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

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

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

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

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

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

The Charges and the Deadlock

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

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

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

What the Motion Asks the Court to Do

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

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

The Sufficiency Standard

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

The Commonwealth’s Burden on Criminal Responsibility

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

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

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

The Defense Argument

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

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

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

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

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

Separation of Powers: Who Decides What

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

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

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

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

Double Jeopardy and Retrial

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

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

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

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

If the Motion Succeeds

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

What Happens Next

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

The Rules for Any Massachusetts Defendant After a Hung Jury

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

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

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

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

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

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

What the Law Allowed the Commonwealth to Argue

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

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

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

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

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

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

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

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

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

The Suicide Attempt

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

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

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

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

What a More Measured Prosecution Looks Like

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

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

Where the Case Stands

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

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

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

What the Mistrial Rules Mean Here

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

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

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

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

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

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

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

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

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

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

Mental Impairment and Specific Intent

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

Key Takeaways

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

The Jurors’ Accounts After the Mistrial

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

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

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

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

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

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

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). That decision is worth reading closely, because it also confirms that no degree of racial motivation in traffic enforcement is acceptable as a matter of equal protection. 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 would matter.

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.

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.

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.

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 matter. 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 four specific things that turn out to matter.

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.

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.

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). As a matter of trial practice, the order changes how I write.

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 contradiction that does not matter is a contradiction that 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.

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.

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 only person whose view of admissibility matters, 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 ones matter.

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 something judges used to do as a matter of routine. 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 is usually the one that mattered. 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

Whether evidence is relevant, and whether its probative value is substantially outweighed by its prejudicial effect, are matters entrusted to the trial judge’s broad discretion and are not disturbed 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 why those choices mattered.

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.

Almost every client asks me the same question in the first meeting: when do I get to tell my side. The honest answer is that in most trials the client never does, and that the case is usually better for it. This is the decision clients understand least and resent most, so it is worth explaining properly rather than announcing on the morning it has to be made.

What follows is how I approach it: whose decision it is, why the answer is almost always no, what it costs when the answer is yes, the narrow situations where I have advised a client to take the stand, and what I do to protect the client who does not. The governing rules appear on the right to remain silent page.

Whose Decision It Is

Mine is the advice. The client’s is the decision. A criminal defendant has a fundamental right to testify on their own behalf, and if the client gives that right up the waiver has to be knowing and voluntary, made with sufficient awareness of the circumstances and the likely consequences. Commonwealth v. Freeman, 29 Mass. App. Ct. 635, 639 to 640 (1990), citing Brady v. United States, 397 U.S. 742, 748 (1970).

The statute says the same thing from the other direction. A defendant shall at his own request, but not otherwise, be allowed to testify, and his neglect or refusal to testify shall not create any presumption against him. G.L. c. 233, § 20, Third. A defendant cannot be made to take the stand and cannot be punished for staying off it.

Because the decision is the client’s, my job is to make sure it is being made with real information rather than with the version assembled from television. That means telling the client plainly what the cross-examination will look like, what the jury will hear about their record, and what the alternative is. A client who says yes without knowing those three things has not really decided anything.

Why the Answer Is Almost Always No

The moment my client takes the stand, the trial stops being about whether the Commonwealth proved its case and starts being about whether the jury believes the client. That is a trade I almost never want. The burden does not shift as a matter of law, but it shifts in the room, and no instruction fully undoes it.

The client is also the worst-prepared witness in the building. Every other witness has testified before, or has been prepared by a lawyer who does this weekly, or is a police officer who has been cross-examined a hundred times. My client has been thinking about this for eight months, is frightened, and wants to explain. Wanting to explain is exactly the instinct that a competent prosecutor uses to take a case apart.

And the client will be asked about things I have kept out. A defendant who testifies opens subjects that were unavailable while the client stayed silent. Motions I won before trial can lose much of their value by the middle of a cross-examination. Testimony can open the door to material that was excluded, and the question changes from whether the evidence is admissible against the client to whether it contradicts what the client just said.

What It Costs the Client

The clearest cost is the record. A witness’s prior criminal convictions may be used to impeach credibility within the limits set by G.L. c. 233, § 21, and a defendant who testifies becomes a witness. A record that the jury would never have heard about becomes something they hear about, in the prosecutor’s voice, on the second day of trial.

Counsel should check the statutory limits case by case rather than assume them. A misdemeanor conviction may not be shown after five years from the date sentence was imposed, and the felony limits run ten years from the conviction, the sentence, or the expiration of the minimum term, depending on what was imposed. Those limits are lifted where the witness has been convicted of another crime within the corresponding period.

So before I advise anyone, I pull the record and I do the arithmetic. Whether a fourteen year old conviction comes in can decide the entire question, and that is not something to work out at counsel table while the Commonwealth is resting. The detail on how the impeachment itself is conducted appears on the cross-examination page.

The Times I Have Said Yes

In a narrow set of cases the defense needs the client’s testimony, because a necessary fact exists only in the client’s own knowledge and no other witness or record can establish it. The law does not require the client to testify in any of them, and the jury is instructed to draw no inference from silence.

The clearest is self-defense. The instruction can arise from any evidence in the case, including the Commonwealth’s own witnesses and cross-examination, so testimony is not a legal requirement. In some cases, though, no other evidence establishes what the client reasonably feared, what the client believed at the moment force was used, and why retreat was not an option. Witnesses can describe what the fight looked like from outside. Sometimes only the client can say what it looked like from inside, and without that the defense may not get to the jury.

The second is consent, where the entire case depends on an interaction between two people and one of them has already testified. The third is a specific-intent charge where the conduct is admitted and the only live question is what the client meant by it. The fourth is a case where the Commonwealth has put in a statement of the client’s that is incomplete in a way I cannot cure through anyone else.

Outside those, I am looking for a reason not to. A client who simply wants to deny the charge is not giving the jury anything they do not already have from the presumption of innocence, and the client is paying for the privilege with record and composure.

How I Prepare a Client Who Testifies

I do not rehearse answers. I prepare the client for the shape of the thing: that the prosecutor will ask short questions, that the prosecutor will not allow explanations, will move fast, and will save the worst moment for the end when the witness is tired. A client who expects that is far harder to unsettle than one who has memorized a story.

I make the client practice saying the words I do not remember, and practice saying it without apologizing for it. Most people find that unbearable and offer a guess instead. A guess that turns out to be wrong gives the prosecutor a provable error to work with, and an innocent client has handed it over for nothing.

I also say what I will not do. I will not signal, I will not rescue the witness mid-answer, and I will not object to make a point. The client is alone out there for as long as it takes, and knowing that in advance is part of deciding whether to go.

The Instruction I Ask For When the Client Does Not

When my client does not testify, I usually ask the judge to instruct the jury that no adverse inference may be drawn from that choice. On a proper request, a state trial judge has a constitutional obligation to give that instruction. Carter v. Kentucky, 450 U.S. 288, 305 (1981).

Usually, but not always, and the exception is the reason this has to be discussed with the client rather than decided by habit. Some defendants would rather the judge never mention it, on the view that naming the silence draws attention to it. That choice is available and it is enforceable: it is reversible error for a judge to instruct on the right not to testify where the defendant has asked that no such instruction be given. Commonwealth v. Buiel, 391 Mass. 744, 746 (1984).

So I ask the client which they want, I give my recommendation, and I put the answer on the record before the charge conference. It is a small thing that takes two minutes and it forecloses an argument years later about what the client was told.

When the Decision Gets Made

Not at the first meeting, and not before trial. Whether my client testifies is a tactical decision that depends on how the Commonwealth’s case came in, and the Commonwealth’s case regularly comes in weaker than the file predicted. A witness who was going to be devastating does not remember. An officer contradicts their own report. Half the reason to testify evaporates during the prosecution’s own evidence.

So I tell the client at the start that we will decide when the Commonwealth rests, that I will give my recommendation then, and that the decision will be the client’s. I do not promise an answer earlier, because an answer given earlier is a guess.

That is also why my opening statement never suggests the client will testify. Promising that testimony in the opening takes the decision away before the first witness is sworn, and it hands the prosecutor a broken promise to argue about if the answer turns out to be no.

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.

The opening statement is the only time in the trial when jurors who know nothing about the case will listen to me without interruption. They have just been told the defendant is presumed innocent, and most of them do not yet believe it. What I say in the next few minutes determines whether they hear the Commonwealth’s evidence as proof or as a set of claims that still have to be tested. The opening is also my best opportunity to introduce and humanize my client, to establish trust, and to ease the jury into identifying with, or at least becoming comfortable with, the person they are being asked to judge.

What follows is how I use that time: what an opening is permitted to do, what I promise and what I refuse to promise, the one mistake that cannot be repaired, and what I am doing while the prosecutor delivers hers. The rules and the full authority appear on the companion page for opening statements and closing arguments.

What an Opening Is Allowed to Be

The rule has been the same in Massachusetts for a century. The proper function of an opening is to outline in a general way the nature of the case which counsel expects to be able to prove or support by evidence. Commonwealth v. Fazio, 375 Mass. 451, 454 (1978), quoting Posell v. Herscovitz, 237 Mass. 513, 514 (1921).

Two limits follow from that. An opening is not an opportunity for argument, and counsel may not vouch for the credibility of a key witness. Commonwealth v. Croken, 432 Mass. 266, 268 (2000). I cannot tell the jury that the complainant is lying. I can tell them what the evidence will show about what she said the first time, and what she said the third time.

The standard for what I may mention is good faith. Counsel may reference anything counsel reasonably believes in good faith will be proved by evidence introduced during the trial. Commonwealth v. DePina, 476 Mass. 614, 627 (2017). That is not a high bar to clear honestly, and it is an easy one to fail by accident, because a lawyer who has read a report and assumed a witness will adopt it has not formed a belief about evidence. That lawyer has formed a belief about paper.

That distinction is not a technicality I work around. It is the whole design of the speech. An argument invites a juror to disagree with me. A description of what the evidence will show invites a juror to wait and check. I want the second thing, because I am going to be right about it and the prosecutor is going to be wrong about some of hers.

Whether I Open at All, and When

Nothing requires the defense to open. Waiving an opening has been treated as a tactical decision, a matter of professional judgment, and within the realm of trial strategy. Commonwealth v. Scott, 430 Mass. 351, 357 (1999), quoting Commonwealth v. Cohen, 412 Mass. 375, 391 (1992). I waive rarely, because silence at the start cedes the frame, but I have waived in a short case where the only defense was that the Commonwealth could not prove identity and anything I said would have sounded like a preview of testimony I was never going to offer.

The timing is also mine. Under Mass. R. Crim. P. 24(a)(1) the defense may open immediately after the Commonwealth’s opening or wait until the close of the Commonwealth’s evidence. I weigh both options in every trial, and I almost always take the first, because a jury that has heard two days of the prosecution’s case before hearing anything from me has already decided what the case is about.

Waiting makes sense in one situation. Where I do not yet know whether a contested evidentiary ruling will go my way, and my opening would have to promise something that ruling controls, opening later lets me speak with the ruling in hand. The cost is that the jury spends the entire Commonwealth case with no competing account, and that cost is usually higher than the benefit.

The Promise I Cannot Take Back

Everything I say the evidence will show is a promise, and the jury keeps score whether or not anyone tells them to. If I say a witness will testify to something and that witness never appears, the jury does not conclude that the judge excluded it. The jury concludes that I said something untrue in the first five minutes.

The appellate courts treat this seriously. Failure to present critical evidence that has been announced in an opening statement can have drastic ramifications for a defendant. Commonwealth v. McMahon, 443 Mass. 409, 425 (2005). In some circumstances a lawyer’s failure to produce evidence predicted in an opening may amount to ineffective assistance of counsel. Commonwealth v. Duran, 435 Mass. 97, 109 (2001).

So I promise only what I control. I do not promise testimony from a witness I have not spoken to. I do not promise a document until I have it in my hand and I know it is admissible. I do not promise that my client will explain anything, because that decision belongs to the client and it is not made until the Commonwealth rests.

Where I have a ruling in limine that lets in evidence I intend to use, I still ask myself what happens if the judge revisits it. If the answer is that my opening collapses, I describe the point without staking the speech on it, and I make my record so that the judge knows a reversal mid-trial leaves the jury with a broken promise that was not mine to keep.

What I Say

I open with the thing the Commonwealth cannot show. Not a theory, not a slogan, a fact. In an operating under the influence case it may be that nobody saw the car move. In an assault case it may be that the first person to call the police was my client. The jury should be able to repeat that sentence to each other in the deliberation room three days later.

Then I give them a short account of what happened, in order, in plain words. Jurors organize testimony around whatever structure they are handed first. If I hand them nothing, they use the prosecutor’s. Every witness who testifies after that gets filed into her frame instead of mine.

I keep it short. An opening that runs long stops being an outline and starts being an argument, which draws the objection and, worse, tells the jury I am worried. Most of my openings in a District Court trial run under ten minutes. The jury has just sat through empanelment and they are not ready for a lecture.

I name my client. They have been sitting silently while a stranger described them as a criminal, and the first human thing anyone says about them should come from me. That is not sentiment. A jury that is not permitted to think of the defendant as a person convicts more easily than one that is.

The Burden Is the Spine of It

Every opening I give is built around the same structural fact: my client does not have to prove anything. I say it once, plainly, near the start, and then I never say it again in those words. Jurors discount a phrase they have heard four times.

Instead I make the burden do work through the rest of the speech. I tell the jury what questions they should expect to have answered, and I let them notice for themselves, over the following two days, which of those questions the Commonwealth never answers. That is a promise about the prosecution’s case rather than about my own evidence, which is a promise I can keep no matter what my witnesses do.

Opening When I Will Call No Witnesses

In a great many trials the defense rests without calling anyone. That is a legitimate and often correct choice, and it changes the opening completely. If I am not going to put on evidence, my opening cannot describe evidence I will offer. It has to describe the testing that the Commonwealth’s own witnesses are about to undergo.

So I tell the jury what to watch for on cross-examination: what the officer wrote down that night and what never got written, how many times the account changed, who was never interviewed. Those are facts I can deliver through the Commonwealth’s case, so the promise is safe.

I never suggest, directly or by implication, that my client will testify unless the client has decided to and I am certain of it. The right to remain silent belongs to the client, the decision is made after the Commonwealth rests, and an opening that hints otherwise puts an unkept promise into the case before the first witness is called.

What I Do While the Prosecutor Opens

I write down every factual assertion she makes, in her words, with a mark beside each one I do not believe she can prove. That page becomes the spine of my closing. A prosecutor who tells the jury in the opening that a witness will say something, and then never produces it, has handed me the same weapon I am so careful not to hand her.

I object during an opening only when the harm cannot be repaired later. Interrupting is expensive with a jury and it rarely improves the situation. But where the remark is argument rather than outline, or where it puts before the jury something I know is not coming into evidence, I say so at the time, because a limiting instruction given later is worth less than one given at once.

I also listen for what she leaves out. An opening that spends four minutes on the defendant’s demeanor and thirty seconds on the identification is telling me where the case is weak. Prosecutors, like everyone else, talk longest about what they are most confident in.

Where the Opening Comes From

The opening is written last and prepared first. I do not know what I can say until I know which trial motions have been decided, what survived suppression, and what the judge has ruled on in limine. An opening drafted before those answers is a list of promises I have no authority to make.

It also depends on the jury. What I learned at empanelment tells me which two facts this particular group will find hardest, and the opening is where I address them first rather than hoping nobody noticed. A prepared opening delivered to the wrong jury is a speech, not advocacy.

The last thing I do before standing up is cut it. Whatever I have written, the version the jury hears is shorter, has fewer promises in it, and ends on the single fact I most want in their minds when the first witness takes the stand.

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.

A criminal trial is decided by people I have never met, and I get one short conversation to learn who they are. Empanelment is the only part of the case where I am gathering information instead of testing it. By the time the first witness is sworn, the jury is fixed, and every judgment I made in that hour is locked into the verdict. So I treat jury selection as the first substantive act of the defense, not as paperwork before the real trial starts.

What follows is how I work an empanelment in a Massachusetts criminal case: what I am listening for, how I ask, what the statute and the case law permit, when I challenge, and how the work changes between a District Court session and a Superior Court session. The governing rules and the full line of authority appear on the companion page for jury selection in Massachusetts criminal trials.

Massachusetts applies a different standard after a jury begins deliberating. The firm’s analysis of the Lindsay Clancy juror dispute explains when a judge may question or replace a deliberating juror and why disagreement over the verdict is not itself a lawful basis for removal.

What I Am Listening For

I am not looking for a juror who likes me. I am looking for a juror who can hold the Commonwealth to its burden when the evidence is ugly and the sympathy runs the other way. Those are different people. A juror who nods along with everything I say is often the same juror who will nod along with the prosecutor an hour later.

The question the law asks is whether the juror stands indifferent, which means capable of setting aside personal opinions, weighing the evidence without regard to matters outside it, and following the judge’s instructions. Commonwealth v. Bryant, 447 Mass. 494, 501 (2006). That is the legal standard, and it is also the practical one. I am trying to find out whether a particular person can do that in this particular case.

So I listen for the thing in a juror’s life that sits closest to the charge. In an operating under the influence case, it is the juror who lost someone to a drunk driver. In a domestic violence case, it is the juror who watched a sibling go through it. In a firearms case, it is the juror who was robbed at gunpoint. None of those facts disqualify anyone. The question is what the juror does with them.

I also listen for the opposite problem, which is the juror who has decided in advance to be fair and treats the question as an insult. A person who cannot imagine being influenced by anything is telling me something. Certainty about one’s own impartiality is not the same as impartiality, and it is usually the least examined answer in the room.

What the Panel List Tells Me and What It Does Not

Before the questioning begins I have a list with a name, a town, an occupation, and a few other details for each prospective juror. That is thin material and it is easy to over-read. An occupation is not a personality, and a town is not a politics. I have had jurors whose paperwork suggested one thing and whose answers showed the opposite within ninety seconds.

What the list is good for is preparation. It tells me who works in a field that touches the evidence, which counts when the evidence includes a medical record, a financial document, or a police procedure. A juror with professional knowledge of the subject may apply a standard the evidence was never built to satisfy, in either direction, and I want to know that before the panel is seated rather than after the verdict.

It also tells me who is likely to know a witness. In a case tried in a small District Court session, a juror and a responding officer may live three streets apart. That is worth a question, and it is a question the judge will almost always allow, because a connection to a witness is squarely within the inquiry into whether a juror stands indifferent.

How I Ask

A juror will not volunteer a hard fact to a stranger in an open courtroom. My questions have to make it easy to say the difficult thing, which means I ask about experience before I ask about opinion. People will describe what happened to them long before they will admit what it did to them.

I ask open questions in empanelment, which is the reverse of everything I do on cross-examination. On cross I want a yes or a no and nothing else. At the sidebar I want the juror talking, because a one word answer tells me nothing I can use. So I ask what happened, how it was handled, what the juror thought of it afterward, and then I stop and let the silence do some work.

I never ask a juror to promise me anything. A question that asks whether a person can be fair invites the only answer anyone gives in a courtroom full of strangers. I ask instead what the juror would be thinking about during the testimony, or what would be hardest to put aside. Those questions produce answers a judge can act on.

I keep my own manner flat. Empanelment is the first time the jury sees me, and I want the impression to be that the defense is calm, prepared, and uninterested in theatrics. That impression stays with the jury for the rest of the trial.

The Questions I Do Not Ask

I do not argue the case at empanelment. A question built to plant a defense theory is transparent to the judge, it draws an objection, and it costs me the credibility I need for the rest of the trial. The panel notices when a lawyer is campaigning, and jurors resent being handled.

I do not ask a juror to commit to anything in advance. A question that asks whether a person could acquit if the Commonwealth failed to prove one element is asking for a promise about evidence nobody has heard. Those questions are ordinarily disallowed, and when they are allowed the answer is worthless, because a promise extracted in front of forty strangers predicts nothing about deliberations three days later.

I do not embarrass anyone. If a subject is truly sensitive I ask for it to be taken at sidebar, and I ask before the question rather than after the answer. A juror humiliated in open court is a juror who stops talking, and every other person on that panel watches it happen and draws the obvious conclusion about what candor costs.

What the Law Lets Me Ask

In a Superior Court trial, the judge must permit attorney-conducted voir dire on request, and counsel may examine prospective jurors directly, individually or as a panel, subject to the judge’s control of the process. G.L. c. 234A, § 67D, inserted by St. 2016, c. 36, § 4. That is a comparatively recent change. Before it the questioning was almost entirely the judge’s. In the District Court and the Boston Municipal Court, counsel may examine jurors only under the direction of the court. G.L. c. 234A, § 67A.

The statute did not displace the judge. The Supreme Judicial Court held in Commonwealth v. Kennedy, 478 Mass. 804, 818 (2018), that nothing in attorney-conducted voir dire restricts a judge’s broad authority to ask prospective jurors appropriate questions designed to determine whether the juror is impartial. A trial judge has considerable discretion over how empanelment is conducted. Commonwealth v. Andrade, 468 Mass. 543, 547 (2014).

That discretion runs in the defense’s favor as well. A judge must examine jurors fully regarding possible bias or prejudice where it appears that there is a substantial risk that jurors may be influenced by factors extraneous to the evidence presented to them. Commonwealth v. Perez, 460 Mass. 683, 688 (2011); Commonwealth v. Garuti, 454 Mass. 48, 52 (2009). When I have a real basis to think an extraneous influence is present, I say so on the record and ask for the inquiry.

Requesting the questions in writing before the panel arrives is the part of this that gets skipped. A proposed voir dire question submitted in advance, tied to a specific risk in the case, is far more likely to be asked than the same question raised for the first time while forty people wait in the gallery.

When I Challenge for Cause

A challenge for cause costs nothing and is granted less often than it should be, so I make the record whether or not I expect to win. If the judge denies the challenge and I later spend a peremptory on that juror, I have preserved something, but less than most people assume.

Here is the limit, and it is worth knowing before the trial rather than after. A judge has considerable discretion in jury selection, and a finding that a juror stands indifferent will not be disturbed except where juror prejudice is manifest. Commonwealth v. Clark, 446 Mass. 620, 629 to 630 (2006). Being forced to spend a peremptory on a juror the judge would not strike is not by itself reversible error. Commonwealth v. Bryant, 447 Mass. 494, 499 to 500 (2006).

What it takes is the full sequence. Prejudice is generally shown by using a peremptory to remove the juror who should have been excused for cause, together with evidence that the defendant was later forced to accept a juror the defense would have struck but could not, because the peremptories were gone. Commonwealth v. McCoy, 456 Mass. 838, 842 (2010).

Reversal follows where the judge refuses to excuse a juror who should have been excused, the defendant exhausts the challenges as a result and is left with a juror the defense would have removed. Commonwealth v. Nelson, 91 Mass. App. Ct. 645, 647 to 648 (2017).

In plain terms, a denied cause challenge by itself buys nothing. It becomes an appellate issue only if I use a peremptory on that juror, run out of peremptories, and then have to accept someone I would have removed. The objection also has to be made before the verdict, because no irregularity in the impanelling of jurors sets aside a verdict unless the objecting party was injured or the objection was made in time. G.L. c. 234, § 32.

The moment that decides a cause challenge is usually the follow-up. A juror says something troubling, the judge asks whether the juror can nonetheless be fair, and the juror says yes. That exchange is ordinarily enough to defeat the challenge, and appellate review of it is deferential. Knowing that, I try to get to the substance before the rehabilitating question arrives rather than after.

What I want on the record is the juror’s own description of the difficulty, in the juror’s own words, before anyone offers an easy way out of it. A juror who says the memory would be in the back of her mind the whole time has given the judge a reason. A juror who says she can be fair has given the judge a conclusion.

When a challenge is denied I state the ground once, clearly, and I move on. Arguing with a judge about a juror in front of the panel costs more than the juror is worth. The objection is preserved by making it, not by repeating it, and the rest of the panel is still watching how the defense behaves when it does not get its way.

I also watch for the juror who wants off the case for reasons that have nothing to do with this case. Hardship is real and judges take it seriously, but a person determined to be excused will sometimes offer an opinion they do not hold in order to get there. A juror manufacturing bias is a different problem from a juror disclosing it, and the two sound almost identical from counsel table.

Peremptory Strikes and the Limits on Them

Peremptory challenges are limited in number by Mass. R. Crim. P. 20(c), and they are limited in kind by the Massachusetts Declaration of Rights. Article 12 prohibits striking a juror on the basis of sex, race, color, creed, or national origin. Commonwealth v. Soares, 377 Mass. 461, 488 to 489 (1979). The same conduct violates the federal equal protection guarantee. Batson v. Kentucky, 476 U.S. 79 (1986). Sexual orientation and religious belief are protected as well. Mass. G. Evid. § 1116.

How many I get depends on the court and on the exposure. In a District Court trial before a jury of six, each defendant has two. Mass. R. Crim. P. 20(c)(1); Commonwealth v. Nelson, 91 Mass. App. Ct. 645, 647 n.3 (2017).

In any other criminal case tried before a jury of twelve, each defendant has four. Mass. R. Crim. P. 20(c)(1). On an indictment for a crime punishable by imprisonment for life, each defendant has twelve, and one more for every additional juror impaneled, so a case seated with one alternate gives each defendant thirteen. Commonwealth v. Berardi, 88 Mass. App. Ct. 466, 469 to 470 (2015).

That gap changes how I spend them. With two strikes in a District Court session I cannot afford a sentimental one, so I decide before empanelment which single juror profile I most need removed and I hold the second strike for whatever the questioning turns up. In a case with life exposure I have room to remove a juror on instinct, and I still keep a running count, because running out early is how a defendant ends up with the juror the defense most wanted gone.

One thing worth saying plainly, because it surprises people: there is no constitutional right to a peremptory challenge at all. Commonwealth v. Mello, 420 Mass. 375, 396 (1995). The right to an impartial jury is constitutional. The strikes are a creature of the rule, and the rule gives a different number in a different courtroom.

The mechanics matter, because objecting at the wrong moment loses the point. Soares begins with a presumption that peremptory challenges are being used properly. Either party may rebut that presumption by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Commonwealth v. Sanchez, 485 Mass. 491, 511 (2020). Sanchez retired the older requirement of a pattern across several strikes. The initial burden is minimal, and in the right circumstances a single strike supports the objection.

Shared group membership between the defendant and the excluded jurors is not required, though the judge may consider it, and the group membership of the complainant and of the jurors already seated is a significant factor as well. Soares, 377 Mass. at 490. Once the inference is raised, the burden shifts to the striking party to give a group-neutral reason specific to that juror and tied to the case, and the judge must then find whether the reason is both adequate and genuine. Mass. G. Evid. § 1116.

So I count. I keep a written record of who was struck, by whom, and in what order, because the totality of the circumstances is a factual showing and it cannot be made from memory at sidebar. If I raise the objection, I raise it with the numbers in front of me.

The same rule binds me. A peremptory I exercise for a reason that pertains to a juror’s group rather than to that juror is improper whether the Commonwealth objects or not, and the remedy rests with the judge. The usual remedy is denial of the strike, and the challenged juror is seated. Mass. G. Evid. § 1116. Where the misuse is systematic, the judge may discharge the jurors already seated and begin again with a fresh venire. Soares, 377 Mass. at 491.

District Court and Superior Court Are Different Rooms

In a busy District Court session the empanelment may be over in under an hour, with a large panel, a fast pace, and a judge who has a full list behind this case. The questions have to be short and the priorities have to be settled before I walk in. I decide in advance which two subjects I will spend time on, because I will not get four.

Superior Court gives more room, and in a case with serious exposure the individual questioning is where the case is often won or lost. There I will ask for individual voir dire on the specific risk in the case, submit the questions in writing, and expect to be at sidebar with jurors one at a time.

Either way the client sits beside me through all of it. I tell every client in advance what empanelment looks like, how long it takes, and why I may say almost nothing for the first twenty minutes, because a client who does not know what is happening reads silence as inattention.

I also ask the client to watch. A client will sometimes recognize a name, a face, or a street that means nothing to me, and that recognition has changed my strike list more than once. I tell the client to write it down rather than say it, because the panel is close enough to hear and a whispered conversation at counsel table is visible to everyone in the room.

The Work Happens Before the Panel Arrives

By the time the venire walks in, my proposed questions are filed, my cause priorities are set, my strike chart is drawn, and I know which two facts in this case are most likely to make an ordinary person stop listening. Everything after that is execution under time pressure.

Jury selection is the first of the trial skills, and it runs into the rest of them. What I learn at empanelment shapes what I say in the opening statement, which witnesses I press on cross-examination, and which trial motions are worth filing. A jury chosen without a theory of the case is a jury chosen at random.

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.

The Rule From Portillo

The governing case is Commonwealth v. Portillo, 462 Mass. 324 (2012). Under Portillo, when the Commonwealth intends to offer, in its case-in-chief, statements a defendant made in a foreign-language recorded interview, the trial judge has discretion to require the Commonwealth to provide defense counsel with an English transcript of the interview before trial, and to exclude the statements if the Commonwealth declines to prepare one. The rationale is reliability. Without a transcript, a prosecutor may be unable to verify whether the interrogating officer’s account rests on an accurate translation and recollection, which can implicate the duty to disclose exculpatory evidence. The Supreme Judicial Court has separately emphasized enhanced protections for non-English-speaking defendants, including the recording of interviews conducted through interpreters. See Commonwealth v. AdonSoto, 475 Mass. 497 (2016).

What the Court Decided

In Figueroa, the trial judge kept the statements out of the Commonwealth’s case-in-chief, but warned the defendant that the statements might be admissible if he testified. The defendant did testify, and he described a version of events, including a claim that the two brothers had knives and that he defended himself with a tree branch, that he had not mentioned during the recorded interview. The Commonwealth then called the interrogating detective in rebuttal to establish the omission. The Appeals Court held that Portillo does not require a transcript before the Commonwealth uses a defendant’s prior inconsistent statements to impeach him, and that the decision remains within the trial judge’s discretion. A defendant who voluntarily testifies waives the privilege against self-incrimination and may be impeached like any other witness. The decision whether to testify is therefore inseparable from the decision to invoke the right to remain silent during the investigation.

The Court was careful about the limits of its holding. It stated that a judge could, in the proper exercise of discretion, still refuse to allow such testimony without a translated transcript, and it noted that prudence favors translating the interview and providing a copy to defense counsel. The Court also observed that the defendant had not shown that the detective’s translation was inaccurate, had not sought a continuance to obtain a translation, and had not argued that he was unable to cross-examine the detective. The outcome rested on the absence of any such showing, not on a rule that a transcript is never required.

The Medical Records Question

The defendant also challenged three statements admitted from his medical and ambulance records, including references to his arrest and police custody. Records kept by hospitals are admissible under the statutory hearsay exception, G. L. c. 233, § 79, so far as they relate to the treatment and medical history of the patient. See Mass. G. Evid. § 803(6)(B) (2026). Second-level hearsay within such records is admissible when it rests on the personal knowledge of those under a medical obligation to transmit the information. See Commonwealth v. Wall, 469 Mass. 652 (2014); Bouchie v. Murray, 376 Mass. 524 (1978). A record that relates directly and mainly to treatment and medical history is admissible even though the recorded facts may incidentally bear on culpability. See Commonwealth v. Cole, 473 Mass. 317 (2015); Commonwealth v. DiMonte, 427 Mass. 233 (1998). The Court did not decide whether the references to custody and arrest were properly admitted, because any error was not prejudicial. The references were cumulative of the defendant’s own testimony that he was arrested and then taken to the hospital.

The Bottom Line for a Pending Case

The protections around a foreign-language interrogation are strongest before the defendant testifies, and a defendant who takes the stand may make admissible the very statements that were kept out of the Commonwealth’s case-in-chief. When a client is questioned in a language other than English, defense counsel should demand a recording and a certified translation early, should compare the officer’s account against the recording, and should be prepared to seek exclusion or a continuance where the accuracy of the translation is in question. Where the client is not a United States citizen, the same statement can have immigration consequences on top of the criminal exposure. These issues are part of understanding what to do in the first 24 hours after an arrest and the broader Massachusetts criminal court process. Where a statement was obtained unlawfully, the remedy is litigated through the motion to suppress. Attorney Serpa reviews every recorded interview, and every translation of one, before deciding how a case should be tried.

The Trial and the Verdicts

A criminal complaint issued on August 31, 2022, charging the defendant with threatening to commit a crime, G. L. c. 275, § 2, two counts of assault and battery on a family or household member, G. L. c. 265, § 13M (a), and assault by means of a dangerous weapon. After a two-day trial in August 2023, the jury convicted the defendant of one count of assault and battery on a family or household member, acquitted him of the other, and acquitted him of assault by means of a dangerous weapon. The complainant testified that the defendant struck her and held a small kitchen knife to her neck; the defendant testified and denied it. The case turned entirely on which account the jury believed.

The Prosecutor’s Closing Argument

The defendant identified a series of improper statements in the closing. Three categories mattered most. First, the prosecutor told the jury that false accusations motivated by revenge or anger “doesn’t happen.” That statement was improper vouching, because it implied that the prosecutor had knowledge, independent of the evidence, about how charges are brought. Improper vouching occurs when an attorney expresses a personal opinion regarding the credibility of a witness or suggests knowledge independent of the evidence before the jury. Commonwealth v. Muller, 477 Mass. 415, 433 (2017); Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). The Commonwealth conceded on appeal that the phrase was “certainly ill-advised.”

Second, the prosecutor misstated the evidence, including an assertion that the defendant had “slammed” the complainant’s head, which no witness had said. A prosecutor may not misstate the evidence or refer to facts not in evidence in closing argument. Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). Third, the prosecutor declared, “This fight did happen. [The defendant] did do those injuries to [the victim]. He did beat her up.” A prosecutor may urge the jury to draw inferences from the evidence, Commonwealth v. Martinez, 476 Mass. 186, 199 (2017), but may not express a personal opinion on the defendant’s guilt. Commonwealth v. Penn, 472 Mass. 610, 627 (2015); Commonwealth v. Howell, 394 Mass. 654, 661 (1985). The panel held that these were definitive assertions of guilt, not argued inferences.

The Appeals Court’s Decision

Trial counsel had not objected, so the Appeals Court reviewed for a substantial risk of a miscarriage of justice, and it found one. The case was the complainant’s word against the defendant’s, and the improper remarks went to the heart of the case: her credibility. The judge’s instructions that closing arguments are not evidence came before the closings and were not repeated afterward, and the panel concluded that these standard instructions could not cure errors of this significance. Commonwealth v. Dirgo, 474 Mass. 1012, 1017 (2016). The court vacated the judgment and set aside the verdict. It rejected the defendant’s separate argument that the absence of a specific unanimity instruction was structural error, reviewing that omission under the same substantial risk standard, Commonwealth v. Palermo, 482 Mass. 620, 629 (2019), and it held that the defendant’s double jeopardy argument was premature: if the Commonwealth seeks a retrial, the defendant may then move to dismiss. Commonwealth v. Hrycenko, 417 Mass. 309, 314-317 (1994).

What the Decision Means for a Domestic Violence Case

Many domestic violence prosecutions are credibility contests with no independent witnesses, and this decision confirms that the rules of argument are strictest exactly there. Jurors are the sole judges of credibility, and they want to do that job on the evidence; an argument that tells them the complainant must be believed because false accusations do not happen takes the decision away from them. For the defense, the decision is a reminder that closing arguments must be scrutinized in real time and preserved for appeal, and that even without an objection, pervasive error in a word-against-word case can require a new trial. It is also a reminder that a jury verdict is not always the last word: this conviction was vacated on appeal, and the split verdicts at trial, acquittals on two of the four charges, show a jury that was already weighing the evidence charge by charge.

The Records After a Vacated Conviction

A vacated conviction, like a dismissal or an acquittal, leaves a paper record: the docket, the police reports, and the Board of Probation entry all persist unless further steps are taken. What each record shows and what can be done about it is treated in Domestic Violence Case Records in Massachusetts. A defendant who prevails on appeal should address the records question as part of finishing the case.

The Bottom Line for a Pending Case

A domestic violence trial that comes down to one person’s word against another’s is winnable, and it is also protectable on appeal when the Commonwealth argues beyond the evidence. Anyone facing an assault and battery charge involving a family or household member should have trial counsel who knows the boundaries of closing argument and enforces them. Serpa Law Office tries domestic violence cases in the Boston Municipal Court and the district courts of Greater Boston.

Forensic drug evidence presents two separate questions. The Commonwealth must prove the identity of the substance and, when required by the charge, its weight. It must also introduce its evidence without violating the defendant’s right to confront the witnesses against the defendant. A laboratory certificate, an analyst’s notes, raw instrument output, and a reviewing expert’s opinion do not all receive the same constitutional treatment.

The governing rule is specific. The Confrontation Clause restricts testimonial out-of-court statements offered for their truth. It does not exclude every laboratory record, require the same witness in every forensic case, or make scientific evidence inadmissible whenever more than one analyst participated. The court must identify the statement, its primary purpose, whether it is offered for its truth, and whether the testifying expert’s opinion depends on it.

This article addresses that evidentiary issue. The firm’s Massachusetts drug-crime defense page covers the underlying offenses, and the distribution and trafficking page explains when drug identity and weight become statutory elements.

Melendez-Diaz and Drug Certificates

In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), prosecutors introduced certificates stating that laboratory testing had identified seized substances as cocaine. The United States Supreme Court held that the certificates were testimonial. The analysts who created them were witnesses for Sixth Amendment purposes, and the prosecution could not use the certificates in place of confrontation.

The decision does not depend on whether a certificate appears reliable or whether the laboratory follows accepted procedures. The constitutional question is whether the prosecution offers a testimonial assertion from an absent witness against the defendant. Unless an exception applies, the declarant must be available for cross-examination or be unavailable after the defendant had a prior opportunity to cross-examine that witness.

Bullcoming v. New Mexico, 564 U.S. 647 (2011), applied the same principle when the prosecution introduced one analyst’s forensic certification through another laboratory witness who had not performed or observed the reported analysis. The testifying witness’s general familiarity with laboratory procedures did not provide an opportunity to cross-examine the person who made the case-specific assertions in the report.

Smith v. Arizona and an Expert’s Basis Testimony

In Smith v. Arizona, 602 U.S. 779 (2024), the prosecution called a substitute analyst who described an absent analyst’s work and then offered an opinion based on that work. The state court treated the absent analyst’s statements as nonhearsay because they explained the basis of the substitute expert’s opinion rather than proving their truth.

The Supreme Court rejected that reasoning. When an expert conveys an absent analyst’s statement to support an opinion, and the statement supports the opinion only if it is true, the statement is offered for its truth. Calling it the basis of an opinion does not avoid the hearsay question or the Confrontation Clause.

Smith did not decide whether every statement at issue in that case was testimonial. The Supreme Court remanded for the state court to address that issue. A complete analysis therefore requires both parts: the absent statement must be offered for its truth, and it must be testimonial.

Commonwealth v. Gordon and the Massachusetts Rule

Commonwealth v. Gordon, 496 Mass. 554 (2025), applied Smith to Massachusetts drug testing. The original analyst performed gas chromatography-mass spectrometry testing and recorded the procedures, protocols, and results. A crime-laboratory supervisor completed technical and administrative review but did not participate in or observe the testing. The supervisor testified to an opinion identifying the controlled substance.

The Supreme Judicial Court held that the original analyst’s case-specific notes were testimonial hearsay. Although the raw instrument output was machine generated and not itself hearsay, the supervisor’s opinion also depended on the truth of the original analyst’s statements about the processes and protocols used to produce that data. The substitute opinion was therefore not independent in the constitutional sense.

The current Massachusetts Guide to Evidence, § 703, states the resulting rule: a prosecution expert’s opinion in a criminal case may not depend on testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. The rule applies even when the prosecution does not elicit the absent analyst’s statements directly during the substitute expert’s testimony.

Gordon also addressed timing. The corrected opinion states that the holding should not apply retroactively to convictions that became final before Smith. It applies prospectively and to cases that were active or pending on direct review when Smith was issued. Whether a particular case receives the benefit of the rule therefore depends on its procedural posture.

A Substitute Expert Is Not Categorically Barred

The rule does not require courts to exclude every expert who did not personally perform each laboratory step. An expert may testify from personal knowledge about work the expert performed or observed. An expert may also form an opinion from independently admissible facts or data that are not testimonial hearsay, if the evidence satisfies the other rules governing expert testimony.

The problem arises when the opinion depends on accepting an absent analyst’s testimonial account of what occurred in the particular case. A supervisor’s credentials, general knowledge of the laboratory, or review of a file does not convert those assertions into personal knowledge. The inquiry concerns the foundation of the actual opinion, not the witness’s job title.

A witness may also describe general laboratory procedures from personal knowledge without proving that another analyst followed those procedures in the defendant’s case. The prosecution needs admissible evidence connecting the general procedure to the actual sample, preparation, testing, controls, and results on which the opinion depends.

Machine-Generated Data and Human Assertions

Pure machine output is not a statement by a person and is not hearsay on that basis. That principle does not make the surrounding human work irrelevant. A person may have selected the item, prepared a sample, entered information, chosen a method, operated the instrument, evaluated quality controls, or interpreted the output. Statements describing those case-specific acts may be necessary to make the data useful.

The court should separate the machine-generated material from the human assertions. Relevant questions include:

• What raw data did the instrument create without a human assertion?
• Who selected, weighed, prepared, or placed the sample into the instrument?
• What case-specific procedures, controls, and observations appear only in an absent analyst’s notes?
• Can the testifying expert reach the proposed opinion without accepting those statements as true?
• What evidence authenticates the data and connects it to the exhibit allegedly seized?

These questions apply beyond drug chemistry. DNA analysis, toxicology, ballistics, and digital forensics may also combine machine output with human preparation, observation, and interpretation. The constitutional result depends on the statements and testimony offered in the particular case.

Reviewing the Drug-Laboratory Record

A complete record may include the police submission form, evidence seals and identifiers, custody entries, analyst worksheets, sampling notes, weight records, standards and controls, instrument output, technical review, administrative review, and the final certificate or report. Each document serves a different purpose and may contain both machine-generated information and human assertions.

The defense should compare those materials with the witness the Commonwealth intends to call. The review can determine what the witness did personally, what the witness observed, what comes from another person, and what portions of the proposed opinion require the absent analyst’s account to be true. It can also identify ordinary authentication, reliability, sampling, or weight issues that exist independently of confrontation.

Chain of custody is one example. A gap does not automatically exclude the substance or laboratory result. Courts may treat some gaps as affecting weight rather than admissibility. The legal effect depends on the defect, the remaining foundation, and whether the Commonwealth can reliably connect the tested item to the evidence allegedly seized.

Raising and Deciding the Confrontation Issue

The issue may be presented through a motion in limine, a trial objection, a request for a detailed offer of proof, or another procedure appropriate to the case. The court needs the proposed testimony and the underlying materials to determine whether the expert will convey testimonial hearsay or offer an opinion that depends on it.

The objection should identify the absent declarant, the specific statement, the reason it is testimonial, the way it is offered for its truth, and the portion of the substitute opinion that depends on it. A general objection to a “substitute analyst” may be too broad because some testimony may concern the witness’s personal knowledge or admissible nonhearsay data.

If the court excludes testimonial statements or a derivative opinion, the effect on the charge depends on what admissible evidence remains. The Commonwealth must prove the identity of the controlled substance, but the law does not make a laboratory certificate the only possible form of proof in every case. In a trafficking prosecution, the Commonwealth must also prove the applicable net weight range. Exclusion may be decisive, or other admissible evidence may require further litigation.

Forensic Evidence Within the Complete Drug Case

Confrontation is one part of the defense. The case may also present disputes about the search, possession, intent to distribute, joint venture, sampling, drug identity, or weight. A laboratory objection does not replace those questions, and proof of a substance does not establish who possessed it or what that person intended.

The firm’s article on suppression and trial evidence in Massachusetts drug cases places forensic proof within that broader sequence. The Massachusetts drug-crimes FAQs provide shorter answers about laboratory evidence, constructive possession, searches, and suppression.

Serpa Law Office represents defendants in Massachusetts drug cases involving forensic evidence, substitute experts, possession, distribution, and trafficking. Contact the firm at 617.936.0201 to discuss the proposed evidence and the charge.

On July 9, 2026, the Supreme Judicial Court decided Commonwealth v. Watson, SJC-13850 (July 9, 2026), and held that G. L. c. 278A, the postconviction forensic and scientific analysis statute, permits digital forensic analysis of cell phones. The Commonwealth had argued that the statute covers only scientific testing of physical evidence for biological material. The court disagreed. A person convicted of a crime in Massachusetts may seek postconviction digital forensic analysis of a cell phone in the Commonwealth’s possession, including a phone seized from a codefendant, under the same procedure that has governed DNA testing since 2012.

The Statute

Chapter 278A was inserted by St. 2012, c. 38, “An Act providing access to forensic and scientific analysis.” It establishes a process, separate from the trial and from any later challenge to the conviction, that permits forensic and scientific analysis of evidence, the results of which could support a motion for a new trial. Commonwealth v. Clark, 472 Mass. 120, 121-122 (2015). The Legislature enacted it to remedy the injustice of wrongful convictions, and the Supreme Judicial Court reads it to make postconviction testing easier and faster than testing sought through a motion for a new trial under Mass. R. Crim. P. 30. Commonwealth v. Wade, 467 Mass. 496, 504 (2014); Commonwealth v. Moffat, 478 Mass. 292, 301 (2017).

The statute permits a party to seek “forensic or scientific analysis” of “evidence or biological material,” G. L. c. 278A, §§ 3, 7, and it defines “analysis” as a “process by which a forensic or scientific technique is applied to evidence or biological material.” G. L. c. 278A, § 1. The court had already applied the statute beyond DNA: to ballistics evidence in Commonwealth v. Jenks, 487 Mass. 1032, 1034-1036 (2021), and to gunshot residue and fingerprint testing in Commonwealth v. Williams, 481 Mass. 799, 803, 809 (2019). Watson extends the same reasoning to the contents of a cell phone.

The Watson Case

The defendant, Javaine Watson, was convicted of murder in the first degree for a 2013 shooting outside a Boston nightclub. Surveillance video captured the shooting and placed three codefendants at the scene, but the face of the getaway driver never appeared on the footage. The Commonwealth’s theory was that Watson drove the getaway vehicle, a rented Lincoln MKX. Its proof of identity rested in large part on one witness, who testified that she had been dating Watson, that she lent him the Lincoln, and that he admitted abandoning it after the shooting. The Supreme Judicial Court affirmed the conviction on direct appeal. Commonwealth v. Watson, 487 Mass. 156 (2021).

The defense theory at trial was that the witness was in a relationship with the codefendant who fired the first shots, not with Watson, and that her testimony was fabricated to protect that codefendant. The call records supported the theory. A phone number registered to that codefendant’s former girlfriend had 312 contacts with the witness in the month before the murder, and 73, 276, and 224 contacts with three other women known to have dated the codefendant, while the witness’s phone had one contact with the number Watson used. The witness nonetheless testified that she used both numbers to reach Watson and that she did not know the codefendant at all.

In 2023, Watson moved under G. L. c. 278A, § 3, for digital forensic analysis of five cell phones that police had seized from the codefendant in two unrelated cases. His pretrial requests for the same phones had been denied. At the evidentiary hearing, a digital forensics expert testified that analysis of a cell phone is a multistep scientific process: proper handling of the device, decryption of password-protected content, and extraction of data, including deleted content, call logs, text message logs, GPS coordinates, and encrypted application data. The Commonwealth conceded that digital forensics is a forensic science, but it argued that data extraction is routine work that falls outside the “forensic analysis” the statute contemplates, relying on Commonwealth v. Cronin, 495 Mass. 170, 178-181 (2025), and that the phones were not “evidence” within the meaning of the act because they had never been tested in the underlying case. The Superior Court judge allowed the motions, and a single justice of the Supreme Judicial Court permitted the Commonwealth to appeal under the gatekeeper provision of G. L. c. 278, § 33E.

The Holding

The Supreme Judicial Court affirmed. Writing for the court, Justice Wendlandt held that the statute is not limited to scientific testing for biological material. The Legislature acted in the wake of a national recognition of the power of DNA testing to exonerate the wrongly convicted, but the text it enacted is broader: the statute permits forensic or scientific analysis of evidence, and digital forensic analysis of a cell phone is such an analysis. The court further concluded that Watson showed by a preponderance of the evidence that a reasonably effective attorney would have sought the requested discovery and that the anticipated analysis has the potential to unearth evidence material to his identification as the perpetrator.

The Materiality Standard

The decision restates how the statute sets the bar for access. The moving party need only show that the requested analysis could be material to the question of identity, not that it would change the outcome. Commonwealth v. Steadman, 489 Mass. 372, 389 (2022). The requirements are, by design, less stringent than those governing a motion for a new trial. Commonwealth v. Linton, 483 Mass. 227, 242 (2019). Evidence may be material under the statute even where the evidence of guilt at the underlying trial was overwhelming. Clark, 472 Mass. at 136. In Watson, the Commonwealth pointed to fingerprints, personal belongings, and call logs connecting the defendant to the crime. The court answered that this other evidence may matter later, on a motion for a new trial, but it does not govern access to discovery under the statute. The two proceedings remain distinct: if the analysis proves fruitful, the defendant must still satisfy Mass. R. Crim. P. 30 to obtain a new trial.

What the Decision Means for a Closed Case

Watson applies to any Massachusetts conviction that depended on who was using a phone. Juries decide identity in many trials on attribution evidence, call detail records, and text threads, and the full contents of a seized device are rarely extracted and examined. After Watson, a convicted defendant may seek digital forensic analysis of devices in the Commonwealth’s possession, including devices seized from other people in other investigations, where the statutory requirements are met. Deleted content, location data, and encrypted application data that no analyst examined at trial are within the scope of the statute. The procedure is a discovery tool, not a new trial by itself, and favorable results become the foundation for a motion for a new trial.

Attorney Serpa reviews closed cases for unexamined digital evidence. If a conviction in your case or a family member’s case rested on cell phone attribution, contact Attorney Serpa at 617.936.0201 for a confidential consultation.

Related Serpa Law Office resources

The rules governing searches of phones and computers before trial are explained in Massachusetts Phone, Computer, and Digital Searches. The way attribution evidence is tested in front of a jury is described on the cross-examination page, and the separate rules for recorded communications appear on the Massachusetts wiretap and secret recording page. The stages of a Massachusetts prosecution, from complaint through trial, are set out in the criminal process guide. The motion for a new trial that a favorable analysis can support is treated on the Padilla motion for a new trial page, and the rules that govern searches and extractions of digital devices are collected in the Massachusetts digital search FAQs.

The Commonwealth does not always drop those cases. It tries to prove them through the recording and through the officer who repeats what the accuser said at the scene. When that happens the trial becomes a contest over two rules, the spontaneous utterance exception and the Confrontation Clause, and then over a third rule that works in my favor once a statement comes in. This is how I approach that trial.

Sorting the 911 Call From the Statements at the Door

My first task is to separate the 911 call from the statements the officer collected at the door, because the law treats them differently.

A statement is testimonial where its primary purpose is creating an out-of-court substitute for trial testimony, and it is nontestimonial where the primary purpose is to enable the police to meet an ongoing emergency. Michigan v. Bryant, 562 U.S. 344 (2011); Commonwealth v. Imbert, 479 Mass. 575 (2018); Davis v. Washington, 547 U.S. 813 (2006).

A call for help placed during a genuine emergency is usually nontestimonial and can be admitted. The account a person gives to an officer after the scene is secure, in answer to questions about what happened, is often testimonial and cannot come in unless the accuser testifies. Crawford v. Washington, 541 U.S. 36 (2004).

Under Davis, the officer’s purpose determines whether the statement is testimonial. In the companion case, the officer “was not seeking to determine (as in Davis) ‘what is happening,’ but rather ‘what happened.’”

In Commonwealth v. Gonsalves, 445 Mass. 1 (2005), the Supreme Judicial Court stated the rule more favorably to the defense than the federal courts have, holding that “statements made in response to questioning by law enforcement agents are per se testimonial, except when the questioning is meant to secure a volatile scene or to establish the need for or provide medical care.” Gonsalves also holds the point that organizes this whole analysis: “a statement can be both testimonial in nature and a spontaneous utterance.” Clearing the hearsay exception does not clear the Confrontation Clause.

So I go through the recording and the report statement by statement and sort each one. I do not concede that everything the accuser said is a single admissible block, because it is not.

Litigating the Spontaneous Utterance Foundation

Next I litigate the foundation for the spontaneous utterance itself. The exception requires “(A) . . . an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer, and (B) . . . that the declarant’s statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought.” Commonwealth v. Barbosa, 477 Mass. 658, 672 (2017); Mass. G. Evid. § 803(2).

The Supreme Judicial Court uses the term spontaneous utterance for what many still call the excited utterance, a usage it adopted in Commonwealth v. Gonsalves, 445 Mass. 1, 4 n.1 (2005), and reiterated in Commonwealth v. Hart, 493 Mass. 130 (2023).

I ask for the voir dire the law contemplates before a judge admits the spontaneous utterance of a person who will not testify. Commonwealth v. Hurley, 455 Mass. 53, 68 n.14 (2009). At that hearing I press the officer on what undoes spontaneity: how much time had passed, whether the words came only after a series of questions, and whether the accuser was calm, composed, and giving a narrative rather than reacting to a shock.

Timing alone is not decisive. “[T]here can be no definite and fixed time limit [between the incident and the statement]. Each case must depend upon its own circumstances.” Barbosa, 477 Mass. at 672 to 673. Accord Commonwealth v. King, 436 Mass. 252, 254 (2002); Commonwealth v. Wilcox, 72 Mass. App. Ct. 344, 351 (2008). The question is whether the declarant remained under the influence of the exciting event.

A structured, later account is a different thing. Massachusetts has said so about a written statement, Commonwealth v. DiMonte, 427 Mass. 233, 239 (1998) (“[b]ecause a writing is more suspect as a spontaneous exclamation than is an oral statement, the circumstances of the writing would have to include indicia of reliability even more persuasive than those required for an oral statement”), and about a sexual assault nurse examiner interview conducted two hours after the event and developed by question and answer, Commonwealth v. McCoy, 456 Mass. 838, 849 (2010).

I also tell clients what happens if that fight is lost, because the answer is unwelcome and they should hear it from me first. A spontaneous utterance can support a conviction by itself. “A spontaneous utterance is sufficient, by itself, to support a conviction,” and the Supreme Judicial Court has declined “to add any requirement of corroboration to the spontaneous utterance exception to the hearsay rule.” Commonwealth v. Moquette, 439 Mass. 697 (2003).

Moquette also states the reality a recantation runs into: “it is up to the jury to determine whether to place greater weight on what the declarant said in the immediate aftermath of the event or on what the declarant is now saying at trial.” That is precisely why the impeachment described below is the center of the defense rather than an afterthought.

A complainant’s motive to lie “goes to the weight to be accorded the statements, rather than to their admissibility,” and “a victim’s motive or lack thereof should play no part in the calculus of determining admissibility.” Commonwealth v. Joyner, 55 Mass. App. Ct. 412, 417 (2002). The motive argument is not an admissibility argument. It is an impeachment argument.

Forfeiture by Wrongdoing

If the Commonwealth argues that my client forfeited the right to confront the accuser, I meet that directly. Forfeiture requires three findings: “(1) the witness is unavailable; (2) the defendant was involved in, or responsible for, procuring the unavailability of the witness; and (3) the defendant acted with the intent to procure the witness’s unavailability.” Commonwealth v. Edwards, 444 Mass. 526, 540 (2005); Giles v. California, 554 U.S. 353 (2008); Mass. G. Evid. § 804(b)(6).

The wrongdoing need not be a criminal act, and it can be persuasion rather than violence, as where a defendant used calls from a house of correction to discourage a complainant from cooperating. Commonwealth v. Szerlong, 457 Mass. 858 (2010); Commonwealth v. Valentin, 91 Mass. App. Ct. 515, 520 (2017). Unavailability need only be a purpose of the conduct rather than the sole purpose. Szerlong.

An accuser who decides independently not to testify, for reasons of their own, does not hand the Commonwealth a forfeiture, and I hold the prosecution to the intent element. Even where forfeiture is found, there is a reliability backstop worth preserving: due process requires that hearsay admitted against a defendant be reliable, and where hearsay is the only evidence, “the indicia of reliability must be substantial.” Szerlong, 457 Mass. at 866.

What Section 806 Permits

When the Commonwealth wins the fight to admit the accuser’s words, it exposes that person to impeachment.

Section 806 of the Massachusetts Guide to Evidence provides that once a hearsay statement is admitted, “the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness,” and that evidence of an inconsistent statement or conduct may be admitted “regardless of when it occurred or whether the declarant had an opportunity to explain or deny it.” Mass. G. Evid. § 806; Commonwealth v. Mahar, 430 Mass. 643, 649 (2000) (“[e]vidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay statement, is not subject to any requirement that he may have been afforded an opportunity to deny or explain”).

In Commonwealth v. Gray, 463 Mass. 731 (2012), the Supreme Judicial Court reversed a conviction of murder in the first degree because the judge precluded impeachment of a non-testifying declarant with prior inconsistent grand jury testimony.

Section 806 is impeachment, not cross-examination. It permits attacking credibility through extrinsic evidence. It does not produce a cross-examination of a person who is not present. The only cross-examination the rule contemplates runs the other way, if the party against whom the statement was admitted calls the declarant as a witness.

Section 806 does not solve the Confrontation Clause. Where the statement is testimonial, impeachment is not a substitute for confrontation. In Hurley the Supreme Judicial Court found a Sixth Amendment violation because the defendant “did not have an adequate opportunity to cross-examine [the declarant] with respect to the[] accuracy and truth” of specific facts in the utterance.

Section 806 is a parity provision, not an admissibility multiplier. It permits “any evidence that would be admissible for those purposes if the declarant had testified as a witness.” It removes one foundation requirement, the opportunity to explain or deny a prior inconsistent statement.

It creates no new categories of admissible evidence, and Mahar says so directly: “[t]rial judges, of course, retain the authority to apply to evidence offered under proposed rule 806 rules and principles of evidence that might lead to the exclusion or limitation of evidence, just as they could if the evidence had been offered against the witness had he or she taken the stand.” In Mahar itself the judge’s refusal to admit the defendant’s impeachment evidence was upheld.

So the material divides into two categories, and I treat them differently at trial.

Prior inconsistent statements and conduct. The recantation, the affidavit asking that the case be dropped, and messages inconsistent with the accusation come in under § 806 without the foundation that would otherwise be required. This is the strongest ground, and it is where Mahar and Gray do their work.

Bias, motive, and character. A pending divorce or custody dispute, an immigration benefit connected to the accusation, and a prior conviction are impeachment of a different kind, and each has to satisfy the rules that would apply to a live witness.

For an immigration benefit, that means a threshold showing. “A defendant must make a ‘plausible showing’ of alleged bias, with a factual basis for support,” and without it “the judge may restrict or entirely exclude the inquiry.” Commonwealth v. Chicas, 481 Mass. 316 (2019). The argument “depends on a showing that the witness was testifying in order to curry favor with the Commonwealth.”

In Commonwealth v. Sealy, 467 Mass. 617, 624 (2014), the Supreme Judicial Court upheld a judge who “precluded further cross-examination on the issue of the victim’s prior work authorization, ruling that any relevance it might have had was far outweighed by its prejudicial impact.” The line of attack is legitimate, and it requires a foundation.

For a prior conviction, G.L. c. 233, § 21 sets hard time limits, and the judge retains discretion beyond them. A misdemeanor conviction is inadmissible more than five years after sentencing absent an intervening conviction, a felony with a non-state-prison sentence after ten years, and a state prison felony after ten years from expiration of the minimum term.

And the word “may” in the statute means “the admission of evidence of a prior conviction is subject to the exercise of reviewable discretion by the trial judge,” measured by “whether the danger of unfair prejudice outweighed the probative value.” Commonwealth v. Maguire, 392 Mass. 466 (1984).

I plan the impeachment accordingly. The inconsistent statements are the part I can count on. The bias material is the part I have to earn, with a proffer and a factual basis, before the judge will let me put it before the jury.

Making the Recording Work Against the Report

I also make the recording work against the report. The officer who takes the stand did not see the underlying event and knows only what was reported, so I examine that officer on what the report left out and on how the account was gathered. The cruiser camera, the body camera, and the booking video frequently show a scene calmer and more ambiguous than the words on the page, and a jury that can watch the night for itself is not bound by the officer’s summary.

The full discipline of that examination is on my page about cross-examination in Massachusetts criminal trials, and the evidentiary framework with the governing cases is set out on my page about excited utterances and spontaneous utterances when an accuser recants or refuses to testify.

The same incident often produces a parallel 209A abuse prevention order or 258E harassment prevention order proceeding, and a charge of assault and battery on a family or household member.

None of this is about attacking a genuine victim. It is about holding the Commonwealth to its proof when it tries to convict a person on words that were never tested under oath.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. Serpa Law Office can be reached at 617.936.0201 for a free and confidential consultation. The Boston office is at 20 Park Plaza #400A. The Quincy Office is at 500 Victory Road, Suite 400A.

Cross-examination is the one part of a criminal trial that belongs to the defense. The Commonwealth picks its witnesses, prepares them, and walks each one through a direct examination built to sound convincing. Then the witness is handed to me. What I do in the next few minutes often decides the case, because it is the only point in the trial where the story the prosecution has assembled meets someone whose job is to test it.

The right to that moment is constitutional. The Sixth Amendment and article 12 of the Massachusetts Declaration of Rights promise my client the chance to meet and question every accuser. What follows is how I use that right in practice: how I carry myself, how I frame my questions, what the law permits me to do with a witness, and how the work changes from one kind of witness to the next.

For the statutes and the full line of cases behind each point, I keep a companion practice page on cross-examination in Massachusetts criminal trials that lays out the authority in detail.

I have written separately about how I pick a jury, which is the stage that decides who hears the cross-examination.

I have also written about how I open a Massachusetts criminal trial, which sets up everything I do on cross.

How I Carry Myself

The first thing a jury decides is whether it trusts the lawyer. Long before they weigh a single answer, they have formed a view about whether I am fair, whether I am prepared, and whether I am wasting their time. Everything I do on cross-examination is shaped by that judgment, because I am spending my client’s credibility with every question.

So I am courteous to the witness, even to the one I intend to take apart. Aggression is a gift to the other side. A witness who feels attacked stops cooperating, argues with every question, and gives the jury a reason to feel protective. A witness treated with respect settles down and agrees to the ordinary, true facts that a good cross is built from, one at a time, without seeing where the questions lead.

I do not raise my voice, I do not argue with the answer, and I never let the jury see that I want it too badly.

I respect the jury’s time in the same way. I do not cross every witness. When a witness has not hurt my client, I often have nothing to gain and I say I have no questions, which itself tells the jury I am unworried. When I do cross, I go to the two or three points that matter and I sit down. A short examination that lands is worth more than an hour that only muddies the water.

How I Frame the Questions

The mechanics are easy to describe and hard to do. Every question I ask on cross is a short statement of a single fact, phrased so that the only honest answer is yes. I do not ask a witness what happened. I tell the witness what happened, one small piece at a time, and ask for agreement. Control comes from holding each question to one fact, never inviting the witness to explain, and never asking the extra question that lets a witness take it all back.

Before I confront a witness with anything, I close the exits. If I intend to prove a witness said something different before, I first have the witness repeat, firmly, the account given on direct, so there is no room to wriggle when I produce the earlier words. Then I establish that the earlier statement was made when the events were fresh, to someone official, in a setting where the truth mattered. Only then do I show the contradiction. Taken in that order, the inconsistency is beyond repair by the time the jury sees it.

The witness’s own prior words are my best material: the statement to the officer at the scene, the 911 call, the grand jury testimony, the account given at a probable cause or dangerousness hearing, a deposition in a related civil matter, and, in a domestic case, the affidavit filed with a restraining order application.

Some of those statements do more than impeach. Grand jury testimony can be admitted for its truth, but only on conditions the SJC set out in Commonwealth v. Daye, 393 Mass. 55 (1984). The witness must be on the stand and able to be cross-examined about the statement, which a witness with a genuinely blank memory cannot be. The words must be the witness’s own, not a yes to a prosecutor’s fact-filled question. The witness must have seen the events firsthand.

And the Commonwealth must have other evidence on the point, because no conviction may rest on the grand jury statement alone. That last rule is the one I use: when a recanting witness’s grand jury testimony is all the Commonwealth has, it cannot prove the case by itself.

Testimony from an earlier hearing where the witness was cross-examined stands on firmer ground. Where a judge finds the witness is faking memory loss, probable cause hearing testimony can come in for its truth without corroboration. Commonwealth v. Sineiro, 432 Mass. 735 (2000).

Silence counts as well. If a witness offers a detailed account on the stand but left the same detail out when the police first asked, I can use that omission, because a real memory of something important tends to surface the first time. The law puts one condition on it: the omission counts as an inconsistency only where it would have been natural to include the fact in the earlier statement. Commonwealth v. Ortiz, 39 Mass. App. Ct. 70, 72 (1995).

That is why I lay the groundwork with care, establishing that the witness had every reason and every chance to be complete, before I point to what was missing.

The same doctrine runs the other way. A prosecutor who wants to impeach a defense witness for never bringing the story to the police must first lay a three-part foundation, and I hold them to it. Commonwealth v. Hart, 455 Mass. 230, 238 (2009).

I build as much as I can on the record, because paper does not get nervous and change its story. Text messages, emails, call logs, photographs, and medical records often settle a dispute that the witnesses cannot. In a domestic case, a string of warm or ordinary messages sent on the very days an accuser now describes as frightening can end the matter.

Before I can use a message, I have to be able to prove who wrote it, because a name on an account is not proof by itself. Commonwealth v. Purdy, 459 Mass. 442 (2011). So I build that foundation ahead of time through the witness, the phone records, or a custodian. Once the foundation is in, an argument that someone else had the phone goes to weight, and I make that argument to the jury rather than fight it at the bench.

And I know when to stop. Most cross-examinations are lost by running too long. Once I have the admission I came for, I leave it alone before the witness can undo it, and I save the argument about what it means for closing, where the witness can no longer answer.

What the Law Lets Me Do

Massachusetts lets me question a witness about any matter material to the case, including anything that bears on credibility, and I may lead. The examination is not confined to the subjects the prosecutor raised on direct. A judge controls the length and the tone, but the door to a proper subject may not be closed on me.

The subject I guard most closely is bias. Anything that gives a witness a reason to color the testimony is fair ground, and the right to expose it is constitutional, not a matter of the judge’s grace. Davis v. Alaska, 415 U.S. 308 (1974); Commonwealth v. Joyce, 382 Mass. 222 (1981). The right comes with one gate: I must make a plausible showing of the bias, with a factual basis behind it, or the judge may cut the inquiry off. Commonwealth v. Sealy, 467 Mass. 617, 624 (2014). So I never argue bias in the air.

Bias can be a plea deal, an old grudge, a civil lawsuit riding on the outcome, a custody fight, an immigration benefit, or an officer’s stake in an arrest already made. For an immigration motive, the required first step is establishing that the witness has discussed status with the police or the prosecutor; without that predicate the judge can exclude the subject. Commonwealth v. Chicas, 481 Mass. 316 (2019).

Once the showing is made, I am entitled to lay those facts in front of the jury and let them measure the motive for themselves.

Beyond motive, the law hands me several tools. A witness can be impeached with a prior conviction, within the time limits the statute sets and subject to the judge’s power to exclude a conviction that is more prejudicial than probative, a power the judge exercises most readily when the prior offense resembles the charge on trial. G.L. c. 233, § 21. A witness can be impeached with a poor reputation for truthfulness, though Massachusetts allows that through reputation in the community, not through a march of individual bad acts.

And impeachment does not open doors for the other side. Contradicting a witness, or confronting one with a prior inconsistent statement, is not an attack on the witness’s character, so it does not entitle the Commonwealth to rehabilitate with good-character evidence. Commonwealth v. Sheline, 391 Mass. 279 (1984).

Confrontation limits what the Commonwealth may prove on paper. A statement made out of court to build the case against my client, what the law calls a testimonial statement, generally cannot come in unless the person who made it takes the stand and answers for it, or is unavailable after I once had a full chance to cross-examine. Crawford v. Washington, 541 U.S. 36 (2004).

Statements that are not testimonial, a true emergency 911 call for example, fight only the ordinary hearsay rules. In domestic cases that fight often depends on whether an accuser’s 911 call or excited utterance can be used when the accuser does not appear, which I take up in a separate post on the Confrontation Clause and forfeiture by wrongdoing.

The same principle covers the crime laboratory. A certificate of drug or alcohol analysis does not stand on its own. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). And after Smith v. Arizona, 602 U.S. 779 (2024), a substitute expert cannot deliver an absent analyst’s findings dressed up as an independent opinion; the Supreme Judicial Court adopted that rule for Massachusetts trials in September 2025.

The right must be claimed, though. Under the notice-and-demand procedure the burden is on the defense to demand the analyst, and a lawyer who lets the deadline pass has waived the objection. Where the prosecution would prefer to hand the jury a document, confrontation hands me a witness instead.

The Witnesses I Cross-Examine

The method holds from one witness to the next. The material is what changes, and each kind of witness has its own openings.

A police officer is a witness like any other, with two soft spots I return to. The first is investment: the officer built the case, made the arrest, and wrote the report, and no one enjoys being shown wrong about their own work.

The second is the officer’s record. Where an officer has a sustained finding of a false report or other dishonesty, that history can be fair impeachment where the officer’s credibility is a critical issue in the trial. The judge weighs how old the misconduct is, how cleanly it can be proved, and whether it bears on how the officer conducts investigations. Matter of a Grand Jury Investigation, 485 Mass. 641 (2020).

Disclosure and admissibility are separate questions: the Commonwealth may owe me the record even where the judge later keeps it from the jury, and the rules requiring disclosure of exculpatory and impeaching material give me a route to find it.

I also cross on what the report leaves out, on the distance between what the officer wrote that night and what the officer recalls on the stand, and on every observation that went unrecorded because it never happened. The same method drives how I cross an officer on a field sobriety opinion in an OUI case.

When the case rests on a cooperating witness or an informant, the deal is the first thing I ask about and the last. Someone testifying in exchange for a reduced charge, a sentence recommendation, dropped counts, or money has every reason to give the prosecutor what the prosecutor wants, and I am entitled as of right to question that witness about the pending charges to show the motive for cooperating. Commonwealth v. Connor, 392 Mass. 838, 841 (1984).

A hope of favorable treatment opens the subject even where the Commonwealth has promised nothing. Commonwealth v. Henson, 394 Mass. 584, 587 (1985). The agreement itself is admissible and goes to the jury, and the judge must instruct the jury to weigh that witness’s credibility with particular care. Commonwealth v. Ciampa, 406 Mass. 257 (1989). The judge controls how long I stay on it, but the deal itself cannot be kept from the jury.

I make the size of the benefit concrete, in years of prison avoided, so the jury can weigh the motive in real terms.

With an eyewitness I do not call the witness a liar, because the honest, confident, mistaken witness is the dangerous one. I cross on how memory works and on the conditions of the identification: the lighting, the distance, the few seconds the witness truly had, the presence of a weapon that pulls the eye, the stress of the event, whether the witness and the accused are of different races, the time that passed before the identification, and the way the police ran the showup or assembled the array.

Massachusetts now instructs juries on the science behind these factors, which gives my cross a foundation the jury has been told to take seriously. Commonwealth v. Gomes, 470 Mass. 352 (2015).

In a domestic violence or sexual assault case the complaining witness is usually the whole case, and I cross with discipline, because a jury will punish an examination that looks like an attack on a victim. I press motive to fabricate, a pending divorce, a custody dispute, a fight over money or an apartment, or an immigration benefit that depends on being recognized as a victim, such as a U visa. I put the accuser’s prior statements beside the testimony and mark every difference, and I use the message record that shows the relationship as it truly was.

In the narrow cases where the law allows it, a demonstrably false prior allegation of the same kind of offense is fair ground. That door is narrow, and it is not the rape shield statute’s door. The rape shield statute, G.L. c. 233, § 21B, covers a complainant’s sexual conduct and reputation; prior false accusations sit outside it. Commonwealth v. Bohannon, 376 Mass. 90 (1978).

What opens the door is a record: independent third-party records showing that the earlier accusation was made and was false, in a case where the complainant’s testimony is the heart of the Commonwealth’s proof. Without those records, the offer of proof fails and the voir dire ends it. Commonwealth v. Blair, 21 Mass. App. Ct. 625, 629 (1986).

With an expert I cross the foundation, not the diploma. I make the expert lay out the facts and assumptions the opinion rests on and then test each one, because an opinion is worth no more than what went into it. I ask what the expert was given and what the expert was never shown, what the method can and cannot establish, what its error rate is, and what the expert was paid to appear.

Cross-Examination in a 209A or 258E Hearing

A restraining order hearing is not a criminal trial, but for my client it can be nearly as costly. A 209A abuse prevention order or a 258E harassment prevention order can take away a person’s home, firearms, and contact with their children, and for a noncitizen it can have immigration consequences of its own. So I cross-examine at that hearing as seriously as I would at trial, even though the rules are looser.

The rules are looser in two ways. The petitioner has to prove the case only by a preponderance of the evidence, not beyond a reasonable doubt, and the law of evidence is applied flexibly, taking into account the personal and emotional nature of the issues, subject always to fundamental fairness. Mass. G. Evid. § 1106 (2026); Frizado v. Frizado, 420 Mass. 592, 597 to 598 (1995). Where the judge intends to rely on an affidavit filed in the proceeding, my client must have an adequate opportunity to consider it. Frizado, 420 Mass. at 597.

What the relaxed rules do not do is remove my client’s right to confront and question the person who sought the order. That right has teeth: the Supreme Judicial Court vacated an order where the judge allowed no cross-examination at all. C.O. v. M.M., 442 Mass. 648 (2004). In a fast hearing with no jury and little time for investigation, that cross-examination is usually the entire defense.

I begin by holding the petitioner to what each statute requires. A 209A order demands abuse between family or household members, and the statute now defines abuse four ways: attempting to cause or causing physical harm, placing a person in fear of imminent serious physical harm, coercing sexual relations by force, threat, or duress, and coercive control, a category the Legislature added effective September 18, 2024. G.L. c. 209A, § 1.

Coercive control means a pattern of behavior intended to threaten, intimidate, harass, isolate, control, or coerce a family or household member that causes a reasonable fear of physical harm or a reduced sense of physical safety or autonomy. The statute’s examples run from isolating a person from family and friends, to controlling their finances, communications, or movements, to threatening to publish sensitive personal information.

A petition built on coercive control changes the cross, because my questions must meet a pattern theory rather than a single incident. Discomfort, anger, and the fear of a future argument are still not abuse.

A 258E order demands harassment, and the statute gives the petitioner two definitions. The first requires three or more separate acts of willful and malicious conduct aimed at the person, each intended to cause fear, intimidation, abuse, or damage to property, with the acts as a whole in fact causing one of those harms.

The second requires a single act: sexual coercion by force, threat, or duress, or an act that violates one of the listed criminal statutes, stalking and criminal harassment among them. G.L. c. 258E, § 1. I check which definition the petition uses before I plan the cross.

Where the claimed acts are words, the Supreme Judicial Court has held that only true threats or fighting words qualify, because ordinary speech is protected, and the fear that counts is fear of physical harm or damage to property. O’Brien v. Borowski, 461 Mass. 415 (2012), abrogated on other grounds by Seney v. Morhy, 467 Mass. 58 (2014). A single ugly message, or a course of contact that never becomes a threat, does not meet the three-act standard, and I make the petitioner concede that on the record.

From there, the cross-examination is much the same as the cross I would run against a complaining witness in a criminal case, because it is usually the same person telling the same story. I press the motive: a pending divorce, a custody dispute, a fight over the house, or an immigration benefit that depends on being a victim. I set the affidavit next to the testimony and mark every place they differ, because the affidavit was written days earlier and the account has a way of improving.

I use the record: the texts and calls that show ordinary, friendly, or continuing contact on the very days the petitioner now calls frightening. I ask why there was no call to the police, no report, no photograph, and no injury, if the events happened as described. And I ask why the order is being sought now, on the day the divorce was filed or the custody motion was served.

One caution shapes the whole hearing. If my client also faces a related criminal charge, any testimony my client gives on the stand can be used against them in the criminal case. Silence has a price of its own in this civil hearing: the judge may draw an adverse inference from my client’s decision not to testify, though that inference alone cannot meet the petitioner’s burden.

Frizado v. Frizado, 420 Mass. 592 (1995). So I decide in advance whether my client testifies at all, and I aim to win the hearing on the cross-examination of the petitioner without taking that risk. The restraining order and the criminal case are defended as one matter, not two.

Preparation Wins It

Everything above depends on work done before I stand up. I read every report, every statement, every message, and every prior transcript, and I chart the contradictions in advance, because a witness who surprises me has already won the exchange. By the time a witness takes the stand, I know the answers to the questions I am going to ask, and I do not ask the ones I cannot predict.

If you are facing a criminal charge or a restraining order in Massachusetts, the cross-examination of the witnesses against you may be the most important thing that happens in the case. Contact me at 617.936.0201 for a confidential consultation.

The firm addresses the governing rules and each exercise in its Massachusetts field sobriety test defense guide. Concise answers about police authority, refusal, physical force, scoring, and trial use appear in the field sobriety test FAQs.

The Legal Basis for Roadside Exercises

An officer may direct field sobriety exercises when specific and articulable facts create reasonable suspicion of OUI. In Commonwealth v. Blais, 428 Mass. 294, 297-302 & n.3 (1998), the Supreme Judicial Court held that consent and a refusal warning are unnecessary during a lawful investigative detention. Cross-examination should identify the facts known before the direction and whether they supported the additional detention.

That authority does not permit physical force. Calling the exercises mandatory also does not automatically require suppression when reasonable suspicion supported the direction. The statement matters if the Commonwealth relies on consent because reasonable suspicion was absent, or if threats, force, or the surrounding circumstances exceeded lawful authority. The judge decides suppression from the complete interaction.

The Officer’s Training Standard

The National Highway Traffic Safety Administration prescribes instructions, demonstrations, conditions, and clue definitions for the standardized battery. According to the current manual, changing standardized elements may compromise validity. A departure does not automatically exclude the observations, but it may separate the officer’s conclusion from the supporting research. The examination should establish the learned procedure and compare it with the report, testimony, and video.

Concrete Observations and the Officer’s Interpretation

A useful examination separates an event from its label. A foot touched the ground, an arm moved, or a heel stopped short of a toe. Those are observations; describing them as proof of intoxication is an interpretation. The standardized battery classifies the likelihood of an alcohol concentration at or above a specified level. It does not measure the person’s actual concentration or driving ability.

Counsel can then ask precise questions. How far did the arm move? How long did the foot remain down? Where was the line? What correct performance did the report omit? The officer usually lacks a sober baseline for that driver. Cross-examination can place the claimed clue beside the correct performance and testing conditions without arguing over a summary word such as failure.

Instructions and Roadside Conditions

The instruction phase is evidence. The walk and turn and one leg stand require a person to remember several commands while maintaining an unfamiliar posture. The officer should identify the instructions, any demonstration, whether questions were answered, and when scoring began. Starting too soon and losing balance during the walk-and-turn instructions can be scored before the first step.

The walking exercises call for a reasonably dry, hard, level, and nonslippery surface. Lighting, wind, traffic, cruiser lights, footwear, fatigue, injury, age, weight, inner-ear conditions, language, and anxiety can affect performance. The court does not automatically exclude the evidence because of those conditions. The jury may consider whether the administration matched the training and whether an innocent condition better explains a scored movement.

Walk-and-Turn and One-Leg-Stand Scoring

The walk and turn has eight clues: losing balance during instructions, starting too soon, stopping, missing heel to toe by more than the prescribed distance, stepping off the line, using the arms, making an improper turn, and taking the wrong number of steps. The line may be imaginary, and the officer estimates small distances by sight. The examination should compare each clue with the video and identify correct steps, counts, and turns.

The one leg stand has four clues during approximately 30 seconds: swaying, using the arms, hopping, and putting the foot down. A momentary foot touch does not end the exercise; the person should raise the foot and continue. The officer must distinguish a clue from an ordinary balance adjustment. Neither walking exercise produces a scientific measurement or literal pass-or-fail result. The jury may evaluate the degree and duration of the movement.

Nonstandard Roadside Exercises

Alphabet recitation, backward counting, a finger count, Modified Romberg, and finger to nose are outside the validated three-exercise battery. The NHTSA drug-recognition curriculum prescribes procedures for Modified Romberg and finger to nose, but recognizes that they have not received the same controlled validation as the standardized alcohol battery. The examination should identify the training, instructions, and claimed significance and determine whether the testimony assigns an unsupported scientific meaning to an observation.

Field Sobriety Refusal Evidence

An actual refusal of roadside field sobriety exercises generally may not be used as evidence of guilt. In Commonwealth v. McGrail, 419 Mass. 774, 779-780 (1995), the Supreme Judicial Court held that the refusal is testimonial under Article 12 of the Massachusetts Declaration of Rights. The Registry of Motor Vehicles does not automatically suspend a license for that refusal. The decision to submit to the breath test or refuse the breathalyzer, and the license consequences of each choice, are explained on a separate page. Counsel should identify any refusal language and obtain a ruling before trial when necessary.

The defense can create a limited exception by leaving a misleading impression. In Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 104 (2011), the Appeals Court permitted limited refusal evidence to rebut a claim of complete cooperation or that police never offered exercises. Statements and conduct during an attempted exercise may be admissible. Counsel should avoid creating that misleading impression while presenting the cooperation the admissible record supports.

Limits on Scientific and Lay Opinions

Horizontal gaze nystagmus is scientific evidence. In Commonwealth v. Sands, 424 Mass. 184 (1997), the Supreme Judicial Court required an adequate expert foundation before the jury may hear the result. A report listing HGN clues is not a substitute. If the Commonwealth offers the evidence, the examination should address the witness’s qualifications, prescribed distances and speeds, medical screen, and any video.

In an alcohol-OUI case, the officer may offer a limited lay opinion about sobriety or intoxication. Under Commonwealth v. Canty, 466 Mass. 535 (2013), the witness may not decide whether alcohol diminished the person’s ability to operate safely. In Commonwealth v. Gerhardt, 477 Mass. 775 (2017), the Supreme Judicial Court prohibited pass-or-fail testimony in a marijuana-OUI case and opinions that roadside performance established impairment.

Video and the Written Report

Body-camera and cruiser video can show the surface, instructions, demonstration, pace, movements, correct performance, speech, and responses that the report summarized or omitted. The camera angle may miss a foot, eye movement, or small distance, so the recording is not automatically conclusive. A focused examination uses the recording to test a specific statement and allows the jury to compare the event with the officer’s later description.

The Police Report and the Rest of the Encounter

The roadside exercises occupy only part of an OUI investigation. An officer may also observe how the driver produces a license and registration, exits the vehicle, walks to and from the testing location, speaks during transport, enters the station, answers booking questions, handles personal items, reads forms, and signs documents. Under Commonwealth v. Hourican, 85 Mass. App. Ct. 408, 417 (2014), driving performance, appearance, demeanor, field sobriety performance, and conduct at booking may all bear on impaired operation.

A police report omission can impeach later testimony when the omitted observation naturally would have been included in the report. Commonwealth v. Ortiz, 39 Mass. App. Ct. 70, 72 (1995). The omission does not establish that the event never occurred. Cross-examination can establish the officer’s training and ordinary report-writing practice, identify the observations the report includes and omits, and ask the jury to decide whether later testimony is consistent with the contemporaneous account. Attorney Serpa describes the complete method in how he tries a Massachusetts OUI case after a breathalyzer refusal.

A Deliberate Trial Sequence

The sequence begins with the basis for the direction, establishes the officer’s training, fixes the prescribed procedure, and examines each exercise. It should identify favorable observations, test the clues, address alternative explanations, protect the refusal rule, and end with the limit on the officer’s opinion. The firm discusses the broader method in its article on how Massachusetts OUI cases are tried and its Massachusetts cross-examination page.

Call 617.936.0201 for a free, confidential consultation.

The practical setting changes how the hearing runs. The plaintiff is seeking the order and is often the alleged victim and principal witness in the related criminal case. In Massachusetts domestic violence cases, judges most often extend the 209A order when the plaintiff testifies in support of it and a criminal charge involving the same allegations is pending. The plaintiff still has the burden of proof, and an extension is not automatic. But a defendant should not assume that taking the stand will change the civil result enough to justify the criminal risk.

The safer defense often relies on cross-examination, complete records, messages, video, photographs, neutral witnesses, and other evidence that does not require the defendant to give a sworn account. Counsel should consider testimony only when its expected benefit at the 209A hearing is concrete and substantial enough to outweigh the possible damage to the criminal defense.

The Testimony Decision Usually Depends on the Criminal Risk

A 209A hearing commonly occurs before defense counsel has received the complete police report, 911 recording, body-camera video, medical records, digital extraction, or other criminal discovery. The defendant may know what happened but may not yet know what another witness said, what an officer wrote, or what a recording shows.

That timing makes early testimony dangerous. A prosecutor may later present a mistaken date, an incomplete answer, or an answer drawn from imperfect memory as an inconsistency. A prosecutor may compare the 209A testimony with a police report, grand-jury testimony, a later motion hearing, or trial testimony. The defendant may also disclose a fact that leads police or prosecutors to evidence they did not previously have.

The question is therefore not simply whether testimony might help at the 209A hearing. Counsel must decide whether that possible benefit justifies giving the prosecution a sworn account before the criminal evidence is complete.

The Defendant’s Fifth Amendment Right

When the 209A defendant also faces a related criminal charge or investigation arising from the same alleged conduct, the basis for invoking the privilege against self-incrimination is apparent from the criminal exposure. The defendant does not need to prove, question by question, that each proposed answer would tend to incriminate the defendant. The defendant may decline to testify rather than take the stand and answer questions about the alleged incident.

This is not the uncertain privilege claim of an unrelated witness whose answer may or may not create criminal exposure. The defendant already faces that exposure. The Fifth Amendment and Article 12 of the Massachusetts Declaration of Rights protect the defendant from compelled testimony about it. The firm’s page on the right to remain silent in Massachusetts explains how the privilege protects a person during a criminal investigation and prosecution.

The privilege prevents the court from compelling the incriminating testimony. It does not prevent the 209A judge from drawing the civil adverse inference that Massachusetts law permits.

The Adverse Inference and the Plaintiff’s Burden

A criminal judge or jury may not treat a defendant’s decision not to testify at trial as evidence of guilt. A 209A hearing is civil. Sections 525 and 1106 of the Massachusetts Guide to Evidence permit the 209A judge to draw an adverse inference when the defendant invokes the privilege against self-incrimination.

The inference has an important limit. Under Frizado v. Frizado, 420 Mass. 592 (1995), the judge cannot issue an order based on the inference alone. The plaintiff must present other evidence that proves the statutory requirements by a preponderance of the evidence.

At a hearing after notice, the plaintiff must prove abuse as M.G.L. c. 209A, Section 1 defines it. At an extension hearing, the plaintiff must prove a continuing need for protection, but does not have to prove a new incident of abuse. The firm’s article on Massachusetts 209A extension hearings, evidence, and burden of proof explains those requirements in greater detail.

As a practical matter, the adverse inference is often the smaller risk. The plaintiff usually supplies the other evidence through testimony, an affidavit, messages, photographs, police involvement, or medical records. The defense can challenge that evidence without adding the defendant’s sworn account to the criminal case.

How 209A Testimony Can Damage the Criminal Case

Testimony at a 209A hearing does not receive immunity because the defendant gave it in a civil proceeding. A prosecutor may obtain the recording or transcript and seek to use the defendant’s answers in the related criminal case.

The prosecutor may offer an admissible statement as the defendant’s own statement, use it to impeach later testimony, or use it to identify other evidence. The criminal judge decides whether a particular statement is admissible for the purpose offered, but the defense should assume that the prosecutor will obtain and examine the testimony.

Taking the stand also permits cross-examination. The plaintiff or the plaintiff’s lawyer may ask about details that the defense did not intend to address. Once the defendant gives a sworn account of the incident, the defense cannot control every follow-up question or erase an answer that creates a problem.

As a practical matter, testimony almost always presents the greater danger when the same allegations support a pending criminal case. Counsel should recommend it only after reviewing the expected testimony, likely cross-examination, prior statements, available discovery, and the precise criminal exposure created by the answers.

The Court Records the 209A Hearing Either Way

The 209A proceeding creates a court record, and the court records the hearing, regardless of whether the defendant testifies. If the defendant remains silent, the record still includes the complaint, affidavit, exhibits, the plaintiff’s testimony, the lawyers’ arguments, the judge’s rulings, and the resulting order.

The risk of testifying is not that a record will suddenly exist. The record already exists. Testimony adds the defendant’s sworn account to it and preserves that account for possible use in the criminal case.

Defending the 209A Case Without the Defendant’s Testimony

Declining to testify does not mean declining to defend the case. Counsel may cross-examine the plaintiff, test the chronology, expose inconsistencies, challenge whether the statutory relationship or alleged conduct supports the requested order, and offer evidence from sources other than the defendant.

Complete digital records can be especially important. A selected screenshot may omit the messages immediately before or after it. Video, photographs, location records, call logs, and device records may establish timing, context, or who created a communication. Although 209A hearings apply the rules of evidence more flexibly than criminal trials, the source and reliability of the material still matter. The firm’s guide to digital evidence in Massachusetts criminal cases explains authentication, completeness, screenshots, and device attribution. A separate article addresses secret recordings in Massachusetts domestic violence and 209A cases.

The defense may also use neutral witnesses, business records, photographs, prior sworn affidavits, or evidence concerning who initiated a physical confrontation. The firm’s article on self-defense and mutual combat in Massachusetts domestic violence cases explains how the evidence may distinguish an unlawful assault from defensive conduct.

The Appeals Court decision discussed in V.B. v. B.W.R.T. and coercive control illustrates the central point. The defendant did not testify, but the plaintiff’s evidence still failed to satisfy the statute. The unpublished decision has limited precedential value, but it shows why the defense should first examine what the plaintiff can prove without expecting the defendant to answer the accusation personally.

When Testimony May Still Be Worth the Risk

There is no rule that a defendant can never testify. Testimony may deserve consideration when the plaintiff has substantial evidence that cross-examination and independent records cannot answer, the disputed civil issue has serious immediate consequences, and the expected testimony creates limited criminal risk.

That combination is uncommon when a criminal domestic violence case is pending. Before calling the defendant, counsel should identify the precise testimony that would help, every likely subject of cross-examination, any prior statement the prosecutor could use to impeach the defendant, and the information still missing from criminal discovery.

Preparation means reviewing the existing record, distinguishing an honest lack of memory from an estimate, and answering accurately. It does not mean creating a version of events. If the defense cannot identify a substantial civil benefit that justifies the criminal exposure, the defendant should not testify merely because remaining silent feels uncomfortable in the courtroom.

The Criminal Case Usually Will Not Delay the 209A Hearing

A pending criminal charge or investigation does not ordinarily postpone a 209A hearing. The court must address the plaintiff’s request for protection, and the defendant should prepare for the scheduled hearing unless the judge grants a continuance for a separate valid reason.

Counsel should make any continuance request promptly and identify the specific circumstance that supports it. The defense should not build its strategy around the assumption that the judge will wait for the criminal case to end.

Consequences of an Extended 209A Restraining Order

The testimony decision must account for the terms that the judge may impose. A 209A order can prohibit contact, require the defendant to stay away, exclude the defendant from a residence, and address temporary custody or support. It may also affect employment or a Massachusetts professional license.

The defendant must obey every operative term, even while contesting the order or defending the criminal case. Contact that violates a no-contact provision can produce a separate criminal charge for violating a 209A restraining order.

Firearm surrender and licensing require separate attention. M.G.L. c. 209A, Sections 3B and 3C govern surrender at different stages of the protective-order proceeding. The firm’s current article on firearms after a domestic violence charge or 209A order explains those state and federal rules.

How Attorney Serpa Prepares for Both Proceedings

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. He begins with the 209A complaint and affidavit, criminal complaint, police reports, 911 material, available recordings, messages, photographs, medical records, and hearing history. He then identifies what the plaintiff can prove, what the defense can present without the defendant’s testimony, and how each possible answer could affect the criminal case.

The preparation treats the 209A hearing and criminal prosecution as separate proceedings arising from the same allegations. The civil defense must address the requested order, while the criminal defense must avoid unnecessary sworn statements and preserve the defendant’s trial position. Attorney Serpa makes the testimony decision before the hearing after reviewing both cases, not in response to pressure in the courtroom.

Serpa Law Office represents clients in 209A hearings and related Massachusetts criminal cases. People facing a pending protective-order hearing or criminal charge may call 617.936.0201 or request a confidential consultation.

Frequently Asked Questions

Should a Defendant Testify at a 209A Hearing While a Criminal Case Is Pending?

Usually not unless counsel identifies a substantial civil benefit that outweighs the criminal risk. The judge may draw an adverse inference if the defendant declines to testify, but testimony can give the prosecutor a sworn admission, impeachment material, or a lead to other evidence. In many cases, cross-examination and independent evidence provide the safer defense.

Can a 209A Judge Consider the Defendant’s Decision Not to Testify?

Yes. Because the hearing is civil, the judge may draw an adverse inference when the defendant invokes the privilege against self-incrimination. Under Frizado v. Frizado, 420 Mass. 592 (1995), the inference cannot by itself support the order. The plaintiff must present other evidence that proves the statutory requirements.

Does the Defendant Have to Prove That Each Answer Would Be Incriminating?

Not when the defendant faces a related criminal charge or investigation arising from the same alleged conduct. The criminal exposure supplies the basis for invoking the privilege. The defendant may decline to testify instead of taking the stand and litigating the privilege one question at a time.

Is the 209A Hearing Recorded if the Defendant Does Not Testify?

Yes. The proceeding creates a court record, and the court records the hearing regardless of whether the defendant testifies. Testifying adds the defendant’s sworn account to that existing record and makes it available for possible use in the criminal case.

Can a Prosecutor Use 209A Hearing Testimony in the Criminal Case?

A prosecutor may obtain the recording or transcript and seek to use the testimony as the defendant’s own statement, for impeachment, or for another purpose permitted by the rules of evidence. The criminal judge decides whether a particular statement is admissible, but the defense should assume that the prosecutor will review it.

Will the Court Postpone the 209A Hearing Until the Criminal Case Ends?

Ordinarily, no. The court must address the request for protection and usually proceeds while the criminal matter remains pending. Counsel may request a continuance for a separate valid reason, but the defendant should prepare for the scheduled hearing unless the judge grants it.