Sixth Amendment violation in Massachusetts

2025We interpret art. 11 through the lens of Sixth Amendment analysis." Commonwealth v. 2 The motion judge who presided over the defendant's first motion for new trial, which considered only the defendant's claim of ineffective assistance of counsel based on the failure to obtain a medical opinion, was also the trial judge. 8 McNair, 98 Mass. App. Ct. 750 , 754 (2020), quoting Commonwealth v. Dirico, 480 Mass. 491, 505 (2018). "[T]o trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from 'presumptively

2018Even where a lengthy delay permits a presumption of prejudice, the United States Supreme Court has made clear that "presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria." Doggett v. United States , 505 U.S. 647 , 656 (1992). 3 Upon review of the motion judge's findings, and having applied the Barker factors, the defendant's constitutional right to a speedy trial was not violated.

1984L. c. 234, § 1 (other exemptions from jury service due to position as public servant, elected representative, etc.). 18 The Commonwealth appears to concede that the key man finding as to Gloucester is correct and hence challenges the findings as to the use of the key man system in Lawrence and Peabody only. 19 Although the judge carefully examined both Federal and State constitutional authority, we need not express our views as to Federal constitutional matters since, in our view, determination of the State constitutional claim is dispositive of the Commonwealth’s appeal. 20 It is likely that

1981And the Sixth Amendment requirement that a trial jury be “of the State and district wherein the crime shall have been committed,” even if applicable to the States (see discussion infra), does not seem to limit legislative power to redraw, as here, trial districts within a State. 10 This is not surprising since, given the nature and function of grand juries, see Brunson v. Commonwealth, 369 Mass. 106, 120 (1975), we doubt the defendants could seriously claim that the decision to indict them would have been different had residents of Athol been included in their grand jury pools. 11 Commonwealth

1981Those challenges, based on the Sixth Amendment requirement (as applied to the States through the Fourteenth Amendment) that trial juries be “drawn from a source fairly representative of the community,” Taylor v. Louisiana, 419 U.S. 522, 538 (1975), focus not only on the exclusion of “identifiable” equal protection classes but also on the exclusion of other significant groups in the community.

1980The proof required in a Sixth Amendment claim that a petit jury was not “drawn from a source fairly representative of the community” (Taylor v. Louisiana, 419 U.S. 522, 538 [1975]) is stated in Duren v. Missouri, 439 U.S. 357, 364 (1979).

2025We interpret art. 11 through the lens of Sixth Amendment analysis." Commonwealth v. 2 The motion judge who presided over the defendant's first motion for new trial, which considered only the defendant's claim of ineffective assistance of counsel based on the failure to obtain a medical opinion, was also the trial judge. 8 McNair, 98 Mass. App. Ct. 750 , 754 (2020), quoting Commonwealth v. Dirico, 480 Mass. 491, 505 (2018). "[T]o trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from 'presumptively

2025See Dirico, 480 Mass. at 505 ("We interpret art. 11 through the lens of Sixth Amendment analysis").

2005A Sixth Amendment claim, as opposed to a claim of preindictment delay, is evaluated in accordance with the familiar four-factor balancing test identified in Barker v. Wingo, 407 U.S. 514, 530 (1972).

2005A Sixth Amendment claim, as opposed to a claim of preindictment delay, is evaluated in accordance with the familiar four-factor balancing test identified in Barker v. Wingo, 407 U.S. 514, 530 (1972).

2025We interpret art. 11 through the lens of Sixth Amendment analysis." Commonwealth v. 2 The motion judge who presided over the defendant's first motion for new trial, which considered only the defendant's claim of ineffective assistance of counsel based on the failure to obtain a medical opinion, was also the trial judge. 8 McNair, 98 Mass. App. Ct. 750 , 754 (2020), quoting Commonwealth v. Dirico, 480 Mass. 491, 505 (2018). "[T]o trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from 'presumptively

2025See also Commonwealth v. Wallace, 472 Mass. 56, 60 (2015); Butler, 464 Mass. at 709 n.5.

2007In Commonwealth v. Manning, 373 Mass. 438, 440, 443 (1977), the court found a Sixth Amendment violation where a drug enforcement agent contacted the defendant without his counsel’s knowledge, disparaged the defendant’s counsel, and urged the defendant to become an informant “in a calculated attempt to coerce the defendant into abandoning his defense.” The court concluded that the action was so egregious that the indictment had to be dismissed.

2007In Commonwealth v. Manning, 373 Mass. 438, 440, 443 (1977), the court found a Sixth Amendment violation where a drug enforcement agent contacted the defendant without his counsel’s knowledge, disparaged the defendant’s counsel, and urged the defendant to become an informant “in a calculated attempt to coerce the defendant into abandoning his defense.” The court concluded that the action was so egregious that the indictment had to be dismissed.

1996Article 13 provides that “[i]n criminal prosecutions, the verification of facts in the vicinity where they happen, is one of the greatest securities of the life, liberty, and property of the citizen.” 7 Thus, while the drafters of the United States Constitution consciously chose the word “district” as opposed to the common law term “vicinage,” 8 see Williams v. Florida, 399 U.S. 78, 93-97 (1970), the drafters of the Massachusetts Declaration of Rights chose the popular word “vicinity” over the technical legal concept of “vicinage.” “[T]he word vicinity is not technical, with a precise legal me

1996Article 13 provides that “[i]n criminal prosecutions, the verification of facts in the vicinity where they happen, is one of the greatest securities of the life, liberty, and property of the citizen.” 7 Thus, while the drafters of the United States Constitution consciously chose the word “district” as opposed to the common law term “vicinage,” 8 see Williams v. Florida, 399 U.S. 78, 93-97 (1970), the drafters of the Massachusetts Declaration of Rights chose the popular word “vicinity” over the technical legal concept of “vicinage.” “[T]he word vicinity is not technical, with a precise legal me

1996See also Alvarado v. State, 486 P.2d 891 , 896 n.9 (Alaska 1971); People v. Taylor, 39 N.Y.2d 649, 653 (1976).

1981See Williams v. Florida, 399 U.S. 78, 96 (1970); People v. Taylor, 39 N.Y.2d 649, 653-654 (1976); Blume, supra at 66.

1996See Commonwealth v. Duteau, supra at 331 (it is generally agreed for purposes of the Sixth Amendment requirement that the word “district” refers to the Federal judicial districts created by Congress).

1995See Commonwealth v. Duteau, 384 Mass. 321, 329-330 (1984) (stating geographical group not sufficiently distinct for successful Sixth Amendment challenge); Zicarelli v. Dietz, 633 F.2d 312, 315-316 (3d Cir. 1980), cert. denied, 449 U.S. 1083 (1981) (holding residents of Hudson County merely geographical group not subject to Sixth Amendment protection); United States v. Foxworth, 599 F.2d 1, 3-4 (1st Cir. 1979) (holding that registered voters of various cities and towns not cognizable group for Sixth Amendment purposes); United States v. Test, 550 F.2d 577 , 582 & n.4 (10th Cir. 1976) (stating a

2025See also Commonwealth v. Wallace, 472 Mass. 56, 60 (2015); Butler, 464 Mass. at 709 n.5.

2018See Commonwealth v. Butler , 464 Mass. 706 , 709 n.5, 985 N.E.2d 377 (2013) ("Although we ultimately decide this case pursuant to art. 11 ..., we cite Federal cases that interpret the Sixth Amendment ... because the analysis is analogous").

2018Regardless of the reason for counsel's failure to lodge a contemporaneous objection to the closure, the trial judge is deprived of the opportunity to evaluate the claim "at a time when the violation could have been remedied." See Cohen (No. 1) , 456 Mass. at 118 n.35, 921 N.E.2d 906 .

2014See Cohen (No. 1), 456 Mass. at 101 & n.10 (excluding potential witness from scope of defendant’s Sixth Amendment challenge to alleged partial closure of court room during jury empanelment because potential witness “would not have been allowed in the court room for empanelment in any event because of a witness sequestration order in the case”).

1995See Commonwealth v. Duteau, 384 Mass. 321, 329-330 (1984) (stating geographical group not sufficiently distinct for successful Sixth Amendment challenge); Zicarelli v. Dietz, 633 F.2d 312, 315-316 (3d Cir. 1980), cert. denied, 449 U.S. 1083 (1981) (holding residents of Hudson County merely geographical group not subject to Sixth Amendment protection); United States v. Foxworth, 599 F.2d 1, 3-4 (1st Cir. 1979) (holding that registered voters of various cities and towns not cognizable group for Sixth Amendment purposes); United States v. Test, 550 F.2d 577 , 582 & n.4 (10th Cir. 1976) (stating a

1995See Commonwealth v. Duteau, 384 Mass. 321, 329-330 (1984) (stating geographical group not sufficiently distinct for successful Sixth Amendment challenge); Zicarelli v. Dietz, 633 F.2d 312, 315-316 (3d Cir. 1980), cert. denied, 449 U.S. 1083 (1981) (holding residents of Hudson County merely geographical group not subject to Sixth Amendment protection); United States v. Foxworth, 599 F.2d 1, 3-4 (1st Cir. 1979) (holding that registered voters of various cities and towns not cognizable group for Sixth Amendment purposes); United States v. Test, 550 F.2d 577 , 582 & n.4 (10th Cir. 1976) (stating a

2025See Commonwealth v. Hodge, 386 Mass. 165, 170 (1982).

2025See Commonwealth v. Hodge, 386 Mass. 165, 170 (1982).

2024Cf. Commonwealth v. Blake, 428 Mass. 57, 60-61 (1998) (no Sixth Amendment issue where statements referred to but did not inculpate defendant).

2024See Commonwealth v. Roberts, 472 Mass. 355, 355, 363 (2015) (holding that civil commitment as sexually dangerous person [SDP] is not direct consequence of sexual offense conviction).18 In sum, we are not persuaded by the juvenile's 18The defendant in Roberts, 472 Mass. at 355 , argued that a Sixth Amendment analysis should be applied to his counsel's failure to inform him that pleading guilty to forcible rape of a child could result in his being civilly confined as a "sexually dangerous person." The Supreme Judicial Court rejected that argument, declining to apply the Padilla analysis to other

2024See Commonwealth v. Roberts, 472 Mass. 355, 355, 363 (2015) (holding that civil commitment as sexually dangerous person [SDP] is not direct consequence of sexual offense conviction).18 In sum, we are not persuaded by the juvenile's 18The defendant in Roberts, 472 Mass. at 355 , argued that a Sixth Amendment analysis should be applied to his counsel's failure to inform him that pleading guilty to forcible rape of a child could result in his being civilly confined as a "sexually dangerous person." The Supreme Judicial Court rejected that argument, declining to apply the Padilla analysis to other

2023See United States v. Soto, 720 F.3d 51 , 59 n.5 (1st Cir.), cert. denied, 571 U.S. 930 (2013), citing Bullcoming, 564 U.S. at 666, 674 ("In part IV of the Supreme Court's Bullcoming opinion, joined only by Justice Scalia, Justice Ginsburg observed that the [S]tate could have avoided a Sixth Amendment violation when it realized that the original scientist was unavailable to testify 'by asking [the testifying analyst] to retest the sample, and then testify to the results of his retest rather than to the results of a test he did not conduct or observe.' . . .

2023See United States v. Soto, 720 F.3d 51 , 59 n.5 (1st Cir.), cert. denied, 571 U.S. 930 (2013), citing Bullcoming, 564 U.S. at 666, 674 ("In part IV of the Supreme Court's Bullcoming opinion, joined only by Justice Scalia, Justice Ginsburg observed that the [S]tate could have avoided a Sixth Amendment violation when it realized that the original scientist was unavailable to testify 'by asking [the testifying analyst] to retest the sample, and then testify to the results of his retest rather than to the results of a test he did not conduct or observe.' . . .

2023See United States v. Soto, 720 F.3d 51 , 59 n.5 (1st Cir.), cert. denied, 571 U.S. 930 (2013), citing Bullcoming, 564 U.S. at 666, 674 ("In part IV of the Supreme Court's Bullcoming opinion, joined only by Justice Scalia, Justice Ginsburg observed that the [S]tate could have avoided a Sixth Amendment violation when it realized that the original scientist was unavailable to testify 'by asking [the testifying analyst] to retest the sample, and then testify to the results of his retest rather than to the results of a test he did not conduct or observe.' . . .

2023See United States v. Soto, 720 F.3d 51 , 59 n.5 (1st Cir.), cert. denied, 571 U.S. 930 (2013), citing Bullcoming, 564 U.S. at 666, 674 ("In part IV of the Supreme Court's Bullcoming opinion, joined only by Justice Scalia, Justice Ginsburg observed that the [S]tate could have avoided a Sixth Amendment violation when it realized that the original scientist was unavailable to testify 'by asking [the testifying analyst] to retest the sample, and then testify to the results of his retest rather than to the results of a test he did not conduct or observe.' . . .

2023See United States v. Soto, 720 F.3d 51 , 59 n.5 (1st Cir.), cert. denied, 571 U.S. 930 (2013), citing Bullcoming, 564 U.S. at 666, 674 ("In part IV of the Supreme Court's Bullcoming opinion, joined only by Justice Scalia, Justice Ginsburg observed that the [S]tate could have avoided a Sixth Amendment violation when it realized that the original scientist was unavailable to testify 'by asking [the testifying analyst] to retest the sample, and then testify to the results of his retest rather than to the results of a test he did not conduct or observe.' . . .

2023See United States v. Soto, 720 F.3d 51 , 59 n.5 (1st Cir.), cert. denied, 571 U.S. 930 (2013), citing Bullcoming, 564 U.S. at 666, 674 ("In part IV of the Supreme Court's Bullcoming opinion, joined only by Justice Scalia, Justice Ginsburg observed that the [S]tate could have avoided a Sixth Amendment violation when it realized that the original scientist was unavailable to testify 'by asking [the testifying analyst] to retest the sample, and then testify to the results of his retest rather than to the results of a test he did not conduct or observe.' . . .

2019See Crawford v. Washington , 541 U.S. 36 , 59 n.9, 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004).

2019See Crawford v. Washington , 541 U.S. 36 , 59 n.9, 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004).

2018See, e.g., Lang , 473 Mass. at 7 -9 , 38 N.E.3d 262 (no objection at trial; claim raised in first motion for new trial as Sixth Amendment violation while direct appeal pending); Jackson , 471 Mass. at 268 -269 , 28 N.E.3d 437 (no objection at trial; claim raised as Sixth Amendment violation in motion for new trial); Alebord , 467 Mass. at 107 -108 , 4 N.E.3d 248 (no objection at trial; claim not raised in first motion for new trial or direct appeal and asserted as claim of ineffective assistance of counsel); Lavoie , 464 Mass. at 84 , 981 N.E.2d 192 (no objection at trial; claim raised as Sixt

2018See, e.g., Lang , 473 Mass. at 7 -9 , 38 N.E.3d 262 (no objection at trial; claim raised in first motion for new trial as Sixth Amendment violation while direct appeal pending); Jackson , 471 Mass. at 268 -269 , 28 N.E.3d 437 (no objection at trial; claim raised as Sixth Amendment violation in motion for new trial); Alebord , 467 Mass. at 107 -108 , 4 N.E.3d 248 (no objection at trial; claim not raised in first motion for new trial or direct appeal and asserted as claim of ineffective assistance of counsel); Lavoie , 464 Mass. at 84 , 981 N.E.2d 192 (no objection at trial; claim raised as Sixt

2015Cf. LaChance, 469 Mass. at 858-859 (when Sixth Amendment violation is unpreserved due to ineffective assistance of counsel and attacked on collateral grounds, defendant must show prejudice notwithstanding structural nature of claim).

2014See also Nicely v. State, 291 Ga. 788, 793-794 (2012), and cases cited (collecting “case upon case in which courts have held that the rule of sequestration ordinarily does not even implicate the right to public trial, much less infringe upon it”).