Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault

6.6.MOTIONS TO PRECLUDE EVIDENCE

6.6.1.Motion to Preclude Reference to Victim’s Bad Character or Prior Bad Acts

COMMONWEALTH OF MASSACHUSETTS
__________, SS ________COURT DEPARTMENT

NO. _____________

COMMONWEALTH
V.
________________________________

COMMONWEALTH’S MOTION IN LIMINE TO PRECLUDE REFERENCE TO

(1) ANY ALLEGED “BAD CHARACTER” OR “BAD REPUTATION” OF THE VICTIM

AND (2) ANY ALLEGED “PRIOR BAD ACTS” OF THE VICTIM

Now comes the Commonwealth in the above-captioned matter and respectfully moves this Court in limine to order counsel for the defendant to refrain from making any reference before the jury to (1) any alleged “bad character” or “bad reputation” of the victim/witness, and (2) any alleged “prior (or subsequent) bad acts” of the victim/witness. Specifically, the Commonwealth requests that the court order defense counsel to refrain from any such reference during the opening statement, during cross-examination of the victim or any other Commonwealth witness, during direct examination of the defendant’s witnesses, or during closing argument.

As grounds therefore, the Commonwealth states that “Massachusetts practice does not permit opinion evidence from W2 regarding W1’s truthfulness.... Indeed, it is the longstanding rule that a witness, either lay or expert, may not offer an opinion regarding the credibility of another witness.” P.J. Liacos, Massachusetts Evidence, 7th Ed. (1999) §6.10.1, at 310. Evidence of prior bad conduct may not be used to impeach a witness’s credibility except by production of records of criminal convictions pursuant to the limitations and requirements of G.L.c. 233, §21. Commonwealth v. Clifford, 374 Mass. 293 (1978), citing Commonwealth v. Turner, 371 Mass. 803 (1977), Commonwealth v. Binkiewicz, 342 Mass. 740, 755 (1961), and Commonwealth v. Dominico, 1 Mass. App. Ct. 693, 713 (1974).

Specific acts of misconduct showing W1 to be untruthful but which did not result in a criminal conviction may not be used either on cross-examination or through extrinsic evidence to impeach a witness under Massachusetts Practice. Liacos, supra, section 6.10.3, at 329-30. “The reasons generally given [for the rule against impeachment by bad acts] are: That proof of separate instances of falsehood may have existed without impairing his general reputation for truthfulness. Or that the impeached witness is not required to be prepared to meet particular acts of which he has had no notice, although he is presumed to be capable of supporting his general reputation. Or that the attention of jurors will be distracted from the real issue to be tried by the introduction of collateral issues, which also would tend to prolong the trial unduly.” F.W.Stock & Sons v. Dellapenna, 217 Mass. 503, 506, 105 NE 378, 379 (1909), Liacos, supra, at 330.

In Commonwealth v. Weichel, 403 Mass. 103 (1988), the defendant (an inmate) sought to cross-examine one of the alleged victims (a prison guard) about whether he had taken a watch from the defendant in the year before the underlying alleged assault and battery. The judge properly excluded the testimony: “the evidence, had it been admitted, might well have led the jury to discount [the guard’s] testimony, not on the ground of bias, but on the ground that the taking of the watch was a prior bad act that demonstrated [the guard’s] lack of character and consequent unreliability as a witness. Impeachment of a witness in that manner is improper.... Thus, because the proffered evidence had little, if any, legitimate value, and invited misuse by the jury, the judge clearly did not abuse his discretion in excluding it.” Id. at 106. See Commonwealth v. Mandell, 29 Mass. App. Ct. 504, 507-508 (1990) (evidence that the victim seemed “impaired” or “accident prone” was properly excluded).

In Commonwealth v. Adjutant, 443 Mass. 649 (2005), the SJC held that if a self-defense theory is raised and the identity of the first aggressor is legitimately in dispute, evidence of the victim’s aggressive and violent character is admissible, regardless of when the defendant learned of it. Id. However, the evidence must be in the form of specific acts of prior violent conduct that the victim is reasonably alleged to have initiated. Id. at 665. While the court has the discretion to admit specific instances of violence that the victim is reasonably alleged to have initiated, it must decide whether the probative value of the evidence outweighs its prejudicial effect in the context of the facts and issues presented. Id.at 650.

In this case, the defendant provided notice that they seek to admit evidence that the victim:______________________________________________________________________________________________________________________________________________. This Court should preclude this evidence from being admitted. First, there is no issue of self-defense or first aggressor in this case. The only evidence put forth is the defendant’s statements to _____________ which is contradicted by the defendant’s statements to ___________. Second, the prior instance of violent conduct the defendant seeks to admit is too remote in time to be relevant to the facts of this case. When the court in Adjutant discussed the judge’s discretion in allowing the prior acts of the victim, it compared the judge’s discretion in allowing prior bad acts of a defendant. Id. at 663 and 664. Therefore, it follows that when the court is weighing the probative value of the proffered act, the same factors and standards would apply. “Evidence of prior misconduct . . . is admissible if ‘substantially relevant to the offense charged; inadmissible when its relevance is insignificant; and, in borderline cases, admissible when its relevance outweighs the undue prejudice that may flow from it . . . .’ ” Commonwealth v. Yelle, 19 Mass. App. Ct. 465, 471-472 (1985), citing Harper v. United States, 239 F.2d 945, 946 (D.C. Cir. 1956). The proposed bad act evidence the defendant seeks to admit is insignificant and should be inadmissible since __________________________________________________________________________ ____________________________________________________________________________________________________________________________________________________________. Should the court find that it is a borderline case, one such factor that courts have historically evaluated in weighing the probative value of a prior bad act of a defendant is the remoteness of said act. See Commonwealth v. Gollman, 436 Mass. 111 (2002); Commonwealth v. Jackson, 417 Mass. 830 (1994). There is no “bright-line test” to determine whether a prior bad act is too remote to be admitted for a permissible purpose. However, courts have routinely made that determination by weighing the elapsed time period with the similarity of the act to the act charged. Id. at 842. “[W]here the logical relationship between the . . .offenses is more attenuated, a time span of fifteen minutes may be too much.” Commonwealth v. Anderson, 439 Mass. 1007, 1008 (2003), citing Commonwealth v. Helfant, 398 Mass. 214, 228 n. 13 (1986). Further, “[w]here the prior misconduct is merely one instance in a continuing course of related events, the allowable time period is much greater.” Id. at 228. In this case, the proposed “bad acts” the defendant seeks to offer is too remote and there is no similarity between the offenses. Specifically, ____________

_____________________________________________________________________________________________________________________________________________________________.

For all the reasons stated above, the Commonwealth seeks to preclude any reference to the victim/witness’ “bad character,” “bad reputation” or “prior bad acts.” Because such evidence would be inadmissible, any reference to such alleged evidence in the presence of the jury would be improper.

Respectfully Submitted

For the Commonwealth,
___________________________

DISTRICT ATTORNEY

___________________________

___________________________

Assistant District Attorney

___________________________

Dated: _____________

6.6.2.Motion to Preclude Use of Privileged Material Until Admissibility is Decided

COMMONWEALTH OF MASSACHUSETTS

_________, SS. SUPERIOR COURT DEPARTMENT

DOCKET NO.

COMMONWEALTH
V.

________________________________________________________________________

COMMONWEALTH'S MOTION FOR COURT ORDER REQUIRING

DEFENSE COUNSEL TO NOTIFY THE COMMONWEALTH PRIOR TO

REQUESTING OR SUMMONSING RECORDS OF COMMONWEALTH WITNESSES

________________________________________________________________________
Now comes the Commonwealth and requests this Honorable Court to order defense counsel for the above-named defendant to notify the Commonwealth prior to seeking a court order or issuing a subpoena for any records of Commonwealth witnesses in the above-captioned case. As reasons therefore, the Commonwealth states:

1. 
   Any record, regardless of privilege, must be relevant in the first instance in order to be discoverable. Mass. R. Crim. P. 14(a)(1)(c) and 14(a)(2).
   
2. 
   Any discretionary discovery request must be made by motion with an attached affidavit “detailing all facts relied upon in support of the motion and signed by a person with personal knowledge of the factual basis of the motion.” Mass. R. Crim. P. 14(a)(2); Mass. R. Crim. P. 13(a)(2).
   
3. 
   The provision of Mass. R. Crim. P. 17(a)(2) “ authorizing the court to order the production of evidence prior to its use at trial or in other judicial proceedings is not intended to permit the use of summonses to subvert the discovery rule, Mass. R. Crim. P. 14." Reporter’s Notes, Mass. R. Crim. P. 17(a)(2). If a summons is being used to subvert the provisions of Rule 14, it is subject to a motion to quash. Mass. R. Crim. P. 17(a)(2).
   
4. 
   “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the rights of such a person.” SJC Rule 3:07, Rule 4.4.
   
5. 
   Witnesses and keepers of records must be given notice of any discovery request for records so they have an opportunity to be heard regarding a privilege determination and the assertion of any potential statutory privilege, constitutional right to privacy, statutory right to privacy or due process rights. See Commonwealth v. Pare, 427 Mass. 427, 429 n.4 (1998); Commonwealth v. Fuller, 423 Mass. 216, 220 n.3 (1996); Commonwealth v. Sigman, 41 Mass. App. Ct. 574, 577-79 (1996).
   
6. 
   Victims are afforded the right “to confer with the prosecutor . . . before any hearing on motions by the defense to obtain psychiatric or other confidential records.” G.L. c. 258B, § 3(g). Further, victims and witnesses are afforded “the right to request confidentiality in the criminal justice system.” G.L. c. 258B, § 3(h).
   
7. 
   The United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const., Amendment IV.
   
8. 
   The Massachusetts Declaration of Rights provides: “Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, . . . or to seize [persons'] property, be not accompanied with a special designation of the . . . objects of search . . . or seizure: and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.” Mass. Declaration of Rights, Part I, art. 14. See also G.L. c. 276, § 1 (proscribing warrantless searches or search warrants for documentary evidence in pos­ses­sion of a psychotherapist unless there is probable cause to believe the docu­ments will be destroyed).
   
9. 
   G.L. c. 214, § 1B provides: “A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages.”
   
10. 
    Statutory privileges are not self-executing; therefore, absent an affirmative assertion of a privilege by the patient/client, the court must treat records as if they were unprivileged. Commonwealth v. Oliveira, 438 Mass. 325 (2002). Based upon the authority cited above and the due process clauses of the United States Constitution and the Massachusetts Declaration of Rights, victims and witnesses have constitutional and statutory rights to have the opportunity to assert or waive any applicable privilege.
    

Respectfully Submitted

For the Commonwealth,
___________________________

DISTRICT ATTORNEY

___________________________

Assistant District Attorney

___________________________
Dated: _____________

6.6.3.Motion to Preclude Victim’s Alleged Allegations of a Sexual Nature with Persons Other than the Defendant

COMMONWEALTH OF MASSACHUSETTS
__________, SS ________COURT DEPARTMENT

NO. _____________

COMMONWEALTH
V.
________________________________

COMMONWEALTH’S MOTION IN LIMINE TO PRECLUDE REFERENCE TO

ANY ALLEGED ALLEGATIONS OF A SEXUAL NATURE BY THE VICTIM

AGAINST INDIVIDUALS OTHER THAN THE DEFENDANT

PURSUANT TO COMMONWEALTH V. BOHANNON

Now comes the Commonwealth in the above-captioned matter and respectfully moves this Honorable Court in limine to order counsel for the defendant to refrain from making any reference before the jury to any alleged allegations of a sexual nature by the victim against individuals other than the defendant. Whether during the opening statement, during cross-examination of the victim or any other Commonwealth witness, during direct examination of the defendant’s witnesses, or during closing argument, any such reference should be precluded.

As grounds therefore, the Commonwealth respectfully states that any such reference, without a prior voir dire or in camera hearing by the Court in which it finds independent evidence of special circumstances, is prohibited by Commonwealth v. Bohannon, 376 Mass. 90, 94-96 (1978) and its progeny. The special circumstances delineated in Bohannon include: “the witness was the victim in the case on trial, her consent was the central issue, she was the only Commonwealth witness on that issue, her testimony was inconsistent and confused, and there was a basis in independent third-party records for concluding that the prior accusations of the same type of crime had been made and were false.” Commonwealth v. Sperazza, 379 Mass. 166, 169 (1979).

The Bohannon exception “is a narrow one ... and is applicable only in ‘unusual fact situations where justice demands.” Commonwealth v. Hicks, 23 Mass. App. Ct. 487, 489 (1987). If there is no independent evidence that such prior allegations were false, they are irrelevant and therefore inadmissible. Commonwealth v. Sherry, 386 Mass. 682, 681-692 (1982). In Commonwealth v. Blair, 21 Mass. App. Ct. 625 (1986), the court held the trial judge did not err in excluding proffered evidence of alleged prior false accusations of sexual misconduct where the defendants failed to show a factual basis from independent third-party records and failed to show that the complainant was the source of any prior false accusation. In Commonwealth v. Doe, 8 Mass. App. Ct. 297, at 302 (1979), the defendant’s presentation “fell short of suggesting a pattern of similar accusations ... (unlike) the offer of proof in the Bohannon case.”

The circumstances and procedural requirements of Bohannon have not been met. The defendant has not presented a factual basis from independent third party records; nor does the defendant present a pattern of similar accusations. Accordingly, the Commonwealth respectfully requests this Honorable Court preclude the defendant from making any reference, at any point before the jury, to alleged allegations of a sexual nature by the victim against persons other than the defendant.

Respectfully Submitted

For the Commonwealth,
___________________________

DISTRICT ATTORNEY

___________________________

___________________________

Assistant District Attorney

___________________________

___________________________

Date: _____________

6.6.4.Motion to Preclude Victim’s Prior Sexual Relations With Persons Other than the Defendant

COMMONWEALTH OF MASSACHUSETTS
__________, SS _______ COURT DEPARTMENT

NO. _____________

COMMONWEALTH
V.
________________________________

COMMONWEALTH’S MOTION IN LIMINE TO PRECLUDE REFERENCE TO

ANY ALLEGED SEXUAL ACTIVITY OF THE VICTIM

WITH INDIVIDUALS OTHER THAN THE DEFENDANT

Now comes the Commonwealth in the above-captioned matter and respectfully moves this Honorable Court in limine to order counsel for the defendant to refrain from making any reference before the jury to any alleged sexual activity of the victim with individuals other than the defendant. Whether during the opening statement, during cross-examination of the victim or any other Commonwealth witness, during direct examination of the defendant’s witnesses, or during closing argument, any such reference should be precluded.

As grounds therefore, the Commonwealth respectfully states that any such reference, without a prior voir dire or in camera hearing by the Court, is prohibited by the rape-shield statute, M.G.L. c. 233, §21B.

“The rape shield statute is principally designed to prevent defense counsel from eliciting evidence of the victim’s promiscuity as part of a general credibility attack.” Commonwealth v. Fitzgerald, 412 Mass. 516, 523 (1992). The statute states:

Evidence of the reputation of a victim’s sexual conduct shall not be admissible ...[e]vidence of specific instances of a victim’s sexual conduct ... shall not be admissible except evidence of the victim’s sexual conduct with the defendant or evidence of recent conduct of the victim alleged to be the cause of any physical feature, characteristic, or condition of the victim; provided, however, that such evidence shall be admissible only after an in camera hearing on a written motion for admission of same and an offer of proof. If, after said hearing, the court finds that the weight and relevancy of said evidence is sufficient to outweigh its prejudicial effect to the victim, the evidence shall be admitted; otherwise not. ... The finding of the court shall be in writing ... .

M.G.L. c. 233, §21B.

“Rape shield statutes are ‘aimed at eliminating a common defense strategy of trying the complaining witness rather than the defendant. The result of this strategy was harassment and further humiliation of the victim as well as discouraging victims of rape from reporting the crimes to law enforcement authorities.’” Commonwealth v. Joyce, 382 Mass. 222, 228 (1981), citing from State v. Williams, 224 Kan. 468, 470 (1978). “The law’s policy is to scrutinize a proposed question even remotely connected with the complainant’s sexual conduct, to ensure that the answer will bear sufficiently on a material issue to justify its being put into evidence.” Commonwealth v. Shaw, 29 Mass. App. Ct. 39, 44 (1990). In Commonwealth v. Sa, 58 Mass. App. Ct. 420 (2003), the Supreme Judicial Court held that evidence that a victim engaged in consensual sexual intercourse with her boyfriend within hours of being raped is not relevant to the victim’s credibility.
The defendant must file a written motion, and provide an in camera offer of proof to the court. The court may exclude evidence otherwise admissible under the statute if the defendant does not comply with the procedural requirements. See Commonwealth v. Gauthier, 32 Mass. App. Ct. 130, 133 (1992) (the omission of written notice is not to be treated as a “trifling” matter). Unless the defendant convinces the court in such a hearing that a victim’s prior sexual conduct is relevant to bias, to a motive to lie, misidentification, the general rule of exclusion holds. Commonwealth v. Joyce, 382 Mass. 222, 228 (1981). If the defendant seeks to impeach the victim with evidence of a prior conviction of a sexual nature, he must show that the prior sexual conduct in question led to a criminal conviction, that the conviction meets all the technical pre-requisites of c. 233, §21, and the court is satisfied that the probative value of the conviction for purposes of impeaching the complainant outweighs the prejudice to the Commonwealth and the complainant, would a prior conviction for sexual misconduct be admissible for impeachment purposes. See Commonwealth v. Harris, 443 Mass. 714 (2005).


CONCLUSION
The defendant should be precluded from asking questions about and/or making references to the victim’s prior sexual conduct. The defendant has not complied with the procedural requirements of M.G.L. c. 233 §21B. Furthermore, even if the defendant had filed a written motion and requested the appropriate hearing, the information at issue is exactly the type the rape shield statute is structured to preclude.
Respectfully Submitted

For the Commonwealth,

___________________________

DISTRICT ATTORNEY

___________________________

___________________________

Assistant District Attorney

___________________________

___________________________

Date: _____________

6.6.5.Motion to Preclude Reference to Commonwealth’s Failure to Call Witnesses

COMMONWEALTH OF MASSACHUSETTS
__________, SS _______ COURT DEPARTMENT

NO. _____________

COMMONWEALTH
V.
________________________________

COMMONWEALTH’S MOTION IN LIMINE TO PRECLUDE REFERENCE TO

COMMONWEALTH’S FAILURE TO CALL WITNESSES

Now comes the Commonwealth in the above-entitled matter and moves this Court for a ruling in limine precluding reference before the jury by counsel for the defense - whether during opening statement, direct or cross-examination of witnesses, or during closing arguments - of the failure of the Commonwealth to call as a witness the complainants in the case, ___________ and ______________.

The failure to call a witness who would normally be expected to be called is an appropriate subject for comment in a criminal case only where it has been established that the witness is available. Commonwealth v. Fredette, 396 Mass. 455, 466 (1986). There has been no such showing in this case, and in fact it is known to both counsel that the witness in question, ____________, is currently unable to be located by either the defense or the Commonwealth as she has failed to appear after being served with a subpoena. Furthermore, ___________ is currently unable to be located by either party and could not be served with a subpoena to appear for this trial.

Courts have held, that with respect to the inference that is drawn by a jury when comment is permitted with respect to a missing witness, because the inference can have such a seriously adverse effect on the non-calling party, it should be allowed only in clear cases and with caution. Commonwealth v. Figueroa, 413 Mass. 193, 199 (1992); see also Commonwealth v. Zagranski, 408 Mass. 278, 287 (1990) (deeming this to be a "delicate area" requiring caution). Upon reviewing the evidence and the circumstances of the particular case, if logic and experience suggest that there is a plausible reason for not calling the witness, then the jury should not be advised of the inference. See Commonwealth v. Anderson, 411 Mass. 279, 282-283 (1991).

Based on a review of the facts and circumstances of the case at bar, it is clear that the witnesses ____________ and ___________ are not available to the Commonwealth can not be produced as witnesses for trial by any reasonable means and through no fault of the Commonwealth. Therefore, the Commonwealth respectfully requests that this motion be allowed and the Defendant precluded from referring to the absence of the witnessed in the presence of the jury.

Furthermore it is requested that the jury be given an instruction in order to neutralize the effect of the witnesses not appearing at trial. This supplemental instruction is drawn from Commonwealth v. Gagnon, 408 Mass. 185, 198 n. 9 (1990), and may be given at the Court's discretion.

Respectfully Submitted

For the Commonwealth,

___________________________

DISTRICT ATTORNEY

___________________________

___________________________

Assistant District Attorney

___________________________

___________________________

Date: _____________

6.6.6.Motion to Conduct In Camera Examination to Determine if Victim has a Valid 5th Amendment Privilege

COMMONWEALTH OF MASSACHUSETTS
__________, SS _______ COURT DEPARTMENT

NO. _____________

COMMONWEALTH
V.
________________________________

COMMONWEALTH’S MOTION IN LIMINE TO CONDUCT AN IN CAMERA EXAMINATION

TO DETERMINE IF (VICTIM) HAS A VALID 5^TH AMENDMENT PRIVILEGE

Now comes the Commonwealth through its Assistant District Attorney, NAME and requests this Honorable Court conduct an in camera examination of NAME, the victim in this matter, to determine if she has a valid 5^th Amendment claim against self incrimination. As reason therefore, the Commonwealth asserts the following:

“A witness must show a real risk that his answers to questions will tend to indicate his involvement in illegal activity, and not a mere imaginary, remote, or speculative possibility of prosecution.” Commonwealth v. Martin, 423 Mass. 496, 502 (1996). It is for a judge, rather than a witness or his attorney, to decide whether a witness’ silence is justified. Id. at 502. “ A proper use for an in camera hearing is to allow a witness to impart sufficient facts in confidence to the judge to verify the privilege claim.” Id. At 504.

The Commonwealth contends that an in camera examination is necessary to determine the validity of a 5^th Amendment claim and to determine if any limitation on testimony is needed.

For the above stated reasons, the Commonwealth respectfully requests this motion be allowed.

Respectfully Submitted

For the Commonwealth,
___________________________

DISTRICT ATTORNEY

___________________________

___________________________

Assistant District Attorney

___________________________

___________________________

Date: _____________