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Direct Appellate Review How to Get The Justices to [Pay Attention]

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Presentation on theme: "Direct Appellate Review How to Get The Justices to [Pay Attention]"— Presentation transcript:

1 Direct Appellate Review How to Get The Justices to [Pay Attention]

2 Mass. R. App. P. 11 - Procedure Apply within 20 days after case is entered in Appeals Court Note: It appears that late applications are routinely allowed. Opposition due within 10 days (maximum 10 pages) File one copy w/ Appeals Court & original + 17 copies w/ SJC How granted? Two Justices of the SJC OR “[A] majority of the justices of the Appeals Court shall certify that direct appellate review is in the public interest”

3 What is legal standard under Mass. R. App. P. 11(a)? 1.Questions of first impression or novel questions of law which should be submitted for final determination to the Supreme Judicial Court; 2.Questions of law concerning the Constitution of the Commonwealth or questions concerning the Constitution of the United States which have been raised in a court of the Commonwealth; or 3.Questions of such public interest that justice requires a final determination by the full Supreme Judicial Court.

4 So …… what does that really mean? Constitutional questions, either under the MA Constitution or Federal Constitution; and/or Novel questions which are also questions of public interest Note: Although the rule is disjunctive, it appears that the SJC typically grants applications where both conditions are met

5 DAR …. Allowed? Some Recent Examples Commonwealth v. Pagan, SJC-11714 Whether the trial judge erred in reducing the verdict from murder in the first degree to murder in the second degree, pursuant to Mass. R. Crim. P. 25 (b) (2), based on what she perceived to be weak, albeit sufficient, evidence of deliberate premeditation and her consideration of the defendant's youth (sixteen years old at the time of the offense), untreated mental condition (ADHD), developmental immaturity, and family neglect, all of which, the judge found, caused or contributed to his impulsiveness.

6 DAR …. Allowed? Some Recent Examples Commonwealth v. Canning, SJC-11773 Whether, for purposes of obtaining a search warrant, police are required to ascertain that an individual suspected of cultivating marijuana does not have a lawful medical marijuana license and a cultivation registration that would authorize such activity, or must provide facts at least supporting an inference of the same. Commonwealth v. Freeman, SJC-11745 Whether a juvenile offender seventeen years old at the time of his offense against whom criminal proceedings were pending on the effective date of St. 2013, c. 84 ( An Act Expanding Juvenile Jurisdiction ), is denied equal protection because he does not receive the benefits of the act.

7 DAR …. Allowed? Some Recent Examples Commonwealth v. Ridge, SJC-11676 Whether the defendant's motion to correct his mittimus should have been granted because fundamental fairness compels that the days of credit to which the defendant is entitled be applied in a meaningful manner, that benefits the defendant, no more no less, for the days he spent confined prior to the disposition of his case? Commonwealth v. Camblin, SJC-11774 Whether the motion judge erred in declining to hold a hearing (as requested by the defendants) on the question of the reliability of the Alcotest MK III-C breathalyzer machine, and, in reliance on an opinion of the New Jersey Supreme Court, ruling that the claimed flaws in the machine's source code did not undermine its overall reliability.

8 DAR …. Allowed? Some Recent Examples Commonwealth v. Bastaldo, SJC-11763 Whether the court should adopt the recommendation of the Study Group on Eyewitness Evidence that, in a case where identification is at issue and the proof of identity relies on a cross racial or cross-ethnic identification, the jury must be instructed to consider that people of all races and all ethnicities may have greater difficulty in accurately identifying members of a different race or a different ethnicity.

9 Tips Reported Questions Timely Issues (E.g, new statutes or new rules) Differing Views in Trial Court

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