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
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.