In Massachusetts, many crimes are punished more severely each time an offender is convicted. Drunk driving, shoplifting, and drug dealing are just a few offenses with increased penalties for “second or subsequent” offenses.
Whether you committed the crime and whether it is a second-or-subsequent offense are two separate issues that often require separate trials (i.e., “bifurcated trials”). The first trial will determine if you are guilty of the new offense. The second trial will determine whether you have in fact been convicted of “the same or like offense” in the past.
The trials may be heard by two separate juries. Or the defendant can waive the jury for one or both trials.
At your trial to determine second/subsequent offenses, the prosecutor can use a number of documents to prove that you have in fact been convicted of the same or similar crime:
introduction into evidence of a prior conviction or a prior finding of sufficient facts by either certified attested copies of original court papers, or certified attested copies of the defendantās biographical and informational data from records of the department of probation, any jail or house of corrections, the department of correction, or the registry, shall be prima facie evidence that the defendant before the court had been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction.
M.G.L. c. 90, Sec. 24
For those charged with a second or subsequent OUI, a “conviction” includes documentation that
[the] same defendant was previously assigned by a court to an alcohol or controlled substance education, treatment or rehabilitation program and that the program assignment was made because of a like offense.
Model Jury Instructions 2.540
Whether the prior conviction was for a “like offense” depends on the elements of the crime.
Additionally, a prior offense cannot be used against a defendant if he was wrongfully denied legal representation at the time of conviction. It is presumed that the defendant had legal counsel for the prior conviction unless
the first makes a showing that the conviction was obtained without representation by or waiver of counsel.
Commonwealth v. McMullin, 76 Mass. App. Ct. 904, 905 (2010).
The Massachusetts Model Jury Instructions for “Subsequent Offense” trials are attached below.