Watershed Changes to Eyewitness Identification Law in Massachusetts


by Scott P. Lopez and Lauren J. Weitzen

Heads Up

Over the past year, the Supreme Judicial Court (“SJC”) has fundamentally changed the law on the admissibility of eyewitness identifications in criminal cases.  Specifically, the SJC restricted the use of in-court identifications by eyewitnesses and adopted new jury instructions for assessing eyewitness testimony.  This article summarizes these changes to Massachusetts law.

The Supreme Judicial Court has acknowledged that “research regarding eyewitness identification procedures is complex and evolving” and “eyewitness identification is the greatest source of wrongful convictions but also an invaluable law enforcement tool in obtaining accurate convictions.”  Commonwealth v. Walker, 460 Mass. 590, 604 n.16 (2011).  Following the Walker decision, the SJC convened a Study Group on Eyewitness Identifications (“Study Group”).  The Study Group was tasked with determining how the Commonwealth could best deter unnecessarily suggestive identification procedures in criminal cases.  In addition, the Study Group assessed whether existing model jury instructions provided adequate guidance to juries in evaluating eyewitness testimony.  Three subcommittees of the Study Group focused on police protocols, pretrial evidentiary hearings on identification procedures, and improving jury instructions to better assist juries.  See Executive Summary, Supreme Judicial Court Study Group on Eyewitness Evidence, Report and Recommendations to the Justices (July 25, 2013) (“Study Group Report”).  The Study Group presented its Report in July 2013.  By late 2014, the SJC began citing to the Study Group Report when issuing a trilogy of decisions that implemented many of the Study Group’s recommendations.

Prior Legal Landscape

Massachusetts law permits the admission of an out-of-court eyewitness identification unless a defendant proves, by a preponderance of the evidence, that the identification procedures employed by the police were unnecessarily suggestive.  Commonwealth v. Johnson, 420 Mass. 458, 463-64 (1995); Commonwealth v. Thornley, 406 Mass. 96, 98 (1989).  The relevant inquiry is not whether the witness was mistaken.  Rather, the question is whether the identification was the product of impermissibly suggestive police procedures.  If the identification is admissible, a jury is free to weigh the reliability of the identification evidence.  See Walker, 460 Mass. at 599; Johnson, 420 Mass. at 463-64.[1]

While the SJC previously adopted a per se rule of exclusion for unnecessarily suggestive out-of-court identifications, the Court had never adopted such a rule for in-court identifications.  Until recently, in-court identifications were excluded only if tainted by an out-of-court confrontation arranged by the Commonwealth that was ‘ “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ ”  Commonwealth v. Carr, 464 Mass. 855, 877 (2013) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)); see also Commonwealth v. Choeurn, 446 Mass. 510, 520 (2006).

In-Court Eyewitness Identifications – New Crayton and Collins Rules

In Commonwealth v. Crayton, 470 Mass. 228 (2014), the Court addressed whether an in-court identification is admissible when there has been no prior out-of-court identification.  Historically, a defendant’s only protection against admission was to seek alternative, less-suggestive, out-of-court identification procedures in advance of trial, or to challenge the reliability of the in-court identification through a cross-examination focusing on the witness’s demeanor and statements during the in-court identification.  Using the Study Group Report as support, Crayton held that an in-court identification is admissible only when there is “good reason” for its admission.  Id. at 241.  Crayton reasoned that in-court identifications may be more suggestive than one-on-one show-up[2] identifications conducted out of court.  Id. at 237.  Also, Crayton noted that a defendant’s presence in a courtroom acts “as confirmation that the prosecutor…believes the defendant is the [perpetrator].”  Id.  Therefore, the eyewitness is likely to conform to the behavior of others and identify the defendant.  Id.  (quoting Evan J. Mandery, Due Process Considerations of In-Court Identifications, 60 Alb. L. Rev. 389, 417-18 (1996)).

Crayton further reasoned that even though the jury can observe the witness during the in-court identification, jurors will not be “better able to evaluate the accuracy of the in-court identification” because statements attributed to “a witness’s level of confidence in an identification are not a reliable predictor of the accuracy of the identification.”  Id. at 239.  Moreover, it is very difficult to convince a jury through cross-examination that such statements are attributable to surrounding suggestive circumstances.  Id. at 240.

Following Crayton, in-court identifications are admissible only where there is “good reason” for their admission.  “Good reason” exists where the witness’s identification is not based solely on his memory of witnessing the incident; for example, if a witness was familiar with the defendant before the crime or if the witness was both an eyewitness and an arresting officer.  Id. at 242.  In practice, Crayton places the initial burden on prosecutors to move in limine for the admission of an in-court identification.  Only then must the defendant demonstrate there is no “good reason” to permit such an in-court identification.  Id. at 243.  This new rule aims to avoid the “unfair evidentiary weight of a needlessly suggestive show-up identification that might be given more weight by a jury than it deserves.”  Id. at 244.

In Commonwealth v. Collins, 470 Mass. 255 (2014), the Court addressed whether an in-court identification is admissible when a prior out-of-court identification resulted in “something less than an unequivocal positive identification of the defendant.”  Id. at 262.  Citing the Study Group Report, Collins noted that an eyewitness who is unable to make a positive identification before trial, or lacks confidence in his identification, is likely to regard the defendant’s prosecution as “confirmatory feedback” that the defendant is the “right” person.  As a result, the witness may develop an “artificially inflated level of confidence” in any subsequent in-court identification.  Id. at 262-63.  This “enhancement of memory” makes assessing the accuracy of the in-court identification more difficult for juries.  Id. at 263-64.  Cross-examination will not always reveal prior, inaccurate in-court identifications because most jurors are unaware both of the weak correlation between confidence and accuracy and of a witness’s susceptibility to manipulation by suggestive procedures or confirming feedback.  Id.

Following Collins, the prosecution must move in limine to admit an in-court identification where an eyewitness to a crime has not made an unequivocal positive identification of the defendant before trial but the prosecutor nonetheless intends to ask the eyewitness to make an in-court identification of the defendant. Once the prosecution makes this motion, the defendant then bears the burden of demonstrating that there is no “good reason” for the admission of the in-court identification.  “Good reason” in this context “usually would require a showing that the in-court identification is more reliable than the witness’s earlier failure to make a positive identification and that it poses little risk of misidentification despite its suggestiveness.”  Id. at 265 (emphasis added).

New Jury Instructions

The Study Group was also charged with determining whether existing model jury instructions provide adequate guidance to juries in evaluating witness testimony.  The prior Massachusetts model jury instruction on eyewitness identifications, adopted in 1979, delineated factors for the jury to consider when evaluating an eyewitness identification; however, it did “not instruct the jury as to how those factors may affect the accuracy of the identification.” Commonwealth v. Gomes, 470 Mass. 352, 363 (2015) (emphasis added).  Gomes held that there are five principles pertaining to eyewitness identifications that are “so generally accepted” that they must be included in a model jury instruction.  Id. at 376.  Those principles are: 1) human memory does not function like a video recording, but is a complex process that consists of the stages of acquisition, retention, and retrieval; 2) an eyewitness’s expressed level of certainty, by itself, may not indicate the accuracy of his or her identification; 3) high stress can reduce an eyewitness’s ability to make an accurate identification; 4) a witness’s recollection of the memory and the identification can be influenced by unrelated information that is received both before or after making that identification; and 5) a prior viewing of a suspect at an identification procedure may reduce the reliability of a subsequent identification procedure with the same suspect.  Id. at 369-76.  Gomes adopted a provisional jury instruction, and the SJC issued a new model jury instruction in November 2015.[3]  This new instruction incorporates many of the principles discussed in the Study Group Report and in Gomes and is designed to educate jurors, in plain language, on the science of memory so that jurors are better equipped to assess the credibility and reliability of eyewitness testimony.  This new instruction will increase jurors’ understanding of the complexities surrounding eyewitness identifications.  Id. at 376-77.  However, as Gomes noted, the new jury instruction is not intended to preclude additional expert testimony at trial; rather, such expert testimony remains crucial to elaborate on the principles addressed within the jury instruction and to further explain how other relevant variables in each individual case may affect the accuracy of an identification.  Id. at 378.  With an eye to the future, Gomes acknowledged the potential need to revise eyewitness jury instructions “as science evolves.”  Id. at 368.


Just as the science associated with eyewitness identifications will continue to evolve, so will the case law.  The Crayton, Collins, and Gomes holdings are positive steps toward reforming case law to conform to science.  In addition to issuing these three decisions, the SJC announced a new Standing Committee on Eyewitness Identification in 2015.  This Committee is tasked with offering ongoing guidance to the courts regarding eyewitness identification procedures.  The Massachusetts criminal justice system is now poised to more fairly address the issues raised when an individual is accused of committing a crime based on eyewitness testimony.

[1]Massachusetts law also permits the exclusion of eyewitness identification under common-law principles of fairness when an eyewitness is exposed to such highly suggestive circumstances independent of police involvement that the eyewitness’s identification is deemed unreliable.  Commonwealth v. Jones, 423 Mass. 99, 110 (1996).

[2] A show-up is an identification procedure wherein a witness to a crime is shown only one person.  Usually, the person is someone the police believe is a suspect.  The witness is usually shown the person at the scene of the crime or the witness is brought to where the suspect is detained.

 [3] Criminal Model Jury Instructions for use in the District Courts, Instructions 1.340 & 9.160 (November 2015).

Scott P. Lopez is a partner at Lawson & Weitzen, LLP and trial lawyer with more than 25 years of federal and state court experience representing clients in criminal and civil matters.  He is a former co-chair and member of the Boston Bar Association’s Criminal Law Steering Committee.

Lauren J. Weitzen is an associate at Lawson & Weitzen, LLP who previously was a Supervising Attorney with the Committee for Public Counsel Services Public Defender Division.  She represents clients in criminal and civil matters and is a member of the Boston Bar Association.

The Rise of the On Demand Economy: The Tension between Current Employment Laws and Modern Workforce Realities

cremins_nancy by Nancy Cremins

Heads Up

Over the last several years, startups brought convenience to the masses by providing virtually anything on demand.  Rides, groceries, takeout service, house cleaning, and more are all accessible with a few taps on your smartphone.  The sheer volume of human capital needed to make these on demand businesses function, along with the unpredictable demands of consumers, caused companies such as Uber, Lyft, Postmates, and Instacart (to name a few) to make the business decision to classify these service workers as independent contractors.

Building the infrastructure for an on demand business that serves many customers in multiple cities, or even multiple countries, is an incredibly expensive endeavor.  For example, Uber has gone through 13 rounds of funding and raised over $6.6 billion to support its large-scale operation.  By necessity, these startups must be cost conscious with their capital or risk failure.  Classifying their workers as independent contractors saves them substantial sums of money on employment taxes and benefits.  These businesses claim that independent contractor status is also beneficial for the workers who are permitted to retain flexibility to work on their own terms as often as they want.  For valid reasons, some (though not all) on demand workers do not agree.

Workers classified as independent contractors do not have access to company-provided benefits and protections such as paid time off.  They are not given the payment protections of minimum wage, and overtime pay.  Nor do they have the safeguards of worker’s compensation and unemployment insurance.  These workers also shoulder the cost of the business expenses incurred in performing their jobs, such as their tools, supplies, or the cost of vehicle operation (though those are deductible business expenses).  In addition, workers are responsible for paying all taxes on pay, which means the company is not contributing to employment taxes, Social Security, or Medicare.  Opponents to the present on demand economy practice of classifying workers as independent contractors argue that tight standards on employee classification provide better protections and more financial security for workers.

Around the country, workers, businesses, and localities are approaching the shift to the independent contractor model in a variety of ways.  A host of lawsuits were filed by workers against a number of on demand businesses asserting claims for worker misclassification. These lawsuits are costly and place tremendous pressure on the companies, often resulting in stagnating growth or even closure of the business.  For example, in July 2015, on demand home services business, Homejoy, shut down because it ran out of money defending worker lawsuits and could not raise an additional round of investment due to pending litigation.

Some on demand businesses are attempting to avoid or prevent additional misclassification lawsuits by preemptively classifying their workers as employees.  Instacart (which is defending its own misclassification lawsuit) announced, in June 2015, that it would be commence classifying its workers as employees.  Other companies are maintaining their practice of classifying workers as independent contractors while they wait for the outcome in the bellwether case on the issue, O’Connor v. Uber Technologies et al, C13-3826 EMC, pending in the Northern District of California.

In general, things have not gone Uber’s way in the litigation.  On March 11, 2015, the Court denied Uber’s motion for summary judgment.  On September 2, 2015, the Court certified the case as a class action.  What’s more, during the pendency of the lawsuit, the California Labor Commission ruled that a specific Uber driver was an employee, and not an independent contractor.  While the ruling was non-binding and impacted only one driver, it received  considerable attention.  The trial is set to commence on June 20, 2016 and the outcome will have a substantial impact on the freelance economy.

In another approach, the Seattle City Council voted in December 2015 to approve a bill that would permit drivers for Uber, Lyft, and other ride-hailing apps to form unions and negotiate wages.  Such a city ordinance is unprecedented as it would be the first to allow independent contractors to engage in collective bargaining.  Still, the ordinance may face legal challenges based on the contention that it is preempted by federal law and, if not preempted, that collective bargaining by independent contractors could constitute illegal price-fixing under antitrust law.

Here in Massachusetts, there is a presumption that a worker who provides services to a business is an employee unless all of the following are met:

  • The worker is free from the company’s control and direction;
  • The services provided are outside the company’s usual course of business; and
  • The worker is customarily engaged in an independently established trade, occupation, or business of the same nature that is involved in the services performed for the company. M.G.L. c. 149, § 148B.

Given such stringent guidelines, the safe default position is that a company should classify its workers as employees, not independent contractors.  However, in April 2015 the Supreme Judicial Court took a narrower approach than some anticipated in Sebago v. Boston Cab Dispatch, Inc., 471 Mass. 321 (2015).

In Boston Cab, the Court found: (i) taxi drivers did not provide services to the cab companies or garages; (ii) drivers were free from the direction and control of the cab companies; (iii) services provided by drivers were not in the ordinary course of business of cab companies; and (iv) drivers were engaged in an independently established trade, occupation or business.  As a result, the Court found that the drivers were properly classified as independent contractors.  In reaching this decision, the Court determined that the cab companies “are not concerned with the results of plaintiffs’ operations, as drivers are not required to remit a percentage of their revenues, which includes both fares and tips.”  Id. at 334.

What sets the Boston Cab case apart from the Uber case is the existence of a regulatory framework that applies to cab companies and drivers that does not (at least not presently) apply to Uber drivers.  The Court specifically stated that its conclusion rested in large part on the existence of the regulatory framework of Boston Police Department Rule 403, Hackney Carriage Rules and Flat Rate Handbook (2008) (Rule 403), which creates a system whereby drivers can “operate as either employees or entrepreneurs with their own separately defined and separately regulated business.”  Boston Cab, 471 Mass. at 338.  In holding that drivers were properly classified as independent contractors, the Court found that the “harmonious reading” of Rule 403 and the independent contractor statute as set out in M.G.L. c. 149, §148B led to the outcome that the Legislature intended to preserve the ability of cab drivers to operate either as employees or independent contractors.  Id.

There is no denying that regardless of the still-unresolved employment classification issue, there  has been a cultural shift to more independent contractors as more people want to be their own bosses.  In fact, the number of freelance workers in the U.S. grew from 20 million in 2001 to 32 million in 2014.  A recent poll conducted by Time Magazine finds that now 22% of American adults—45 million people—have picked up some form of “gig” work for these on demand companies.

Some are advancing the position that perhaps there needs to be a new path forward to balance the realities of the rise of freelancing and the on demand economy.  On November 10, 2015, a number of stakeholders, including startups, more established companies, labor activists, and academics, published on open letter advocating that “we must find a path forward that encourages innovation, embraces new models, creates certainty for workers, business, and government and ensures that workers and their families can lead sustainable lives and realize their dreams.”

To that end, these stakeholders advocate for the creation of a universal set of benefits accessible to all workers, whether independent contractor or employee, that would be portable and flexible.  Following that open letter, many of the letter’s signatories participated in a policy discussion that included the Secretary of Labor, Tom Perez to discuss possible solutions.

Given the volume of worker misclassification lawsuits, the rise of freelancing as an increasingly popular choice for U.S. workers in lieu of more “traditional employment,” and the public interest in ensuring that the large number of independent contractors are provided certain basic protections, an innovative approach that provides more safeguards for independent contractors and more certainty to businesses regarding proper classification may be the right path to protect both workers and businesses.

Nancy Cremins is a partner at Gesmer Updegrove, LLP, assisting entrepreneurs with a range of issues, including employment matters and dispute resolution. She is the co-founder of SheStarts, which helps women entrepreneurs start and grow their businesses.

A Practical Guide to MassHealth Estate Recovery

belza_josephschroffner_IngridTaylor_Matthewby Joseph Belza, Ingrid Schroffner
and Matthew Taylor

Legal Analysis



Since 1993, Federal Law has required state Medicaid agencies to seek reimbursement from enrollees whenever possible.[i]  The goal is to make the federal program more sustainable and to allow Medicaid to provide coverage to more low-income individuals and families.  One mechanism for Medicaid reimbursement is estate recovery, a process by which state Medicaid agencies—here, the Division of Medical Assistance (DMA)—recover payments made to program members from their probate estate, if any.

Estate recovery sometimes comes as a shock to affected families and has been negatively characterized by the public unfamiliar with the process with inaccurate images—e.g., of a greedy government taking houses.[ii]  This article explains the estate recovery process as it currently operates under the DMA’s Medicaid program, commonly known as MassHealth.

Whom does estate recovery affect?

The scope of estate recovery varies by jurisdiction. Each state agency sets its own criteria to define which members are affected and what types of assistance payments may be recovered.  In Massachusetts, for MassHealth members dying on or after April 1, 1995, estate recovery does not apply except to medical assistance paid for (1) any services for persons age 65 and over when he or she received the assistance, (2) only services provided on or after October 1, 1993 for persons age 55 and over when he or she received the assistance, and (3) only services provided on or after March 23, 1991 for inpatients in a nursing facility or other medical institution regardless of age.[iii]

It is important to note that, unlike some other states, DMA currently recovers only from the MassHealth member’s probate estate.[iv]  MassHealth does not seek reimbursement from families of the deceased member. If the probate assets are less than the amount owed to MassHealth, then the remainder of the claim is left unsatisfied.  Moreover, as detailed below, there are important exceptions and waivers which limit or preclude estate recovery.

How does estate recovery work?

The estate recovery process begins after the death of a MassHealth member.  M.G.L. c. 118E, §32(a) requires a copy of the probate petition and death certificate to be sent to MassHealth’s Estate Recovery Unit (ERU) by certified mail.  The ERU also conducts regular cross-matches of new petitions with the probate courts.  If a petitioner fails to send copies of the petition and death certificate to the ERU, “any person receiving a distribution of assets from the decedent’s estate [is] liable to [MassHealth] to the extent of such distribution” for which MassHealth is authorized to recover.[v]

After notification, the ERU checks the decedent’s records to determine if MassHealth has a “claim” for reimbursement in the probate proceedings.  The ERU generates a medical billing printout calculating the total recoverable MassHealth payments and files a Notice of Claim for that amount, along with notice of the circumstances qualifying for deferral and waiver of recovery.  The personal representative may request a copy of the medical billing printout.

The Notice of Claim presents the personal representative with three options: (1) pay the claim, (2) contest the claim, or (3) apply for an exception.[vi]  Typically, the estate simply reimburses MassHealth in exchange for a Release of Claim.  To contest a claim for reimbursement, the personal representative must reply in writing within 60 days of the Notice of Claim with sufficient documentation to support a finding that MassHealth’s claim is invalid or that an exception applies.  Failure to respond within the 60 days statutory window is deemed an admission of the validity of the claim and that no exception exists.[vii]  If the personal representative disallows the MassHealth claim, the ERU refers the case to the legal department of the Executive Office of Health and Human Services (EOHHS), which may file suit to enforce the claim.

For MassHealth estate recovery claims deemed valid, [viii] ERU works with the personal representative to collect payment.  On a case-by-case basis, the ERU may accept alternative payment solutions, such as a promissory note secured by a mortgage deed.  If the ERU is unable to resolve a claim or a personal representative is non-responsive, the legal division of EOHHS may seek a judgment and execution, which may be levied and suspended against any probate property of the deceased member by filing a Petition to Compel Payment in the probate court.[ix]


MassHealth will not enforce an otherwise valid claim in certain situations:  if the estate qualifies for (1) a deferral, (2) a hardship waiver, or (3) a long-term care insurance exception. A deferral temporarily postpones collection of the claim during the lifetime of a surviving spouse, during the lifetime of any surviving child who is blind or permanently and totally disabled, or, for any surviving minor child who is not blind or permanently and totally disabled, until the child reaches the age of majority.[x]  Further, MassHealth is required to grant waivers if estate recovery would impose an undue financial hardship on an individual who has survived the decedent.[xi]  A waiver can be a permanent exemption.  Where the probate asset includes real property, waivers are only available when a sale of real property would be required to satisfy the claim, and an individual was using that property as his or her principal place of residence at the time of the decedent’s death.[xii]  Specifically, MassHealth repayment cannot be required for assistance provided on or after April 1, 1995 “while any of the following relatives lawfully resides in the property: (1) a sibling who had been residing in the property for at least one year immediately prior to the individual being admitted to a nursing facility or other medical institution; or (2) a child who (i) had been residing in the property for at least two years immediately prior to the parent being admitted to a nursing facility or other medical institution; and (ii) establishes to the satisfaction of the division that he provided care which permitted the parent to reside at home during that two year period rather than in an institution; and (iii) has lawfully resided in the property on a continuous basis while the parent has been in the medical institution.”[xiii]  Additionally, that individual must meet several criteria.  He or she must have lived in the decedent’s property for at least one year prior to when the decedent’s eligibility for MassHealth began, and he or she must continue to live there when MassHealth files its Notice of Claim.  Moreover, he or she must have inherited or received an interest in that property.  This individual becomes ineligible for the waiver if other devisees or heirs are forcing him or her to sell the property.  Finally, the individual must be financially eligible to qualify; the gross annual income of his or her family group must be at or below 133 percent of the applicable federal poverty line.  If granted, a hardship waiver is not immediately permanent.  Rather, it exists conditionally for the first two years.  If all of the above criteria are still met when MassHealth reviews the situation at the end of the conditional period, then the waiver becomes permanent.

Finally, MassHealth will not recover under certain conditions if the deceased member had a long-term care insurance policy that, when purchased, met minimum coverage requirements described in its regulations.[xiv]  In order to qualify for this exception, the deceased individual must have (1) been institutionalized; (2) notified MassHealth that he or she had no intention of returning home; and (3) on the date of his or her or admission to a long-term-care institution, had long term-care insurance, that, when purchased, met the minimum coverage requirements of 211 CMR 65.00.  The requirement that the member must have notified MassHealth that he or she had no intent of returning home in order for this estate recovery exception to apply has been strictly construed.[xv]

As the Massachusetts Supreme Judicial Court has noted, “Medicaid is, and always has been, a program to provide basic health coverage to people who do not have sufficient income or resources to provide for themselves.”  Cohen v. Commissioner of the Division of Medical Assistance, 423 Mass. 399, 403-404 (1996), quoting from H.R.Rep. No. 265, 99th Cong., 1st Sess., pt. 1, at 72 (1985).  Estate recovery is simply another facet of the federal law designed to ensure that the Medicaid program is able to continue to fulfill its mandate of serving those for whom it was intended.


[i] 42 U.S.C. § 1396p(b)(1)(B), inserted by Pub. L. No. 103-66, Omnibus Budget Reconciliation Act of 1993 (approved August 10, 1993).

[ii] See http://www.usatoday.com/story/news/nation/2014/03/10/medicaid-enrollees-billed-at-death/6262707/;  http://www.pbs.org/newshour/videos/#139089.

[iii] M.G.L. c. 118E, §31(b).  See M.G.L. c. 118E, §31(a) for estate recovery applicable to members who died prior to April 1, 1995.

[iv] M.G.L. c. 118E, §31(b).  See M.G.L. c. 118E, §31(a) for estate recovery applicable to members who died prior to April 1, 1995.

[v] M.G.L. c. 118E, §32(a).

[vi] The exceptions are specifically delineated by statute and regulation. M.G.L. c. 118E, §§ 31, 32(d) and 33; 130 CMR 501.013(B) and (C), 130 CMR 515.011(B), (C) and (D), 130 CMR 515.014.

[vii] M.G.L. c. 118E, §32(d).  Another important deadline to note: a 12% interest begins to accrue on the claim amount 4 months and 60 days after the appointment of the personal representative.  M.G.L. c. 118E, §32(g).

[viii] Either because (1) the personal representative admitted to its validity, or (2) the personal representative did not contest the Notice of Claim or submit a request for and sufficient documentation to satisfy the requirements for an exception.

[ix] See M.G.L. c. 118E §32(g).

[x] M.G.L. c. 118E, §31(b). See 130 CMR 501.013(B), 130 CMR 515.011(C).

[xi] Id. (M.G.L. c. 118E, §31(b)).

[xii] 130 CMR 501.013 (C).

[xiii] M.G.L. c. 118E, §31(d).

[xiv] M.G.L. c. 118E, §32; 130 CMR 515.014, 130 CMR 515.011(B).

[xv] See Executive Office of Health and Human Services v. Heinmets, SU2010-2431D (Massachusetts Superior Court) July 15, 2011 (Cratsley, J.), aff’d, 83 Mass. App. Ct. 1118 (2013).

Joseph Belza is a second year J.D. candidate at Boston College Law School and staff writer on the Boston College Environmental Affairs Law Review.  He was a 2015 legal intern at the Massachusetts Executive Office of Health and Human Services.

Ingrid Schroffner, an Assistant General Counsel at the Executive Office of Health and Human Services, is the lead attorney there for MassHealth Estate Recovery.

Matthew Taylor is a second year J.D. candidate at Boston College Law School and staff writer on the Uniform Commercial Code Reporter Digest-Journal.  He was a 2015 legal intern at the Massachusetts Executive Office of Health and Human Services.

LearnedTreatise.com: The SJC Addresses the Use of Website Pages to Examine Experts

Kluft_David by David Kluft

Case Focus

Can Internet publications be reliable enough to qualify for the learned treatise exception to the hearsay rule? It is generally agreed that Wikipedia entries don’t make the cut, but what about the websites of indisputably credible healthcare institutions? In Kace v. Liang, 472 Mass. 630 (2015), the Supreme Judicial Court (SJC) addressed whether certain pages on the websites of the Mayo Clinic and Johns Hopkins Hospital would qualify. They did not, but the Court signaled that similar Internet material may qualify in some future case, provided certain foundational requirements are met.

The Learned Treatise Exception

The learned treatise exception to the hearsay rule allows authoritative texts on scientific and scholarly subjects to be used at trial during the examination of an expert witness. The rationale for the exception was described by Justice Black in Reilly v. Pinkus, 338 U.S. 269, 275 (1949), where he wrote that “it certainly is illogical, if not actually unfair, to permit witnesses to give expert opinions based on book knowledge, and then deprive the party challenging such evidence of all opportunity to interrogate them about divergent opinions expressed in other reputable books.”

Two separate learned treatise exceptions have developed in Massachusetts. The first exception, stated in G. L. 233, § 79C, and Massachusetts Guide to Evidence § 803(18)(A) (2015), permits learned treatises to be admitted in evidence in medical malpractice actions, provided that the adverse party is given thirty-days’ notice and the treatise author “is recognized in his or her profession . . . as an expert.” The second exception, adopted by the SJC in Commonwealth v. Sneed, 413 Mass. 387 (1992) and stated in Massachusetts Guide to Evidence § 803(18)(B), is not limited to medical malpractice actions and provides that:

To the extent called to the attention of an expert witness upon cross-examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

Unlike Federal Rule of Evidence 803(18), on which it is partly based, and unlike G. L. 233, § 79C, the Sneed exception is limited to the cross-examination of experts.

Kace v. Liang

In 2006, Jeffrey Kace visited a hospital emergency room with a fever, chest congestion and other symptoms. Although Kace allegedly was exhibiting symptoms of viral myocarditis (a serious heart condition), Dr. Ivan Liang sent him home with Tylenol and a prescription for antibiotics.  Kace died during the night.

Kace’s estate brought a wrongful death action based on a claim of medical malpractice against Dr. Liang. On cross-examination, plaintiff’s counsel asked Dr. Liang if he was familiar with Johns Hopkins and the Mayo Clinic; of course he was. Counsel then asked Dr. Liang if he was familiar with those institutions’ website pages regarding viral myocarditis; he was not. These website pages, written for a lay audience, included lists of symptoms which Dr. Liang did not dispute were accurate, and which counsel asked Dr. Liang to read to the jury. Dr. Liang’s attorney objected, but was overruled on the grounds that the website pages went to the “standard of care.” In his closing statement, plaintiff’s counsel referred to the website pages as “studies.” The jury found that Dr. Liang had been negligent, but not grossly negligent, and awarded Kace’s estate approximately three million dollars. Dr. Liang’s appeal was transferred directly to the SJC sua sponte.

How the Exception Applies to the Internet

On appeal, the principal issue in Kace v. Liang was whether the website pages qualified as a “reliable authority” pursuant to the hearsay exception set forth in Sneed and Massachusetts Guide to Evidence § 803(18)(B). Dr. Liang argued that the pages did not qualify as reliable, notwithstanding the pedigree of the two institutions, because these particular pages were undated and without a named author. The plaintiff, on the other hand, argued in its brief that in the “internet world in which lawyers, litigants and judges all now live . . . the statements appearing in the websites of the Mayo Clinic and Johns Hopkins certainly qualify as a periodical or pamphlet on a subject of medicine, satisfying [the reliable authority] element of the rule.” Brief of Plaintiff-Appellee, p. 22.

The SJC, in an opinion written by Justice Botsford, agreed with Dr. Liang that the website pages did not qualify for the learned treatise exception under Massachusetts Guide to Evidence § 803(18)(B). The SJC first reiterated that the standard for establishing reliability depends on the context of the publication. For a publication written or compiled by a single author (e.g., a well-respected medical textbook), it is enough that the single author is established as reliable and authoritative. But with respect to periodicals (e.g., a peer-reviewed medical journal) it is not enough that the publication is considered authoritative; the author of an article must personally qualify as a reliable authority.  The SJC then went on to observe that “[a]long the continuum from treatises to journals, it is readily apparent that the Johns Hopkins and Mayo Clinic Web pages are very different from a treatise and resemble far more closely articles in a journal or a periodical.”  Kace v. Liang, 472 Mass. at 643. Accordingly, the individual author of each website page had to be independently reliable. But because no authors were listed on the website pages (the Mayo Clinic page, for example, was written by “staff”), it was not possible to meet this requirement. “This is not to say,” wrote Justice Botsford, “that materials published on the Internet may never qualify.” Id. at 644. Had the authors been identified and established as reliable, the website pages might have been admissible.

The Court also held that the learned treatise exception requirements stated in Sneed and Massachusetts Guide to Evidence § 803(18)(B) were not satisfied because Dr. Liang was not testifying in an expert capacity. Furthermore, the Court noted that, because the requisite notice was not given to Dr. Liang’s counsel, the exception stated in G. L. 233, § 79C and Massachusetts Guide to Evidence § 803(18)(A) was not applicable. However, the Court found that no prejudice resulted from the erroneous admission of the website pages, which were cumulative of other properly-admitted evidence, and therefore the Court let the jury verdict stand.


Based on the Court’s ruling and the authorities it cited, practitioners seeking to admit website pages as learned treatises should be prepared to lay the following foundation:

  1. Identify a published website about a subject of science or art;
  2. Establish that a specific statement on one of the website’s pages is relevant and material;
  3. Establish the date of publication of the website page;
  4. Identify the author by name;
  5. Establish that the author is a reliable authority. This can be accomplished by way of an admission, through expert testimony or by judicial notice.
  6. Finally, be prepared to establish the authenticity of the website pages; in other words, to show that these particular pages are not forgeries but are what they purport to be. The SJC recently addressed the foundational requirements for the authentication of Internet materials in Commonwealth v. Purdy, 459 Mass. 442 (2011).

Not addressed by the Court’s opinion in Kace is the significance of disclaimers and terms of use. In the case of Johns Hopkins, for example, the myocarditis page includes a link to a “Privacy Policy and Disclaimer,” which warns that patients should rely only on “official” information, and that the website “should not be considered official.” What happens if all of the foundation requirements for admission of a website page as a learned treatise are met, but the website contains boilerplate terms of use (as most websites do) which could be read to disassociate the website’s owner from that content? Until this and other issues are more fully tested, litigants are advised not to rely exclusively on digital sources as learned treatises; be prepared to make the same point the old-fashioned way.

David Kluft is an IP and Litigation partner at Foley Hoag LLP, and a member of the Boston Bar Journal Board of Editors.


Recent Amendments to the Superior Court Rules and Standing Orders

Baer_Heather by Heather V. Baer

Heads Up

On January 1, 2016, a number of amendments to the Superior Court Rules went into effect. These amendments, which were approved by the Supreme Judicial Court, adopted new Rules 19, 30A, 31 and 33; amended Rules 7, 9A, 9C, 13, 17, 22, 29 and 30A; incorporated Standing Orders 1-06, 1-07 and 1-09 into new Rules; and deferred action on proposed new Rule 17A. This article highlights many of the significant amendments to the Rules. Readers are advised to review the Superior Court Rules in full to ensure that they are fully informed of all of the changes that affect their practices.

Rule 9A: Civil Motions.  A noteworthy amendment to Rule 9A, at 9A(a)(3), modifies the procedure related to reply memoranda. Litigants are no longer required to seek leave of court to file a five-page reply. To file a longer reply, which is “strongly disfavored,” a party must seek leave of court in the manner outlined in the revised Rule 9A(a)(3); and under the unchanged portion of Rule 9A(a)(5), any longer reply memoranda “shall not exceed 10 pages.” Sur-replies continue to be “strongly disfavored,” and leave to file them must be sought from the court. The Rule 9A amendment does not expand the circumstances in which reply memoranda are permitted, which remains “[w]here the opposition raises matters that were not and could not reasonably have been addressed in the moving party’s initial memorandum” and the reply is “limited to addressing such matters.” Furthermore, it does not alter the requirement in Rule 9A(b)(2) that the full Rule 9A package be filed within ten days of receipt of the opposition.

Rule 13: Hospital Records.  Amended Rule 13 now requires that applications for orders for hospital records comply with Rule 9A if they are opposed. While previously a request could be filed after seven days notice to the opposing party, under the amended Rule 13 a party seeking an order for hospital records must now serve the adverse party with the request at least thirteen days before the order is needed, to allow for the possibility that the request will be opposed and that such opposition will be served by mail.

Rule 17: Recording Devices.  Revised Rule 17 now requires recordings and transmissions of court proceedings to comply with Supreme Judicial Court Rule 1:19 (Electronic Access to Court), which prohibits photographs, recordings and transmissions in any courtroom, hearing room, office, chambers or lobby of a judge or magistrate without prior authorization of the judge or magistrate. The amendment to Rule 17 also eliminates the requirement that any court order authorizing the recording or reproduction of the proceedings be issued upon the condition that no such recordation may be used to impeach, discredit or otherwise affect the authenticity or accuracy of the record or the official transcript.

Rule 22: Money Paid Into Court. Rule 22 has been amended to increase the threshold at which money paid into Court must be deposited into an interest-bearing account from $500 to $5,000. The revised Rule 22 also contains a new, second paragraph which provides that, when money paid into court is unclaimed for 30 days “after the claim(s) of every party to the funds has been eliminated by default or court order,” the clerk is directed to schedule an assessment hearing after which the session judge may enter final judgment escheating the funds to the Commonwealth. However, judgment to this effect may not enter any sooner than three years after the funds are paid into Court. This amendment is consistent with M.G.L. c. 200A § 6, which provides that money paid into court is considered abandoned after three years or as soon after three years as all claims made for those funds have been disallowed or settled by the court.

Rule 29: Cover Sheet; Statement as to Damages.  Rule 29(5) previously required Superior Court judges to transfer cases to the District Court if it appeared from the statement of damages in the civil action cover sheet that there was no reasonable likelihood that recovery would exceed the Superior Court threshold. It also permitted –  but did not require – judges to transfer such cases if it appeared from any pre-trial event that the threshold would not be met. Amended Rule 29(5) is consistent with M.G.L. c. 212 §3A(b), and now limits the basis for such a determination to the statement of damages in the civil action cover sheet, as opposed to any information developed at a pre-trial proceeding. It also permits the parties to make written submissions and be heard at a hearing on the issue. Finally, Rule 29 no longer compels the transfer of such cases to the District Court; instead, it permits (but does not require) judges to dismiss such cases without prejudice.

Former Rule 30A/[New] Rule 9C(b).  The provisions of former Rule 30A (Motions for Discovery Orders) have been renumbered without change as new Rule 9C(b) (the title of Rule 9C remains Settlement of Discovery Disputes).

[New] Rules 30A, 31 and 33. Three former Standing Orders were incorporated into the Rules. The verbatim texts of Standing Orders 1-06 (Continuances of Trial), 1-07 (Consolidation of [Civil] Superior Court Cases) and 1-09 (Written Discovery) were incorporated into the Superior Court Rules as new Rules 33, 31 and 30A, respectively, and those Standing Orders were repealed. This amendment streamlines the rules that govern Superior Court procedure as more of the procedures governing practice before the Superior Court can now be found in the same location, although lawyers should still check the Standing Orders.

The Rules in their Proposed form and the Supreme Judicial Court’s approval, may be viewed on the Judicial Branch’s website.

Heather V. Baer is a partner at Sally & Fitch LLP, where she focuses her practice on the representation of corporations and individuals in the areas of civil litigation, employment law and criminal defense, including white collar matters and government investigations.

Looking Ahead: The Judiciary’s Goals for the New Year and Beyond

Gants_Ralphby Chief Justice of the Supreme Judicial Court Ralph D. Gants

Voice of the Judiciary

The role of the Judiciary is not only to do justice but to solve problems, and the sensible resolution of problems often is how we do justice. Working in close partnership with the trial court leadership team of Chief Justice Paula Carey and Court Administrator Harry Spence, we are committed to four new initiatives that we hope will assist us in our efforts to solve problems and do justice. The judiciary, however, can achieve none of these alone; each requires collaboration with and the support of the Legislature, the Executive branch, and the Bar.

Our first initiative is in the area of sentencing reform.  We need our sentences not merely to punish and deter, but also to provide offenders with the supervision and the tools they will need to maximize the chance of success upon release and minimize the likelihood of recidivism. I have asked every trial court department with criminal jurisdiction to recommend protocols for their department that will incorporate best practices, informed by social science evidence regarding which sentences reduce the risk of recidivism and which may actually increase that risk.  Further, I will work with the Legislature and encourage them to abolish mandatory minimum sentences for drug offenses in favor of individualized, evidence-based sentences that will not only punish and deter, but also minimize the risk of recidivism by treating the root of the problem behind many drug offenses — the problem of addiction.

The impact of mandatory minimum drug sentences is far greater than the number of defendants who are actually given mandatory sentences.  Prosecutors often will dismiss a drug charge that carries a mandatory minimum sentence in return for a plea to a non-mandatory offense with an agreed-upon sentence recommendation, and defendants often have little choice but to accept a sentencing recommendation higher than they think appropriate because the alternative is an even higher and even less appropriate mandatory minimum sentence. As a result, where there is a mandatory minimum sentence, a prosecutor’s discretion to charge a defendant with a crime effectively includes the discretion to sentence a defendant for that crime.

Mandatory minimum sentencing in drug cases has had a disparate impact upon racial and ethnic minorities. In 2013, which is the most recent year for which data are available, racial and ethnic minorities comprised 32% of all convicted offenders, 55% of all those convicted of non-mandatory drug distribution offenses, and 75% of all those convicted of mandatory drug offenses.  I do not suggest that there is intentional discrimination, but the numbers do not lie about the disparate impact of mandatory minimum drug sentences.

I expect that the abolition of mandatory minimum sentences in drug cases would likely result in some reduction in the length of incarceration in drug cases. This would free up money that could be reinvested in programs proven to reduce the rates of recidivism, in treatment programs, and in long overdue salaries increases for assistant district attorneys and CPCS attorneys.

Our second initiative involves our civil justice system.  We will develop a menu of options in civil cases to ensure that litigants have cost-effective means to resolve their dispute in a court of law. I do not want a Commonwealth where those with a civil dispute think that they can resolve it efficiently and sensibly only through private arbitration rather than in our civil courts.  Arbitrators generally do not publish their decisions; they make use of our common law but they generally create none of their own.  If complex and difficult cases no longer come to our courts, our common law does not adapt and evolve, and our legal infrastructure becomes old and outdated. We must ensure that our courts through our published decisions, especially our appellate decisions, continue to create the common law that is the legal infrastructure of our civil society.

I have asked each trial court department to devise a menu of litigation options appropriate to the cases adjudicated by that department.  That menu will include the full range — from the “three course meal” option including full discovery, a jury trial (in cases where there is a right to jury trial), and full rights of appeal, to less costly and more expeditious “a la carte” options that might offer, for instance, limited discovery, a bench trial, and, perhaps, limitations on the right or scope of appeal.  With a menu of options in each department, litigants can agree on the option that makes most sense in their case, with the three course meal the fallback option if they are unable to reach agreement.

Our third set of initiatives focuses on access to justice. It is not enough to establish legal rights; we need our residents to know their rights, to know how to invoke them, and to know how to find the legal assistance or information that can help them to do so.  We will soon make available to all litigants an information sheet that will help self-represented litigants find the legal resources that are available to them, including lawyer for the day programs, voluntary mediation services, limited assistance representation, and court service centers, where available. We plan to expand access to court service centers by adding four more in the coming year, and to have one in each of our fifteen largest courthouses, which serve half the litigants in the Commonwealth, by 2017. Finally, we will propose legislation to give every resident of Massachusetts access to a Housing Court. Currently, nearly one-third of our residents have no such access, which means that they have no access to Housing Court judges, housing specialists, the Tenancy Preservation Program, and no forum to enforce building and safety codes efficiently.

Our fourth initiative involves jury voir dire. An SJC Committee chaired by my colleague, Justice Barbara Lenk, is working to improve the quality of jury voir dire — to give attorneys a meaningful role in the selection of a fair and impartial jury while, at the same time, protecting the privacy and dignity of our jurors, and respecting our need to try cases in a timely and efficient manner. We shall improve the quality of voir dire in every court department, recognizing that a method of voir dire that may be sensible in one trial court department may not be sensible in all.

By February, 2015, when St. 2014, c. 254, sec. 2 takes effect, an interim Superior Court standing order will establish protocols for attorney participation in voir dire in that department.  The Superior Court will also establish a pilot project in which judges who volunteer to do so will conduct “panel voir dire.”  The Superior Court and the SJC Committee will monitor response to both the interim standing order and the pilot project and then make further recommendations.

As I said when I was sworn in — if we are willing to search for new ways to solve old problems, if we are willing to put our egos aside and remember that it is not about us, if we are willing to work our tails off, if we are willing to work together, I know that we can build a justice system that will not only dispense fair, sensible, and efficient justice, that will not only help to address the formidable problems faced by so many of the residents of this Commonwealth, but that will be a model for the nation and for the world.


Ralph D. Gants is the Chief Justice of the Supreme Judicial Court. Chief Justice Gants was appointed as an Associate Justice of the Superior Court in 1997 by Governor William Weld. Governor Deval Patrick first appointed him as a Justice to the Supreme Judicial Court in January 2009. In July 2014, he was appointed as the thirty-seventh Chief Justice by Governor Patrick.

Rethinking Mens Rea for Extreme Atrocity or Cruelty

Philipson_Alexby Alex G. Philipson


Currently in Massachusetts, the only mens rea required for first-degree murder by extreme atrocity or cruelty is malice aforethought—the same mens rea required for second-degree murder. See Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). The mental state may be identical, but the punishment is very different: for first-degree murder, it is life imprisonment without parole; for second-degree, it is life with the possibility of parole after fifteen years. What distinguishes proof of the greater offense is evidence of extraordinary brutality or suffering. Id. at 227–228. But the Commonwealth need not prove the defendant intended, or was even aware of, this heightened savagery. Id.

Is it time to reconsider this law? At least two Justices of the Supreme Judicial Court (and one former Justice) think so. See Commonwealth v. Berry, 466 Mass. 763, 774–778 (2014) (Gants, J., concurring, joined by C.J. Ireland [now retired] and Duffly, J.). See also Commonwealth v. Riley, 467 Mass. 799, 828–829 (2014) (Duffly, J., concurring). They say it is unfair to allow a jury to find that a defendant acted with extreme atrocity or cruelty without proof that he intended, or was indifferent to, the victim’s extraordinary pain. Riley, 467 Mass. at 828–829; Berry, 466 Mass. at 776–778. The point is well taken.

Consider a hypothetical case where a jury heard evidence that a defendant killed a victim by repeatedly striking him in the head with a tire iron. On the theory of extreme atrocity or cruelty, the jury would be instructed that they could find the defendant guilty if they found any one of seven factors—only one of which is subjective: the defendant’s indifference to, or taking pleasure in, the victim’s suffering. See Cunneen, 389 Mass. at 227. The other six factors are objective: the victim’s consciousness and degree of suffering; the extent of physical injuries; the number of blows; the manner and force of blows; the instrument used; and the disproportion between the means needed to cause death and those used. Id. So, the jury could sidestep the question of the defendant’s intent or awareness of the victim’s suffering by focusing solely on one or more of the objective factors—e.g., that the instrument used (a tire iron) can cause grotesque injuries. To be sure, there is one circumstance when a jury is required to consider the subjective factor: when there is evidence suggesting the defendant was mentally impaired. See Commonwealth v. Gould, 380 Mass. 672, 685–686 (1980). But even then, the Commonwealth is still not required to disprove the defendant’s impairment; evidence of impairment is simply a factor that the jury can weigh as they see fit.

In short, the trouble with Cunneen is that it separates the subjective factor from the objective ones. Luckily, these factors can be joined using principles from our existing law.

The case that established that malice is the only required mens rea for extreme atrocity or cruelty nonetheless acknowledged that another state of mind is also relevant. See Commonwealth v. Gilbert, 165 Mass. 45, 58–59 (1895). In one breath, the court declared that “[s]pecial knowledge of the character of the act,” i.e., that the killing “was attended with extreme atrocity or cruelty,” is not required. Id. at 58. But, in another breath, the court recognized that some knowledge of the crime’s brutality must exist: “The circumstances [of the killing] would give [the defendant] reason to believe that he was causing pain to his victim; the indifference to such pain, as well as actual knowledge thereof and taking pleasure in it, constitute cruelty, and extreme cruelty is only a higher degree of cruelty.” Id. at 59. The implication is that a defendant who knows his actions are cruel would also know they are extremely so. Yet, how can a jury make this conclusion unless they find that the defendant’s actions were extreme (e.g., that the defendant inflicted multiple blows with a dangerous weapon), and that the defendant had at least “actual knowledge” of the extraordinary pain the victim would suffer? Gilbert, 165 Mass. at 59. And shouldn’t the Commonwealth have to prove this mens rea, considering what is at stake: a sentence of life without parole? Put another way, when our most severe criminal punishment is on the line, is it fair to allow the jury to presume the defendant’s actual knowledge of, indifference to, or pleasure in the victim’s extreme suffering? These are the problems that Gilbert created and that Cunneen failed to solve.

So what is the answer? How about requiring the Commonwealth to prove both the first Cunneen factor and at least one of the others? That would bring together two essential components: an unusually brutal or painful manner of death (objective element), and the defendant’s indifference to or taking pleasure in the victim’s extraordinary suffering (subjective element). By analogy, our law already uses a similar hybrid of objective and subjective components for so-called “third-prong malice”: an intent to do an act which, in circumstances known to the defendant (subjective part), a reasonable person would have known created a plain and strong likelihood of death (objective part). See Commonwealth v. Stewart, 460 Mass. 817, 826 & n.9 (2011). A similar hybrid could perhaps work for extreme atrocity or cruelty too.

Some time ago, two members of the Supreme Judicial Court worried that requiring the Commonwealth to prove the defendant knew about or intended the victim’s extreme suffering would “blur the distinction” between two theories of first-degree murder: deliberate premeditation, and extreme atrocity or cruelty. See Gould, 380 Mass. at 693 (Quirico, J., concurring in part and dissenting in part, joined by Hennessey, C.J.). The Justices did not explain what they meant by “blur.” It seems they were concerned that because deliberate premeditation is the only theory of first-degree murder that, besides malice, has a second mens rea (i.e., forming a plan to kill after a period of reflection, Commonwealth v. Caine, 366 Mass. 366, 374 [1974]), adding a second mens rea to extreme atrocity or cruelty (indifference to or pleasure in the victim’s suffering) would—by giving that theory two mens reas—make that theory too similar to deliberate premeditation. The concern, however, is not compelling. The mental state for deliberate premeditation (forming a plan to kill after a period of reflection) is quite unlike indifference to or taking pleasure in a victim’s extraordinary suffering. Thus, the purported concern with “blurring” should not stand in the way of improving our law.

The same two Justices also warned that adding a second mens rea would “rewrite [the] legislative definition” of extreme atrocity or cruelty. See Gould, 380 Mass. at 691. Perhaps so, considering that G. L. c. 265, § 1 does not provide this second mens rea. But neither does the statute define what acts objectively bespeak extreme atrocity or cruelty; the common law does that. See Cunneen, 389 Mass. at 227. Also, the Legislature has not amended G. L. c. 265, § 1 since the Supreme Judicial Court, more than three decades ago, allowed juries to at least consider evidence of a defendant’s mental state (beyond malice) to determine whether the defendant acted with extreme atrocity or cruelty. See Gould, 380 Mass. at 684–686 & n.16. Accord Commonwealth v. Rutkowski, 459 Mass. 794, 798 (2011); Commonwealth v. Urrea, 443 Mass. 530, 535 (2005). See also Cunneen, 389 Mass. at 227–228. The Legislature’s silence on Cunneen and Gould suggests it is comfortable with sensible judicial modifications of the law.

It may be some time before the right occasion arises to revisit the mens rea element of murder by extreme atrocity or cruelty. When that time comes, the Supreme Judicial Court would do well to take the opportunity to make the law more logical and fair.


Alex G. Philipson is the founder of Philipson Legal, a boutique practice focusing on civil and criminal appeals.

The Development and Implementation of Specialty Courts in Massachusetts

Sullivan_Maryby Judge Mary Hogan Sullivan

Voice of the Judiciary

Twenty years ago, then-Attorney General Janet Reno was instrumental in establishing the first drug court in the United States in Miami-Dade County, Florida. With financial support from the federal government, as well as technical assistance in the form of training for drug court teams, drug courts were established throughout the country. The judicial branch in many states systematically incorporated drug courts into their courts’ operations.

The situation was somewhat different in Massachusetts. Drug courts began where an individual judge undertook to join with an individual probation officer and other team members to start a drug court in a single court in the District and Boston Municipal Court Departments. There was no state-wide organized approach to setting up drug courts.

Meanwhile, the national drug court movement was expanding and refining its approach and purpose. Data collection was a key requirement of existing drug courts. As a result, successful strategies were identified and promulgated; ineffective approaches were eliminated or modified to improve results. The ten key components of drug courts were developed. From these components, a series of best practices were developed. The ultimate goal of drug courts was, and is, to break the cycle of substance-addicted individuals committing crimes, serving a sentence, committing a new crime, serving another sentence, and so on. The method of accomplishing this goal is to target high risk, high need defendants, sentence them to intensive probation supervision, mandate substance use disorder treatment, require frequent and random drug testing, and bring them before the same judge on a weekly or bi-weekly basis for support and accountability.

The data collected over the past twenty years has been subjected to meta-analysis. The evidence supports the conclusion that drug courts which target the correct participants, operate with a full team, conduct staffing, and impose appropriate sanctions and rewards, are successful in reducing recidivism.

What differentiates a drug court session from a regular criminal session in the district or municipal court? A drug court session utilizes a team approach to a targeted population of offenders. It requires intensive probation supervision, which includes mandatory substance use disorder treatment, frequent and random testing, and home visits. It enhances accountability by requiring weekly or bi-weekly court appearances before a single judge who directly interacts with the defendant and utilizes a system of graduated sanctions and incentives.

The proven success of drug courts nationally led to the creation of other specialty courts, including mental health courts, veterans’ treatment courts, prostitution courts, and homelessness courts. These courts target a specific population, and take certain components of the drug courts and apply them to the needs and circumstances of the targeted population. For example, a participant in a mental health session may be required to keep appointments with mental health providers, take prescribed medications, report on a weekly basis to probation, and be paired with a peer supporter in the community as conditions of participation in the mental health court session. Successful completion of the court results in a beneficial outcome of the criminal case, such as dismissal or reduction of the charges.

In 2013, the Massachusetts Trial Court adopted a strategic plan which outlines the Court’s goals for the next ten years. Key among its recommendations is the establishment of a cohesive approach to specialty courts. The Trial Court has defined specialty courts as follows:

Specialty courts are specialized court sessions which target individuals with underlying medical, mental health, substance use and other issues that contribute to these individuals coming before the court with greater frequency. Specialty court sessions promote improved outcomes which reduce recidivism and enhance public safety by integrating treatment and services with judicial case oversight and intensive court supervision.

The Trial Court’s strategic plan envisions that all residents will have access to appropriate specialty courts regardless of court jurisdiction, and that all high need and at-risk communities either have a specialty court or are part of a regionalized court resource model.

To this end, the Trial Court requested and received funding from the Legislature to establish new specialty courts. This funding includes allocations for probation officers and drug testing as well as funding for the Trial Court’s justice partners in the Bureau of Substance Abuse Services of the Department of Public Health, the Department of Mental Health, and the Department of Veterans Services. In the current fiscal year, new drug courts have opened or will open in the District Courts in Dudley, Lowell, Fall River, Brockton and in Taunton Juvenile Court. This will bring the total number of drug courts in Massachusetts to thirty-five. In addition, the total number of mental health court sessions will increase from five to seven, and two additional Veterans Treatment Courts will open. The Trial Court intends to request similar funding from the legislature for FY 2016 to add an equivalent number of specialty courts. The Trial Court’s ultimate goal is to double the number of specialty courts by 2017.

A key component of the expansion effort is training and technical assistance to judges, probation officers, and other justice partners. Utilizing funds from a Bureau of Justice Assistance grant, several state-wide trainings have occurred. Here, clinicians and treatment providers as well as judges, probation officers, and court staff learn the latest information concerning the science of addiction, mental illness, and brain functioning, modalities of treatment, and effective supervision techniques. The grant also provided the foundation for the establishment of a Center of Excellence for Specialty Courts.

Recently, the Trial Court has partnered with the University of Massachusetts Medical School to formalize the Trial Court’s Center of Excellence for Specialty Courts. The purpose of the Center of Excellence is to standardize proven best practices for the operation of specialty courts and to assist the Trial Court in a certification process for specialty courts. The Center of Excellence will also encourage innovative practices, support effective data collection to inform the development of best practices, and assist in ongoing training of specialty court staff and their partners.

The expansion of specialty courts throughout the Commonwealth reflects a recognition by the leadership of the Judicial Branch that the court system is called upon to address issues of mental illness, substance use disorder, and trauma in the context of criminal cases each day, and that public safety requires that the courts’ response to these issues be informed. As Chief Justice Gants said in his State of the Judiciary Address on October 16, 2014:  “We need our sentences not merely to punish and deter, but also to provide offenders with the supervision and the tools they will need to maximize the chance of success upon release and minimize the likelihood of recidivism. And we need to ensure that our sentences are hand-crafted to accomplish that. This means harnessing the social science that can provide us guidance, taking advantage of the knowledge and experience of our judges and probation officers, and learning from the successes and failures of the Federal government and the other 49 states.”


The Honorable Mary Hogan Sullivan is the Director of Specialty Courts for the District Court Department of the Massachusetts Trial Court. She established the Norfolk County Veterans Treatment Court, the first of its kind in Massachusetts. Judge Sullivan was appointed to the bench in 2001 and currently presides in the Norfolk County Veteran’s Court.

Drug Courts Impact Participants, Courts, and Communities

Ellis_Sarahby Sarah W. Ellis

Voice of the Judiciary

“For four months, I tried to kill myself every day,” Louis ‘Phil’ Theodore recounted to at the Lynn Drug Court graduation ceremony on October 22, 2014 reported by the Lynn Daily Item.  “This drug court went to bat for me, they just never gave up.  Today I can say I consider myself a citizen.”

The Massachusetts Trial Court has undertaken the initiative to expand the presence of drug courts throughout the state, consistent with the national trend toward evidence-based practices in the criminal justice system.  The National Association of Drug Court Professionals indicated in 2010 that more research had been published on the effects of adult drug courts than virtually all other criminal justice programs combined.  (Marlowe 2010).  According to the United States Bureau of Justice Assistance, evaluation studies consistently show that while offenders are participating in adult drug courts, they are less likely to commit crime, and, consequently, states and localities save money on criminal justice system costs.  (BJA citing Government Accountability Office, 2005; Huddleston, Marlowe, & Casebolt, 2008; Marlowe, 2010).

For the judges, clerks, probation officers, police officers, attorneys, and treatment providers who work in drug court sessions, these lofty aspirations are but a backdrop to the intense and daily struggles of the individuals who appear before them.  As heroin and opiate overdoses reach epidemic proportions across Massachusetts, the drug courts have become a front line in fighting addiction.  For those who work in drug court, drug court goes beyond preventing crime: it is a commitment to saving lives.

“When people first come into drug court, you see them at their worst.  They don’t have anybody.  They have stolen so much, and lied so much, and manipulated so much, they have burned every bridge they ever had.  They are raw, on the street, selling themselves, stealing, living in cars, living in shelters, or lucky to be in jail,” observes Lynn District Court Probation Officer Kelley Montgomery, who has worked in the Lynn drug court for fifteen years.  “In drug court they evolve into the person they could have been, had they not gotten into taking drugs in the first place.”

In the City of Lynn, Deputy Police Chief Leonard Desmarais believes that community policing is about fixing problems.  “If you’re only working on the symptoms, you’re not fixing the problem.  If someone is addicted to heroin, heroin is the most important thing in their life.  They’ll commit crimes of opportunity, for which they can and should be arrested.  But if we don’t get them off the heroin, we’re not addressing the root cause, and we’re not fixing the problem.”  Drug courts in Massachusetts are targeted at intervening in the lives of defendants who have a significant, but non-violent, criminal history.  One theory supporting drug court is that targeting resources at this select group of perpetrators will impact crime reduction over all.

“Terry came, and he came with help.”  When a recent drug court graduate spoke to the Lynn Drug Court, he was referring to his own arrest by the Lynn Police Department and Lynn District Court Probation Officer Terence Ward.  Drug courts have fostered partnerships between local police departments and local probation officers that have strengthened information sharing and warrant response.  Probation Officer Terence Ward notes that working closely with the Lynn Police department positively impacts individual probationers, and ultimately lives.  “Due to the rise of heroin use and overdoses in our community, the police and the probation department have come closer, to work in concert, to impact drug addicted people who most immediately need help.”

The Lynn Police Department has been an active partner in the Lynn drug court session, bringing important law enforcement resources to bear on integrating drug court participants back into the community, arresting probationers on drug court warrants, and providing treatment information to families and victims of overdoses.  “The police are very proactive on this issue,” says Judge James LaMothe, the presiding justice of the Lynn drug court.  Judge LaMothe describes a process in which Lynn police officers responding to overdoses takes steps to provide patients and families with information on local treatment and counseling services.   An experienced narcotics detective is also a member of the drug court, to be “our eyes and ears on the street, to provide support for drug court participants in the community.”

Substance abuse treatment providers are also invited to drug court sessions, a practice that furthers information sharing goals and provides the court with input on available treatment options.  Probation Officer Kelley Montgomery emphasizes the importance of working with treatment provides to develop treatment plans specific to each individual in drug court.  “A treatment placement is not just about sticking someone in any bed.  Drug court works as a team to find the best possible treatment match for each person.   The best match can change over time.  Treatment providers have [probation officers’] cell phones and email – there is constant communication.”

The multi-agency involvement in the Lynn drug court highlights issues central to drug court success – the integration of resources and knowledge.  Judge LaMothe reflects, “drug court brings together people from all different perspectives – the defense attorneys, the district attorneys, the treatment providers, and law enforcement.  Everyone understands the idea is to prevent recidivism.  This unified systems approach is what makes drug court work.”  Deputy Chief Desmarais sees drug court as an effort to prevent a vicious cycle.  “We work hand in hand [with the drug court] because we’re dealing with the same population.  If the drug court process is successful for someone, they won’t be an addict, and they’ll stop committing crimes.”

The drug court model adopted by the Massachusetts Trial Court is a post-dispositional model.  After a defendant’s criminal case is disposed, usually by way of a guilty plea or a probation surrender, a defendant may be evaluated by the Probation Department for drug court eligibility.  This process may be initiated by the defense attorney, but not exclusively.  Often the presiding judge or probation officer will be familiar with the defendant and his or her history of addiction motivated crime, and will recommend a screening for drug court participation.

Melrose defense attorney Thomas Belmonte has been representing clients in the Cambridge District drug court for ten years.  He indicates that success in drug court requires a level of commitment from the client to make sobriety a life priority.  “Serving time doesn’t treat the underlying problem.  That’s the reality.  Drug court is not for everyone.  The client has to express an interest in wanting to change their circumstances, deal with their addiction and their recidivism.  A less structured probation doesn’t necessarily prevent a return to the criminal justice system.  A highly structured program like drug court provides an opportunity more comprehensive in nature.  Building life skills, sobriety skills, building a sense of responsibility – that’s developed through the residential treatment and counseling drug court offers.”

A defendant must enter into drug court voluntarily.  The drug court model integrates treatment and services with judicial case oversight and intensive court supervision.  What this means for individuals in drug court is a rigorous regimen of inpatient treatment, recovery home assignments, and eventual community re-entry.  Accountability is central, with regular court appearances and drug screens.  “The goal is not short term recovery.  The goal is life-long freedom from addiction,” says Marie Burke, Drug Court Coordinator for the District Court.  “People can stop using for short periods of time.  But drug court is not just about staying clean.  It addresses the underlying behaviors and emotions that lead people back to substance abuse.  Drug court is about accountability and helping people to make the right choices in life.”

Attorney Belmonte, who takes drug court cases largely on a pro bono basis, emphasizes that drug court cases are very different for defense attorneys than other criminal matters.  “These cases are in many ways tougher for a defense attorney than standard probation cases.  The attorney spends a lot of time going over the client’s rights, and the court’s access to privileged information, which is necessary to get the best out of the drug court model.  The process takes a lot of effort from defense counsel and from the drug court team.  And to enter into drug court, there must be acknowledgement by the client that they want to take this step to make significant changes.  Drug court is for clients who have a longer view – grasping concepts and building a safety network in their life, that’s paramount.  Those are the folks who succeed in the long term.”

For those who work in drug courts, it is about the success stories.  Judge LaMothe describes the impact that presiding over the Lynn drug court has had on him personally and professionally.  “Drug abuse can rip a family apart.  Addicts lie, steal, and completely tear apart the relationships they should hold most dear.  Seeing family members invited to a drug court graduation can be the first time that a family is back together.  When parents, children, or siblings say, ‘thank you, Judge, for saving this person’s life,’ I tell them, ‘it wasn’t me.’  I didn’t save anyone’s life.  The participant did the work.  They got themselves clean and sober.  We gave them that chance, but they did the work.”  Reflecting on the impact of a recent drug court graduation, Probation Officer Terence Ward states, “It is a road to recovery.  Seeing someone who graduated a year ago, still clean and sober, come back to talk to other drug court graduates – that’s the reason why I continue to do what I do.”


Sarah Weyland Ellis is the Deputy General Counsel to the Administrative Office of the District Court. She is a graduate of Boston College Law School and Kenyon College.

Mandating Recusal in the Absence of Bias:  In re Bulger, 710 F.3d 42 (1st Cir. 2013)

Newhouse_Martinby Martin J. Newhouse

Legal Analysis

Two policy goals require that, in certain circumstances, a trial judge should be disqualified from presiding over a case.  The first goal, enshrined in both the Due Process clause of the federal Constitution and in our state constitutions, is to prevent the judge from deciding a case in which he or she is biased with regard to a party or has a personal interest.  Ward v. City of Monroeville, 409 U.S. 57, 61-62 (1972); Article 29 of the Massachusetts Declaration of Rights (“[i]t is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit”).   The second goal is to ensure, not only that the trial judge is personally impartial, but also that the proceedings are perceived by the public as such.  As the Court of Appeals for the First Circuit has explained, “the disqualification decision must reflect . . . the need to secure public confidence through proceedings that appear impartial.” In re Allied-Signal, Inc., et al., 891 F. 2d 967, 970 (1st Cir. 1989).

This article discusses the recent application of the “appearance of impartiality” standard by the First Circuit in In re Bulger, 710 F.3d 42 (1st Cir. 2013), which demonstrates that this standard may—and in that case did—require disqualification even in the absence of any evidence that the trial judge is personally biased or has a disqualifying personal interest.   This article will also address whether Bulger changed the standard for recusal, as at least one court has suggested.

The Rules Governing Judicial Disqualification in the Federal Courts

The principal federal statute governing recusal[1] is 28 USC § 455, which provides:  “Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”  § 455(a).[2]

In contrast to the generality of sub-section (a), sub-section (b) of § 455 lists five specific circumstances in which partiality may be presumed and recusal is required.  These include where a judge has a personal bias or prejudice against a party, personal knowledge of disputed facts in the case, former involvement as a government lawyer with the matter, a financial interest in the subject matter of the controversy, or when a judge’s relation is involved or has an interest in the matter.

By its terms § 455 would require a judge to recuse him or herself sua sponte when the statute applies.[3]  The statute may also be invoked by a party to the litigation through  a motion to recuse.   Any party making such a motion must consider the potential ramifications of doing so:  when such a motion is made, it is the very judge whose impartiality has been questioned who, in the first instance, decides whether disqualification is required.

Under the “appearance of impartiality standard” of § 455(a) the test is  “what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge’s impartiality. ”  In re United States, 666 F.2d 690, 695 (1st Cir. 1981)).  Mere suspicion or unsupported allegations are not enough to support recusal under § 455(a).  “[W]hen considering disqualification, the district court is not to use the standard of ‘Caesar’s wife,’ the standard of mere suspicion.  That is because the disqualification decision must reflect not only the need to secure public confidence through proceedings that appear impartial, but also the need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons, perhaps to obtain a judge more to their liking.”  In re Allied-Signal Inc., 891 F.2d 967, 970 (1st Cir. 1989) (Breyer, J.) (citations omitted) (emphasis in the original).

In re Bulger

The federal criminal proceedings in Boston in 2011-2013 against James “Whitey” Bulger were notable in many respects, not least for the unusual defense that Bulger raised, namely that, in return for his work as an FBI informant, Bulger had been granted immunity by the federal Government for the same crimes (including multiple murders) for which he was being prosecuted.  Bulger’s criminal case was initially assigned to District Court Judge Richard G. Stearns, who,  during some of the period covered by the indictment (and the immunity claim) had been, within the United States Attorney’s office in Boston, Chief of the General Crimes Unit, Chief of the Criminal Division, First Assistant United States Attorney, and Senior Litigation Counsel.  Unsurprisingly, Bulger’s attorneys moved for Judge Stearns’s recusal under 28 U.S.C. § 455(a) and (b).

Under (b), Bulger alleged that, by virtue of his positions with the United States Attorney, Judge Stearns should be disqualified because of his prior involvement with the matter and the likelihood that he would be called as a witness with regard to the immunity defense.  It was upon these arguments that Judge Stearns concentrated in his decision denying the motion.  Judge Stearns found no merit in any of Bulger’s factual claims, noting that anything to do with Bulger at that time would have been handled by the New England Organized Crime Strike Force (OCSF), which, by design, was completely separate from the Office of the U.S. Attorney.  Judge Stearns explained that, as an Assistant U.S. Attorney “in the 1980s, supervisory or otherwise, I was not, and would not have been privy to knowledge of any OCSF investigation of the defendant.”  U.S. v. Bulger, 2012 WL 2914463 (D. Mass. July 17, 2012), at *2.

With regard to § 455(a), Judge Stearns concluded in strong terms:

It would be institutionally irresponsible for me, or for that matter, any judge to enter a recusal in a case where a party has chosen to make untrue accusations in the possible hope of subverting that process, or at the very best, forcing a delay of a trial by injecting a diversionary issue into the proceeding . . . .These special considerations have special force where, as here, I have no doubt whatsoever about my ability to remain impartial at all times while presiding over this case.  Moreover, I am confident that no reasonable person could doubt my impartiality.

Id., at *3.

Bulger’s attorneys sought review of Judge Stearns’s denial of the motion to recuse through a Petition for Mandamus to the First Circuit.  And, despite Judge Stearns’s forceful opinion, the Court of Appeals, in a decision written by retired Supreme Court Justice David Souter, sitting by designation, granted Bulger’s writ and ordered that the case be reassigned.  In re Bulger, 710 F.3d 42, 49 (1st Cir. 2013).

Judge Stearns had primarily concentrated on the questions raised by Bulger under § 455(b) about his personal impartiality, but the First Circuit avoided that subject altogether.  Expressing “great respect for the trial judge,” id. at 43, and pointing out that “defendant has made no claim that Judge Stearns has in fact demonstrated any bias in his handling of the case,” the Court of Appeals granted the petition entirely under § 455(a), “it being understood that a reasonable person may question impartiality without the presence of any evidence that a judge is subjectively biased.” Id.

In reaching its conclusion, the Court of  Appeals applied what it described as a difficult standard to meet in the context of a Petition for Mandamus. Id. at 45.   In short:

[R]elief for the defendant is only warranted if it is “clear and indisputable” that no reasonable reading of the record supports a refusal to recuse.  In other words, the issue here is this: is it clear that a reasonable person might question Judge Stearns’s ability to remain impartial in hearing the case?

Id.  at 45-46.

In answering that question, the Court of Appeals looked first at the allegations of Bulger’s immunity defense, noting that “a reasonable member of the public could easily think that anyone who held a position of high responsibility in the Office of the United States Attorney during this period would only be human in reacting to such a claim in either a defensive or adversarial way.”  Id. at 46.  However, the Court noted, the defendant’s allegations alone cannot suffice to require recusal “lest the law confer a veto power on the assignment of his trial judge to any heckling defendant who merely levels a charge that implicates a judge’s defensive or vicariously defensive reactions.”  Id. at 46-47.   There must be independent factual support for the challenge, which in this case the Court found in “official reports and conclusions predating these proceedings, and already largely in the public domain, that disclosed disquieting links between the Government and the criminal element during the years in question, and that may fairly stimulate a critical attitude on the part of an independent observer.”  Id. at 47.

Reviewing these sources (such as those associated with the conviction of former FBI agent John Connolly), the Court treated as undisputed the existence of a “special relationship” between Bulger and the FBI which  “overlapped both the dates of the activity alleged in the defendant’s indictment and the years that Judge Stearns held supervisory position in the federal prosecutor’s office.”   The Court noted that, while none of these facts proved Bulger’s immunity claim, any evidence produced by an inquiry into the relationship between Bulger and the Government during this period “could reflect on the United States Attorney’s Office, as it was constituted in those days.”  Id.  at 48.  The Court concluded:

Given the institutional ties described here, the reasonable person might well question whether a judge who bore supervisory responsibility for prosecutorial activities during some of the time at issue could suppress his inevitable feelings and remain impartial when asked to determine how far to delve into the relationship between defendant and Government, and to preside over whatever enquiry may ultimately be conducted.  On this record, the question could not reasonably be avoided.

Id. at 48-49.

In short, in the First Circuit’s view, Judge Stearns’s denial of the motion to recuse was the result of a “good-faith failure to recognize how a reasonable member of the public would perceive [his] relation to the case,” and it ordered that the case be reassigned. Id. at 46,49.

Bulger thus illustrates that under § 455(a) recusal may be required to protect the integrity of the judicial system even though the trial judge is not biased or interested.  That “a reasonable person might question the judge’s ability to preserve impartiality,” id., is enough. 

Did Bulger Change the Standard for Recusal under § 455(a)?    

Not long after the First Circuit’s decision, Judge Stearns, in allowing a motion to recuse in a medical malpractice case, expressed the view that Bulger had indeed eased the ability of parties to obtain recusal under § 455(a).   Bradley v. Sugarbaker, M.D., 2013 WL 6279299 (D. Mass., Dec. 4, 2013).  Judge Stearns first characterized the legal standard that existed before the First Circuit’s Bulger decision as “a blend of a ‘reasonable person’ and grounded-fact test,” quoting his own (reversed) decision in the Bulger proceedings as follows:

The test for . . . determining whether a judge’s impartiality might reasonably be questioned is “whether the charge of lack of impartiality is grounded on facts that would create a reasonable doubt concerning the judge’s impartiality . . . in the mind of the reasonable man.”

U.S. v. Bulger, 2012 WL 2914463, at *2 (D. Mass. July 17, 2012) (quoting U.S. v. Voccola, 99 F. 3d 37, 42 (1st Cir. 1996)).

Judge Stearns then concluded that, in its In re Bulger decision, the First Circuit changed this traditional test:

It appears to be true, as plaintiffs argue, that the First Circuit’s blended test, requiring recusal where facts would create a reasonable doubt of impartiality, has been supplanted by a more expansive standard that requires recusal where “a reasonable person might question [the judge’s] ability to remain impartial in  hearing the case.”  In re Bulger, 710 F.3d at 46 [emphasis added by the court].

Id., at * 4.  Thus, for Judge Stearns, In re Bulger had substituted a new “might” standard for what he characterized as the prior “would” standard under § 455(a), making recusal more likely even where the likelihood of perceived partiality was remote. Id.

A major flaw in this view is that the statute itself uses the word “might,” requiring a judge’s disqualification “in any proceeding in which his [or her] impartiality might reasonably be questioned.”  § 455(a). (emphasis added).   Furthermore, the court in Bulger uses the term “would” frequently, thus indicating  that in the analysis under § 455(a) the terms “might” and “would” are basically interchangeable.  See, e.g., Bulger, 710 F. 3d at 46 (“The point under § 455(a) is not [the judge’s] actual state of mind at a particular time, but the existence of facts that would prompt a reasonable question in the mind of a well-informed person about the judge’s capacity for impartiality . . . ” (emphasis added.))

In short, it does not appear that Bulger changed the recusal standard under § 455(a).  However, what it may have done is to encourage trial judges in the First Circuit, in a publicly sensitive case, to err on the side of recusal under § 455(a) in order to preserve the public’s perception of impartiality.   As noted, Judge Stearns recused himself in Bradley v. Sugarbaker , which he apparently would not have done before Bulger.   Similarly, Judge Saylor in a more recent (and also a fairly notorious) case, United States v. O’Brien, __ F.Supp. 2d __, 2014 WL 905613 (D. Mass. March 6, 2014), allowed the defendants’ motion for recusal, despite the fact that it was brought on the eve of trial.[4]  The motion was based on the defendants’ intention to call as a witness another federal judge who was not only Judge Saylor’s colleague, but also his friend.  Id., at *1.  Largely citing Bulger for the standard to be applied, see id., *5-*6, and after a thorough review of the facts, Judge Saylor wrote:

There is no completely satisfactory answer . . . and whatever choice I make may lead to some unfortunate consequences.  Under the circumstances, however, I have concluded that the paramount consideration is maintaining public confidence in the fairness and integrity of this proceeding.  That consideration outweighs the other factors, however strong those factors may be.  Therefore, and with considerable misgivings, I feel duty-bound to recuse myself.”

Id., at *10. The lead defendant, O’Brien, had been the Massachusetts Commissioner of Probation and, although his case did not have the national press that Bulger’s did, it also raised within Massachusetts an issue of public perception to which Judge Saylor was obviously sensitive.

Time will tell whether the impact of Bulger suggested here will continue to resonate as federal trial judges wrestle with recusal motions under §455(a), especially in highly publicized cases.  Judge Saylor was troubled, as one would guess all courts are, by the specter that recusal in such circumstances  “would set a new and pernicious precedent, emboldening counsel to file untimely recusal motions or otherwise seek to manipulate circumstances to their own advantage.”  O’Brien, 2014 WL 905613, at *10.   His answer to this concern is perhaps the best we can hope for at the moment:

As to the possible precedent, it is perhaps enough to say that each case must rise and fall on its own facts, and that I have great confidence in the wisdom and good judgment of my colleagues in making appropriate decisions in future circumstances.



Martin J. Newhouse (AB, Columbia College; JD, Yale Law School) is President of the New England Legal Foundation, a member of the BBA Ethics Committee, and teaches Professional Responsibility at Suffolk Law School. The author thanks Lauren Maynard, presently a student at Harvard Law School, for her assistance with the initial research for this article.



[1] The terms “disqualification” and “recusal” are equivalent and are used interchangeably by the courts (see Commonwealth v. Morgan RV Resorts, LLC, 84 Mass. App. Ct. 1 (2013), n. 5.) and in this article.

[2] In addition to § 455, two other federal statutes address recusal, but on a more limited basis.  28 U.S.C. § 144 requires recusal upon the filing of a “timely and sufficient” affidavit that the judge is personally biased or prejudiced with regard to a party.  28 U.S.C. § 47 prohibits any judge from hearing the appeal of a case or issue that the judge has tried.

[3] The language of the § 455 is clear on this point:  “Any justice, judge, or magistrate of the United States shall disqualify himself . . . .” (emphasis added).  Similarly, under Canon 3C of the Code of Conduct for United States Judges, a judge is required to recuse him or herself under the circumstances listed (as are Massachusetts judges under the analogous Canon 3(E) of the Massachusetts Code of Judicial Ethics).

[4] In general, timeliness is essential for a successful motion to recuse.  See, e.g., In re United States, 666 F.2d 690, 694 (1st Cir. 1981).  Lack of timeliness creates that impression that the motion has been strategically filed “to recuse a judge whose rulings have gone against the party.”  In re United States, 441 F.3d 44, 65 (1st Cir. 2006).  Thus, generally a party must raise the question of disqualification “at the earliest moment after acquiring knowledge of the relevant facts.”  In re Abijoe Realty Corp., 943 F. 2d 121, 126 (1st Cir. 1991).  In O’Brien, Judge Saylor concluded that “because of the high stakes involved, I am reluctant to deny the motion solely on the ground that it is untimely,” and proceeded to decide the motion on its merits.  2014 WL 905613, at *5.