Operating under the influence of alcohol is a crime that is taken seriously in Massachusetts. If you are convicted, the punishment will impact not only your freedom but also possibly your relationships with others and employment opportunities.

When children are in the car when an OUI takes place, the consequences of conviction become even more serious. This is so because children are more vulnerable to injury or death when an accident caused by unsafe driving occurs.

There is a law in Massachusetts that prevents endangering children while operating under the influence of alcohol. It can be found in Massachusetts General Laws Chapter 90, Section 24V. It is called Child Endangerment While Operating a Motor Vehicle Under the Influence. There are two ways a person can be convicted.

What is OUI-Child Endangerment?

OUI-Child Endangerment is a crime in Massachusetts that occurs when a person operating a motor vehicle under the influence of alcohol puts a child in danger of death or other injury. Like all crimes, to convict a person certain facts or elements must be proven by the government beyond a reasonable doubt. They are:

• The accused operated a motor vehicle
• The accused did so on a public way, in a place where the public has a right of access, or in a place where members of the public are given an invitation or license to be at
• Either:
  • While the accused was operating the vehicle, they were under the influence of intoxicating liquor
  • While the accused was operating the vehicle, the percentage of alcohol in their blood was .08% or greater
• While the accused was operating the vehicle, there was a child present in the vehicle who was 14 years old or younger

So, a person cannot be found guilty of OUI-Child Endangerment unless each of these elements are proven beyond a reasonable doubt. If the government cannot prove one or more of these facts to this high degree of certainty, the person on trial must be acquitted.

What is the difference between being “under the influence” and having a blood alcohol content of .08% or greater?

There are two ways or legal theories of proving a person guilty of OUI-Child Endangerment. One is called impairment theory. Impairment means that the person was under the influence of alcohol while operating the vehicle. The other theory is called per se theory. Per se operating under the influence of intoxicating liquor means that the person was driving with a blood alcohol content (BAC) of .08% or greater.

The government can go with either approach if there is supporting evidence. However, in both cases they will have to overcome certain obstacles.

For example, a person is not “under the influence of alcohol” simply because they had an alcoholic beverage before getting behind the wheel. A person is under the influence of alcohol only if they have consumed enough alcohol to reduce their ability to drive their vehicle safely. The state will have to present evidence not only that the accused consumed alcohol but that this impacted their ability to drive safely.

Similarly, to have a blood alcohol content of .08% or greater is a scientific determination. This means scientific evidence must be presented that the blood alcohol content of the accused was tested. A good defense attorney will ensure that evidence of any tests that occurred were reliable by investigating:

• If they were given in a reasonable amount of time after operation
• If the person who gave the test was properly certified
• If the correct pre-test procedures were used
• If the testing device was working properly when the test was given
• If the test was given correctly

What makes OUI-Child Endangerment different from a regular OUI?

Because of the state’s interest in protecting children, being convicted of OUI-Child Endangerment increases the possible punishment.

Importantly, this crime has a punishment of 90 days to 2.5 years in the House of Correction and an automatic 1-year driver’s license suspension for a first offense.

Additionally, a person found guilty of a first offense will receive a minimum fine of $1,000. This fine could be raised as high as $5,000. A person could also receive a sentence of more than 90 days: up to 2.5 years in the House of Correction.

For people who commit this offense more than once, the punishment is increased to:

• Fine of $5,000 to $10,000
• Sentence of 6 months to 2.5 years in the House of Correction or 3 years to 5 years in state prison
• A 3-year driver’s license suspension

People convicted of a second or greater offense cannot have their sentence suspended. They also cannot receive probation or parole for good conduct until 6 months are served.

So, the consequences are harsh. This is why it is important to consult an experienced criminal defense attorney if you or a loved one are accused of this crime. An effective defense attorney will make sure that the state meets its burden of proof.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH OUI-DRUGS, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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What is gunshot residue?

Gunshot residue, often abbreviated “GSR”, is a type of forensic evidence. GSR is the substances that come out of a firearm after it is discharged. Pulling the trigger of a firearm causes a small explosion to occur inside the barrel of a gun that makes the bullet project out of it. As this happens, several residues are released. These include primer residue, residue from the projectile itself, and residue from unburnt or partially burnt gunpowder.

What does GSR show in a criminal investigation?

GSR can be analyzed by a forensic scientist to help prove or disprove a case against a person accused of a crime. If discovered on a person’s body, GSR can also help show that a person discharged a firearm. GSR could be used to show that a gun was transferred from one person to another. Since GSR typically lasts for no more than 4-6 hours on a person, it can also be used to help show when a firearm was discharged.

Take for example a case where a person is accused of discharging a firearm within 500 feet from a building. This is a crime in Massachusetts. To convict a person, the government must prove beyond a reasonable doubt that the accused discharged the firearm. Say police respond to a report of a gunshot fired in a residential area. They discover a bullet hole in a wall and arrest a person with a firearm in the trunk of their vehicle. A forensic analysis of the gun and suspect’s clothing could determine that no GSR was present. This would help prove that the gunowner was not the person who discharged the firearm.

Is GSR analysis flawless?
GSR analysis is not perfect and does not always guarantee a person is guilty of a crime. All crimes must be proven beyond a reasonable doubt. This is one of the highest burdens of proof in law. An effective criminal defense lawyer will consult an expert to determine if a finding of GSR was reliable. There are various ways a GSR analysis could not be reliable.

For example, there could be a false positive. GSR might not necessarily come from a firearm. It could come from another explosive device, like a lawfully discharged firework or a piece of machinery. The sample of GSR could also have been contaminated in the lab.

How can GSR evidence be challenged?

There are a variety of ways to challenge GSR analysis. In addition to challenging the scientific reliability of a GSR analysis, the way GSR evidence was collected could be disputed.

For instance, GSR may have been collected in violation of a person’s constitutional rights. The Fourth Amendment of the US Constitution protects people from unreasonable searches and seizures. The burden of proof called probable cause is usually required. If a person were stopped during a traffic stop, police opened the trunk of the car without probable causeor any other lawful justification, and discovered a gun with GSR on it, that evidence most likely would not be allowed into evidence at trial because it was collected illegally by police.

Thanks to modern technology, forensic science has become a much more valuable tool for solving crimes. For example, the development of DNA analysis has given law enforcement the ability to compare DNA left at crime scenes to DNA stored in databases to help them identify suspects. Although DNA comparisons might be the most well-known modern forensic science technique, it is not the only one. Forensic scientists can also examine gunshot residue (GSR).

GSR analysis is a valuable forensic science, but like all techniques used to prove people guilty of crimes, it has its limitations. Recognizing these limitations may be the difference between whether a person is wrongly convicted of a crime or rightfully acquitted.

What is forensic science?

The definition of forensic science is the application of science to law. In criminal law, it includes using scientific techniques to determine if a person is guilty or innocent of a crime. The fields of science that could be involved include:

• Physics
• Chemistry
• Biology
• Computer science
• Engineering
• Data analysis

For example, in a drug case, chemistry might be used to determine whether a substance is an illegal narcotic (for example, cocaine). In a case involving possession of child pornography, data analysis could be performed to document when files were downloaded and opened. Likewise, biology could be used in a murder case to show a victim’s cause of death.

Forensic science is practiced by forensic scientists. Forensic scientists work in forensic crime laboratories. Forensic crime labs receive forensic evidence, analyze it using scientific techniques, and report their findings to law enforcement. Forensic evidence could include:

• Blood
• Saliva
• Hair
• Semen
• Soil and vegetation
• Fingerprints
• Tire tracks
• Narcotics
• Computer files
• Financial data

Forensic scientists often work for police but not always. For example, Massachusetts has a crime laboratory run by the State Police. Criminal defense lawyers will often use the services of an expert to conduct an independent forensic analysis of evidence. For example, an expert might be used by a criminal defense lawyer to analyze data on financial transactions to determine if the state will be able to prove their client committed a crime like larceny or fraud.

A forensic scientist who provides testimony in a case must be properly qualified. This usually means having degrees or certifications. Their methods must also be scientifically valid and recognized. For example, it is not very likely that a court would allow the testimony of an astrologist who says a person is guilty because of the way the stars were aligned on the night a crime was committed. On the other hand, a MIT PhD with an impressive CV who testifies to the flaws of a ballistics analysis would likely be allowed.

An criminal defense attorney will be very familiar with the law on searches and seizures. It is the job of an effective criminal defense attorney to ensure the constitutional rights of people charged with crimes are protected. This means paying close attention to how evidence was collected and ensuring that it is used fairly at trial.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH A GUN CRIME, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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What is a subsequent offense?

A subsequent offense is a crime that a person has been convicted of before. It happened subsequent or after your first conviction.

A subsequent offense does not always mean “second offense.” It could be a third, fourth, or any number offense after the first. The paper charging you with a crime (complaint, citation, or indictment) will indicate if you are being charged with a subsequent offense.

If I am convicted twice, is it assumed that the second offense was a subsequent offense?

No. If you are convicted of the same crime on two separate occasions the court is not allowed to assume when it sentences you the second time that you are a subsequent offender. The state must prove beyond a reasonable doubt that before the accused committed the second crime they had previously been convicted of the first one.

How is a subsequent offense proved?

In Massachusetts, proving a subsequent offense means proving beyond a reasonable doubt that the person who was convicted of the underlying crime is the same person who was convicted on the first occasion. If the government does not meet its burden, a person cannot be convicted of the underlying crime as a subsequent offender.

The government usually meets its burden of proof by offering certified records into evidence. The record of a person’s conviction is a public record. Courts almost always allow these types of records into evidence. However, that does not mean they cannot be challenged. Sometimes clerks—who are responsible for maintaining the case docket, or official record of the proceedings of a case—make a mistake. A good criminal defense attorney will closely examine any records showing a subsequent offense to ensure they are fair and accurate.

What is the penalty for a subsequent conviction?

If a person is convicted of a subsequent crime, the penalty will depend on the crime. For example, for the crime of assault and battery on a family or household member:

• First Offense: up to 2 ½ years in the House of Correction and/or a fine of up to $5,000
• Subsequent: up to 2 ½ years in the House of Correction or up to 5 years in state prison

As you can see, the punishment for the subsequent offense is worse. A person convicted of second offense assault and battery on a family or household member could be sentenced to state prison. A person convicted of only their first offense cannot be sentenced to state prison. The possible punishments for subsequent offenses is always worse.

Some crimes do not say what the subsequent penalty is. This gives judges discretion to impose a sentence. In these cases, judges in Massachusetts often turn to the Massachusetts Sentencing Guidelines. The Massachusetts Sentencing Guidelines, which can be viewed here, give judges instructions on how to sentence people convicted of crimes when the laws punishing these crimes do not require a particular sentence to be imposed. The Guidelines are not law but they are a very well-regarded source of legal authority in Massachusetts. A good defense attorney will be very familiar with the Sentencing Guidelines and use them to benefit their clients.

Does double jeopardy protect me from being convicted of a subsequent offense?

A subsequent offense is not the same as double jeopardy. The Fifth Amendment of the Constitution protects people from double jeopardy. Double jeopardy means being prosecuted for the same crime twice. A subsequent offense is not double jeopardy because the facts of the crime are different. For example, if a person prosecuted for an OUI occurring on July 1 is then prosecuted for an OUI occurring on September 1, the second prosecution for the subsequent offense is not double jeopardy because the OUIs occurred on two separate days.

This does not mean double jeopardy is not a defense in some cases. It can be when a person is charged with two offenses that are very similar and based out of the same facts.

IF YOU OR A LOVED ONE ARE CHARGED WITH A SUBSEQUENT OFFENSE, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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Massachusetts is a state that takes sex crimes very seriously. Sex offenses include crimes like rape, possession of child porn*graphy, and sexual assault of a minor. Another offense that falls under the category of sex crimes is secretly photographing or videotaping a person who is partially or fully nude. Since most of us have cell phones and social media, it is important to understand what types of photos and videos are permitted and which are illegal.

What does it mean to secretly photograph or videotape a nude or partially nude person?

Massachusetts General Laws Chapter 272, Section 105(b), Paragraph 1 gives us a definition of this crime of secretly photographing or videotaping a nude or partially nude person. There are five elements, or requirements, for a person to be found guilty of the offense. They are:

• Willfully photographing, videotaping, or electronically surveilling another person
• Doing so without the other person’s knowledge or consent
• Intending to do so secretly or in a hidden manner
• The other person was naked or partially naked
• The other person had a reasonable expectation of privacy

No person can be punished for committing this crime unless the government proves each of the five elements beyond a reasonable doubt. An effective criminal defense attorney will show to the judge and jury that the evidence does not satisfy one or more of the requirements.

What does it mean to electronically surveil someone?

The first requirement of the crime is that the accused must have willfully photographed, videotaped, or electronically surveilled another person. To photograph or videotape another person is self-explanatory, but what does it mean to “electronically surveil” them?

Sometimes laws provide definitions of the words they used. In Subsection (a) of the law that defines the crime we are discussing, “electronically surveil” is defined. It means to “view, obtain or record a person’s visual image by the use or aid of a camera, cellular or other wireless communication device, computer, television or other electronic device.”

What does it mean to photograph or record willfully?

To commit a crime usually requires that you have a certain mens rea or state of mind. That state of mind is often, but not always, intent. To do something “willfully” is another way of saying to do something intentionally. This means that for this crime, the photography, video-recording, or electronic surveillance must have not been accidental.

The third requirement of the crime also requires a certain state of mind. Again, that state of mind is intent. To be found guilty, the accused must have intended that the photography, recording, or video surveillance be secret or hidden.

What does it mean to be nude or partially nude?

While it may seem obvious, partially nude has a legal definition. Again, Subsection (a) has it. To be “partially nude” means “the exposure of the human genitals, buttocks, pubic area or female breast below a point immediately above the top of the areola.”

Lawyers always ensure that when a word is defined by a law the ordinary (dictionary) meaning of the word is not used instead. This protects people accused of crimes from being punished for actions that were not illegal.

The law does not say what it means to be fully nude so that is left to the common sense of the jury or a judge to determine.

What is a reasonable expectation of privacy?

The final requirement of the crime is that the person who was photographed, recorded, or electronically surveilled had a “reasonable expectation of privacy.”

A reasonable expectation of privacy has two requirements:

• The person actually expected privacy
• The person’s expectation was reasonable

To “actually” expect privacy means to subjectively expect it. For example, a person changing clothes in the privacy of their own home with the blinds closed would likely expect that they are in private. They would expect that no one outside their home is watching them. To “actually” expect privacy means to think to yourself “I’m in private.”

Whether an expectation of privacy is reasonable is not determined by any one person but by society as a whole. Sometimes a person’s expectation of privacy is not reasonable. For example, a person who walks down the main street of a town completely naked could not reasonably expect privacy. It would be unreasonable to think no one else was looking. On the other hand, society would likely say that it is reasonable to expect privacy when a person takes a shower in their own home with the blinds drawn.

Whether privacy was actually expected and whether it is reasonable is usually a question of fact. This means that it is up to a judge or jury to decide using their common sense.

Are there other ways to illegally photograph or videotape someone?

Yes, there are two other different crimes that involve illegally photographing or videotaping a person that are not the sameas the crime we discuss here. They both involve illegally photographing or videotaping a person who is clothed:

• Photographing, videotaping, or electronically surveilling an adult’s intimate parts when they are clothed
• Photographing, videotaping, or electronically surveilling a minor’s intimate parts when they are clothed

Photographing, videotaping, or electronically surveilling an adult’s intimate parts is punished under General Laws Chapter 272, Section 105(b), Paragraph 2. Doing the same to a child is punished under Paragraph 3.

The statute gives a definition of “sexual or other intimate parts”. They are “human genitals, buttocks, pubic area or female breast below a point immediately above the tip of areola, whether naked or covered by clothing or undergarments.”

What is the punishment for secretly photographing or recording a nude or naked person?

The law says that a person who is found guilty can be punished with a sentence of:

• Up to 2 ½ years in the House of Correction
• A fine of up to $5,000
• Up to 2 ½ years in the House of Correction AND a fine of up to $5,000

IF YOU OR A LOVED ONE ARE CHARGED WITH A SEX CRIME, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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Sexual abuse is a serious crime that comes from a wide variety of conduct. One way a person can be sexually abused is through revenge porn. Across the country, states have been passing laws to criminalize revenge porn. Massachusetts is one of the latest.

What is revenge porn?

When a person posts sexually explicit images of a person online without their consent they have committed the crime of disseminating revenge pornography. Revenge porn, as the name suggests, is typically done as a form of revenge or harassment.

For example, a boyfriend films a pornographic video of his girlfriend while they are dating. The girlfriend consents to the videotaping, but the boyfriend takes possession of the recording. The girlfriend then breaks up with the boyfriend. The breakup was unexpected and the boyfriend is bitter. The girlfriend asks him to destroy the video and he refuses. Instead, he threatens to post the video on the internet unless she gets back together with him. The girlfriend tells him that she does not consent to this and refuses to get back together with him. The boyfriend then posts the video. The boyfriend has likely committed the crime of revenge porn.

Does Massachusetts have a law against revenge porn?

Yes, Massachusetts recently enacted a law to prevent image-based sexual assault or revenge pornography. The law has been in effect since September 2024. It is called An Act to Prevent Abuse and Exploitation.

The new law makes several amendments, or changes, to existing laws. The laws that are amended are:

• Chapter 209A: The Abuse Prevention Statute
• Chapter 265, Section 43A: The Criminal Harassment Statute
• Chapter 119: Protection and Care of Children
• Chapter 272: Crimes Against Chastity, Morality, Decency, and Good Order
• The Statute of Limitations

Abuse Prevention Statute

The Abuse Prevention Law gives people suffering from abuse from a family or household member the opportunity to obtain a restraining order. The changes under the new law alter the definition of what counts as abuse. Abuse is now:

• Attempting to cause or causing physical harm
• Placing another in fear of imminent serious physical harm
• Causing another to engage involuntarily in sexual relations by force, threat or duress
• Coercive control

The highlight is that the new definition of abuse now includes coercive control.

The new law gives a definition for this word as well: “a pattern of behavior intended to threaten, intimidate, harass, isolate, control, coerce or compel compliance of a family or household member that causes that family or household member to reasonably fear physical harm or have a reduced sense of physical safety or autonomy”.

The Criminal Harassment Statute

General Laws Chapter 265, Section 43A makes it a crime to harass another person. Under the new law, the possible fines for a first offense are increased:

• First offense: maximum of $1,000 to $5,000
• Second offense: maximum of up to $15,000

Protection and Care of Children

The new law also creates new diversion opportunities for juveniles. It requires juvenile court judges order diversion for juveniles changed with certain crimes. These include:

• Disseminating visual material of a child in a state of nudity or sexual conduct
• Knowing purchase or possession of visual material of a child depicted in sexual conduct
• Minors who possess, purchase, or disseminate visual material

Morality Crimes

The new law criminalizes revenge porn use by a minor. The elements, or essential requirements of this crime are:

• The person was a minor
• The person possessed, purchased, or disseminated (including uploaded to a website) “visual material”
• In violation of the laws (1) criminalizing disseminating visual material of a child in a state of nudity or sexual conduct OR (2) knowingly purchasing or possessing visual material of a child depicted in sexual conduct

Visual material is defined by law as: “any motion picture film, picture, photograph, videotape, book, magazine, pamphlet that contains pictures, photographs or similar visual representations or reproductions, or depiction by computer, telephone or any other device capable of electronic data storage or transmission.”

Importantly, there is an exception for reporting visual material to the authorities.

Statute of Limitations

A statute of limitations is the maximum amount of time before the parties involved in a legal dispute must bring their claims after an offense has occurred. In criminal law, this is the time limit for the government to prosecute a criminal case against a person.

The new law expands the statute of limitations for these two crimes to ten years:

• Assault and battery on a family or household member
• Assault and battery on a person under a protective order that is in effect

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH A SEX CRIME, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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Assault and battery is a criminal offense in Massachusetts. There are different types of assault and battery. The types usually have to do with who the victim is. Certain categories of vulnerable people have special protection under the law. Some examples include:

• Pregnant Women
• Police Officers
• Correctional Officers
• Children Under 14 Years Old

One type of assault and battery is assault and battery on a healthcare provider. The purpose of this crime is to protect people who provide healthcare services. Medical providers like paramedics and emergency room nurses are often first responders to criminal events. The aim of the law is to give them special protection from injury when they do their job.

What is assault and battery?

In order to understand assault and battery on a healthcare provider, you need to first understand the definition of assault and battery in Massachusetts.

Assault and battery is offensive or harmful touching of another person. The touching can be either intentional or reckless. Intentional touching is touching that is conscious and deliberate. Touching someone accidentally or negligently is not intentional touching. Reckless touching is touching that the person who did the touching knew, or should have known, was very likely to cause substantial harm to someone but they ran that risk and went ahead anyway.

The difference between intentional and reckless touching might sound abstract. Examples can help illustrate how they are distinct:

Intentional Touching: Getting angry with someone and punching them in the face.

Reckless Touching: Swinging a hammer around in a circle near someone and hitting them in the arm accidentally.

In the first example, the decision to touch the victim (punching them) was intentional. It was done because the person doing the touching was angry. In the second example, the conduct was not intentional. Hitting the other person was an accident. But the conduct, swinging a hammer around close to another person, is behavior the other person either knew or should have known was very likely to substantially cause harm. It still counts as assault and battery.

The takeaway is that assault and battery requires either intent or recklessness. Just because conduct is not intentional does not necessarily mean it is not assault and battery. Intent and recklessness are mental states. Criminal cases often come down to a person’s mental state. It is the obligation of the Commonwealth to prove every crime beyond a reasonable doubt. This includes the alleged offender’s mental state. An effective criminal defense attorney holds the Commonwealth to its burden of proof.

What is assault and battery on a healthcare provider?

With that understanding in mind, it is now possible to understand what it means to commit an assault and battery on a healthcare provider. In order for the Commonwealth to convict a person of this crime, the Commonwealth must prove beyond a reasonable doubt that an assault and battery occurred in addition to three other requirements:

• The alleged victim was (one of these): (1.) an emergency medical technician; (2.) an ambulance operator; and/or(3.) a health care provider.
• The alleged victim was treating or transporting a person in the performance of their duties at the time of the alleged incident.
• The defendant had knowledge of the above

Important to note is the requirement of knowledge, an additional mental state. Remember that proving simple assault and battery requires proof beyond a reasonable doubt of either intent or recklessness. Assault and battery against a healthcare provider requires proof of either intent or recklessness in addition to proof of knowledge. Knowledge for this crime means the person had an awareness or understanding that the person they touched was both one of the above categories or people and was performing their duties at the time of the alleged incident. It is not enough that a reasonable person would have known.

For example, a person is sitting on a park bench and requires medical attention. A pedestrian calls 9-1-1 and paramedics arrive. One of the paramedics approaches the person on the bench from behind to provide medical assistance. The person on the bench does not realize the approaching person is a paramedic and turns around and punches them. In this case, it would be difficult for the Commonwealth to prove knowledge. Even if the person on the bench saw the ambulance arrive at the park and heard sirens, if they did not know the paramedic approaching them from behind was a medical professional attempting to provide medical assistance, the Commonwealth would not be able to prove knowledge beyond a reasonable doubt.

Who counts as a health care provider?

Crimes often do not provide definitions for words used, but sometimes they do. “Health care provider” is defined in different statutes. They include:

• Dentists
• Nurses
• Pharmacists
• Social workers
• Chiropractors
• Psychologists
• Interns
• Residents
• Fellows
• Hospitals
• Clinics
• Nursing homes

A successful criminal defense attorney pays close attention to definitions when preparing a defense. Sometimes the legal definitions of words are counterintuitive. For example, a person might think a “health care provider” must be a person. However, as the definition explains, it can also include a facility, such as a hospital or nursing home.

Is assault and battery on a healthcare provider a felony?

No, assault and battery on a healthcare provider is not a felony. It is a misdemeanor.

Is self-defense a defense to assault and battery on a healthcare provider?

Yes, self-defense can be a defense to this crime. Self-defense would be applicable if a person does not consent to medical treatment. Self-defense is an affirmative defense, which means the requirements for it to apply must be proven by the accused. If the Commonwealth is able to prove any of facts on this list beyond a reasonable doubt, the defense does notapply:

• The accused consented to treatment
• There was an emergency requiring immediate medical treatment, the accused could not consent, and there was no time to obtain consent
• The accused did not do everything reasonable to avoid using physical force before resorting to physical force
• The accused used more force than necessary to defend themself

Consent can be express or implied. For example, a person saying “I consent” is expressly consenting. Implied consent could include saying or doing nothing in response to a medical provider beginning to administer treatment.

An emergency, such as a head injury causing loss of conscious, would also likely not justify self-defense. That would be so if the injury was life-threatening and the defendant was truly unconscious and could not speak.

If a person starts receiving medical care and treatment against their wishes and responds by punching the health care provider in the face, this would likely not be doing “everything reasonable” to avoid using physical force. If the person is able to speak, they should have first asked the healthcare provider to stop administering treatment.

If a person responds to a healthcare provider beginning to treat a small cut by shooting them with a gun, this would likely be considered “more force than necessary.”

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH ASSAULT AND BATTERY, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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Testimony at a criminal trial can come from many different sources. Police officers, bystanders, family members, friends, and even the alleged victims of crimes can take the stand. Another source is an incarcerated informant, sometimes called a “a snitch” as an insult or street slang. The highest court in Massachusetts recently declared that they will have new process for this testimony.

What is an incarcerated informant?

An incarcerated informant is a witness who was in custody at the time they offered to testify and/or are currently testifying.

An incarcerated informant gives testimony against the accused in a criminal case. The testimony is often an allegation that the defendant made an admission, or that the defendant said or did something showing that they are guilty. Sometimes that alleged admission is direct. For example, a defendant who is incarcerated before his trial might say to another inmate, “I did it.” More often, the alleged admission is circumstantial. It might be alleged that a defendant talked about going to the home of the victim the night a crime took place. This isn’t directly admitting guilt, but it is a fact that could be used to establish identity, or that a person is a perpetrator.

Is testimony from an incarcerated informant reliable?

There are serious concerns that testimony from an incarcerated informant might not be reliable.

One of the “gatekeeping” jobs of a court is to make sure testimony that is presented to a jury is reliable. Juries decide whether testimony is credible or believable, but it is usually the job of judges to ensure that before testimony gets to a jury for evaluation it is reliable, or accurate. A witness might be credible but not reliable. For example, a witness might honestly but mistakenly believe he saw a defendant commit a crime. The witness is credible but his testimony is not reliable because if he actually did not see the defendant commit the crime his testimony cannot be accurate.

There are concerns about the reliability of testimony from an incarcerated witness because of the position an incarcerated witness is in when he testifies. Incarcerated informants have a strong motivation to lie to secure benefits or special treatment. For example, an incarcerated informant might tell a prosecutor that the defendant admitted to the crime that the defendant is charged with. This could be a lie. The incarcerated informant might be motivated to lie because he thinks providing this testimony will help the government win the case against the defendant and he will be rewarded with kinder treatment in his own criminal case.

Moreover, sometimes prosecutors enter into formal agreements with incarcerated informants who offer testimony. These are called cooperation agreements. A cooperation agreement is a deal in which an incarcerated informant offers to provide testimony against the defendant in exchange for the district attorney taking his cooperation into consideration in the incarcerated informant’s criminal case.

There are other reasons an incarcerated informant might lie:

• Fear or Intimidation: An incarcerated informant might lie because he is afraid. He might believe testifying truthfully could lead to retaliation from other inmates.
• Revenge or Bias: An incarcerated informant might lie because he has a grudge against the defendant and wants to retaliate against him.
• Pressure From Law Enforcement: An incarcerated informant might lie because he feels pressured or coerced by law enforcement to provide false testimony.
• Lack of Credibility: An incarcerated informant might simply be a liar with a history of providing false testimony.

An incarcerated informant’s testimony might also be inaccurate due to a mental health problem or substance abuse. Since many inmates suffer from mental health and substance abuse, this is another reliability concern unique to incarcerated informants.

How do courts make sure testimony from an incarcerated informant is reliable?

The Massachusetts Supreme Judicial Court recently decided a case on the role courts in Massachusetts should play in ensuring testimony from an incarcerated informant is reliable.

The defendant, Nickolas Lacrosse, was indicted for murdering his ex-girlfriend. Lacrosse was accused of stabbing her to death in her home after she broke up with him. Lacrosse did not deny that he killed the victim but asserted an insanity defense. He argued that he was not criminally responsible because he was suffering from a form of amnesia at the time.

At the trial, the Commonwealth called two witnesses who were inmates at the same jail Lacrosse was held at before his trial. The inmates testified on direct examination that Lacrosse admitted to them that he committed the crime and that he was going to “play the crazy card” as a defense. It was also alleged that he spoke to them about the murder weapon and hiding it.

On cross examination, Lacrosse’s lawyer questioned the incarcerated informants. They successfully impeached, or challenged the credibility, of the witnesses. For example, one of the defendants admitted that he had lied previously and had memory problems. The defense attorney also addressed a cooperation agreement one of the incarcerated informants entered into to highlight that this witness was biased in favor of the Commonwealth.

At the end of the trial, the jury decided to convict Lacrosse. He appealed and the Massachusetts Supreme Judicial Court took his case. One of his arguments was that neither of the incarcerated informants should have been allowed to testify unless there was a preliminary hearing determining that they were reliable.

The Court acknowledged scientific and legal research showing that testimony from incarcerated witnesses is often unreliable but decided that a hearing was not necessary. The Court concluded that juries could independently evaluate how much weight to give the testimony of incarcerated informants. There was no need for the Court to intervene. The Court ruled, however, that a jury instruction on incarcerated witnesses was necessary.

What does the jury instruction for incarcerated witnesses say?

A jury instruction is a statement on the law that the judge reads to the jury before they deliberate. Jury instructions are usually agreed to before the trial.

The jury instruction on incarcerated informants explains what an incarcerated informant is and tells jurors to examine their testimony with “greater care and caution.” The instruction explains the issues with reliability that incarcerated informants have like the incentive for favorable treatment. It then talks about ways to evaluate the credibility of incarcerated informants. These include asking:

• Is the informant’s testimony confirmed by other evidence?
• Has the informant received a benefit for their testimony?
• Has the informant ever changed their testimony?
• Has the informant testified as an informant before?

In the end, though, the ruling of the Lacrosse case is that it is the job of juries, not judges, to decide on how much to weigh the testimony of an incarcerated informant. This was one of the reasons the Court upheld Lacrosse’s murder conviction.

What role does a criminal defense attorney play with incarcerated witnesses?

The Lacrosse case shows the important role of a criminal defense attorney when an incarcerated informant takes the stand. Criminal defense attorneys cross examine government witnesses. A key aim is to impeach their testimony. Establishing that the testimony of a witness is not credible helps lead a jury to reasonably doubt whether a defendant committed a crime. An effective criminal defense attorney will develop a rigorous cross examination that ensures every reason to doubt the credibility of a witness is investigated. This includes reasons to question the reliability of an incarcerated informant, such as a motivation to lie.

IF YOU OR A LOVED ONE HAVE A CASE INVOLVING AN INCARCERATED INFORMANT, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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Confidential Informants and Search Warrants

What is a search warrant?

A search warrant is a piece of paper that gives police permission to search you or something you own. Search warrants are signed by judges or magistrates.

Under the Fourth Amendment of the Constitution, a warrant is not valid unless three requirements are met:

• There is probable cause
• The warrant is “particular”
• The judge or magistrate is neutral

The new case, Commonwealth v. Padilla, is about the second requirement, which is called particularity. The warrant must describe “with particularity” what police are searching for. This means the warrant must include a specific description of what police think they will find.

What are the facts of the case?

In Padilla, a confidential informant told police that a man was selling narcotics from the second-floor apartment of a building. The informant described what the man looked like to the officer. The officer then obtained a photo of the suspect from the Registry of Motor vehicles and showed it to the informant. The informant confirmed that the man in the photo was the dealer.

With this information, the police officer wrote an affidavit, or a sworn statement. He wrote the affidavit to include as part of his application for a search warrant to search the apartment. In the affidavit, he stated that the seller was selling “narcotics (such as cocaine, heroin, marijuana, and/or prescription medications like oxycodone hydrochloride pills).”

The officer then organized two controlled buys. A controlled buy is when a police informant or undercover police officer purchases an illegal item from a suspect to establish evidence that the suspect is guilty of criminal conduct. According to the affidavit, after each controlled buy, the informant returned with an illegal narcotic. However, the officer did not specifically say what was purchased. The officer stated in the affidavit that he deliberately withheld information about the substance(s) to protect the identity of the informant.

Based on this information in the affidavit, police applied for a search warrant. An assistant clerk magistrate issued a warrant giving police permission to search the apartment. Police executed, or acted on, the warrant and conducted a search. They located cocaine, amphetamine pills, oxycodone pills, marijuana, a firearm, ammunition, and cash. They took these items into custody. Andrew Padilla was indicted on several crimes including cocaine trafficking.

Mr. Padilla tried on multiple occasions to challenge the lawfulness of the warrant through a motion to suppress. He argued that the warrant did not establish probable cause to believe a crime was being committed because it did not specifically identify the drug(s) the informant told police that Mr. Padilla was selling or what drug was obtained after each buy.

Because of this, Mr. Padilla made a conditional guilty plea. A condition was that he be allowed to appeal the denied motion to suppress. Once his plea was accepted, he appealed to the Massachusetts Appeals Court.

Why do warrants have to be particular?

The Appeals Court explains in Padilla that the requirement that search warrants be “particular” protects the freedom and privacy of people. If warrants didn’t have to be particular, they could be general warrants which would give police too much power to search people and belongings.

How did the court rule?

The Appeals Court ruled that the search warrant was illegal. Not specifically naming which narcotic police believed they had probable cause to search meant the warrant was not particular enough. Therefore, the warrant should not have issued.

The Court’s logic was that “catch-all” categories, like “narcotics”, in warrants are impermissible. When police can specifically describe the illegal substance, they must. In Padilla, police could do so because the informant returned to the officer with the narcotic. If police did not know exactly what narcotic was suspected, they could have been less precise. The officer intentionally withheld the information to protect the informant.

The Court made another point that could be called dicta, or a comment on the law that was not necessary for the ruling. This comment was on the affidavit and whether it was attached to the search warrant. The warrant itself is a separatedocument from the affidavit. According to the Court, when a warrant is not particular enough, but an affidavit is, if the affidavit is attached to the warrant, the deficient warrant might be cured or made sufficient. The burden is on the government to prove that the affidavit was attached to the warrant when it was served. In Padilla, the Court determined that the Commonwealth did not meet its burden.

The reason why the issue of attaching the affidavit to the warrant is dicta was because regardless of if the affidavit was attached to the warrant, the affidavit was not particular enough. It therefore did not matter if the affidavit was attached to the warrant or not.

Why is the case important?

Padilla is important because it increases the privacy protections of people police are investigating. Police who believe a person is selling drugs must specifically identify in their search warrant applications what drug(s) they believe the person is selling unless they are not able to. Generally, police should include their statements of facts with their search warrants when they are served.

If police want to search you or something you own, ask to speak with an attorney first. Contact an experienced criminal defense lawyer for advice to protect your legal rights.

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Animal cruelty is a crime in Massachusetts. The highest court in the state recently decided a new case on the defense of animal cruelty.

What are the facts of the new case?

In the new case, Commonwealth v. Robin Adams, a man took his dog to a public park and let him run around off-leash. At some point, the dog started barking loudly and the man went over to see that the dog was fighting with a groundhog. To break up the fight, the man stood between the two animals and ordered his dog to stop. The dog did not obey and the man responded by grabbing the dog, pinning him to the ground, and striking the dog with his hand.

Three witnesses observed what happened and testified that the man, Mr. Adams, was angry and had struck his dog between 5 to 10 times. The hits spanned a period of about 30-40 seconds. Police were called and charged Mr. Adams with animal cruelty. After a two-day trial, he was convicted. Mr. Adams filed a motion for a new trial. It was denied. He then appealed directly to the Supreme Judicial Court.

Why did Mr. Adams think he was wrongfully convicted?

• Testimony from his expert witness was wrongfully excluded from evidence
• The jury was not properly instructed on defenses to animal cruelty

The Court disagreed with these arguments and his conviction was upheld.

How did the Court rule on exclusion of expert testimony?

In criminal trials, people accused of crimes have an opportunity to present testimony from expert witnesses. An expert witness is a witness with specialized knowledge that the average person does not have. For example, a medical doctor would have knowledge of medicine that the average person who is not a licensed doctor would not possess.

Mr. Adams wanted the Court to hear testimony from a licensed veterinarian technician. He wanted that expert to testify to two points:

• The dog did not experience a pain response in his head
• The dog was hyper-fixated on the groundhog due to a phenomenon called “predatory chase drive”, an instinctual behavior animals have to hunt or kill smaller animals

Mr. Adams believed the first fact would help convince the jury that the dog was not struck forcefully because if he were, he would have experienced a pain response in his head. Presenting the second fact would help show that Mr. Adam’s decision to use force against the dog to discipline him was reasonable because the dog was hyper-fixated on the groundhog and unlikely to obey a verbal command to stop.

At trial, Mr. Adams called the veterinarian technician as an expert witness. During direct examination, he asked if there was anything significant about the dog experiencing a pain response in his front right paw but nowhere else. The prosecutor objected and the judge sustained the objection. After a conversation at sidebar and a recess, the judge ruled that testimony on injury to the paw of the dog would be excluded because a previous expert witness called by Mr. Adams testified to it. The judge also determined that his licensed veterinarian technician was not qualified to testify as an expert. The licensed veterinarian technician could only testify on the contents of a report of a veterinarian who examined the dog shortly after the events at the park.

The Supreme Judicial Court agreed that further testimony on the dog’s paw injury was unnecessary because it was cumulative. Testimony that is cumulative is testimony on a fact that has already been established. Cumulative testimony is considered to be repetitive. Judges have discretion to exclude evidence they believe would be cumulative to make the trial more efficient.

Regarding the exclusion of testimony on “predatory chase drive” (by determining the expert was not qualified to testify on this matter), the Court decided that it would not have to address this question. The Court’s reasoning was that even if the testimony was wrongfully excluded, it likely had no impact on the jury’s verdict. As a result, Mr. Adams was not prejudiced or disadvantaged in any way. The verdict did not have to be overturned.

Interestingly, in a footnote, the Court suggests that the determination that Mr. Adams’ expert was not qualified to testify was likely wrong. Even though his expert did not have a veterinarian medical license, she could have given an opinion on veterinarian care as a technician based on her experience. Having a particular license or qualification is not always required when the expert has sufficient experience with a topic.

How did the Court rule on the lack of jury instructions?

Mr. Adams argued that it was a mistake not to instruct the jury on these two subjects:

• That bona fide discipline is a defense to animal cruelty
• That defense of another animal is a defense to animal cruelty

During a jury trial, judges are responsible for giving jurors instructions on the law. The role of a jury is to decide which facts are true. After they decide those facts, they apply the facts they determine to be true to the law to reach a verdict. Jurors, who are typically are not lawyers, are not expected to know the law before their jury duty begins. Both prosecutors and defense attorneys will make arguments to judges before a trial begins on how the jury should be instructed. They present to the judge jury instructions, or documents the judge will read to jurors before they are sent off to deliberate. Judges have discretion on jury instructions.

The judge in Mr. Adams’ trial used a model jury instruction. A model jury instruction is a pre-written jury instruction widely accepted by judges across the state to be used at criminal trials. After considering the text of the model instruction on animal cruelty that was used, the judge determined that the language of the instruction covered the two defenses. The instruction was sufficient because it discussed how a person cannot be convicted unless the pain inflicted on the animal was “unnecessary” and “without any justifiable cause.” This implied that bona fide discipline and defense of another animal could be defenses.

Mr. Adams argued that the defenses should be more explicit in the model instruction. The Court disagreed that it was not clear enough but held that going forward a supplemental instruction should be read when the accused raises the issue of bona fide discipline. A supplemental jury instruction is an additional section of a model jury instruction that is only read when a specific issue in a case arises, like a bona fide discipline defense to animal cruelty.

What are the key takeaways from the case?

Even though the Court affirmed the animal cruelty conviction for Mr. Adams, this case makes some important points of law that effective criminal defense attorneys should keep in mind:

• The model instruction for animal cruelty covers the defenses of bona fide discipline and defense of another animal. But going forward, if a defendant raises the defense of bona fide discipline, judges should provide a supplemental instruction.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH ANIMAL CRUELTY, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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In March 2025, an important new change to the rule on discovery went into effect. These changes will impact the duty prosecutors have to provide people accused of crimes with the evidence they have in their possession, custody, or control. This new rule is helpful to those charged with crimes in our Commonwealth as it ensures an even fairer experience for those charged.

What is discovery?

In criminal law, discovery is the process in which the prosecution and the defense exchange information before trial. There are different reasons why discovery is considered important:

• It prevents surprises at trial. It allows the sides to preview the evidence that may be presented at trial.
• It gives the sides a way to investigate the allegations in the case.
• It helps the sides, and the Court decide on whether a case should proceed to trial, result in a plea, or be dismissed.
• It helps make the legal process fairer to the defendant, who often has less resources than the prosecutor to gather evidence on his own.

What is the prosecution’s duty with discovery?

A case from the United States Supreme Court called Brady v. Maryland held that prosecutors have a duty to disclose exculpatory evidence. Exculpatory evidence is evidence that tends to establish that a defendant is not guilty of a crime.

The Massachusetts Rule of Criminal Procedure on discovery, Rule 14, ensures that the holding in the Brady case is followed. The rule says prosecutors have a duty to provide “all items and information favorable to the defense” in the prosecutor’s possession, custody, or control. This has to happen even if the prosecutor does not believe it is credible or reliable evidence. It also must happen regardless of if the prosecutor thinks the evidence will not be admitted by the judge at trial.

The rule provides some examples of items and information favorable to the defense:

• Deals with prosecution witnesses to testify in the Commonwealth’s favor
• Records of crimes prosecution witnesses are charged with
• Tests performed by expert witnesses that are inconclusive or inconsistent with their expert opinion

The rule makes clear that exculpatory evidence must be disclosed if it is in the possession, custody, or control of not just the prosecutor but the entire “prosecution team.” The rule explains that the term prosecution team includes not just police officers and the district attorney’s office but also:

• Federal law enforcement officers involved with investigation or prosecution
• Forensic analysts involved with investigation or prosecution
• Victim-witness advocates
• Private investigators employed by prosecutors

What are examples of discovery?

There are many different types of discovery. The rule on discovery, Rule 14, lists examples that are part of the prosecutor’s automatic disclosures, and have always been. This is discovery the prosecutor must disclose automatically to the defense. They should do this between arraignment and the first pretrial conference.

Automatic disclosures include:

• Written statements
• Recorded statements
• Information on lay witnesses
• Expert witness information
• Relevant photographs, videos, and police reports

Does the prosecution have to disclose additional discovery it comes across?

Yes, Rule 14 states that prosecutors have a “continuing duty” to disclose discovery. This means that if the prosecutor obtains discovery after it has disclosed discovery, it must disclose the additional discovery it comes across.

Are there any restrictions on the discovery that can be obtained?

Yes, the rule and case law limit what is discoverable. For example, attorney work product is protected. Attorney work product is information prepared in anticipation of a legal proceeding. Examples include information like lawyer notes and memos, or communications with clients.

Privileged information is also typically not discoverable. For example, in cases where mental health is not at issue, this includes records discussing private conversations people may have had with a mental health provider. In those cases, there is a separate process for attempting to request and share that information.

When a person who discovery is sought from thinks they are entitled to protection, they can request a protective orderfrom the court. A protective order is a court order that limits or completely restricts a person’s duty to disclose discovery.

What happens if the prosecution does not comply with Rule 14?

Rule 14 discusses what happens if the prosecution does not comply with the rules of discovery. Here is a list of ways the court can respond:

• Order the disclosure of discovery
• Exclude evidence
• Order a sanction
• Dismiss the charges

Generally, courts try to resolve discovery disputes with the parties before turning to options like excluding evidence or dismissing charges.

Why are the changes significant?

The changes to the Massachusetts discovery rules in criminal cases are the most significant since Rule 14 was enacted over 20 years ago.

Here is a summary of the changes discussed:

• New terminology like “favorable to the defense” and “prosecution team”
• More detailed explanations of the prosecution’s duty to disclose exculpatory evidence and the meaning of exculpatory evidence
• Reorganization: dividing the former Rule 14 into 5 separate rules

Understanding the rules of discovery is essential for an effective criminal defense attorney to properly prepare a case for plea discussions or trial. It is also important to keep up to date on changes to criminal procedural rules in Massachusetts.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH A CRIME, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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