availability defense in Massachusetts

2018See Dorvil , 472 Mass. at 14 , 32 N.E.3d 861 (declining to consider evidence that defendant was angry while using force because "[t]he view under which the availability of the parental privilege defense hinges on a parent's subjective state, however, finds scant support in modern law, and we reject it").

2018See Dorvil , 472 Mass. at 14 , 32 N.E.3d 861 (declining to consider evidence that defendant was angry while using force because "[t]he view under which the availability of the parental privilege defense hinges on a parent's subjective state, however, finds scant support in modern law, and we reject it").

2011The existence of the indictment puts the Commonwealth (as well as the trial judge) on notice that at least there is a theoretical possibility of conviction of felony-murder in the second degree. 10 Cf. Commonwealth v. Amirault, 424 Mass. 618, 637 (1997) (discussing community’s interest in finality in criminal justice system, balanced against need to provide relief where there is “possibility of error and of grave and lingering injustice”). 3.

2010See Ariel v. Kingston, 69 Mass. App. Ct. at 293-294 (error for trial judge to conclude that, notwithstanding the availability of immunity under other provisions of § 10, the § 10[/'][2] exception arguably applied and so the case could proceed to the jury).

2010See, e.g., Commonwealth v. Edward, 75 Mass. App. Ct. 162 , 173 n.13 (2009). [8] See Miranda, 384 U.S. at 468 -469: "The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given.

2010See Miranda, 384 U.S. at 468 -469: “The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given.

2010See, e.g., Commonwealth v. Edward, 75 Mass. App. Ct. 162 , 173 n.13 (2009). [8] See Miranda, 384 U.S. at 468 -469: "The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given.

2008See Commonwealth v. Lora, 43 Mass. App. Ct. 136 , 139 n.5 (1997) (“No Massachusetts court has yet precluded the defense [of necessity] based on a determination that the Legislature has statutorily ruled it out”).

2007The availability of the defense of necessity has been limited to the following circumstances: “(1) the defendant is faced with a clear and imminent danger, not one which is debatable or speculative; (2) the defendant can reasonably expect that his [or her] action will be effective as the direct cause of abating the danger; (3) there is [no] legal alternative which will be effective in abating the danger; and (4) the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue.” Commonwealth v. Pike, 428 Mass. 393, 400 (1998), quoting from Com

2007See DeJoinville v. Commonwealth, 381 Mass. 246, 248 (1980).

2007The availability of the defense of necessity has been limited to the following circumstances: “(1) the defendant is faced with a clear and imminent danger, not one which is debatable or speculative; (2) the defendant can reasonably expect that his [or her] action will be effective as the direct cause of abating the danger; (3) there is [no] legal alternative which will be effective in abating the danger; and (4) the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue.” Commonwealth v. Pike, 428 Mass. 393, 400 (1998), quoting from Com

1997See also State v. Hanson, 468 N.W.2d at 78 (medical necessity defense to prohibition against possession or use of marijuana available only for “cancer patients undergoing chemotherapy who are receiving the drug under strict controls of an approved medical research program”).

1995Contrast Commonwealth v. Lopes, 34 Mass. App. Ct. 179, 186 (1993).

1995Donahue’s testimony would not qualify as a “shorthand expression [ ] of facts.” See Commonwealth v. Smith, 17 Mass. App. Ct. 918, 920-921 (1983) (describing the three-pronged test for the availability of this exception to the rule precluding opinion testimony by lay witnesses); Liacos, Massachusetts Evidence §§ 7.4 & 7.5 (6th ed. 1994 & Supp. 1995).

1995In that case, the United States Court of Appeals for the Fifth Circuit held that while “[a] corporation is not barred from asserting [attorney-client privilege] merely because those demanding information enjoy the status of stockholders,” where a corporation “is in suit against its stockholders on charges of acting inimically to stockholder interests, protection of those interests as well as those of the corporation and of the public require that the availability of the privilege be subject to the right of the stockholders to show why it should not be invoked in the particular instance.” Id. a

1990In determining whether particular race-conscious remedies violate the equal protection guarantee of the Fourteenth Amendment to the United States Constitution, the United States Supreme Court looks to the “necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties.” United States v. Paradise, 480 U.S. 149, 171 (1987) (plurality opinion). 2 In the instant case the aff

1980See Sherman v. Fall River Iron Works Co., 2 Allen 524, 526 (1861); Fresno Air Serv. v. Wood, 232 Cal. App. 2d 801, 807 (1965); Con-nolley v. Omaha Pub.

1979As we stated in *109 Commonwealth v. Adams, 374 Mass. 722 (1978), the test of counsel’s conduct is whether it was "within the range of competence demanded of attorneys in criminal cases.” Id. at 728 , quoting from McMann v. Richardson, 397 U.S. 759, 771 (1970).

1975By virtue of § 8 (d), the person who requests a hearing cannot be recommitted unless the court “finds that (1) such person is mentally ill; (2) such person is not a proper subject for commitment to any facility [other than the hospital] of the department [of Mental Health]; and (3) the failure to retain such person in strict custody would create a likelihood of serious harm.” In Commonwealth v. Druken, 356 Mass. 503, 509 (1969), we held that the commitment, under then G.

1975See Associated Indus. of Mass. v. Commissioner of Ins. 356 Mass. 279, 285 (1969); Phillips v. Commissioner of Int.