Commonwealth v. Fernandes

LOWY, J. (concurring).

**17Although I join Justice Cypher's concurrence, I write separately for three reasons. First, in my view prosecutors should instruct a grand jury on affirmative defenses and on mitigation whenever the evidence supports such instructions. It is good practice to do so, and a number of district attorneys' offices follow this approach. I would not require such instructions, however, for the compelling reasons outlined in Justice Cypher's opinion.

Second, I believe that Justice Budd's conclusion is unwieldy at best, and perhaps even unworkable. I agree with the dissent that…