the rights of a person who is arrested - · pdf file · 2012-09-23stitutional...

2012 Edition 1–1

CHAPTER 1

The Rights of a Person Who Is Arrested

Hon. Peter W. Agnes, Jr.* Appeals Court, Commonwealth of Massachusetts

§ 1.1 The Privilege Against Self-Incrimination ............... 1–2

§ 1.2 Overview of the Miranda Doctrine ......................... 1–3 § 1.2.1 The Basic Framework .................................. 1–3

(a) Duty to Administer Miranda Warnings ............................................. 1–3

(b) The Administration of the Warnings Versus the Waiver of the Rights ........... 1–4

(c) Right to Remain Silent ........................ 1–5 (d) Right to Counsel .................................. 1–5

§ 1.2.2 The Evolving Nature of Massachusetts Law .............................................................. 1–7

§ 1.3 Notice of Crime Charged ......................................... 1–9

§ 1.4 Right to Counsel ....................................................... 1–9

§ 1.5 Admission to Bail ................................................... 1–10 § 1.5.1 The Purpose of Bail ................................... 1–10 § 1.5.2 Constitutional Rights ................................. 1–10 § 1.5.3 Standards for Admission to Bail ................ 1–11 § 1.5.4 In-Court Bail Hearing ................................ 1–11 § 1.5.5 Conditions of Release ................................ 1–12 § 1.5.6 Out-of-Court (“After Hours”) Bail ............. 1–13

(a) The Persons Authorized to Set Bail or to Release Defendants on Personal Recognizance ................. 1–13

(b) Fees ................................................... 1–13 * Copyright © 2012 Peter W. Agnes, Jr. All rights reserved.

§ 1.1 POLICE INTERROGATIONS AND CONFESSIONS

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(c) The Procedure Governing Out-of-Court Bail ............................. 1–14

§ 1.5.7 Preventative Detention .............................. 1–14 § 1.5.8 Incompetent Defendant or Juvenile ........... 1–17

(a) Regular Bail Hearing ........................ 1–17 (b) Dangerousness Hearings ................... 1–17

§ 1.6 Rights of Foreign Nationals under the Vienna Convention ............................................................. 1–18

§ 1.7 The Booking Process ............................................. 1–22 § 1.7.1 General Rule ............................................. 1–22 § 1.7.2 Juveniles .................................................... 1–22

§ 1.8 The Right to Prompt Presentment to the Court ............................................................ 1–23 § 1.8.1 General Rule ............................................. 1–23 § 1.8.2 “Safe Harbor“ Rule ................................... 1–24 § 1.8.3 What Triggers the “Safe Harbor” Rule ...... 1–25 § 1.8.4 Tolling the Running of the

“Safe Harbor” Rule ................................... 1–26 § 1.8.5 Waiver of the “Safe Harbor” Rule ............. 1–26

§ 1.9 The Right to Use the Telephone ............................ 1–26

§ 1.10 The Right to an Independent Medical Examination ........................................................... 1–27

§ 1.1 THE PRIVILEGE AGAINST SELF-INCRIMINATION

The privilege against self-incrimination under both the Fifth Amendment to the Constitution of the United States and Article 12 of the Massachusetts Declara-tion of Rights has deep roots which extend back to the twelfth century and the struggles between the English people and the Crown and the controversy over the powers of Ecclesiastical courts and the Court of Star Chamber to compel people to swear to the oath ex officio (obliging them to truthfully answer all questions put to them) and then submit to interrogation without knowing any details of the charge or the identity of the accuser.1

THE RIGHTS OF A PERSON WHO IS ARRESTED § 1.1

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For purposes of this book, it is sufficient to note that “[l]ong before Miranda v. Arizona2, was decided, it was held that a defendant who is in custody has a right to remain silent.”3 “The postarrest silence of a defendant, such as a failure to deny an accusation, may not be used substantively to prove his guilt. The right of a defendant to remain silent in such a situation was established as a principle of the common law in this Commonwealth long before it became a matter of con-stitutional right.”4

The privilege against self-incrimination under the Massachusetts Constitution is broader in scope than the corresponding privilege under the U.S. Constitution.5 For example, in Massachusetts, a person’s refusal to perform a test or to turn over nontestimonial evidence is protected by the privilege.6

§ 1.2 OVERVIEW OF THE MIRANDA DOCTRINE7

§ 1.2.1 The Basic Framework

(a) Duty to Administer Miranda Warnings

Police officers are not required to administer Miranda warnings to everyone whom they question nor simply because a person is arrested.8 Miranda warnings are required when the police subject a person to “custodial interrogation.”9 “Cus-todial interrogation” refers to any “questioning initiated by law enforcement officers after [an individual is] taken into custody.”10 “For any statement made during custodial interrogation to be admissible against the defendant at trial, both the Federal and State constitutions require that the prosecution prove that the defendant waived these rights before making the statement.”11

The “fundamental purpose of. . . Miranda [is] ‘to assure that the individual’s right to choose between speech and silence remains unfettered throughout the interrogation process.’”12 Therefore, Miranda warnings are not required simply because a person is the focus of a police investigation,13 or because the question-ing takes place in a police station,14 or a jail or a correctional institution.15 A person is not entitled to Miranda warnings prior to or during preliminary police questioning associated with a motor vehicle stop,16 prior to field sobriety tests,17 or prior to or during a pat frisk during a street encounter.18

Private parties, including school officials, are not required to advise persons of Miranda rights prior to questioning.19


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(b) The Administration of the Warnings Versus the Waiver of the Rights

To determine the admissibility of a defendant’s statement, it is necessary to dis-tinguish between the administration of the Miranda warnings and a waiver of Miranda rights.20 They are “entirely distinct inquiries” under state law but it re-mains to be seen whether this is true under federal law.21 Custodial interrogation cannot take place until after there has been a valid waiver of Miranda.22 A waiver must be made voluntarily, knowingly, and intelligently.23 “The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.”24 The validity of a waiver is assessed in light of the totality of the circumstances, which includes the defendant’s age, education, intelligence, and emotional stability.25

One important factor that may affect the validity of a Miranda waiver is a lan-guage barrier. “Police must recite Miranda warnings in a language, and in a manner, an unlettered and unlearned defendant can understand. The use of a card containing the Miranda warnings is sufficient to advise a defendant of his rights, if it appears that the defendant has read the card and indicates an understanding of what he has read.”26 As discussed in more detail in Chapter 2, a variety of other factors such as substance abuse, mental illness, cognitive deficiencies, physical illness, and the use by the police of physical violence, deception, or psychological ploys also may affect the validity of a waiver of Miranda rights.

“A valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.”27 The validity of a waiver cannot be based on statements or conduct that occur after a person has asserted her right to remain silent or her right to counsel.28

Merely because a person in police custody says he or she understands his or her Miranda rights does not establish a valid waiver. 29 When a person signs a writ-ten form containing a waiver of Miranda rights, this is an important factor in determining whether the waiver was knowing and voluntary, but it is not disposi-tive.30 When at any point while a person is in police custody he or she makes a statement or engages in conduct which the police believe may amount to a re-quest to remain silent or a request to consult with an attorney, even if it is un-clear, it is “good police practice” to clarify the person’s position before custodial interrogation commences or continues.31


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(c) Right to Remain Silent

Once a person in police custody has asserted his or her right to remain silent, the police have a duty to scrupulously honor it.32 “The right to remain silent de-scribed in Miranda includes ‘not only the right to remain silent from the begin-ning [of questioning] but also a continuing right to cut off, at any time, any ques-tioning that does take place.’”33 “Absent such ‘scrupulous’ protection of the right to remain silent, statements made after invocation of the right are inadmissible in the prosecution’s case-in-chief.”34

In the prewaiver setting, before there has been a valid waiver of Miranda rights, the U.S. Supreme Court has decided that there must be an “unambigu-ous” assertion of the right to remain silent before the police have a duty to sus-pend questioning.35 However, Massachusetts law is less demanding than federal law in terms of what the defendant is required to do at the prewaiver stage to assert his or her Miranda rights. Once the defendant, by his or her words or ac-tions, asserts his or her right to remain silent with “sufficient clarity,” the police have a duty to “scrupulously honor” that right and must suspend questioning.36

In the postwaiver setting, Massachusetts law, like federal law, requires the de-fendant to demonstrate in an unambiguous manner that he or she wishes to assert the right to remain silent.37

Once administered and waived, Miranda warnings are not required to be repeat-ed at every stage of a police interrogation.38 However, the police are required to make “every effort” to ensure that a person does not unknowingly give up basic rights such as the right to remain silent.39

(d) Right to Counsel

The right to counsel in connection with the Miranda doctrine is derived from the Fifth Amendment to ensure the availability of the privilege against self-incrimination in the setting of a custodial interrogation, usually, though not ex-clusively, in the police station. Generally, once the defendant asserts his or her right to counsel, all interrogation must cease until counsel is made available, unless the defendant initiates further communication with the police.40

In the prewaiver setting, before there has been a valid waiver of Miranda rights, neither the U.S. Supreme Court nor the Supreme Judicial Court (SJC) has decided whether the “heightened clarity” standard used to measure whether there has been an assertion of the right to remain silent is applicable.41

In the postwaiver setting, after there has been a valid waiver of Miranda rights, the federal and Massachusetts rule is that “law enforcement officers may continue


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questioning until and unless the suspect clearly requests an attorney.”42 “This post-waiver test requires that the invocation be a sufficiently clear statement such ‘that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.’”43

In Commonwealth v. Hoyt, the SJC concluded that an exchange between the police and the defendant at the outset of the interrogation in which the officer stated, “This right here states that you understood everything I just read to you. Having these rights in mind, do you wish to speak to us now?,” followed by a response from the defendant as follows: “I’d like an attorney present. I mean but I can’t afford one. So I guess I’ll just speak to you now. I don’t have an attor-ney,” was an unambiguous assertion of the right to counsel that should have re-sulted in the termination of any further questioning.44 “Where a suspect invokes his right to counsel but notes that he cannot afford counsel, the latter observation does not render the request for counsel equivocal. Because Miranda requires that a suspect who cannot afford an attorney will have one provided for him, indigence cannot be a ground on which to find equivocation.”45

In Commonwealth v. Baye,46 when, after forty-five minutes of police questioning during which the defendant said very little, he was asked if he agreed with the officer’s account, he shook his head from side to side and replied “Nope. If I’m being accused of anything, I want to talk to a lawyer.” The conversation continued as follows:

The troopers did not then cease their questioning. Ra-ther, they informed the defendant that while he had the right to speak to a lawyer, if he would instead just talk to them without counsel, “[W]e can clear this up.” Mazza told the defendant that he “still believe[d] that [he was] the kind of guy that meant just not to do” any harm by setting the fires, and almost begged the defendant to “please, please” agree to a continuation of the interrogation.

The defendant responded that he’d “still wanna talk to a lawyer, just so I’m not accused of something.” Zipper told him, “we haven’t accused you of any-thing.” Mazza concurred, telling the defendant that if the defendant only wanted a lawyer “if we’re gonna accuse you of this,” then he need not get a lawyer at that time. In Mazza’s words, the troopers would “ac-quiesce to anything” if the defendant would speak to the troopers without a lawyer, because it would allow them to “work something on this case” that would


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ensure not only that the case would be put to rest, but, as Zipper put it, that the fires would not “jam [the de-fendant’s] life up.”47

The SJC observed that on these facts the defendant had made an unequivocal assertion of his right to an attorney.48

In Commonwealth v. Santos, 463 Mass. 273 (2012), when after forty-five minutes of custodial interrogation about a motor vehicle that may have played a role in the homicide under investigation, the defendant stated “You ask Lou that. I’m not going on with this conversation. I want a lawyer, because you keep--ask Lou that.” The SJC held that this was a clear invocation of the right to remain silent and the right to counsel. However, in a case of first impression, the SJC explained that the effect of the defendant’s decision to continue speaking with-out any intervening comment or question by the police and to qualify that he only wanted a lawyer if the police continued to question him about the car, was to leave a reasonable interrogating officer “uncertain whether defendant had in-voked his Miranda rights, as the officers’ interactions with the observing officer demonstrates.” In Santos, the SJC announced a new rule to guide the police in such a situation: “In such circumstances, an interrogating officer must cease the interrogation, but is entitled to ask a question to clarify the defendant’s intent. The question—for example, in a form such as ‘I just want to be sure—do you want an attorney?—should be brief, worded only to elicit an affirmative or nega-tive response concerning whether the suspect wants an attorney, and should not be designed to keep the suspect talking. After such an inquiry to clarify whether a suspect has indeed requested, nothing further should be asked unless the suspect responds to the question in the negative.”

§ 1.2.2 The Evolving Nature of Massachusetts Law

In numerous cases since the 1966 decision in Miranda, the SJC has determined that federal law is not adequate “to protect rights guaranteed under art. 12,” and has responded by promulgating “separate rules under State law as ‘adjuncts to the Miranda rule.’”49 Although the SJC has not explicitly adopted the Miranda doctrine under state law, recent decisions indicate a trend whereby aspects of the Miranda doctrine jettisoned by the U.S. Supreme Court are adopted as a matter of state common or constitutional law. For example, in Commonwealth v. Clarke,50 the SJC specifically rejected the U.S, Supreme Court’s enhanced implied waiver doctrine which was enunciated in Berghuis v. Thompkins:51

We decline also to adopt the Thompkins approach to waiver, i.e., that when Miranda warnings have been given and understood, “an accused’s uncoerced


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statement establishes an implied waiver of the right to remain silent.” Thompkins, above at 2262. In effect, the court in Thompkins reversed the burden of proof applicable to waiver: under Federal law, waiver will now be presumed from the very fact that the defend-ant made any uncoerced statements, but the defendant cannot invoke his right to remain silent unless he does so with the utmost clarity. As a matter of State law, we continue to impose a “heavy burden” on the Commonwealth in proving waiver. Indeed, the ambi-guity of a defendant’s invocation, if not then clarified, may itself hamper the Commonwealth in establish-ing, beyond a reasonable doubt, the validity of any subsequent waiver.52

The following chapters contain a detailed discussion of the sharp differences between Massachusetts law and federal law on many aspects of the Miranda doctrine. Among the many differences are these three:

• First, in Massachusetts the Commonwealth has the burden of proving a valid waiver of Miranda rights by a standard of proof beyond a reasonable doubt.53

• Second, in Massachusetts there is a strong preference for the elec-tronic recording of police interrogations. The SJC has held that unless the police “preserve an accurate and complete recording of the interrogation. . . by means of a complete electronic recording,” the defendant is entitled, on request, to a cautionary instruction concerning the use of such evidence which advises that the state’s highest court has expressed a preference that such interrogations be recorded whenever practicable, and cautions the jury that be-cause of the absence of any recording of the interrogation in the case before them, they should weigh the evidence of the defendant’s statement with great caution and care.54

• Finally, the SJC, unlike the U.S. Supreme Court, requires the po-lice to notify a person in custody that his or her lawyer is trying to contact him or her and to communicate advice relating to the rep-resentation to the defendant.55

See Chapters 2 and 4, below, for a detailed analysis of the Miranda doctrine, including a thorough explanation of the differences between Massachusetts law and federal law.


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§ 1.3 NOTICE OF CRIME CHARGED

Every person has a right to be informed of the crime for which he or she is arrested by the person who makes the arrest or is responsible for the detention.56

§ 1.4 RIGHT TO COUNSEL

“[T]he right to counsel guaranteed by the Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty.”57 In Massa-chusetts, the beginning of adversary judicial proceedings for purposes of fixing the point when the right to counsel attaches is usually the arraignment stage.58 “Apart from the defendant’s right to counsel in exercise of his Miranda rights, he had no other constitutional right to counsel at the [interrogation].”59

Nevertheless, over the years, the SJC has placed a high priority on insuring that the defendant has access to an attorney who is trying to contact him or her and to important information and advice that the attorney wishes to impart to his or her client.60 The SJC has determined that the requirements of Article 12 of the Dec-laration of Rights exceed those under the federal constitution and require the police, when they learn that an attorney representing a suspect held in custody is trying to reach his or her client to provide legal advice, “to inform the suspect immediately of the attorney’s efforts.”61 The duty arises whether or not the attor-ney has formally been appointed to represent the defendant.62 If the police fail to honor this duty, suppression of any statements made by the defendant following the attorney’s request is usually required.63

In order to ensure that the defendant is in the best position to make informed choices about whether to cooperate and submit to police questioning, the SJC also held that the duty of the police when contacted by an attorney representing the defendant is “to apprise the defendant of a specific communication from his attorney that bore directly on the right to counsel.”64 Subsequently, the SJC fur-ther explained this obligation in Commonwealth v. McNulty.65 In McNulty, the SJC noted that there were four separate points made to the Salem police by de-fendant’s counsel which “bore directly on the right to counsel,” and which should have been transmitted by the police to the defendant: “(1) that the attor-ney represented the defendant; (2) that he wanted to speak to the defendant; (3) that the police were to tell the defendant that [attorney] Buso said not to talk to the police; and (4) that [attorney] Buso would be at the station shortly.” The SJC added that “the statements that [attorney] Buso had expressly requested to speak to the defendant and would be at the station ‘shortly’—the second and fourth points—could be of critical importance in ‘actualizing’ the abstract promise of


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an attorney provided by the Miranda warning into concrete reality; there is a significant difference between being told that one can stop questioning and speak to an appointed attorney, and hearing that the appointed attorney has al-ready stated that he or she wants to meet and speak, and is in fact due to arrive at one’s side ‘shortly.’” In McNulty, the SJC stressed that although the police are not required “to deliver verbatim to a defendant the message given by his attor-ney,”66 an attorney’s message that his or her client should not talk to the police or submit to a test or an examination bears directly on the right to counsel and must be passed on to the client.67

The Massachusetts rule is strict. The police must communicate the message relat-ing to the right to counsel from counsel to the defendant without delay.68 When the police memorialize a defendant’s statement in such a way that it is not possi-ble to tell whether certain statements were made by the defendant before or after his or her attorney contacted the police, all such statements must be suppressed.69

§ 1.5 ADMISSION TO BAIL

§ 1.5.1 The Purpose of Bail

“The essential purpose of bail is to secure the presence of a defendant at trial to ensure that, if the defendant is guilty, justice will be served.”70

§ 1.5.2 Constitutional Rights

A person who is charged with a crime does not have a constitutional right to pretrial release or to be admitted to bail.71 Instead, the federal and state constitu-tions protect individuals against the imposition of excessive bail.72 Capital cases, i.e., cases in which the defendant is charged with murder in the first degree, are sui generis in that the court has discretion to order the defendant to be held without bail without the need to make any findings.73 Bail decisions, however, are governed by principles of substantive and procedural due process to require that judicial decisions must be based on ascertainable standards, and the defendant must be given a right to be heard and be afforded the right to counsel.74

A person on probation who is charged with a violation of probation does not have a right to be admitted to bail if there is a judicial finding of probable cause and an order that the defendant be held in custody.75 “Thus, at a preliminary probation revocation hearing when a judge determines probable cause exists and makes the decision to detain the probationer, the judge shall not consider bail or other terms of pretrial release as a substitute for custody. The judge may, however,


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consider bail and other issues relating to any newly alleged crime or the underlying crime for the probation violation.”76

§ 1.5.3 Standards for Admission to Bail

Admission to bail in the District Court, Boston Municipal Court (BMC), and Juvenile Court departments is governed by G.L. c. 276, § 58. This statute has several important features. First, it includes a presumption favoring release on personal recognizance applicable in all cases except murder in the first degree. Second, it contains a specific list of the factors that may be considered in decid-ing whether to set bail and in what amount.77 Third, it contains a provision for the revocation of bail for sixty days if there is probable cause to believe the de-fendant has committed a new offense while on bail or other release and that “the release of said person will seriously endanger any person or the community.”78 Fourth, there is a provision for de novo review before the Superior Court.79 Gen-eral Laws c. 276, § 58 “was not intended to give the courts discretion to deny bail but rather to establish the right of the accused, in most circumstances, to be admitted to bail.”80

In a case that arises under G.L. c. 276, § 58 involving a juvenile, the hearing before the Superior Court must be closed.

Admission to bail in cases before the Superior Court after indictment or waiver of indictment is governed by G.L. c. 276, § 57 which does not contain a pre-sumption in favor of release on personal recognizance, but rather makes the is-sue of release on bail a matter of discretion.81 Thus, in a Superior Court case, the defendant may be admitted to bail only if the judge “determines that such re-lease will reasonably assure the appearance of the person before the court and will not endanger the safety of any other person or the community. . . .” G.L. c. 276, § 57. The factors set forth in G.L. c. 276, § 58, para. 1 are appropri-ate to consider in making a determination under G.L. c. 276, § 57.82 The SJC has noted that the language contained in G.L. c. 276, § 57 that refers to detention because of the offender’s dangerousness is not a substitute for the more elabo-rate scheme for preventative detention of dangerous persons set forth in G.L. c. 276, § 58A.83

§ 1.5.4 In-Court Bail Hearing

Bail hearings in court do not usually involve live witnesses. The SJC has provided guidance about the nature of a bail hearing conducted in court under G.L. c. 276, § 57 or § 58. These hearings can, and usually are, based on a consideration of documents such as police reports, letters, probation records, etc.84 “Of course,


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the evidence must be sufficiently reliable to avoid any significant risk of an erro-neous deprivation of liberty. A bail proceeding under Section 57 is not intended to be a mini-trial, and the rules of evidence do not apply. A full-blown eviden-tiary hearing that includes the right to present and cross-examine witnesses is not needed or required. However, such a hearing, or some variation, may be held in the discretion of the judge when the circumstances of a particular case warrant.”85

Under G.L. c. 276, §§ 57 and 58, the Commonwealth must establish the grounds to support a judicial finding that bail and not release on personal recognizance is necessary by a preponderance of the evidence.86 However, the amount of bail set by the trial judge is not tied to the evidence presented at the hearing, and in-volves a different question than whether to set a bail. “Once a decision to admit a defendant to bail has been reached, the amount of bail imposed is a matter of discretion,87 subject to the constitutional prohibitions against excessive bail.”88

§ 1.5.5 Conditions of Release

As noted earlier, bail exists to ensure the appearance of the defendant at court events. “The preferred disposition under the bail statute [G.L. c. 276, § 58] is release on personal recognizance.”89 A court lacks implied power under the bail law or inherent judicial authority to impose conditions of release.90

However, under modern criminal practice, in certain circumstances courts are authorized to impose conditions of release that will contribute to the defendant’s appearance at court events without the need for preventative detention, and that will simultaneously protect individuals and the community from the risk of further criminal acts by the defendant.91

First, pretrial conditions of release that require the defendant to participate in rehabilitative programs may be ordered, with the consent of the defendant, as part of pretrial probation under G.L. c. 276, § 87 and 87A.92 A violation of lawful conditions of release may lead to a temporary detention of the defendant.93

Second, if there is a Section 58A dangerousness hearing and the court deter-mines that personal recognizance will not assure the presence of the defendant in court or will endanger the safety of another or the community, but that detention without bail is not necessary, the court may, in addition to an order of bail, impose conditions of release.94

Third, in the District and BMC departments, when a person is arraigned on charges involving assault and battery, trespass, threats, or a crime involving the imminent threat of harm to another member of the defendant’s household as defined in G.L. c. 209A, the court may, “after a hearing and findings, impose


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such terms95 as will insure the safety of the person allegedly suffering the physical abuse or threat thereof, and will prevent its recurrence.”

§ 1.5.6 Out-of-Court (“After Hours”) Bail

(a) The Persons Authorized to Set Bail or to Release Defendants on Personal Recognizance

Out-of-court bails are governed by The Superior Court Rules Governing Persons Authorized to Take Bail (2005).96 These rules require persons authorized to take bails (including clerk-magistrates and assistant clerks of the Superior Court, District Court, and the Boston Municipal Court departments; masters in chan-cery; and bail commissioners) to know the governing law and to strictly comply with it.97 Persons who take bails must register with the Superior Court.98 Under the rules, clerk-magistrates and assistant clerks of the Superior Court are al-lowed to set bail or release persons on personal recognizance for any defendant who is within the territorial jurisdiction of the county in which the clerk-magistrate or assistant clerk has authority to act even though the charges against the defendant are pending in another county.99 Likewise, clerk-magistrates and assistant clerks of the District and Boston Municipal Court department are al-lowed to set bail or release persons on personal recognizance for any defendant who is within the district or division in which the clerk-magistrate or assistant clerk has authority to act even though the criminal charges against the defendant are pending in a court outside that district or division. Masters in chancery have bail authority within the county for which they are appointed.100 Bail commis-sioners have authority to set bail to the extent specified in their letters of ap-pointment.101 The territorial authority of persons authorized to take bail may be expanded. 102

(b) Fees

In any case involving a misdemeanor or felony, the person authorized to admit the defendant to bail or to release him or her on personal recognizance may charge a fee of forty dollars “regardless of the number of offenses” in order to bind the defendant to her recognizance.103 The person who admits the defendant to bail or releases the defendant on personal recognizance is not permitted to receive anything of value in excess of the statutory fee.104


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(c) The Procedure Governing Out-of-Court Bail

The Superior Court rules limit the persons who may make a request for an out-of-court bail to “defendants, defendants’ families, defendants’ attorneys and the authorities holding the defendant in custody.”105

The oath or affirmation that must be administered to the defendant by the bailing authority must be done “in the physical presence of the affiant,” and may not be done by telephone.106 The rules also prohibit the bailing authority from delegating decision-making authority “to a police officer, jail official, bondsman or anyone else.”107

Out-of-court bail hearings usually take place at the police station where the de-fendant is taken for booking following his arrest. When conducting bail hearings at such locations, the bailing authority must “perform that function impartially and in a dignified manner as befits the performance of a judicial act.”108 No one may be admitted to bail out of court or released on his or her own recognizance unless they take an oath and affirm that they perform the requirements of their recogni-zance.109 Such oaths shall be administered “with solemnity and dignity commen-surate with the performance of a judicial function.”110 The Superior Court Rules address the role and qualifications of a surety,111 and require that the bailing au-thority “shall take all necessary steps” to ensure that both the principal and the surety “understand fully the nature of the obligation into which they seek to en-ter.”112

The bailing authority cannot be or become a creditor of the defendant or the surety.113 The bailing authority is prohibited from advising the defendant “as to any matter concerning the conduct of his case.”114 Likewise, the bailing authority cannot act if he or she has acted or expects to act as counsel, “nor shall he [or she] act as counsel in any proceeding in which he has at any time taken bail or released a person on personal recognizance.”115

§ 1.5.7 Preventative Detention

Preventative detention may be ordered in place of or in addition to bail in certain cases before the District Court, BMC, Juvenile Court, and Superior Court which involve the use, attempted use, a substantial risk of the use of physical force, or firearm offenses and in which a motion is filed by the Commonwealth at ar-raignment or the defendant’s first appearance.116

“[General Laws] c. 276, § 58A, does not give a judge discretion to release a de-fendant pending a dangerousness hearing once there is a determination that probable cause to arrest existed and that there is good cause to continue the hear-


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ing.”117 “[A]t the continuance phase the defendant does not have the right to an evidentiary hearing, but rather, his interests are adequately protected by a hear-ing at which counsel for both sides can argue and make representations to a judge who has discretion to expand the scope of the hearing.”118 General Laws c. 276, § 58A allows the court to order (1) to admit the defendant to bail or to release the defendant on personal recognizance with or without conditions of release, or (2) to order the detention of the defendant without bail for up to ninety days.

Whether the Superior Court judge is conducting a Section 58A hearing in a Su-perior Court case or on review from a District Court, BMC, or Juvenile Court case, the procedural requirements are the same. General Laws c. 276, § 58A includes the following elements:

First, the motion for relief under Section 58A must be filed by the Common-wealth upon the first appearance of the defendant which usually is arraignment.

Second, the Commonwealth must demonstrate that the defendant is charged with one or more of the specifically enumerated offenses that are subject to Sec-tion 58A. These are felonies involving the use, attempted use, or threatened use of physical force; felonies involving a substantial risk that physical force will be used against another; violations of restraining orders; and misdemeanors or felo-nies involving abuse allegedly committed while a restraining order is in effect. Firearm offenses are now also among the predicate offenses that may trigger a Section 58A hearing.119

Third, if a motion is filed and the case qualifies for a Section 58A order, the court must conduct a hearing. Any decision on the Commonwealth’s motion must conform to the terms of the statute.

Fourth, except for good cause, a continuance on motion of the person may not exceed seven days, and a continuance on motion of the attorney for the Com-monwealth may not exceed three business days. If a request for a continuance is granted, “the individual shall be detained upon a showing that there existed probable cause to arrest the person.” The defendant is not entitled to present evi-dence or cross-examine witnesses in connection with the court’s decision on a motion by the Commonwealth for a continuance, but instead is limited to making representations and argument.120

Fifth, at the hearing, the defendant has the right to counsel and “shall be afford-ed an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing and to present information. The rules concerning ad-missibility of evidence in criminal trials shall not apply to the presentation and consideration of information at the hearing.”


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Sixth, if after the hearing the court determines, “by clear and convincing evi-dence,” that “no conditions of release will reasonably assure the safety of any other person or the community said justice shall order the detention of the per-son prior to trial.” If detention of the defendant is ordered, “the judge shall (a) include written findings of fact and a written statement of the reasons for the detention. . . .” The defendant “may be detained pending completion of the hear-ing.” The ninety-day period of detention is exclusive of any delay attributable to the defendant. If an order of conditional release or detention is made under Sec-tion 58A by a judge of the District or BMC departments and it is followed by a superseding indictment, the Section 58A order does not automatically carry over to the Superior Court. Instead, there must be a new hearing.121

Seventh, in determining whether there are conditions of release (instead of de-tention) “that will reasonably assure the safety of any other individual or the community,” the court “shall on the basis of any information which he can rea-sonably obtain,” consider the factors that are set forth in G.L. c. 276, § 58 and that guide ordinary bail decisions.

Eighth, if personal recognizance will not assure the defendant’s appearance or will endanger the safety of anyone, the court is authorized to order pretrial re-lease conditioned on observance of all laws and “the least restrictive further condition, or combination of conditions” that will ensure the defendant’s ap-pearance and individual safety. The statute lists fourteen specific conditions, including conditions relating to employment, education, avoiding contact with named individuals, reporting, curfews, restrictions on the use of alcohol or drugs, mandatory treatment, and cash bail that may be imposed as part of an order of conditional release in lieu of personal recognizance. Condition fourteen is open-ended—”satisfy any other condition that is reasonably necessary to as-sure the appearance of the person as required and to assure the safety of any other person and the community.”122

Ninth, the court which makes an order under Section 58A has continuing juris-diction over the defendant: “The judicial officer may at any time amend the order to impose additional or different conditions of release.”

Tenth, when the Superior Court is asked to review a Section 58A order entered by a judge of the District, BMC, or Juvenile Court departments, the hearing should take place “within five business days of the filing of the petition.” The hearing before the Superior Court may be based on “the record below which the Commonwealth and the person may supplement.” The Superior Court judge in such cases has all the options available to the judge who heard the petition in the first instance, i.e., release on personal recognizance, cash bail, conditional re-lease, or detention. “Thus, the Commonwealth may, if it chooses, submit the transcript and record of the District Court proceedings without supplementation,


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and the Superior Court judge may consider these materials and give them what-ever weight that judge deems appropriate. The defendant has the right to present new information. The Superior Court judge has the discretion to take testimony and so long as he makes his own independent determination of the facts based on the record as presented to him, the hearing requirement is satisfied.”123

§ 1.5.8 Incompetent Defendant or Juvenile

(a) Regular Bail Hearing

The due process clause requires the court to consider several factors in determin-ing whether it may proceed with a pretrial hearing relating to bail or preventative detention when the defendant or juvenile is incompetent—the interest of the private party and the Commonwealth in the outcome of the proceeding, and the risk of a loss of liberty resulting from that due to the defendant’s or juvenile’s incompetency.124 In view of the fact that at most bail proceedings, the evidence is “undisputed, a matter of public record, or readily explained,“ the SJC con-cluded that the risk of factual error arising from a defendant’s inability fully to assist his counsel is low, and thus determined that it is not a per se violation of an incompetent defendant’s due process rights to conduct a bail hearing.125 How-ever, the SJC recognized that “each case may require some assessment by the hearing judge of whether the defendant’s mental condition prevents any mean-ingful communication with counsel, such that the court will be unable to obtain the information necessary to set a proper bail.”126

(b) Dangerousness Hearings

Although there is a risk of a loss of liberty when an incompetent defendant or juvenile participates in a regular bail hearing, the individual’s interest is greater in the outcome of a dangerousness hearing. “A judge’s finding at a bail hearing that substantial bail is reasonably necessary to assure the defendant’s or juve-nile’s appearance at trial may result in his pretrial detention if he is unable to obtain the funds to make bail, but a judge’s finding at a dangerousness hearing that ‘no conditions of release will reasonably assure the safety of any other per-son or the community’ requires his pretrial detention. Compare G.L. c. 276, § 58, with G.L. c. 276, § 58A(3).”127 However, in balancing the competing inter-ests in and risks associated with a dangerousness hearing, the SJC concluded that due process does not prohibit conducting a dangerousness hearing when the defendant or juvenile is incompetent.128 The SJC reasoned that the risk of factual error in such proceedings does not violate due process because the burden of proof is by “clear and convincing evidence,” and the rights afforded the defend-ant (“to the assistance of counsel, to present evidence and witnesses, and to


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cross-examine adverse witnesses”), “allow him to defend adequately against the allegations of dangerousness and to diminish the risk of factual mistake.”129 “While an incompetent defendant or juvenile cannot exercise these rights himself, his attorney may exercise them on his behalf.”130

Ultimately, whether a dangerousness hearing can be conducted in the case of an incompetent defendant or juvenile without violating due process will depend on the degree of impairment.131

§ 1.6 RIGHTS OF FOREIGN NATIONALS UNDER THE VIENNA CONVENTION

“The Vienna Convention [On Consular Affairs] [Convention] was ratified by the United States in 1969. Once ratified, the Vienna Convention became the ‘su-preme Law of the Land’ and binding on the States of the United States. U.S. Const. art. VI, cl. 2. The United States also signed the Optional Protocol to the Vienna Convention Concerning the Compulsory Settlement of Disputes,132 which established that the International Court of Justice (ICJ) would have juris-diction over disputes regarding compliance by the signatory States with the pro-visions of the Vienna Convention, and made its decisions binding on the parties before it.”133

Article 36 of the Convention sets out the procedure to be followed when a for-eign national is arrested or detained.134 “It provides in pertinent part that a for-eign national shall be notified ‘without delay’ of ‘his rights,’ including his right to have authorities of the detaining State notify his consulate of his detention.135 Once requested to do so, such authorities shall inform the detainee’s consulate of his detention ‘without delay.’”136 Thereafter, consular officers shall be free to communicate with and have access to the detainee and to arrange for his legal representation. Art. 36(1)(c). It also sets forth the doctrine of consular immunity: “[C]onsular officers who are nationals of or permanently resident in the receiv-ing State shall enjoy only immunity from jurisdiction and personal inviolability in respect of official acts performed in the exercise of their functions.”137

In Commonwealth v. Gautreaux,138 the defendant, a twenty-eight year old citizen of the Dominican Republic whose primary language was Spanish, was on proba-tion when he was charged with new offenses. The defendant received an order of deportation from the United States Department of Homeland Security. The de-fendant filed a motion pursuant to Mass. R. Crim. P. 30(b) to vacate his guilty plea and for a new trial. The defendant maintained (and the Commonwealth did not dispute), that at no time following his three arrests in 2003 was he notified of his right to have the consulate of the Dominican Republic notified of his arrest in


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accordance with Article 36 of the Vienna Convention on Consular Relations. The defendant’s claim was that he did not have an interpreter present at his change of plea hearing in 2003, that he did not understand the waivers of rights, but that he answered the judge’s questions about his rights and pled guilty because his at-torney assured him it would enable him to avoid deportation. However, he made no specific claim of prejudice relating to the deprivation of his rights under the Vienna Convention.

In Gautreaux, the SJC explained the background of Article 36 of the Vienna Convention and the obligation of the

detaining State [to] notify his [arrestee’s] consulate of his detention. Once requested to do so, such authori-ties shall inform the detainee’s consulate of his deten-tion without delay. Thereafter, consular officers shall be free to communicate with and have access to the detainee and to arrange for his legal representation. The Vienna Convention further provides that the rights and obligations it contains shall be exercised in conformity with the laws and regulations of the re-ceiving State, and that these laws and regulations must enable full effect to be given to the intended purposes of art. 36. In order to enable the full effect to be given to art. 36, we conclude that the notifica-tions it requires must be incorporated into the proto-cols of the State and local law enforcement agencies of Massachusetts.139

The U.S. Department of Justice has approved uniform procedures that are fol-lowed by federal law enforcement officials in accordance with Article 36 when-ever a foreign national is arrested.

(1) In every case in which a foreign national is arrest-ed the arresting officer shall inform the foreign na-tional that his consul will be advised of his arrest un-less he does not wish such notification to be given. If the foreign national does not wish to have his consul notified, the arresting officer shall also inform him that in the event there is a treaty in force between the United States and his country which requires such notification, his consul must be notified regardless of his wishes and, if such is the case, he will be advised of such notification by the U.S. Attorney.


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(2) In all cases (including those where the foreign na-tional has stated that he does not wish his consul to be notified) the local office of the Federal Bureau of Investigation or the local Marshal’s office, as the case may be, shall inform the nearest U.S. Attorney of the arrest and of the arrested person’s wishes regarding consular notification.

(3) The U.S. Attorney shall then notify the appropri-ate consul except where he has been informed that the foreign national does not desire such notification to be made. However, if there is a treaty provision in ef-fect which requires notification of consul, without ref-erence to a demand or request of the arrested national, the consul shall be notified even if the arrested person has asked that he not be notified. In such case, the U.S. Attorney shall advise the foreign national that his consul has been notified and inform him that notifica-tion was necessary because of the treaty obligation.140

Although the U.S. Supreme Court has not resolved the question whether the Vi-enna Convention confers individual rights to consular assistance, the majority view among the courts that have considered the question is that it does not. 141 Nonetheless, “it is unquestioned that an enforceable right exists for signatory States.”142

The SJC explained that by raising the claim for the first time in a postconviction proceeding, the defendant bore the burden of establishing a substantial risk of a miscarriage of justice.143 The court noted that

[i]n support of his claim, the defendant asserts that had he ‘known of his right to consular notification and assistance he would have sought that assistance and presumably, at least, have been advised of the ne-cessity of taking great care in seeking to understand his attorney, the proceedings against him and ways in which he might accomplish this (i.e. his right to an interpreter, etc.).’ He has, however, produced no evi-dence of the practices and protocols of the Domini-can Republic Consulate (consulate), or of the advice and assistance it would have provided on notification of the detention of one of its citizens. An assumption with respect to such matters is not evidence, and is woefully insufficient to demonstrate that the outcome


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of the defendant’s case—his pleading guilty to a sig-nificantly reduced set of charges with no sentence of incarceration—likely would have been different, had he been informed of his right to have his consulate so notified.

Even if we assume that the consulate would have (on such notice) provided the defendant some assistance in defending his case, the principal type of assistance envisioned by the Vienna Convention was afforded to him by virtue of the laws of the Commonwealth and the United States applicable to all persons charged with crimes. Consular officials, it is postulated, will likely have better knowledge of the detaining coun-try’s legal system and can therefore help the citizen navigate the law principally through assisting the de-tainee in retaining counsel. Foreign nationals arrested and detained in the United States are provided with the same constitutional protections as United States citizens, including, in the defendant’s circumstances, the right to the prompt appointment of an attorney to represent him throughout the proceedings. See Sanchez-Llamas v. Oregon, 548 U.S. 331, 350 (2006) (noting constitutional and statutory requirements safe-guard interests served by art. 36, including right to an attorney and right against self-incrimination). That was done in this case. Indeed, the defendant met with his counsel on several occasions, and with his assistance negotiated a most favorable plea agreement.144

Furthermore, the SJC observed that insofar as the defendant’s claim is based on the ineffectiveness of his counsel, “[t]hat remedy—a new trial based on the inef-fectiveness of counsel—is also appropriately sought in a Rule 30(b) motion.”145

Thus, in Gautreaux, although the SJC reasoned that the notifications required by art. 36 of the Vienna Convention on Consular Relations must be provided to for-eign nationals on their arrest, including the requirement that authorities of the detaining state notify the foreign national’s consulate of his or her detention,146 in any case involving a challenge to a conviction due to the failure of the police to comply with the treaty, the foreign national bears the burden of establishing that the failure to comply with Article 36 gave rise to a substantial risk of a miscarriage of justice.147


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§ 1.7 THE BOOKING PROCESS

§ 1.7.1 General Rule

Following an arrest, the police have the right to take a reasonable amount of time to process the arrested person and to collect basic biographical information be-fore the individual is either released on personal recognizance or bail, or held for court.148 Usually this is accomplished by bringing the arrested person in custody to a police station or state police barracks for “booking.” The police are not re-quired to administer Miranda warnings prior to routine booking questions.149 Such questions are within an exception to Miranda which allows the police to obtain from the defendant biographical data necessary to complete booking or pretrial services.150 This exception does not apply to questions designed to elicit an incriminating response.151 Routine booking questions can be asked even after a person asserts his right to remain silent or his right to counsel as long as they do not relate to the crime under investigation.152

The police are required to fingerprint and may photograph persons under arrest and charged with a felony level offense, i.e., a crime punishable by imprison-ment in state prison, “according to the system of the bureau of investigation and intelligence in the department of state police . . . .”153 This obligation extends to juveniles who if adults would be charged with a felony grade offense.154

The defendant’s silence during the booking procedure cannot be admitted and used as evidence against him at trial.155 “A defendant’s refusal to answer a book-ing question may be nothing more than an attempt to invoke a Miranda right, even where Miranda v. Arizona, 384 U.S. 436, 475-76 (1966), would not techni-cally exclude an answer.”156 However, statements made by the defendant during the booking process are available for use by the Commonwealth.157

§ 1.7.2 Juveniles

When the police arrest a juvenile, i.e., a person under the age of seventeen years, they have a special statutory responsibility to contact the juvenile’s parents or guardians “immediately.” General Laws c. 119, § 67 provides, in part, as follows:

[W]henever a child between seven and seventeen years of age is arrested with or without a warrant, as provided by law, the officer in charge of the police station . . . to which the child has been taken shall immediately notify . . . at least one of the child’s par-ents, or, if there is no parent, the guardian or person


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with whom it is stated that such child resides, and shall inquire into the case.

In order to comply with this statutory obligation, the police may be required to begin the booking process without the presence of an adult. “It would seem only reasonable that a booking officer, in order to satisfy the statutory responsibilities and in order to complete the administrative booking process, would have to ask a juvenile who had been arrested and taken into custody, where he or she lived.”158

As discussed in more detail in Chapter 2, Massachusetts follows a common law “interested adult” rule whereby the Commonwealth must demonstrate, in most cases, that a parent or other interested adult was present, understood the Miranda warnings, and had the opportunity to explain them to the juvenile before custo-dial interrogation in order to establish a knowing, voluntary, and intelligent waiver of the juvenile’s rights.159

§ 1.8 THE RIGHT TO PROMPT PRESENTMENT TO THE COURT

§ 1.8.1 General Rule

Once an arrest has been completed, the arresting officer or agency has a duty to bring the arrested person before the court as soon as reasonably possible.160 This common law duty is embodied in Mass. R. Crim. P. 7(a)(1), which provides as follows:

Upon the arrest of a juvenile, the arresting officer shall notify the parent or guardian of the juvenile and the probation office. A defendant who has been arrest-ed shall be brought before a court if then in session, and if not, at its next session. At that time the defend-ant shall be interviewed by the probation department; the probation department shall make a report to the court of the pertinent information reasonably neces-sary to determination of the issues of bail and indi-gency. If the judge or special magistrate finds that the defendant is indigent or indigent but able to contrib-ute and has not knowingly waived the right to counsel under the procedures established in Supreme Judicial Court Rule 3:10, the Committee for Public Counsel Services shall be assigned to provide representation


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for the defendant. The judge or special magistrate shall then arraign the defendant or shall set a time for ar-raignment. The judge or special magistrate shall deter-mine the conditions of the defendant’s release, if any.

“This requirement [of prompt presentment] is primarily intended to prevent both unlawful detentions and unlawfully obtained statements.”161

The SJC has held that when a person is arrested at 4:00 p.m. and not brought to court for arraignment until the following mo rning at 11:30 a.m. there is no viola-tion of the prompt presentment requirement.162

§ 1.8.2 “Safe Harbor” Rule

In Commonwealth v. Rosario, 422 Mass. 48 (1996), the SJC reviewed the case law dealing with delays in the defendant’s right to prompt presentment to the court following arrest. The court expressed concern over a practice followed by the police in which arrested persons who had been booked were not taken to the court even when court was open and in session until after the police had an op-portunity to interrogate the defendant without the assistance of counsel.163 This led the SJC to abandon the earlier standard it had followed whereby the reasona-bleness of any delay in the arraignment would be determined on a case by case basis. “[T]rial court judges have different views on the reasonableness of a delay in arraignment knowingly undertaken in order to question a defendant. The rea-sonableness standard involves a measure of uncertainty and the likelihood of uneven application in practice.”164

After considering the law from other jurisdictions,165 especially the rule in the federal system known as the McNabb-Mallory rule,166 the SJC established a bright-line rule that provides that if the police take a statement from the defend-ant within six hours of the arrest that is otherwise admissible, i.e., it was taken after a valid waiver of Miranda rights and is voluntary, it will not be excluded on grounds that the defendant was not brought to court as soon as possible as re-quired by Mass. R. Crim. P. 7(a)(1) even if the court was in session at the time the statement was taken.167 In particular, the rule adopted by the SJC provides as follows:

An otherwise admissible statement is not to be ex-cluded on the ground of unreasonable delay in ar-raignment, if the statement is made within six hours of the arrest (day or night), or if (at any time) the de-fendant made an informed and voluntary written or


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recorded waiver of his right to be arraigned without unreasonable delay.

This rule will (a) largely eliminate debate over the reasonableness of any delay, (b) bar admission of a statement made after the six-hour period unless there is a waiver of prompt arraignment, and (c) apply without regard to when either the court is in session or the arrest made.

We will depend on the requirements of Miranda warnings, voluntariness, and the requirements of G.L. c. 276, 33A, to protect against unfair or coercive questioning during the six hours after arrest. The six-hour period itself will place an outside limit on any incentive to question an unwilling arrestee. If, when arrested, the person is incapacitated because of a self-induced disability, such as by the consumption of drugs, the six-hour period should commence only when the disability terminates.

Commonwealth v. Rosario, 422 Mass. 48 (1996).168

Thus, under the Rosario rule, even voluntary confessions are inadmissible if obtained after the six-hour period unless the defendant waives his right to prompt presentment or there are reasons for the delay beyond the control of the police. Correspondingly, a voluntary confession is not rendered inadmissible simply because a court was open at the time the police interrogated the defend-ant.169 The rule is not triggered until the defendant is arrested even though he or she is at the police station undergoing questioning for a period of time before his or her arrest.170

§ 1.8.3 What Triggers the “Safe Harbor” Rule

The six-hour safe harbor rule does not apply until a defendant is arrested.171 “An arrest occurs where there is “[1] ‘an actual or constructive seizure or detention of the person [2] performed with the intention to effect an arrest and [3] so under-stood by the person detained.’”172 “[T]he initial determination of custody de-pends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being ques-tioned.”173 Thus, the safe harbor period does not commence when the defendant is in the police station for more than six hours answering police questions and is told he or she was free to leave, but volunteers to continue answering questions.174


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The safe harbor rule applies “only to persons arrested in Massachusetts who could be arraigned in Massachusetts; it was not intended to apply to persons arrested in other States on warrants issued in Massachusetts, whose arraignment would need to await their rendition to Massachusetts.”175

§ 1.8.4 Tolling the Running of the “Safe Harbor” Rule

In Commonwealth v. Rosario, the SJC acknowledged that in exceptional circum-stances the time within which questioning must occur (unless the defendant waives the safe harbor rule) may be tolled. “[I]f for reasons not attributable to the police, such as a natural disaster or emergency, interrogation during the six-hour period is not possible or must be suspended, the six-hour period should be tolled appropriately. It is most important to recognize that, but for the exceptions just noted, the period of safe harbor questioning commences on arrest and con-cludes six hours later without regard to when court is in session.”176

One illustration of exceptional circumstances that tolled the safe harbor rule was the arrest of a person late on a Friday night following an overseas flight in which the police allowed the defendant to sleep and delayed the interrogation until the following morning.177

§ 1.8.5 Waiver of the “Safe Harbor” Rule

The defendant may make a knowing, intelligent, and voluntary waiver of the safe harbor rule.178 A waiver of the safe harbor rule is separate and distinct from a waiver of Miranda, and a waiver of Miranda does not necessarily lead to the conclusion that the defendant waived his or her “safe harbor” rights.179

In subsequent cases, courts have acknowledged the validity of waivers of the defendant’s safe harbor rights.180 However, just as with Miranda warnings, po-lice must inform suspects of the safe harbor rights “in a language, and in a man-ner, an unlettered and unlearned defendant can understand.”181

§ 1.9 THE RIGHT TO USE THE TELEPHONE

General Laws c. 276, § 33A provides as follows:

The police official in charge of the station or other place of detention having a telephone wherein a per-son is held in custody, shall permit the use of the tel-ephone, at the expense of the arrested person, for the


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purpose of allowing the arrested person to communi-cate with his family or friends, or to arrange for re-lease on bail, or to engage the services of an attorney. Any such person shall be informed forthwith upon his arrival at such station or place of detention, of his right to so use the telephone, and such use shall be permitted within one hour thereafter.

The statutory right to use the telephone arises when an individual has been “formally arrested.”182 Thus, even though a person is at the police station for an interview and in custody for purposes of the Miranda doctrine, but not under arrest, Section 33A does not require the police to inform the person of the right to use a telephone until a formal arrest occurs.183

“There is no requirement that a defendant be permitted a private telephone call, and a defendant does not have an expectation of privacy in making such a tele-phone call.”184 Thus, the police who are responsible for the defendant safety and security while under arrest in their custody, have the right to require the defend-ant to use a police line or phone and to record the number dialed by the defend-ant,185 and to require the defendant to exercise his or her right to use the telephone in their presence.186

When the evidence indicates that law enforcement officers intentionally with-held the telephone right in violation of Section 33A, the appropriate remedy is suppression of any evidence obtained as a result of the violation.187 The defendant bears the burden of establishing an intentional violation of the statute.188

An intentional violation of G.L. c. 276, § 33A does not require the dismissal of the criminal charges.189

§ 1.10 THE RIGHT TO AN INDEPENDENT MEDICAL EXAMINATION

A person who is held in custody at a police station or other place of detention and charged with operating a motor vehicle while under the influence of alcohol, has a statutory right “at his [or her] request and at his [or her] expense to be ex-amined immediately by a physician selected by him [or her]. The police official in charge of such station or place of detention, or his [or her] designee, shall inform him [or her] of such right immediately upon being booked . . . .”190 The law also requires the police to either give the person a copy of the law unless it is posted in a conspicuous place where the person in custody has access. The statu-tory right is satisfied by notice to the person in custody. “[O]nce the police have


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fulfilled their duty to inform a defendant of his right under § 5A, they have no obligation to help him in exercising that right.”191 In particular, the SJC has held that the police are “not, for example, required to transport him to the hospital for administration of a blood alcohol test or to arrange for a physician to travel to the police station.”192 However, the law does require the police “to afford the de-fendant a ‘reasonable opportunity’ to exercise his right to an independent medical examination,” and forbids the police “from impeding his exercise of that right.”193 This does not mean that once the defendant has been booked, released on personal recognizance, or admitted to bail, he or she has the unfettered right to walk out the door. “[N]othing in § 5A requires the police to give [the defendant] the keys to his vehicle and allow him to drive off if he is not in a fit condition to do so.”194

In Commonwealth v. King,195 the SJC recognized the “intersection” between the right to a prompt bail hearing196 and the right to an independent medical exami-nation because unless a person who has been arrested and is in police custody is able to secure a prompt bail hearing, he or she will not be able to travel to a hos-pital or medical facility to obtain an independent medical exam (usually consisting of a blood test) in a timely manner.197

In the King case, the record established that the clerk assigned to conduct out of court bail hearings was following a policy in which he or she refused to hold a bail hearing for certain defendants promptly on being notified of the defendant’s arrest.

He declined to come to the barracks to conduct a bail hearing according to a “policy” of his own, pursuant to which he asked the police whether a detainee had submitted to a breathalyzer test and, if not, what was the officer’s opinion of the detainee’s state of intoxi-cation. He would then instruct the police to hold until morning those detainees who had refused to take the breathalyzer test. In an affidavit submitted by the clerk-magistrate to the motion judge, he stated that his reasons for ordering such detainees to be held un-til morning were the “safety of the public as well as . . . avoid[ance of] personal liability for actions of the defendant post-release.”198

The SJC found this policy was unlawful. The court explained that the bail law, G.L. c. 276, § 58, does not allow judges, clerks, or bail commissioners to use public safety concerns as a proxy for the determination of whether to admit the defendant to bail. “Rather, the only permissible consideration is whether the defendant is reasonably likely to reappear before the court.”199 The court also


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held that the defendant’s intoxication at the time the clerk is notified is not a valid reason to refuse to conduct a bail hearing.

Nor can the clerk-magistrate’s actions be justified on the basis of Rule 28 of the Rules Governing Persons Authorized to Take Bail (1998), which requires that persons admitted to bail understand the nature of bail and any conditions of release. Where an individual is so intoxicated that he cannot be expected to under-stand the nature of the bail proceedings, intoxication is a “justifiable basis for extending the reasonable time delay” before which the bail hearing must be held. There has been no allegation in this case that the clerk-magistrate’s delay in conducting the bail hear-ing was based on his belief that the defendant could not understand the proceedings, and the evidence does not suggest that the defendant was unable to do so.200

Based on the violation of the defendant’s right to a prompt bail hearing, the SJC reasoned that although the police had not violated the defendant’s rights, those rights, as provided for in G.L. c. 263, § 5A, were nonetheless violated. In order to assist police officers and clerks in carrying out their responsibilities in the future, the court offered these guidelines:

For the right to an independent examination to mean anything, it must include the opportunity to have the examination conducted as promptly as possible. The opportunity to collect potentially exculpatory medical evidence is destroyed if the defendant is made to wait seven hours before obtaining it. Therefore, because a defendant ordinarily must be released on bail before he is able to obtain an independent medical examina-tion, the bail hearing must be conducted promptly if § 5A is to have any force. . . . [F]or G.L. c. 263, § 5A, to have its intended force and effect, it must be read as requiring the police to telephone a bail commis-sioner in order to facilitate a defendant’s release in a timely fashion. This requirement, addressed specifi-cally to police conduct, would mean nothing if it were not assumed that the bail commissioner would then hold a bail hearing and release the defendant in a timely fashion.


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In a case in which the defendant has asserted his § 5A right, it will not do to define timeliness by the six-hour guideline for promptness applicable to bail hear-ings in general. Because of the fleeting nature of the evidence that might be obtained as a result of the medical examination, the bail hearing in such a case must be held as promptly as possible. Therefore, when the bail commissioner is notified that an indi-vidual has been arrested and wishes to exercise his right to an independent medical examination under § 5A, the bail commissioner must respond as prompt-ly as he is able. The clerk-magistrate’s delay of more than seven hours in this case does not meet this standard of timeliness.

In cases where the defendant has not asserted his § 5A right, the general rule of promptness, loosely delimited by the six-hour guideline, still holds. Therefore, to ensure that the clerk-magistrate re-sponds as promptly as possible, it is crucial that he be aware when a defendant has asserted the § 5A right. When it is the police who notify the clerk-magistrate that an individual who has asserted the right has been arrested, the police must also inform the magistrate that the defendant wishes to exercise the right. The police may, of course, leave it to the defendant to call the clerk-magistrate after informing the defendant of this possibility and permitting him to use the tele-phone. In that case, it will be up to the defendant to tell the clerk-magistrate that he wishes to exercise his § 5A right. In the instant case, where the trooper called the clerk-magistrate, he should have informed him that the defendant had expressed a desire to ob-tain an independent medical examination. If the ar-rested person expresses a desire for an independent medical examination after an officer has called the bail commissioner, he must call again or allow the ar-rested person to do so. To avoid this complication, it would be better to make the § 5A statement before the clerk-magistrate is called.201

In fashioning a remedy, the court followed an empirical approach as it so often has in other contexts. “Where a defendant’s right under § 5A has been violated,


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the violation itself is prima facie evidence that the defendant has been prejudiced in that his opportunity to obtain and present potentially exculpatory evidence has been restricted or destroyed. This presumption of prejudice, however, may be overcome by overwhelming evidence of intoxication,202 as discussed above, or by other evidence indicating that the omission was not prejudicial in the circum-stances.”203

There is at least one trial court decision which addresses the intersection be-tween the defendant’s statutory right to an independent medical examination and the discretion enjoyed by the police to hold a severely intoxicated person in pro-tective custody pursuant to G.L. c. 111B, § 8, and which concludes that a per-son’s right to an independent examination is not violated if the person is held in protective custody.204

This statutory right is not applicable in cases involving operation of a motor ve-hicle while under the influence of drugs or in other cases involving operation of a motor vehicle while under the influence of alcohol.205

NOTES 1 See generally George C. Thomas III and Richard A. Leo, Confessions of

Guilt (Oxford Univ. Press 2012) (hereafter “Confessions of Guilt”); Leonard W. Levy, Origins of the Fifth Amendment (1968); Lawrence Herman, “The Unexplored Relationship Between The Privilege Against Self-Incrimination and the Involuntary Confession Rule (Part One),” 53 Ohio St. L.J. 101 (1992); Laurence A. Benner, “Requiem for Miranda: The Rhenquist Court’s Voluntariness Doctrine in Historical Perspective,” 67 Wash. U. L.Q. 59 (1989).

2 384 U.S. 436 (1966). 3 Commonwealth v. Ewing, 67 Mass. App. Ct. 531, 544 (2006), citing Com-

monwealth v. Kenney, 12 Met. 235, 237–38 (1847). 4 Commonwealth v. Nickerson, 386 Mass. 54, 59 n.5 (1982) (court holds that

even though federal law permits a defendant to be impeached by his prearrest silence, in the circumstances of this case under the Massachusetts common law of evidence the judge erred in instructing the jury that they could consid-er that the defendant did not come forward to identify the person who at trial he said did the stabbing because it improperly suggested the defendant had a duty to speak). See also Commonwealth v. Cob, 374 Mass. 514, 521 (1978) (If it is fundamentally unfair and a deprivation of due process to allow an ar-rested person’s silence to be used to impeach an explanation subsequently of-fered at trial, id. at 618, then, a fortiori, it is a violation of due process to allow

NOTES POLICE INTERROGATIONS AND CONFESSIONS

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such silence, or the invocation of the right to remain silent, to be used as evi-dence of guilt.).

5 See Attorney General v. Colleton, 387 Mass. 790, 796 n.6 (1982). 6 See Commonwealth v. Conkey, 430 Mass. 139, 142 (1999), citing Opinion of

the Justices, 412 Mass. 1201, 1211, under the Fifth Amendment. See South Dakota v. Neville, 459 U.S. 553, 563–64 (1983).

7 This topic is covered in detail in Chapter 2. 8 Oregon v. Mathiason, 429 U.S. 492, 495 (1977). 9 See Miranda v. Arizona, 384 U.S. 436, 478 (1966); Commonwealth v. Becla,

74 Mass. App. Ct. 142, 145 (2009). 10 Miranda, supra, 384 U.S. at 444, quoted by Commonwealth v. Clarke, 461

Mass. 336, 342 n.4. (2012). 11 Commonwealth v. Hoyt, 461 Mass. 143, 152 (2011) (citations omitted). 12 Connecticut v. Barrett, 479 U.S. 523, 528 (1987), quoting Miranda, 384 U.S.

at 469. 13 See Commonwealth v. Sneed, 440 Mass. 216, 220–22 (2003). 14 See Commonwealth v. Murphy, 442 Mass. 485, 492–93 (2004). 15 See Oregon v. Mathiason, 429 U.S. at 495; Commonwealth v. Larkin, 429

Mass. 426, 432–33 (1999). 16 Berkemer v. McCarty, 468 U.S. 420, 440 (1984); Commonwealth v. Ka, 70

Mass. App. Ct. 137, 140 (2007) (including the question whether the driver was drinking).

17 See Vanhouton v. Commonwealth, 424 Mass. 327, 331 (1997) (rescript); Commonwealth v. Cameron, 44 Mass. App. Ct. 912, 914 (1998).

18 See Commonwealth v. DePeiza, 449 Mass. 367, 375–76 (2007); Common-wealth v. Gordon, 47 Mass. App. Ct. 825, 827 (1999). See also Common-wealth v. Ira I., 439 Mass. 805 (2003) (assistant school principal was not act-ing as an agent of the police at the time he questioned a student and was not therefore required to administer Miranda warnings).

19 See Commonwealth v. Snyder, 413 Mass. 521, 530–31 (1992); Common-wealth v. Miller, 68 Mass. App. Ct. 835, 844 (2007). See also Commonwealth v. Snyder, 413 Mass. at 532 n.9 (“Perhaps as a matter of policy, however, where incriminating contraband has already been seized and where, pursuant to established practice, the evidence is to be turned over to the police, a school official about to question a student should warn that any statement the student makes could be used as evidence against the student.”).

20 See Smith v. Illinois, 469 U.S. 91, 98 (1984) (“Invocation and waiver are en-tirely distinct inquiries, and the two must not be blurred by merging them to-gether.”). See also United States v. Christian, 571 F.2d 64, 68 (1st Cir. 1978);

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Commonwealth v. Lopes, 455 Mass. 147, 166–67 (2009); Commonwealth v. Dustin, 373 Mass. 612, 615 (1977), cert. denied, 435 U.S. 943 (1978).

21 Commonwealth v. Clarke, 461 Mass. 336, 342 (2012), quoting Smith v. Illi-nois, 469 U.S. 91, 98 (1984). It is an open question whether the distinction remains after Berghuis v. Thompkins, 130 S. Ct. 2250 (2010). One view of Berghuis is that a person who hears the Miranda warnings is presumed to un-derstand them and any subsequent answers to police questions are the prod-uct of a valid waiver unless the individual makes it unmistakably clear that he wishes to remain silent or to have access to an attorney. See George C. Thomas III and Richard A. Leo, Confessions of Guilt, 180–81 (Oxford Univ. Press 2012).

22 Miranda, 384 U.S. at 476, 478–79. 23 See Commonwealth v. Hoyt, 461 Mass. 143, 153 (2011), quoting Common-

wealth v. Edwards, 420 Mass. 666, 670 (1995). 24 Commonwealth v. Hoyt, supra, 461 Mass. at 153, quoting North Carolina v.

Butler, 441 U.S. 369, 373 (1979) (emphasis added). See Miranda, 386 U.S. at 475, 476. “The warnings guarantee that the accused knows what his rights are. But Miranda requires the interrogating officer to go further and make sure that the accused, knowing his rights, voluntarily relinquishes them.” United States v. Christian, 571 F.2d 64, 68 (1st Cir. 1978).

25 Commonwealth v. Hilton, 443 Mass. 597, 605 (2005) (quotation omitted). 26 Commonwealth v. Siny Van Tran, 460 Mass. 535, 559 (2011) (citation and

quotation omitted). 27 Miranda, 384 U.S. at 475. 28 See Commonwealth v. Hoyt, 461 Mass. 143, 152 (2011). 29 See United States v. Porter, 764 F.2d 1, 7 (1st Cir.1985), rehearing denied,

776 F.2d 370 (1st Cir. 1985), cert. denied, 481 U.S. 1048 (1987), cited with approval in Commonwealth v. DiMuro, 28 Mass. App. Ct. 223, 227 (1990) (Miranda requires the officer to go further than just asking accused if he un-derstand his rights; the officer must make sure that the accused, knowing his rights, voluntarily relinquishes them).

30 See Commonwealth v. Magee, 423 Mass. 381, 387 n.8 (1996). 31 Under Massachusetts law, ambiguity about whether a person wishes to waive

his or her rights and speak to the police or not, at the outset of a custodial in-terrogation, is incompatible with a valid waiver of Miranda rights. See Com-monwealth v. Clarke, supra, 461 Mass. at 351.Massachusetts law and federal law are in agreement that once a person in police custody has knowingly and voluntarily waived his or her Miranda rights, the police may continue to question the individual until the person clearly requests an attorney. See


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Commonwealth v. Santos, 463 Mass. 273, __ (2012), quoting Davis v. United States, 512 U.S. 452, 461 (1994).

32 Commonwealth v. Clarke, supra, 461 Mass. at 343, quoting Michigan v. Mos-ley, 423 U.S. 96, 104 (1975). See Commonwealth v. Brant, 380 Mass. 876, 882, cert. denied, 449 U.S. 1004 (1980).

33 Commonwealth v. Clarke, supra, 461 Mass. at 343, quoting Commonwealth v. Bradshaw, 385 Mass. 244, 265 (1982).

34 Commonwealth v. Clarke, 461 Mass. at 343, citing Harris v. New York, 401 U.S. 222, 224–26 (1971). See also Commonwealth v. Woodbine, 461 Mass. 720, 729–30 (2012) (police scrupulously honored defendant’s rights when af-ter he asked the interview to end the police waited seventeen hours before ad-vising the defendant of his Miranda rights again and resuming the interview).

35 See Berghius v. Thompkins, 130 S. Ct. 2250, 2260, 2263 (2010). 36 Clarke, 461 Mass. at 337. “We have never placed a ‘burden of clarity’ on

individuals in such circumstances, and we decline to do so today. Our hold-ing is not a departure from our prior jurisprudence and, unlike the Court in Thompkins, does not establish a new standard for prewaiver invocations of the right to silence. Instead, we continue to adhere to the standard set forth in Mosley: The suspect’s right to cut off questioning must be scrupulously hon-ored. . . . As always, to avoid the difficulties inherent in the application of a fact-specific standard, ‘[i]f a suspect makes an ambiguous statement or en-gages in conduct that creates uncertainty about his intent to invoke his right, police can simply ask for clarification.’ Thomkins (Sotomayor, J., dissenting).” Clarke, 461 Mass. at 351 (quotations omitted).

37 Clarke, 461 Mass. at 467–68. 38 See Commonwealth v. Edwards, 420 Mass. 666, 671 (1995). 39 See Commonwealth v. Hosey, 368 Mass. 571, 578 (1975). 40 Commonwealth v. Hoyt, 461 Mass. 143, 149 (2011), citing Edwards v. Arizo-

na, 451 U.S. 477, 484–485 (1981). 41 Commonwealth v. Hoyt, 461 Mass. 143 (2011). 42 Hoyt, supra, 461 Mass. at 150, quoting Davis v. United States, 512 U.S. 452,

461 (1994). 43 Hoyt, supra, 461 Mass. at 150, quoting Davis v. United States, 512 U.S. at 459. 44 Hoyt, supra, 461 Mass. at 151 (“Here, because the officers initiated further

questioning of the defendant after his unambiguous invocation of the right to counsel, the defendant’s subsequent statements must be suppressed.”). The rest of the interview was as follows:

Eason: “Okay. If you want to speak to us later, that’s fine as well. I mean but we’re not, you know, we don’t get you an attorney, we can let you use a phone book and stuff like that, but it’s up to you.”


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Defendant: “I’ll just talk to you now.” Eason: “Okay.”

Strout: “Roy, I just want to make it clear. You want to talk to us now, and you don’t want an attorney?

Defendant: “Uh, I’d have to wait here until an attorney came right?” Strout: “You can . . . we can let you use the phone and the phone book to call

an attorney. I can’t tell you if they’re gonna come here, I don’t know what they would do.”

Defendant: “I’ll just talk to you without an attorney.” 45 Hoyt, supra, 461 Mass. at 151. 46 462 Mass. 246 (2012). 47 Id. at 249–50. 48 In Baye, the SJC noted that whether the defendant was in police custody at

the time of his statements was a close question which it did not have to re-solve. Id. at 252–53.

49 Commonwealth v. Clarke, 461 Mass. 336, 346 n.8 (2012), quoting Common-wealth v. Ghee, 414 Mass. 313, 318 n.5 (1993). In Clarke, the SJC added that “[i]n determining whether the art. 12 privilege against self-incrimination is more protective in this regard than that of the Fifth Amendment, ‘we look to the text, history, and our prior interpretations of art. 12, as well as the juris-prudence existing in the Commonwealth before [Thompkins] was decided.’” Id. at 346, quoting Commonwealth v. Mavredakis, 430 Mass. 848, 858 (2000).

50 461 Mass. 336 (2012). 51 130 S. Ct. 2250 (2010). 52 Clarke, 461 Mass. at 351 n.12. “Berghuis did more to undermine Miranda’s

wide waiver rule than make plain that no express waiver is required.” Confes-sions of Guilt, supra note 1, at 180.

53 See Commonwealth v. Hoyt, 461 Mass. 43, 149 (2011), citing Commonwealth v. Day, 387 Mass. 915, 920–21 (1983).

54 See Commonwealth v. DiGiambattista, 442 Mass. 423, 424–25 (2004). 55 See Commonwealth v. McNulty, 458 Mass. 305, 317–18 (2010), where the

SJC held that, “[w]hile the police are not required to deliver verbatim to a de-fendant the message given by his attorney, an attorney’s particular message—not to talk to the police—fell within the duty to inform because it bore direct-ly on the right to counsel” (citations and quotations omitted).

56 G.L. c. 263, § 1. However, the Miranda doctrine does not require that a de-fendant be given the details surrounding the crime he has allegedly commit-ted before he can be deemed to make an intelligent waiver of his rights. “Our cases do not require that a defendant must have information regarding the


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crime about which he will be questioned or about police suspicions before making a valid waiver of his Miranda rights.” Commonwealth v. Raymond, 424 Mass. 382, 393 (1997) (court found unpersuasive defendant’s argument that he did not make a knowing and intelligent waiver of his rights because the police had not informed him that he was a central suspect of the crime or that [a codefendant] had confessed so that he did not understand the implications of the waiver), citing Commonwealth v. Amazeen, 375 Mass. 73, 78 (1978).

57 Rothgery v. Gillespie County, Tex., 554 U.S. 191, 194 (2008). 58 See Commonwealth v. Beland, 436 Mass. 273, 285–86 (2002); Commonwealth

v. Jones, 403 Mass. 279, 286 (1988). 59 Commonwealth v. Stirk, 392 Mass. 909, 913 (1984) 60 See, e.g., Commonwealth v. Mencobini, 28 Mass. App. Ct. 504 (1990), and

cases cited. 61 In Mavredakis, the SJC declined to follow the U.S. Supreme Court in Moran

v. Burbine, 475 U.S. 412 (1986), which held that the police have no duty to inform a suspect in custody that his or her attorney is trying to contact her. See also Commonwealth v. McKenna, 355 Mass. 313, 324–25 (1969) (de-fendant’s waiver of rights was invalid where the defendant’s attorney was at the police station and the police failed to advise the defendant of his coun-sel’s immediate availability). “In essence, a suspect cannot make an informed waiver of his Miranda rights if he is kept ignorant by police of an attorney’s attempts to provide him with assistance and advice. If the waiver is not in-formed, it is not valid.” Commonwealth v. Collins, 440 Mass. 475, 479 (2003).

62 Commonwealth v. Vao Sok, 435 Mass. 743, 753 (2002). 63 In Commonwealth v. Sherman, 389 Mass. 287, 295–96 (1983), the SJC held

that where (1) an attorney represents a defendant as to one charge and learns that the police are planning to inter-rogate the defendant on a second and unrelated charge as to which the attorney does not represent the defendant; (2) the attorney informs the police of the attorney’s desire to be present at the interrogation of the defendant; (3) the police, nevertheless, within a few hours after the attorney’s request inform the de-fendant of his Miranda rights but do not inform him of the attorney’s request to be present; and, (4) the police then interrogate the defendant, who makes a statement inculpating himself as to the second and unrelated charge, we conclude that the statement of the defendant must be suppressed because, under principles of construction of Miranda, the failure of


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the police to inform the defendant of the attorney’s request vitiated the defendant’s waiver of his Miranda rights.

64 Mavredakis, 430 Mass. at 861, quoting State v. Stoddard, 206 Conn. 157, 169, 537 A.2d 446 (1988).

65 458 Mass. 305, 316–17 (2010). 66 458 Mass. at 317, quoting Commonwealth v. Vao Sok, 435 Mass. 743, 752

(2002). 67 See McNulty, supra, 458 Mass. at 317. 68 See Commonwealth v. Vao Sok, 435 Mass. 743, 753 (2002) (it was a violation

of the Massachusetts rule for the police officer to contact the prosecutor about the telephone call from defendant’s counsel before informing the de-fendant). In Commonwealth v. McNulty, 458 Mass. 305 (2002), two justices expressed reservations about the implication of the majority opinion that the police have a constitutional obligation to communicate legal advice from an attorney to a defendant. See id. 458 Mass. at 331 (Cordy, J., concurring); 458 Mass. at 331–32. (Gants, J., dissenting). In his dissenting opinion, Justice Gants, who believes the constitutional obligation of the police extends only to informing the defendant that an attorney is trying to contact him, observed that

[t]he duty to inform was meant to be a straightfor-ward “bright-line rule,” Mavredakis, supra at 860, re-quiring only that the police inform a suspect of an at-torney’s availability, but its bright line will be dulled if it includes a duty to inform a suspect of the attor-ney’s legal advice. Once we open that door, we can-not be assured that the legal advice an attorney will ask to be forwarded will always be as simple as “don’t speak to the police.” It potentially could in-clude advice as to what the client should do or say if he intended to disregard the attorney’s advice to re-main silent, or what subjects the client should not discuss. Do the police owe a duty to inform a suspect of all legal advice provided by the attorney? What if the police incorrectly relayed some of that legal ad-vice? We have not before needed to address these questions because of the limited scope of the duty to inform; we will soon need to now that we have ex-panded that scope to include a duty to communicate legal advice.


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The majority of the court addressed this concern by suggesting that only

communications from counsel relating to the defendant’s Miranda warnings must be conveyed to him by the police. 458 Mass. at 316 n.12.

69 See Commonwealth v. McNulty, 458 Mass. 305, 315–16 (2010). 70 Querubin v. Commonwealth, 440 Mass. 108, 113 (2003). See also Common-

wealth v. Stuyvesant Ins. Co., 366 Mass. 611, 614 (1975). Accord, Rule 2 of the Rules Governing Persons Authorized to Take Bail (2005).

71 Querubin v. Commonwealth, 440 Mass. 108, 112–13 & 113 n.4 (2003), and cases cited.

72 The amount of bail is not excessive merely because the defendant is unable to post it. Rather, the question is whether the amount of the bail is reasonably necessary to ensure the defendant’s appearance at trial. See Leo v. Common-wealth, 442 Mass. 1025, 1026 (2004) (rescript), and cases cited.

73 See Commonwealth v. Baker, 343 Mass. 162, 168 (1961) (SJC orders rehear-ing of bail because trial judge failed to make clear whether denial was based on exercise of discretion or belief that there was no discretion to admit the defendant to bail). Accord, Mendonza v. Commonwealth, 423 Mass. 771, 782 n.4 (1996).

74 See generally Querubin v. Commonwealth, 440 Mass. at 112–20. The SJC has considered the question of whether a bail hearing may be conducted when the defendant is not competent. In Commonwealth v. Torres, 441 Mass. 499 (2004), the SJC held that it was not a violation of due process for Supe-rior Court to conduct a bail hearing involving a defendant who had been found incompetent to stand trial. The SJC observed that the Commonwealth has a substantial interest in securing presence of defendant at trial, inquiry at bail hearing was of a limited and fact-specific nature, counsel would be able to ascertain and present information regarding bail factors with little difficul-ty, and the defendant was able to understand general nature of court proceed-ings and would take advice of his counsel as a person in a position of authori-ty. If the degree of the defendant’s impairment or limitations renders the de-fendant unable to assist his counsel at a bail hearing, it may not be possible to proceed with a bail hearing, in which case the Commonwealth would be left with the remedies set forth in G.L. c. 123.

75 Commonwealth v. Puleio, 433 Mass. 39, 40–42 & n.4 (2000). 76 Id. at 42. 77 G.L. c. 276, § 58, para. 1. 78 G.L. c. 276, § 58, para. 3. The standard is probable cause to arrest which may

be met by proof of a complaint issued in accordance with court rules or, al-ternatively, by means of a police report. Commonwealth v. Lester L., 445 Mass. 250, 261 (2005).


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79 G.L. c. 276, § 58, para. 3, 4. In a case that comes before a Superior Court

judge under G.L. c. 276, § 58 for a so-called bail review, the amount of the bail set by the lower court may be replaced by personal recognizance, lowered or increased.

80 Commonwealth v. Finelli, 422 Mass. 860, 863 (1996) (quotation omitted). Sometimes, a juvenile case will come before the court in which a cash bail was imposed but the order reads “mother only,” or “Dept. Children and Families only.” These conditions are not authorized by G.L. c. 276, § 58, and may vio-late the spirit of the bail law. See R. Ireland, Juvenile Law § 1.22 (44 Mass. Prac. 2006).

81 Querubin v. Commonwealth, 440 Mass. 108, 111 (2004). See also Serna v. Commonwealth, 437 Mass. 1003 (2002) (rescript) (explaining that G.L. c. 276, § 57 applies to cases after indictment or waiver of indictment be-fore the Superior Court while Section 58 applies to cases before the District Court). In Querubin, the SJC observed that Rule 2 of the Rules Governing Persons Authorized to Take Bail (1996) contains a list of the factors that must be considered by a Superior Court judge in deciding whether to admit a person to bail under Section 57:

The purpose of setting terms for any pretrial release is to assure the presence at court of the person re-leased. Any person charged with an offense, other than an offense punishable by death [sic], is required by law to be released on his personal recognizance pending trial unless the person setting the terms of re-lease determines, in the exercise of his discretion, that such a release will not reasonably assure the appear-ance of the person as required. In making a determi-nation as to what form of release to set, the following factors shall be considered: (1) the nature and cir-cumstances of the offense charged, (2) the accused’s family ties, (3) his financial resources, (4) his length of residence in the community, (5) his character and mental condition, (6) his record of convictions and appearances at court proceedings or of any previous flight to avoid prosecution or (7) any failure to appear at any court proceedings.

See Querubin, 440 Mass. at 116 n.6. 82 See Commonwealth v. Torres, 441 Mass. 499, 504 (2004) (listing factors). In

Querubin, the SJC reviewed a decision by a Superior Court judge to hold the defendant without bail in a drug trafficking case. At the bail hearing the gov-ernment argued that “given the strength of the case against him, the seriousness


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of the charges, the defendant’s initial flight from his apartment building, his subsequent effort to flee the country, and his lengthy default, the judge could not be reasonably assured that the defendant would appear to face the charge against him if bail were set.” Querubin, 440 Mass. at 538. The SJC upheld the trial judge’s decision to order the defendant held without bail on grounds that Section 57 codified the “inherent authority of a Superior Court judge, under common law, to deny bail where, as here, the defendant poses a serious flight risk.” Id. at 113. See Leo v. Commonwealth, 442 Mass. 1025 (2004) (rescript). (SJC assumes that evidence that the defendant is at risk for suicide is evidence that the defendant is a flight risk).

83 In Querubin, the SJC noted that “[t]he language in G.L. c. 276, § 57, that permits a judge in the Superior Court to consider dangerousness authorizes preventative detention and is a legislative enhancement of the common-law powers of a judge to set bail. The issue of dangerousness, as noted, is not in-volved in this appeal.” Querubin, 440 Mass. at 113 n.5. It is unclear whether an order of detention based on dangerousness could be made under Sec-tion 57 without complying with the requirements of G.L. c. 276, § 58A. See Aime v. Commonwealth, 414 Mass. 667, 682 (1993) (declaring unconstitu-tional the 1992 amendments to G.L. c. 276, § 58 which created a broad pre-ventive detention scheme that created a significant potential for abuse). The SJC has noted that the revocation of bail under Section 58, para. third is not a substitute for preventative detention under Section 58A. See Paquette v. Commonwealth, 440 Mass. 121, 130 (2003).

84 Querubin, 440 Mass. at 118. 85 Querubin, 440 Mass. at 118. See also Mass. G. Evid. § 1103(c)(3) (2012 ed.). 86 See Querubin, 440 Mass. at 119–20. 87 See Matter of Troy, 364 Mass. 15, 39 (1973). 88 Querubin, 440 Mass. at 120 n.10. 89 Commonwealth v. Dodge, 428 Mass. 860, 865 (1999). 90 Commonwealth v. Dodge, 428 Mass. at 865–66. See also Commonwealth v.

Raposo, 453 Mass. 739, 740 (2009) (explaining that G.L. c. 265, § 47, which requires the use of a global positioning system device in certain cases as a condition of probation, does not apply to persons placed on pretrial proba-tion). Accord, Emelio E. v. Commonwealth, 453 Mass. 10–24 (2009) (same in cases involving a juvenile). But see LaVallee v. Justices in the Hampden Su-perior Court, 442 Mass. 228, 248 (2004) (recognizing an emergency exception to the rule in Commonwealth v. Dodge, supra).

91 See G.L. c. 276, § 42A [giving district and BMC departments authority to im-pose conditions in domestic abuse related crimes], Section 58A [giving courts authority to impose pretrial detention or conditions of release based on the de-fendant’s dangerousness], and Sections 87 and 87A [giving courts authority


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to impose conditions on pretrial release when defendant consents and is placed on probation], as discussed in Commonwealth v. Dodge, 428 Mass. 860, 864–65 (1999).

92 See Jake J. v. Commonwealth, 433 Mass. 70, 78–79 (2000) (the procedure for revocation proceeding under Section 58B provides guidance for revocation proceedings under § 87).

93 Under G.L. c. 276, § 58B, a person who has been released after a hearing pursuant to Sections 58 or 58A and who has violated his condition of release, may be subject to a revocation of release and an order of detention up to ninety days. The court must conduct a hearing and if it is established by a preponderance of the evidence that the person has committed a crime while on release, or by clear and convincing evidence that the person has violated a condition of release, and (2) there are no conditions of release that will rea-sonably assure the person will not pose a danger to the safety of any other person or the community or that the person is unlikely to abide by any condi-tion or combination of conditions of release, the person’s bail and/or condi-tions of release may be revoked and the person may be held without bail for up to ninety days.

The statute also provides that there is a “rebuttable presumption” that the commission of a federal felony or a state crime means that no condition or combination of conditions of release will ensure that the person will not pose a danger to the safety of any other person or the community.

A hearing under this section shall be held “immediately” upon the de-fendant’s first appearance before the court that will conduct the revocation proceedings unless a continuance is sought by the defendant or the Com-monwealth. A continuance may be granted for the Commonwealth for no more than three days or for the defendant for no more than seven days unless “good cause” requires otherwise. The defendant “shall be detained” during the period of such a continuance unless the court finds there are conditions of release that will ensure that the person will not pose a danger to the safety of any other person or the community, and that the defendant will abide by the conditions of release.

94 Commonwealth v. Dodge, 428 Mass. 860, 864 n.7 (1999) (“Conditional re-lease, pursuant to G.L. c. 276, § 58A, may be ordered, on a motion by the prosecutor, for certain categories of defendants who have been charged with felonies that have as an element of the crime “the use, attempted use, or threatened use of physical force against the person of another, or any other felony that by its nature involves a substantial risk that physical force against the person of another may result” and specifically includes charges that could result in a third or subsequent conviction for operating while under the influ-ence of liquor. See G.L. c. 276, § 58A (1).”).


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95 G.L. c. 276, § 42A. 96 Rule 3 of the Rules Governing Persons Authorized to Take Bail (2005). 97 Rule 4 of the Rules Governing Persons Authorized to Take Bail (2005). 98 Rule 5 of the Rules Governing Persons Authorized to Take Bail (2005). 99 Rule 7 of the Rules Governing Persons Authorized to Take Bail (2005). 100 Rule 8 of the Rules Governing Persons Authorized to Take Bail (2005). 101 Rule 11 of the Rules Governing Persons Authorized to Take Bail (2005). 102 Rules 9 and 10 of the Rules Governing Persons Authorized to Take Bail (2005). 103 Rule 12 of the Rules Governing Persons Authorized to Take Bail (2005). If

the defendant is required to recognize for offenses outside the territorial ju-risdiction of the person setting the bail or releasing defendants on personal recognizance, an additional fee of up to ten dollars may be charged. Clerk-magistrates and assistant clerk-magistrates are not allowed to receive any fee or compensation for their conduct in setting bail or releasing defendants on personal recognizance “during the hours when their offices are required to be open.” Rule 12 of the Rules Governing Persons Authorized to Take Bails (2005). “If a prisoner is being held under circumstances justifying a release and is not able to provide the fee, the magistrate shall authorize the release without charge.” Rule 12 of the Rules Governing Persons Authorized to Take Bail (2005).

104 Rule 13 of the Rules Governing Persons Authorized to Take Bail (2005). 105 Rule 15 of the Rules Governing Persons Authorized to Take Bail (2005). 106 Rule 16 of the Rules Governing Persons Authorized to Take Bail (2005). 107 Rule 17 of the Rules Governing Persons Authorized to Take Bail (2005). 108 Rule 18 of the Rules Governing Persons Authorized to Take Bail (2005). 109 Rule 19 of the Rules Governing Persons Authorized to Take Bail (2005). 110 Rule 19 of the Rules Governing Persons Authorized to Take Bail (2005). 111 Rules 21–27 of the Rules Governing Persons Authorized to Take Bail (2005). 112 Rule 28 of the Rules Governing Persons Authorized to Take Bail (2005). This

duty may require the bailing authority to obtain the services of an interpreter who must be sworn “to do his work faithfully, impartially and with the best of his skill and ability.” Rule 28 of the Rules Governing Persons Authorized to Take Bails (2005).

113 Rule 29 of the Rules Governing Persons Authorized to Take Bail (2005). 114 Rule 30 of the Rules Governing Persons Authorized to Take Bail (2005). 115 Rule 31 of the Rules Governing Persons Authorized o Take Bail (2005). 116 See G.L. c. 276, § 58A. In Mendonza v. Commonwealth, 423 Mass. 771, 782

n.4 (1996), the Supreme Judicial Court upheld the constitutionality of the


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Massachusetts preventative detention statute, G.L. c. 276, § 58A, after a comprehensive review of the federal and state constitutional issues. In Schall v. Martin, 467 U.S. 253, 269–71 (1984), the Supreme Court held that the pre-ventative detention of juveniles in accordance with G.L. c. 276, § 58A does not violate the federal constitution. This result was followed by the Supreme Judicial Court in Victor V. v. Commonwealth, 423 Mass. 793 (1996) (holding that G.L. c. 276, § 58A can constitutionally be applied to juveniles).

117 Commonwealth v. Lester L., 445 Mass. 250, 252 (2005). Neither does the court have discretion as to whether to conduct a dangerousness hearing if a motion is filed. See G.L. c. 276, § 58, last paragraph (stating that in such a case the judge “shall hold a hearing” under Section 58A(4)); G.L. c. 276, § 58A (stating that in such a case the judicial officer “shall hold a hearing” under Section 58A(4)).

118 Commonwealth v. Lester L., 445 Mass. 250, 261 (2005). 119 G.L. c. 276, § 58A, as amended, now includes violations of G.L. c. 269,

§§ 10(a), 10(c), and 10(m) as predicate offenses. 120 See Commonwealth v. Lester L., 445 Mass. 250, 257 (2005). 121 See Commonwealth v. Murchison, 428 Mass. 303, 307 (1998). 122 See Commonwealth v. Power, 420 Mass. 410, 413–14 (1995), cert. denied,

516 U.S. 1042 (1996). But see Commonwealth v. Pike, 428 Mass. 393, 402 (1998) (“The condition of the defendant’s probation banishing him from the Commonwealth is invalid and his sentence must be revised accordingly.”), and cases cited. “A probation condition that infringes on constitutional rights must, however, be ‘reasonably related’ to the goals of sentencing and proba-tion.” Id. at 414.

123 Commonwealth v. Murchison, 428 Mass. 303, 308 (1998). 124 See Abbott A. v. Commonwealth, 458 Mass. 24, 28 (2010). 125 Commonwealth v.Torres, 449 Mass. 502, 505 (2004). 126 Torres, 449 Mass. at 502–03. 127 Abbott A. v. Commonwealth, 458 Mass. 24, 30 (2010). The court acknowl-

edged that the Commonwealth’s interest also is greater at a dangerousness hearing than at a regular bail hearing because “its interest is not only to se-cure the presence of the defendant or juvenile at trial, but to also protect the safety of persons who may be endangered by the defendant’s or juvenile’s re-lease. See G.L. c. 276, § 58A(2) (dangerousness hearing triggered by motion of Commonwealth).” Abbott A. supra, 458 Mass. at 30–31.

128 Id. at 31 (“A dangerous defendant’s or juvenile’s incompetency makes him no less of a threat to the safety of others than a defendant or juvenile who is dangerous but competent.”).

129 Id. at 32.


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130 Id. 131 In Abbott A. v. Commonwealth, the SJC observed that [w]e leave open the

possibility of a different conclusion if a judge were to conclude that, because of the person’s incompetency, the judge is unable to obtain adequate infor-mation to make a reliable dangerousness determination. See Torres, supra at 507. We also leave open the possibility that a judge may consider a juvenile’s age in coming to such a conclusion. We need not reach these questions here because the judge made no such finding as to the juvenile’s incompetency, and the record does not support such a finding.” 458 Mass. at 33 n.11.

132 April 24, 1963, 21 U.S.T. 325, 596 U.N.T.S. 487 (Optional Protocol), quoted in Commonwealth v. Gautreaux, 458 Mass. 741, 745–46 (2011).

133 Commonwealth v. Gautreaux, 458 Mass. 741, 745–46 (2011). In Gautreaux, the SJC also noted that “[i]n a 2005 letter from the United States Secretary of State to the Secretary-General of the United Nations, the United States gave notice of its withdrawal from the Optional Protocol in which it agreed to be bound by the decisions of the International Court of Justice (ICJ). Optional Protocol to the Vienna Convention Concerning the Compulsory Settlement of Disputes, April 24, 1963, 21 U.S.T. 325, 596 U.N.T.S. 487 (Optional Proto-col).” Id. at 746 n.12.

134 Article 36 of The Vienna Convention on Consular Relations reads as follows:

Article 36 Communication and contact with nationals of the sending State 1. With a view to facilitating the exercise of consular functions relating

to nationals of the sending State: (a) consular officers shall be free to communicate with nationals of

the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to com-munication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is ar-rested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse


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and correspond with him and to arrange for his legal representa-tion. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their dis-trict in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.”

135 Vienna Convention on Consular Affairs, Art. 36(1)(b), quoted in Common-wealth v. Gautreaux, 458 Mass. 741, 747 (2011).

136 Id. 137 Vienna Convention on Consular Relations art. 71, Apr. 24, 1963, 21 U.S.T.

77, 596 U.N.T.S. 261 (the “Vienna Convention”). Further, honorary consuls are not “amenable to the jurisdiction of the judicial or administrative authori-ties of the receiving State in respect of acts performed in the exercise of con-sular functions.” Id. art 43 (applied to honorary consuls through article 58(1)). Consular officers are defined as “any person, including the head of a consular post, entrusted in that capacity with the exercise of consular func-tions.” Id. art. 1(1)(d). Consular Officers are subdivided into two categories-career consular officers and honorary consular officers. Id. art. 1(2). Both cat-egories of consular officers, however, are covered by consular immunity in the exercise of their official acts. See id. Art. 71. Consular immunity pertains to consular officials, while sovereign immunity applies to states. The Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602–11, is the basis for sovereign immunity, but it does not apply to individual immunities—”Congress did not intend the FSIA to address position-based individual im-munities such as diplomatic and consular immunity.” Samantar v. Yousuf, 130 S. Ct. 2278, 2289, n.12 (2010).”

138 458 Mass. 741 (2011). 139 Gautreaux, 458 Mass. at 745–46 (footnotes omitted). In Gautreaux, the SJC

reproduced the “Uniform procedures were established for officials of the United States Department of Justice to follow when a foreign national is ar-rested or detained.” They are as follows:

140 Gautreaux, 458 Mass. 745 n.14, quoting 28 C.F.R. § 50.5(a)(1)–(3). In Gau-treaux, the SJC noted that the attorney general of the Commonwealth report-ed that her office had notified state and local law enforcement officials of their responsibilities under Article 36 of the Vienna Convention, that the Massachusetts State Police had adopted a “Procedural Directive,” and that


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training is provided to state and local police. The SJC explicitly avoided any judgment about the adequacy of these measures. See Gautreaux, 458 Mass. at 745 n.14.

141 See Gordon v. City of New York, 2012 WL 1067964 (E.D.N.Y 2012) (collect-ing cases) (“Adhering to the guidance provided in Mora and other circuit opin-ions results in the conclusion that Article 36’s directive that detaining officials shall notify a consular office upon an alien’s request cannot, when violated, be vindicated by a private action for damages filed in our courts.) See also Gautreaux, 458 Mass. at 749–50 & nn.17–18, and cases cited. But see Jogi v. Voges, 480 F.3d 822, 834–35 (7th Cir. 2007) (concluding that “Article 36 confers individual rights on detained nationals”).

142 Gautreaux, 458 Mass. at 749–50. 143 Id. at 751 n.21. 144 Gautreaux, supra, 458 Mass. at 752. 145 See Commonwealth v. Zinser, 446 Mass. 807, 810 (2006) (claim of ineffec-

tivness of counsel most appropriately raised in motion for new trial). See also Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010) (“when the deportation consequence is truly clear, . . . the duty [of a criminal defense attorney] to give correct advice is equally clear”). In Gautreaux, the defendant did not make such a claim. The court did conclude that the defendant failed to meet his burden to establish that he was not provided with an interpreter at his change of plea hearing. Id. at 753–55.

146 Gautreaux, 458 Mass. at 745–46 147 Id. at 747–48. In view of the safeguards under both Massachusetts and feder-

al law that require that a plea of guilty must be accompanied by a knowing and voluntary waiver of rights and that there must be a factual basis for the charge, and that every defendant is entitled to the effective assistance of counsel, see Mass. R. Crim. P. 12, it would seem that in order to succeed on a motion to vacate a guilty plea under Mass. R. Crim. P. 30(b) based on a vio-lation of art. 36 of the Vienna Convention, the defendant would have to demonstrate that something specific in the practices and protocols of the con-sulate, or of the advice and assistance it would have provided on notification of the detention of one of its citizens would have led the defendant to choose not to plead guilty.

148 See Commonwealth v. Ramirez, 55 Mass. App. Ct. 224, 226 (2002). See also G.L. c. 263, § 1A (police duty to fingerprint and photograph certain arrested persons.). After a person has been convicted, the SJC has recognized there are important public policy reasons for “[t]he maintenance of fingerprint, pho-tograph and arrest records” of both adults and juveniles. See Police Comm’r of Boston v. Dorchester Division, District Court, 374 Mass. 640, 655–56 (1978). “The State has an established and indisputable interest in preserving


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a permanent identification record of convicted persons for resolving past and future crimes and uses fingerprints, and now will use DNA identification, for these purposes.” Landry v. Attorney General, 429 Mass. 336, 347 (1999) (up-holding constitutionality of so-called DNA registry under G.L. c. 22E).

149 See Ramirez, supra, 55 Mass. App. Ct. at 226. 150 Pennsylvania v. Muniz, 496 U.S. 582, 601(1990) (plurality opinion). For ex-

ample, a statement made by the defendant during the booking process at the police station after his arrest, but prior to receiving Miranda warnings, that he resided at a specific address was not “designed or reasonably likely to elicit an incriminating response and is admissible. Commonwealth v. Rise, 50 Mass. App. Ct. 836, 842 (2001). On the other hand, even though depart-ment’s booking procedure called for the booking officer to answer a question during booking for crimes of violence about whether a weapon was used, the defendant’s response when the question was read aloud (“The dude hit us”) was the product of interrogation, even though the question was directed at another officer. Commonwealth v. Dixon, 79 Mass. App. Ct. 701, 701, 708–09 (2011) (“In the future, it is preferable, unless a subject has waived his Miran-da rights, to eliminate questions about weapons from the litany of questions asked at booking.”).

151 See Commonwealth v. Woods, 419 Mass. 366, 373 (1995). See also Common-wealth v. Sheriff, 425 Mass. 186, 199 (1997) (ordering hearing incident to new trial to assess whether questions asked to ascertain whether defendant’s understanding Miranda warnings were actually designed to elicit incriminating response).

152 See Commonwealth v. Chadwick, 40 Mass. App. Ct. 425, 427 (1996). 153 G.L. c. 263, § 1A. 154 See Commonwealth v. Shipps, 399 Mass. 820, 832 (1987). 155 See, e.g., Commonwealth v. Adams, 434 Mass. 805 811–12 (2001) (introduc-

tion of defendant’s refusal to answer booking questions, among other refer-ences to his silence, “would be impermissible . . . as evidence of guilt”); Commonwealth v. Ayre, 31 Mass. App. Ct. 17, 23 (1991) (testimony and clos-ing statement directly referencing defendant’s refusal to cooperate during booking was “improper”).

156 Commonwealth v. Gonsalves, 74 Mass. App. Ct. 910, 911 (2009). 157 See Commonwealth v. Charlton, 81 Mass. App. Ct. 294, 303 n.5 (2012) (book-

ing sheet containing defendant’s residential address admitted as an adoptive admission).

158 Commonwealth v. Rise, 50 Mass. App. Ct. 836, 842 n.12 (2001). 159 See Commonwealth v. A Juvenile, 402 Mass. 275, 279 (1988). See also

Commonwealth v. A Juvenile, 389 Mass. 128 (1983).


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160 Commonwealth v. Banuchi, 335 Mass. 649, 656 (1957) (“Our law clearly

requires that a defendant be brought into court as soon as reasonably possible after arrest.”). Accord Commonwealth v. Perito, 417 Mass. 674, 680 (1994); Commonwealth v. Dubois, 353 Mass. 223, 226 (1967). See also Corley v. United States, 556 U.S. 303 (2009).

161 Mass. R. Crim. P. 7(a)(1), Reporter’s Notes (rev. 2004), citing Common-wealth v. Cote, 386 Mass. 354, 361 n.11 (1982). See also Commonwealth v. Rosario, 422 Mass. 48, 51 (1996) (“The purpose of the rule [Mass. R. Crim. P. 7(a)(1)] is to prevent unlawful detention and to eliminate the opportunity and incentive for application of improper police pressure.”).

162 See Commonwealth v. Beland, 436 Mass. 273, 283 (2002). 163 Id. at 52–53, and cases cited. Just because the police bring an arrested person

before the court promptly after arrest does not mean that any statements made by that person while in police custody will be admissible in evidence. “Of course, if the defendant did not receive and waive his Miranda rights, or if the defendant did not make the statements freely, intelligently, and volun-tarily or, if the statements were obtained before he was advised of his right to use a telephone (see G.L. c. 276, § 33A), the statements must be suppressed.” Rosario, 422 Mass. at 53.

164 Id. at 53–54. 165 In Rosario, the SJC relied in part on decisions from the Commonwealth of

Pennsylvania, which has since abandoned its rule that statements obtained af-ter a delay exceeding six hours are per se inadmissible. Commonwealth v. Pe-rez, 845 A.2d 779 (Pa. 2004). In Pennsylvania, the six-hour rule has been re-placed by a totality of the circumstances analysis, whereby delay in arraign-ment is one factor to be considered in determining whether the challenged evidence was the product of coercion. Id. at 787. “[I]n making this determi-nation, courts should consider factors such as the attitude exhibited by the police during the interrogation, whether the defendant was advised of his constitutional rights, whether he was injured, ill, drugged or intoxicated when he confessed, and whether he was deprived of food, sleep, or medical atten-tion during the detention.” Commonwealth v. Sepulveda, 579 Pa. 217, 855 A.2d 783, 793 (Pa. 2004). A strict rule of exclusion like the one enunciated in Rosario represents the minority view among the states. See People v. Willis, 215 Ill.2d 517, 831 N.E.2d 531 (2005); People v. Manning, 243 Mich. App. 615, 624 N.W.2d 746 (2001).

166 The McNabb-Mallory rule takes its name from two decisions of the U.S. Supreme Court, McNabb v. United States, 318 U.S. 332, 344–45 (1943) (de-fendants were held in custody and interrogated for several days before they were brought to court) and Mallory v. United States, 354 Mass. 449, 455 (1957) (relying on Fed. R. Crim. P. 5(a) and holding that a confession obtained


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seven hours after arrest was inadmissible because the police had ready access to federal magistrates). The rule was based on an exercise by the Supreme Court of its supervisory powers over federal courts and provides that other-wise voluntary confessions must be excluded from evidence when the arrest-ed person is not brought to court “without unnecessary delay” as required by Fed. R. Crim. P. 5(a).

In Corley v. United States, 556 U.S. 303 (2009), the Supreme Court consid-ered the effect of 18 U.S.C. § 3501 which was enacted by Congress in 1968 following the decision in Miranda v. Arizona, 384 U.S. 436 (1966). The Su-preme Court observed that § 3501(a) and (b) were designed to eliminate the Miranda decision. This issue finally reached the Supreme Court in Dickerson v. United States, 530 U.S. 428 (2000), in which the Court held that Miranda had a constitutional basis and could not be replaced by Congressional enact-ment. See Corley, 556 U.S. at 309 & n.1. However, § 3501(c), addressed the McNabb-Mallory rule. It provides that a confession made by a person under arrest will not be inadmissible due to delay in bringing the defendant to court so long as it is voluntary and made within six hours of the arrest. In Corley, the Court held that this portion of the statute provides merely that the McNabb-Mallory rule does not render an otherwise voluntary confession in-voluntary if it is obtained within six hours of arrest.

We hold that § 3501 modified McNabb-Mallory without supplanting it. Under the rule as revised by § 3501(c), a district court with a suppression claim must find whether the defendant confessed within six hours of arrest (unless a longer delay was “reasonable considering the means of transportation and the dis-tance to be traveled to the nearest available [magis-trate]”). If the confession came within that period, it is admissible, subject to the other Rules of Evidence, so long as it was “made voluntarily and . . . the weight to be given [it] is left to the jury. Ibid. If the confession occurred before present-ment and beyond six hours, however, the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed.

Corley, 556 U.S. at 322 (alternations in original). Thus, the federal courts, unlike Massachusetts, do not follow a bright-line test that renders an other-wise voluntary confession involuntary if it was obtained outside the six-hour safe harbor.


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167 In Commonwealth v. Christolini, 422 Mass. 854, 856 (1996), the SJC inferred

from its reasoning in Rosario that out-of-court bail hearings under G.L. c. 276, §§ 57 and 58 should also take place within six hours.

168 422 Mass. at 56–57. 169 In Rosario, the defendant was arrested on warrants during the midafternoon

hours, held overnight at the police station, and then brought to court in the early afternoon of the following day. He was not questioned about the charg-es for which he was arrested, but rather, after waiving his Miranda rights, he was questioned the following morning over the course of several hours about his role in a series of burglaries. The defendant admitted his guilt in these other cases. The SJC saw no reason to apply the exclusionary rule and thus reversed the trial judge’s suppression order because the police did not have time to bring the defendant to court on the afternoon of his arrest, the police complied fully with Miranda, the police made no threats against the defend-ant, the questioning did not relate to the charges that were the subject of the warrants, the police questioning did not extend for more than six hours, there had been a judicial determination of probable cause before the questioning (see Mass. R. Crim. P. 3.1), and the police were not aware that their conduct violated Mass. R. Crim. P. 7(a)(1). See Rosario, 422 Mass. at 55 & n.4 (like the McNabb-Mallory rule, the Rosario rule is not constitutionally based).

170 Commonwealth v. Morales, 461 Mass. 765, 778 (2012) (“Although the judge did not address the issue in his decision, his findings as well as the record make clear that the defendant executed a written waiver of his Rosario rights after he was arrested and just before making his second statement at about 10 a.m. on Sunday, December 9, and again prior to making his third state-ment on Monday, December 10, at about 9 a.m. The defendant’s argument is predicated on his claim that he did not waive his Rosario rights when he first voluntarily went to the police station for questioning on Saturday evening, December 8. The six-hour safe harbor period announced in Rosario, however, applies when a defendant is arrested, not in circumstances where a person voluntarily goes to a police station for questioning.”).

171 Commonwealth v. Obershaw, 435 Mass. 794, 802 (2002). 172 Commonwealth v. Cook, 419 Mass. 192, 198 (1994), quoting Massachusetts

Gen. Hosp. v. Revere, 385 Mass. 772, 778 (1982), rev’d on other grounds, 463 U.S. 239 (1983).

173 Commonwealth v. Morse, 427 Mass. 117, 124 (1998), quoting Stansbury v. California, 511 U.S. 318, 323 (1994).

174 See also Commonwealth v. Martinez, 458 Mass. 684, 694–97 (2011). 175 Commonwealth v. Morganti, 455 Mass. 388, 399 (2009). 176 Rosario, 422 Mass. at 57.


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177 See Commonwealth v. Siny Van Tran, 458 Mass. 535, 562 (2011), quoting

Morganti, supra (“While not strictly a ‘natural disaster or emergency,’ there were exceptional circumstances at play here, ‘not attributable to the police,’ that rendered it extremely impractical, if not impossible, to conduct an inter-rogation within six hours of arrest.”). In Siny Van Tran, the SJC added: “It can only be described as the rarest of occasions that police would arrest a defend-ant at 11 p.m. on a Friday night on arrival at the airport after a long overseas flight from Asia that included uninterrupted layovers in San Francisco and Washington, D.C. Due process considerations would properly require that the police refrain from interrogating a defendant, in custody, whose will might be overborne by his exhaustion or incapacity at that late hour, and at the end of such an extended journey. The delay in interrogation was proper in the cir-cumstances. It was also not “attributable to the police,” that Federal law en-forcement agencies negotiating the complicated details of an international prisoner transfer and extradition arranged for Tran to arrive in Boston late on a Friday evening when he could not be arraigned until court was in session the following Monday.” Id. at 562–63.

178 Rosario, 422 Mass. at 56. 179 See Commonwealth v. Siny Van Tran, 458 Mass. 535, 561 (2011). 180 See, e.g., Commonwealth v. Santiago, 54 Mass. App. Ct. 656, 659 (2002). 181 Commonwealth v. Siny Van Tran, 460 Mass. 535, 558 (2011) (citation and

quotation omitted). 182 Commonwealth v. Novo, 442 Mass. 262, 272 (2004), citing Commonwealth v.

Rivera, 441 Mass. 358, 374 (2004). 183 “We decline the defendant’s invitation to interpret the statute to require that

the right to a telephone call be given to every person who is in custody. The statute was enacted in 1945, and most recently amended in 1963, before the Supreme Court had developed the concept of custodial interrogation and at-tendant rights in cases such as Escobedo v. Illinois, 378 U.S. 478, 490–91 (1964), and Miranda v. Arizona, 384 U.S. 436, 444 (1966). In these circum-stances, we cannot attribute to the Legislature an intention that the statute was to have the meaning the defendant desires.” Commonwealth v. Rivera, 441 Mass. 358, 375 (2004). See also Commonwealth v. Pileeki, 62 Mas. App. Ct. 505, 510 (2004). The defendant’s right is triggered by “formal arrest, not by the custodial nature of any prearrest interrogation.” Accord Commonwealth v. Hampton, 457 Mass. 152, 155 (2010), citing Commonwealth v. Rivera, 441 Mass. 358, 374–75 (2004).

184 Commonwealth v. Williams, 456 Mass. 857, 866 (2010). See Commonwealth v. Garcia, 409 Mass. 675, 686 (1991) (defendant who chooses to make tele-phone call pursuant to G.L. c. 276, § 33A, within obvious earshot of police officers enjoys no expectation of privacy).


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185 See Commonwealth v. White, 422 Mass. 487, 500 (1996), 186 Commonwealth v. Dixon, 79 Mass. App. Ct. 701, 708 n.9 (2011). 187 See Commonwealth v. LeBeau, 451 Mass. 244, 257 (2008); Commonwealth v.

Jones, 362 Mass. 497, 502–03 (1972). 188 Id. at 258, citing Commonwealth v. Scoggins, 439 Mass. 571, 578 (2003). In

Commonwealth v. Haith, 452 Mass. 409, 413–14 (2008), the SJC found it unnecessary to decide whether G.L. c. 276, § 33A applied to cases in which a person was held in another jurisdiction for transport back to Massachusetts. However, even assuming that it did, the SJC concluded that the defendant failed to satisfy his burden to establish that “law enforcement officers inten-tionally withheld the defendant’s telephone right in order to coerce the de-fendant or to gain an advantage in the investigation.”

189 Commonwealth v. Maylott, 43 Mass. App. Ct. 516, 519 (1997). 190 G.L. c. 263, § 5A. 191 Commonwealth v. King, 429 Mass. 169, 172 (1999). 192 Id. 193 Id. at 743. The police do not violate the statute when following a prompt bail

hearing they require that someone come to the police station to give the de-fendant a ride due to his intoxication.

194 King, 458 Mass. at 175 n.4 (citation and quotation omitted). See also Com-monwealth v. O’Brien, 434 Mass. 615, 618–19 (2001) (“Here, the officers were of the view that the defendant was not in a fit condition to drive, nor was he in condition to navigate his way home to the next town on foot, alone, at 3:30 A.M. The police gave the defendant the telephone to make alternative arrangements three times (during booking, after bail had been posted, and again prior to placing him in protective custody). The defendant makes no claim that the police interfered in any way with his attempts to contact friends or relatives to arrange for some form of safe transportation. His lack of success in making such arrangements was through no fault of the officers.”).

195 429 Mass. 169 (1999). 196 Promptness, in this context, is not defined by statute or court rule. The SJC

determined that “bail hearings should be held within roughly six hours of booking.” Id. at 175 (“Where the clerk-magistrate waited for over seven hours to conduct the bail hearing, he failed to respond with the promptness required and, therefore, violated the defendant’s right to a prompt bail hear-ing.”). See Commonwealth v. Christolini, 422 Mass. 854, 856 (1996) (finding that, under the circumstances, a six-hour and six-minute delay did not violate right to a prompt bail hearing). The right to prompt bail is distinguished from the right to a prompt post-arrest probable cause determination. In Jenkins v. Chief Justice of the District


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Court, 416 Mass. 221 (1993), the SJC recognized that article 14 of the Mas-sachusetts Declaration of Rights (Article 14) “guarantees that a warrantless arrest must be followed by a judicial determination of probable cause no later than reasonably necessary to process the arrest and to reach a magistrate.” Id. at 232. The Jenkins court held that the probable cause determination should generally occur within twenty-four hours of arrest. Id. at 238. The court also stated that “in order to accommodate unforeseeable circumstances, we shall treat this time period as a presumption: where it is exceeded the police must bear the burden of demonstrating that an extraordinary circumstance caused the delay.” Id. at 238. When an arrestee is promptly bailed, a probable cause determination is no longer required. Id.

197 Id. at 173. The court observed: “Normally, a defendant must go to a hospital if he wishes an independent medical examination because of the difficulty of finding medical personnel willing to come to a police station to draw blood for a blood test. And this usually means that the defendant will have to be re-leased from custody, as the police have no obligation to transport him to the hospital for the blood test, and normally refuse to do so. Because the evi-dence that may be obtained through the blood test is fleeting, such a test must be conducted promptly; thus, the bail hearing must be conducted promptly. Where the clerk-magistrate refuses to conduct a prompt bail hearing, the ar-restee’s right to an independent medical examination is necessarily frustrat-ed.” Id. (citations omitted).

198 Id. at 174 (citation omitted). 199 Id. The SJC added that “[t]he only reference in § 58 to public safety, which

permits the court to consider whether the release of an individual will seri-ously endanger any person or the community where the individual has been arrested for committing an offense while on release pending adjudication of a prior charge, is inapplicable in the present case.” Thus, in a case in which the defendant is on release pending another charge, and is also charged with of-fenses involving conduct which suggests he is a serious danger to another person or to the community, the clerk may be justified in declining to release the defendant. However, even in such a case, this judgment should be made on the basis of a hearing conducted by the clerk or bail commissioner.

200 Id. at 174–75 (citations omitted). 201 Id. at 176–77 (citations and quotations omitted). 202 See Commonwealth v. Priestly, 419 Mass. 678, 682 (1995) (finding over-

whelming evidence of intoxication when the defendant’s inculpatory admis-sions “independently corroborated the police testimony” [emphasis added]); Commonwealth v. Andrade, 389 Mass. 874, 882 (1983) (overwhelming evi-dence of intoxication requires “persuasive evidence . . . apart from the offic-ers’ testimony”). See also Commonwealth v. Coppollo, 75 Mass. App. Ct.


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1112 (2009) (Rule 1:28 opinion) (“The police report states that the defendant had difficulty producing his wallet and license after being stopped for speed-ing, the officer detected an overpowering odor of alcohol coming from the defendant, the defendant attempted to hide this odor from the officer, had dif-ficulty handling his wallet and turning off the lights and ignition of his vehi-cle, failed to perform three field sobriety tests, stated that he had had too much to drink, and the officer discovered wine bottles and freshly spilled wine in the vehicle. There is no error in the judge’s finding that this evidence overwhelmingly demonstrates that the defendant was intoxicated.”).

203 Id. at 180–81. The court remanded the case to the trial court for findings and rulings on the issue of whether the deprivation of the defendant’s statutory right was prejudicial.

204 See Commonwealth v. Hall, 1999 WL 1324225 (Superior Court No. 98669) (Cowin, J.).

205 See Commonwealth v. Mandell, 61 Mass. App. Ct. 526, 527–29 (2004).

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