The University of New Hampshire Law Review


[Excerpt] “This article will survey Massachusetts homicide cases from 1805 to 1996 in which the SJC found reversible error. For comparative purposes, the data will be grouped into three periods: from 1805, the year the SJC began to publish its decisions, to 1891, the year original jurisdiction for homicide cases was transferred from the SJC to the Superior Court; 1892 to 1939, the year Massachusetts law allowed the SJC to review the facts as well as the law of capital cases; and from 1940 to 1996, the year Chief Justice Paul Liacos resigned from the court and the importance of state constitutionalism declined. First, the data on reversible error will be situated within its proper legal-historical context and analyzed. Second, using key cases, this article will illustrate some of the major changes in criminal procedure initiated by the court’s finding of reversible error. I argue that the sharp increase in the number of homicide cases in which the SJC found reversible error and the resulting transformation of capital procedure was stimulated chiefly by the SJC’s commitment to state constitutionalism after Warren’s retirement in 1969. For these reasons, from 1970 to 1996 the SJC reversed a greater percentage of capital cases than ever before in its long history. Most importantly, in 1975 the court abolished the mandatory death penalty for murder committed during a rape and in three subsequent opinions found the death penalty violated Articles 12 and 26 of the Massachusetts Declaration of Rights.”

Repository Citation

Alan Rogers, The Death Penalty and Reversible Error in Massachusetts, 6 Pierce L. Rev. 515 (2008), available at http://scholars.unh.edu/unh_lr/vol6/iss3/9