How I Prepare a Massachusetts Criminal Case for Trial

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

By the time a jury is empaneled, most of the work that will decide the case is finished. What was gathered, what was tested, and what was excluded in the months before set the limits on what either side can do at trial. Preparation does not replace what happens in the courtroom. It determines what is available there.

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 disprove an issue in the case. Potential relevance and conclusory statements about relevance are not enough. Id. That is the requirement that decides these motions, and it is met 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 he would have if he were 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 far more often than most lawyers do, 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 says he saw from where the report says he 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 half the time they are 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 only structure that makes the interview usable.

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 he will 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 him 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 turns 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.