News from the courts

Issue March/April 2017

2017 edition of the Massachusetts Guide to Evidence now available

The Supreme Judicial Court and its Executive Committee on Massachusetts Evidence Law recently announced the release of the 2017 edition of the Massachusetts Guide to Evidence. The justices of the Supreme Judicial Court recommend use of the guide by the bench, bar and public.

"The Executive Committee has updated and expanded the Massachusetts Guide to Evidence to reflect new legal developments, and I am most appreciative of their excellent work," Supreme Judicial Court Chief Justice Ralph D. Gants said. "The Guide is an invaluable practical research tool and important resource for understanding Massachusetts evidence law. Attorneys, judges, and self-represented litigants rely on the Guide daily in courts throughout the Commonwealth."

The 2017 edition is the ninth annual edition of the Guide. An electronic version is available without charge on the court's website, where it can be searched and downloaded. The Official Print Edition of the 2017 edition of the Massachusetts Guide to Evidence is available for purchase from the Flaschner Judicial Institute, which is again providing a complimentary copy to every sitting judge in the commonwealth. The Massachusetts Guide to Evidence assembles existing Massachusetts evidence law in an easy-to-use document organized similarly to the Federal Rules of Evidence. The Guide includes extensive explanatory notes and citations to pertinent authorities.

The 2017 edition of the Guide reflects developments in Massachusetts evidence law that occurred between January 1, 2016 and December 31, 2016. In addition to incorporating dozens of new opinions issued in 2016 by the Supreme Judicial Court and the Appeals Court, the 2017 edition contains substantial revisions, including: (1) addition to Section 102 of different types of cases where the new abuse of discretion standard has been used; (2) changes to Section 103 (Rulings on Evidence, Objections, and Offers of Proof) to reflect changes in the requirement that a party objecting to a ruling on a pretrial motion in limine must restate the objection at trial; (3) a new addition to the Note to Section 403 addressing cases involving evidence of similar occurrences; (4) an overhaul of Section 1114 (Restitution); and (5) a new Section 1116 on the use of, and objections to, peremptory challenges of potential jurors.

In 2006, the Supreme Judicial Court established the Advisory Committee to prepare a Massachusetts Guide to Evidence at the request of the Massachusetts Bar Association, the Boston Bar Association, and the Massachusetts Academy of Trial Attorneys. In 2008, the Supreme Judicial Court appointed the Executive Committee of the Advisory Committee on Massachusetts Evidence Law to monitor and incorporate new legal developments and produce annual new editions of the Guide. Appeals Court Judge Peter Agnes chairs the Executive Committee and is the editor-in-chief of the Guide. The other members of the Executive Committee are: Attorney Elizabeth N. Mulvey (editor); Hon. Mark S. Coven (editor); Clerk of the Appeals Court Joseph F. Stanton (reporter); Hon. Stephen M. Limon; Hon. Barbara Hyland; Supreme Judicial Court Senior Attorney A.W. "Chip" Phinney; New England Law Boston Professor Philip K. Hamilton; Boston University School of Law Professor Mark Petit; Benjamin K. Golden, Esq.; Edmund P. Daley III, Esq.; Appeals Court Law Clerk Anthony Podesta, Esq.; and Supreme Judicial Court Justice David A. Lowy, who has been a member of the Committee since its inception, and now serves as a consulting member.

State leaders release report on criminal justice reform measures

Governor Charlie Baker, Senate President Stan Rosenberg, House Speaker Robert DeLeo, and Supreme Judicial Court Chief Justice Ralph Gants, along with the Council of State Governments (CSG) Justice Center released a report on Feb. 21 which, along with related legislation, outlines ways in which Massachusetts can enhance public safety, avoid nearly $10 million in projected corrections costs by 2023 and accelerate further reduction of its incarcerated population.

Compared to other states, Massachusetts has a relatively low overall incarceration rate. However, there remains room for improvement. Two-thirds of those released from Houses of Correction and more than half of those released from the Department of Correction recidivate within three years. With corrections spending over a billion dollars per year the Governor, the Speaker, the Senate President, and the Chief Justice of the Supreme Judicial Court requested that the Council of State Governments Justice Center conduct a data driven analysis to assist in the development of recommendations to reduce recidivism, improve public safety and generate savings.

A bipartisan, inter-branch steering committee and working group were established to support this work. Between January 2016 and January 2017, the 25-member working group met six times, and its five-member steering committee met seven times to review analyses conducted by the CSG Justice Center and discuss policy options. In assisting the working group and steering committee, CSG Justice Center staff analyzed more than 13 million state records, conducted more than 300 in-person meetings, and helped craft research-backed policy options to address the state's criminal justice system challenges.

To that end, policy options outlined in the CSG Justice Center's report reflect a three-pronged strategy including legislative, administrative and budgetary actions that each branch of government will take to help reduce recidivism within the commonwealth. These actions will incentivize participation and expand access to pre- and post-release programming, strengthen post-release supervision, streamline the parole release process and improve and standardize data collection and performance monitoring across the criminal justice system. Actions include a commitment to increased funding for substance use and work training programming, enhancing post-release supervision, and expanding access to earned good time credits for completing recidivism-reduction programs during incarceration.

"Massachusetts should be proud that our prison population has declined by 1,300 inmates over the last two years, leaving us with one of the lowest incarceration rates in the country," said Gov. Charlie Baker. "However, we must focus on addressing recidivism by providing opportunities for certain prisoners who are willing to help themselves and participate in programs like workforce skills training opportunities that put them on the path to being productive members of society once their sentence is served."

"The steering committee, co-chairs, and working group used their deep experience and unique perspectives to work with the CSG Justice Center to produce this informative report, " said Lieutenant Governor Karyn Polito. "We look forward to continuing our exchange of ideas with all stakeholders and implementing important reforms on criminal justice."

"Thank you to the CSG Justice Center and everyone who put so much time and effort into this report," said Senate President Stan Rosenberg (D-Amherst). "It will help inform our work on Criminal Justice Reform this session. We will incorporate its findings into what I hope will be real substantive changes to the entire range of issues facing our criminal justice system that will reduce recidivism, improve public safety, and generate savings."

"I thank the CSG Justice Center and the Working Group for their detailed analysis and thoughtful recommendations," said Speaker Robert DeLeo (D-Winthrop.) "By taking an encompassing approach that includes legislative, administrative and funding components, I believe that we can make lasting change. I am particularly invested in ensuring that support programming - for example job training, substance addiction programs, and help securing housing - is of the highest quality."

"I am grateful for the hard work and perseverance of the CSG and the Working Group, as well as the leadership and teamwork of my steering committee colleagues - Governor Baker, Lieutenant Governor Polito, President Rosenberg and Speaker DeLeo, " said Supreme Judicial Court Chief Justice Ralph Gants. "The resulting report and legislative policy proposals highlight the need for a comprehensive approach to reducing recidivism that combines an individualized focus on a defendant's risk, needs, and responsivity to programs; increased access to and incentives for education, job training, and treatment programs for defendants both in prison and during post-release supervision; and a recognition of the importance of facilitating a defendant's reintegration into society. By examining these issues, the CSG project has enabled us to take a step forward in reforming our criminal justice system and created a springboard for further reforms."

The justice reinvestment process began in August 2015 when leaders from all three branches of government officially requested intensive technical assistance from the CSG Justice Center with the support from the Pew Charitable Trusts and the U.S. Department of Justice's Bureau of Justice Assistance. Twenty-six states have successfully used the justice reinvestment approach to date, including Idaho, North Carolina and West Virginia.

SJC Standing Advisory Committee on Rules of Professional Conduct invites comment on proposed amendments to Rule 3.5 and new Rule 1.6A

The Standing Advisory Committee on the Rules of Professional Conduct invites comment on proposed amendments to Rule 3.5 of the Rules of Professional Conduct. The amendments would add a new subparagraph (4) to Rule 3.5(c) and replace Comment 3 to that rule with proposed Comments 3, 3A and 3B. These proposed amendments are intended to conform Rule 3.5 to the Supreme Judicial Court's decision in Commonwealth v. Moore, 474 Mass. 541 (2016).

At the request of the Supreme Judicial Court, the committee has also proposed for comment a new Rule 1.16A on file retention and disposition and related comments. The rule is not based on an ABA Model Rule, but similar rules have been adopted in some other jurisdictions. The court and the committee believe that lawyers and clients will benefit from clearer guidance on the rules relating to client files. Paragraph (b) of the proposed rule incorporates and updates provisions found in current Rule 1.16(e). The adoption of proposed Rule 1.16A and its related comments would be accompanied by the repeal of Rule 1.16(e) and Comment 10 to Rule 1.16.

The committee will make its final recommendation to the justices of the Supreme Judicial Court following review of comments received.

To read the full report, visit

Supreme Judicial Court announces new executive director to the Board of Bar Overseers

The Supreme Judicial Court has announced that the Massachusetts Board of Bar Overseers has named Gregory Wenger as its Executive Director, effective Feb. 6.

The Board of Bar Overseers was established by the Supreme Judicial Court in 1974 as an independent administrative body to investigate and evaluate complaints against lawyers. The twelve-member Board is comprised of volunteers appointed by the SJC to four-year terms. Eight of the members are lawyers; the other four are public members. The Board acts as an administrative tribunal to consider disciplinary charges brought by Bar Counsel. The BBO's Executive Director provides strategic planning and operational management for the board, as well as operational and administrative support for all BBO functions, including the Office of General Counsel, the Office of Bar Counsel, Attorney Registration, and the Clients' Security Board.

"We're pleased that the Board has filled this important position," said Supreme Judicial Court Justice Frank Gaziano, the Court's liaison to the Board. "We expect that Mr. Wegner's talents and experiences will be significant assets to the Board."

For the last fifteen years, Mr. Wegner has served as County Administrator for Hillsborough County, NH. He has led the strategic administrative planning and implementation of all activities of the Hillsborough County Board of Commissioners and the Office of Administration and Finance. In this role, Mr. Wegner has had significant experience in finance, human resources, IT, and facilities management.

Prior to that, he held positions in law firms both in his native New Hampshire and the Boston-area. Mr. Wegner is a graduate of Boston College and Suffolk University Law School, and clerked for the Honorable Martin Loughlin, United States District Court District of NH. He has been a member of the Massachusetts bar since 1985.

The activities of the board are governed by Supreme Judicial Court Rule 4:01 and the Rules of the Board of Bar Overseers. Although it is an official body subject to the supervision of the Supreme Judicial Court, no public funds are spent to support it. The board's revenues come solely from the annual registration fees paid by lawyers.

Board of Bar Overseers members:

Donna Jalbert Patalano, Chair

Vincent J. Pisegna, Vice Chair

Andrew Ferrara

Erin K. Higgins

Thomas A. Kenefick, III

Francis P. Keough

David B. Krieger, M.D.

John J. Morrissey

Regina Roman

David A. Rountree

Kevin P. Scanlon

Michael G. Tracy

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