This focused practice manual is a guide to the substantive law, procedural requirements, and practical strategies necessary for handling sex offense cases. It addresses topics as they arise during the course of the lawyer's development of the case, from the essential elements of the prosecution's case-in-chief through the collateral consequences of a conviction. Applicable statutes, available defenses, investigation and discovery, pretrial motions, voir dire, and trial issues are all addressed in detail.A Comprehensive Guide to a Challenging Practice
Table of Contents
Chapter 01 - Statutes, Elements, and PenaltiesTara B. Burdman, Esq.,
Bristol District Attorney's Office
Chapter 02 - Defenses to Charges of Sexual Assault and Other Sexual Crimes
Jeffrey A. Garland, Esq.,
Committee for Public Counsel Services
Checklist 2.1 - Checklist of Defenses to Charges of Sexual Assault
Exhibit 2A - Amendments to G.L. c. 277, § 63 Regarding Statutes of Limitations in Sex Offense Cases
Chapter 03 - Discovery and Investigation in Sex Offense Cases
Lawrence W. Madden, Esq.,
Committee for Public Counsel Services
Checklist 3.1 - Checklist for Discovery and Investigation in Sex Offense Cases
Exhibit 3A - Motion to Preserve Evidence
Exhibit 3B - Letter to Police Regarding Client Representation
Exhibit 3C - Motion for Exculpatory Evidence: Details of Interviews with Alleged Victim - Child
Exhibit 3D - Motion for Preservation of and Access to Physical Evidence
Exhibit 3E - Motion for List of Persons Present
Exhibit 3F - Motion for Statements of Complaining Witness (Adult)
Exhibit 3G - Motion for Discovery of Exculpatory Evidence: Inconsistent Statements
Exhibit 3H - Motion for Exculpatory Evidence: Prior Complaints (Adult)
Exhibit 3I - Motion for Exculpatory Evidence: Prior Complaints (Child)
Exhibit 3J - Motion for Disclosure and Production of Medical Records
Exhibit 3K - Motion for Production of School Records
Exhibit 3L - Motion for Production of Police Reports and Supporting Statements
Exhibit 3M - Motion for Discovery of Prospective Expert Testimony
Exhibit 3N - Motion for Disclosure of Prior and Subsequent Bad Acts
Exhibit 3O - Motion for Bill of Particulars
Exhibit 3P - Motion for Production of 51A and 51B Department of Children and Families Records
Exhibit 3Q - Affidavit in Support of Motion for Exculpatory Evidence: DCF Records
Exhibit 3R - Motion for Psychiatric History of Complaining Witness
Exhibit 3S - Motion for Rewards, Promises, and Inducements
Exhibit 3T - Motion for Disclosure of Identification Procedures
Exhibit 3U - Motion for Information Regarding History of Drug and Alcohol Abuse of Any Commonwealth Witness
Exhibit 3V - Affidavit in Support of Defendant’s Motion for Information
Exhibit 3W - Motion for Discovery of Exculpatory Evidence: Media or Print Materials
Exhibit 3X - Motion for Expenses
Exhibit 3Y - Affidavit in Support of Motion for Expenses
Exhibit 3Z - Motion for Victim Witness Advocate Reports
Chapter 04 - Affirmative Pretrial Motions
C. Henry Fasoldt, Esq.,
C. Henry Fasoldt, Attorney At Law
Checklist 4.1 - Checklist for Affirmative Pretrial Motions
Exhibit 4A - Opposition to Commonwealth’s Motion for an Order Compelling Defendant to Provide a DNA Sample by Means of a Buccal Swab (Sample Previously Taken)
Exhibit 4B - Motion in Opposition to Compelled Submission to Oral Swabbing
Exhibit 4C - Motion for Production of Hospital Records in a Sexual Assault Case
Exhibit 4D - Baxter Motion
Exhibit 4E - Motion in Limine to Exclude Proposed Expert Testimony: Characteristics of Child Sex Abuse and “Delayed Disclosure”
Exhibit 4F - Motion to Admit Evidence of Alleged Victim’s Sexual Conduct with Defendant Pursuant to G.L. c. 233, § 21B (Rape Shield Statute) and Supporting Affidavit
Exhibit 4G - Motion Pursuant to G.L. c. 233, § 21B (Rape Shield Statute) re: Evidence of Physical Condition of Victim-Victim’s Sexual Conduct and Supporting Affidavit
Exhibit 4H - Ruffen Motion
Exhibit 4I - Pyne Motion
Exhibit 4J - Motion Pursuant to Commonwealth v. Dwyer to Permit Defense Counsel to Admit into Evidence the “Psych Consult” of Alleged Victim
Chapter 05 - Production of Third-Party Records
Julie A. Buszuwski, Esq.,
Committee for Public Counsel Services
Sandra Gant, Esq.,
Federal Public Defender Office
Exhibit 5A - Motion to Expand Protective Order to Allow Copies of Privileged Records to Be Made Available to Counsel and His Expert
Exhibit 5B - Motion Pursuant to Commonwealth v. Dwyer to Permit Defense Counsel to Admit into Evidence Psychiatric Record of Alleged Victim
Exhibit 5C - Motion for Production of Mobile Data Terminal Records
Exhibit 5D - Motion for Court Summons of Internal Affairs Documents
Exhibit 5E - Motion for Production of Surveillance Video
Exhibit 5F - Motion for Court Order to Permit Defense Counsel and Investigator to View, Measure, and Photograph Crime Scene
Exhibit 5G - Motion to Order Employer to Comply with Rule 17(a)(2) Summons, or for Show Cause Hearing
Exhibit 5H - Sample Public Records Request
Exhibit 5I - Sample Appeal of Public Records Request Denial
Exhibit 5J - Sample FOIA Request
Chapter 06 - Specific Issues with Child Complainants
Joanne M. Daley, Esq.,
Federal Public Defender Office
Checklist 6.1 - Checklist of Special Issues with Child Complainants in Sex Offense Cases
Exhibit 6A - Motion for Exculpatory Evidence: Details of Interviews with the Child
Exhibit 6B - Motion for Information Regarding the Qualifications of Any Commonwealth Witnesses Who Interviewed the Child
Exhibit 6C - Motion for Preservation of, and Access to, the Physical Evidence
Exhibit 6D - Motion to Have Any Subsequent Interviews of the Complainant Videorecorded
Exhibit 6E - Motion for a Pretrial Taint Hearing and Affidavit in Support
Exhibit 6F - Motion in Limine Regarding Commonwealth Expert Testimony on the Dynamics of Child Sexual Abuse and a Request for a Voir Dire Hearing on the Reliability of the Testimony
Exhibit 6G - Memorandum in Support of the Defendant’s Motion in Limine Regarding Commonwealth Expert Testimony on the Dynamics of Child Sexual Abuse
Exhibit 6H - Motion for Voir Dire Hearing Regarding Commonwealth Expert Witnesses
Exhibit 6I - Motion in Limine Regarding Commonwealth’s Expert Testimony on the Lack of Physical Trauma to the Child Complainant
Exhibit 6J - Required Reading Concerning the Suggestibility of Children and Flawed Interview Techniques
Exhibit 6K - Quotations and References from Learned Treatises for Use in Cross-Examination of Medical Doctor in Child Abuse Case
Exhibit 6L - Quotations and References from Learned Treatises for Use in Cross-Examination of Psychological Expert in Child Abuse Case
Chapter 07 - Forensic Evidence
Hon. Ira L. Gant,
Plymouth Superior Court, Commonwealth of Massachusetts
Checklist 7.1 - Forensic Evidence Checklist for Defense Counsel
Exhibit 7A - Sample Motion for Funds for DNA Expert
Exhibit 7B - Protocol for Adult/Adolescent SANEs: Section I (Introduction) and Section IX: SANE Forensic Examination
Exhibit 7C - Sexual Assault Kits and Forensics
Exhibit 7D - Websites for Research on Sexual Abuse of Children
Exhibit 7E - Sample Commonwealth Motion to Compel Defendant to Provide Buccal Swab
Exhibit 7F - Sample Defendant’s Opposition to Commonwealth’s Motion to Compel Defendant to Provide a DNA Sample by Means of a Buccal Swab
Exhibit 7G - Representation of the Twenty-Three Pairs of Chromosomes
Exhibit 7H - Artistic Rendition of Paired Chromosome, DNA Structure, and Base Pairs
Exhibit 7I - Sample Motion for DNA Discovery
Exhibit 7J - Table Showing Approximate Location of Each Locus Among the Chromosomes
Exhibit 7K - Example of Electropherogram
Exhibit 7L - Sample DNA Report
Exhibit 7M - Reference Authorities: Forensic Evidence in Sex Offense Cases
Exhibit 7N - Flow Chart of Sperm Life
Exhibit 7O - Useful Websites for Research and Statistics on Sexual Assault
Chapter 08 - Voir Dire Issues
Matthew J. Fleischner, Esq.,
Committee for Public Counsel Services
Hon. Mary-Lou Rup,
Bulkley, Richardson and Gelinas LLP
Checklist 8.1 - Checklist of Voir Dire Issues
Exhibit 8A - Superior Court Rule 6: Jury Selection
Exhibit 8B - Sample Defense Motion for Voir Dire Questions
Exhibit 8C - Sample Prosecution Motion for Voir Dire Questions
Exhibit 8D - Sample Respondent’s Motion for Voir Dire Questions
Exhibit 8E - Sample Motion for Attorney-Conducted [Panel or Individual] Voir Dire
Exhibit 8F - Superior Court Voir Dire - A Procedural Overview
Chapter 09 - Issues Pertaining to the Complainant at Trial
Lisa S. Lippiello, Esq.,
Olin Lippiello LLP
Checklist 9.1 - Defense Counsel’s Checklist of Issues Pertaining to the Complainant at Trial in a Sex Offense Case
Exhibit 9A - Motion to Admit Evidence Pursuant to G.L. c. 233, § 21B
Exhibit 9B - Juvenile’s Motion to Admit Evidence Pursuant to G.L. c. 233, § 21B
Exhibit 9C - Juvenile’s Motion in Limine
Exhibit 9D - Motion to Admit Evidence of False Allegations of Rape
Exhibit 9E - Motion for Exculpatory Evidence
Exhibit 9F - Motion to Admit Evidence
Exhibit 9G - Motion for Hearing Concerning Witnesses
Chapter 10 - Issues Pertaining to the Adult Defendant at Trial
J. Anne Iglehart, Esq.,
Iglehart & Porges
Checklist 10.1 - Checklist of Issues for Representing an Adult Sex Offense Defendant at Trial
Chapter 11 - Issues Pertaining to the Juvenile Defendant at Trial
Laura Alfring, Esq.,
Committee for Public Counsel Services - Youth Advocacy Division
Stacey G. Bloom, Esq.,
Department of Youth Services, Commonwealth of Massachusetts
James Robert Ladino, Esq.,
Committee for Public Counsel Services, Children and Family Law Division
Stephanie Stolk Ormsby, Esq.,
Committee for Public Counsel Services
Joshua Reuling, Esq.,
Committee for Public Counsel Services
Checklist 11.1 - Checklist for Attorneys Representing Juveniles Charged with Sex Offenses
Checklist 11.2 - Checklist for Persons Adjudicated Delinquent or Youthful Offender Who Must Register as a Sex Offender
Exhibit 11A - Juvenile’s Motion to Dismiss Rape of a Child and Indecent Assault and Battery on a Child Charges
Exhibit 11B - Juvenile’s Memorandum in Support of Motion to Dismiss Based on Right to Privacy, Equal Protection, and Selective Prosecution
Exhibit 11C - Juvenile’s Memorandum in Support of Motion to Dismiss Based on Cruel and Unusual Punishment, Right to Privacy, and Due Process
Exhibit 11D - Juvenile’s Memorandum in Support of Motion to Dismiss Based on Vagueness and Ambiguity of Statute and Public Policy
Exhibit 11E - Motion to Dismiss Sex Offense Charged Based on Failure to Establish Infliction or Threatening of Serious Bodily Harm
Exhibit 11F - Suggested Adolescent-Specific Language for Jury Instructions
Chapter 12 - First Complaint Issues at Trial
Julie A. Buszuwski, Esq.,
Committee for Public Counsel Services
Checklist 12.1 - Checklist of First Complaint Issues
Exhibit 12A - Defendant’s Motion in Limine to Limit Proposed “First Complaint” Testimony and Request for Limiting Instruction
Exhibit 12B - Defendant’s Motion in Limine Opposing Commonwealth’s Motion to Substitute First Complaint Witness
Exhibit 12C - Juvenile’s Motion in Limine to Limit First Complaint Testimony and Request for Limiting Instruction
Chapter 13 - Experts for Prosecution and Defense
James Kaeding, Esq.,
Committee for Public Counsel Services
Checklist 13.1 - Checklist for Consideration of Experts in a Sex Offense Trial
Exhibit 13A - Chart of Court Appeal Structure
Chapter 14 - Cross-Examination Examples in Sexual Assault Cases
Kelli L. Porges, Esq.,
Iglehart & Porges
Checklist 14.1 - Checklist for Cross-Examination in a Sexual Assault Case
Exhibit 14A - Cross-Examination of Complainant in Consent Defense Case
Exhibit 14B - Sample Examination of Police Criminalist Regarding Rape Kit and Secretor Status
Exhibit 14C - Sample Cross-Examination of Criminalist Regarding Whether There Was Any Sexual Activity at All and, If So, the Identifying Markers of the Assailant
Exhibit 14D - Suggested Cross-Examination Areas for Medical Personnel Initially Treating Patient Complaining of Sexual Assault
Exhibit 14E - Sample Motion for Leave to Subpoena Treatment Records Pursuant to Commonwealth v. Lampron
Exhibit 14F - Sample Discovery Motion
Exhibit 14G - Sample Motion in Limine to Admit Specific Act(s) of Sexual Conduct by Complaining Witness
Chapter 15 - Motions in Limine
Laurel A. Singer, Esq.,
Committee for Public Counsel Services Worcester District Court Office
Checklist 15.1 - Checklist of Motions in Limine in a Sexual Assault Case
Exhibit 15A - Motion to Sequester Witnesses
Exhibit 15B - Motion to Exclude Defendant’s Prior Convictions
Exhibit 15C - Motion to Preclude Reference to Complainant as “Victim”
Exhibit 15D - Motion to Exclude Prior Bad Act Evidence
Exhibit 15E - Motion for Voir Dire of Expert
Exhibit 15F - Motion for Voir Dire of Therapist
Exhibit 15G - Motion to Limit Expert Testimony
Exhibit 15H - Motion to Amend Protective Order Regarding Presumptively Privileged Records
Exhibit 15I - Motion to Permit Introduction of Evidence Obtained from Privileged Records
Exhibit 15J - Motion to Release Records from Terms of Protective Order
Exhibit 15K - Motion for Competency Hearing of Child Witness
Exhibit 15L - Motion to Preclude “Missing Witness” Inference
Exhibit 15M - Motion in Limine for Revised First Complaint Instruction
Exhibit 15N - Motion in Limine to Restrict Testimony Regarding Investigative Process
Exhibit 15O - Motion in Limine to Exclude Admission of Defendant’s Silence
Exhibit 15P - Motion in Limine to Restrict Testimony Regarding Mental Health Issues
Chapter 16 - Improper Closing Arguments
Shira M. Diner, Esq.,
Boston University School of Law
Checklist 16.1 - Checklist of Improper Closing Arguments
Chapter 17 - Jury Instructions
Paul R. Rudof, Esq.,
Strehorn, Ryan, & Hoose
Checklist 17.1 - Checklist for Jury Instructions in a Sexual Assault Case
Chapter 18 - Collateral Consequences of Sex Offense Convictions or Adjudications
Michael A. Nam-Krane, Esq.,
Exhibit 18A - Table Showing Selected Crimes and the Consequences They May Trigger
Exhibit 18B - Juvenile’s Motion for Relief from Sex Offender Registration
Chapter 19 - Immigration Consequences of Massachusetts Sex Offenses
Maria S. Hwang, Esq.,
Committee for Public Counsel Services
Authors
Editor(s)Julie A. Buszuwski, Esq.,
Committee for Public Counsel Services, Framingham
Carrie A. Spiros, Esq.,
Middlesex Superior Court, Commonwealth of Massachusetts, Woburn
Author(s)
Laura Alfring, Esq.,
Committee for Public Counsel Services - Youth Advocacy Division, Roxbury
Stacey G. Bloom, Esq.,
Department of Youth Services, Commonwealth of Massachusetts, Boston
Tara B. Burdman, Esq.,
Bristol District Attorney's Office, Fall River
Joanne M. Daley, Esq.,
Federal Public Defender Office, Providence
Shira M. Diner, Esq.,
Boston University School of Law, Boston
C. Henry Fasoldt, Esq.,
C. Henry Fasoldt, Attorney At Law, Boston
Matthew J. Fleischner, Esq.,
Committee for Public Counsel Services, Springfield
Hon. Ira L. Gant,
Plymouth Superior Court, Commonwealth of Massachusetts, Brockton
Sandra Gant, Esq.,
Federal Public Defender Office, Boston
Jeffrey A. Garland, Esq.,
Committee for Public Counsel Services, Boston
Maria S. Hwang, Esq.,
Committee for Public Counsel Services, Malden
J. Anne Iglehart, Esq.,
Iglehart & Porges, Boston
James Kaeding, Esq.,
Committee for Public Counsel Services, Worcester
James Robert Ladino, Esq.,
Committee for Public Counsel Services, Children and Family Law Division, Fall River
Lisa S. Lippiello, Esq.,
Olin Lippiello LLP, Northampton
Lawrence W. Madden, Esq.,
Committee for Public Counsel Services, Springfield
Michael A. Nam-Krane, Esq.,
Jamaica Plain
Stephanie Stolk Ormsby, Esq.,
Committee for Public Counsel Services, Springfield
Kelli L. Porges, Esq.,
Iglehart & Porges
, Boston
Joshua Reuling, Esq.,
Committee for Public Counsel Services, Quincy
Paul R. Rudof, Esq.,
Strehorn, Ryan, & Hoose, Northampton
Hon. Mary-Lou Rup,
Bulkley, Richardson and Gelinas LLP, Springfield
Laurel A. Singer, Esq.,
Committee for Public Counsel Services Worcester District Court Office, Worcester
