VERDICT WATCH MA - Professor Karen Read, 43, charged with murdering police officer boyfriend John O'Keefe by hitting him with car, Canton, 14 Apr 2023 #36 Retrial

[Soulmagent]

Do you think the CW would have abandoned the consciousness of guilt instruction if they had evidence of it?

I mean how many time do you think Honk brennand watched kReads tv special?

 

[kuromiiiilove]

AFter jury left the courtroom this morning the judge said defense had given her something....she would need some time to read it....have we heard any more? I am most nervous about juror misconduct. Sorry if this has been discussed here ...if so I missed it.

It was an amended verdict slip, and I believe the motion was denied.

ETA: it was denied without ruling in open court.

 

[kuromiiiilove]

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[nightowl1975]

Unanswered calls to John's phone from KR before she gets back to Meadows:

12.33.35
12.34.09
12.34.38
12.35.09
12.35.35
12.36.09

I am firmly on the NG side, and are we to believe that JO was just standing behind the car, not answering the phone and KR ran him over? Why would he just be standing there, ignoring the calls. And how could that many people, at the party, coming and going all night, the plow driver all miss seeing him laying on the ground if he was there since roughly 12:30 AM? Everything that AJ said in his closing arguments, the collision caught on camera of KR backing into JO vehicle, her taillight making contact with his vehicle causing his vehicle to shake. I believe there was some testimony too, that the vehicle data could have shown that action of backing up all those feet at that speed while in possession of the police.

It also boggles my mind that SOMEONE moved that ford edge out there at some point in the middle of the night so that it was parked directly in front of where JO was supposedly lying there in the yard since 12:30am…. then moved it again prior to his body being discovered…. yet they didn’t see his body. That’s not strange at all.

 

[Forest_Wood]

Yes it was proven, by the commonwealth, IMO.

There is no other defence theory for location of 1162-2 in front of the jury.

Very noticeably absent from the defence's closing argument! I expect the jury might have wanted an alternative argument to consider, but alas, nothing in evidence. In the same window of seconds that John's steps stopped.

Whatever happened to it occurring after the Lexus was in the custody of police? Counting numbers backwards to the tow truck. Sshhh! They were wrong all along, Trooper Paul was right.

We have the timestamps for both the 3-pt turn and the reversing triggers, all in the same cycle 1162.

No steps outside the car recorded on John's phone at Fairview, until 12.31.56 am.

timestamp 3.04.58
Closing argument - "Collision Timeline"

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MOO

So, would you convict Miss Karen Read of Murder, knowing that exceptionally credible experts testified:

• KR's SUV could not have killed JOK
• JOK's body was not hit by a vehicle strike
• KR's SUV taillight pieces could not have caused JOK's arm wounds
• JOK's arm wounds were caused by an animal
• His death certificate was ruled undetermined

I'm just wondering how anyone could responsibly convict her and send her off to prison, knowing these qualified experts don't believe JOK's death happened that way based on evidence. As a juror, would you morally do that?

 

[jepop]

The defense abandoned the third party culprit strategy prior to closing arguments, so this is all moot.
IMO

Yep, they were free to raise it at trial if they met the requirements but instead they evolved and went with the more effective and focussed hybrid Bowden IIUC

 

[MerlinFalcon]

So shocking that the judge denied a motion that would make things easier for the jury.

 

[Tortoise]

You’re still conflating evidentiary thresholds with burden of proof. The defense’s obligation to meet a threshold of admissibility for a third-party culprit theory is not the same as assuming the burden of proof at trial.

Section 1105​

Evidence that a third party committed the crimes charged against the defendant, or had the motive, intent, and opportunity to commit the crimes, is admissible provided that the evidence has substantial probative value. In making this determination, the court must make a preliminary finding that the evidence is relevant, is not too remote or speculative, and will not tend to prejudice or confuse the jury. If the evidence is otherwise inadmissible, the court must also find that there are substantial connecting links between the crime charged and a third party or between the crime charged and another crime that could not have been committed by the defendant.

Note​

Third-party culprit evidence—evidence that someone else committed the crime charged, or had the motive, intent, and opportunity to do so—is “a time-honored method of defending against a criminal charge.” Commonwealth v. Rosa, 422 Mass. 18, 22 (1996). A defendant possesses a fundamental due process right to present such evidence, Commonwealth v. Jewett, 392 Mass. 558, 562 (1984), and doubts about admissibility should be resolved in the defendant’s favor, Commonwealth v. Conkey, 443 Mass. 60, 66 (2004). Because the issue implicates constitutional rights, appellate courts review the decision to exclude third-party culprit evidence independently, rather than for abuse of discretion, and the erroneous exclusion of such evidence, upon proper objection, requires reversal unless harmless beyond a reasonable doubt. Conkey, 443 Mass. at 66–67, 70. See also Commonwealth v. Buckman, 461 Mass. 24, 29–30 (2011) (trial judge had discretion to rule in advance of trial that defendant had not made adequate showing that three potential culprits were connected to the crime, and that defendant should provide advance warning to court before offering evidence or argument at trial of third-party culprit).

Defendants may introduce evidence showing that another person committed the crime charged or had the motive, intent, and opportunity to do so, see Commonwealth v. Kirkland, 491 Mass. 339, 357–358 (2023); Commonwealth v. Silva-Santiago, 453 Mass. 782, 800 (2009); that another person recently committed a similar crime by similar methods, see Jewett, 392 Mass. at 562–563; or that another person in a position to commit the charged crime had previously committed other bad acts that are related to the charged crime, see Conkey, 443 Mass. at 67–70. Where third-party culprit evidence is admissible, evidence of the third-party culprit’s consciousness of guilt may also be admitted. Commonwealth v. Shakespeare, 493 Mass. 67, 92 (2023).

While defendants are entitled to wide latitude in introducing third-party culprit evidence, the evidence must be relevant—that is, it must have a rational tendency to prove the issue raised by the defense—and cannot be too remote or speculative. Commonwealth v. Steadman, 489 Mass. 372, 383 (2022). See Commonwealth v. Andrade, 488 Mass. 522, 532–533 (2021) (evidence of ballistics match between shell casing found at scene and shell casing associated with unsolved 2006 murder properly excluded; evidence could have confused jury absent further evidence connecting unsolved murder to individuals involved in defendant’s case, and such evidence, even if available, would have created distracting “trial within a trial”).

Evidence of a third party’s ill will or possible motive to commit the charged crime, standing alone, is insufficient to qualify as third-party culprit evidence. The evidence must also show that the alleged third-party culprit had the intent and opportunity to commit the crime. Commonwealth v. Scott, 470 Mass. 320, 328–329 (2014). Compare Steadman, 489 Mass. at 383 (noting that defendant was permitted to introduce evidence that alleged third-party culprit had loud argument with victim the morning before murder at campground where victim’s body was found), and Conkey, 443 Mass. at 70 (reversible error to exclude evidence of alleged third-party culprit’s motive to commit sexual assault where third party was victim’s landlord, possessed key to her home, and had recently opened lingerie drawer in her bedroom), with Commonwealth v. Acevedo, 492 Mass. 381, 390–391 (2023) (rejecting notion that victim’s status as drug dealer and possession of weapons, together with drugs found in victim’s car and in victim’s clothing, without further specificity, provided ready-made third-party culprit defense that hypothetical rival drug dealer killed victim), Andrade, 488 Mass. at 533 (evidence that rival gang members lived near shooting and were involved in feud with victims not sufficient to support third-party culprit defense where there was no evidence that they had been nearby at time of shooting and only defendant and intended victim were seen holding guns), and Commonwealth v. Rice, 441 Mass. 291, 305–306 (2004) (evidence that alleged third-party culprit had threatened to kill victim more than one year before her murder properly excluded where no other evidence tended to show third party had been involved in murder).

In “rare circumstances,” the defendant’s constitutional right to present a defense may require the admission of otherwise inadmissible hearsay evidence to establish a third-party culprit defense. Commonwealth v. Drew, 397 Mass. 65, 72 (1986). Such evidence is admissible “only if, in the judge’s discretion, the evidence is otherwise relevant, will not tend to prejudice or confuse the jury, and there are other substantial connecting links to the crime.” Commonwealth v. Silva-Santiago, 453 Mass. 782, 801 (2009). See Commonwealth v. Morgan, 449 Mass. 343, 358 (2007) (absent witness’s statement that third party told her that he had shot victim was not admissible as statement against penal interest or as third-party culprit evidence where statement was not corroborated and third party denied making the statement when interviewed by police); Commonwealth v. O’Brien, 432 Mass. 578, 588–589 (2000) (evidence that victim had expressed fear of third party correctly excluded where there were no substantial links between third party and crime because it amounted to nothing more than witness’s opinion that third party committed crime). Where out-of-court statements concerning a third-party culprit are offered for a nonhearsay purpose, however, admissibility does not require substantial connecting links to the crime. Shakespeare, 493 Mass. at 89–91.

A trial judge need not give a specific instruction on third-party culprit evidence so long as the jury instructions, taken as a whole, adequately convey the Commonwealth’s burden to prove beyond a reasonable doubt that the defendant committed the crime charged. Commonwealth v. Hoose, 467 Mass. 395, 412–413 (2014). “[T]he Commonwealth does not have the burden to prove beyond a reasonable doubt that some third party is not guilty of the charged crime.” Id. at 412.

https://www.mass.gov/guide-to-evidence/section-1105-third-party-culprit-evidence

Highlighting in red by me.

 

[nightowl1975]

It is a legally protected right not have to prove one's innocence, but if the defendant is raising 3rd party culprit defence they have to bring some evidence of it. Otherwise no one else is going to do it for them, and they won't have given the jury anything to deliberate. It doesn't mean they have to collect their own DNA evidence etc, but they at least have to raise a reasonable doubt by showing means and opportunity.

I've linked the judge's ruling on 3rd party culprit just above, which specifically shows the defence had that burden.

But the defense wasn’t using 3rd party culprit. So there’s that.

 

[Elliot_Alderson]

It is a legally protected right not have to prove one's innocence, but if the defendant is raising 3rd party culprit defence they have to bring some evidence of it. Otherwise no one else is going to do it for them, and they won't have given the jury anything to deliberate. It doesn't mean they have to collect their own DNA evidence etc, but they at least have to raise a reasonable doubt by showing means and opportunity.

I've linked the judge's ruling on 3rd party culprit just above, which specifically shows the defence had that burden.

Nah JMO

 

[KSwizzle]

Not guilty, it’s impossible for him to have been hit by a car how the CW says with the lack of injuries. The x rays prove this, so much so Brennan tried his best to not have them into the trial and once they were he didn’t even rebuttal with his own witnesses to end the trial. Think about that, the CW gets the last say, they get to finish the trial strong with their own witnesses, and he was so scared to do so he let the trial end with Rentschler saying he was not hit by a car

It’s impossible he was hit by a car

Moo

 

[Tortoise]

No. Defense didn't raise 3rd party culprit. It was hybrid Bowden - proctor failed to investigate potential suspects. That was the strategy they went with. <modsnip>

<modsnip> They didn't present evidence so went with Bowden, which they could have had in addition to 3rd party culprit.

 

[kuromiiiilove]

Section 1105​

Evidence that a third party committed the crimes charged against the defendant, or had the motive, intent, and opportunity to commit the crimes, is admissible provided that the evidence has substantial probative value. In making this determination, the court must make a preliminary finding that the evidence is relevant, is not too remote or speculative, and will not tend to prejudice or confuse the jury. If the evidence is otherwise inadmissible, the court must also find that there are substantial connecting links between the crime charged and a third party or between the crime charged and another crime that could not have been committed by the defendant.

Note​

Third-party culprit evidence—evidence that someone else committed the crime charged, or had the motive, intent, and opportunity to do so—is “a time-honored method of defending against a criminal charge.” Commonwealth v. Rosa, 422 Mass. 18, 22 (1996). A defendant possesses a fundamental due process right to present such evidence, Commonwealth v. Jewett, 392 Mass. 558, 562 (1984), and doubts about admissibility should be resolved in the defendant’s favor, Commonwealth v. Conkey, 443 Mass. 60, 66 (2004). Because the issue implicates constitutional rights, appellate courts review the decision to exclude third-party culprit evidence independently, rather than for abuse of discretion, and the erroneous exclusion of such evidence, upon proper objection, requires reversal unless harmless beyond a reasonable doubt. Conkey, 443 Mass. at 66–67, 70. See also Commonwealth v. Buckman, 461 Mass. 24, 29–30 (2011) (trial judge had discretion to rule in advance of trial that defendant had not made adequate showing that three potential culprits were connected to the crime, and that defendant should provide advance warning to court before offering evidence or argument at trial of third-party culprit).

Defendants may introduce evidence showing that another person committed the crime charged or had the motive, intent, and opportunity to do so, see Commonwealth v. Kirkland, 491 Mass. 339, 357–358 (2023); Commonwealth v. Silva-Santiago, 453 Mass. 782, 800 (2009); that another person recently committed a similar crime by similar methods, see Jewett, 392 Mass. at 562–563; or that another person in a position to commit the charged crime had previously committed other bad acts that are related to the charged crime, see Conkey, 443 Mass. at 67–70. Where third-party culprit evidence is admissible, evidence of the third-party culprit’s consciousness of guilt may also be admitted. Commonwealth v. Shakespeare, 493 Mass. 67, 92 (2023).

While defendants are entitled to wide latitude in introducing third-party culprit evidence, the evidence must be relevant—that is, it must have a rational tendency to prove the issue raised by the defense—and cannot be too remote or speculative. Commonwealth v. Steadman, 489 Mass. 372, 383 (2022). See Commonwealth v. Andrade, 488 Mass. 522, 532–533 (2021) (evidence of ballistics match between shell casing found at scene and shell casing associated with unsolved 2006 murder properly excluded; evidence could have confused jury absent further evidence connecting unsolved murder to individuals involved in defendant’s case, and such evidence, even if available, would have created distracting “trial within a trial”).

Evidence of a third party’s ill will or possible motive to commit the charged crime, standing alone, is insufficient to qualify as third-party culprit evidence. The evidence must also show that the alleged third-party culprit had the intent and opportunity to commit the crime. Commonwealth v. Scott, 470 Mass. 320, 328–329 (2014). Compare Steadman, 489 Mass. at 383 (noting that defendant was permitted to introduce evidence that alleged third-party culprit had loud argument with victim the morning before murder at campground where victim’s body was found), and Conkey, 443 Mass. at 70 (reversible error to exclude evidence of alleged third-party culprit’s motive to commit sexual assault where third party was victim’s landlord, possessed key to her home, and had recently opened lingerie drawer in her bedroom), with Commonwealth v. Acevedo, 492 Mass. 381, 390–391 (2023) (rejecting notion that victim’s status as drug dealer and possession of weapons, together with drugs found in victim’s car and in victim’s clothing, without further specificity, provided ready-made third-party culprit defense that hypothetical rival drug dealer killed victim), Andrade, 488 Mass. at 533 (evidence that rival gang members lived near shooting and were involved in feud with victims not sufficient to support third-party culprit defense where there was no evidence that they had been nearby at time of shooting and only defendant and intended victim were seen holding guns), and Commonwealth v. Rice, 441 Mass. 291, 305–306 (2004) (evidence that alleged third-party culprit had threatened to kill victim more than one year before her murder properly excluded where no other evidence tended to show third party had been involved in murder).

In “rare circumstances,” the defendant’s constitutional right to present a defense may require the admission of otherwise inadmissible hearsay evidence to establish a third-party culprit defense. Commonwealth v. Drew, 397 Mass. 65, 72 (1986). Such evidence is admissible “only if, in the judge’s discretion, the evidence is otherwise relevant, will not tend to prejudice or confuse the jury, and there are other substantial connecting links to the crime.” Commonwealth v. Silva-Santiago, 453 Mass. 782, 801 (2009). See Commonwealth v. Morgan, 449 Mass. 343, 358 (2007) (absent witness’s statement that third party told her that he had shot victim was not admissible as statement against penal interest or as third-party culprit evidence where statement was not corroborated and third party denied making the statement when interviewed by police); Commonwealth v. O’Brien, 432 Mass. 578, 588–589 (2000) (evidence that victim had expressed fear of third party correctly excluded where there were no substantial links between third party and crime because it amounted to nothing more than witness’s opinion that third party committed crime). Where out-of-court statements concerning a third-party culprit are offered for a nonhearsay purpose, however, admissibility does not require substantial connecting links to the crime. Shakespeare, 493 Mass. at 89–91.

A trial judge need not give a specific instruction on third-party culprit evidence so long as the jury instructions, taken as a whole, adequately convey the Commonwealth’s burden to prove beyond a reasonable doubt that the defendant committed the crime charged. Commonwealth v. Hoose, 467 Mass. 395, 412–413 (2014). “[T]he Commonwealth does not have the burden to prove beyond a reasonable doubt that some third party is not guilty of the charged crime.” Id. at 412.

https://www.mass.gov/guide-to-evidence/section-1105-third-party-culprit-evidence

Highlighting in red by me.

<modsnip - personalizing>. The threshold to admit third-party culprit evidence (relevance, non-speculation, substantial probative value etc.) is not the same as assuming the burden of proof at trial.

 

[Leilei]

Section 1105​

Evidence that a third party committed the crimes charged against the defendant, or had the motive, intent, and opportunity to commit the crimes, is admissible provided that the evidence has substantial probative value. In making this determination, the court must make a preliminary finding that the evidence is relevant, is not too remote or speculative, and will not tend to prejudice or confuse the jury. If the evidence is otherwise inadmissible, the court must also find that there are substantial connecting links between the crime charged and a third party or between the crime charged and another crime that could not have been committed by the defendant.

Note​

Third-party culprit evidence—evidence that someone else committed the crime charged, or had the motive, intent, and opportunity to do so—is “a time-honored method of defending against a criminal charge.” Commonwealth v. Rosa, 422 Mass. 18, 22 (1996). A defendant possesses a fundamental due process right to present such evidence, Commonwealth v. Jewett, 392 Mass. 558, 562 (1984), and doubts about admissibility should be resolved in the defendant’s favor, Commonwealth v. Conkey, 443 Mass. 60, 66 (2004). Because the issue implicates constitutional rights, appellate courts review the decision to exclude third-party culprit evidence independently, rather than for abuse of discretion, and the erroneous exclusion of such evidence, upon proper objection, requires reversal unless harmless beyond a reasonable doubt. Conkey, 443 Mass. at 66–67, 70. See also Commonwealth v. Buckman, 461 Mass. 24, 29–30 (2011) (trial judge had discretion to rule in advance of trial that defendant had not made adequate showing that three potential culprits were connected to the crime, and that defendant should provide advance warning to court before offering evidence or argument at trial of third-party culprit).

Defendants may introduce evidence showing that another person committed the crime charged or had the motive, intent, and opportunity to do so, see Commonwealth v. Kirkland, 491 Mass. 339, 357–358 (2023); Commonwealth v. Silva-Santiago, 453 Mass. 782, 800 (2009); that another person recently committed a similar crime by similar methods, see Jewett, 392 Mass. at 562–563; or that another person in a position to commit the charged crime had previously committed other bad acts that are related to the charged crime, see Conkey, 443 Mass. at 67–70. Where third-party culprit evidence is admissible, evidence of the third-party culprit’s consciousness of guilt may also be admitted. Commonwealth v. Shakespeare, 493 Mass. 67, 92 (2023).

While defendants are entitled to wide latitude in introducing third-party culprit evidence, the evidence must be relevant—that is, it must have a rational tendency to prove the issue raised by the defense—and cannot be too remote or speculative. Commonwealth v. Steadman, 489 Mass. 372, 383 (2022). See Commonwealth v. Andrade, 488 Mass. 522, 532–533 (2021) (evidence of ballistics match between shell casing found at scene and shell casing associated with unsolved 2006 murder properly excluded; evidence could have confused jury absent further evidence connecting unsolved murder to individuals involved in defendant’s case, and such evidence, even if available, would have created distracting “trial within a trial”).

Evidence of a third party’s ill will or possible motive to commit the charged crime, standing alone, is insufficient to qualify as third-party culprit evidence. The evidence must also show that the alleged third-party culprit had the intent and opportunity to commit the crime. Commonwealth v. Scott, 470 Mass. 320, 328–329 (2014). Compare Steadman, 489 Mass. at 383 (noting that defendant was permitted to introduce evidence that alleged third-party culprit had loud argument with victim the morning before murder at campground where victim’s body was found), and Conkey, 443 Mass. at 70 (reversible error to exclude evidence of alleged third-party culprit’s motive to commit sexual assault where third party was victim’s landlord, possessed key to her home, and had recently opened lingerie drawer in her bedroom), with Commonwealth v. Acevedo, 492 Mass. 381, 390–391 (2023) (rejecting notion that victim’s status as drug dealer and possession of weapons, together with drugs found in victim’s car and in victim’s clothing, without further specificity, provided ready-made third-party culprit defense that hypothetical rival drug dealer killed victim), Andrade, 488 Mass. at 533 (evidence that rival gang members lived near shooting and were involved in feud with victims not sufficient to support third-party culprit defense where there was no evidence that they had been nearby at time of shooting and only defendant and intended victim were seen holding guns), and Commonwealth v. Rice, 441 Mass. 291, 305–306 (2004) (evidence that alleged third-party culprit had threatened to kill victim more than one year before her murder properly excluded where no other evidence tended to show third party had been involved in murder).

In “rare circumstances,” the defendant’s constitutional right to present a defense may require the admission of otherwise inadmissible hearsay evidence to establish a third-party culprit defense. Commonwealth v. Drew, 397 Mass. 65, 72 (1986). Such evidence is admissible “only if, in the judge’s discretion, the evidence is otherwise relevant, will not tend to prejudice or confuse the jury, and there are other substantial connecting links to the crime.” Commonwealth v. Silva-Santiago, 453 Mass. 782, 801 (2009). See Commonwealth v. Morgan, 449 Mass. 343, 358 (2007) (absent witness’s statement that third party told her that he had shot victim was not admissible as statement against penal interest or as third-party culprit evidence where statement was not corroborated and third party denied making the statement when interviewed by police); Commonwealth v. O’Brien, 432 Mass. 578, 588–589 (2000) (evidence that victim had expressed fear of third party correctly excluded where there were no substantial links between third party and crime because it amounted to nothing more than witness’s opinion that third party committed crime). Where out-of-court statements concerning a third-party culprit are offered for a nonhearsay purpose, however, admissibility does not require substantial connecting links to the crime. Shakespeare, 493 Mass. at 89–91.

A trial judge need not give a specific instruction on third-party culprit evidence so long as the jury instructions, taken as a whole, adequately convey the Commonwealth’s burden to prove beyond a reasonable doubt that the defendant committed the crime charged. Commonwealth v. Hoose, 467 Mass. 395, 412–413 (2014). “[T]he Commonwealth does not have the burden to prove beyond a reasonable doubt that some third party is not guilty of the charged crime.” Id. at 412.

https://www.mass.gov/guide-to-evidence/section-1105-third-party-culprit-evidence

Highlighting in red by me.

Again, third party culprit defense is not being used in this case.
None of this applies here.
IMO.

 

[turaj]

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to be clear as I am not.....is this the exact same verdict slip that caused all the confusion last time or has it been changed?

 

[JusCurious]

It also boggles my mind that SOMEONE moved that ford edge out there at some point in the middle of the night so that it was parked directly in front of where JO was supposedly lying there in the yard since 12:30am…. then moved it again prior to his body being discovered…. yet they didn’t see his body. That’s not strange at all.

Right! Good point!

 

[kuromiiiilove]

to be clear as I am not.....is this the exact same verdict slip that caused all the confusion last time or has it been changed?

It’s pretty similar to last time. I believe the standalone OUI charge is new, but it’s still not clear on how the jury would indicate they voted G on OUI only.

 

[turaj]

Again, third party culprit defense is not being used in this case.
None of this applies here.
IMO.

3rd party not being used but clearly the finger is pointed not too subtly at Brian Higgins. Is he not a third party?

 

[jepop]

Section 1105​

Evidence that a third party committed the crimes charged against the defendant, or had the motive, intent, and opportunity to commit the crimes, is admissible provided that the evidence has substantial probative value. In making this determination, the court must make a preliminary finding that the evidence is relevant, is not too remote or speculative, and will not tend to prejudice or confuse the jury. If the evidence is otherwise inadmissible, the court must also find that there are substantial connecting links between the crime charged and a third party or between the crime charged and another crime that could not have been committed by the defendant.

Note​

Third-party culprit evidence—evidence that someone else committed the crime charged, or had the motive, intent, and opportunity to do so—is “a time-honored method of defending against a criminal charge.” Commonwealth v. Rosa, 422 Mass. 18, 22 (1996). A defendant possesses a fundamental due process right to present such evidence, Commonwealth v. Jewett, 392 Mass. 558, 562 (1984), and doubts about admissibility should be resolved in the defendant’s favor, Commonwealth v. Conkey, 443 Mass. 60, 66 (2004). Because the issue implicates constitutional rights, appellate courts review the decision to exclude third-party culprit evidence independently, rather than for abuse of discretion, and the erroneous exclusion of such evidence, upon proper objection, requires reversal unless harmless beyond a reasonable doubt. Conkey, 443 Mass. at 66–67, 70. See also Commonwealth v. Buckman, 461 Mass. 24, 29–30 (2011) (trial judge had discretion to rule in advance of trial that defendant had not made adequate showing that three potential culprits were connected to the crime, and that defendant should provide advance warning to court before offering evidence or argument at trial of third-party culprit).

Defendants may introduce evidence showing that another person committed the crime charged or had the motive, intent, and opportunity to do so, see Commonwealth v. Kirkland, 491 Mass. 339, 357–358 (2023); Commonwealth v. Silva-Santiago, 453 Mass. 782, 800 (2009); that another person recently committed a similar crime by similar methods, see Jewett, 392 Mass. at 562–563; or that another person in a position to commit the charged crime had previously committed other bad acts that are related to the charged crime, see Conkey, 443 Mass. at 67–70. Where third-party culprit evidence is admissible, evidence of the third-party culprit’s consciousness of guilt may also be admitted. Commonwealth v. Shakespeare, 493 Mass. 67, 92 (2023).

While defendants are entitled to wide latitude in introducing third-party culprit evidence, the evidence must be relevant—that is, it must have a rational tendency to prove the issue raised by the defense—and cannot be too remote or speculative. Commonwealth v. Steadman, 489 Mass. 372, 383 (2022). See Commonwealth v. Andrade, 488 Mass. 522, 532–533 (2021) (evidence of ballistics match between shell casing found at scene and shell casing associated with unsolved 2006 murder properly excluded; evidence could have confused jury absent further evidence connecting unsolved murder to individuals involved in defendant’s case, and such evidence, even if available, would have created distracting “trial within a trial”).

Evidence of a third party’s ill will or possible motive to commit the charged crime, standing alone, is insufficient to qualify as third-party culprit evidence. The evidence must also show that the alleged third-party culprit had the intent and opportunity to commit the crime. Commonwealth v. Scott, 470 Mass. 320, 328–329 (2014). Compare Steadman, 489 Mass. at 383 (noting that defendant was permitted to introduce evidence that alleged third-party culprit had loud argument with victim the morning before murder at campground where victim’s body was found), and Conkey, 443 Mass. at 70 (reversible error to exclude evidence of alleged third-party culprit’s motive to commit sexual assault where third party was victim’s landlord, possessed key to her home, and had recently opened lingerie drawer in her bedroom), with Commonwealth v. Acevedo, 492 Mass. 381, 390–391 (2023) (rejecting notion that victim’s status as drug dealer and possession of weapons, together with drugs found in victim’s car and in victim’s clothing, without further specificity, provided ready-made third-party culprit defense that hypothetical rival drug dealer killed victim), Andrade, 488 Mass. at 533 (evidence that rival gang members lived near shooting and were involved in feud with victims not sufficient to support third-party culprit defense where there was no evidence that they had been nearby at time of shooting and only defendant and intended victim were seen holding guns), and Commonwealth v. Rice, 441 Mass. 291, 305–306 (2004) (evidence that alleged third-party culprit had threatened to kill victim more than one year before her murder properly excluded where no other evidence tended to show third party had been involved in murder).

In “rare circumstances,” the defendant’s constitutional right to present a defense may require the admission of otherwise inadmissible hearsay evidence to establish a third-party culprit defense. Commonwealth v. Drew, 397 Mass. 65, 72 (1986). Such evidence is admissible “only if, in the judge’s discretion, the evidence is otherwise relevant, will not tend to prejudice or confuse the jury, and there are other substantial connecting links to the crime.” Commonwealth v. Silva-Santiago, 453 Mass. 782, 801 (2009). See Commonwealth v. Morgan, 449 Mass. 343, 358 (2007) (absent witness’s statement that third party told her that he had shot victim was not admissible as statement against penal interest or as third-party culprit evidence where statement was not corroborated and third party denied making the statement when interviewed by police); Commonwealth v. O’Brien, 432 Mass. 578, 588–589 (2000) (evidence that victim had expressed fear of third party correctly excluded where there were no substantial links between third party and crime because it amounted to nothing more than witness’s opinion that third party committed crime). Where out-of-court statements concerning a third-party culprit are offered for a nonhearsay purpose, however, admissibility does not require substantial connecting links to the crime. Shakespeare, 493 Mass. at 89–91.

A trial judge need not give a specific instruction on third-party culprit evidence so long as the jury instructions, taken as a whole, adequately convey the Commonwealth’s burden to prove beyond a reasonable doubt that the defendant committed the crime charged. Commonwealth v. Hoose, 467 Mass. 395, 412–413 (2014). “[T]he Commonwealth does not have the burden to prove beyond a reasonable doubt that some third party is not guilty of the charged crime.” Id. at 412.

https://www.mass.gov/guide-to-evidence/section-1105-third-party-culprit-evidence

Highlighting in red by me.

Watch the hearing before closings. The defense was not doing a third party culprit defense so this is not relevant. Not getting your point. The defense was very effective. Watch the pre trial stuff, they are fine to evolve as they go and that is exactly what they did, and they did it very well. Jmo

 

[turaj]

It’s pretty similar to last time. I believe the standalone OUI charge is new, but it’s still not clear on how the jury would indicate they voted G on OUI only.

i heard Yanetti argue that there are multiple options for a guilty verdict and only one for NG?