exercise privilege in Massachusetts

2025See Maldonado, 439 Mass. at 465 ("An explanation is genuine if it is in fact the reason for the exercise of the challenge").

2010“An explanation is genuine if it is in fact the reason for the exercise of the challenge.” Id.

2025See Adoption of Abigail, 23 Mass. App. Ct. at 198 ("No effort was made to [assert the patient-psychotherapist privilege in the trial court], and the privilege issue cannot now be raised as a second thought of appellate counsel"). 2.

1990L. c. 233, § 20B, does not preclude admission of such parts of a psychiatric record as are “conclusions based on objective indicia rather than on communications from the mother.” Adoption of Abigail, 23 Mass. App. Ct. 191, 198-199 (1986).

1995See Batson v. Kentucky, 476 U.S. 79, 96-98 (1986); Commonwealth v. Soares, 377 Mass. 461, 491 , cert, denied, 444 U.S. 881 (1979).

1991See Batson v. Kentucky, 476 U.S. at 98 ; Commonwealth v. Soares 377 Mass. at 491 ; Jackson v. Virginia, 8 Va. App. 176, 184-186 , aff'd on rehearing en banc, 9 Va. App. 169 (1989).

1995“Yet not every undesirable consequence which may flow from the exercise of the privilege against self-incrimination can be characterized as a penalty.” Flint v. Mullen, 499 F.2d 100, 104 (1st Cir.), cert. denied, 419 U.S. 1026 (1974), quoted in Wansong v. Wansong, 395 Mass. 154, 157-158 , cert. denied, 474 U.S. 1014 (1985).

1985“Yet not every undesirable consequence which may follow from the exercise of the privilege against self-incrimination can be characterized as a penalty.” Flint v. Mullen, 499 F.2d 100, 104 (1st Cir. 1974).

2024Id. at 309 .

2016In response to the judge’s inquiry, defense counsel explained that “[jjust looking at her experience, I don’t feel that she would be a person that would be fair and equitable to my client, Your Honor.” Such a generic description falls below the type of “bona fide” explanation that “must be both adequate (i.e., clear and reasonably specific, personal to the juror and not based on the juror’s group affiliation) and genuine (i.e., in fact the reason for the exercise of the challenge).” Prunty, supra at 309 (quotations omitted).

2009We analyze the challenged remarks in context, as we would for comments made by a judge or prosecutor, that is, “whether the comments ‘can be fairly understood as permitting the jury to draw an inference adverse to the defendant from the fact of his [silence].’ ” Russo, supra at 582-583 , quoting Commonwealth v. Goulet, 374 Mass. 404, 412 (1978). 9 The challenged comments and testimony do not contain any direct reference to Vallejo nor do they expressly contrast Gomez’s willingness to speak to the police with Vallejo’s apparent unwillingness to do so.

2009See also Commonwealth v. Russo, 49 Mass. App. Ct. 579, 581-584 (2000).

2000Prior decisions also required that, if a race neutral reason was offered, the trial judge was required to “proceed to determine the sufficiency of any justification advanced for the exercise of the challenge.” Ibid.

1995The judge must determine “the sufficiency of any justification advanced for the exercise of the challenge.” Id. at 569 .

2026See Commonwealth v. Szerlong, 457 Mass. 858, 861 (2010), cert. denied, 562 U.S. 1230 (2011), quoting Commonwealth v. Edwards, 444 Mass. 526, 541 (2005) ("Where a defendant actively assists a witness's efforts to avoid testifying, with the intent to keep the witness from testifying, forfeiture by wrongdoing may be established 'regardless of whether the witness already decided on [her] own not to testify'" [quotation omitted]).

2026See Commonwealth v. Szerlong, 457 Mass. 858, 861 (2010), cert. denied, 562 U.S. 1230 (2011), quoting Commonwealth v. Edwards, 444 Mass. 526, 541 (2005) ("Where a defendant actively assists a witness's efforts to avoid testifying, with the intent to keep the witness from testifying, forfeiture by wrongdoing may be established 'regardless of whether the witness already decided on [her] own not to testify'" [quotation omitted]).

2026See Commonwealth v. Szerlong, 457 Mass. 858, 861 (2010), cert. denied, 562 U.S. 1230 (2011), quoting Commonwealth v. Edwards, 444 Mass. 526, 541 (2005) ("Where a defendant actively assists a witness's efforts to avoid testifying, with the intent to keep the witness from testifying, forfeiture by wrongdoing may be established 'regardless of whether the witness already decided on [her] own not to testify'" [quotation omitted]).

2016See, e.g., Commonwealth v. Rodriguez, 431 Mass. 804, 808-809 (2000) (after pattern of excluding female jurors was established, defendant’s subsequent attempt to challenge another female juror was invalid because “not lik[ing] her looks” was insufficient gender-neutral reason for peremptory challenge). b.

2015“The immediate and potential evils of compulsory self-disclosure transcend any difficulties that the exercise of the privilege may impose on society in the detection and prosecution of crime.” *434 Hoffman v. United States, 341 U.S. 479, 490 (1951) (quotation omitted).

2015“Because the privilege against self-incrimination is ‘a fundamental principle of our system of justice,’ it ‘is to be construed liberally in favor of the claimant.’ ” Commonwealth v. Leclair, 469 Mass. at 782, quoting from Commonwealth v. Borans, 388 Mass. 453, 455 (1983). “[A] refusal to testify on Fifth Amendment grounds must be upheld unless it is ‘perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency’ to incriminate” (emphasis in original).

2015“Because the privilege against self-incrimination is ‘a fundamental principle of our system of justice,’ it ‘is to be construed liberally in favor of the claimant.’ ” Commonwealth v. Leclair, 469 Mass. at 782, quoting from Commonwealth v. Borans, 388 Mass. 453, 455 (1983). “[A] refusal to testify on Fifth Amendment grounds must be upheld unless it is ‘perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency’ to incriminate” (emphasis in original).

2009We analyze the challenged remarks in context, as we would for comments made by a judge or prosecutor, that is, “whether the comments ‘can be fairly understood as permitting the jury to draw an inference adverse to the defendant from the fact of his [silence].’ ” Russo, supra at 582-583 , quoting Commonwealth v. Goulet, 374 Mass. 404, 412 (1978). 9 The challenged comments and testimony do not contain any direct reference to Vallejo nor do they expressly contrast Gomez’s willingness to speak to the police with Vallejo’s apparent unwillingness to do so.

1995See also Opinion of the Justices, 412 Mass. 1201 , 1208 n.6 (1992) (recognizing that some measure of compulsion to provide incriminating evidence is permitted without offending the privilege against self-incrimination).