Massachusetts Appeals Court Allows Prosecutor to Read Dead Victim’s Testimony into Record at Defendant’s Trial

The Massachusetts Appeals Court today ruled that a Massachusetts prosecutor can read into evidence the previous testimony given by a crime victim, where the victim has subsequently died and is obviously not available to testify at the trial.  The name of the case is Commonwealth v. Fontanez. 

The defendant allegedly stabbed the victim at a Springfield bar.  The police presented the victim with a photo array and the victim identified the defendant as the stabber.  The defendant was indicted for: assault and battery with a dangerous weapon causing serious bodily injury; and armed assault with intent to murder.  The defendant filed a motion to suppress the victim’s identification of him in the photo array.  During the hearing on the motion to suppress, the defendant requested to stay out of sight of the victim, and the judge arranged the courtroom seating to prevent the defendant and the victim from seeing one another.  The defendant’s motion to suppress was denied, and the victim’s identification of the defendant (by way of the photo array) was going to be admissible at the defendant’s trial.  However, prior to trial, the victim died (for reasons unrelated to the stabbing).  The Commonwealth asked the trial judge to be permitted to read a transcript of the victim’s testimony from the motion to suppress hearing into evidence so the jurors would know the victim identified the defendant from the photo array as the stabber.  The trial judge denied the Commonwealth’s request, reasoning that admitting the transcript into evidence would violate the defendant’s right to confront his accusers face-to-face.  The Commonwealth filed a notice of appeal and the Supreme Judicial Court reversed.

The first part of the SJC’s decision addressed whether the Court should have accepted appellate review at all.  When a case is still pending, an appellate court will only become involved in trial rulings in “extraordinary” circumstances.  In other words, the vast majority of rulings made by judges during the trial will not be immediately reviewed by an appellate court.  However, in this case, the Commonwealth would have suffered grave consequences if the trial judge’s decision had erroneously stood.  The most important piece of evidence against the defendant would be hidden from the jury, and if the defendant was acquitted, the Commonwealth would not have a right to appeal the verdict.  Therefore, the SJC concluded it should exercise its extraordinary power to review the merits of the Commonwealth’s appeal.

The law in Massachusetts is that an unavailable witness’ prior testimony might be admissible in a subsequent proceeding if five requirements are met: (1) the declarant (person making the statement) was under oath at the prior proceeding; (2) the defendant was represented by an attorney; (3) the proceeding occurred before a record-keeping tribunal; (4) the prior proceeding dealt with the same issues as the present proceeding; and (5) the defendant had reasonable opportunity and similar motivation at the first proceeding for cross-examining the declarant.  In these circumstances, if the declarant is unavailable to testify, his prior testimony may be read into the trial record.  In this case, the Commonwealth satisfied all of the requirements.  The victim’s death had rendered him unavailable.  Defense counsel had the chance to cross-examine the victim at the motion to suppress hearing on the same topics that would have been addressed at the trial.  In response to the defense attorney’s questions, the victim admitted he was drunk on the night of the stabbing, he had only a few seconds to witness the defendant in the bar, and he had a past drug addiction.  This full cross-examination protected the defendant’s confrontation rights.

The case will now return to Springfield Superior Court for the defendant’s trial.