Massachusetts Criminal Decisions Roundup: August 2026

The Supreme Judicial Court and the Appeals Court issued ten criminal decisions between July 29 and August 26, 2026. Several change how a pending case is litigated in the District Court, the Boston Municipal Court, and the Superior Court, and two of them order new trials. This survey states what each court held and explains why the decision matters to counsel handling a case now.

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

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

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

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

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

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

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

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

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

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

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

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

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

Hall, petitioner: Postconviction Claims Belong in the Superior Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What These Decisions Change

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

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

Referring counsel may reach Attorney Serpa at 617.936.0201.