Massachusetts Criminal Court Practice: Trial, Evidence, and Sentencing

Most of what decides a Massachusetts criminal case happens in a courtroom, after the pretrial stages are finished and before the case is over. This page covers that stretch: the motions filed on the eve of trial, jury empanelment, opening statements, the rules that govern what a jury is allowed to hear, cross-examination, closing arguments, sentencing, and the motions available after a sentence is imposed.

The earlier stages appear on the Massachusetts criminal process page, which covers the complaint application, the clerk-magistrate hearing, arraignment, bail, discovery, and the dispositions available before a case is tried. The particular offenses appear on the practice areas page.

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.

What Happens, and in What Order

A contested Massachusetts criminal trial follows a fixed sequence. Motions in limine are heard, a jury is empaneled, the Commonwealth opens and the defense may open, the Commonwealth presents its case, the defense may present evidence, both sides argue, the judge instructs the jury, and the jury deliberates.

The order matters more than it appears. Evidence excluded by a motion in limine is never described in an opening statement. An opening statement that promises evidence controls what a closing argument may claim. A ruling made on the first morning shapes every question asked over the following two days.

The great majority of Massachusetts criminal cases are resolved without a trial. That does not make the trial rules irrelevant to those cases. What the Commonwealth can prove at a trial, and what a judge would exclude from one, is the measure against which every plea offer is evaluated.

Trial Motions and Motions in Limine

A motion in limine asks the judge to rule on the admissibility of evidence before the jury hears it. Prior convictions, statements made to police, photographs, expert opinions, and prior bad act evidence are the recurring subjects.

The preservation rule changed in 2016. An objection made in a motion in limine, whatever its basis, preserves appellate rights whether or not the defendant objects again at trial, but only where what is objectionable at trial was specifically the subject of the motion. Commonwealth v. Grady, 474 Mass. 715, 719 (2016). A ruling in limine is not final and is subject to change as the case unfolds. Commonwealth v. Jones, 464 Mass. 16, 18 (2012).

Where no objection is made at all, an appellate court reviews only for a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). That standard is difficult to satisfy, which is why the record made before and during a trial determines what an appeal can accomplish. The motions themselves, and how each one is preserved, are covered on the trial motion practice page.

Jury Selection

Massachusetts permits attorney-conducted voir dire in criminal cases. G.L. c. 234A, §§ 67A to 67D, inserted by St. 2016, c. 36, § 4. Counsel may examine prospective jurors directly, individually or as a panel, subject to the control of the judge over the process.

Challenges come in two forms. A challenge for cause requires a stated ground and is unlimited in number. Peremptory challenges are limited in number by Mass. R. Crim. P. 20(c), and the number available varies with the court and the seriousness of the charge.

Peremptory challenges are also limited in kind. Article 12 of the Massachusetts Declaration of Rights prohibits striking a juror on the basis of sex, race, color, creed, or national origin. Commonwealth v. Soares, 377 Mass. 461, 488 to 491 (1979). The same conduct violates the federal equal protection guarantee. Batson v. Kentucky, 476 U.S. 79 (1986). The questionnaire, the scope of attorney-conducted questioning, and the number of challenges available in each court are covered on the jury selection page.

Opening Statements and Closing Arguments

An opening statement is an outline of the evidence a party expects the jury to hear. It is not argument, and counsel may not use it to argue the case. A defendant may open after the Commonwealth opens or after the Commonwealth rests, and the choice belongs to the defendant. Mass. R. Crim. P. 24(a)(1).

Closing argument is different in kind. Counsel may argue forcefully from the evidence and from inferences that may reasonably be drawn from it, but may not misstate the evidence or refer to facts not in evidence, appeal to the sympathy or emotions of the jury, or comment on the consequences of a verdict. Commonwealth v. Kozec, 399 Mass. 514, 516 to 517 (1987).

In a Massachusetts criminal trial the defendant presents the closing argument first and the Commonwealth answers. Mass. R. Crim. P. 24(a)(1). The sequence is mandatory, and it changes what a defense argument can safely rely on, because the defense has no opportunity to reply. What each argument may and may not contain, and how an objection to an improper argument is preserved, are covered on the opening statements and closing arguments page.

The Admission of Evidence and Objections

Whether evidence is relevant, and whether its probative value is substantially outweighed by its prejudicial effect, are matters entrusted to the broad discretion of the trial judge and are not disturbed absent palpable error. Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010). That standard explains why most evidentiary disputes are won or lost in the trial court rather than on appeal.

An objection must be made promptly, and a prompt objection at trial is a prerequisite to presenting the issue for appellate review. Commonwealth v. Gallison, 383 Mass. 659, 669 (1981). Where counsel states a precise ground, that is the ground available on appeal, and a different one may not be substituted later. Commonwealth v. Carlson, 448 Mass. 501, 506 (2007).

Digital evidence raises its own foundation and authentication questions, and the volume involved makes those disputes unsuited to argument made while an exhibit is being handed to a clerk. The recurring problems appear on the page addressing the admission of and objection to digital evidence.

Cross-Examination and Impeachment

Cross-examination is the principal method by which a criminal defendant tests the case against him. Its scope, the limits a judge may impose on it, impeachment by prior inconsistent statement, impeachment by omission, and the treatment of expert and substitute analyst testimony are covered on the cross-examination page.

Expert testimony is subject to its own gatekeeping requirements. An expert opinion must rest on a reliable foundation, and the party offering it bears the burden of establishing that foundation. Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994); Department of Youth Services v. A Juvenile, 398 Mass. 516, 531 to 532 (1986).

Hearsay and the Confrontation Clause

Hearsay and confrontation are separate problems that arise together. A statement may fall within a hearsay exception and still be inadmissible because the defendant has no opportunity to confront the person who made it.

The situation arises most often in domestic violence prosecutions where the complainant recants or refuses to testify and the Commonwealth offers an earlier statement instead. The excited utterance and spontaneous utterance rules, and what a defense can do when the person who made the statement is not in the courtroom, appear on the page about a recanting or absent accuser.

Privileges at Trial

Two separate rules govern a spouse in a Massachusetts criminal case. One is a voluntary privilege belonging to the witness. The other is a statutory exclusion of private marital conversations that applies whether or not the witness wishes to testify. The distinction decides most of these cases and is explained on the spousal privilege and marital communications page.

A defendant facing both a criminal charge and a related civil proceeding has a further problem. Testimony given at a protective order hearing can be used in the criminal case, and there is no blanket privilege covering the whole proceeding. The analysis appears on the page about the Fifth Amendment in a 209A hearing and other civil cases.

Whether the Defendant Testifies

A defendant shall at his own request, but not otherwise, be allowed to testify, and neglect or refusal to testify shall not create any presumption against him. G.L. c. 233, § 20, Third. The decision belongs to the defendant, and the right to remain silent page covers what that choice involves.

The principal cost of testifying is the record. Prior convictions may be used to impeach the credibility of a witness within the limits set by G.L. c. 233, § 21, and a defendant who testifies becomes a witness. Those limits turn on the type of conviction, the sentence imposed, and how much time has passed.

Where a defendant does not testify, a judge who is asked to do so has a constitutional obligation to instruct the jury that no adverse inference may be drawn. Carter v. Kentucky, 450 U.S. 288, 305 (1981). It is reversible error to give that instruction where the defendant has asked that it not be given. Commonwealth v. Buiel, 391 Mass. 744, 746 (1984).

Defenses Presented at Trial

Some defenses are established by cross-examination of the witnesses the Commonwealth calls. Others require evidence from the defense, and a few require the defendant himself, because the element in question concerns what he believed or feared at a particular moment.

Self-defense is the clearest example of the second kind. Evidence obtained through an unlawful search is a different matter and is addressed before trial rather than during it, on the illegal searches and seizures page.

Sentencing

Sentencing in the District Court and the Boston Municipal Court covers the available dispositions and their consequences: a continuance without a finding, probation, a suspended sentence, a split sentence, a committed term in the house of correction, restitution, and the statutory maximums and mandatory minimum terms that apply to particular offenses.

The disposition frequently matters more than the finding. A continuance without a finding and a conviction can produce very different results for a noncitizen, a licensed professional, a student, or a person seeking to seal a record years later. The dispositions and their consequences are set out on the District Court and Boston Municipal Court sentencing page.

Correcting a Sentence After It Is Imposed

Two rules govern relief after a sentence is imposed, and they operate on different timetables. A motion to revise or revoke must be filed within sixty days after the imposition of sentence, or within sixty days after issuance of an appellate rescript, and a judge may revise or revoke the sentence if it appears that justice may not have been done. Mass. R. Crim. P. 29(a).

The sixty-day filing period is strict. A judge must then act within a reasonable time. Commonwealth v. DeJesus, 440 Mass. 147, 150 to 151 (2003). The purpose of the rule is to allow reconsideration of the sentence in light of the facts as they existed when it was imposed, not in light of what has happened since.

The second rule has no deadline. A person imprisoned or restrained of liberty pursuant to a criminal conviction may at any time, as of right, move for release or for correction of the sentence on the ground that the confinement was imposed in violation of the Constitution or the laws of the United States or of the Commonwealth. Mass. R. Crim. P. 30(a). A judge may grant a new trial at any time if it appears that justice may not have been done. Mass. R. Crim. P. 30(b). The deadlines, the available grounds, and the finality rules that limit both motions are covered on the correcting a criminal sentence page.

Trial Analysis and Applications

The pages above state the governing rules. The articles below are narrower. Some analyze a particular evidentiary problem, and others describe how Attorney Serpa approaches a specific part of a trial.

On the work before trial: how he prepares a case for trial, how he researches and argues a motion to suppress or dismiss, and how he uses experts.

On method: how he picks a jury, how he opens a trial, two rules for cross-examination, how he decides when to object, and how he gives a closing argument.

On particular problems: when a client is put on the stand and why it is rare, cross-examining an absent accuser, and suppression and proof at trial in drug cases.

Criminal Defense Consultation

Attorney Serpa represents defendants in the District Courts, the Boston Municipal Court, and the Superior Courts of Greater Boston. Serpa Law Office maintains offices at 20 Park Plaza, Suite 400A, Boston, and at 500 Victory Road, Suite 400A, Quincy.

Serpa Law Office can be reached at 617.936.0201.