Retreat or Stand Your Ground  by Lisa J. Steele

Retreat and “Stand your Ground” have been much in the news of late. There are numerous assertions about both the Florida statute2 and about the common law retreat rule. It is likely a good time for review of what Massachusetts and Connecticut law require.  Both states adhere to English common law concepts – you must retreat, if you can do so safely, when in a public place. You need not retreat when inside your own home, if you are facing someone unlawfully present therein.

Basic Concepts

“The law is well settled that, while a man may kill another in self-defense, he may not do so if he has other probable means of escape. When his back is to the wall, and the question is whether he shall die or his assailant, he may slay his assailant to preserve his own life; but, if he has probable means of escape without doing so, he must resort to such means before he is justified in killing his adversary. Human life is too sacred to be taken unnecessarily.”
Com. v. Ware, 37 Pa. 465, 479, 20 A. 806 (1890)

The fundamental concept of self-defense is necessity – an innocent defender is allowed to use force against an aggressor to protect his or her own life or health. Generally, the defender can also use force, including deadly force, to protect innocent third parties who cannot retreat, even where the defender could just walk away.

Where you are is Important

Rationally the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt. The law has grown, and even if historical mistakes have contributed to its growth it has tended in the direction of rules consistent with human nature. Many respectable writers agree that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not succeeded the bounds of lawful self defence. That has been the decision of this Court. Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him
Brown v. United States, 256 U.S. 335 (1921) (internal citations omitted)

States differ about when retreat is required. Most do not require retreat if the defender is in his or her own home defending against an intruder bent on causing death or serious bodily harm. Some do not require retreat at all, so long as the defender is somewhere he or she is lawfully allowed to be.

 Both Massachusetts and Connecticut distinguish between one’s home (and in Connecticut one’s workplace), where one is not required to retreat, and being in public, where one must retreat if one can do so safely.

Retreat in the Home

 In Massachusetts, under General Laws ch. 278, § 83 you are not required to retreat from someone who is unlawfully in your dwelling if you believe they intend to inflict death or great bodily harm on you. There are two subtle ideas here – (1) the aggressor needs to be someone there unlawfully (an intruder), not a co-resident or guest and (2) it needs to be a dwelling. This normally means the interior of a residence – not the porch, deck, yard, attached garage, or shared spaces in an apartment building or duplex.

 Similarly, Connecticut General Statutes § 53a-19(b)4 does not require one to retreat in his or her home or place of work.

 Again, one has to be within one’s own dwelling or fixed workplace5 defending against an intruder6.

Retreat in Public

 In Massachusetts and Connecticut, you must retreat before using deadly force, if you can do so in or with “complete safety”7See e.g. Com. v. Peloquin, 437 Mass. 204, 212 (2002)8; Gen. Stat. § 53a-19(b). This gets to the heart of the problem – what does complete safety mean?

 On its face, this sounds reasonable. If you can safely escape from the situation without using deadly force, and then call 911 and let the police arrest the aggressor, shouldn’t you do so?

 The problem is that what looks like complete safety to the Monday-morning quarterback, be it a police investigator, prosecutor, reporter, or fact-finder, may have been invisible or perilous to the defender facing an aggressor perhaps at close range, or in the dark, or in an unfamiliar place, or just in the midst of an imminent attack. The Monday-morning quarterback can look at the situation in hindsight, with time and with more information that the defender had.

 Stress and Weapon Focus

 One of the findings from the eyewitness identification research is that people under high levels of stress do not perceive things (see and hear) as well as people who are alert, but calm. People under stress tend to get tunnel vision – they focus on the threat, without seeing or hearing things around them. When a weapon is present, people tend to focus on it, to the exclusion of everything else.

 By its nature, if the defender honestly believes he or she is in imminent danger of death or serious bodily harm, it is a high-stress situation. If the aggressor has displayed a weapon, or the defender is watching their hands looking for a weapon, their attention is focused there. The defender may not be aware of escape routes that seem obvious to a calm fact-finder looking at a crime scene sketch or pictures of the crime scene.

Reaction Time

 The next problem is reaction time. It takes time to observe an aggressor’s actions, realize what’s happening, decide, what to do, and act. Reaction time is often measured in tenths of seconds, but in a genuine self-defense situation, tenths of seconds can matter a lot. You can see reaction time in action every time you are stopped behind a group of cars a traffic light waiting for the drivers ahead of you to observe the light change from red to green and act by starting to move.

 The famous Tueller drill9, often used in self-defense classes, shows that a moderately healthy adult can cross a twenty-one foot gap in time to tackle, punch, or stab, a defender who is expecting this very action before the defender can draw and fire a ready handgun. In the real world, the defender does not know what to expect when someone who has been behaving aggressive starts to move. If the self-defense situation has arisen when the parties are already close to each other, it may be too late for the defender to start looking for ways out.

 Worse, the Tempe studies10 show that an aggressor can, in some situations, outdraw a trained police officer who is watching him or her for trouble. Taking one’s eyes off an aggressor who may be armed with firearm to look for ways to safely walk away can be very dangerous.

 Related problems can come up if there are multiple aggressors, or if the defender would need to flee into a comparatively unlit area, or away from a place where help could potentially arrive into an unknown place. The defendant in Commonwealth v. Pring-Wilson, 448 Mass. 718 (2007) was able to prevail against a Commonwealth claim that he was not entitled to the defense by presenting, among other things, evidence of the suddenness of the confrontation, the number of foes facing the defendant, the defendant’s belief that he could not escape, and the risk of a fatal injury even in a fist-fight, which were sufficient in the Court’s eyes to let the jury decide the self-defense claim.

 What Happens when the Judge Thinks you Didn’t Try to Retreat

 In order to obtain a self-defense instruction in Massachusetts, there must be “some evidence that the defendant availed himself of all means, proper and reasonable in the circumstances, of retreating from the conflict before resorting to the use of deadly force.” Commonwealth v. Benoit, 452 Mass. 212, 227-28 (2008)11.  In upholding the denial of the self-defense instruction, the Benoit Court said that: 


The defendant did not testify; thus we examine his statements to the police (which were in evidence) and any other evidence relevant to the feasibility of escape. In the defendant's statement to the police, he said that, as he was about ten feet from the victim on the porch, the victim yelled, "I'm going to stab you niggers," and that the victim jumped or "skipped" off the porch and "came at" the defendant and the defendant's friend, Brandon Johnson. The defendant "figured that [the victim] had a knife, too, because he was going to stab us." At that point, the defendant and Johnson talked about what to do, and Johnson gave the defendant a knife. Viewing this evidence in the light most favorable to the defendant, after the victim's threat to stab him, the defendant had the opportunity to go over to Johnson, get the knife, and then engage in combat with the victim. Whether Johnson was ten feet away from the victim, or somewhat closer, all these events transpired outdoors in front of the victim's house and apparently in the vicinity of a public street. See Commonwealth v. Berry, 431 Mass. 326, 335, 727 N.E.2d 517 (2000). Nothing indicated that his escape was impeded in any way. Because there was no evidence of an attempt to avoid further physical combat or of the defendant's inability to retreat, no self-defense instruction was required. See Commonwealth v. Pike, [428 Mass. 393, 399, 701 N.E.2d 951 (1998)]


Your attorney often does not know whether the judge is going to give a self-defense charge until the case is in progress. If the judge decides “no”, it is not clear if he or she can argue self-defense anyway. Com. v. Saletino, 449 Mass. 657 (2007) says that if the trial court finds that the prerequisites for a missing witness instruction are not met, defense counsel can’t argue the inference that one gets from that instruction in closing. The Court notes, however, that in situations where a trial court declines to give a Bowden instruction, defense counsel can argue about the gaps in the police investigation because counsel is not suggesting what the evidence would have been had it been done right. Using that logic, defense counsel could try to argue the concepts behind self-defense to create reasonable doubt, but it is going to be an uphill fight.


Worse, if you have built your case around self-defense, you have likely admitted (or not challenged evidence) that (1) you were there, (2) you were the one who used force against the “victim”, and (3) you intended to do it. Without a self-defense charge, you are likely to be convicted of assault or even  homicide. 

 When do you have to Retreat?

 You should start looking for ways to leave as soon as you realize that there is a potential for violence. Self-defense is not available if you are the first-aggressor or a mutual combatant. If you start the fight or agree to the fight, perhaps by chasing after an aggressor who has fled, then a fact-finder may conclude that you forfeited your right to self-defense.

 No one wants to have to use deadly force in self-defense. The instant that you display or use a weapon, your life will change. If there is a way to retreat without risk to yourself or other innocent persons in immediate danger, then it is prudent to take it, regardless of the intricacies of the law.


Common Concerns 

How far do I have to go?

 It isn’t clear. In State v. Saunders, 267 Conn. 363 (2004), the defender got into a fist-fight in a bar, and displayed his lawfully carried revolver to end the fight. The bartender and patrons called the police to report a man with a gun. The defender withdrew into the kitchen of the bar to clean up the blood streaming from his nose. While there, the aggressor pursued him into the kitchen and charged at him. The defender shot him. The Connecticut Supreme Court, analyzing the retreat aspect of the case, opined that

 “[a waitress] testified that the defendant was standing near a door when the victim entered the kitchen. Indeed, the defendant acknowledged in his written statement that he "was going to run out the door," but decided not to out of concern for [his girlfriend, who was still in the public area of the bar]. The jury was not obligated, however, to accept the defendant's justification for deciding not to leave in order to avoid any further conflict with the victim because, among other reasons, there was nothing to suggest to the defendant that [his girlfriend] was in any danger. Therefore, the jury reasonably could have concluded that, because the defendant knew that he could have exited the restaurant in complete safety.”

 The door in question was an unmarked exit from the kitchen. When the police arrived, the interior door was open, but a screen door was closed. It was not clear whether the interior door had been open at the time of the confrontation on that late January evening or whether it had been opened afterwards for the police and ambulance personnel to use.

 Was it reasonable for the Court to say that the defender needed to retreat outside the building, to stand in a dark parking lot to wait for police responding to a man with a gun call? The Saunders Court seemed to think so. Here, the defender did not testify. It might have helped had he been able to explain in his statement to police, or on the stand, whether he realized the unmarked door was an exit and why he thought it better to retreat into a private, lit area, rather than outside into the dark parking lot.


Further Reading


 Mass. Gen. Laws ch. 278 § 8 


 General Statutes § 53a-19

 Office of Legislative Research on Stand your Ground and Castle Law

 Reaction Time:

 Tobin & Fackler, Officer Reaction – Response Times in Firing a Handgun, 3:1 Wound Ballistic Rev. (1997)

 Tobin & Fackler, Officer Decision Time in Firing a Handgun, 5:1 Wound Ballistics Rev. (2001)

 Tobin & Fackler, Officer Reaction-Response Time Delay at the End of a Shot Series, 5:1 Wound Ballistics Rev. (2001)




1Copyright 2012, Lisa J. Steele, Bolton, MA. This article may be reprinted for training purposes, so long as this copyright notice and disclaimer are included.


This article is not legal advice and does not create an attorney-client relationship between the author and any reader. If you want specific legal advice, you need to hire an attorney.

2 Fla. Stat. § 776.012. Use of force in defense of person.
2 Fla. Stat. § 776.012. Use of force in defense of person.

 3General Laws ch. 278, § 8

 In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling.

 4 Sec. 53a-19. Use of physical force in defense of person.

 (a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.

 (b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.

 (c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.

 5 See e.g. State v. Lutters, 270 Conn. 198 (2004) (taxi is not place of business for purposes of carrying firearm without permit).

 6 See State v. Shaw, 185 Conn. 372, 382-83 (1981) (co-dweller’s duty to retreat if he can do so in complete safety).

 7  Note that a series of recent cases have used the phrase when retreat was “not possible”. See e.g. Com. v. Diaz, 453 Mass. 266, 280 (2009). The Court has not overturned Peloquin and its progeny, so it is unclear whether the Court is trying to change the retreat requirement. See also Com. v. Sosa, 79 Mass. App. Ct. 106 (2011) (judge did not err in not giving requested instruction on retreat, judge's use of the more general language of "all proper means to avoid physical combat" properly embodies that concept)

 8 See also Commonwealth v. Little, 431 Mass. 782, 786 n. 3 (2000) (whether defendant could have retreated was a jury question); Commonwealth v. Pike, 428 Mass. 393, 398 (1998) ("an individual need not place himself in danger nor use every means of escape short of death before resorting to self-defense"); Commonwealth v. Barber, 394 Mass. 1013 (1985) (defendant could have believed that flight was not an option where he reasonably believed the victim was carrying a dangerous weapon and thus been relieved of duty to retreat); Commonwealth v. Gagne, 367 Mass. 519, 524 (1975) ("a person attacked with deadly force must retreat whenever it is possible to do so in safety").

 9 http://www.theppsc.org/Staff_Views/Tueller/How.Close.htm (original Tueller drill article which created the police 21’ rule)

 10 http://www.forcescience.org/articles/tempestudy.pdf


 11 See also Commonwealth v. Diaz, 453 Mass. 266, 280 (2009) (“was no evidence that the defendant availed himself of any, let alone all, means of retreat before shooting the victim. The defendant had access to an automobile; indeed, he entered the car to retrieve the weapon, but did not attempt to leave the scene. Instead, he walked to the car, obtained the gun, shot the victim, and then shot him twice more as he lay on the ground. In addition, there is no evidence that the defendant reasonably believed he was in danger of death or serious bodily harm.”); Commonwealth v. Espada, 450 Mass. 687, 693 (2008) (“The defendant claims that he "had no opportunity to retreat since he was in a small alley next to the vehicle." We disagree. The location of the spent casings in front of Bass's apartment building and on the sidewalk near the driveway suggest that the defendant was near the sidewalk and thus had some avenues by which he could have retreated.” Also, evidence that defendant initiated confrontation and created the situation precluding his retreat).










Owning and Carrying Non-Firearm Weapons       by Lisa J. Steele

Firearms are not the only regulated weapon that you might carry or own. Most states have statutes regarding knives, bludgeoning weapons, and a variety of other hand-to-hand items. Your firearms permit is normally specific to firearms, not non-firearm weapons. Unfortunately, state non-firearm weapons laws are often cluttered with undefined terms and interpreted in ways that can confuse even experienced attorneys and can be a legal minefield for those who want to carry a non-firearm defensive weapon, or who own, carry, or transport bladed or bludgeoning instruments for martial arts, historical recreation, as curios or part of collection, or for religious reasons.

In trying to interpret, or at least understand, your state’s weapons laws, it sometimes helps to look at what courts think the legislature intended.

The Kentucky Supreme Court once explained that:

At common law or by very early statute in England, people were prohibited from going armed that they might not terrorize the King's subjects. That was never the law in this country but from an early date, with the invention of small arms, statutes were enacted condemning the practice of carrying a deadly weapon concealed on or about the person. The reason for these statutes, it has been said, is ‘because persons becoming suddenly angered and having such a weapon in their pocket, would be likely to use it, which in their sober moments they would not have done, and which could not have been done had not the weapon been upon their person.’

The condemnation of our statute is against anyone ‘[carrying] concealed a deadly weapon, other than an ordinary pocket knife, on or about his person’. Substantially the same language is used in many other states. Any mode is within the terms of the statute where the concealed weapon is carried in such close proximity to the person that it is readily accessible and available for use.

Williams v. Commonwealth, 261 S.W.2d 807, 807-08 (Ky. 1953) (internal citations omitted). See also State v. Raso, 9 Misc. 2d 739, 740-41, 170 N.Y.S.2d 245 (1958). 

The problem with this analysis is that it doesn’t tie non-firearms weapons law into firearms laws. If one can have a permit to carry a concealed firearm, which presumably means one is trusted not to over-react while having a weapon on their person, then it seems logical that one should be similarly trustworthy with a bladed or bludgeoning weapon. It also suggests that the weapons laws are most concerned with easily concealable items, and may not include, unless specifically mentioned, swords, polearms or other large items typically owned for martial arts, historical recreation, or as curios or decorations.

Another theory is that weapons laws were “undoubtedly” enacted “to outlaw instruments which are ordinarily used for criminal and improper purposes, and so we have in this act [California’s statute] a partial inventory of the arsenal of the public enemy, the gangster, and a prohibition against owning anything of the kind.” People v. Mulherin, 140 Cal.App. 212, 35 P.2d 174 (Cal.App. 1934) (internal citations omitted). See also Haynes v State, 24 Tenn 120 (1844) (purpose to outlaw heavy, dangerous, destructive knives, the only use of which is to kill; did not apply to knives used for legitimate purposes). But see State v Delgado, 298 Or. 395, 692 P.2d 610 (1984) (all hand-held weapons necessarily share both characteristics, and that it is not the design of the knife but the use to which it is put that determines its offensive or defensive character). This theory also has some truth to it. One can often see in statutes the concerns and fears of the times the statute was enacted or amended. In the early 1910-20s, legislatures were often concerned with knives and bludgeons associated with anarchists. In the 1950s, Congress and various states banned switchblades because of concerns about gangs. In the 1960-70s, a fad based on Bruce Lee movies resulted in bans on ill-described martial arts weapons. Unfortunately, the laws do not necessarily reflect changing times, when the “arsenal of the public enemy” has evolved into a useful tool for self-defense, an item of historical interest, or a popular item for martial arts training. See People v. Tate, 68 Ill.App.3d 881, 386 N.E.2d 584, 25 Ill.Dec. 313 (1979) (nunchaku as part of a legitimate sport);  People v Malik,70 Mich. App. 133, 245 N.W.2d 434 (1976) (nunchaku as a martial arts item not a “bludgeon”); People v Braunhut, 101 Misc. 2d 684, 421 N.Y.S.2d 763 (1979) (discussing a “spring whip” as a defensive weapon and contrasting it with the offensive uses of a “bludgeon”).

In the absence of unifying principles, you will need to look at your state’s statutes and case law individually.

What is Allowed or Prohibited?

How do you figure out which non-firearms weapons are prohibited? For the most part, there’s a general consensus about what a firearm is. The legislature usually defines terms like “firearm”, “assault weapon”, “large-capacity” firearm, and “machine gun”, which give a firearms owner some sense of what he or she can own and carry.

Non-firearms weapons laws, on the other hand, can be frighteningly vague. Let’s start with Massachusetts. General Laws ch. 269, § 10(b) prohibits you from carrying on your person, or under your control in a vehicle, any of the following:

any stiletto, dagger or a device or case which enables a knife with a locking blade to be drawn at a locked position, any ballistic knife, or any knife with a detachable blade capable of being propelled by any mechanism, dirk knife, any knife having a double-edged blade, or a switch knife, or any knife having an automatic spring release device by which the blade is released from the handle, having a blade of over one and one-half inches, or a slung shot, blowgun, blackjack, metallic knuckles or knuckles of any substance which could be put to the same use with the same or similar effect as metallic knuckles, nunchaku, zoobow, also known as klackers or kung fu sticks, or any similar weapon consisting of two sticks of wood, plastic or metal connected at one end by a length of rope, chain, wire or leather, a shuriken or any similar pointed starlike object intended to injure a person when thrown, or any armband, made with leather which has metallic spikes, points or studs or any similar device made from any other substance or a cestus or similar material weighted with metal or other substance and worn on the hand, or a manrikigusari or similar length of chain having weighted ends

Other state statutes regulate “electronic defense weapons” (Gen. Laws ch. 140, § 131J) and require a permit for pepper spray (Gen. Laws ch. 140, § 129B(9B)).

Some of these terms seem clear. Some have been defined by the state courts.  Commonwealth v. Miller, 497 N.E.2d 29, 22 Mass. App. Ct. 694 (1986) (defining “dirk knife”). A few are defined in other states; Massachusetts courts might look to those cases to interpret its own statute. A “slung shot” is not a sling shot, nor a sling. New York defines it as “a piece of metal or stone fastened to a strap or thong, used as a weapon. People v. Desthers, 343 N.Y.S.2d 887, 73 Misc. 2d 1085 (1973). A sling shot or bean blower cannot be legally made or sold in Massachusetts, see Gen. Laws ch. 269, § 12, but it seems that one can legally purchase one in another state. New Jersey defines a cestus as a hand covering of leather bands often loaded with lead or iron. State v. Rackis, No. A143799T2 (N.J.Super.App.Div. 08/01/20003). Nunchuku sticks were considered in State v. Tucker, 28 Or. App. 29, 558 P.2d 1244 (1977); People v. Malik, 70 Mich. App. 133, 245 N.W.2d 434 (1976); Commonwealth v. Adams, 245 Pa. Super. 431, 369 A.2d 479 (1976). The others are unexplained. 

Turning to Connecticut, we find another laundry list of prohibited weapons. General Statutes § 53-206 prohibits you from carrying on your person:

any BB gun, blackjack, metal or brass knuckles, or any dirk knife, or any switch knife, or any knife having an automatic spring release device by which a blade is released from the handle, having a blade of over one and one-half inches in length, or stiletto, or any knife the edged portion of the blade of which is four inches or over in length, any police baton or nightstick, or any martial arts weapon or electronic defense weapon, as defined in section 53a-3, or any other dangerous or deadly weapon or instrument

A similar list is found in General Statutes § 29-38, prohibiting weapons in motor vehicles. General Statutes § 53a-3 helpfully defines an electronic defense weapon as “a weapon which by electronic impulse or current is capable of immobilizing a person temporarily, but is not capable of inflicting death or serious physical injury” and a martial arts weapon as a “nunchaku, kama, kasari-fundo, octagon sai, tonfa or chinese star”. None of the martial arts weapons have been defined by Connecticut courts. Unlike Massachusetts, Connecticut maintains verbatim transcripts of its legislative sessions, there may be some guidance in the legislative history.

For some objects, you may try to assert that they are not weapons. The Virginia courts look to the physical characteristics of the item, its common uses, and the circumstances surrounding the defendant’s possession and use of it. See Gilliam v. Commonwealth, 49 Va. App. 508, 642 S.E.2d 774 (2007); Delcid v. Commonwealth, 32 Va. App. 14, 17, 526 S.E.2d 273, 274 (2000). Massachusetts seems to apply similar reasoning, although with inconsistent results. Commonwealth v. Delaney, 442 Mass. 604, 615 (2004) (pocket knife is not dangerous weapon per se, it is not "designed for the purpose of bodily assault or defense"); Commonwealth v. Turner, 59 Mass. App. Ct. 825, 798 N.E.2d 315 (2003) (“Straight knives typically are regarded as dangerous per se while folding knives, at least those without a locking device, typically are not.”); Commonwealth v. Thompson, 15 Mass. App. Ct. 974 (1983) (8” serrated steak knife carried in purse for protection was dangerous weapon). For objects owned and used only as decorations, curios, costume accessories, theatrical props, or everyday tools, your attorney may be able to convince a prosecutor, judge, or jury to adopt that test. 

Your attorney might be able to make an argument that some of the undefined exotic weapons statutes are void due to vagueness because an ordinary person would not know he or she was violating the law. See Oregon v. Perrin, 145 Or.App. 80, 929 P.2d 1016 (1996) (“any instrument or weapon commonly known as a blackjack” void due to vagueness and lack of common understanding of what a blackjack is.)

Massachusetts and Connecticut are not unique. You will likely encounter similar poorly-defined statutes in other states. In order to know what you are allowed to carry, you may need to retain an attorney or do some detailed legal research to understand your state’s statutes and case law.

Weapons on Your Person And/or in your Vehicle

Assuming you can figure out what is, and is not permitted – the next question is whether those prohibitions apply generally, or whether there are places where you can own and carry items otherwise prohibited.

Massachusetts General Laws ch. 269, § 10(b) applies to things you may not carry on your person, or under your control in a vehicle. Also, it states that

 whoever, when arrested upon a warrant for an alleged crime, or when arrested while committing a breach or disturbance of the public peace, is armed with or has on his person, or has on his person or under his control in a vehicle, a billy or other dangerous weapon other than those herein mentioned and [unlicensed firearms]

A violation of General Laws ch. 269, § 10(b) risks imprisonment for 2 1/2 to 5 years in the state prison, or 6 months to 2 1/2 years in a jail or house of correction, or, for persons with no prior felony record, a fine of $50 or imprisonment for up to 2 1/2 years in a jail or house of correction.

The “catch-all” provision only applies in limited circumstances. In Massachusetts, it appears that you can carry items that are not specifically named so long as you behave lawfully. See Commonwealth v. Blavackas, 11 Mass. App. Ct. 746, 419 N.E.2d 856 (1981) (carrying kitchen bread knife in car not prohibited as no warrant for arrest and no breach of peace alleged).  If, however, you have a warrant for your arrest carrying an otherwise legal item can become a crime Commonwealth v. Blavackas, 11 Mass. App. Ct. 746, 752-753 (1981) (8” kitchen bread knife violates statute if defendant arrested on warrant, but not if carried “for an innocent purpose”); Commonwealth v. Thompson, 15 Mass. App. Ct. 974 (1983) (statute is designed to "discourage the carrying of dangerous weapons which can be used against arresting officers.").

In Connecticut, a violation of General Statutes § 53-206, by carrying a prohibited item on your person is a felony, risking a $500 fine and/or up to three years in jail. This statute also has a series of exemptions, which does not include carrying one for self-defense. General Statutes § 29-38 precludes possessing weapons in vehicles, using the same list of weapons and exemptions. A violation is a felony, risking a $1,000 fine and/or up to five years in jail. See State v. Delossantos, 211 Conn. 258, 273, 559 A.2d 164 (1989) (state must prove the following elements: (1) that the defendant owned, operated or occupied the vehicle; (2) that he had a weapon in the vehicle; (3) that he knew the weapon was in the vehicle; and (4) that he had no permit or registration for the weapon.) (Delossantos was decided before Connecticut revoked its rarely-used permit system for non-firearm weapons in 1999, see P.A. 99-212 – its courts have not yet considered whether that change will have any effect on its weapons possession laws.)

Both statutes have a catch-all provision for dangerous/deadly weapons other than those enumerated, which can be a trap for any number of common household objects that can be used as weapons. As noted above, the Massachusetts catch-all provision applies in limited situations. Connecticut case law is unclear about the liability of a person who carries an ordinary object that could be used as a dangerous weapon, but has not done so or shown an intent to so use it. See State v. Ramos, 271 Conn. 785, 860 A.2d 249 (2004); State v. Scully, 195 Conn. 668, 678, 490 A.2d 984 (1985) (discussing “common, everyday possessions which anyone is allowed to transport in [a] motor vehicle without subjecting themselves to arrest absent something more.")

The short answer, here, is to make sure that anything you are carrying on your person or under your control in a vehicle complies with your state law. Be aware that ordinary household objects may fall within these statutes and act with caution.

Weapons in your Home or Place of Business

 Some states, either by statute or by common law, allow people to own weapons in their homes or fixed places of business that they could not carry in places shared with neighbors or with the public.  An Illinois appeals court notes that: 

In exempting property owners or persons in their fixed place of business, the legislature was mindful of the need of people to defend their homes and businesses from unlawful intruders and the fact that the police cannot protect every home and every business 24 hours a day. The renter also has this right insofar as his apartment is concerned. However, to allow all of the renters of one apartment complex to carry or possess a weapon in the common areas would be to invite the situation that the legislature sought to prevent, i.e., the mass possession of weapons, which would pose a danger to the public and the police alike. In limiting the allowable possession of weapons to property in which one has ownership, the legislature has balanced a person's need to protect his home or business with the need of the general public and the police to be protected from potential use of weapons in situations unrelated to protecting one's property or business.

People v. Pulley, 345 Ill. App. 3d 916, 926, 281 Ill. Dec. 332, 803 N.E.2d 953 (2004). In places where a statute or the case law is silent as to non-firearms weapons in the home or business place, your attorney may try to assert a Second Amendment right to carry weapons in these private areas – the law in this area is in flux, so tread with caution when relying on this right absent clear statutory language.

The Massachusetts Supreme Court interpreted its state law to conclude that you can lawfully own a firearm without a permit in your residence or your place of business, even though the statute was silent on this matter at that time. Commonwealth v. Seay, 376 Mass. 735, 383 N.E.2d 828 (1978). The legislature later amended the firearms statute to exempt those in their residences or places of business. See Gen. Laws 269, § 10(a)(1). The rule has not thus far been extended to non-firearm weapons. The Massachusetts courts might do so, perhaps as an extension of one’s Second Amendment rights. See State v. Stevens, 113 Ore. App. 429, 833 P.2d 318 (1992) (switchblade is “arms”, carrying thereof cannot be totally prohibited under state constitution’s counterpart to Second Amendment); State v. Smoot, 97 Ore. App. 255, 775 P.2d 344 (1989) (same);  State v. Hamdan, 264 Wis.2d 433, 665 N.W.2d 785, 808 (2003) (“If the constitutional right to keep and bear arms for security is to mean anything, it must, as a general matter, permit a person to possess, carry, and sometimes conceal arms to maintain the security of [her] private residence.") See also District of Columbia v. Heller, 554 U.S. ___, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008) (right to carry handguns in one’s home).

The Connecticut Supreme Court has interpreted its state law to conclude that you can lawfully own a weapon in your residence/place of abode or your place of business, even though the statute is silent on this matter. State v. Sealy, 208 Conn. 689, 546 A.2d 271 (1988).

Residence and abode are legal terms – they refer to areas under your exclusive control, not shared areas like the common hallway of an apartment building.  Id.  See also Commonwealth v. Belding, 42 Mass.App.Ct. 435, 677 N.E.2d 707 (1997); Commonwealth v. Statham, 38 Mass. App. Ct. 582, 650 N.E.2d 358 (1995).  It is unclear how it might apply to semi-public areas like the porch, detached garage, or yard of a private residence. The more access the public has to the area, the less likely it is that a court will consider it part of your residence.

Place of business is also a legal term. It generally only grants a right to carry weapons to the business owner(s), not to managers or employees, see State v. Vickers, 260 Conn. 219, 796 A.2d 502 (2002) and is limited to fixed business places, not to a business vehicle like a taxi. State v. Lutters, 270 Conn. 198, 853 A.2d 434 (2004).

A business owner normally cannot delegate this right to a manager, watchman, or guard when the owner is not personally present. See State v Valentine, 124 N.J. Super 425, 307 A2d 617 (1973) (tavern owner could not delegate right to night bartender).

Some statutes allow, or imply, that you can carry a weapon from your home to your place of business and vice-versa. The exemption is most likely to apply if: (1) the weapon is not habitually carried between those places; (2) the purpose for carrying the weapon is legitimate; (3) the route taken is a practical one; and (4) the journey proceeds without undue delay or unnecessary or unreasonable deviation. See Bergman v. State, 90 S.W.3d 855 (Tex. App. 2002).

In sum, your home and your place of business may have greater protection under state law, but be wary of grey areas such as common areas of multi-unit buildings, public parts of your house or yard, and mobile places of business. Similarly, if you are temporarily staying in someone else’s home or do not have a clear interest as owner or tenant in your abode, or you are a manager or employee of a business, look carefully at your state law before relying on these provisions.

Self-Defense and a Weapons Possession Charge

If you are carrying a weapon for self-defense purposes, state law varies about whether you can also assert self-defense as to the charge of unlawfully carrying a weapon. The answer is generally “no” as to firearms and weapons which are specifically proscribed under state law, see Commonwealth v. Lindsey, 396 Mass. 840, 489 N.E.2d 666 (1986), but “yes” as to common household items like a kitchen knife which might also fit the catch-all deadly/dangerous weapon language. See State v. Ramos, 271 Conn. 785, 860 A.2d 249 (2004) (an otherwise legal item which did not become a dangerous instrument under Gen. Stat. § 29-38 until it was used in self-defense).

If you come into possession of the firearm or other weapon as a part of a self-defense incident, then self-defense may apply to temporary possession and use of the weapon. See Commonwealth v. Lindsey, 396 Mass. 840, 489 N.E.2d 666 (1986).

Do not expect self-defense to protect you from prosecution for carrying an item listed as a dangerous weapon in your state. If you are going to carry a weapon – find one that is legal in your state and be able to explain why you chose that item and why it is a legitimate tool for self-defense.

Minimizing the Risk of Violating a Confusing Array of Laws

First and foremost, you need to be aware of your state weapons law and comply with it as best you can. Where your state law is ambiguous, you may want to minimize the risk of a dispute with the police and/or a prosecutor. If you are arrested for possession of a dangerous/deadly weapon, then you are in the midst of a criminal case, which can be expensive to defend, with the risk of a felony conviction if the judge or jury disagree with your interpretation of the law and conclude that you unlawfully possessed a dangerous weapon.

As noted above, consider getting a firearms carry permit. It may not include non-firearms weapons, but it may help persuade a police officer, prosecutor, or juror that if you can be trusted with a concealed handgun, then you did not have an unlawful purpose when you owned or carried an item that falls within a grey area.

Don’t carry questionable items for self-defense --- you can find a clearly legal item that will serve your needs. Know and be able to clearly explain the self-defense uses of whatever item you carry --- police officers and juries may react poorly to “evil looking” items, even if they are not prohibited by statute and were used lawfully, unless you or your attorney can explain why you carried that specific item as a legitimate tool of self-defense.

If you own any weapon, you should not just leave it lying around. Many states have safe-storage laws for firearms, primarily designed to protect children from harm and to prevent thefts. Even if your state’s statute does not mention non-firearm weapons, you should apply similar principles to them. Keep them securely stored in a locked container when not in use.

Likewise, although state laws prohibiting carrying a firearm while intoxicated such as Gen. Law ch. 269, § 10H and Gen. Stat. § 53-206d(a) may not mention non-firearm weapons, judgment-affecting substances and weapons do not mix.

When transporting any weapon in a vehicle, be aware of your state’s laws and the laws of states you are travelling through. In Massachusetts, the statute prohibits having a weapon under your control. Store items that might arguably fall in a grey area in a solid, locked container in the trunk (if possible). In Connecticut, the statute appears to prohibit weapons anywhere in the vehicle; however, having an item in a locked container away from the passenger area may suggest that you do not intend to use it as a dangerous weapon.

If you are stopped and asked whether there is a weapon in the car, you will have to decide what to say. If you say yes, the officer will want to see the weapon and there may be questions about your right to possess it. If you say no, and the officer finds the weapon, your credibility is lost. Where the laws are ambiguous, the officer has considerable discretion about whether to arrest you and/or confiscate the item. In general, be polite and don’t argue with the officer. Remember that any statements you make may be used against you.

Don’t waive your Miranda rights, either.

Do not waive your rights regarding searches. An officer who stops your car can look around the passenger compartment. If he or she has a fear for his or her safety, you can be ordered out of the car and frisked and the passenger compartment searched. An officer should not be in your trunk without your consent unless you have been, or are about to be, arrested, and should not open locked containers absent a warrant. If a search occurs, you need to tell your attorney as soon as possible so that he or she can try to preserve evidence if the search was unlawful.

If you own an item that falls within a grey area as a collector or for martial arts, historical recreation, or other lawful purposes, store and/or transport it in that context. Even if your state does not have specific exemptions like those in Connecticut, placing the item in the context of a tool or prop or curio may persuade an officer, prosecutor, judge, or jury that it is not a weapon, but an ordinary household implement and does not fall within a weapons statute.

Further Reading


Massachusetts Weapons Law (look at section (b) for melee weapons)

Summary by GOAL


Connecticut Weapons Law

Connecticut Law Prohibiting Weapons in Vehicles

Legislative Summary of CT Firearm Laws

United States

Switchblade Knives Act 15 USC 1241 et seq., see also 19 CFR §§12.95-12.103 (associated customs regulations)

Interesting Possession Cases

A.P.E. v. People, 20 P.3d 1179 (Colo. 2001) (discussion of “push dagger” as prohibited weapon under catch-all definition; no evidence of intent to use as weapon, could be owned as collection or for decorative purposes).

State v. Panitz, 251 A.D. 276; 296 N.Y.S. 80 (1937) (possession of bayonet in car allegedly to find another like it for decorative purpose)

Commonwealth v. Walton, 252 Pa. Super. 54, 380 A.2d 1278 (1977) (discussion of state curio exemption as applied to sword cane)

Religion and Weapons Laws

There is not a great deal of guidance for those who own weapons for religious purposes. There are a few cases involving Sikhs, who carry a dagger (kirpan) as part of their faith. If you may be asserting a religious defense to a weapons possession law, you may want to keep a copy of any documents discussing your faith’s requirements, and strictly keep and use the item in the appropriate religious context.

Cheema v. Thompson, 67 F.3d 883 (9th Cir. 1995) (school district ordered to find accommodation with Sikh children regarding kirpan)

People v. Singh, 135 Misc. 2d 701, 516 N.Y.S.2d 412 (N.Y. Crim. Ct. Queens County 1987) (holding that a New York law prohibiting, with some exceptions, the wearing or carrying of knives did not violate a Sikh's freedom to practice his religion, which required him to carry a sword called a "Kirpan", but wearing a Kirpan in a Sikh temple would not violate statute)

State v. Singh, 117 Ohio App. 3d 381; 690 N.E.2d 917 (1996) (discussing application of Religious Freedoms Restoration Act of 1993 to Sikh’s kirpan)

State v. Easterlin, 159 Wn.2d 203, 209 n. 3, 149 P.3d 366 (2006) (“if a defendant is in possession of a ceremonial weapon, such as a Sikh's kirpan that he is required to carry by religious commandment, or of a prop, or of a kitchen knife in a picnic basket, or is a farmer who carries a .22 caliber rifle in a gun rack, or has some object that merely could be used as a weapon, it may be appropriate to allow him to argue to the trier of fact that he is not “armed” as meant by Washington law and to allow the trier of fact to make that determination.”)

Other Sources

American Knife and Tool Institute suggested definitions of knives

American Knife and Tool Institute suggested protocol for measuring blade length

Carl Brown, Martial Arts and the Law (1998)

Bernard Levine’s compilation of state knife laws

Olson & Koppel, All the Way Down the Slippery Slope: Gun Prohibition in England and Some Lessons for Civil Liberties in America, 22 Hamline L. Rev. 399 (1999)

Wikipedia on Switchblade Laws

American Law Review (ALR)

ALR is a legal encyclopedia of essays collecting state and federal cases on a wide variety of topics. It has a number of entries on weapons possession laws and may be a good resource for those interested in the topic. ALR is often available at courthouse law libraries.

Offense of carrying concealed weapon as affected by manner of carrying or place of concealment, 43 A.L.R.2d 492

Pocket or clasp knife as deadly or dangerous weapon for purposes of statute aggravating offenses such as assault, robbery, or homicide, 100 A.L.R.3d 287

Scope and effect of exception, in statute forbidding carrying of weapons, as to person on his own premises or at his place of business, 57 A.L.R.3d 938

Validity of state statute proscribing possession or carrying of knife, 47 A.L.R.4th 651

Walking cane as deadly or dangerous weapon for purpose of statutes aggravating offenses such as assault and robbery, 8 A.L.R.4th 842

What constitutes a "bludgeon," "blackjack," or "billy" within meaning of criminal possession statute, 11 ALR4th 1272

What constitutes "dangerous weapon" under statutes prohibiting the carrying of dangerous weapons in motor vehicles, 2 A.L.R.4th 1342



1Copyright 2008, Lisa J. Steele, Bolton, MA. This article may be reprinted for training purposes, so long as this copyright notice and disclaimer are included.

This article is not legal advice and does not create an attorney-client relationship between the author and any reader. If you want specific legal advice, you need to hire an attorney.




Aftermath of a Shooting – Arrest to the Start of Trial        by Lisa J. Steele

This article discusses the long journey from arrest to a plea agreement or the start of a jury trial. The legal process for criminal cases is called “criminal procedure”; it is governed by a series of rules, statutes, constitutional provisions, and customs. This article only covers the basic elements. Not every case will go through each of these steps --- look at them as channel markers, rather than mandatory waypoints.

The Defendant’s Role

If you are the defendant in a criminal case, you should have already hired an attorney. (If you can’t afford one, a public defender will be appointed at the arraignment). Once you have done so, you and your attorney can find a balance of things that you can and should do, and work that you can and should leave to your attorney. The defense attorney’s role is to be your advisor --- he or she will try to make tactical decisions that will reach your goals.

Even if you have no interest in the minutia of your case, you should keep a permanent record of all of the key documents you receive from your attorney and from the court. These documents may become important later, particular if a subsequent change in the law means that you have to prove that a record about the disposition of your case is inaccurate or incomplete. Also, make sure you mark court dates on your calendar. Failing to appear in court can trigger serious consequences.

The Defense Attorney’s Role

Your attorney’s job is to zealously represent you within the bounds of the law. As discussed in an earlier essay, he or she also has ethical duties to communicate with you, and help you make informed decisions about your case. If you have retained private counsel, he or she also has specific duties about handling client funds.

One of the early decisions you and your attorney will need to make is whether to assert a self-defense claim. For purposes of these essays, the author has assumed that the defendant used force in what he or she believed was lawful self-defense. In the real world, however, there may be other valid, often contradictory, defenses like mistaken identity, alibi, mental illness (insanity), or claims to reduce the severity of the assault or homicide like extreme emotional disturbance/heat of passion or battered women’s syndrome. State case law varies about whether a defendant has an absolute right to decide what defenses to raise, or whether this is a tactical decision made by defense counsel after discussing the matter with the defendant. If you are hiring private counsel, you should discuss how these decisions will be made with the attorney before hiring him or her.

The Prosecutor’s Role

The prosecutor’s job, in theory, is not to win the case. As the United States Supreme Court wrote, “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States, 295 U.S. 78, 88 (1935). This does not mean that an appeal to the prosecutor’s conscience asserting that it would be unjust to prosecute you in this case is likely to succeed. However, it is worth keeping the larger picture of the prosecutor’s obligations in mind.

This is an ideal. Michael Nifong, the now-disbarred prosecutor in the Duke University lacrosse sexual assault case is, sadly, the latest example of a prosecutor who has misused his authority, failed to provide exculpatory information to the defense, and otherwise failed to meet his duties. In Massachusetts, the Federal District Court has criticized the U.S. Attorneys’ withholding exculpatory evidence in organized crime cases. Every year, state and federal appellate courts consider claims about prosecutorial misconduct; in a few cases they reverse convictions and order new trials. Most prosecutors the author has encountered are ethical people trying to do their job properly, but be aware that you may encounter an exception.

Prosecutors often have policy concerns about vigorously prosecuting all cases involving firearms that may affect their decision to prosecute a case and/or to offer a plea agreement. Your attorney may be able to tell you more about a particular prosecutor’s office’s typical response in a self-defense case.

In Massachusetts, the District Attorney for each county is an elected official who hires and fires his or her staff. In Connecticut, the Chief State’s Attorney and the thirteen regional State’s Attorneys are appointed by the Criminal Justice Commission for renewable multi-year terms. Their staff are state employees. If you live in an area where prosecutors are elected, you may want to ask candidates about their views on self-defense and firearms law during elections. If you live in an area where prosecutors are appointed, you may want to discuss any concerns about interpretation and enforcement of self-defense and firearms laws with the appointing agency or official.

The Victim’s Role

Regardless of what happened in the incident, if you are being charged with assaulting or killing a person, that person is considered the victim. He or she may have statutory and/or state constitutional rights to be notified about court proceedings, to attend them, and to speak to the court at sentencing. The victim may have the right to be consulted about a proposed plea agreement and to object to it in court. Many courts have a victim advocate, who will help the victim keep track of the case.

Try to avoid contact with the victim and/or the victim’s family. If you are being harassed by the victim and/or the victim’s family, make sure your attorney is aware of the problem. You may be able to seek a protective order.

A Guide to Pre-Trial Criminal Procedure

Starting a Criminal Case

A criminal case starts with either a complaint (filed by a prosecutor) or an indictment (from a grand jury). Massachusetts uses both --- serious cases generally begin with an indictment; less serious cases with a complaint. Connecticut, conversely, no longer uses a grand jury – all criminal cases begin with a complaint.

The complaint or indictment is a formal document listing the crimes involved. It usually includes the defendant’s name, the date and place of the offense(s), the specific offense(s), and names the victim(s).


If you are arrested, you may be offered bail by a bail offical at the police station. If you are released, you will be told to appear in court for an arraignment on the next court day. If you are not released, you must be brough to court within 72 hours – generally you will come to court on the morning of the next business day after your arrest. Do not miss this, or any other court date – failure to appear can result in a warrant for your arrest and can have serious implications for your future bail prospects.

From the defendant’s perspective, an arraignment is a confusing procedure. You will be handcuffed and shackled, then taken to court with all the other recently-arrested defendants. You will be led into the courtroom and told to sit. A clerk will call the various cases, eventually reaching your case and formally read the charges to you. You will be advised of your rights to a trial, and may be asked if you want to enter a plea. If you do not have an attorney, a not guilty plea will normally be entered for you. If you cannot afford an attorney, a public defender or public counsel will be appointed for you at this hearing.

Prior to the arraignment hearing, you will likely meet briefly with a bail official (a court officer) who will ask you about your prior record and your finances in order to determine whether you qualify for a public defender and to make a recommendation about bail. You should not discuss the substance of your case with the bail officer – things you say to him or her are not privileged and can be used against you later. If you have an attorney, he or she may be present for your meeting with the bail official and may direct you to limit your answers to things like your name, date of birth, social security number, and your parents’ names (these are used to see if you have a prior criminal record).

At this stage, the prosecutor probably does not know a great deal about the case. He or she likely received the file that morning, along with a few police reports, and has many other cases that day. Thus, the prosecutor is unlikely to be able to meaningfully talk with you or your attorney about the case. Similarly, your attorney will know what you have told him or her, and may be able to get some of the police reports, but may not be able to give you many answers at this point.


You may be offered bail at the police station. At the arraignment, the judge can set bail or release you on your personal recognizance (a promise to appear in court later). In rare cases, a judge can refuse to set bail. Bail is a pledge of money or property to secure your appearance in court --- if you do not appear for a court date, the court can order the money forfeited and issue a warrant for your arrest. If you appear for all of your court dates, your bail will be returned at the end of the case. Again, show up for your court dates --- if an emergency arises, call your attorney as soon as possible so that he or she can explain things to the court.

If you cannot afford your bail, in some states, you may be able to raise the money through a bail bond. A bond is a contract between you and a bondsman who promises to pay the full amount of the bond if you do not appear in court. The contract will give the bondsman the right to then have someone locate you and return you to court (colloquially referred to as a bounty hunter).

Some prosecutors, as a matter of policy, will try to prevent defendants charged with firearms-related crimes from getting bail. The Bristol County District Attorney, for example, seeks a “dangerousness” hearing whenever a defendant is arrested on firearms-related charges [See Globe Story]. In such a hearing, the prosecutor must prove by clear and convincing evidence that personal recognizance will not reasonably assure the appearance of the defendant or will endanger the safety of another person in the community, and that no conditions of release will reasonably assure the safety of another person or the community. See Mass. General Laws ch. 276 § 58A. The Commonwealth may move, based on dangerousness, for an order of Pre-Trial Detention or release subject to conditions. If the trial court finds that the defendant is “dangerous”, than he or she can be held without bail for 90 days.

If you are released on bail, there may be terms and conditions to your release. Make sure that you understand them. In general, you cannot commit any crimes while on bail. You may have to report to a court officer periodically, either in person or by telephone. You can’t leave the country without prior approval; there may be restrictions on your leaving the state without prior notice and approval. You may be ordered to avoid contact with the victim and/or his family.

Your firearms permit will likely be revoked or suspended during the court proceedings – even if it is not, you may be precluded from owning or carrying weapons by the terms of your bail bond. Make certain you understand those terms before handling any weapon, even at a firing range or training course. 

If you violate your bond, it will be revoked at a hearing. The bail amount can be forfeited (paid to the court). You may be sent to jail during the remainder of the period until your case ends. If the violation is minor, you may be fined or the amount of the bail may be increased.

Determining Probable Cause

At an early point in your case, there must be a determination that probable cause exists to try you on the charges. Probable cause "requires more than mere suspicion but something less than evidence sufficient to warrant a conviction." Com. v. Roman, 414 Mass. 642, 609 N.E.2d 1217 (1993). In most cases, this will not be difficult for the prosecutor to establish and the hearing may be waived or a brief formality.

Probable Cause Hearings before a Judge

Some states hold a probable cause hearing before a judge. Often these are very brief, almost pro forma hearings at which the prosecutor presents a witness or two (often the victim and one or more police officers) and possibly some reports. Your attorney may take this opportunity to cross-examine the witnesses and get a sense of whether they will be strong trial witnesses.

The trial judge will then determine whether the prosecutor has demonstrated probable cause to (1) believe that a crime has been committed (2) by you. Probable cause hearings are usually public hearings. There will be a transcript, and your attorney can cross-examine witnesses, and argue to the judge whether or not the prosecutor has met his or her burden of proving probable cause.


It may be appropriate in a self-defense case for you to ask the trial court to issue a complaint against the aggressor. However, even if the cross-complaint issues, you can’t prevent the prosecutor from delaying the aggressor/victim’s trial until after your trial.  It also means that you give up your self-incrimination rights – you may have to testify against the aggressor at a probable cause hearing, and that testimony can be used against you in your trial.

Grand Jury Proceedings

In Massachusetts and some other states, serious criminal matters are sent to a grand jury either before, or shortly after an arrest. Grand jurors are selected from the public like regular jurors. Generally, they sit in a group of 13 to 23 for a few days each month over the course of three months, hearing evidence in many cases.

In some cases, prosecutors present just a few witnesses and/or reports and physical evidence to the jurors. In others, it becomes almost a mini-trial. Normally, the proceedings are short, but in very complex cases they can take months or even years. The defendant is not present for this testimony and cannot cross-examine witnesses.

You may be called by the prosecutor to testify at the grand jury – if so, you need to discuss your testimony with your attorney. Your attorney may be with you in the hearing room, but, if so, he or she can’t object, argue, or otherwise address the prosecutor or the grand jurors. Remember that you can invoke your constitutional right against self-incrimination at the grand jury proceeding.

The grand jury only hears the prosecutor’s side of the case. The prosecutor has an obligation to present important exculpatory evidence which is likely to affect the grand jury’s decision or greatly undermines the testimony of an important witness. He or she is not obliged to present all possibly exculpatory evidence.

At the end of the presentation of evidence, the prosecutor summarizes the evidence, describes the legal elements of the charge, and asks the jurors if they have any questions. “The evidence before the grand jury must consist of reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense.” Com. v. Roman, 414 Mass. 642, 609 N.E.2d 1217 (1993). The jurors then vote yes or no on the indictment drafted by the prosecutor. A majority vote of 12 grand jurors is sufficient to approve the indictment and issue a “true bill”. If the jury does not approve the indictment, it issues a “no bill”, which is normally then sealed. Gen. Laws ch. 276, § 100C.

Grand jury proceedings are generally secret, but witnesses can often disclose that they were subpoenaed, the contents of the subpoena, and the substance of their testimony. If a true bill has issued, the defendant’s attorney can get a copy of the recorded testimony after the defendant’s arraignment.

Speedy Trial Rights

You have a right under both the federal and state constitutions to a speedy trial. Typically, this means that you have to be brought to trial within 8 to12 months of your arraignment if you are incarcerated. If you have been given bail, then there may be no specific deadline. This does not mean calendar months – the deadline can be suspended (tolled) for various reasons, including for any delay that you request, agree to, or benefit from. Generally, speedy trial is not automatic – you or your attorney has to file a motion requesting a speedy trial when the deadline is approaching, or after a suitable length of time if there is no established deadline. Your attorney may also decide not to invoke your speedy trial rights if he or she needs more time to investigate your case.

In Massachusetts, a set of time standards affects how quickly your case proceeds in the Superior and District Court. There is some controversy about whether the time standards are being applied too rigidly, which may affect both parties abilities to adequately investigate their cases.


While you are waiting for your trial, your attorney and the prosecutor will continue to investigate the case. The prosecution’s experts may continue to analyze evidence from your case – despite what you may have seen on CSI or other crime shows, it can take months to obtain results from DNA, firearms identification, or other crime scene analysis. Your attorney may hire one or more experts to investigate the evidence in your case. Both sides will often interview witnesses and take statements.

Generally, you are entitled to discover, inspect, and copy relevant evidence, documents, statements, and reports possessed by the prosecutor and/or the police. You will be told the names of the prosecutor’s prospective witnesses and receive their criminal records (if any).

The federal constitution requires the prosecutor to provide the defense with any potentially exculpatory information in its possession or in the possession of its agents (the police, crime labs, etc.). In practice, this rule can become complicated – the prosecutor or its agents may not recognize that some piece of evidence is exculpatory and may fail to disclose it. The prosecution is also allowed, under some circumstances to, destroy evidence or allow it to be destroyed, so long as it isn’t done in bad faith. If, for example, you want to preserve the 911 calls about the incident, your attorney will need to request that those materials be saved very early in the case, otherwise, the police department can recycle the audiotapes according to its pre-established policies.

Both sides are required to turn over any reports made by experts who are expected to testify in the case. Under some circumstances, your attorney may have to turn over statements made by witnesses if your attorney expects that witness to testify at trial or if he or she expects to use that statement to cross-examine a prosecution witness.

In most cases, your attorney will share any discovery he or she receives with you. There are some exceptions, generally to protect otherwise-privileged records in sexual assault cases, and to protect a witness’ safety.

Forensic and Other Evidence

When the police received a report about a crime, they likely visited the crime scene to look for evidence. The amount of work done varies. Normally, police will search the scene for relevant evidence (weapons, spent cartridge casings, blood stains, etc.). They often take photographs and measurements of the location of evidence. If someone has been injured, officers may go to the hospital to photograph wounds and collect any evidence (bullets or bullet fragments, clothing, etc.) removed from victims. If someone has been killed, a medical examiner will perform an autopsy. Police may collect gunshot residue evidence from the hands or clothing of suspects and victims.

In the days and months following the incident, collected evidence may go through various analyses. Samples from suspicious reddish stains may be analyzed to determine if they are human blood, and may be DNA tested to determine whose blood was found. Recovered bullets and spent shell casings may be analyzed in an attempt to match them to a recovered firearm, or to determine what kind of firearm was used. They may also be examined for fingerprints, blood spatters, or other evidence connecting them to the incident. Crime scene reconstruction experts may examine blood spatter patterns and other information to try to determine how the crime occurred. Your attorney may hire an expert to review the prosecution’s experts’ conclusions.

If there are witnesses at the scene, police will generally take statements. They should separate the witnesses so that each tells his or her own story, and is not affected by others’ recollections. Ideally, statements should be taken before the witnesses have a chance to see or hear any media reports about the incident.

In reading police reports and witness statements, you will often find that the witness’ version of events may not match your recollections, and may conflict with itself, with other statements by that witness, with statements by other witnesses, and with forensic evidence. This is normal. The eye is not a camera; the mind is not a videotape. People can honestly see and recall things in very different ways. You and your attorney should talk about these discrepancies and discuss how you may want to address them at trial.

If you do want to try to make sense of a large number of witness statements, you may wish to consider a table that summarizes the key observations in the case. This may make it easier to see agreement and discrepancies, and to cross-examine witnesses later.

Sample Grid:



Witness 1 Statement

Witness 2 Statement

Witness 2 (2nd stmt)

Statement Details

Midnight, to Officer Jones

12:20 to Officer Jones

Two days after incident to Officer Smith

Where Located

On corner

Across street

Across street

First noticed



Loud voices arguing

Aggressor’s Actions

Running when shot

Running when shot

Turned to run with hand in pocket

Defendant’s Actions

Fired 3 shots at victim’s back

Fired 2 shots at victim’s back

Told victim to drop knife, then shot x2 when victim moved suddenly


 You may also want to keep copies of any media coverage about your case. Make sure that your clipping includes the newspaper’s name, publication date of the story, and the page where it was found, in case your attorney needs to track down the story later. You could also record broadcast news accounts. Media accounts may contain quoted remarks that might be useful to your attorney at trial. Your attorney may wish to ask media sources for their photographs and raw videotape in case there is some evidence overlooked by police in their investigation. In some cases, there may be sufficient media bias for your attorney to ask that the case be moved elsewhere to find an unbiased jury.

You may want to offer to help your trial attorney to keep track of physical evidence and pending forensic tests. The author was involved in one case in which a report mentioned a fingerprint found on a box of ammunition discarded at the crime scene which was apparently never sent to a fingerprint expert for examination, was overlooked by trial counsel, and only discovered belated by a subsequent attorney when the defendant moved for a new trial after his conviction. At the time the author became involved in the case, it was still unclear whether the original evidence had been preserved and whether the fingerprint would support the defendant’s claim that another person had shot the victim and that the defendant had been mistakenly identified as the shooter.

Suppression Hearings

Your attorney may try to suppress the prosecution’s evidence because it was obtained in violation of your constitutional rights or is unreliable. Typical suppression hearings include attempts to suppress evidence seized without a search warrant, statements or confessions made in violation of your Miranda rights, unreliable eyewitness identification testimony, and/or results of forensic testing that may be scientifically unreliable. Suppression hearings depend on the specific facts of your case, and are often governed by a complex body of case law.

Plea Bargaining and Agreements

The relationship of the accused to his lawyer provides a critical factual context here. As he stands before the bar of justice, the indicted defendant often has few friends. The one person in the world, upon whose judgment and advice, skill and experience, loyalty and integrity that defendant must be able to rely, is his lawyer. This is as it should be. Any rational defendant is going to rely heavily upon his lawyer's advice as to how he should respond to the trial judge's questions at the plea hearing. He may also rationally rely on his lawyer's advice what the outcome of the plea hearing will be. 

Yet it is the defendant, not the lawyer, who enters the plea. It is the defendant, not the lawyer, who is going to serve the time. It is the defendant, not the lawyer, whose constitutional rights are being waived at the plea hearing. It is the defendant's plea and accompanying waiver of rights which under established law must be voluntarily and intelligently given, with full appreciation of the consequences to follow.

-- Sanders v. State, 440 So. 2d 278 (Miss.1983).

At some point, your attorney and the prosecutor will meet to discuss your case. The prosecutor will generally make an offer to accept a guilty plea to lesser charges, or for an agreed-to sentence in exchange for your waiving your right to trial. The vast majority of criminal cases are resolved by a plea agreement. Relatively few cases actually go to trial. Time pressures, stress, depression, and doubts are all a normal part of the plea bargaining process. Your attorney is required by the ethics rules to tell you about any plea offer and will make a recommendation about whether to accept the plea. The decision about whether to do so is yours. It is your attorney’s job to give you a realistic, even pessimistic, portrayal of the likelihood of success at trial based on the likely evidence. 

From the defendant’s point of view, a plea to lesser charges and an agreement for a lesser sentence can reduce the risk of a conviction on greater charges, which carry a greater maximum sentence. From the state’s point of view, a plea bargain represents a certain conviction, avoiding the risk of acquittal and the expense of a criminal trial. While you may feel confident that you acted lawfully in a self-defense situation, you should talk with your attorney about the strength of your case, particularly if you are charged with homicide. The vast majority of homicide defendants are convicted of some portion of the charges --- relatively few walk out of the courtroom and go home.

When your attorney is negotiating a plea, make certain you understand whether there is any agreement about whether statements you make during the negotiations can be used against you if you ultimately decide not to accept the plea, or the trial court does not accept it, or if you withdraw the plea because the trial court intends to sentence you outside the agreed-upon term.

If you decide to accept a plea, make sure that you understand the terms of the plea and any ancillary consequences. Unfortunately, your attorney may not be able to anticipate future changes in the law --- when the 1998 changes to the Massachusetts firearms law took affect, a number of people found that old criminal cases now precluded them from obtaining or renewing a firearms permit. If your attorney mis-advises you about the effects of your plea on your firearms rights, that bad advice is not sufficient grounds to reopen your plea. (See Commonwealth v. Indelicato, 40 Mass. App. 944 (1996)) When asking your attorney specifically about the effect of the plea on activities that are important to you, such as your firearms rights, make certain that he or she has considered both state and federal law in this area.

There are three basic pleas that can be entered as part of a plea agreement:

Guilty – the defendant admits his or her guilt, generally to a lesser change, often with an agreed-upon recommendation regarding the sentence. Generally, the defendant has the right to withdraw the plea if the trial court intends to impose a greater sentence than the one agreed upon.

Guilty under North Carolina v. Alford – effectively a guilty plea, the defendant states, in effect, that he or she believes the prosecutor’s evidence strongly indicates guilt and that his or her interests are best served by this guilty plea. Again, there is generally an agreed-upon recommendation regarding the sentence, and the right to withdraw the plea if the trial judge intends to sentence beyond the agreement. A “facts sufficient” plea is similar in effect, and often is part of an agreement that the trial court continues the case without a finding of guilt (CWOF). (If a CWOF is entered, the defendant is then placed under the supervision of the probation department. If he or she successfully completes the terms and conditions of the order, then the case is dismissed. If the defendant fails to complete the conditions, a finding of guilty is entered.)

No Contest (Nolo contendere) – effectively a guilty plea for most purposes, however, the defendant does not actually admit guilt. Generally, this means that you can deny the charges in a civil case based on the same acts.

If there are viable appellate issues in your case, such as an unfavorable ruling on a suppression motion, you may want to talk with your attorney about whether you can enter a plea and still reserve your right to appeal. If you are successful in the appeal, your plea may be vacated and the case set back for new trial.

Once an agreement is made, it will be presented to a judge at a formal hearing. Normally, if a judge intends to sentence you to a term outside the scope of the agreement you will have the option to withdraw the plea if the sentence will be higher. The prosecutor may have the option to withdraw the plea if the sentence will be lower.

Pleas are, for the most part, final. It is very difficult to overturn a plea later, even if you decide that you made a mistake or were given bad advice by your attorney.

The Pre-Trial Conference

At some point, the case will be called for a formal pre-trial conference. Here, the prosecutor and defense attorney discuss pending pretrial motions, possible plea agreements, defenses like alibi and insanity, possible trial dates, and potential witnesses and evidence. The attorneys then file a written report describing their agreements and disagreements.

Further Reading


Massachusetts Rules of Criminal Procedure

Overview of Mass. Criminal Procedure

Chart Showing Criminal Procedure by Bristol County DA’s Office

Overview of Criminal Procedure by a Mass Attorney (1)

Overview of Criminal Procedure by a Mass Attorney (2)

Time Standards:

District Court

Superior Court

Article on Controversy

Massachusetts District Attorneys Association

A Mass. Grand Juror’s View

Reciprocal Discovery (Comm.. v. Durham opinion, discussion )

Massachusetts Victim Bill of Rights


Connecticut Practice Book (contains criminal procedure rules)

Overview of Conn. Criminal Procedure

Conn. Office of Victim Services

Conn. Victim’s Rights Statutes

State v. Rivers, 283 Conn. 713, 931 A.2d 185 (2007) contains an example of a plea and cooperation agreement in footnote 7.


Steve Bogira , Courtroom 302: A Year Behind the Scenes in an American Criminal Courthouse (2005) – a very good overview of criminal procedures in a Chicago court room.

Discussion of plea bargaining

Crime Scene:

DOJ: Violent Encounters: A Study of Felonious Assaults on Our Nation’s Law Enforcement Officers (Washington, DC, 2006) [Available from the UCR Program Office, FBI Complex, 1000 Custer Hollow Road, Clarksburg, WV 26306-0150 or by calling 888-827-6427]

DOJ, Crime Scene Investigation: A Guide for Law Enforcement




 Copyright 2008, Lisa J. Steele, Bolton, MA. This article may be reprinted for training purposes, so long as this copyright notice and disclaimer are included.

 This article is not legal advice and does not create an attorney-client relationship between the author and any reader. If you want specific legal advice, you need to hire an attorney.



Aftermath of a Shooting –Trial and Post-Conviction       by LIsa J. Steele

This article discusses trials and post-trial in a self-defense case. The legal process for criminal cases is called “criminal procedure”; it is governed by a series of rules, statutes, constitutional provisions, and customs. This article only covers the basic elements. Not every case will go through each of these steps --- look at them as channel markers, rather than mandatory waypoints.

A Guide to Trial Criminal Procedure

Jury or Bench Trial

As defendant, you have a constitutional right to a trial before a jury. You can waive that right and have your case heard by a judge (a “bench trial”). Most self-defense cases seem to be jury cases, but your attorney may suggest a bench trial if the facts in your case support it.

In either case, the trial judge’s job is to impartially preside over the case. It is rare for a judge to ask questions if a jury is present because the question might bias the jury. In bench trials, a judge may ask more questions, but has to be careful not to interfere with the defendant’s right to present his or her own defense.

The Trial Judge’s Role in a Jury Trial

In general, the trial judge presides over the trial, conducts it in a fair, orderly, and efficient maner, rules on the admissibility of evidence and on other legal matters, adjudicates any motions or objections by the attorneys, and instructs the jury on the law at the end of the case.

The trial judge will tell the jury that nothing he or she says is intended to suggest to the jurors how the judge regards the case or what he or she thinks the jury should do. The judge’s job is, in part, to remain neutral and to try not to form an opinion about the case. That does not mean that the judge will not form an opinion which he or she may express when the jury is out of the room, only that he or she is not supposed to convey that opinion to the jurors.

The Fact-Finder’s Role

The jury (or the judge in a bench trial) is the sole judge of the facts. It decides what evidence to believe and what conclusions to draw from that evidence. It decides whether the prosecution has met its burden of proof.

Picking the Jury

Jury selection begins when a group of citizens is called to the courthouse as a panel. They see a brief videotape about the legal process, then come into the courtroom where your attorney and the prosecutor will pick those who will hear your case.

In Massachusetts, the procedure is very basic. You will have a questionnaire with some basic information about the prospective jurors. By statute (Gen. Laws ch. 234, § 28), the judge will ask the jurors as a group whether they are related to either party, whether they have any interest in the case, whether they have expressed or formed an opinion about the case, and whether they have any other bias or prejudice in the matter. The judge may ask questions about community attitudes towards the matter, possible exposure to prejudicial material, or preconceived ideas about whether certain types of witnesses are credible. The attorneys can ask the trial court to ask additional questions, but those are asked only at its discretion. 

Then your attorney and the prosecutor will take turns challenging the jurors. Some challenges will be “for cause” – there’s some reason to think the juror cannot be fair in your case, such as the person’s relationship to the parties or witnesses, or a possible bias from the witness’ job or prior experience with police. Each attorney also has a limited number of peremptory challenges which can be used at will. (There are a few exceptions; for example, neither side can use peremptory challenges to eliminate people purely because of their race.)

In Connecticut, the procedure is a bit more elaborate. Under the Connecticut constitution (Art. first, § 19), attorneys have a right to individually question each prospective juror privately. The attorneys alternate who asks questions first so that each has a chance to make a first impression with the prospective jurors. The procedure takes significantly longer, but it gives attorneys a better sense of each juror’s personality and general views because the attorneys can tailor their questions to the jurors’ responses.

The trial court will decide whether the jurors can take notes during the trial.

The parties are not allowed to talk to the jurors during the trial. Your attorney will likely remind you and your family to be particularly careful about conversations around the courtroom and court house, where you might be accidentally overheard by jurors. Courts vary about whether attorneys can contact jurors after the trial to find out about their reasoning.

Presenting Evidence

Once the jury is chosen and sworn in, the trial court clerk will read the charging document (information/indictment/complaint). The parties can ask the trial judge to give a “pre-charge”, a summary of key legal concepts that will be important in the trial. Often, at the start of the trial, a judge will enter a sequestration order --- witnesses are not allowed to be in the court room when other witnesses testify, and are not allowed to discuss their testimony with each other; and the attorneys are not allowed to tell witnesses about other witnesses’ testimony during the trial. 

In Massachusetts, each attorney will normally give an opening statement which summarizes the evidence they expect to present. In Connecticut, opening statements are rare. (To some extent, Connecticut attorneys tell the jurors about their case during voir dire questioning.) In either case, opening statements are not themselves evidence --- they are the attorneys’ opinions about what the evidence is likely to show.

The prosecution presents its evidence first. It has to prove every essential element of the case beyond a reasonable doubt. Essential elements include all the elements of the statute or common law crime --- generally the prosecutor does not have to prove motive (why a crime took place), but does have to prove intent (whether, for example, you acted in a deliberate, reckless, or negligent manner).

You’ve seen the procedure hundreds of times on movies and on television. The attorney asks the witness questions. There may be objections. Then the other attorney asks questions in cross-examination. And there may be a round or two of re-direct examination and re-cross examination. Eventually, the attorneys are finished with the witness and the next is called.

Ideally, testimony should not contain important surprises. The witnesses usually testify in accordance with their statements to police or defense investigators. Expert witnesses testify in accordance with their reports. Perry  Mason-style witness confessions from the stand and surprise witnesses are extremely rare.

Normally, the defense in a criminal case does not have an obligation to do anything. It could ask no questions and put on no witnesses of its own, relying only on the prosecutor’s burden of proof. Of course, very few defendants would do that, but it is possible. In a self-defense case, however, the defendant has the burden of introducing some evidence of the key elements of self-defense (more about that later). Once it has done so, the prosecutor must disprove self-defense beyond a reasonable doubt.

Burden of Proof in a Self-Defense Case

If you were accused of shooting and killing an aggressor and the prosecution charged you with murder, it would have to prove beyond a reasonable doubt that you caused the victim’s death with the deliberate intent to kill.

Self-defense is an affirmative defense --- you need to put on evidence that you reasonably believed (both in your own eyes and that of a reasonable person standing in your place) that you or a third person were in imminent danger of death or serious bodily harm (an injury that might need hospital treatment or a sexual assault); that you could only save yourself or the other person by using deadly force; and, if you were outside of your home, that you could not retreat in complete safety. (The retreat rule exists in a minority of states including Massachusetts and Connecticut.)

Once the trial court has some evidence of all of those factors, then the prosecution has the burden to disprove self-defense beyond a reasonable doubt.(You may be able to establish all of those factors from the prosecution’s witnesses’ testimony.) Typically, the prosecution will try to show that you started the fight (you were the initial aggressor); you agreed to the fight (you were a mutual combatant); a reasonable person would not have believed he or she was in imminent danger (you overreacted); you could have retreated; you could have used less than deadly force; or you used force after the threat ended (such as you shot the victim in the back).

This is a very broad overview; a subsequent article will talk a bit more about the details of self-defense law in Massachusetts and Connecticut. Even with only a broad overview, you can see the defender’s problem. By claiming self-defense, you essentially admit that you were there (no mistaken identity or alibi); you intentionally harmed the aggressor (it wasn’t an accident); and you acted reasonably (you weren’t acting under extreme emotional disturbance or in the “heat of passion”). You’ve effectively admitted a homicide, and are claiming that you have a legal justification for it. Worse, the trial judge decides whether there is sufficient evidence to justify a self-defense jury instruction, and thus shift the burden of proof on that issue to the prosecutor. That decision may be made late in the trial, after the trial judge has heard the bulk of the evidence – which may create a significant problem for the defense if the judge is unsatisfied and refuses to give a self-defense instruction.

Pursuing a self-defense claim is a very risky thing to do --- it can make the prosecutor’s job much easier if, for example, you had left the scene and there wasn’t a great deal of evidence otherwise linking you to the homicide. It also means that you and your attorney have a great deal of work to do.

What to Look for from a Witness

Every case involves witnesses. When you are thinking about both the prosecution’s witnesses and those you would like to call as your witnesses, think about several factors --- Is the witness credible? Does his or her testimony make sense? Is it internally consistent? Is it consistent with other witnesses and with forensic evidence? Has it changed over time? Does the witness have a bias? Does he or she have a prior criminal record or a bad reputation? Does he ors she have applicable expertise? Does he or she speak and act in a credible way? Will he or she hold up well under cross-examination? 

Your attorney will talk with your witnesses to try to prepare them for trial. He or she may have an investigator try to interview the prosecution’s witnesses as well. In preparing a witness, an attorney will be careful not to suggest that the witness lie or improperly suggest they change their story to help your case. It is illegal for a witness to intentionally lie under oath (perjury). It is illegal to try to persuade someone to lie under oath. It is illegal to threaten, injure, mislead, or harass a witness or offer them something to change their testimony. It is also illegal to tamper with physical evidence.


Both attorneys will likely make numerous objections during your trial. The evidentiary rules are complex, but there are some very, very broad guiding principles.

Evidence should be relevant to the case, and should be more probative (illuminating) than prejudicial. (An attorney probably wouldn’t try to offer evidence if it wasn’t prejudicial to the other side --- this objection deals with the balance between that prejudice and the usefulness and trustworthiness of the evidence.)

Evidence should come from the person who perceived the event or said something, not from others talking about what they were told by the observer or speaker. (There are numerous exceptions to this “hearsay” rule, which are well beyond the scope of this article.) Witnesses also can’t speculate – they have to testify about what they saw and heard, not what they think someone else might have thought or believed.

Witnesses can’t comment directly on each other’s credibility --- one can’t ask a witness whether another witness was lying if his or her testimony was different from the witness being questioned. (The attorney can imply this through questioning, but credibility issues are solely for the jury.)

Attorneys can’t badger a witness with insulting or repetitive questions.

As discussed in the Miranda article, witnesses can’t be compelled to incriminate themselves, or to testify against their spouses, and there are various protections regarding conversations with doctors, mental health professionals, lawyers, spouses, and minor children.

Memory and Good-Faith Errors

Witnesses’ trial testimony may conflict with their prior statements, with the forensic evidence, and with other witnesses. That doesn’t mean they are lying. The eye is not a camera; the mind is not a videotape. People can honestly see and recall things in very different ways. Your attorney will likely have a strategy for dealing with the mistaken witness, which will be different from how he or she deals with witnesses that may be intentionally lying.

In general, your attorney will ask about the witness’ ability to perceive and remember. There is a large body of research dealing with perception and memory for eyewitness identification and for police officers involved in officer-involved shootings. Your attorney may draw upon that research in deciding how to cross-examine witnesses and suggest good-faith errors.

Reputation Evidence

You can generally present evidence of the aggressor’s reputation and past bad acts, if you knew about them at the time. When the aggressor is a stranger, in Massachusetts, you can present some evidence about the aggressor’s prior bad acts to show that he or she was indeed, more likely to be the aggressor.

You can, to some extent, introduce evidence of your own good character. If you raise your character, however, the prosecutor will be able to impeach you with any bad acts you may have committed, even if you were never arrested or convicted.


An expert witness is anyone who has information or skills beyond the jurors’ common knowledge. His or her testimony helps the jurors understand that body of knowledge, which may include forensics, medicine, memory, perception, psychology, and many other topics.

If you have taken any formal self-defense training, you may want to call your trainer as an expert to talk about your training and, by inference, whether your actions were subjectively reasonable. You might want to talk with your trainers about whether their students have ever had to use their advice, and, if so, what happened. You may also want to ask whether the trainer has ever testified as an expert in court, and, if so, what happened. You may want to ask the trainer about his or her experience and about the sources for any advice given. You may want to keep a file with your notes and any handouts from classes you have attended, and books or articles that have been important to your understanding of lawful self-defense.

Even if you have not had any formal self-defense training, you may be able to call a trainer as an expert to talk about self-defense research and training to help the jury understand whether your actions were objectively reasonable. Your attorney will ask a proposed expert about his or her experience as a trainer and as an expert witness, and about the sources for his or her testimony.

The trial judge has a great deal of discretion to decide whether to allow any expert to testify. He or she has to decide whether the expert is qualified, whether the field is a legitimate expertise or science, whether the matter is within the jury’s common knowledge, and whether the testimony is relevant and more probative than prejudicial. If the judge limits or excludes your expert, and you are convicted, it may be very difficult to successfully challenge this decision.

The Decision to Testify

You have an absolute constitutional right to testify in your own defense. That decision is yours alone. Your attorney will, of course, offer his or her advice, but the decision rests with you.

You can establish all of the elements of self-defense by cross-examination and circumstantial evidence, but it is not easy. It is very likely that you will need to testify in a self-defense case to establish that your actions were, in your mind (subjectively), reasonable. You may also need to testify to dispute the prosecution’s witnesses’ versions of the incident. You also may need to help a jury understand why you carried a particular kind of firearm or ammunition, what specifically led you to believe that you or another were in imminent danger, why you felt that you needed to use deadly force and why you fired as many shots as you did, why you didn’t retreat, and so on.

Some of these questions are things you might want to think about now. Assume that you are trying to convince a skeptical, but fair-minded person who does not have any particular knowledge or experience with firearms that your decisions are reasonable.

Why do you carry a firearm? Do you carry it all the time, or only in certain situations, and why? Why do carry that particular firearm? Why do you load it with that particular kind of ammunition? If you routinely carry a spare magazine, why do you do that? If you routinely carry a knife or a back-up firearm, why do you do that? If, in a self-defense situation, you would typically fire at the aggressor’s torso (center of mass), rather than trying to wound him or her, why would you do that? If, in a self-defense situation, you would typically fire many shots, rather than firing a single shot, evaluating the effect, and then firing again if necessary, why would you do that? (Yes, the answers may seem obvious, but they may not be obvious to that fair-minded juror whose knowledge of firearms comes mostly from Hollywood.)

Motions for a Finding of Not Guilty

At the close of the State’s evidence, and again at the close of all evidence, the defense attorney will typically ask the trial court for a required finding of not guilty in a motion made outside of the jury’s presence. If the trial court finds that, viewing the evidence in the light most favorable to the prosecution (i.e. concluding that all the prosecution’s witnesses and evidence is credible), the prosecutor has failed to prove an element of the case, or disprove an element of self-defense, then it will enter a verdict of not guilty and end the trial. These motions are rarely successful unless the prosecution has made a drastic mistake and forgotten to present evidence on a key element of the case.

Closing Argument

Finally, the attorneys each make a final 30-minute argument to the jury summarizing the evidence in a way most favorable to their case. In Massachusetts, the defense goes first, followed by the prosecution. In Connecticut, the prosecutor goes first, then the defense, then the prosecutor can present a rebuttal.

The closing argument has to be limited to the evidence. Neither attorney can give his or her personal opinion about witness credibility, although they may suggest reasons why the jury might conclude that a witness is not believable. They can’t allude to evidence that was not presented at trial, but the defense can comment on police failures to test certain evidence or follow proper police procedures.

If the defendant has not testified, the prosecution can’t allude to the defendant’s choice to exercise his right to avoid self-incrimination. If you have testified, the prosecution can, and will, remind the jury of your interest in the outcome of the case and of any inconsistencies in your testimony.

Generally, attorneys can’t comment on the failure of one side or the other to call a missing witness, even if the witness was available and would seem important to that side’s case. The prosecutor isn’t allowed to insult the defendant, or the defense attorney, or otherwise improperly inflame the jury’s passions or sympathies or appeal to prejudice. A defense attorney is held to a similar standard under the ethics rules.

Typically, the defense can’t suggest that someone else committed the crime unless there was supporting evidence for that theory at trial. Neither attorney can suggest that the jury nullify the law, and the court will not instruct the jury about this option.

Jury Instructions

Finally, the judge tells the jury about the law governing the case. Typically, the parties will have discussed proposed jury instructions before the closing argument, so that they can tailor their argument to the exact words the judge will use. The exact words used by the trial judge are very important --- normally judges rely on standard instructions that have been upheld by appellate courts. If you want to read the standard instructions, you can find them in your local law library.


After all of this, the jury finally can begin deliberating the evidence. In a criminal trial, the jury’s verdict must be unanimous. Typically, the case starts with more jurors than will deliberate in the case – the alternate jurors are dismissed prior to deliberations, but need to remain isolated from prejudicial information until the verdict is reached in case someone falls ill or is disqualified, and they must replace the missing juror.

If the jurors are exposed to prejudicial external information, such as conversing with others about the case during deliberations or doing their own research, then their verdict may be tainted, and the case remanded for a new trial.

Normally, the jury will have the physical exhibits in the jury room during deliberations. (Judges may decide not to send both firearms and ammunition into the jury room at the same time.) It can ask for testimony to be replayed or re-read by the court reporter. In some cases, the jury receives a copy of the trial judge’s instructions. It can ask the judge questions about the law if it did not understand the jury instructions.

If the jury cannot reach a verdict after a reasonable length of time, the case ends in a mistrial. The prosecution can then begin the trial again.


If you are convicted, then you will be sentenced. Sometimes the sentencing hearing is held on the same day as the verdict. In other cases, there is a delay while the probation department prepares a confidential pre-sentence report describing the offense, your prior record (if any) and any factors affecting the sentence, and the victim or his/her family’s desires for a sentence. You will have a right to make a statement to the judge at sentencing --- you should discuss with your attorney whether to make a statement and what to say. Some judges say that a heartfelt, honest statement at sentencing can affect their decision.

The statute will generally state the maximum and minimum term for sentencing. The judge can impose any amount of time within that range. Massachusetts has a set of sentencing guidelines – these are not mandatory, but many judges tend to sentence within the recommended ranges. You should talk with your attorney about the guidelines recommendations.


If you are convicted, you have a statutory right to challenge the validity of your conviction through an appeal. Normally, this will not delay the start of your sentence. (You can apply for an appeal bond if you have particularly strong issues in your case and if the court concludes you are not a flight risk, or a danger to the community.) If you were indigent at trial, or have become indigent due to your conviction and incarceration, you will have the assistance of appointed counsel for an appeal. (In a few cases, you can also take an appeal in the middle of a case, an interlocutory appeal, but these are uncommon.)

Appeals can challenge decisions made by the trial judge and the prosecutor; the validity of the trial process; and sometimes the statute under which you were convicted. They cannot challenge the credibility of the prosecution’s witness --- that decision is made by the jury or, in a bench trial, the judge. Your challenge also has to be based strictly on the record at trial – the testimony, exhibits, and court papers. Challenges to your conviction because of new evidence, or mistakes made by your attorney, follow a different procedure.

The vast majority of criminal appeals end with the judgment being affirmed. You should talk with an appellate counsel after a conviction, but do not be surprised if he or she is, at best, cautiously optimistic about your case.

Appeals can take a long time. The court reporter’s office must prepare a transcript of the testimony in your case. Once that is done, your attorney will use that transcript to prepare a legal challenge to your conviction called a “brief. The prosecution will respond to it with its own brief. Your attorney may file a reply to the prosecutor’s brief. When all the briefs are received, the appellate court (a group of experienced judges) will review the case and make a decision.

Appeals can also involve many steps. Most states have two layers of appellate courts --- the intermediate appellate court which handles the vast majority of criminal and civil cases, and a state supreme court which handles the most serious cases and is the final arbitrator of the state constitution and its laws. A typical criminal case will start in the intermediate appellate court. Whichever party is unsuccessful will likely ask the state supreme court to review the matter. If the state supreme court becomes involved, it will ask for another set of appellate briefs on the questions it wants to decide. (Some serious cases can start in a state supreme court, or be transferred to it and heard directly, but this is uncommon.) Unless there is a federal constitutional issue involved, the decision of the state’s supreme court will end the appeal.

If there is a federal constitutional issue involved, the party who loses before the state supreme court can ask the Supreme Court of the United States for review. If the U.S. Supreme Court declines to review the case (the result in over 90% of cases which seek its review), the appeal is complete.

Habeas and Motions for New Trial

If you want to challenge your conviction because your trial attorney made a serious mistake (provided ineffective assistance of counsel) or because there is newly discovered evidence of your innocence, you can do so in a separate civil proceeding. In Connecticut, and in the federal system, you would file a habeas petition. (Counsel would be assigned to you if you are indigent.)  In Massachusetts, your trial attorney or appellate attorney would normally file a Motion for New Trial under Rule 30 of the Rules of Criminal Procedure.

In either case, the procedure is like a trial --- you can call witnesses to support your claim that your conviction was badly flawed. Here, however, you have the burden of proving your innocence. The prosecution will respond to your witnesses and claims. Again, these challenges are rarely successful, unless there was an egregious error in your case.

You can appeal an adverse decision by a habeas court or of a trial court denying a motion for new trial. It will follow the same procedure as a direct criminal appeal, although your odds of success are even lower.

After you exhaust your state rights, you can challenge your conviction in federal court, alleging that your state conviction violated your federal constitutional rights. By this point, your case has likely been through several layers of state courts --- the trial, the direct appeal, a habeas trial or motion for new trial hearing, and an appeal of that decision --- the odds of success in federal habeas court are low, but it is possible. The federal habeas rules are complex, and you should consult with a specialist if your case is headed in that direction.

Further Reading


Massachusetts Rules of Criminal Procedure

Overview of Mass. Criminal Procedure

Massachusetts District Attorneys Association

An Attorney's Summary of Mass. Murder Laws

Perjury Statutes

Self Defense Law:

Commonwealth v. Boucher, 403 Mass. 659, 663 (1989) (excessive force in self-defense is manslaughter)

Commonwealth. v. Harrington, 379 Mass. 446 (1980) (elements of self-defense)

Commonwealth v. Toon, 55 Mass. App. Ct. 642 (2002) (self-defense jury instruction)

General Laws ch. 278 § 8A (Castle Statute)


Connecticut Practice Book (contains criminal procedure rules)

Overview of Conn. Criminal Procedure

Jury Duty in Connecticut

Conn. Office of Victim Services

Conn. Victim’s Rights Statutes

An Attorney’s Comment on Conn. Murder and Manslaughter Laws

Self Defense Law


OLR Research Report on Self-Defense Law (2002)

OLR Research Report on “Castle Law” (2007)

General Statutes 53a § 18 (self-defense in general)

General Statutes 53a § 19 (defense of person)

General Statutes 53a § 20 (defense of premises) 

General Statutes 53a § 21 (defense of property)

State v. Corchado, 188 Conn. 653 (1982) (constitutional right to jury instruction)

State v. DeJesus, 194 Conn. 376 (1984) (summary of elements)


Top 10 Myths about Jury Trials



Copyright 2008, Lisa J. Steele, Bolton, MA. This article may be reprinted for training purposes, so long as this copyright notice and disclaimer are included.

This article is not legal advice and does not create an attorney-client relationship between the author and any reader. If you want specific legal advice, you need to hire an attorney.

Aftermath of a Shooting – Finding and Hiring Counsel       by Lisa J. Steele

The previous essay started with the assumption that you’ve used your lawfully owned and carried firearm in self-defense. The aggressor was wounded, perhaps dying. You have never needed an attorney’s help before, but you think now would be a good time to hire someone. How do you find an attorney?

What to Look for in an Attorney

At minimum, you need someone familiar with criminal defense, and preferably familiar with the specific trial courts and prosecutors who may become involved with your case. That does not narrow things down significantly. 

Fundamentally, you need someone whose judgment you trust. If you are arrested and you decide to take the case to trial, you may be working with this person for several years. Your attorney will have to make a number of decisions on your behalf, sometimes very quickly. Your legal rights can be significantly affected by those decisions. At other times, you are going to have to make very important decisions based on that attorney’s advice --- again, your future can be very significantly affected by those decisions. You need to understand how those decisions will be made, which can and will be discussed with you, and how disagreements between yourself and your attorney will be resolved.

You also will need someone who can communicate well with you. You may prefer to talk on the telephone, or meet periodically, or write and receive letters --- you will want to hire someone who will promptly respond to your calls or letters in a way that answers your questions and helps you make important decisions about your case. When you meet with an attorney, think about whether you feel comfortable that the attorney listened to you and answered your questions. (If the attorney is part of a firm, you should find out whether the person you speak with will be the person actually doing the work on your case. If not, you may want to meet with those who you will be dealing with most often.)

You may want to ask the attorney specifically about his or her experience with self-defense cases, experience with firearms, and feelings on the rights of citizens to defend themselves. If the attorney is not specifically familiar with firearms or with self-defense, don’t despair. A self-defense case can involve dozens of technical topics, from psychology of witnesses and persons under stress to the mechanics of firearms operation to various forensic specialties like crime scene reconstruction, blood spatter analysis, gunshot residue testing, and firearms identification testimony. You are unlikely to find an attorney who is personally an expert in all of those areas and you may not know which fields will be most important early in the investigation. If the attorney you hire is open to learning about appropriate areas, willing to consult with appropriate experts and learn what he or she needs to know about the specific issues in your case, then you may be in good hands. Ask questions as the case progresses to ensure your confidence in your attorney’s understanding of the legal and technical issues in your case. You can also offer to lend books, articles, and other materials to your attorney to help him or her understand the specific firearms, ammunition, and tactics involved in your case.

You may be tempted to ask the attorney about his or her win/loss record. The answer may not be helpful. Every case is unique – more so when it comes to the idiosyncrasies of judges and juries. And what do you mean by win? No experienced prosecutor has likely had convictions in every case he or she has tried; nor has any criminal defense attorney likely had an acquittal on all charges in every case he or she has handled. A win may mean a plea agreement that is more favorable to the client than the probable result at trial or a conviction for a less serious charge than the prosecutor sought. “Win” is very much in the eye of the beholder. Are those wins comparable to your case? A streak of wins in misdemeanor cases may not be as significant if you are charged with a homicide. In general, the attorney’s record is far less important than whether he or she is dedicated, conscientious, and will work hard on your case.

You may want to talk to the attorney about what happens if you later find that you are unhappy with the attorney’s services and want to hire someone else. Ask about what happens to any unused portion of a retainer. Ask about how your file will be transferred. Ask about fee dispute resolution services like mediation or arbitration. Ask about whether the attorney has had any complaints against him or her with any disciplinary office.

That, of course, brings you to the very real issue of attorney’s fees. Legal representation isn’t cheap. A criminal trial may cost more than your car, or even more than your house. But it is your life, your reputation, and your freedom at stake. On the other hand, the most expensive attorney may not be the best attorney to represent you. You may need to look at a variety of attorneys, not just the most expensive attorney in town.

When you call an attorney, find out whether he or she will charge you for an initial visit or telephone call. Think carefully about whether you want to spend money to decide whether this attorney is a good fit for your case.

During the meeting, if you and the attorney decide that he or she will represent you, the attorney will likely ask you to sign a fee agreement and make a substantial deposit. Read the agreement carefully – it will spell out your attorney’s obligations to you, and any limitations on his or her work for you. It will also explain if, and how, you can recover any unspent retainer fees if you and your attorney disagree and you want to hire someone else.

If someone else is helping you pay for your legal representation, you and your attorney need to talk about to what extent your attorney can or should talk to that third person about the status of the case. Ultimately, you are the client, regardless of who is paying the bills and the attorney’s duty of loyalty is to you. Similarly, you may want to talk with the attorney about whether he or she can or should disclose information about the case to your spouse or concerned members of your family.

Finding a Lawyer

Now that you have some idea what you are looking for, how do you find someone?

You can start with the telephone book. If you had to defend yourself away from your home, but still in your home state, look for attorneys in the telephone book of the area where the incident occurred as well as in your local telephone book. If you had to defend yourself in another state, you will need to find an attorney licensed to practice in that state. The telephone book may have listings of attorneys by areas of practice, so you can narrow down the list to attorneys familiar with criminal defense.

The telephone list is very general. If you want to narrow down your search, you could look for attorneys who are members of your state bar associations’ criminal defense section, or members of your state’s association of criminal defense lawyers (MACDL in Massachusetts). Membership in these groups tells you that the attorney is interested in criminal defense issues, but do not mean that the attorney has a specific level of training, experience, or proficiency.

Some firearms training and advocacy organizations have lists of attorneys. Again, these lists may only mean that the attorney is interested in self-defense or firearms law matters and has asked the organization to refer clients to him or her, not that he or she has specific training, experience, or proficiency in firearms or self-defense cases.

If you have had formal firearms or self-defense training, you can ask your trainer if he or she has been involved in any self-defense cases and/or knows any attorneys who have been involved in such cases.

You may want to try the newspaper archives for attorneys who have recently tried self-defense cases or defended police officers in officer-involved shooting cases. Most newspaper websites allow you to search their archives. Unfortunately, not all stories name the defendant’s attorney. You may also want to keep an eye on your local paper whenever a self-defense case comes up, and note the name of the attorney(s) involved, particularly if the defendant was acquitted.

Whatever method you use, you probably want to speak to several attorneys to get a feel for different styles of communication, experience, and that nebulous sense of trust. Again, you are going to be working with this person for months, and perhaps for years; make sure you are comfortable with him or with her.

Public Defenders

If you qualify for public defender services, you will be assigned an attorney at your first court appearance (typically the arraignment). Public defenders tend to be very experienced at criminal litigation and tend to know the local prosecutors, judges, and police officers well. On the other hand, they also tend to have large caseloads, which may leave them little time for long conversations about your case. Thus public defenders will tend to want to use their time with you very efficiently, and may come across as brusque. You will not get a choice of counsel, and it is not easy to replace your attorney if you come to disagree about your case.

Representing Yourself

You do have a federal constitutional right to represent yourself in a criminal case. This is not a good idea – some judges compare this to trying to do your own heart surgery. You will be dealing with a prosecutor who is trained and experienced with the law. He or she has no obligation to help you with your paperwork or give you advice; although he or she cannot take advantage of your inexperience to violate the procedural or evidentiary rules. He or she will treat you as if you were a trained member of the bar. Similarly, the judge can, and often will, treat you as if you were an attorney and expect you to behave appropriately.

If you are incarcerated, you will be at an even greater disadvantage. Your ability to meet with or telephone experts and witnesses will be limited. Your communications may be recorded or inspected – you will not have the same privileges as an attorney protecting legal mail and work-product. You do not have a right of access to legal materials --- legal materials maintained by Corrections may be out-of-date, incomplete, or not available.

Hiring an Attorney in Advance of a Self-Defense Situation

Some self-defense trainers will recommend that you hire an attorney on retainer as part of having a license to carry. When the author has asked other attorneys about referrals, she has often been met with blank stares --- this is an unusual situation for a criminal defense attorney. Under the Massachusetts Rules of Professional Conduct, Rule 1.2(c), a lawyer cannot “counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law.” A lawyer can help a client understand the scope, meaning, and application of, for example; self-defense law, however, in talking to some defense attorneys about a prospective consultation, the author has heard concerns that legal advice about the then-current state of self-defense might be misconstrued, or about whether they would have an ongoing duty to keep a client advised about changes in the law. Others were concerned that a client seeking that sort of advice might have bad intentions and be looking for a way to legally kill someone. (Working in criminal defense tends to make one a bit cynical.) Certainly, you can research appropriate attorneys and contact one prior to any incident, particularly if you have questions about your state’s laws and want someone to research the answers for you. Just don’t be surprised if the attorney seems puzzled by your request. Also, be aware that if the attorney gives you advice; you rely on that advice; and you intend to introduce evidence of your reliance on that advice at trial, then he or she may be a possible trial witness and unable to represent you. (Lawyers are not generally allowed to be witnesses and counsel in the same trial.)

Working with Counsel

Every state has an ethics code which an attorney is expected to heed. The code broadly defines the attorney’s duties to clients, courts, and opposing counsel. Your responsibility is to communicate clearly with your attorney – make certain that he or she understands the facts of your case, your concerns and questions, and your priorities for your defense. Many lawyers bill on an hourly basis, so you should prepare for telephone calls or meetings so that you can use your time efficiently. Your attorney’s responsibility is to zealously represent you within the bounds of the law. This includes communicating with you promptly and efficiently.

Certain decisions in a criminal case are yours, and yours alone. Your attorney can give you advice, but only you can decide, for example, whether to take a plea offered by the prosecution, whether to go to trial, whether to be tried by a judge or a jury, and whether to take the stand and testify. See Massachusetts Rules of Professional Conduct, Rule 1.2(a). Many other decisions --- which witnesses to call, how to examine or cross-examine a witness, when and how to object, and so on --- are tactical decisions your attorney will make, having consulted with you about general tactics. You should talk with your attorney about your goals for, and concerns about your case, and make sure that you understand the attorney’s intentions.

One note: you need to tell your lawyer the truth about your case. He or she needs to know all the bad facts about you and the incident as soon as possible. There’s little worse for your case than when your attorney is blindsided by the prosecutor because you didn’t mention something important.

If you have witnesses or experts that your attorney should talk with, let him or her know as soon as possible. If your attorney is reluctant to call a witness that you think would help you, talk to your attorney about why he or she thinks that doing so is a bad tactical idea.

If you disagree with your attorney’s advice or tactics, you need to discuss the problem with him or her as soon as possible. Document your disagreement in a letter if you feel strongly about it. You are the one risking jail, not your attorney, you need to feel comfortable with the defense of your case.

Who Can You Talk To?

Anything you say to your attorney is privileged. For the most part, your attorney cannot disclose it to others, nor can the prosecutor use it against you. Similarly, conversations between your attorney and experts he or she hires are generally protected as attorney work-product. By statute, your spouse and minor children cannot be compelled to testify against you in most situations and cannot disclose most family communications. General Laws ch. 233, § 20. Similarly, conversations with a psychotherapist when seeking diagnosis or counseling and with a member of the clergy when seeking counseling are, for the most part, privileged by statute. See General Laws ch. 233, § 20A (priest-penitent), ch. 233, § 20B (psychotherapist-patient). Your medical records are protected under the common law doctor-patient privilege, but this is a complex area because of the various decisions creating and interpreting the privilege. If you have questions about the scope of these privileges, you should talk to your attorney.

There are some important exceptions here – if you tell someone that you are about to commit a crime, or they think you are a danger to yourself or to others, they may be able to report that fact to police, prosecutors or others. Similarly, your attorney is not allowed to participate in perjury, destroying evidence, or presenting false evidence – your attorney would be forced to withdraw from the case before allowing that to occur.

Note also, that if the aggressor survives and is being prosecuted, there are circumstances in which his attorney can seek disclosure of your psychiatric and medical records. Of course, in that situation it is highly unlikely that the prosecutor would be also prosecuting you for using force to defend yourself against the aggressor.

If you talk about the case to anyone else, there is a risk that they might voluntarily disclose the contents of your conversation to the prosecutors or that they might be subpoenaed by the prosecutor. The author represented a client in an appellate case who had become involved in an altercation to defend his then-girlfriend and killed the aggressor. During the lengthy pre-trial proceedings, he had a falling out with her. She voluntarily turned over all of his heartfelt letters to her, some describing the incident, to the prosecutor and testified as a prosecution witness.

While you will need to tell your friends and family members something about what happened, be aware that you could place them in an awkward situation if you tell them too much about the incident. Again, talk with your attorney if you have specific questions.

If you are incarcerated, your mail and phone calls can be copied/recorded and monitored. Counsel was involved in another appeal in which an incarcerated client’s letter to his mother while waiting for trial was intercepted by the prison authorities and used against him at trial. Your legal mail is privileged, but if you keep it in your cell it might be vulnerable to a cell search. Be very discreet about what you say to others, including to other inmates.

Further Reading

Advice on Finding a Lawyer

Advice on Hiring a Criminal Defense Lawyer

More Advice on Hiring a Criminal Defense Lawyer

Still More Advice on Hiring a Criminal Defense Lawyer and Being a Good Client

Twelve Questions to Ask Your Lawyer

Essay on Attorneys Fees

Essay on Lawyer and Client’s Duties

Working with a Criminal Defense Attorney

Essay on Win/Loss Records

NACDL Member Directory (national lookup)

MACDL Member Directory (Massachusetts)

Massachusetts Bar Association Lawyer Referral Service  -- (866) MASS-LRS

Board of Bar Overseers (MA) Attorney Lookup

Mass. Rules of Professional Conduct

CCDLA Member Directory (Connecticut)

Connecticut Bar Association Member Directory

Connecticut Grievance Committee

Mass. Statutory Research:

General Laws ch. 233, § 20 (spousal and minor children privilege)

General Laws ch. 233, § 20A (priest-penitent privilege)

General Laws ch. 233, § 20B (psychotherapist-patient privilege)

Conn. Statutory Research:

Conn. Gen. Stat. § 52-146 (spousal privilege)

Conn. Gen. Stat. § 52-146b (priest-penitent privilege)

Conn. Gen. Stat. § 52-146c (psychotherapist-patient privilege)

Conn. Gen. Stat. § 52-146k (sexual assault/battering counselor privilege)

Conn. Gen. Stat. § 52-146o (physician-patient privilege)

Conn. Gen. Stat. § 46p (marriage counselor privilege)

Conn. Gen. Stat. § 52-146q (social worker-patient privilege)

Conn. Gen. Stat. § 52-146s (licensed professional counselor-patient privilege) 

Exceptions to Attorney-Client Privilege for Evidence of Crimes

(dated and Colorado-based, but good overview of the issues)

Exception to medical/therapist privilege in rape cases discussed:

Mass Lawyers’ Weekly Article

Mass Health Information Management Ass’n Summary




1 Copyright 2007, Lisa J. Steele, Bolton, MA. Please contact the author if you want to use this article for training purposes.

This article is not legal advice and does not create an attorney-client relationship between the author and any reader. If you want specific legal advice, you need to hire an attorney.