by Jack W. Pirozzolo
About the last thing I ever expected was that I would end up serving on a grand jury. I am currently an attorney in private practice at a large firm, where much of my practice involves the defense of organizations and individuals in criminal matters, including grand jury investigations. Before joining my current firm, I spent over ten years as a federal prosecutor in the U.S. Attorney’s Office in Boston and handled many lengthy, sometimes years-long, grand jury investigations.
The grand jury notice came in the spring and called me for grand jury duty in Norfolk County Superior Court in early July. According to the notice, if empaneled, I would be required to serve three days per week from 9:00 a.m. to 4:00 p.m. for approximately three months over the summer. Although such service would pose a major complication for my practice, I was not concerned. First, I expected that, given my background, there was no conceivable way I would get selected for the grand jury. Second, I figured that if, by some off chance, I did get selected, the summer months might be a slow time for the Court, so there would be a decent chance that the schedule of cases would not be full.
On the evening before I had to report, I sat with my wife and one of our kids at dinner and went over the jury form I needed to submit the next day to the Court. The form is intended to identify aspects of a potential grand juror’s background that might make the juror biased or otherwise not suited to serve. We all chuckled as I went through the questions: Do you or any of your family members have any experience with the criminal justice system? Do you or any of your family members have any connections to law enforcement? Have you or any of your family members ever been a victim of a crime? I answered yes to virtually every question asked and then provided the required detail. We all believed that I would show up, get excused, and then head to the office later in the morning.
We were wrong. I arrived at the Norfolk County courthouse at the required time and eventually joined about a hundred other prospective grand jurors. We congregated in a courtroom before the presiding judge, who was there to select the twenty-three of us who would serve as grand jurors for the next three months. Grand jury selection proceeds similarly to jury selection for trials, with one major difference: there is no defense attorney or defendant. Only the prosecutors, the judge, the clerk, and the court officers are present.
The presiding judge told us that she would seat twenty-three jurors beginning with juror number one. She invited any juror whose number was called to approach the bench and inform her whether there was any reason that the juror could not serve on the grand jury. She had seated about half of the grand jury panel when she got to my number. I approached the bench, expecting that she would immediately excuse me after seeing my disclosure form. Instead, she had only one question for me: “Could I be fair?” Of course, my answer to that was “yes.” Having spent ten years presenting matters to grand jurors who were pulled away from their daily commitments to serve, I did not think it was either reasonable or prudent for me to protest that I was too busy to serve. I took my seat in the box.
Once all twenty-three of us were selected, we were escorted to the grand jury room for orientation. After a briefing on logistics, two prosecutors took over the balance of the orientation, which consisted of a process often referred to as the “preliminary legal instructions.” This process essentially consisted of the prosecutors reading to us model jury instructions for the Massachusetts criminal code. For more than two hours the prosecutors read, in detail, the instructions for each element of crimes ranging from assault and battery with a deadly weapon, possession with intent to distribute, larceny, homicide, etc. They then informed us that they would re-read the relevant instructions for the specific criminal offenses each time they presented a specific case for indictment.
I have been a lawyer for over twenty years and I have participated in scores of jury instruction readings. This was, however, my first experience sitting through jury instructions as a juror. The experience caused me to re-think my own assumptions about jury instructions and has led me to a couple of observations.
First, the preliminary instruction process for the grand jury needs to be reconsidered. A wholesale reading of the elements of multiple crimes, devoid of any factual context, served very little useful purpose, as there was simply no way that the grand jurors could have meaningfully and usefully processed the information the prosecutors were presenting. I am not suggesting that there was anything sinister in what the prosecutors were doing. But a two-hour reading of the elements of various crimes risked leading the grand jurors to develop an incomplete and, in some ways, inaccurate understanding of the relevant legal concepts.
My second observation regarding jury instructions developed over my entire time serving on the grand jury. As the grand jury moved on to the job of hearing and deliberating on specific cases and deciding whether there was probable cause (which is the only responsibility of the grand jury), I grew increasingly uneasy about what has become a well-settled and traditional practice on how juries are instructed. As part of the standard protocol, prosecutors read to us the relevant model instructions on each case immediately before our deliberations. My experience listening to these instructions as a grand juror led me to think that model instructions may provide a statement of a rule or applicable standard, but do not provide an appropriate frame of reference for jurors to contextualize the application of the rule to the particular case before them. Model instructions seem to be written by lawyers for lawyers and not for the laypeople who make up the bulk of the jury pool and are the intended audience. As lawyers, I think we tend to have a blind spot on this because the language of jury instructions is part of our professional vernacular. We have developed a shared language and understanding of what those words mean. Lay jurors do not have that shared understanding. Based on my experience in the grand jury, jury instructions would more effectively teach the jurors how they are supposed to apply the law to the facts by focusing less on the broad statement of the “law” or “elements” and more on specific examples of fact patterns that fall both within, and without, the scope of a particular criminal statute. If they have not already, courts may also want to consider investing in empirical testing to assess which types of instructions are most effective at teaching jurors to apply the law correctly.
During the three months, we had several different prosecutors appear before us. Those who were most effective tended to have certain common elements in their presentations.
First, they were very well organized. They arrived on time and ensured that their witnesses were available and ready at the appointed time. Their examinations were well ordered and their witnesses, particularly the law enforcement witnesses, were well prepared. They presented the evidence in a logical, coherent and efficient way. They did not leave gaps in the evidence and they did not overload us with repetitive or cumulative evidence.
Second, they made effective use of visuals. I was surprised at how often raw surveillance video provided only limited information about an event. Some prosecutors recognized that limitation and used their witnesses to explain how the surveillance video, for example, fit into the broader body of evidence being presented. Somewhat surprising to me was the fact that few, if any, prosecutors used overhead diagrams as a tool. Use of such diagrams would have made testimony, particularly about crime scenes, far more coherent and effective.
Third, they used a “cast of characters” chart with faces and names of people relevant to the investigation. Such a chart was particularly helpful when used to help organize a case with a large number of witnesses and potential “targets” (the people for whom the Commonwealth would seek indictments). Too often prosecutors seemed to forget, or not appreciate, how difficult it was for us to process how the different names we heard during the course of testimony related to the events in question, particularly when we were hearing about the individuals and events for the first time. The more effective prosecutors, no doubt recognizing the value of cast of characters charts, used them.
Fourth, they made effective use of witnesses. They allowed fact witnesses to testify in a more open-ended fashion, keeping leading questions to a minimum. They also, when necessary, framed their questions in a way that kept witnesses focused on the relevant information. Lay witnesses, many of whom are themselves unfamiliar with the process, can have a tendency to inject irrelevant, speculative and potentially prejudicial information into their testimony. The most effective prosecutors were able to focus their questions in a way that minimized the potential for a witness to stray. Sometimes that meant judicious and timely use of leading questions.
Fifth, they were careful to present facts that were potentially exculpatory or otherwise mitigating. While the Supreme Judicial Court has not required prosecutors in all instances to bring exculpatory evidence to the attention of grand juries, they are not permitted to withhold exculpatory or other evidence that leaves the grand jury with a distorted view of the facts. Commonwealth v. O’Dell, 392 Mass. 445 (1984). Those prosecutors that appeared to present the facts fairly were the most effective.
Sixth, they showed an appropriate appreciation of the grand jury’s independence as arbiter of whether charges are brought. Prosecutors have a tremendous ability to control the grand jury, but it is the grand jury that makes the charging decisions. The more effective prosecutors were careful to honor the grand jury’s domain.
This leads to my final observation about grand jury service. During the three months I served on the grand jury, virtually every attorney with whom I spoke about my service (usually in the context of changing a schedule) asked me whether the panel had yet indicted a “ham sandwich.” This is a reference to the famously overused statement from Judge Sol Wachtler, the former Chief Judge of the New York Court of Appeals, who believed that grand juries do not serve the protective function for which they were originally intended and would indict a “ham sandwich” if asked by the prosecutors to do so. In my experience, Judge Wachtler’s characterization grossly distorts both the grand jury’s role and how it functions.
While it is true that most cases presented to the grand jury result in an indictment of some kind, that fact largely is the consequence of two structural aspects of the grand jury: first, that the grand jurors need only to find “probable cause” rather than proof beyond a reasonable doubt; and second, that an indictment requires only twelve of the twenty-three grand jurors to agree that the prosecutor has met the probable cause showing. Although I cannot discuss any particular cases because of the requirement of grand jury secrecy, I generally observed that the grand jurors with whom I served took their obligations both to find the facts and to apply the facts to the law seriously. The group often took considerable time sorting through evidence and the relevant jury instructions that had been presented by the prosecution before making a decision on a proposed indictment. While it was rare for the grand jury to reject all charges, called issuing a blanket “no bill” (although it did happen), it was very common for the grand jury to “no bill” (reject) some, but not all, charges presented for indictment. In that respect, the grand jury played a significant role in determining the precise charges brought against a defendant. At least in that respect, the role of the grand jury as a shield was genuinely meaningful.
When I told colleagues that I had been selected to serve on a grand jury and that I would be tied up during most of the business day, three days per week, for three months, they were incredulous. The truth is that no one was more surprised than I. But looking back, it was well worth it. Not only did I make some new friends, but I also received a rare gift for someone in my position – I was able to see my profession from a completely new perspective, one that has given me a deeper and more complete view of the system in which I make my professional home.
Jack Pirozzolo is a partner in the Boston Office of Sidley Austin LLP where he represents individuals and organizations in a wide variety of civil and criminal matters. Before joining Sidley, Jack spent ten years as an Assistant United States Attorney in the District of Massachusetts, the last five of which he served as First Assistant United States Attorney.
by Jessica Conklin
In April 2018, the Massachusetts legislature passed the Criminal Justice Reform Act (the “Act”). In addition to enacting sweeping changes in the areas of bail, juvenile justice, diversion from prosecution, and reentry services, the Act established a statutory right to medical parole for all eligible inmates. The medical parole statute, codified at G.L. c. 127, §119A, provides terminally ill and permanently incapacitated prisoners who do not pose a public safety risk the right to be released from custody, regardless of the crime of conviction or the time remaining on their sentence. Until the Act was passed, Massachusetts was one of only a handful of states without this remedy.
Medical Parole Basics
Under the Act, petitioning prisoners who meet the qualifying criteria “shall be released on medical parole.” G.L. c. 127 §119(e) (emphasis added). All inmates, including those sentenced to life without the possibility of parole, have a right to medical parole if they qualify. To be eligible for release, a prisoner must meet three conditions: (i) the prisoner must be terminally ill or permanently incapacitated; (ii) the prisoner must be able to live and remain at liberty without violating the law; and (iii) the prisoner’s release must not be incompatible with the welfare of society.
As to the first condition, the Act defines “terminal illness” and “permanent incapacity,” but does not list specific qualifying illnesses or incapacities. Terminal illness is defined as “a condition that appears incurable, as determined by a licensed physician, that will likely cause the death of the prisoner in not more than 18 months and that is so debilitating that the prisoner does not pose a public safety risk.” Permanent incapacitation is defined as “a physical or cognitive incapacitation that appears irreversible, as determined by a licensed physician, and that is so debilitating that the prisoner does not pose a public safety risk.” The Act does not provide guidance on the second and third conditions; that is, it does not list factors to evaluate an inmate’s ability to live at liberty without violating the law or circumstances that might render an inmate’s release incompatible with the welfare of society.
Procedurally, the prisoner, an attorney, the prisoner’s relative, a medical provider of a correctional facility, or a Department of Correction (“DOC”) staff member may petition the superintendent or sheriff of the facility where the inmate is being held for medical parole on behalf of the inmate. The Act does not prescribe a particular form for the petition. The Act requires expeditious review and a timely decision of medical parole petitions by setting specific deadlines after receipt of the petition. Within 21 days of a superintendent’s or sheriff’s receipt of a medical parole petition, the superintendent or sheriff must provide to the DOC Commissioner (“the Commissioner”): (i) a recommendation regarding release; (ii) a medical parole plan; (iii) a written diagnosis by a licensed physician; and (iv) an assessment of the risk for violence that the prisoner poses to society. G.L. 127, §119A(c)(1). The Commissioner, who is the administrative decision maker, then has 45 days to issue a written decision granting or denying medical parole. If a prisoner’s petition is denied, there is no internal DOC appeals process. The Act allows for judicial review through a petition for certiorari under G.L. c. 249, §4. G.L. c. 127, §119A(g).
2019 Medical Parole Regulations
The Act tasks the secretary of the Executive Office of Public Safety and Security (“EOPSS”) with promulgating rules for administering the medical parole process. G.L. c. 127, §119A(h). EOPSS promulgated regulations in July 2019 (the “2019 Regulations”).
EOPSS took a restrictive view of the scope of the right to medical parole. The 2019 Regulations required the petitioner to develop a medical parole plan and authorized the superintendent or sheriff to reject petitions as incomplete. Under the 2019 Regulations, a complete petition included: (1) an adequate medical parole plan; (2) a written diagnosis by a licensed physician; (3) a release allowing disclosure of the petition and all supporting documents to other criminal justice agencies, the appropriate district attorney, and registered victims or victims’ family members; and (4) a release allowing DOC and the parole board to assess the inmate’s medical parole plan. 501 CMR §§ 17.03(3), 17.03(5). Incomplete petitions required no further action by the superintendent or sheriff. These initial regulations, however, did not stay on the books for long.
The Supreme Judicial Court Weighs In
In early 2020, the SJC invalidated several of the 2019 Regulations as contrary to the plain language of the Act and the legislative intent. Buckman v. Comm’r of Correction, 484 Mass. 14 (2020).
In January 2019, inmates Peter Cruz and Joseph Buckman each submitted a petition for medical parole which was rejected as incomplete by their respective superintendents. Both Cruz and Buckman challenged the decision, arguing that the superintendent must consider a petition regardless of his or her view of completeness or adequacy. When Cruz died in custody during the pendency of the appeal, the case continued with Buckman as the sole plaintiff.
Buckman’s appeal raised three important questions: (1) whether a superintendent must consider a petition for medical parole regardless of the superintendent’s view of the completeness or adequacy of the petition; (2) which party bears the burden of preparing a medical parole plan, obtaining a written diagnosis by a licensed physician, and preparing an assessment regarding the risk for violence the prisoner poses to society; and (3) whether the Commissioner must provide the prisoner with notice of the superintendent’s recommendation, a copy of the recommendation, and any supporting or related materials. Buckman, 484 Mass. at 15-16.
In answering the first question, the court held that a superintendent or sheriff must consider a petition for medical parole regardless of the petition’s completeness. The court noted that the medical parole plan, the written diagnosis by a licensed physician, and medical record releases are documents separate from the petition. As such, those documents are not required to initiate the petition process and trigger the statutory deadlines imposed on the superintendent and the Commissioner. Id. at 25 n.23. The separate nature of these documents is evidenced by the requirement that the superintendent or sheriff – not the petitioner – is required to transmit the medical parole plan, diagnosis, and the risk assessment to the Commissioner with the petition. Id. at 24; G.L. c. 127, §119A (c)(1) and (d)(1). To trigger the Act’s deadlines, the petitioner need not do more than submit a “written” petition. Id. at 26.
On the second question, the SJC ruled that the superintendent or sheriff bears the burden of creating a medical parole plan and obtaining a written diagnosis from a licensed physician. The court reasoned that the Legislature could not have intended to place the burden of expeditiously producing documents on a terminally ill or incapacitated prisoner because the Act only requires the submission of the written petition to trigger the 21-day countdown. Furthermore, because the Act placed the burden of creating the risk assessment on the superintendent, one could infer that the Legislature intended to place the concomitant burden on the superintendent to create the medical parole plan and obtain a diagnosis from a licensed physician. Id. at 25-29.
Finally, the court held that the prisoner must receive all supporting documents submitted by the superintendent except the superintendent’s recommendation to the Commissioner. While nothing in the Act prohibits restricting a petitioner’s right to a superintendent’s recommendation, the court found it fundamentally unfair to prohibit the petitioner from receiving documents that the district attorney could access upon request. In fact, the 2019 Regulations themselves anticipated that the petitioner would have access to the medical parole plan and medical diagnosis because the burden of producing these documents was placed (albeit erroneously) on the petitioner. Id. at 30-32.
Proposed 2020 Regulations
After Buckman, EOPSS began the process of amending its medical parole regulations. The proposed regulations, accessible here, blend new provisions with surviving sections of the 2019 Regulations. At a public hearing on September 16, 2020, lawmakers and advocates criticized the proposed regulations for ignoring the court’s guidance in Buckman, narrowing the population eligible for medical parole, and placing unnecessary roadblocks that delay and frustrate the purposes of the medical parole law.
Some issues flagged by advocates include defining the term “prisoner” to exclude pretrial detainees and individuals who have been civilly committed, construing “permanent disability” to require a higher level of disability than the Act requires, and requiring, as part of the petition, two signed releases on specific DOC issued forms. Although the proposed regulations have not been formally adopted, cases relevant to the proposed regulations are currently before the SJC.
Recent Appellate Litigation
On October 5, 2020, the SJC heard argument in three cases related to the medical parole statute: Racine v. Comm’r of Dep’t of Correction (“Racine”), SJC-12895; Harmon v. Comm’r of Dep’t of Correction (“Harmon”), SJC-12876; and Malloy et. al. v. Dep’t of Correction (“Malloy”), SJC-12961. These cases may answer a number of issues related to the 2019 Regulations, the proposed regulations, and the practical difficulties litigating medical parole cases.
In Harmon and Racine, which were argued jointly, the parties addressed: (1) whether a prisoner’s death renders moot a certiorari action for review of denial of medical parole; (2) whether the EOPSS regulation giving a prisoner the right to reconsideration upon a material decline in health precludes a prisoner from submitting a new petition for medical parole; (3) whether the Act applies only to committed offenders or includes pre-trial detainees; and (4) whether a reviewing court has authority to grant medical parole. The court requested amicus briefing on the first three issues.
On the first question, DOC took the position that death generally renders a case moot. Petitioners argued an inmate’s death (or release) should not moot a case when the issues in the plaintiff’s case are capable of repetition and will otherwise evade review. Petitioners emphasized that the lengthy process to litigate a certiorari action after denial of a medical parole petition will frequently result in plaintiffs dying before their day in court.
On the second question, both the 2019 Regulations and the proposed regulations contain a provision stating that “[n]o subsequent petitions may be submitted following the Commissioner’s denial of medical parole, unless the prisoner experiences a significant and material decline in medical condition.” 501 CMR § 17.14. Petitioners’ counsel took the position that the Act requires the superintendent to review every petition and does not restrict an inmate’s right to file a subsequent petition. DOC argued the Act does not address subsequent medical parole petitions and that EOPSS has the authority to regulate the matter.
On the third question, petitioners argued that the regulations’ exclusion of pre-trial detainees impermissibly narrows the scope of the Act. DOC contends that extending medical parole to pretrial detainees violates the separation of powers.
Finally, in deciding these cases, the SJC also may address the question of whether, on certiorari review, a reviewing court has authority to order medical parole. On this issue, DOC argued judges are limited to remanding a case to the Commissioner for further consideration, while the petitioners argued, among other things, that the certiorari remedy necessarily includes the power to order the medical parole the Commissioner improperly denied.
In Malloy, the court was asked to consider whether a prisoner may continue to be held in custody after the Commissioner has granted medical parole. In that case, two inmates were each granted medical parole without a medical parole plan in place and continued to be detained for weeks while DOC attempted to find a suitable placement. Both the 2019 Regulations and the proposed regulations give the Commissioner the authority to set conditions that must be met prior to the prisoner’s release, a process which may create delay. 501 CMR § 17.11.
Petitioner’s counsel took the position that continuing to hold an inmate in custody after he has been granted medical parole is improper; that the superintendent or sheriff is required to create a comprehensive medical parole plan, including contingency options, within the 66-day window afforded by the Act; and where suitable placement has not been found prisoners should be released to a Department of Public Health facility rather than remaining incarcerated. In contrast, DOC argued the Act does not require immediate release and does not limit the period during which DOC may hold an inmate after medical parole has been granted. Regardless of the outcome, the Court’s decision in Malloy is likely to clarify the timing of an inmate’s right to release under the Act once the Commissioner has decided to grant medical parole.
With inmates facing increased vulnerability during the COVID-19 pandemic, the medical parole statute is particularly important, yet release under the Act has been rare. At the time DOC filed its brief in Malloy, 337 inmates had submitted petitions for medical parole, of which 34 had been granted. Of the 34 inmates granted medical parole, 30 had been released from custody. Three inmates were still awaiting release and one had died after being granted medical parole, but before being released from custody.
Medical parole in Massachusetts is still in its infancy. Its scope, and the procedural mechanisms that govern review of medical parole petitions, will continue to be tested and refined over the coming year.
 The Act defines a medical parole plan as: “a comprehensive written medical and psychosocial care plan specific to a prisoner and including, but not limited to: (i) the proposed course of treatment; (ii) the proposed site for treatment and post-treatment care; (iii) documentation that medical providers qualified to provide the medical services identified in the medical parole plan are prepared to provide such services; and (iv) the financial program in place to cover the cost of the plan for the duration of the medical parole, which shall include eligibility for enrollment in commercial insurance, Medicare or Medicaid or access to other adequate financial resources for the duration of the medical parole.” G.L. c. 127 §119A(a).
 Because affected prisoners are frequently infirm, subject to quick health changes, and usually nearing the end of life, expediting certiorari review is often important. See, e.g., G.L. c. 249, §4 (certiorari petitions must be filed within 60 days); Superior Court Standing Order 1-96(2) (administrative record must be filed within 90 days), Superior Court Standing Order 1-96(4) (certiorari action must be resolved through a motion for judgment on the pleadings served within 30 days of the filing of the administrative record).
 As stated in Buckman, the Legislature enacted the medical parole statute to save money on expensive end of life medical care and for reasons of compassion. 484 Mass. at 21-22.
 Superior Court judges have also tackled issues related to the Act. See Adrey v. Dep’t of Correction, Suffolk Superior Civil No. 19-3786-H, 2020 WL 4347617 (Mass. Super. June 19, 2020); Mahdi v. Dep’t of Correction, Norfolk Superior Civil No. 19-1064, Memorandum and Order (Mar. 31, 2020).
 G.L. c. 127, §119A(g) states: “A decision by the court affirming or reversing the commissioner’s grant or denial of medical parole shall not affect a prisoner’s eligibility for any other form of release permitted by law.” (Emphasis added).
 Brief of Respondent-Appellee Department of Correction, Malloy et. al. v. Dep’t of Correction, SJC-12961.
Jessica Conklin concentrates her practice in white collar criminal defense, government investigations, and school disciplinary hearings. Jessica works with students and their families who attend several local secondary schools, colleges and universities in connection with disciplinary proceedings and title IX investigations. Jessica is also a member of the board of editors for the Boston Bar Journal.
by Hon. Robert L. Ullmann
Voice of the Judiciary
Advising the Commonwealth’s highest court about an institution older than the Massachusetts Constitution, and one that operates in secrecy, was the daunting mandate given to the 14 members of the Supreme Judicial Court Committee on Grand Jury Proceedings (“SJC Grand Jury Committee”).
The Supreme Judicial Court (“SJC”) appointed us last year to gather information about how prosecutors present evidence to and instruct grand juries, and to seek to identify “best practices” for grand jury presentments.
Not surprisingly, given the committee’s composition of prosecutors, defense attorneys, sitting and retired judges, and one law professor, the search for best practices involved extensive and at times passionate debate. Perhaps surprisingly, the committee was able to reach consensus on a significant number of best practices in six core areas of grand jury activity, with extensive input from the bar, in particular the Commonwealth’s prosecutors’ offices.
The committee’s Final Report, issued in June, is available on the Supreme Judicial Court website.
Grand juries hear and view evidence presented by prosecutors and decide whether probable cause exists to return indictments on felony charges. Like trial jurors, grand jurors are chosen from randomly selected groups of citizens (venires) summoned to courthouses in each county. Unlike trial court proceedings, however, judges and defense lawyers are not present for grand jury proceedings, and a grand jury witness’s lawyer may be present solely to advise the witness. The judicial branch oversees the grand jury, but prosecutors run the grand jury’s day-to-day activities.
In identifying best practices, the committee recognized that grand jury presentment is a prosecution function that the SJC has described as subject to “limited judicial review.” Commonwealth v. Noble, 429 Mass. 44, 48 (1999). However, committee members also recognized that the grand jury is “an integral part of the court,” and that judges have a “duty to prevent interference with [grand jurors] in the performance of their proper functions, to give them appropriate instructions, and to assist them in the performance of their duties.” In re Pappas, 358 Mass. 604, 613 (1971).
The best practices address issues such as what to do when grand jury subpoenas yield evidence that the prosecutor deems too inflammatory to present to the grand jury; when grand jurors should be instructed on defenses to the crime or on lesser included offenses or other less serious charges than the most serious potential charge; what warnings should be given to targets of investigations; and when and how grand jurors should be instructed on the law.
All of the recommended best practices are currently employed by one or more prosecutors’ offices, demonstrating that the state’s prosecutors were already taking the initiative in exploring practices to ensure that grand jurors are adequately instructed and that the integrity of grand jury presentments is not impaired. The recommended best practices were selected because they assist grand juries in performing their dual functions of determining probable cause to charge someone with a crime and protecting persons from unfounded criminal prosecution. All of the recommendations are fully consistent with existing SJC and Appeals Court law.
Creation of the committee and its work
The committee arose from the SJC’s opinion in Commonwealth v. Grassie, 476 Mass. 202 (2017), in which the Court stated that it would convene a committee on grand jury practices before considering an extension to adults of the rule adopted for juveniles in Commonwealth v. Walczak, 463 Mass. 808 (2012). In Walczak, the Court required prosecutors to provide certain legal instructions to grand jurors when prosecutors seek to indict a juvenile for murder and substantial evidence of mitigating circumstances or defenses exists.
Although the committee arose out of one court decision, the SJC did not limit the scope of the committee’s fact-gathering and asked the committee to recommend best practices in any area of grand jury practice it wished to consider. This broad mandate raised concerns among many of the Commonwealth’s elected prosecutors.
When the committee sought public comment on a draft of its proposed best practices in March, a considerable number of district attorneys criticized the proposals as an unconstitutional intrusion by the judiciary into the exclusive role of the executive branch in making charging decisions. A few district attorneys also saw the proposed best practices as an attempt to impose on them “one size fits all” practices similar to federal grand jury requirements. In addition to raising these broad concerns, the district attorneys offered detailed critiques of specific proposals. The committee also received comments from the Committee for Public Counsel Services, the Boston Bar Association, and several individuals. The committee carefully reviewed all and adopted many of these comments, resulting in an improved set of best practices and commentary which were submitted to the SJC in June.
The committee also considered the broader concerns raised by district attorneys but ultimately concluded that recommending best practices on the presentation of evidence and instructions to grand juries fell squarely within the SJC’s charge to the committee. Moreover, given the judiciary’s role in ensuring the integrity of grand jury proceedings, the committee believed that recommending best practices from existing prosecutors’ office practices did not violate the separation of powers, intrude upon prosecutorial discretion in charging decisions, or impose a “federalized” one-size-fits-all approach to grand jury practice.
Having served on criminal law reform committees for over three decades, I was deeply gratified to see experienced prosecutors and defense attorneys (and the rest of us) forcefully express opposing views, but carefully listen to each other and put aside parochial concerns to reach principled compromise. There is a nationwide trend toward prosecutor best practices, but the practices typically cover areas other than the grand jury, and non-prosecutors are rarely involved in the process. Because our committee had representation among a range of participants in the criminal justice process, the practices that we unanimously viewed as exemplary should have added credibility.
Our committee had no authority to require the implementation of best practices, and the Final Report explicitly states that it is “not intended to give substantive or procedural rights to people accused or convicted of crimes or to serve as the basis for motions to dismiss indictments.” Over time, courts may look to the best practices we identified to render legal decisions, but that was not the purpose of our work. I believe that I speak for the entire committee in expressing the hope that the Commonwealth’s prosecutors on their own initiative will recognize what is exemplary among practices already in use, broadly adopt those practices, and continue the process of developing new best practices in the future.
Robert L. Ullmann has been an Associate Justice of the Massachusetts Superior Court since 2013. He was chair of the Supreme Judicial Court Committee on Grand Jury Proceedings.
In addition to the author, the other committee members were Hon. Peter W. Agnes, Jr., Appeals Court; Janice Bassil, Esq; Berkshire District Attorney Paul J. Caccaviello ; Hon. Judd J. Carhart, Appeals Court (retired); Assistant Attorney General David E. Clayton; Middlesex Assistant District Attorney Kevin J. Curtin; Deputy Chief Counsel Randy Gioia, Esq., Committee for Public Counsel Services; Hon. Bertha Josephson, Superior Court (retired); Clinical Professor Diane S. Juliar, Suffolk University Law School; Bristol District Attorney Mary E. Lee, Kevin M. Mitchell, Esq.; and Suffolk Assistant District Attorney Donna Jalbert Patalano (prior to her departure from the district attorney’s office.) Maureen McGee, Esq. was counsel to the committee.
by Scott P. Lopez and Lauren J. Weitzen
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.
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 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. 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.
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).
 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.
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.