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Appeals court grills both sides on "true threat" standard, authentication and phone searches in paired Hayes appeals
Summary
In paired appeals captioned Commonwealth v. Hayes, defense counsel urged that harassing emails and mailed materials did not constitute constitutionally unprotected true threats and attacked jury instructions and authentication standards; the Commonwealth argued a swastika and targeted mailing were threatening and that the warrant and instructions
The panel heard argument in two consolidated appeals captioned Commonwealth v. Hayes, focused on criminal intimidation and related counts arising from disturbing mailings and electronic communications.
Appellant counsel Christopher DeMaio argued the evidence (including Exhibit 20 and certain mailings) did not amount to a "true threat" under Virginia v. Black and related First Amendment precedent and that the jury could not reasonably find the communications were a serious expression of intent to commit violence. He pressed the court to apply the Virginia v. Black standard for a true threat and to construe Massachusetts statutes constraining…
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