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EVIDENTIARY HEARINGS:Strategic Considerations for the Post-Conviction
Practitioner
Amy M. Belger, Esq.Benjamin B. Selman, Esq.Wendy S. Wayne, Esq.
January 16, 2015
G.L. c. 278A
Prepare Your Witnesses
● Explain purpose of the hearing
– what are you trying to establish?
● Run through the questions you plan to ask or the information you plan to try and elicit
● Prepare the witness for cross-examination – how will the prosecutor try to defeat the motion?
Direct Examination: Creating the Factual Record
• What facts do you need to get into the record for your motion to succeed?
- Create a checklist of information that needs to be put on the record and don’t sit down until it is all in there.
• What is your burden of proof at the hearing?
- Frame your questions to your witnesses with the burden of proof in mind.
G.L. c. 278A
Must prove by a preponderance of the
evidence 6 enumerated factors:
1. the biological material exists
2. chain of custody
3. not been subjected to the requested
testing*
4. potential to result in evidence
material to ID of perpetrator*
5. motion does not obstruct
justice/cause delay
6. results of requested testing are
admissible
Cross-Examination of the Commonwealth’s witnesses
Get the witness to acknowledge facts that help you meet your burden of proof.
“Even though you believe it is highly unlikely testing in this case will recover deposited DNA, you agree there is the potential that DNA will be recovered, correct?”
“Although secondary DNA transfer by a male other than the perpetrator is possible, isn’t it true that any male DNA detected is more likely to be that of the perpetrator than that of another male on these facts?”
Final Argument
• What you need to prove and what burden you carry
• How the testimony of your witnesses established the facts you need/how the Commonwealth’s witnesses did not detract from your evidence
• Relevant case law in support of your position
• Offer to submit a memo summarizing your argument if it would be helpful to the court
Mass. R. Crim. P. 30(b)
Mass. R. Crim. P. 30(b)
• Always move for an evidentiary hearing
• Move for an evidentiary hearing regardless of whether there will be live testimony
• Even if the ADA agrees to an evidentiary hearing, make sure the judge orders one
TESTIMONY OR AFFIDAVITS?
• Evidence = documents or testimony.
• “It is settled in this Commonwealth that at a hearing on [a new trial] motion the judge . . . may receive oral testimony, affidavits, or both.” Com. v. Coggins, 324 Mass. 552, 556-7 (1949).
• Papers filed with motion ≠ evidence
FILE “MOTIONS IN LIMINE”
SCOPE: PRIVILEGE
Judge who hears a motion for a new trial is “well within her discretion” to sustain objections to questions which elicit the content of privileged communications. Commonwealth v. Birks, 435 Mass. 782, 788-89 (2002).
SCOPE: RELEVANCE• Spell out relevant and irrelevant topics in your MIL
• Mass. G. Evid. § 402 (irrelevant = inadmissible)
• Mass. G. Evid. § 1101 (rules apply to R 30(b) hrgs)
PREPARE YOUR EXHIBITS
• Certificate(s) of Analysis
• Affidavits• Colloquy Transcript• Docket Sheet and/or
Green Sheet• Police Report, GJ
minutes
INTRODUCE YOUR EXHIBITS
• Have each document marked as an exhibit
and formally entered into evidence.
• court’s file ≠ evidence
KNOW YOUR EXHIBITS
• Every exhibit should advance your theory for relief
• Be ready to tell the judge why each exhibit supports your claim
• Prepare excerpts where appropriate
Bridgeman v. DA for Suffolk, SJC-11764
• Argued 1/8/15
• CPCS brief & reply brief address various evidentiary issues in Scott hearings:
www.ma-appellatecourts.org/display_docket.php?dno=SJC-11764
Padilla Motions
Padilla Motions – Trial Attorney
• What if she won’t talk to
you?
• Or sign affidavit?
• Or testify?
Padilla Motions - Defendant
• Must provide affidavit
• What if he testifies – 5th A?
• What if he’s unavailable?
–ICE custody
–deported
Padilla Motions – Rule 30
While better practice to have
evidentiary hearing, Comm v.
Muniur M., 467 Mass. 1010
(2014)
See Rule 30(c)(3) – may be
disposed of without hearing “if
no substantial issue is raised”
– does this apply to denial AND
allowance of motion?
Padilla Motions – Rule 30(cont.)
• Rule 30(c)(6) – may be
decided without presence of
the defendant
• Next Up?
Comm v. Sylvain II - 2014-P-
1040 motion allowed based
on testimony AND affidavits
