The Boston Globe published its second of three installments on drunk driving bench trials in Massachusetts. The Globe claimed to have researched the number of not guilty verdicts from selected judges that were targeted by prosecutors and published statistics of their rate of not guilty verdicts. Click here to read Part II of the Globe’s special report. This special report focused primarily on Plymouth County OUI cases but also targeted many of the same judges criticized in the first part of its report. To read my Blog regarding Part I of the special report, you can click here.

The Globe’s article is clearly motivated to further the political agenda of prosecutors. An example of this is that the Globe was critical of one Taunton District Court judge who finds that the lack of video tape evidence can be used against the Commonwealth when determining whether the standard of proof beyond a reasonable doubt is satisfied. Instead, the Globe purports to adopt the reasoning of the State police that video is not used because it does not show the subtle signs of someone under the influence of alcohol.

While the Globe compared Massachusetts to other States in its rate of bench trial not guilty verdicts, the Globe did not consider that other police departments around the country routinely record not only the booking but have police cruiser camera. The suggestion that video should not be used because it may not be incriminating as the State police would like is clearly an attempt to keep relevant evidence from a judge or jury and keep control of the evidence in the hands of police officers. With video in OUI cases, there would be objective evidence, precluding officers from overstating and exaggerating conclusions that a motorist is under the influence of alcohol. Instead, without video, the only method to challenge an officer’s opinion is through cross examination.

Judges are clearly entitled to consider lack of evidence in determining proof beyond a reasonable doubt. The Globe article overlooks the fact that the Massachusetts Supreme Judicial Court held in the confession context that it favors the recording of confessions and would allow a jury instruction, telling the jury they can view an unrecorded confession with skepticism, in a case where the police fail to record an alleged confession. Clearly, there is a preference to have the most reliable evidence brought to the attention of a judge or jury and by not recording the booking, the State police is depriving the court of reliable evidence that could be easily made available.

As a Massachusetts OUI lawyer, the idea that judges will be monitored by the press or judiciary with some statistic regarding OUI conviction rates may force more attorney to elect jury trials in drunk driving cases. This week the Massachusetts SJC announced that it would also undertake an investigation into the Globe report.

The decision whether to elect a bench or jury trial is always a difficult decision. The Globe special report may not only influence how judges rule in bench trials, but could influence potential jurors and attorney will have to seek more questioning during jury selection regarding a juror’s views on the Boston Globe report and their knowledge of it and views on the accuracy of the content.