An Act relative to the costs of appeals by the Commonwealth

H. 3356/ S. 878
Lead Sponsors: Representative David Paul Linsky and Senator Cynthia Stone Creem


Massachusetts is one of a handful of states that awards attorneys' fees to defendants following appeals taken by the prosecution. In a case where a jury found a defendant guilty of assault with intent to rape and a trial judge thereafter reduced the conviction to indecent assault and battery, the Commonwealth appealed. Even though the appeal was successful and the original conviction was reinstated, the District Attorney's office was still responsible for paying more than $28,000 in fees to the defendant's privately retained attorney.


  • Taxpayers in Massachusetts currently reimburse privately retained defense attorneys in cases where the Commonwealth appeals, regardless of whether the Commonwealth prevails. In cases where a judge of a lower court has ruled in error, taxpayers should not have to pay privately retained attorneys to have that erroneous decision reversed by a higher court.
  • Reimbursing the fees incurred by a privately retained defense attorney can be a substantial expense for a District Attorney's office, especially when compared to the annual starting salary of an assistant district attorney. For these offices, with finite resources and strapped budgets, this significant cost is a formidable barrier and must be considered when determining whether to pursue an appeal.

Legislative Fix

  • Establishes that a defendant's right to reimbursement of fees for a privately retained attorney is limited only to those instances where the Commonwealth initiates an appeal and loses that appeal.