Rights and Legal Concepts in a Massachusetts Criminal Case

This page explains the constitutional protections, evidentiary rules, and procedures that govern what evidence the Commonwealth may use against a person charged with a crime in Massachusetts and which defenses the accused may raise.

The page covers the right to remain silent, searches and seizures of places and of digital devices, the admission of digital evidence, self-defense, and cross-examination. The page also covers pretrial detention on dangerousness, the classification of offenses as felonies or misdemeanors, and the rules that govern dismissal. Each section states the practical question and links to the page that answers it in full. The Massachusetts criminal court practice section explains how the rules on this page apply at each stage of the trial.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. Serpa Law Office can be reached at 617.936.0201.

The Right to Remain Silent

The Fifth Amendment and Article 12 of the Massachusetts Declaration of Rights protect a person from compelled self-incrimination. To stop custodial questioning, a person must invoke the right unambiguously. Remaining silent does not by itself invoke the right under federal law. The rules governing later use of silence depend on when the silence occurred and whether the person was in custody or under interrogation.

The firm’s page on the right to remain silent in Massachusetts contains the complete discussion.

Illegal Searches and Seizures

The Fourth Amendment and Article 14 govern stops, exit orders, patfrisks, entries, and searches. The defense may move to suppress evidence that police obtained through an unlawful search or seizure and evidence derived from the illegality.

A judge does not suppress evidence automatically after finding a constitutional violation. The Commonwealth may argue that the evidence came from an independent source, would inevitably have been discovered, or is sufficiently attenuated from the illegality. The question whether the Commonwealth can continue a prosecution after a suppression ruling depends on what admissible evidence remains.

The page on illegal searches and seizures in Massachusetts explains the grounds, exceptions, and possible remedies.

Phone, Computer, and Digital Device Searches

Separate rules govern each of four police actions, which are taking a device, holding the device while police apply for a warrant, obtaining the warrant, and searching the device within the warrant’s limits. Police generally may not search a phone without a warrant. The warrant limits what police may review and the period of time police may examine. Compelling a person to enter a passcode requires the Commonwealth to prove beyond a reasonable doubt that the person knows it.

See phone, computer, and digital device searches in Massachusetts for the complete search-and-seizure analysis. The pages on refusing to give police an iPhone passcode and digital search warrants address those narrower questions.

Digital Evidence at Trial

How police obtained digital material and whether a jury may see it are different questions. Admission of digital evidence requires authentication. Evidence that a message came from an account bearing a person’s name is not enough by itself to prove that the person wrote the message. Authorship, hearsay, and completeness are each separate objections.

The page on digital evidence in Massachusetts criminal cases explains the admission and objection rules. The text message and phone evidence FAQs answer the related client questions.

Self-Defense

Self-defense is a complete defense. The Commonwealth must prove beyond a reasonable doubt that the accused did not act in self-defense once direct evidence or cross-examination at trial raises the issue of self-defense.

What the Commonwealth must prove depends on the level of force used because the standards for nondeadly and deadly force differ. Before using deadly force outside the home, a person must use all proper and reasonable means to avoid physical combat when retreat is safely available.

The firm’s page on self-defense in Massachusetts sets out the full elements and the burden of proof. The firm’s page on self-defense and mutual combat in domestic violence cases explains how self-defense applies when both partners used force or both were arrested.

Criminal Responsibility

Lack of criminal responsibility is the defense commonly called the insanity defense. A defendant is not criminally responsible if, at the time of the offense, a mental disease or defect left them without substantial capacity to appreciate the wrongfulness of the conduct or to conform it to the requirements of law. Commonwealth v. McHoul, 352 Mass. 544 (1967).

The Commonwealth must prove criminal responsibility beyond a reasonable doubt once the evidence raises the issue. The Commonwealth may prove criminal responsibility through the defendant’s conduct without calling an expert. Commonwealth v. Keita, 429 Mass. 843 (1999); Commonwealth v. Lawson, 475 Mass. 806 (2016). In criminal responsibility trials, the verdict depends far more often on evidence of planning, concealment, and what the defendant said afterward than on the diagnosis. A verdict of not guilty by reason of lack of criminal responsibility is an acquittal followed by commitment proceedings under G.L. c. 123, § 16.

The firm’s page on criminal responsibility in Massachusetts sets out the standard, the trial, and the proceedings after the verdict.

Double Jeopardy

Double jeopardy protection bars the government from prosecuting or punishing a person twice for the same offense. Double jeopardy protection comes from the Fifth Amendment, applied to the states in Benton v. Maryland, 395 U.S. 784 (1969), and from Massachusetts common law and statute.

Massachusetts judges decide whether two charges are the same offense by applying the same-elements test of Morey v. Commonwealth, 108 Mass. 433 (1871). Double jeopardy protection does not bar a retrial after a jury cannot agree on a verdict.

The firm’s page on double jeopardy in Massachusetts sets out the three double jeopardy protections, when jeopardy attaches, and how a defendant raises the claim.

Cross-Examination

Through cross-examination, defense counsel tests the reliability, accuracy, bias, and completeness of the Commonwealth’s testimony. Effective cross-examination depends on material that defense counsel gathers before trial. Material for cross-examination includes prior statements, reports, recordings, and records that show what the witness said earlier and what reason the witness had to say it.

The page on cross-examination in Massachusetts criminal trials addresses scope, impeachment, bias, confrontation, and preservation.

Jury Selection, Opening Statements, and Closing Arguments

At jury selection, the judge and the parties examine whether prospective jurors can decide the case fairly and follow the judge’s instructions. In an opening statement, counsel outlines the evidence counsel reasonably expects the jury to hear. In closing argument, counsel applies the law and the burden of proof to the evidence admitted at trial.

The trial guides explain jury selection in Massachusetts criminal trials and the rules governing opening statements and closing arguments.

The Dangerousness Hearing

Under M.G.L. c. 276, § 58A, the Commonwealth may move at arraignment to detain a defendant charged with an enumerated offense. Detention requires a finding by clear and convincing evidence that no conditions of release will reasonably assure the safety of any other person or the community.

Section 58A provides that, absent good cause, a person held under a detention order shall not be detained more than 120 days in the district court or more than 180 days in the superior court. Periods of delay defined by Rule 36(b)(2) do not count toward the 120-day or 180-day limit. Counsel must begin preparing the evidence and proposed release conditions immediately because the statutory schedule is short.

The client page on Massachusetts dangerousness hearings under M.G.L. c. 276, § 58A explains qualifying charges, detention, and release conditions. The same dangerousness hearing page also explains the hearing procedure in detail.

Felonies and Misdemeanors

Massachusetts defines a felony as a crime punishable by death or imprisonment in the state prison. Every other crime is a misdemeanor.

Two consequences addressed on this page depend directly on the felony or misdemeanor classification. The first is whether the law authorizes a state-prison sentence for the offense. The second is whether § 100A applies a three-year or seven-year conviction-sealing period. Which court hears the case, and the immigration, firearms, and licensing consequences, do not depend on the classification alone.

The detailed pages explain felonies and misdemeanors in Massachusetts and the separate rules governing Massachusetts courts, state prison, and house of correction.

Dismissal

A case can end before trial. A prosecutor may enter a nolle prosequi. A judge may allow a motion to dismiss on grounds including a defect in the complaint, an insufficient showing before the grand jury, or a speedy-trial violation. Which grounds the defendant may raise depends on the charging method and the procedural record.

The dismissal page explains how Massachusetts criminal cases can sometimes be dismissed or stopped before trial.

The Fifth Amendment in Civil and Protective Order Proceedings

A person facing a criminal investigation may also be a party to a civil case or to a proceeding for a 209A restraining order or a 258E harassment prevention order. The Commonwealth may later obtain and seek to use testimony that the person gives in the civil proceeding, subject to the applicable evidentiary rules. A civil judge may also draw an adverse inference when a party invokes the privilege. Counsel should evaluate the civil and criminal proceedings together before the person testifies.

The page on the Fifth Amendment in Massachusetts civil cases explains the decision whether to testify or invoke the privilege, and the possible consequences of each choice.

Statements of an Absent Complainant

The Commonwealth can proceed with a domestic violence case without the complainant’s testimony by offering 911 calls and statements made at the scene. The admissibility of 911 calls and statements made at the scene depends on two questions. The first is an evidentiary question, whether a statement fits a hearsay exception such as an excited utterance. The second is a constitutional question, whether the statement was testimonial under the Confrontation Clause. The two questions are separate inquiries with separate answers.

The firm’s page on excited utterances, spontaneous utterances, and the recanting complainant contains the complete treatment.

The Marital Privilege

General Laws c. 233, § 20 contains two different spousal protections. The First clause disqualifies a spouse from testifying to a private marital conversation. Neither spouse can waive that disqualification. The Second clause gives the witness spouse, and only the witness spouse, the choice whether to testify against the other. The witness-spouse privilege applies to live testimony, so the Commonwealth can still proceed on the complainant’s out-of-court statements.

The page on Massachusetts spousal privilege and marital communications sets out both protections, the statutory and doctrinal exceptions, and the procedure for invoking and preserving each.

The Massachusetts Spousal Privilege and Marital Communications FAQ gives short answers about current marriage, separation, divorce, private oral conversations, texts and emails, domestic violence cases, grand-jury subpoenas, and prior statements.

Recording Conversations

Massachusetts wiretap law restricts secret audio recording of an oral communication. A person who secretly records a conversation without the knowledge of the other participants may face criminal exposure, depending on what was recorded and how the person made the recording.

The page on secret recordings and the Massachusetts wiretap statute explains the statutory definitions and exceptions.

The related evidence guide addresses courtroom use of secret recordings in criminal trials, probation matters, civil cases, and protective-order hearings.

Traffic Stops

A stop, an exit order, a patfrisk, and a search of a car are separate intrusions requiring separate justification. Modern stops also involve phones, location data, and automatic license plate readers, each with its own rules. The article on the modern Massachusetts traffic stop addresses stops, exit orders, patfrisks, car searches, phones, location data, and automatic license plate readers.

Driver’s Licenses for Noncitizen Students

What a driver may lawfully do in Massachusetts depends on the driver’s residency and licensing status. A criminal charge can affect the driver’s residency and licensing status.

The page on international students and Massachusetts driver’s licenses explains residency, foreign licenses, and Massachusetts licensing questions.

What Happens After an Arrest

What an arrested person says and whether the person consents to a search can affect the evidence the Commonwealth later offers.

The related pages explain what to do in the first 24 hours after an arrest in Massachusetts and what occurs at arraignment in the Massachusetts Trial Court.

Records and Consequences

A CORI entry is created when a case proceeds to arraignment. The disposition then affects later reporting, sealing, immigration, and licensing questions.

The site provides separate pages on criminal records and outcomes, sealing and expungement, immigration consequences, and criminal defense for licensed professionals.

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.