first part test in Massachusetts

2017Our review of the judge's decision is limited to determining whether he "committed a significant error of law or other abuse of discretion." Id . at 344 , quoting from Commonwealth v. Sherman , 451 Mass. 332 , 334 (2008). 3 Regarding the first part of the test, a defendant "is entitled to a conclusive presumption that egregious government misconduct occurred" if he presents a drug certificate from his case that was signed by Dookhan as the primary or confirmatory chemist.

2017Scott , 467 Mass. at 352 .

2015With respect to the first part of the inquiry, they are not statements made in a “formal or solemnized form” or “in response to law enforcement interrogation.” Simon, 456 Mass. at 297 , citing Gonsalves, 445 Mass. at 13 .

2015With respect to the first part of the inquiry, they are not statements made in a “formal or solemnized form” or “in response to law enforcement interrogation.” Simon, 456 Mass. at 297 , citing Gonsalves, 445 Mass. at 13 .

2011Doe, as the party challenging the statute, “carries a very heavy burden to show that the statute is punitive in one of these ways.” Cory, supra. As to the first part of the inquiry, Doe relies on the fact that G.

2010While the instruction is mandatory, see id. at 448 , we have not required that the precise language of the instruction be used, see Commonwealth v. Boyarsky, 452 Mass. 700, 710 (2008); nor do we do so now.

2009Smith v. Doe, supra. For the first part of this inquiry, which focuses on legislative intent, examination of the statute’s text and structure is key.

2009Id.

2009As to the first part of the test, the defendants argue that the instructions were legally erroneous under Commonwealth v. Benjamin, 369 Mass. 770 , 772 & n.2 (1976) (Benjamin).

2009In that case, the court specifically “disapprove[dj” the judge’s instructions, given to the jury on the first day of trial, that they were “free to discuss the case in the jury room among themselves and that a married juror could tell his or her spouse what the juror had heard.” Id. at 771-772 . 10 The court further noted that where there had been no objection to the instruction by trial counsel, the issue was waived, and because there was no showing of prejudice by the defendant, the court would not consider the matter further under G.

2007“The first part of the test examines the degree of control and direction retained by the employing entity over the services performed.” Athol Daily News, 439 Mass. at 176-177 .

2007The burden is upon the employer to demonstrate that the services at issue are performed free from its control or direction. “[T]he test is not so narrow as to require that a worker be entirely ‘free from direction and control from outside forces.’ ” Id. at 178 .

1998Taking this allegation as true and with all inferences in favor of the plaintiff, under the first part of the test enunciated in Harry Stoller & Co. v. Lowell, 412 Mass. at 141 , the plaintiff’s claim is not foreclosed by the discretionary function exception.

1936The permission given by the last part of clause 6 of section 7 of the practice act is not a permission to violate the first part of that clause, cf. Clapp v. Campbell, 124 Mass. 50 .

1907Selectmen of Gardner v. Templeton Street Railway, 184 Mass. 294, 296 .