On May 1, 2017, CPCS submitted written testimony to the Joint Committee on the Judiciary in support of the following bills: H.751 – Appointment of Public Counsel; H.880 – Regulating Fees for Registration of Attorneys; H.2345 – Commitments and the Appeal of those Commitments; and S.790 – Codifying Juvenile Court Best Practices. At that same hearing, CPCS submitted written testimony in opposition to H.2318 – Collection of Outstanding Legal Fees.
A week later, on May 8, 2017, CPCS submitted written testimony to the same committee in support of the following bills: H.2343 – Health Care Proxies; H.2346 – Counsel in Guardianship Cases, and H.3027 – Establish an Adult Guardianship Office.
On June 5, 2017, a number CPCS bills, as well as many others that would impact our clients, were heard before the Joint Committee on the Judiciary. The hearing lasted from 1:00pm to 8:30pm. General Counsel Lisa Hewitt was on hand to provide testimony on behalf of CPCS in support of the following bills: S.817 and H.754 – Parent-Child Privilege; S.757, S.758, S.845, S.944, H.2261, and H.2309 – Various Juvenile and Adult Expungement Proposals; S.760, S.761, S.814, S.816, and H.755 – Diversion; H.3096 – Competency of Juveniles; S.777 and H.2359 – End the Criminalization of Poverty; S.947 and H.3077 – Promoting Transparency, Best Practices, and Better Outcomes for Children and Communities; H.2250 – Removing Collateral Consequence of Loss of Motor Vehicle License for Conviction of Tagging; S.810 – Preservation of Appellate Rights; S.755, S.830, and S.2050 – Fees and Fines; H.953 – Collection, Accuracy, and Public Availability of Arrest Data; S.830 – Adjusting Credit for Nonpayment of Fines; H.875 – Best Practices in the Juvenile Court; H.3037 – Promote Better Outcomes for Young People in the Commonwealth; H.3078 – Raise the Age; and S.814 – Parole for Juveniles Convicted of 1st Degree Murder. CPCS offered testimony in support of S.834 – Bail/Pretrial Services Reform, provided certain amendments are adopted. General Counsel Hewitt was also prepared to testify in opposition to S.963 – Collection of Outstanding Delinquent Fees; H.745 – Dangerousness Hearings for Drug Dealing; and H.3100 – Dangerousness Hearings for Drug Trafficking. As the hearing wore on, it became evident that the most effective way to deliver our message to every member of the committee on the 33 bills on which we were prepared to testify was to submit written testimony. At the conclusion of the hearing, CPCS’s position on each of the bills was submitted.
To provide you with an example of the written testimony that was submitted, below is the written testimony that was submitted on parent-child privilege legislation, the preservation of appellate rights bill, tagging legislation, and the bill to adjust credit on days imprisoned for nonpayment of fines follows:
TESTIMONY OF THE COMMTTEE FOR PUBLIC COUNSEL SERVICES on S.817 and H.754 – ACTS RELATIVE TO PARENT-CHILD PRIVILEGE
The Committee for Public Counsel Services supports S.817 – An Act Relative to Testimony in Criminal Proceedings and H.754 – An Act Relative to Parent-Child Privilege.
In 1983 the Massachusetts Supreme Judicial Court (SJC) was presented for the first time with the question of whether a minor child may be compelled to appear and testify against his parent(s). In its decision the Court stated, “We are, of course, free to identify a privilege of a child not to testify against his or her parent. Such a privilege could be based on common law or constitutional principles. In recent years, however, courts have tended to leave the creation of evidentiary privileges to legislative determination,” Three Juveniles & others vs. Commonwealth, 390 Mass.357 (1983). Within two years of this decision, the Massachusetts Legislature enacted legislation that prohibits prosecutors from compelling a child to testify against his parent(s), unless the child or other household member was the victim of the crime, G.L. §20 of chapter 233.
In 2000, another case regarding familial privilege was decided by the SJC. This time, the case involved a grand jury subpoena of the parents of two teenage boys. The Court determined that since the state did not have a parent-child testimonial privilege it could not suppress the subpoena. However, as in the 1983 case, the justices found that the decision to allow such privilege should be determined by the Legislature. The Court stated, “This court decline[s] to recognize a testimonial privilege such that the parent of an unemancipated minor might not be compelled to testify, in criminal proceedings, regarding confidential communications between the minor child and the parent, stating that the social policies with respect to such a parent-child privilege should be weighed, in the first instance, by the Legislature,” In re the Matter of a Grand Jury Subpoena, 430 Mass. 590, 722 N.E.2d 450 (2000).
As in the 1983 case, legislation was filed in response to the 2000 case. Seventeen years later, we are still working to enact this logical expansion to the existing statute.
Children should always seek their parents’ advice. However, this is especially important when a child is in trouble and facing encounters with the police and court. A parent’s involvement and advice is vital when a child is making what will be life-altering decisions. Open lines of communication between parents and their children provide children with the guidance only a parent can afford a frightened and vulnerable child. Children should never be afraid to ask their parents for help. Under existing law they would be wise to avoid such advice since their conversations can be used against them. The present law does not foster trust amongst family members and can only lead to unfortunate decisions being made by children at a time when sound advice and support is what they need most.
Currently in Massachusetts a privilege exists between spouses, attorneys and clients, priests and penitents, and patients and health care providers. As already mentioned, children are protected against being forced to testify against their parents. Expanding existing law to protect communications between a child and his or her parents is a logical next step and will ensure a child’s right to due process protections and against self-incrimination.
CPCS urges you to seriously consider these bills and report them favorably from Committee.
TESTIMONY OF THE COMMITTEE FOR PUBLIC COUNSEL SERVICES on S.810 – AN ACT RELATIVE TO THE PRESERVATION OF APPELATE RIGHTS, S.830 – AN ACT TO ADJUST CREDIT ON DAYS IMPRISONED FOR NONPAYMENT OF FINES, and H.2250 – AN ACT RELATIVE TO TAGGING
The Committee for Public Counsel Services (CPCS) would like to be recorded in favor of S.810 – An Act Relative to the Preservation of Appellate Rights. This legislation would streamline trials by preventing unnecessary objections that have already been raised pretrial. It allows defense attorneys to better focus on their defense theory and prevents the all-too-common occurrence of an appellate defendant being subjected to miscarriage of justice review simply because trial counsel failed to stand up to object to trial evidence that was already objected to pretrial.
CPCS also supports S.830 – An Act to Adjust Credit on Days Imprisoned for Nonpayment of Fines. This legislation adjusts the credit calculated for days imprisoned for the nonpayment of a fine against the amount owed. Existing law allows a credit of $30/day. This legislation increases the credit to $60/day. In the past, the credit was adjusted for inflation and updated every 20 years, or so. The last time it was adjusted was circa 1987.
Lastly, CPCS would like to be recorded in favor of H.2250 – An Act Relative to Tagging. This bill removes the collateral consequence of loss of driver’s license upon conviction of such offenses. There appears to be no rational relationship to one’s ability to drive safely and the commission of either tagging.
CPCS urges you to seriously consider these bills and report them favorably from Committee.
For a copy of any of these bills visit: https://malegislature.gov.