Massachusetts Supreme Judicial Court Prohibits Evidence Related to Criminal Defendant’s Prior Acquittal

In an important decision, the Massachusetts Supreme Judicial Court today ruled that the Commonwealth cannot introduce evidence in a criminal defendant’s trial that is related to a prior case in which the defendant was found not guilty.  The name of the case is Commonwealth v. Dorazio. 

The defendant was found guilty in 2010 of raping a child and assaulting with intent to rape another child.  In the late 1990s, the defendant was living with his wife in Burlington.  On two occasions, he asked his neighbor, who had just finished kindergarten, to go outside into his back yard with him.  The defendant then asked the girl to sit on his knee.  When she did so, the defendant slid his hand under her shorts and underwear and inserted his finger into her vagina.  A couple of years later he asked another neighbor – a six-year-old girl – to go into his house to get a Wiffle ball.  He followed her inside and as she stood on his washing machine to reach for the ball, the defendant reached inside of her underwear and touched her vagina.

At trial, the prosecutor sought to introduce evidence about a prior incident in which the defendant was placed on trial for allegedly inappropriately touching a six-year-old girl in a play tube at a Burlington restaurant.  In that case, the defendant was playing with his son in the play tube when he allegedly placed his hand inside of the underwear of a six-year-old girl who was also in the play tube.  Following his trial in that case, the defendant was found not guilty.  However, during the trial that occurred in 2010, the judge allowed the prosecutor to call witnesses to describe the incident in the Burlington restaurant’s play tube.  The judge cautioned the jury that the evidence regarding the play tube was to be considered only to determine if the defendant had acted intentionally in touching the two young girls at his house.

Following his convictions, the defendant appealed and argued that the evidence regarding the case where he was acquitted should not have been introduced.  The Supreme Judicial Court agreed and reversed his convictions.

The Court began its analysis by concluding that the evidence regarding the restaurant play tube incident was relevant in demonstrating the defendant’s pattern of conduct in placing his fingers inside of the underwear of young girls.  It was appropriate “prior bad act” evidence.  However, the Court concluded that the evidence, although relevant, violated the defendant’s due process rights under the Massachusetts Constitution.  Under federal law, evidence of a defendant’s prior bad acts are admissible even when the defendant was found not guilty of a crime associated with those prior bad acts.  In this case, the Supreme Judicial Court ruled for the first time that under state law, evidence related to a defendant’s acquittal cannot be admitted at a subsequent criminal trial as a prior bad act to establish the defendant’s pattern of behavior.  The Court expressed concern that the defendant might be convicted as a result of the prior bad act evidence, even though he was previously acquitted of a crime related to that evidence.  There is a danger that the jury will convict the defendant based in part on the prior bad act evidence, notwithstanding the fact that the defendant was already found not guilty.  Accordingly, the SJC ruled that evidence relating to a prior crime for which a defendant was found not guilty cannot be introduced as prior bad act evidence at a defendant’s subsequent criminal trial.

Prior bad act evidence is extraordinarily dangerous.  Prosecutors love to introduce this evidence, arguing that it establishes the defendant’s pattern of conduct in committing certain criminal offenses.  What the evidence is really intended to do is establish that the defendant has a propensity to commit crimes.  Prosecutors hope that juries will conclude that if the defendant allegedly committed a crime in the past, it’s likely that he also committed a crime in the present case.  It is important for criminal defense attorneys to aggressively challenge the admissibility of prior bad act evidence before the trial begins, as such evidence often determines the outcome of the case.