What's New

2020

10/13/20: This is the 40th Edition of the Prosecutor's Guide.

Judge Stearns has revised the chapters on "Threshold Inquiries", "Searches Incident to Arrest", and "Public Order Offenses" with the important cases of Commonwealth v. Jones 98 Mass. App. Ct. 120 (2020), and Commonwealth v. Evelyn, 485 Mass. 691 (2020), and the attempt to address racial profiling in the context of traffic stops as the major topic of discussion.

10/3/20: Judge Stearns has revised the sections on "Bail" and "Other Crimes Evidence" in "Procedure 1" to highlight Justice Lowy's elaboration on the Brangan requirements in Walsh v. Commonwealth, 485 Mass. 567 (2020), and new cases touching on proof of state of mind, motive, and common scheme, as well as undue prejudice.

9/15/20: Judge Stearns has revised the chapter on "Indecent Assault Battery", which discusses, among other topics, the law governing jury empanelment, to incorporate the Supreme Judicial Court's groundbreaking decision in Commonwealth v. Sanchez, 485 Mass. 491 (2020), that aligns state with federal law prohibiting the discriminatory use of peremptory challenges. The chapter on "Search and Seizure" has been revised to take note of Commonwealth v. Mora, 485 Mass. 360 (2020), a pole camera surveillance case, elaborating on the Court's recently adopted "mosaic theory" of the expectation of privacy.

8/16/20: Judge Stearns has revised the chapters on "Identification Evidence", "Indecent Assault and Battery", "Receiving Stolen Property", and "Firearms Offenses" to incorporate new cases dealing with jury issues, jury unanimity, the authentication of evidence, proof of knowledge that a weapon is loaded, and Firearm Identification Card applications, among many other topics.

8/11/20: Judge Stearns has updated and revised the chapters on "Drug Crimes", "Dangerous Weapons", "Search and Seizure", "Consent Searches", and "Exigent Searches" to incorporate recent developments in the case law.

7/21/20: Judge Stearns has revised the chapters on court procedure to incorporate new developments with respect to the impact of the COVID-19 pandemic on Speedy Trial Act matters (including pretrial detention), as well as new cases discussing the separation of powers, continuances, gang affiliation evidence, and the Confrontation Clause. Judge Stearns also draws attention to the Supreme Judicial Court's suggestion in Commonwealth v. Watt, 484 Mass. 742 (2020), that it might be open to extending its "cruel or unusual punishment" reasoning in Diatchenko to persons under age twenty-two.

7/13/20: Judge Stearns has revised the chapters on "Battery" and "Domestic Abuse" to note, among other topics, new cases on the law of self-defense and two new Appeals Court cases by Justice Hanlon clarifying the burden of proof in establishing a reasonable fear of imminent harm and the rules governing the appealability of Chapter 209A and Chapter 258E orders.

7/1/20: Judge Stearns has revised and updated the chapter on "Admissions and Confessions" to include a number of recent developments in Massachusetts and federal law.

6/23/20: Judge Stearns has revised the chapter on "Public Order Offenses" to take particular note of a recent Supreme Judicial Court mandate that trial judges who are considering a commitment for alcohol or substance abuse treatment weigh the impact of the COVID-19 pandemic in the decision.

6/15/20: Judge Stearns has revised the chapters on identification procedure and evidence to note new advances in the science of eyewitness identification, and new cases covering, among other topics, the Crayton procedure, photographic identifications, the use of social media evidence, and the DNA "innocence" statute.

5/27/20: Judge Stearns has updated the chapters on "Battery" and "Assault and Battery with a Dangerous Weapon" to note, among other topics, new cases on serious bodily injury and mayhem. The section on "Other Bad Acts" in the "Procedure" chapter has also been revised.

5/19/20: Judge Stearns has revised and updated the Search and Seizure chapters on "Threshold Inquiries" and "Searches with Warrants."

5/14/20: Having reluctantly concluded that the COVID-19 pandemic will be a fact of life for at least the coming months, Judge Stearns has revised the bail portions of the chapter on "Procedure" to include a new section on the Special COVID-19 Bail Considerations mandated by the Supreme Judicial Court.

5/11/20: Judge Stearns has revised the introductory chapter on "Search and Seizure" to include, among other topics, a discussion of Commonwealth v. McCarthy, 484 Mass. 493 (2020), an important new case from the Supreme Judicial Court that attempts to adapt art. 14 and the reasonable expectation of privacy test to a world of ultra-sophisticated police surveillance technology.

4/30/20: Judge Stearns has revised the chapter on "Forgery" to take note of Commonwealth v. Andre, 484 Mass. 403 (2020), which among other things, requires a trial judge to instruct a jury to evaluate the foundational elements for admitting a challenged business record. The chapter on "Larceny" has been revised to take note of Commonwealth v. McGann, 484 Mass. 312 (2020), which authorizes a sentencing judge to award restitution to a third party who suffers a financial loss because of a defendant's criminal conduct.

4/27/20: Judge Stearns has revised the chapter on "Indecent Assault and Battery" to note important developments in the law regarding the statute of limitations, jury empanelment, the law of consent in the context of a sexual battery, medical record contents, and the substitution of "first" complaint witnesses, among other topics.

4/13/20: Judge Stearns has revised the chapter on "Firearms Offenses" to incorporate, among other developments, an important new Supreme Judicial Court case, Commonwealth v. Marrero, 484 Mass. 341 (2020), which relieves the Commonwealth of the burden of proving that a defendant in unlawful possession of a firearm knew that his gun met the statutory definition.

4/10/20: Judge Stearns has revised the chapter on "Public Order Offenses" to recognize, among other developments, an important Supreme Judicial Court case, In the Matter of a Minor, 484 Mass. 295 (2020), which sets out due process requirements for a section 35 civil commitment proceeding, particularly when a juvenile is the respondent.

4/6/20: Judge Stearns has revised "A Prosecutor's Guide to Discovery" (PROCEDURE 1) to include new developments regarding the Public Records Law. The chapter on "Searches Incident to Arrest" has been revised in light of Commonwealth v. Barillas, 484 Mass. 250, an important new Supreme Judicial Court opinion discussing the seizure of cell phones incident to arrest, among other topics.

3/30/20: Judge Stearns has revised the chapter on Police matters to incorporate developments in the law affecting civil rights, qualified immunity, inmate rights, and actions brought under the Massachusetts Tort Claims Act, including the potential of class actions.

3/21/20: Judge Stearns has revised the procedural sections on bail and the use of other crimes evidence to capture recent developments in the law.

3/16/20: Judge Stearns has revised the section on district court procedures to reflect new developments in juvenile justice, particularly with respect to issues of diversionary sentences and probation revocations. The chapter on "Search Warrants" has been revised to recognize new cases dealing with computer searches and clarification of the procedures to be followed in taking an interlocutory appeal of a decision on a motion to suppress.

2/28/20: Judge Stearns has revised the chapter on "Vehicle Searches" to include commentary on Commonwealth v. Goncalves-Mendez, 484 Mass. 80 (2020), which announces a new rule prospectively requiring police to offer detained drivers the option of having a passenger who can do so lawfully, take custody of his vehicle instead of having it impounded (and inventoried). The chapter on "Firearms Offenses" has been revised to include new cases commenting on knowledge that a gun is loaded, the discharge of firearms in or near a dwelling or occupied building, and statutory exemptions to the licensing requirements.

2/24/20: Judge Stearns has revised the chapters on "Identification," "Assault," and "Dangerous Weapons" to incorporate the most recent developments in the law, including commentary on social media and the statutory right to seek DNA reanalysis.

2/18/20: The chapter on "Forgery and Uttering" has been revised to recognize, among other developments, Justice Lenk's astute commentary on the distinctions among forgery, uttering, and false statements in Commonwealth v. Stirlacci, 483 Mass. 775 (2020).

2/14/20: Judge Stearns has revised the chapters on "Introductory Search and Seizure," "Threshold Inquiries," and "Searches with Warrants" to incorporate recent developments in the case law. Of particular significance is Justice Budd's opinion in Commonwealth v. Torres-Pagan, 484 Mass. 34 (2020), clarifying the distinction between the more stringent standards justifying a patfrisk and the more lenient officer-safety standard justifying an order to exit a stopped vehicle.

1/22/20: Judge Stearns has revised the chapter on "Indecent Assault and Battery" in light of recent cases addressing, among other topics, prosecutions of child pornography and indecent assaults on children, the first complaint doctrine, jury empanelment and deliberations, and public access to court records.

1/13/20: Judge Stearns has revised the chapter on "Threshold Inquiries" to recognize Justice Budd's important opinion in Commonwealth v. Matta, 483 Mass. 357 (2019), reframing the "free to leave" test for determining when a police encounter with a civilian is transformed into a seizure. He has also revised the chapter on "Admissions and Confessions" to incorporate new cases on the administering of Miranda warnings, voluntariness, and the recording of confessions, among other topics.

1/6/20: Judge Stearns has revised the chapter on "Domestic Abuse" in light of important new cases discussing limitations on the scope of Chapter 258E orders, the elements of civil and criminal proceedings under Chapter 209A and Chapter 258E, proper service, and the right of appeal.

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