Posts Categorized: Criminal Law Section

BBA Comments Eliminate Attorney Sanctions and, in Criminal Cases, Protect Identities

On August 10, the SJC released a new rule, SJC Rule 1:24, governing identifying information in court documents.  The rule is modeled on SJC guidelines that have been in place since 2009 and restricts parties and the courts from including certain personal identifying information in court documents.  It will take effect on November 1, 2016.

The BBA’s Criminal Law, Delivery of Legal Services, and Family Law Sections all commented on an initial draft of the proposed rule in October 2015.  Their comments appear to have accounted for at least a couple of major changes in the final version of the rule:

  • Section 6 – The Court removed language permitting non-redaction of the following information in criminal and youthful offender cases as suggested by the privacy concerns raised in our comments:
    • Social Security number
    • Driver’s license number
    • State issued ID card number
    • Passport number
    • Defendant’s parent’s birth name identified as such
  • Section 8 – In response to concerns expressed by some of the Sections, the Court clarified language permitting courts to sanction attorneys for non-compliance through “corrective action.” As the Sections suggested, the Court added accompanying comments to Section 8, and adopted the Sections’ proposals that:
    • a judge should consider, in determining whether to take such action, the harm to privacy/financial interests that has occurred, the nature and amount of information improperly disclosed, and whether the non-compliance was “willful”.
    • a judge be granted broad discretion in determining appropriate action, including the option of requiring the responsible party to correct the redaction and refile the document.

We thank you for all your work on these comments and the courts for including us in their review process. We are pleased to see that these comments are making a difference.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Is Part of the Discussion on Indigency Requirements

On August 6, the SJC released an amended version of SJC Rule 3:10 regarding indigency requirements for the assignment of counsel in criminal cases.  The Civil Rights and Civil Liberties Section Steering Committee, chaired by Philip Catanzano and Rahsaan Hall,  reviewed and submitted comments on the proposed amendments to this rule in April of this year.  Their comments focused on the challenges facing indigent individuals requiring counsel and the need for reasonableness and fairness in these rules.  They expressed specific concerns about procedures in the counsel appointment process including placing the burden of proof of indigency on the indigent individual.

The rule approved by the SJC includes a number of major revisions such as redefining indigency to include juveniles in child welfare proceedings or in the custody of the Department of Children and Families and 18-22-year-old young adults who are parties in permanency hearings.  The new definition removes the receipt of Medicaid as an automatic determinant of indigency, but permits a judge to consider it as a factor.  It also prohibits questioning parties about their immigration or citizenship status as part of the income determination process.  In addition, the amendments clarify the procedural process to be used in determining indigency and the imposition and collection of various indigency fees.  This page has a more detailed breakdown of the major changes.

According to a statement from the Justice of the SJC, the amendments are intended to update and clarify the rule.  They were proposed by the SJC Committee on Indigency, which was convened in January 2015.  The Committee reviewed recommendations from the Committee for Public Counsel Services (CPCS), which had convened a task force, including representatives from CPCS, the Office of the Commissioner of Probation, the Probate and Family Court and the Department of Revenue, to propose revisions to Rule 3:10.  Prior to this revision, the Rule had last been amended in 1993.

We are pleased to be part of this discussion and will keep you updated on the

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Recommends Modernization and Reform of Wiretap Statute

In recent years, it has become clear that the Massachusetts wiretap statute, G.L. c. 272 §99, which has existed in substantially the same form since 1968, is in need of reform.  In 2011 and 2014, the Supreme Judicial Court issued opinions noting their concerns about the restrictions of the current statutory regime, which limits the use of designated offenses to those with a “connection with organized crime,” thereby preventing the use of a wiretap warrant in the investigation of many gang-related shootings.  See Commonwealth v. Burgos, 470 Mass. 133, 149 (2014) and Commonwealth v. Tavares, 459 Mass. 289, 304-305 (2011).

This position was echoed by Attorney General Maura Healey in a statement before the Joint Committee on the Judiciary at its hearing in September 2015, when she called for “thoughtful and necessary updates” including “remov[ing] the connection  to organized crime, update[ing] the list of designated offenses, and redraft[ing] the definition of what devices are subject to a wire interception warrant.”

Considering the pending bills on this issue, the BBA’s Criminal Law Section – along with the Civil Rights and Civil Liberties Section – drafted a statement of principles for the legislature.  The statement was reviewed by all other BBA Section Steering Committees and approved by the BBA’s Council in March.  It makes the following recommendations for any potential revisions to the wiretap statute:

(1) modernize the statute to recognize developments in wireless communications technology;

(2) add to the list of “designated offenses” the serious profit-driven organized crime offenses of human trafficking, trafficking in firearms, manufacturing child pornography, and money laundering; and

(3) add first-degree murder without regard to whether or not committed in connection with organized crime, so as to make wiretap authority and investigatory one-party consent recordings available in the investigation of any first-degree murder offense

In addition, it calls for updating and modernizing sub-section R to require that reporting on wiretap use be more accessible and informative for the public.

On March 21, the BBA sent its statement to the Chairs of the Joint Committee on the Judiciary, Representative John Fernandes and Senator William Brownsberger, whose committee is considering the handful of bills on this issue.  We hope that they will keep our statement in mind as they work through this issue and look forward to keeping you apprised of any developments on this issue.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association