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Sleep Talk
In Commonwealth v. Almeida, 433 Mass, 717 (2001), the Court reversed
the defendant's conviction on two counts of indecent assault and
battery where out-of-court statements, "Jorge, get off me.
Jorge, get off me," made by a child complainant while sleeping
were admitted at trial. The Court held that, "[a]dmitting
hearsay evidence of statements made while a person is sleeping,
. . . would run counter to one of the central principles governing
the admissibility of evidence, namely, that the proffered material
is reliable." 433 Mass. at 719, citing, Liacos "Massachusetts
Evidence" § 8.41 at 477 (7th ed. 1999).
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Impeachment By Conviction
In Commonwealth Kalhauser, 52 Mass. App. Ct. 339 (2001), the
defendant testified and on cross examination was impeached with
a prior conviction. When the conviction was introduced, the trial
court admitted evidence of the sentence imposed on the conviction.
The Appeals Court held that admission of the evidence of the sentence
was error. 52 Mass. App. Ct. at 342. When a party uses a prior
conviction to impeach a witness, that party is limited to establishing
the identity of the witness as the person named in the record.
If the witness answers in the negative or equivocates on the answer
then the questioner can use the facts contained in the record
of conviction to establish the identity of he witness as the person
named in the record of conviction. Those facts, however, do not
include the details of the conviction, e.g., the victim's name
or circumstances surrounding the event." 52 Mass. App. Ct.
at 344. Due to trial counsel's failure to object to the evidence
of the sentence, the Appeals Court analyzed this claim under the
substantial risk of miscarriage of justice standard and found
that there was no such risk. 52 Mass. App. Ct. at 346.
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Prior Inconsistent Statement Adopted by Declarant Admissible
For it's Probative Value
In Commonwealth v. Jones, 432 Mass. 623 (2001), the Court held
that when a witness "unequivocally adopts an earlier inconsistent
statement as true, the adopted statement acquires full probative
value." 432 Mass. at 627, citing, Commonwealth v. Fiore,
364 Mass. 819, 823-824 (1974). But, when the witness "later
contradicts his adoption of the prior inconsistent statement,
the prior statement does not acquire full probative value"
and is admissible only for the limited purpose of impeaching the
witness. Id, citing, Commonwealth v Campbell, 352 Mass. 387, 395
(1967). When the earlier, inconsistent statement is unequivocally
adopted by the witness as true, the judge must instruct the jury
that the prior statement may be given full probative effect. In
this case, the witness did not equivocally adopt the prior statement
as true. Accordingly, there was no error in the trial judge's
refusal to instruct the jury that the prior inconsistent statement
could be considered for its probative value.
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Competence of Child Witness
In Commonwealth v. Monzon, 51 Mass. App. Ct. 245 (2001), the
Appeals Court reviewed the trial court's determination that two
child witnesses, ages five and six at the time of trial were competent
to testify. Under G.L. c. 233 § 20, any person of "sufficient
understanding" may testify as a witness. Competence is evaluated
with reference to a two prong test. First, "whether the witness
has the general ability or capability to 'observe, remember and
give expression to that which she has seen, heard, or experienced';
and [second] whether she has 'understanding sufficient to comprehend
the difference between truth and falsehood, the wickedness of
the latter and the obligation and duty to tell the truth, and,
in a general way, belief that failure to perform the obligation
will result in punishment.'" 51 Mass. App. Ct. at 248, quoting,
Commonwealth v. Brusgulis, 398 Mass. 325, 329 (1986). The party
who offers a child witness has the burden of establishing that
the child is competent to testify. Id.
In this case, the trial judge's colloquy with the children was
inadequate to establish their competence to testify under the
first prong of the test. For this reason, the Appeals Court examined
their trial testimony to determine whether this test could be
met. Based on questions asked of the children about who they lived
with, their friends, school and activities, the Appeals Court
was satisfied that they were competent to observe, remember and
express that which they have observed. 51 Mass. App. Ct. at 249-250.
As to the second part of the test-that the child understand the
difference between the truth and a lie and the obligation to tell
the truth-the Appeals Court upheld the determination that the
five year was competent based on the judge's colloquy in which
the five year old evinced a clear understanding of the difference
between the truth and a lie. The six year old's answers to the
judge's questions however, demonstrated that she had "difficulty
with understanding the difference between the truth and a lie."
51 Mass. App. Ct. at 250. Therefore, when the cross-examination
of the six year old ended with her answering "no," upon
being asked whether she knew the difference between the truth
and a lie, the trial judge was obligated to reconsider his competency
decision and conduct a further inquiry. 51 Mass. App. Ct. at 252.
The Court wrote that, "Judges must carefully craft questions
posed to child witnesses to ensure that they are indeed competent.
That did not occur here." 51 Mass. App. Ct. at 253. The defendant
was granted a new trial on the indictments charging offenses against
the six year old.
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Police Opinion
At the trial of the case before the Appeals Court in Commonwealth
v. Ortiz, 50 Mass. App.Ct. 304 (2000), an undercover police officer
twice testified to his opinion that the defendant was a "runner,
i.e., 'someone who brings customers to somebody who is selling
[drugs].'" 50 Mass. App. Ct. at 306. The Court wrote that
while "it was certainly permissible for [the undercover officer]
to explain what function a runner performed in the street level
sale of drugs, his testimony that he 'believe[d]' the defendant
was a runner "amounted] to a personal assurance by the witness
that the crime charged had occurred, and thereby constitute[d]
an improper intrusion into the fact-finding function of the jury."
50 Mass. App. Ct. at 307, quoting, Commonwealth v. Tanner, 45
Mass. App. Ct. 576, 580 (1998). However, because defense counsel
failed to object to this testimony, the Court reviewed the error
only to determine whether it created a substantial risk of a miscarriage
of justice. It found that there was no such risk and affirmed
the conviction. Id.
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Bias, Evidence of Police Brutality
In Commonwealth v. Hall, 50 Mass. App. Ct. 208 (2000), the Appeals
Court found error in the exclusion of evidence, (testimony and
medical records), offered by the defendant tending to prove that
he was beaten by police officers following his arrest. The Court
reasoned that such evidence was relevant to the officers' bias,
and was admissible to impeach their testimony. 50 Mass.App.Ct.
At 212. The Court wrote that, "'[i]f on the facts, there
is a possibility of bias, even a remote one, the judge has no
discretion to bar all inquiry into the subject.' [Commonwealth
v. Bui, 419 Mass. 392,400 (1995).] The defendant must 'make a
plausible showing that the circumstances existed on which the
alleged bias is based.' Id. [Additional citation omitted.] 'It
is of course clear that the range of evidence that may be elicited
for the purpose of establishing bias of a witness is quite broad
and that accordingly evidence of police brutality is admissible
for such purposes.'" Id. In this case there was a direct
credibility battle between the police witnesses and the defense
witnesses. Hence, evidence tending to show that the police witnesses
were biased was highly relevant. Because it was error to exclude
this evidence a new trial was ordered.
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Use of Defendant's Post-Miranda Silence
In Commonwealth v. Senior, 433 Mass. 453 the Court held that
a defendant who is subjected to a custodial interrogation cannot
"pick and choose" the questions he will answer and the
questions he will not to answer. Once a defendant begins to answer
questions, unless he unequivocally exercises his right to terminate
questioning, his silence in response to a specific question or
questions may be admitted against him. In this case, the defendant
after being Mirandized answered all of the interrogating officer's
questions except where he had been drinking on the day of the
crime. The Court first considered whether the trial court was
correct in ruling that the defendant had, "'voluntarily,
knowingly, and intelligently' waived his right to remain silent
by indicating that he understood his Miranda rights and by answering
[the interrogating officer's] questions after receiving those
warnings." 433 Mass. at 462-463. Finding no error in the
ruling, the Court next considered whether the defendant's refusal
to answer the question was an assertion of his right to cut off
questioning. The court analyzed the refusal "'in the context
of his willingness to talk both immediately prior to and subsequent
to' this particular question." 433 Mass. at 463, quoting,
Commonwealth v. Pennellatore, 392 Mass. 382, 387 (1984). The Court
held that the defendant's silence in response to one question
did not "constitute an affirmative indication 'that he [was]
invoking the right he previously waived.'" Id, quoting, Commonwealth
v. Roberts, 407 Mass. 731, 734 (1990). If a defendant talks, "what
he says or omits is to be judged on its merits or demerits, and
not on some artificial standard that only the part that helps
him can be later referred to." 433 Mass. at 463.
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Improper Cross-Examination of Defendant
In Commonwealth v. Francis, 432 Mass. 353 (2000), the Court found
error in the use of a non-testifying co-defendant's statements
to cross examine the defendant. The statements were not admissible
as statements against the co-defendant's penal interests because,
even though the statements contained incriminating material, they
sought to shift the blame to the defendant while exonerating the
co-defendant. "It was improper for the prosecutor to cross-examine
the defendant about incriminating material that derived exclusively
from the inadmissible extrajudicial statements of a separately
tried co-defendant who did not testify at the defendant's trial."
432 Mass. at 325, citing Douglas v. Alabama, 380 U.S. 415, 419-420
(1965); Robbins v. Small, 371 F.2d 793, 794-795 (1st Cir.), cert.
den. 386 U.S. 1033 (1967). Although the cross-examination of the
defendant was error, the SJC held that the error was harmless.
432 Mass. at 364-366. Trial counsel did not object during the
cross-examination, but did move for a mistrial the following day.
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Hearsay, Police Testimony of Results of Registry Check
In Commonwealth v. Randall, 50 Mass. App. Ct. 26 (2000), the Appeals
Court found reversible error in the admission over the defendant's
objection of a police officer's testimony that a registry check
on the license plate of a van showed that it belonged to the defendant.
At trial, the defendant argued that this testimony was inadmissible
hearsay. The Appeals Court agreed. Because the prosecution used
this testimony to argue that the defendant's van was used in the
commission of the B&E being tried, the Appeals Court reversed
the conviction. The Court reversed even though it acknowledged
that the officer's testimony was admissible to prove why he looked
at a photograph of the defendant immediately after his pursuit
of the van. The error came in the use of the testimony to prove
the defendant's ownership of the van. 50 Mass.App.Ct. At 27-28.
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Expert
In Commonwealth v. Frangipane, 433 Mass. 527 (2001) the Court
found error in the admission of testimony that exceeded an expert
witness's field of expertise. In this case, the Commonwealth sought
to introduce the testimony of a clinical social worker with extensive
experience in working with trauma victims to explain how they
may repress the traumatic event and remember it years later. The
Commonwealth elicited testimony from this witness establishing
that memories can be repressed and recovered later as well as
testimony about how the brain functions for this to happen. The
SJC found that the expert was qualified to offer an opinion on
the fact of dissociative memory loss and recovered memory, 433
Mass. at 533-535, but not to testify "about how a trauma
victim stores and retrieves or dissociates, a traumatic event."
The witness's testimony on how this happens contained, "pronouncements
concerning the physical functioning of the brain, a scientific
and medical matter" on which the witness had not been qualified
to testify. 433 Mass. at 535 (emphasis in original). Because the
complainant's credibility was "pivotal" to the Commonwealth's
case and the witness's improperly admitted testimony served to
"bolster the complainant's credibility" the Court held
that this error required a new trial. 433 Mass. at 537.
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