Articles Posted in Legislation

The Massachusetts Court of Appeals recently reaffirmed in Commonwealth v. Stampley, 88 Mass. App. Ct. 1118 (2015) that the possession of even several baggies of marijuana without additional evidence of distribution is not sufficient to convict a defendant of possession with intent to distribute. As background, in 2008 Massachusetts voters passed a ballot decriminalizing the possession of small amounts of marijuana. The law went into effect in 2009. Before 2009, possession of any amount of marijuana was a criminal offense with offenders facing up to 6 months in jail. It should be noted that possessing more than one ounce of marijuana is still a crime, as well as distribution (dealing) of any amount and possessing any amount with the intent to distribute it.

In Commonwealth v. Stampley, a police officer approached two teenagers who were smoking a blunt. The two teens became nervous and fidgety and gave the officer false names. 17 individual, quarter-sized plastic baggies of marijuana were retrieved from the teens. The defendant had nothing else in his possession to indicate that he was involved in the drug trade. Continue reading

The Massachusetts legislature has recently adopted a definition of controlled substances that includes “controlled substance analogues,” or what is commonly known as “designer drugs.” The Massachusetts law is modeled on a similar Federal law that has already been put into place. This added definition would make criminalize analogues in the same way that the named controlled substances are criminalized, such as possession of the substance or distribution of the substance.

A controlled substance analogue is a substance that is similar in chemical structure and psychological effect to an existing controlled substance but has not yet been listed as a controlled substance. So in the statute, the analogues are not specifically listed by any name but are generally defined as a substance “substantially similar” to other controlled substances already listed.

The way the statute is written, a two-prong test is created for proving an analogue. First, the analogue (or “designer drug”) must be structurally similar to a controlled substance. “Structurally similar” essentially means that its chemistry must be very closely related. The second prong can be proven in one of two ways. One, the analogue causes a substantially similar or greater effect on the user as the named controlled substance. Or two, the analogue was represented to have or intended to have a similar effect on the user as the named controlled substance.

This addition to the controlled substance statute will cause a whole host of problems for police, prosecutors, defense attorneys, and most importantly, defendants.

One problem is how do you prove that an analogue has a “structurally similar” makeup to a named controlled substance? (And a whole separate problem is what named controlled substance will the analogue be tested against since there are numerous possibilities?) This is obviously going to require an expert in chemistry to test how similar the alleged analogue and the named controlled substance are. This will be a time-consuming and costly process for both the government and defendants. The need for an expert puts defendants who cannot afford to pay in a highly disadvantaged position when up against a big government budget. Since there is no scientific definition for what “substantially similar” means, the case could come down to one expert’s opinion versus another expert’s opinion. What method of testing the expert(s) utilize is also a problematic area with no right or wrong answer right now.
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Massachusetts Rules of Evidence are very important when it comes to winning a criminal trial. On Friday, December 19th, Superior Court Judge Garsh ruled that text messages sent from Odin Lloyd minutes before he was shot and killed cannot be shown to the jury during New England Patriot Aaron Hernandez’s first-degree murder trial.

The text messages were sent from Lloyd right before his death to his sister: “U saw who I was with … NFL … Just so U know.” These text messages are hearsay and generally inadmissible as evidence (explained below). The prosecution wished to present these text messages as evidence that Lloyd knew he was about to die and who was going to kill him. A “dying declaration” is an exception to the ban on hearsay (explained below). The prosecution’s theory is that Hernandez killed Lloyd because he knew too much about a 2012 double-murder that Hernandez has recently been charged with as well. Judge Garsh, however, ruled that the messages did not suggest Lloyd feared for his life, there was no credible basis for linking Lloyd’s killing with the double-murder, and the prosecution’s argument was speculative. The defense considers this a huge victory.

Rules of evidence govern whether and for what purpose proof of a legal case may be placed before a trier of fact (usually a jury) for consideration.

1- Hearsay
In general, hearsay is not admissible as evidence. Hearsay is an out-of-court statement introduced to prove the truth of the matter stated. To put it more simply, hearsay is the report of another person by a witness. Hearsay is generally not allowed to be introduced as evidence because it is unreliable. Think of the “telephone game” you played as a kid. The first person says something and by the end of the game the person’s words are totally different. That’s the reason hearsay is generally inadmissible. There are many exceptions to the hearsay rule where the out-of-court statement can be introduced as evidence. The exceptions have been created because certain out-of-court statements are usually more reliable. One of them is called a “dying declaration.”
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The Massachusetts Supreme Judicial Court recently ruled that a law used to charge an Andover man, Michael Robertson, with taking up-skirt photos of women in 2010 did not apply in the case because the women did not have any expectation of privacy in a public place and they were not in a state of undress.The SJC decided that the state law that Robertson was charged with violating in 2010 does not actually make what he did a crime.

In the case, Robertson did not contest that he took up-skirt photos of two women on the Green Line in December 2010, however, he did contest that, because the women were not nude, not partially nude, and were in public, he did not violate state law as written.The court ruled that the law as written only applies to people in private settings when they are nude or partially nude. Because in this case these women were fully clothed, wearing under garments, and in public, the incidents do not fall within the law. The court did say that riders should have protections from peeping toms on the MBTA, but the law as written needs to be changed.

“We conclude that the law, as written, as the defendant suggests, is concerned with proscribing Peeping Tom voyeurism of people who are completely or partially undressed and, in particular, such voyeurism enhanced by electronic devices. The law does not apply to photographing, videotaping, or electronically surveying persons who are fully clothed and, in particular, does not reach the type of up-skirting that the defendant is charged with attempting to accomplish on the MBTA,” read the SJC’s decision. Because the MBTA is a public transit system operating in a public place and uses cameras, the two victims here were not in a place and circumstance where they reasonably would or could have had an expectation of privacy.

In late August 2013, the United States Department of Justice announced that it is “deferring its right to challenge” the Colorado and Washington initiatives that “tax and regulate marijuana like alcoholic beverages.” This announcement indicates that the administration is willing to take another look at marijuana laws and discuss possible reform with Congress and the States.

It has been suggested that the states and Congress should adopt a “child-protection agricultural produce” model for the cultivating of marijuana.This model would make marijuana possession legal for adults only. The Massachusetts Cannabis Reform Coalition conducted a poll in 2011 and found that 58 percent of Massachusetts voters already support a similar model. The model would be sure to severely punish the distribution of marijuana to minors with significant jail time and/or fine, and would require adults to take serious precautions in order to prevent access to marijuana by minors.

Currently, possession of marijuana has been decriminalized in Massachusetts and is not punishable as a crime unless a person is in possession of more than one ounce. According to this suggested model, for those under the age of majority, it would remain a crime/delinquency to grow, sell, or possess over an ounce of marijuana and a civil offense to possess an ounce or less. Despite these changes, the model would have no affect on the “drug-free” schools policy and it would still be a crime to possess marijuana on school property. Also, by recognizing marijuana as the herb it is, all laws that now apply to selling fruits and vegetables (including regulation of fertilizers and pesticides, income tax and land use) would apply to those cultivating marijuana.

The Massachusetts legislature will be reviewing new possible gun legislation in the upcoming session. Many suggestions are being made as to how to approach gun regulation while simultaneously decreasing gun crimes in the Commonwealth. One suggestion is for Massachusetts to pass laws that keep illegal guns out of the hands of criminals.

Generally, legally owned guns are less likely to be used to commit crimes than illegally owned guns. In most instances, when legally owned guns are used against a person, it is a case of self defense, defense of a third party, defense of property, domestic violence, or suicide. Because most criminals are using illegally obtained guns to commit crimes, it is important that the Massachusetts legislature do something to stop criminals from acquiring and carrying these illegal firearms.

One specific suggestion made is that the Commonwealth pass certain legislation requiring that anyone over the age of 16 who is discovered to be in possession of an illegal firearm be prosecuted in an adult gun court. Those offenders under the age of 16 would be prosecuted in a juvenile level gun court. The gun court would not only have the authority to charge, but also try, and sentence for the possession of the illegal firearm and/or ammunition. If convicted, it is suggested that there be a mandatory minimum incarceration for first time adult offenders, and a mandatory rehabilitation program for first time juvenile offenders.

In Massachusetts, 17-year-olds accused of a crime are treated as adults, regardless of the circumstances involved or the seriousness of the offense. This means that they are generally sent to prison rather than juvenile detention facilities. However, a bill pushed by Massachusetts representative Brad Hill that would allow 17-year-olds to be treated as juveniles rather than adult-level criminals in most cases in Massachusetts, has recently been cleared through the Senate and approved by the House of Representatives. Hill stated that there are a number of reasons he supports the bill. One being the negative effects that prison can have on 17-yr-olds, and another being the conflicting age of majority in many other states and the federal system.

The bill would encompass a plan called the youthful diversion program which would differ from person to person.The district attorney’s office would have full discretion as to whether a 17-year-old would be charged as an adult criminal or juvenile offender. The bill would allow for flexibility depending on the severity of the crime and not, for example, change the law dictating that 17-year-olds accused of murder or other serious violent crimes be tried in adult court.

I agree with and support the logic behind this new bill.18 is the age of majority in 39 other states and the Federal system so why is it different within the Massachusetts criminal justice system? Because 17-yr-olds are minors, they should be treated as such in all aspects of their lives. They cannot vote, serve on a jury, or even buy tobacco; so why should they be sent to adult prisons? When 17-yr-olds are charged as adults, their names and criminal records are made public. This could cause many of them extreme difficulties when it comes to finding employment, applying for college, or other aspects of their adult lives. There is not even a possibility of these adult records being sealed until a minimum of 10 years after the disposition has been completed. On the other hand, when charged as a juvenile, records can be sealed after only 3 years from the completion of the disposition. Many of these teens are still very impressionable and have a great chance of changing their ways if given the proper care and assistance. In my opinion, prison can be a further problem for these 17-yr-olds rather than a much needed solution.

DUI’s, OUI’s in Massachusetts, have become a huge problem throughout the United States. Recently, in an effort to lower the many cases of drunk driving, the National Transportation Safety Board (NTSB) recommended that states lower the legal blood-alcohol limit from .08 to .05. This recommendation is not receiving much support in Massachusetts from establishments that serve alcohol as well as prominent safety organizations. Specifically, the Massachusetts chapter of Mother’s Against Drunk Driving (MADD) does not support the NTSB’s recommendation and believes that there are more proficient ways of curbing drunk driving within the State such as interlock ignition devices and other drunk driving laws that are already in place.

If Massachusetts were to implement a new law based on the suggestion of the NTSB, there could be many positive and negative consequences. For instance, if the OUI limit is lowered, it could reduce the amount of fatalities and property damage caused by drunk driving within the state. People may choose to be more careful with their drinking and therefore create a safer and more law abiding environment on Massachusetts public roadways. On the other hand, lowering the limit may also flood the MA court system with an abundance of less severe OUI cases. Depending on the weight of a person and how long they have been drinking, a blood alcohol level of .05 can likely be reached after two beers or two glasses of wine. This may cause an outpouring of OUI cases in the state of Massachusetts that would never have come through the court system if not for the change in the law.

Although changing the legal blood-alcohol limit is not yet on the state Legislature’s agenda, the Senate will be working with law enforcement and a variety of advocacy groups to review the NTSB recommendation. If the change is made, MA will surely see a drastic change whether it be in it’s OUI fatality statistics, OUI court statistics, or more. Clearly, we all want a safer Massachusetts but the question becomes: is this new legislation really the way to go or are the laws that we currently have in place good enough?