. 583 (2016).

Police must first obtain information establishing the existence of particularized evidence related to the crime. Id., citing Commonwealth v. Dorelas, 473 Mass. 496, 502 (2016). Even where there is probable cause to suspect the defendant of the offense, that alone does not permit seizing or searching the phone. Id.

Two further points decide cases. A cell phone search warrant requires temporal limits. Commonwealth v. Snow, 486 Mass. 582, 594 (2021). And a seizure lawful when made can become unreasonable through delay: in White a sixty-eight day gap between seizure and the warrant application was held unreasonable where the Commonwealth did not show the police acted diligently.

So my reading of a phone warrant is mechanical. What particularized information tied this phone to this offense. What date range does the warrant permit. When was the device seized and when was the warrant sought. The underlying doctrine appears on the page about searches of phones and computers.

Sexual Assault Allegations

The suppression work in these cases is usually about statements rather than searches. There is often no seizure to attack and no warrant to read, and the entire case is an account given months afterward.

What there is instead is an interview, frequently conducted before any charge, sometimes at the client’s home, sometimes at the station with the door closed and the client told they are free to leave. Whether that encounter was custodial is a factual question, and the answer depends on details that are never in the report and are recoverable from the recording.

The rest of the pretrial fight in these cases is over records rather than suppression, and it runs through the summons procedure and the protocol for privileged material. Both are covered in the trial preparation page above.

Cases That Rest on a Child

Where the case is built on a young witness, the pretrial motion is about competency and about how the account was obtained. Massachusetts applies a two-part test: whether the witness has the general ability to observe, remember, and give expression to what she has seen, heard, or experienced, and whether she has understanding sufficient to comprehend the difference between truth and falsehood and the obligation to tell the truth. Commonwealth v. Trowbridge, 419 Mass. 750 (1995).

Two limits on that motion should be understood before it is filed. A trial judge has broad discretion to determine whether a competency hearing is required at all, and that determination is rarely disturbed on appeal. Commonwealth v. Allen, 40 Mass. App. Ct. 458, 461 (1996).

And Massachusetts has not adopted the New Jersey approach of a pretrial hearing into whether suggestive interviewing tainted a child’s account. The Appeals Court in Allen expressly declined to reach that question, finding the offer of proof there insufficient in any event. Id. Inconsistency in a child’s answers is ordinarily a question of credibility for the jury rather than one of competency.

What that leaves is the interview itself. How the questions were put, how many times the child was asked, who was in the room, and what the child said the first time are all cross-examination material, and they are recoverable only if the recordings and notes are obtained early.

Arguing It

A suppression hearing is not an argument, it is a cross-examination with an argument at the end. Almost all of the preparation goes into the questioning of the officer, and the questions are written in advance and asked in an order that closes the exits.

I establish what the officer knew, and when, before I ever ask what they did. An officer permitted to describe a conclusion first will supply the justification along with it. An officer taken through the timeline in sequence has to commit to what they knew at each step, and the ground for the exit order either exists at that point in the transcript or it does not.

I ask the judge for findings. Where the motion is denied and the ruling rests on a fact, the finding is what makes the issue reviewable, and a denial with no findings is much harder to do anything with later.

And I argue one ground, or two. A motion raising six theories tells the judge that none of them is strong. The one that would end the case goes first and gets the time.

After the Ruling

An allowed motion does not always end the case, and a denied one does not end the issue. Testimony given at the hearing becomes a transcript, and that transcript is useful cross-examination material, because the officer gave the answers under oath before knowing which of them the defense would use at trial.

So a suppression hearing that is lost still changes the trial. That is the reason to litigate a close motion rather than trade it away, and the reason the transcript gets ordered whatever the ruling was.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and tries cases in the District Courts and Superior Courts of Greater Boston. Serpa Law Office can be reached at 617.936.0201.

How I Use Experts in a Massachusetts Criminal Case

Attorney Joe Serpa — Thu, 27 Aug 2026 10:50:05 GMT

By Attorney Joe Serpa | Georgetown University Law Center | Massachusetts Criminal Defense Since 1995

Most of the expert work in my cases is never heard by a jury. An expert who reads a laboratory file and tells me the analyst skipped a step has changed the case, and has done it without putting a witness in front of the jury to be cross-examined. Clients expect the opposite, so it is worth explaining what these people are for. The trial procedure surrounding expert testimony is treated in the firm’s Massachusetts criminal court practice section.

An expert does three separate jobs in a criminal case: reviewing the evidence, shaping the defense, and testifying. Those are different assignments, they call for different people, and confusing them is expensive. This page covers each of the three, what the rules permit an expert to say, what they forbid, and which opinions need no expert at all.

The Expert Who Reviews the Evidence

This is the use that comes first, and none of it is visible at trial. I send the discovery to someone who does the work for a living and ask a narrow question: is this right, and does the file show the method was followed.

What comes back is rarely a conclusion. It is usually a list of what is absent. The calibration record for the period covering this test. The bench notes behind the summary report. The chain of custody entry between two dates. The validation study for the software version used. None of that appears in a report, and asking for it changes what the Commonwealth can prove.

The subjects come up repeatedly: breath and blood testing, drug analysis, digital forensics and cell site records, firearms and toolmark comparison, forensic pathology, and eyewitness identification. In each of those the Commonwealth is presenting an opinion dressed as a measurement, and a lawyer who does not understand the method cannot tell the difference.

A reviewing expert also tells me when to stop. A great deal of money is wasted attacking evidence that is sound. Hearing that the testing was done correctly is worth the fee, because it moves the case out of one category and into another.

The Expert Who Shapes the Defense

The second job is different. Here I am not testing the Commonwealth’s evidence, I am asking whether a different account of the same facts is scientifically possible. Could this injury have occurred in a fall. Could this phone have been in that location without the person carrying it. Could this level of alcohol be consistent with drinking after driving rather than before.

The answer determines what defense exists. It also determines what I can say in an opening statement, because a theory that an expert will not support is a theory I cannot promise a jury.

This work happens early, before the motion schedule is set. A defense discovered two weeks before trial is a defense the Commonwealth has had no reason to prepare for, which sounds like an advantage and is not. It means I have had no time to develop it either. The full sequence appears in how I prepare a case for trial.

The Expert as Evidence

The third job is testifying, and it is the one I use least. Calling an expert puts a witness in front of the jury who can be cross-examined about the fee, the prior testimony, and every case in which that expert has said something different.

I call one when an element of the defense cannot be established any other way, which usually means the jury has to understand something outside common experience before the defense makes sense. Absent that, the same points can generally be made through cross-examination of the Commonwealth’s own expert, at no cost and with no exposure.

That choice is made witness by witness rather than as a general policy. The mechanics of testing an opposing expert appear on the cross-examination page.

What an Expert Has to Establish First

Qualification and reliability are separate requirements, and the second is the one more often overlooked. An expert opinion must rest on a reliable foundation, and the party offering the opinion bears the burden of establishing it. Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994).

That applies to the Commonwealth’s expert exactly as it applies to mine. A witness with impressive credentials who is applying a method with no established reliability is offering an inadmissible opinion, and the objection is to the method rather than to the person.

The Supreme Judicial Court’s September 2026 decision in Commonwealth v. Shu Feng Hsu illustrates the distinction. The court upheld testimony that the injuries were consistent with abusive head trauma while also approving the judge’s prohibition against testimony that abusive head trauma caused them.

An expert may also base an opinion on facts or data that are not in evidence, but only where those facts are independently admissible and are a permissible basis for an expert to consider. Department of Youth Services v. A Juvenile, 398 Mass. 516, 531 to 532 (1986). Massachusetts did not adopt the broader federal position that the underlying data need not be admissible.

That limit is worth using. Where I think an expert is resting on material that could never come in, I ask for a voir dire to determine the basis of the opinion. Id. It is a short hearing and it occasionally removes the opinion entirely.

What an Expert May Not Say

The clearest prohibition concerns credibility. An expert may not render an opinion on the credibility of a witness, because the jury is capable of making that assessment without help, and such an opinion intrudes on the jury’s factfinding function. Commonwealth v. Ianello, 401 Mass. 197, 201 to 202 (1987); Simon v. Solomon, 385 Mass. 91, 105 (1982). Evaluations of credibility are within the exclusive province of the trier of fact. Commonwealth v. Montanino, 409 Mass. 500, 504 (1991).

The rule applies most often in cases involving allegations of child sexual abuse, where the line is fine and frequently crossed. Expert testimony on the general behavioral characteristics of sexually abused children is permitted, because those characteristics are beyond common knowledge and may help the jury. Commonwealth v. Federico, 425 Mass. 844, 847 to 848 (1997).

The permission stops there. The testimony must be confined to a description of the general or typical characteristics, and the expert may not refer or compare this complainant to those characteristics. Id. at 848; Commonwealth v. Trowbridge, 419 Mass. 750, 759 (1995). Nor may the expert opine that the complainant was in fact subjected to sexual abuse.

Even without an explicit comparison the testimony can be inadmissible, where a reasonable jury would think the expert was implicitly vouching for the complainant. Commonwealth v. Quinn, 469 Mass. 641, 647 (2014). The risk is greatest where the same person testifies both as a treating clinician and as an expert, which is a combination worth objecting to before it happens.

The Opinions That Need No Expert at All

A great deal of opinion testimony in a District Court trial is lay opinion, and treating it as expert testimony is a mistake that runs in both directions. Whether a person appeared intoxicated is a lay opinion, admissible without any qualification. Commonwealth v. Canty, 466 Mass. 535, 540 to 541 (2013).

The limit on that opinion is where the objection lives. A witness, including a police officer, may not offer an opinion on the ultimate question of whether the defendant was operating under the influence, or whether consumption of alcohol diminished the defendant’s ability to operate a motor vehicle safely. Id. at 541, 544. Apparent intoxication is permitted. The conclusion the jury is there to draw is not.

The same principle covers a good deal of ordinary testimony that nobody thinks of as opinion: whether someone seemed frightened, how fast a car was moving, whether a voice was familiar. Those are within common experience and no expert is needed. Bringing one in on such a subject invites the response that the jury is equally competent to assess it.

Where the Line Moved: Marijuana

Marijuana is the clearest illustration that the lay and expert boundary is drawn by what is commonly known rather than by the subject matter. Because the effects vary greatly between individuals and are not yet commonly known, neither a police officer nor any other lay witness may offer an opinion that a driver was under the influence of marijuana. Commonwealth v. Gerhardt, 477 Mass. 775 (2017).

An officer may still describe what they saw. Bloodshot eyes, drowsiness, and lack of coordination are observations. Id. An officer may also describe a driver’s performance during roadside assessments, to the extent it bears on balance, coordination, and mental acuity. What the officer may not do on direct examination is say that the performance established influence, or that the driver passed or failed anything. Id.

Two further points from that decision are worth having in front of you at trial. Performance on those assessments, standing alone, is not sufficient to support a finding that the ability to drive safely was impaired by marijuana, and the jury must be instructed to that effect. Id. And introduction of horizontal gaze nystagmus results requires expert testimony. Id.

Gerhardt is a marijuana decision and should not be borrowed for alcohol cases, where the governing authority is different. The alcohol testing questions are addressed on the page about the science behind breath and blood testing.

What I Ask Before I Hire Anyone

Four questions, in order. What is the precise question I need answered. Is that question one the jury cannot answer on its own. If the answer comes back against my client, can I live with having asked. And what will this person look like on cross-examination.

The third question is the one lawyers skip. A consulting expert who reaches an unhelpful conclusion has cost money and nothing else. A testifying expert who reaches one in front of the jury has handed the Commonwealth a witness. That is a reason to consult before deciding to call, and never the reverse.

Whether the resulting opinion comes in, and on what terms, is usually settled before the jury arrives. That is a motion in limine question, and how I decide which of those fights to have is described in how I decide when to object.

How I Prepare a Massachusetts Criminal Case for Trial

Attorney Joe Serpa — Thu, 27 Aug 2026 10:46:12 GMT

By Attorney Joe Serpa | Georgetown University Law Center | Massachusetts Criminal Defense Since 1995

By the time a jury is empaneled, most of the work that will decide the case is finished. What was gathered, what was tested, and what was excluded in the months before set the limits on what either side can do at trial. Preparation does not replace what happens in the courtroom. It determines what is available there. The trial stages themselves are treated in the firm’s Massachusetts criminal court practice section.

What follows is the order I work in, from the first meeting through the week before trial: what I read, what I go looking for, what I file when the Commonwealth does not produce, how I get records nobody has to give me, when I bring in an expert, and what I want in hand before a jury is called.

The First Meeting

I want two things from the first meeting, and neither of them is the client’s account of what happened. The first is a list of everything that is time-sensitive. The second is the client’s own exposure beyond this case: immigration status, a professional license, a security clearance, school, probation on another matter.

Time-sensitive means anything that disappears. Surveillance video is overwritten, often in seven to thirty days. Cell phone location data has retention limits. A witness moves. A bar closes. If I wait for the first discovery packet before thinking about video, the video is gone, and no motion recovers it.

So the preservation letters go out that week, before I know whether the case will go to trial. Most of them produce nothing. The one that produces something occasionally ends the case.

As for the client’s account, I take it, but I do not build on it yet. Clients remember what they were thinking, not what an officer saw. The account becomes useful after I have the reports, when I can ask about the specific facts the case depends on.

Reading the Discovery, and Then Reading It Again

Massachusetts requires the Commonwealth to produce a defined set of material automatically, without a request. Mass. R. Crim. P. 14. That includes the reports, the statements, the grand jury minutes where there are any, the criminal records of witnesses, and the material the prosecutor intends to use.

I read the packet twice, and the two readings are different. The first time I read for what happened. The second time I read for what the Commonwealth will have to prove, element by element, and I mark which document supplies each element. Everything unmarked at the end of that pass is either irrelevant or a problem.

The third pass is the one that finds cases. I read for what is not there: the officer who is named in one report and wrote none, the time stamp that does not match the dispatch log, the witness described as present who never gave a statement, the field test with no calibration record behind it.

Then I build a chronology in a spreadsheet, one row per event, with the source document and page cited in every row. It takes an afternoon, and I use it for the rest of the case. Contradictions that are invisible in narrative form are obvious when two rows disagree about the same minute.

What Is Missing, and Getting It

Very little discovery is withheld deliberately. Most of what is missing is missing because nobody asked the right agency for it. Body-worn camera footage, dispatch audio, booking video, cruiser video, maintenance and calibration records, and internal affairs history are all obtainable and are frequently absent from a first packet.

I ask for these in writing first, with specificity, because a written request that is refused becomes the record for the motion. A motion to compel under Rule 14 that says the Commonwealth failed to produce discovery is weak. One that attaches a dated letter identifying the item by name is not.

Exculpatory material sits on a separate footing. Due process requires the government to disclose favorable evidence in its possession that could materially aid the defense. Commonwealth v. Tucceri, 412 Mass. 401 (1992). That duty covers evidence held by the prosecutor and by the police who participated in the investigation and presentation of the case. Id.

The practical consequence of that limit is worth stating. If the material is in the hands of an agency that did not investigate this case, a demand for exculpatory evidence will not produce it, and I need a different tool.

Records Nobody Is Required to Hand Over

That different tool is a summons for documents under Mass. R. Crim. P. 17(a)(2). It is how I get records from a hospital, a school, a phone carrier, a private security company, or any other person who is not the Commonwealth.

It is not a discovery device, and treating it as one is the reason most of these motions are denied. Rule 17 is reserved for evidentiary material that is likely to be admissible, and it may not be invoked for the exploration of potential evidence. Commonwealth v. Lampron, 441 Mass. 265, 269 to 270 (2004).

The moving party must establish good cause on four points: that the documents are evidentiary and relevant; that they are not otherwise procurable reasonably in advance of trial by the exercise of due diligence; that the party cannot properly prepare for trial without them and that failure to obtain them may unreasonably delay the trial; and that the application is made in good faith and is not a general fishing expedition. Id.

Relevance here means a factual showing that the material has a rational tendency to prove or refute an issue in the case. Potential relevance and conclusory statements about relevance are not enough. Id. A judge decides these motions on that requirement, and counsel meets it with facts in an affidavit rather than adjectives in a memorandum.

Two mechanics are worth knowing. A clerk cannot issue this process before trial; only a judge can, on a motion. And the supporting affidavit may contain hearsay, provided it identifies the source, the hearsay is reliable, and the affidavit establishes the relevance of the records with specificity. Id. at 269 to 270. That relaxation applies to this motion and to no other pretrial motion.

Privileged Records

Counseling records, treatment records, and similar material held by a third party are governed by a separate protocol. The Supreme Judicial Court established it in Commonwealth v. Dwyer, 448 Mass. 122, 139 to 147 (2006), replacing the earlier procedure that had made these records nearly impossible to obtain.

The Dwyer protocol does not lower the threshold for getting a summons issued. Every one of the Lampron requirements still has to be satisfied first. Id. at 141 to 142. What changed is what happens after production, and how the records are reviewed.

These motions are slow, and they are contested, and they need to be filed early. A motion for privileged records filed six weeks before trial will not be resolved before trial, and a continuance obtained for that reason is a continuance the client pays for in time.

When I Bring in an Expert

I consult an expert far more often than I call one. The consulting expert reads the discovery and tells me what the Commonwealth’s expert got wrong, what the protocol required, and which three questions to ask on cross-examination. That work never appears in front of a jury and it changes cases.

The subjects where I reach for one are consistent: breath and blood testing, digital forensics and cell site data, forensic pathology, firearms and toolmark comparison, drug analysis, and eyewitness identification. In each of those the Commonwealth is offering an opinion, and an opinion cannot be tested by a lawyer who does not understand the method.

Cost is a real constraint and the statute addresses it. Where a party is indigent, a court shall not deny a request for extra costs if it finds the service is reasonably necessary to assure that party as effective a defense as the party would have if financially able to pay. G.L. c. 261, § 27C(4). A request denied requires a hearing and written findings.

Whether an expert opinion is admissible at all is a separate question from whether it is useful to me, and the three jobs an expert does are set out in how I use experts. The reliability requirement applies to the Commonwealth’s expert as much as to mine. Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994).

The Investigation I Run Myself

I go to the location. Not always, but often, and never for the reason people assume. I am not looking for evidence. I am checking whether the officer could have seen what the report describes from where the report says the officer was standing.

Sight lines, distance, lighting at the hour in question, whether a door is visible from the street, how loud the room is when it is full. Those facts are not in any report, and they are frequently inconsistent with it. Photographs taken at the same hour, with the date recorded, become exhibits or become the basis for questions.

Witness interviews are done by an investigator, not by me. A lawyer who interviews a witness alone and gets a different answer at trial has no way to prove the earlier answer without becoming a witness. An investigator can testify. That is not caution for its own sake. It is the structure that keeps the interview usable at trial.

The Motion Schedule

By the time discovery is substantially complete I know which of three things this case is: a case that should be tried, a case with a dispositive motion in it, or a case where the disposition is the whole negotiation. The three are prepared differently and the decision should be made deliberately rather than by drift.

Motions to suppress and motions to dismiss get filed before the trial-motion work begins, because a case can end there. Where a stop, an exit order, a search, or a statement is vulnerable, that is the first fight. Where the complaint itself is defective, the ground appears on the page about how criminal cases get dismissed.

The recurring pretrial and trial motions, and the preservation rules that govern them, are set out on the trial motion practice page. Which of them I file, and which objections I plan to make at trial, is a separate judgment I describe in how I decide when to object.

The Last Two Weeks

Final preparation is mostly subtraction. I have a theory of the case by then, stated in one sentence, and everything that does not serve it comes out. A defense with four arguments in it is a defense the jury will not be able to repeat, and a jury that cannot repeat it cannot deliberate on it.

Cross-examinations are written witness by witness, in the order the Commonwealth will call them, with the transcript or report page for every question that has a document behind it. Where a suppression hearing has already been held, the transcript of that hearing is the best source of material there is. The approach itself appears on the cross-examination page.

I prepare requests for jury instructions in writing, and I prepare the voir dire questions I will ask for at empanelment, both of them submitted in advance. A question handed up before the panel arrives is far more likely to be allowed than the same question raised while forty people wait in the gallery, which is one reason jury selection starts weeks earlier than it appears to.

And I meet the client again, at length, about one decision: whether to testify. That conversation is described in when I put a client on the stand. It is not decided at that meeting, but it should not be heard for the first time on the morning it has to be answered.

What I Want in Hand Before a Jury Is Called

A one sentence theory. A chronology sourced to documents. Every ruling on evidence I can get in advance. Cross-examinations written out. Instruction requests and voir dire questions filed. A client who knows what is going to happen to them for three days and is not learning it in the courtroom.

None of that decides the case. What it does is remove the surprises, so that the result depends on the evidence rather than on something I failed to look for. Cases are still lost after that kind of preparation. Fewer of them are lost for a reason that was avoidable.

How I Give a Closing Argument in a Massachusetts Criminal Trial

Attorney Joe Serpa — Thu, 27 Aug 2026 08:30:00 GMT

By Attorney Joe Serpa | Georgetown University Law Center | Massachusetts Criminal Defense Since 1995

The closing argument is the only time in a Massachusetts criminal trial when I get to say what the evidence means. Everything before it is questions. This is the one stretch where I speak in complete sentences to the jurors about a case they have now watched for two or three days, and where what I say has to survive a prosecutor who speaks after me.

What follows is how I build it: what going first allows, what the rules permit and forbid, the arguments I have to ask permission to make, and what I do while the prosecutor is closing. The general doctrine appears on the firm’s guide to opening statements and closing arguments.

I Go First, and That Changes the Whole Argument

In Massachusetts the defendant closes first. Mass. R. Crim. P. 24(a)(1) requires it, the sequence is mandatory, and I have never seen a judge depart from it. The prosecutor speaks last and answers whatever I have said, and I do not get to reply.

Appellate courts have declined to treat this as a constitutional problem, on the reasoning that while there are advantages to the last word there are countervailing advantages to the first. Commonwealth v. Seminara, 20 Mass. App. Ct. 789, 799 (1985). The order of the closings changes how I write mine.

Concretely, it means I do not build an argument that depends on a point the prosecutor can dismantle in the eight minutes after I sit down. Anything fragile gets cut. What stays is the material that gets stronger, not weaker, when somebody argues against it, because I will not be there to defend it.

It also means I try to predict the Commonwealth’s closing and answer it inside mine. If I know the prosecutor will argue that my client’s account changed, I address the change myself, on my terms, before the prosecutor frames it. An argument the jury has already heard explained is much harder to land the second time.

What the Closing Is For

A criminal defendant has a right to a closing argument, and the reason is the chance finally to marshal the evidence and to sharpen the issues for the jury. Herring v. New York, 422 U.S. 853, 859 (1975). It is not a courtesy that a busy session can trim.

The right has content. A judge may not prevent relevant arguments that remain within the bounds of the evidence and the fair inferences from the evidence. Commonwealth v. Foreman, 101 Mass. App. Ct. 398 (2022), quoting Commonwealth v. Cutty, 47 Mass. App. Ct. 671, 675 (1999), and Commonwealth v. Pettie, 363 Mass. 836, 840 (1973).

That advantage is real in a District Court session moving fast. If a judge tells me in advance that I may not argue a particular inference, and the inference is supported by evidence in the case, I make the objection and I make the record on the spot. The right to make the argument is a real one, and the record is what preserves it.

What I Am Allowed to Say

Counsel may argue forcefully from the evidence and from inferences that may reasonably be drawn from the evidence. Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). Forcefully is the operative word. A closing delivered as a series of polite suggestions invites the jury to treat the argument as tentative.

Credibility is fully available to me. Where the believability of a witness is in issue, counsel may argue from the evidence why that witness should or should not be believed. Commonwealth v. Bol Choeurn, 446 Mass. 510, 522 (2006). So I can argue that an officer’s account changed, that a complainant had a reason to shade the story, or that a memory formed nine months later is worth less than a note written that night.

What I cannot do is turn that into a personal opinion. I never say that I believe a witness lied. I say what the witness said on Tuesday, what the same witness said in the report, and I let the jury supply the word. The version with my opinion in it is both improper and weaker.

What I Am Not Allowed to Say

The limits are not vague. Counsel may not misstate the evidence or refer to facts not in evidence, may not appeal to racial, ethnic, or religious prejudice or to the jury’s sympathy or emotions, and may not comment on the consequences of a verdict. Kozec, 399 Mass. at 516 to 517. An argument that is not supported by the evidence is speculative and conjectural, and therefore improper. Id. at 522.

The consequences limit is the one defense lawyers violate most, usually by accident. Telling a jury what a conviction would do to a young man’s life is a natural thing to want to say and it is not permitted. I keep it out, and if the sympathy is going to do any work it has to come from the facts rather than from me asking for it.

There is also a practical reason to stay inside the lines that has nothing to do with appeals. An improper defense argument does not help my client on appeal from the prosecutor’s closing, because however inappropriate my argument was, it has almost no effect on where the limits of the argument sit. Kozec, 399 Mass. 514. Going over the line costs me something and buys me nothing.

The Argument I Have to Ask Permission to Make

If the Commonwealth had an obvious witness available and never called that person, I may want the jury to draw the natural conclusion. That is the missing witness inference, and it is not something to spring in the middle of a closing.

Because the inference suggests that a party deliberately withheld significant evidence, it should be invited only in clear cases and with caution. Commonwealth v. Figueroa, 413 Mass. 193, 199 (1992). The practice is to obtain the judge’s permission before making the argument. Commonwealth v. Smith, 49 Mass. App. Ct. 827, 830 (2000).

So I raise it at the charge conference, with the foundation laid out: the witness was available to the Commonwealth, the witness would naturally have been friendly to the Commonwealth, and the testimony would have been of real importance. If the judge says no, I do not make the argument, and I have lost nothing except an argument that would have drawn a sustained objection in front of the jury.

Reasonable Doubt Is the Argument

Most defense closings I hear are a list of problems with the Commonwealth’s case. Mine is one question asked eight different ways: what would you have expected to see if this happened the way the Commonwealth says, and where is it.

That framing does the work that a list does not. A list invites the jury to weigh my problems against the Commonwealth’s evidence, which is a comparison my client loses, because the burden quietly becomes shared. A question about what is missing keeps the burden where the law puts it and makes the absence of proof the subject rather than the background.

I also give them permission. Jurors want to do the job correctly, and a person who suspects the defendant did it needs to be told, plainly, that suspicion is not the standard and that acquitting is not the same as declaring the defendant innocent. Jurors who have not heard that said out loud will sometimes convict on suspicion because they believe they are supposed to.

Usually I know exactly who in the box needs to hear it. A juror who said something careful during empanelment about how hard it would be to let someone go is the person that part of the closing is written for, and I have had three days to think about how to say it to that juror.

Where my client did not testify, I say so directly and I say why it means nothing. The decision to stay off the stand is the client’s and the judge will instruct the jury that no inference may be drawn from it, but the instruction lands better if the jury has already heard the same thing from me without apology in it.

What I Do While the Prosecutor Closes

I write. Every sentence that goes past what the evidence showed, and every sentence that touches something a prosecutor may not touch, goes on the pad with a note of where in the argument it came.

The list of things the prosecutor may not say is longer than most people expect. The prosecutor may not argue that my client tailored testimony after sitting through the Commonwealth’s evidence, and may not suggest that only guilty people call a lawyer. Commonwealth v. Person, 400 Mass. 136 (1987). Neither of us may argue anything from the fact that my client sought legal advice. Id.

I do not interrupt. Objection at the conclusion of the prosecutor’s argument is sufficient to preserve the defendant’s rights. Person, 400 Mass. 136, citing Kozec, 399 Mass. at 518 n.8. Interrupting a closing costs credibility with both the jury and the judge, and the rule makes the cost unnecessary.

The same discipline that governs my objections during testimony applies here, with one difference: the closing is the last thing the jury hears from a lawyer, so an improper passage that goes unanswered is the version the jury takes into the room.

What I Ask For at Sidebar

When the prosecutor finishes, I go to sidebar with the list. I state each improper passage, I state the ground, and I ask for a specific curative instruction rather than a general reminder that closing argument is not evidence. A general reminder repairs very little. If no instruction can remove the prejudice, the question becomes whether to request a mistrial, and that request ordinarily permits the Commonwealth to retry the case.

The reason to be specific is what happens afterward. In deciding whether an improper argument requires a new trial, courts consider whether the defendant seasonably objected, whether the error went to the heart of the case or to a collateral issue, what the judge told the jury that may have mitigated it, and whether the error possibly made a difference. Kozec, 399 Mass. at 518; Commonwealth v. Kater, 432 Mass. 404, 422 to 423 (2000).

Three of those four are things I influence at that sidebar. I control whether the objection was made, I control how clearly the record shows the passage went to the heart of the case, and I have a great deal of influence over what the judge says next. The fourth is out of my hands.

Where nothing is said, the standard is far worse. An unpreserved claim about a closing argument is reviewed only for a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Two minutes at sidebar is the difference.

What I Cut

My closings have gotten shorter every year I have practiced. Most District Court closings I give run twelve to fifteen minutes. Beyond that the jury stops listening and starts waiting.

What gets cut is every point that is merely true. A trivial contradiction makes my important contradictions look like more of the same. I would rather make three arguments the jury can repeat to each other than eleven they cannot.

What survives is what I told them at the beginning. If the closing does not land on the same fact I gave them in the opening statement, then either the trial went somewhere I did not expect or the opening promised the wrong thing. Both happen. Neither is a reason to keep arguing a theory the evidence did not support.

The closing is also where the work done during cross-examination finally gets used. I do not argue during cross, and I do not cross-examine during the closing. The answers I collected on Tuesday become the argument on Wednesday, and if I did the first part properly, the second part is mostly reading the jury back what they already heard.

How I Decide When to Object in a Massachusetts Criminal Trial

Attorney Joe Serpa — Thu, 27 Aug 2026 08:13:44 GMT

By Attorney Joe Serpa | Georgetown University Law Center | Massachusetts Criminal Defense Since 1995

Most of the objecting I do in a criminal trial happens before the jury walks in. By the time the first witness is sworn, the evidence I care about has usually been argued in writing, in front of the judge, with the jury somewhere else. What is left for trial is a much shorter list than clients expect, and the discipline is in keeping it short.

What follows is how I use motions in limine, what those motions preserve and what they do not, and how I decide which objections to make once testimony starts. The short version of the last part is that I object far less than people expect, and I do it deliberately.

Why Most of the Argument Happens Before Trial

A motion in limine is a written request, filed before trial, asking the judge to rule on evidence in advance. It is where I want the argument about a prior conviction, a statement my client made to an officer, a photograph, or an expert opinion. At trial I get one sentence and a ruling. In writing I get pages, and the judge has time to read them.

The practical difference is large. An objection at trial is heard by the jurors, six in the District Court and twelve in the Superior Court, who do not know why I am making it and cannot be told. The same argument in a memorandum filed three days earlier is heard by the judge, the only person who decides admissibility, with citations attached and no audience drawing conclusions about what I am hiding.

So that is where the work goes, and it is the reason pretrial motion practice decides more Massachusetts criminal cases than cross-examination does. I file on the two or three items that determine the outcome. A motion listing fourteen exclusions tells the judge I have not decided which exclusions would change the outcome.

Phone records, text messages, and extraction reports belong in this stage almost every time, assuming they survived the motion to suppress that came before. The foundation questions are technical, the volume is large, and no useful version of that argument can be made in the four seconds available while the exhibit is being handed to the clerk. The detail appears on the page about objecting to digital evidence.

What a Motion in Limine Preserves and What It Does Not

This deserves stating precisely, because the rule changed. For many years a motion in limine preserved nothing unless counsel also objected when the evidence came in at trial. In 2016 the Supreme Judicial Court did away with that requirement. An objection raised in a motion in limine preserves a defendant’s appellate rights without a renewed objection at trial, where the motion identified the same evidence and the same ground and the judge heard and denied it. Commonwealth v. Grady, 474 Mass. 715, 719 (2016); Mass. G. Evid. § 103(b).

The limitation on that rule is where the point gets lost. Preservation applies only if what is objectionable at trial was specifically the subject of the motion. Id. Asking the judge to bar a witness from testifying at all is a challenge to who may testify. Asking the judge to exclude particular information is a challenge to what may be said. They are not the same motion, and the second one is not preserved by the first.

The Court discouraged a practice that judges used to follow routinely. A judge ought not to indicate at the motion in limine stage that a defendant’s appellate rights are being saved or preserved, because that phrase can lull counsel into failing to object to the part the motion never covered. Id. When I hear it, I take the reassurance and object at trial anyway.

A ruling in limine is also not final, and it is subject to change as the case unfolds. Commonwealth v. Jones, 464 Mass. 16, 18 (2012). A motion I lost at nine in the morning is worth renewing at two in the afternoon, once the Commonwealth’s own witness has changed what the evidence is for. Judges are far more receptive to the second version, because by then they have heard the testimony instead of a description of it.

Why I Object Less Than Clients Expect

Clients watch trials on television and count objections. They should not. Every objection is a message to the jury, and it is almost never the message counsel intends. A lawyer who objects constantly looks like a lawyer keeping something from them, and jurors resolve that impression against the person doing the hiding.

Judges respond the same way. A judge who has overruled six objections in an hour is not in the frame of mind I want when I make the seventh, and the seventh objection is usually the one I most need the judge to sustain. Credibility with the bench is a finite quantity in a two day trial, and it is spent one objection at a time.

There is a mechanical problem as well. Interrupting a witness in the middle of a damaging sentence means the sentence gets repeated, argued about at sidebar, and remembered. Testimony that would have passed the jury unnoticed becomes the part of the day they discuss at lunch.

So the working rule is straightforward. I object where the evidence would change the verdict, and I let the rest go. Most of what is technically objectionable in a District Court trial is not worth what objecting to it costs.

The Objections I Always Make

The list is short and it does not vary. Anything that puts my client’s criminal record in front of the jury when my client has not testified is the first item, because that is the single piece of evidence most likely to produce a conviction on something other than the charge. The related question of whether the client testifies at all usually depends on the same analysis.

The second is any testimony that goes past what the motion in limine covered, for the preservation reason above. The third is an officer offering an opinion about guilt, credibility, or what somebody was thinking, which is common and which is the kind of error appellate courts take seriously.

The fourth is not an objection at all. When a witness answers a proper question with something the question did not ask for, the correct remedy is a motion to strike, and a motion to strike is the proper means of eliminating an answer that is objectionable on substantive grounds or because it is not responsive. Commonwealth v. Grady, 474 Mass. 715 (2016). Objecting to the question that was already answered accomplishes nothing.

When striking an answer and instructing the jury cannot remove the prejudice, I must decide whether to request a mistrial. That decision has consequences beyond the immediate ruling because who requested or consented to a mistrial can determine whether the Commonwealth may retry the case.

The Objections I Let Go

Leading questions on background go. So do leading questions on anything not in dispute, and most hearsay that does not hurt. If the prosecutor wants to lead the officer through badge number and years on the job, I have no interest in slowing that down.

The more important category is evidence that is objectionable and helpful. This happens far more often than lawyers admit. An officer volunteers a detail that is plainly inadmissible and that also contradicts their own report. I want that in the record, and I want it in without the jury seeing me want it.

I also let go of anything that would produce a limiting instruction I do not want. The jury are presumed to have followed the judge’s instructions. Commonwealth v. Webster, 480 Mass. 161, 171 (2018). That presumption operates in both directions. An instruction telling the jury they may consider a prior act for intent but not for character is an instruction that says the prior act out loud, slowly, in the judge’s voice.

And I let go of the objection I know I will lose where losing it in front of the jury costs more than the evidence does. A recanting complainant’s earlier statement, offered under an excited utterance exception, is usually coming in. Fighting it twice does not change that, and the second fight tells the jury how much the statement worries me.

How I Object

Briefly. The word objection and nothing after it where the ground is obvious, and the ground stated where it is not. Under Mass. R. Crim. P. 22 a party who objects may state the precise legal grounds, but may not argue or further discuss those grounds unless the judge calls for argument. That rule describes how the good trial lawyers in Boston already behave.

Specificity persuades more than volume. A general objection can be insufficient where the judge could not know, at the moment it was made, whether the evidence would turn out to be admissible. Commonwealth v. Cancel, 394 Mass. 567 (1985). Where the ground should have been obvious to the judge and to opposing counsel, the failure to state it does not forfeit the point. Id.

The ground I give is the ground I am left with. Where a defendant advanced precise grounds at trial in support of an objection, the defendant may not rely on a different ground on appeal. Commonwealth v. Carlson, 448 Mass. 501, 506 (2007). Relevance and hearsay are not the same objection as foundation. Saying one of them does not save the other, and appellate counsel cannot repair that later.

After the ruling I stop. One sentence at sidebar if the judge invites it, and then I move to the next question. Arguing with a judge in front of a jury has never once improved a ruling, and the jury reads the exchange as a lawyer who did not get their way.

What Happens When I Say Nothing

A prompt objection at trial is ordinarily required to present an issue for appellate review, unless the issue was preserved by a motion in limine under the Grady rule described above. Commonwealth v. Gallison, 383 Mass. 659, 669 (1981). Where no objection was made, the claim is reviewed only for a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

That is a demanding standard, and I say so plainly to the clients who ask why a previous lawyer’s silence cannot be undone. The distance between a preserved error and an unpreserved one is often the distance between a new trial and an affirmance of the conviction.

Which is the reason letting things go has to be a decision rather than a habit. Every item I do not object to is an item I have priced out and declined, knowing what declining it forecloses. A lawyer who stays quiet because they did not notice is not exercising judgment, and the record looks identical either way.

The Rulings I Am Not Going to Win on Appeal

The trial judge decides, in the judge’s broad discretion, whether evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect. An appellate court does not disturb those rulings absent palpable error. Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010).

So an objection built on balancing rarely succeeds above the trial court, because the review is deferential, and that changes how I spend it. I make the record because the record has to exist. I do not build a defense on the hope that an appellate court will second-guess how one judge weighed prejudice on one morning.

What does get reversed is a category error: hearsay that fits no exception, an opinion beyond the witness’s qualification, a confrontation problem in the way a substitute analyst was used. Those are the objections I protect, and protecting them means not spending the judge’s patience on the ones that were never going anywhere. The same instinct governs how I handle cross-examination.

The Order in Which These Decisions Get Made

An objection in front of a jury is the last step of a decision that began weeks earlier. What has to be kept out for the defense to work, what I can live with, and what I would rather have in evidence than argue about are questions I answer while writing the motions, not while a witness is talking.

By the time the panel is seated, that list is fixed. It shapes what I can say in the opening statement, because I will not describe evidence a ruling may exclude, and it shapes what I look for during empanelment, because a juror’s tolerance for a particular kind of proof weighs more heavily once I know that proof is coming in.

The lawyer objecting to everything has not decided what the case is about, and by the second afternoon the jury and the judge can both tell. Every fight I chose surfaces again in the closing argument, which is the only part of the trial where I get to explain to the jury what those choices showed.