Mass. Practice Series an easily accessible, practical guide to criminal law

Issue June 2015 By Peter Elikann

The recently published fourth edition of Massachusetts Practice Series, Volume 30, 30A, 30B, Criminal Practice and Procedure remains the preeminent and singularly most comprehensive volumes covering every aspect of the practice of criminal law in Massachusetts ranging from pre-arrest considerations to actions even after regular appellate efforts have been exhausted such as pardon applications.

If a new attorney knew nothing about criminal law, took no CLE classes and had no experienced criminal defense attorney to be mentored by, then the mere reading of this work would, at the very least, familiarize one with every aspect of the process. It could be subtitled, albeit awkwardly, "Everything You Wanted to Learn About the Practice of Criminal Law But Were Afraid to Ask." It is a great first stop in the practical study of criminal law.

Its strength lies in the fact that, though it may be an intellectual treatise, it is also a very well organized and easily accessible practical guide. The information is all-inclusive while, at the same time, written in simple, plain-speaking prose. No nuance or small obscure detail of criminal law and procedure appears left out in this encompassing, almost encyclopedic compilation, yet it is eminently readable.

To meet the problem posed by the fact that criminal law is historically the area of law most subject to continuous change, this set of books remains a perpetual living work-in-progress that is updated both in its language and with the ever-evolving law. This fourth edition includes new chapters on the Sex Offender Registry Board, probation violation proceedings and abuse prevention orders. A previously excised chapter on interstate renditions was reinstated, and there are new case appendices. Additionally, there have been extensive restructurings on chapters concerning arrests, stops, searches and seizures and interrogations. For example, the law on automobile searches was separated from other stop and searches and given its own chapter since the law on it has so greatly expanded.

There is also a rich and full backstory to this set. The work was conceived and originally written by the storied long-term Massachusetts Appeals Court Judge Kent B. Smith who tended it and nursed it as a labor of love for 42 years from its debut in 1970 to his death in 2012. Its first edition was one volume and, through his efforts, it grew to three volumes. He took enormous pride in this, his legacy, and even asked, years earlier, that it be talked about some day at his memorial service.

One of his greatest admirers in the legal world was Elspeth Cypher, who respected him as a role model for both his gravitas as a practical jurist and his near-legendary kind and helpful temperament she had experienced firsthand from her years as a defense attorney and as an appellate prosecutor until her own elevation alongside him on the Appeals Court bench. She admired the way he would ask tough questions from the bench, but never try to embarrass the attorneys appearing before him or flaunt his own superior knowledge. Cypher learned from the way he would skillfully elicit the legal principles in a way that would make the murkiest problems argued crystal clear to all.

The year before he died, Smith asked Cypher to co-author the fourth edition and then to presumably carry it on some day after he was gone. Cypher was overwhelmed with the enormity of the honor. It was practically an anointment. Yet, she had grown so close to Smith as her mentor over the years that, after he passed away, she found the assignment surprisingly difficult to work on; every time she began, she'd experience deep feelings of grief. Fortunately, she persevered and the rich legacy of what Smith referred to only as "The Book" remains alive.

One of the strengths of Mass Practice - Criminal Practice and Procedure is that, even before it takes one by the hand through handling a criminal case, it gives perspective.

The first chapter, entitled "The Sources of Criminal Practice and Procedure in Massachusetts," begins with an explanation of how the federal and state constitution began and remain the spring-like source of all criminal law since to practice criminal law is essentially to practice constitutional law. It then explains how the Legislature picks things up from there as it establishes the court, enacts statutes, creates punishment and how those laws can be challenged. Next, it explains the authority and role of the judiciary.

The second chapter explores from every angle the concepts of jurisdiction and venue. It is only then, after establishing how the entire framework came into being and how this entire area of law came into place that the book finally gets to the practical topic of the arrest.

As in every other chapter of the book, the authors attack the topic from every angle, both from a constitutional standpoint and a nuts and bolts "how to" approach. It goes through the elements of an arrest with a warrant and without a warrant, examines the necessity of probable cause and how to challenge or justify an arrest in court.

It then shifts forward to an exhaustive examination of stops and frisks of a person, automobile stops and searches, and all searches and seizure with and without warrants. It next moves through every other pre-charge issue having to do with arrests, identification and statements. Again, the approach is the same as with every chapter. A scholarly scrutiny of the latest cutting-edge law followed by a down-to-earth pragmatic guide that takes one by the hand through its incredible complexities and obfuscations.

This three-volume set is so thorough and in-depth that it is only after approximately 1,100 pages that it finally arrives at the defendant's very first appearance in court, the arraignment. The length is entirely undaunting, since it is such a clear, well-organized, user-friendly reference book with a detailed index, table of cases and table of contents.

No stone is left unturned; every minute issue that a criminal defense attorney, prosecutor or judge could face is illuminated. In addition to the step-by-step aspects of a case through the discovery phase, trial and appeal, there are entire chapters dedicated to such obscure issues as the removal of a disruptive defendant, how to handle the event that a judge becomes disabled or how to remedy clerical errors.

It is, indeed, an unparalleled masterwork. It remains a fitting tribute and legacy to the life's work of Justice Kent B. Smith. Yet, more importantly, under the hand of current Justice Elspeth Cypher, it remains an ever-evolving work-in-progress.

Peter Elikann is a criminal defense attorney and vice chair of the MBA's Criminal Justice Section Council. He also serves as a member of the MBA's Executive Management Board.