Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault

6.MOTIONS

6.1.TACTICS

Be in the driver’s seat: proactively file motions.

Review the sample motions provided and file all motions which would be helpful in your case. You are the driver. Discuss the facts with others in your office, evaluate the case in light of the legal standards set forth in the sample motions and memoranda, and proactively file appropriate motions.

• 
  It is better to file a motion for joinder than to be on the defensive end of a motion to sever.
  
• 
  It is better to file a motion to preclude testimony about a victim’s prior sexual activity than to find yourself merely objecting to an improper question by defense counsel, in the presence of the jury, with the only recourse being the judge’s instruction that the jury disregard what they have heard.
  
• 
  It is better to give the court the opportunity and reasoning it needs to make correct evidentiary rulings on issues such as excited utterances or prior bad acts. If you wait until trial, the court may hurriedly sustain defense objections to your questions, depriving the jury of critical evidence.
  

Certain motions are critical tools in domestic violence cases.

• 
  Most notably, fight hard for permission to present evidence of the defendant’s prior bad acts, including evidence about an abusive relationship between defendant and victim prior to the incident. Present great detail about both the facts of the instant case and the facts of the prior incidents so that the judge may clearly see the relevance and importance of the prior events (i.e., incidents in the past where the defendant pulled out the victim’s hair; and testimony in the present case from witnesses who saw the victim was missing hair on her scalp, or police officers who found hair at the scene of the crime).
  
• 
  If your motion is denied, listen carefully to defense questions and all witnesses: they may open the door for you (i.e. defense counsel asks the victim “He didn’t bother you last month, did he?; you will then argue to the Court that you are entitled to explain to the jury the defendant was in jail, and therefore couldn’t bother the victim last month).
  
• 
  Your ability to file successful motions to admit prior bad acts will also be greatly assisted if your office keeps accessible files on cases which were not prosecuted or were dismissed -- should the parties reappear, you will have the facts and witnesses in place to support your motion.
  

There are advantages to filing certain motions at the same time.

• 
  For example, if you seek to try several cases at the same time, and are filing a motion for joinder, consider simultaneously filing a motion to admit testimony about the defendant’s prior bad acts. This will send the message to the court that whether or not the cases are in fact joined, all of the evidence will be heard -- at the very least, in a motion session, and most probably, at trial as well -- so that the most efficient manner of resolution would be to join the cases.
  

With the exception of Discovery Motions, each potential motion requires individual analysis in each case.

• 
  Don’t just file motions routinely without reviewing the particular impact on your particular case. For example, if you are prosecuting a series of domestic violence cases involving the same defendant and victim, and one of the cases is significantly weaker than the others, don’t be afraid to cut it loose. If it will hurt the other cases, consider resolving it in district court before indicting the other offenses, or maintaining them in superior court as two separate cases. Joinder is not always appropriate.
  

6.2.MOTIONS REGARDING BAIL OR PRE-TRIAL DETENTION

6.2.1.Motion for Order of c. 276 s. 58A Pretrial Detention

COMMONWEALTH OF MASSACHUSETTS

____________, SS _____________COURT DEPARTMENT

NO. ________
COMMONWEALTH
V.

__________________________________

COMMONWEALTH’S MOTION FOR ORDER OF PRETRIAL DETENTION OR, IN THE ALTERNATIVE, CONDITIONAL RELEASE BASED ON DANGEROUSNESS

Pursuant to M.G.L. c. 276, §58A, the Commonwealth moves that this Court order that the defendant be detained pending trial or, in the alternative, be released subject to conditions. As reasons therefore, the Commonwealth states that the defendant is charged with ________________________________ which is:

_______ a felony which has as an element the use, attempted use, or threatened use of physical force against the person of another; or
_______ any other felony which by its nature involves a substantial risk that physical force against the person of another may result (including burglary and arson,

whether or not a person has specifically been placed at risk); or

_______ a violation of an order pursuant to M.G.L. c. 208, §§§18, 34B, or 34C; M.G.L. c. 209, §32; M.G.L. c. 209A, §§§3, 4, or 5; M.G.L. c. 209C, §§15 or 20; or
_______ an arrest and charge for a misdemeanor or felony involving “abuse” as defined in M.G.L. c. 209A, §1 or while a 209A order was in effect against the defendant; or
______ an offense for which M.G.L. c. 94C prescribes a mandatory minimum term of three years or more; or
_______ a third or subsequent conviction of M.G.L. c. 90, §24.
The Commonwealth requests a hearing on this motion.

For the Commonwealth,

_______________________

DISTRICT ATTORNEY

by: _____________________

_________________________

Assistant District Attorney

6.2.2.Motion to Continue c. 276 s. 58A Pre-trial Detention Hearing

COMMONWEALTH OF MASSACHUSETTS
____________, SS _____________COURT DEPARTMENT

NO. ________

COMMONWEALTH

V.
_______________________________________
COMMONWEALTH’S MOTION TO CONTINUE PRETRIAL DETENTION HEARING

Now comes the Commonwealth in the above-captioned matter and moves, pursuant to M.G.L. c. 276 §58A, upon a showing of good cause, for a continuance of the pretrial detention hearing on this defendant to ______________ on the grounds that _________________________

_______________________________________________________________________

_______________________________________________________________________.

Such date requested is within the three business day window allowed by statute in which the Commonwealth may seek to continue a pretrial detention hearing.

For the Commonwealth,

_______________________

DISTRICT ATTORNEY

by: _____________________

_________________________

Assistant District Attorney

_________________________

_________________________

_________________________

Dated: _________________

6.2.3.Motion to Continue Defendant’s Detention Under c. 276 §58A Pre-trial Detention Hearing

COMMONWEALTH OF MASSACHUSETTS
____________, SS _____________COURT DEPARTMENT

NO. ________

COMMONWEALTH

V.
_______________________________________
COMMONWEALTH’S MOTION TO CONTINUE DEFENDANT’S DETENTION UNDER M.G.L. c. 276, §58A

Now comes the Commonwealth in the above-captioned matter and respectfully requests that, pursuant to M.G.L. c. 276 §58A, this Honorable Court find that the defendant’s continued detention is for “good cause.” As grounds therefore, the Commonwealth relies upon the attached memorandum.

For the Commonwealth,
_______________________

DISTRICT ATTORNEY

by: _____________________

_________________________

Assistant District Attorney

_________________________

_________________________

_________________________

Dated: _________________

6.2.4.Motion for Proposed Conditions of Release under M.G.L. c. 276, §42A

COMMONWEALTH OF MASSACHUSETTS

____________, S.S. DISTRICT COURT DEPARTMENT

[COURT NAME ONLY] DIVISION

DOCKET NO.: [insert docket number]
COMMONWEALTH
v.
[DEFENDANT NAME]

COMMONWEALTH'S PROPOSED CONDITIONS OF

RELEASE UNDER M.G.L. c. 276, § 42A


Now comes the Commonwealth in the above-entitled matter and respectfully requests, pursuant to M.G.L. c. 276, § 42A, that this Court impose the following conditions of release on the defendant:
 The Defendant will not commit a federal, state, or local crime during the period of release.
 The Defendant will stay away from the home(s), place(s) of work, and/or school(s), if any, and avoid all contact, direct or indirect, with the alleged victim(s) of the crime and with all potential witness(es) who may testify concerning the offense, including those mentioned in any police reports, and specifically:________________________________________________________

__________________________________________________________________

__________________________________________________________________
 The Defendant will not abuse the alleged victim(s) of the crime charged.
 The Defendant agrees to abide by the following restrictions related to travel, personal associations, or place of abode: _____________________________________________
 The Defendant will refrain from possessing a firearm, destructive device, or other dangerous weapon.
 The Defendant will abide by all active restraining orders.
 The Defendant will satisfy the following other conditions:

_________________________________________________

As reasons therefore, the Commonwealth states that the above-captioned matter involves assault and battery, trespass, threats to commit a crime, nonsupport, or some other crime which involves the infliction, or the imminent threat of infliction, of physical harm upon a person by such person’s family or household member as defined in M.G.L. c. 209A
The Defendant is warned that should the Defendant commit a violation of this or any existing order of release, or commit a new crime while on release, the Defendant’s recognizance may be revoked and the Defendant may be held without bail pending disposition of his or her open matters.
Respectfully Submitted,

For the Commonwealth

_____________________

DISTRICT ATTORNEY

By: ________________________

____________________________

ASSISTANT DISTRICT ATTORNEY

Dated: __________________________

6.2.5.Motion to Revoke Bail

COMMONWEALTH OF MASSACHUSETTS
____________, SS _____________COURT DEPARTMENT

NO. ________

COMMONWEALTH

V.
_______________________________________


COMMONWEALTH’S MOTION TO REVOKE DEFENDANT’S BAIL

UNDER M.G.L. c. 276, §58

Now comes the Commonwealth in the above-captioned matter and moves this Honorable Court to revoke the defendant’s surety in the above-entitled matter pursuant to M.G.L. c. 276, §58. As grounds therefore, the Commonwealth states the following:

1. 
   The defendant was given his bail warnings pursuant to M.G.L. c. 276, §58 on (DATE -----) as demonstrated by Docket ( ------- ) (Exhibit “A”).
   

2. 
   There is probable cause to believe that the defendant has committed a new offense. The defendant was arraigned today on Docket (----------). He is charged with assault and battery with a dangerous weapon (Exhibit “B”).
   

3. 
   The defendant poses a danger to the community or a given individual.
   

The Commonwealth requests a hearing on this matter.

For the Commonwealth,

_______________________

DISTRICT ATTORNEY

by: _____________________

_________________________

Assistant District Attorney

_________________________

6.2.6.Motion to Exclude Time from that Attributed to the c. 276, §58A Pretrial Detention Order

COMMONWEALTH OF MASSACHUSETTS

__________, SS. DISTRICT COURT DEPARTMENT

_________ DIVISION

Dkt. No.

COMMONWEALTH

v.

COMMONWEALTH’S MOTION TO EXCLUDE

TIME FROM THAT ATTRIBUTED TO THE c.276,§58A PRETRIAL DETENTION ORDER


Introduction

Now comes the Commonwealth in the above-captioned matter and moves, pursuant to G.L. c.276,§58A and the Massachusetts Rules of Criminal Procedure 36(b)(2), to exclude delay attributable to the defendant’s request for continuances from the ninety-day pretrial detention order. On _______, after hearing, the defendant was held without bail by Judge _______ pursuant to G.L. c.276,§58A.

Argument

Chapter 276,§58A provides that the defendant “shall be brought to trial as soon as reasonable possible, but in absence of good cause, the person so held shall not be detained for a period exceeding ninety days excluding any period of delay as defined in Massachusetts Rules of Criminal Procedure 36(b)(2).” G.L. c. 276,§58A(3). Rule 36 defines excludable periods, in relevant part, as follows: “delay resulting from interlocutory appeals;” “delay resulting from hearings on pretrial motions;” and “delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement.” Rule 36(b)(2)(A)(iv), (v), and (vii). The rule also provides that “[I]n computing any time limit other than an excluded period, the day of the act or event which causes a designated period of time to begin to run shall not be included. Computation of an excluded period shall include both the first and the last day of the excludable act or event.” Here, time attributed to the continuances agreed to and requested by the defendant for pretrial motions is excludable by definition.

“When a claim is raised under rule 36, the docket and minutes of the clerk are prima facie evidence of the facts recorded therein.” Commonwealth v. Farris, 390 Mass. 300, 303-304 (1983), quoting Barry v. Commonwealth, 390 Mass. 285, 289 (1983). Here, the docket reflects continuance dates with no record of objections by the defendant to any of the continuance dates. The defendant requested further pre-trial hearings in order to obtain a tape of the c.276,§58A hearing to use at trial to impeach witnesses. Thus, said periods of time are excluded under Rule 36, and are not to be included in the ninety-day in the c.276,§58A calculation. It is well-settled that “[w]hen a defendant has agreed to continuances or failed to object to delays, he will be held to have acquiesced in them for rule 36 purposes.” Commonwealth v. McCants, 20 Mass. App. Ct. 294, 295 (1985); see also, Commonwealth v. Look, 379 Mass. 893, 898-899 (1980); Commonwealth v. Lauria, 411 Mass. 63, 67-69 (1991). Here, the defendant did not object to any delays and in fact requested the continuances.

Moving to the calculation of the defendant’s detention, the case has been continued without objection during the following period:_________________. The case has been continued by at the defendant’s request during the following period: _____________________. Thus, all the time from ___________ until the present is time to be excluded as periods reflecting continuances without objection by defense and continuance periods agreed or requested by defense. “The heavier burden to ‘press [the] case through the criminal justice system’ remains upon the defendant.” Commonwealth v. McDonald, 21 Mass. App. Ct. 368, 374 (1986), quoting Barry v. Commonwealth, 390 Mass. at 296-297. The defendant cannot now object to the length of his detention, if he was responsible for the delay.

Conclusion

Therefore, the Commonwealth requests that this Honorable Court find that the time periods between ___________ until the present be excluded from the calculation of the ninety-day pretrial detention order.

The Commonwealth requests a hearing on this motion.
For the Commonwealth,
_______________________

DISTRICT ATTORNEY

by: _____________________

_________________________

Assistant District Attorney

_________________________

Dated: _________________

6.2.7.Motion to Revoke Defendant’s c.276,§58A Release

COMMONWEALTH OF MASSACHUSETTS

__________, S.S. ____________________COURT

_____________DIVISION

DOCKET NO.:
COMMONWEALTH
v.
______________________________________

COMMONWEALTH’S MOTION TO REVOKE DEFENDANT’S

CHAPTER 276 SEC. 58A RELEASE

Now comes the Commonwealth, in the above-entitled matter and moves pursuant to M.G.L. c. 276, § 58B, and respectfully requests this Honorable Court:

1. 
   Revoke the defendant’s bail for up to 90 days, on pending case,
   

Docket no.:

Court:

As reasons therefore, the Commonwealth states that:

1. The defendant was released on conditions under Chapter 276 sec. 58A on (DATE).

2. 
   One of those conditions was to stay away from the alleged victim and avoid all contact, direct or indirect.
   

2. 
   There is clear and convincing evidence that the defendant has violated this condition of her release.
   

2. 
   There are no conditions of release that will reasonable assure the defendant will not pose a danger to the safety of any other person or the community, or the defendant is unlikely to abide by any condition or combination of conditions of release
   

Respectfully Submitted

For the Commonwealth,

______________________

DISTRICT ATTORNEY

By: ________________

________________________

Assistant District Attorney