Commonwealth v. White, 325 N.E.2d 575 (Mass. 1975). · Go Syfert
Commonwealth v. White, 325 N.E.2d 575 (Mass. 1975). Cases Citing This Book View Copy Cite
70 citation events (25 in the last 25 years) across 4 distinct courts.
Treatment trajectory · 1976 → 2026 · click a year to view as-of
1976 2001 2026
Cited for
367 Mass. at 284 Prohibiting improper innuendo through negative questions28 citing cases‘the attempt to communicate impressions by innuendo through questions which are answered in the negative . . . when the questioner has no evidence to support the innuendo, is an improper tactic which has often been condemned by the courts’7 citing courts put it this way
  • Commonwealth v. Knowles, No. AC 16-P-1409 (Mass. App. Ct. Jan. 10, 2018).published
    (It is error for a prosecutor 'to communicate impressions by innuendo through questions which are answered in the negative . . . when the questioner has no evidence to support the innuendo')
  • Commonwealth v. Bailey, 421 N.E.2d 791 (Mass. App. Ct. 1981).published
    (�the attempt to communicate impressions by innuendo through questions which are answered in the negative . . . when the questioner has no evidence to support the innuendo, is an improper tactic which has often been con…)
  • Commonwealth v. Knowles, 91 N.E.3d 1155 (Mass. App. Ct. 2017).published 2 cites
    (It is error for a prosecutor 'to communicate impressions by innuendo through questions which are answered in the negative ... when the questioner has no evidence to support the innuendo')
  • Commonwealth v. Thomas Mercado, No. 0683CR00250 (Mass. Super. Ct. July 7, 2023).published
    Commonwealth v. Gibson. 489 Mass. 37 , 49 (2022); Commonwealth v. Auguste, 418 Mass. 643 . 647 (1994); Commonwealth v. White, 367 Mass. 280, 284-85 (1975).
  • Commonwealth v. Santiago, 937 N.E.2d 965 (Mass. 2010).published 2 cites
    “In general, questions concerning a witness’s fear of testifying are appropriate in the judge’s discretion.” Commonwealth v. Fitzgerald, 376 Mass. 402, 412 (1978), citing Commonwealth v. White, 367 Mass. 280, 284 (1975).
  • Commonwealth v. Johnson, 802 N.E.2d 1025 (Mass. 2004).published
    A prosecutor may not cross-examine a witness “in bad faith or without foundation.” Commonwealth v. Christian, 430 Mass. 552, 561 (2000), quoting Commonwealth v. White, 367 Mass. 280, 284 (1975).
  • Commonwealth v. Kenney, 769 N.E.2d 1231 (Mass. 2002).published
    Although “[i]t is error for a prosecutor ‘to communicate impressions by innuendo through questions which are answered in the negative . . . when the questioner has no evidence to support the innuendo,’ ” Commonwealth v. Fordham, 417 Mass.…
  • Commonwealth v. Johnson, 728 N.E.2d 281 (Mass. 2000).published 2 cites
    It is error to “communicate impressions by innuendo through questions which are answered in the negative . . . when the questioner has no evidence to support the innuendo.” Commonwealth v. Fordham, supra at 20 , quoting Commonwealth v. Whi…
  • Commonwealth v. Howell, 725 N.E.2d 582 (Mass. App. Ct. 2000).published
    “It is error for a prosecutor ‘to communicate impressions by innuendo through questions which are answered in the negative . . . when the questioner has no evidence to support the innuendo.’ ” Commonwealth v. Fordham, 417 Mass. 10, 20 (199…
  • Commonwealth v. LaFaille, 712 N.E.2d 590 (Mass. 1999).published
    While it is error for a prosecutor “to communicate impressions by innuendo through questions which are answered in the negative . . . when the questioner has no evidence to support the innuendo,” Commonwealth v. Fordham, 417 Mass. 10, 20 (…
Show 18 more citing cases
  • Commonwealth v. Griffith, 702 N.E.2d 17 (Mass. App. Ct. 1998).published
    Commonwealth v. White, 367 Mass. 280, 284 (1975).
  • Commonwealth v. Syrafos, 646 N.E.2d 429 (Mass. App. Ct. 1995).published
    “The attempt to communicate impressions by innuendo through questions which are answered in the negative, . . . when the questioner has no evidence to support the innuendo, is an improper tactic which has often been cond…”
  • Commonwealth v. Dowdy, 633 N.E.2d 419 (Mass. App. Ct. 1994).published 2 cites
    “to communicate [adverse] impressions by innuendo through questions which are answered in the negative”
  • Commonwealth v. Fordham, 627 N.E.2d 901 (Mass. 1994).published
    “to communicate impressions by innuendo through questions which are answered in the negative . . . when the questioner has no evidence to support the innuendo”
  • Commonwealth v. Johnson, 588 N.E.2d 684 (Mass. 1992).published
    Indeed, where the witness is one’s own, such questions may be a prerequisite to the admission of prior inconsistent statements for the purpose of impeaching that witness. . . . [I] f no third person is present during a conversation between…
  • Commonwealth v. Peloquin, 572 N.E.2d 568 (Mass. App. Ct. 1991).published
    “Questions concerning a witness’ fear of testifying to the truth, threats by a defendant and statements of a defendant urging a witness to lie are appropriate in the judge’s discretion”
  • Commonwealth v. Mahoney, 510 N.E.2d 759 (Mass. 1987).published
    See Commonwealth v. Barnett, 371 Mass. 87, 96 (1976), cert. denied, 429 U.S. 1049 (1977); Commonwealth v. White, 367 Mass. 280, 284-285 (1975); Commonwealth v. Marsh, 354 Mass. 713, 720 (1968); Commonwealth v. Granito, 326 Mass. 494, 498 *…
  • Commonwealth v. Gonsalves, 499 N.E.2d 1229 (Mass. App. Ct. 1986).published
    “communicat[ing] impressions by innuendo”
  • Commonwealth v. Long, 462 N.E.2d 330 (Mass. App. Ct. 1984).published
    The judge did not err in allowing the prosecutor to ask the defendant’s wife whether the defendant “liked wearing his knife.” See and compare Commonwealth v. White, 367 Mass. 280, 284-285 (1975). 3.
  • Commonwealth v. Errington, 460 N.E.2d 598 (Mass. 1984).published
    Furthermore, since it would have been improper for counsel to have attempted to communicate that impression to the jury by innuendo through a series of questions that were being answered in the negative, Commonwealth v. Bianco, 388 Mass. 3…
  • Commonwealth v. Bianco, 446 N.E.2d 1041 (Mass. 1983).published 2 cites
    “[t]he attempt to communicate impressions by innuendo through questions which are answered in the negative . . . when the questioner has no evidence to support the innuendo, is an improper tactic which has often been con…”
  • Commonwealth v. Hogan, 428 N.E.2d 314 (Mass. App. Ct. 1981).published
    Cf. Commonwealth v. White, 367 Mass. 280, 284 (1975).
  • Commonwealth v. Rodriquez, 409 N.E.2d 1330 (Mass. App. Ct. 1980).published
    We do not condone the tendentious nature of the questions asked by the prosecutor or the manner in which they were asked (compare Commonwealth v. White, 367 Mass. 280, 284 [1975]); however, the decision whether to declare a mistrial in suc…
  • Commonwealth v. Key, 407 N.E.2d 327 (Mass. 1980).published
    See Commonwealth v. Fitzgerald, 376 Mass. 402, 414 (1978); Commonwealth v. White, 367 Mass. 280, 284 (1975).
  • Commonwealth v. Fitzgerald, 381 N.E.2d 123 (Mass. 1978).published 4 cites
    Commonwealth v. White, 367 Mass. 280, 284 (1975).
  • Commonwealth v. Bohannon, 378 N.E.2d 987 (Mass. 1978).published
    “the cross-examiner should have a reason for asking any such questions and should be prepared to disclose that reason to the judge”
  • Commonwealth v. Corliss, 356 N.E.2d 455 (Mass. 1976).published
    As the Commonwealth points out, we said in Commonwealth v. White, 367 Mass. 280, 284 (1975), *269 “There is nothing improper in interviewing a witness before trial, or, subject to the judge’s discretion, in cross-examining a witness concer…
  • Commonwealth v. Hart, 914 N.E.2d 904 (Mass. 2009).published
    See Commonwealth v. White, 367 Mass. 280, 284 (1975), quoting A.B.A.
367 Mass. at 285 Determining bad faith in cross-examination and jury instructions8 citing casesjudge instructed jury six times during trial and in charge that negative answer to question provided no evidence for their consideration1 citing court put it this way
  • Commonwealth v. McGann, 484 Mass. 312 (2020).published 3 cites
    In Commonwealth v. Peck, 86 Mass. App. Ct. 34, 39 (2014), the Appeals Court stated that "the requirement noted in [Commonwealth v. White, 367 Mass. 280, 285 (1975)] (that the examiner must have a good faith basis and proper foundation for…
  • Commonwealth v. McCoy, 795 N.E.2d 1183 (Mass. App. Ct. 2003).published
    A prosecutor should not be allowed to conduct a “cross-examination ‘in bad faith or without foundation.’ ” Commonwealth v. Christian, 430 Mass. 552, 561 (2000), quoting from Commonwealth v. White, 367 Mass. 280, 285 (1975).
  • Commonwealth v. Wynter, 770 N.E.2d 542 (Mass. App. Ct. 2002).published
    Commonwealth v. White, 367 Mass. 280, 285 (1975).
  • Commonwealth v. Johnson, 728 N.E.2d 281 (Mass. 2000).published 2 cites
    It is error to “communicate impressions by innuendo through questions which are answered in the negative . . . when the questioner has no evidence to support the innuendo.” Commonwealth v. Fordham, supra at 20 , quoting Commonwealth v. Whi…
  • Commonwealth v. Martinez, 726 N.E.2d 913 (Mass. 2000).published
    “A prosecutor may not conduct cross-examination ‘in bad faith or without foundation.’ ” Commonwealth v. Christian, supra at 561 , citing Commonwealth v. White, 367 Mass. 280, 285 (1975).
  • Commonwealth v. Christian, 722 N.E.2d 416 (Mass. 2000).published 2 cites
    “in bad faith or without foundation”
  • Commonwealth v. Capone, 659 N.E.2d 1196 (Mass. App. Ct. 1996).published
    (judge instructed jury six times during trial and in charge that negative answer to question provided no evidence for their consideration)
  • Commonwealth v. Womack, 929 N.E.2d 943 (Mass. 2010).published
    See, e.g., Commonwealth v. White, 367 Mass. 280, 285 (1975).
367 Mass. at 283 Permitting cross-examination despite implied statements3 citing casesjudge did not err in permitting prosecutor to ask questions based on prosecutor's pretrial interview with witness even though prosecutor could only have introduced admissible evidence of that interview by withdrawing from case and becoming witness1 citing court put it this way
  • Commonwealth v. McGann, 484 Mass. 312 (2020).published 3 cites
    In Commonwealth v. Peck, 86 Mass. App. Ct. 34, 39 (2014), the Appeals Court stated that "the requirement noted in [Commonwealth v. White, 367 Mass. 280, 285 (1975)] (that the examiner must have a good faith basis and proper foundation for…
  • Abramian v. President & Fellows of Harvard Coll., 9 Mass. L. Rptr. 556 (Mass. Super. Ct. 1998).published
    See Commonwealth v. White, 367 Mass. 280, 283-84 (1975).
  • Commonwealth v. Jenkins, 607 N.E.2d 756 (Mass. App. Ct. 1993).published
    See Commonwealth v. White, 367 Mass. 280, 283 (1975); Commonwealth v. Fitzgerald, 376 Mass. 402, 415-416 (1978).
367 Mass. at 281 Wilkins, J. After the Appeals Court affirmed the judgments against each of the defendants (see Commonwealth v. White, 2 Mass. App. Ct. 258 [1974]), we granted…2 citing casesopening of page *281 (no citing court says what it cites this page for)
  • Commonwealth v. Pimental, 363 N.E.2d 1343 (Mass. App. Ct. 1977).published
    The prosecutor made no effort to use the statement to refresh the witness’s recollection (see Commonwealth v. Hartford, 346 Mass. 482, 486-487 [1963] ) ; instead, he requested a ruling to the effect that the witness was hostile (see Common…
  • Commonwealth v. Johnson, 361 N.E.2d 212 (Mass. 1977).published
    See Commonwealth v. White, 367 Mass. 280, 281-285 (1975); Commonwealth v. LaFrance, 361 Mass. 53, 56-57 (1972).
Retrieving the full opinion text from the archive…
Commonwealth vs. David White (And Five Companion Cases)
Massachusetts Supreme Judicial Court.
Apr 1, 1975.
Published opinion
325 N.E.2d 575
1975 Mass. LEXIS 840
Joseph J. Balliro for the defendant O’Master., Alfred E. Nugent for the defendant White., John T. Gaffney, Assistant District Attorney (Thomas E. Dwyer, Assistant District Attorney, with him) for the Commonwealth.
Tauro, Reardon, Braugher, Kaplan, Wilkins.
Cited by 46 opinions  |  Published
1 passages pin-cited by 1 case
Pinpoint authority: bottom 76%
Citer courts: Massachusetts Appeals Court (2) · District of Columbia (1)
[*281] Wilkins, J.

After the Appeals Court affirmed the judgments against each of the defendants (see Commonwealth v. White, 2 Mass. App. Ct. 258 [1974]), we granted limited further appellate review. We declined to give further consideration to the asserted error of the trial judge in denying the defendants’ motions to inspect the minutes of the grand jury, but granted further review on each of the other four contentions considered by the Appeals Court. We agree with the Appeals Court’s conclusions and affirm the judgments. We shall discuss only the prosecutor’s alleged improper questioning of the witnesses Leahy and Bucelwicz. We adopt the reasoning of the Appeals Court on the remaning two areas of objection. [2]

This case turned largely on the credibility of the victim Paaso. He testified that on September 23, 1972, at approximately 3 a.m., he entered a bar in Brighton (the Whistle Stop), accompanied by Leahy, one Maley and a German shepherd dog. Following a discussion with the defendants, he was cut and stabbed by the defendant White in circumstances which would have rendered the defendant O’Master jointly responsible for the stabbing, if Paaso’s testimony were believed. According to Paaso, Leahy was a few yards away at the time of the assault. In the course of the incident Paaso noticed O’Master strike the dog. The mutilated body of the dog was found later that day in an adjacent parking lot by Bucelwicz, a maintenance man at a nearby motel.

The prosecutor put Leahy on the stand, although he suspected that Leahy would lie concerning his presence at the scene of the crime. Leahy was not a productive witness for the prosecution. He denied his presence at[*282] the Whistle Stop at the time Paaso was stabbed. Leahy was asked leading questions both before and after the judge declared him to be a hostile witness. He denied various circumstances which, if true, tended to show that he was at the Whistle Stop and that, immediately after the stabbing, he obtained funds in order to leave the State. All of the questions relating to his possible presence at the Whistle Stop and his plan to leave concerned proper topics of cross-examination of this witness. Moreover, there is no reasonable question as to the prosecutor’s motives or the propriety of asking these questions, because evidence tending to refute Leahy’s denials was introduced with respect to all but one of these various questions.

Leahy was asked next if he was afraid of the defendants. Over objection and exception, he answered in the negative. The prosecutor then asked Leahy: “Did you ever tell me that you were?” Again a negative answer was given, after objection and exception by the defendants. The defendants immediately moved for a mistrial. At a conference at the bench the prosecutor, on questioning by the judge, stated that the witness had made the statement to him. The motion for mistrial was denied. In the course of a cross-examination in which considerable latitude was allowed, Leahy denied again that he had told the prosecutor that either of the defendants had threatened him.

The witness Bucelwicz testified next on direct examination by the prosecutor. He said that, with the assistance of the defendant White, he dragged the body of the German shepherd to an empty parking lot. Over objection and exception, he denied that the prosecutor had asked him about talking to the defendants concerning this case. He agreed that he had talked to the prosecutor about the case. He then was asked: “Do you recall saying to me that you didn’t want to testify because you would be killed?” He answered in the negative,[*283] after the defendants’ objections were overruled. The judge denied a motion for a mistrial and immediately stated to the jury, as he had done previously on several occasions, “ [Wjith a negative answer, you are not to conclude that the question is in any way evidence.” Next, Bucelwicz denied telling the prosecutor that the defendants “would have a contract out on . . . [him] and . . . [his] family.” Another motion for a mistrial was then denied. Bucelwicz further denied telling the prosecutor that the defendant White had said to him: “Don’t forget, you did not see me that day.” The judge again warned the jury that a negative answer did not carry any weight and admonished the prosecutor, as he had done previously, to move on to some other question.

The defendants argue that it was prejudicial error to allow the prosecutor to question Leahy and Bucelwicz in a way which implied that they had made statements to him which were inconsistent with their testimony. They argue further that it was an abuse of discretion to deny their motions for a mistrial after the questions were answered in the negative and that in these circumstances they were denied their constitutional right to a fair trial. [3]

There was no abuse of discretion in permitting the prosecutor to cross-examine these witnesses or in permitting the prosecutor to put leading questions to them. Commonwealth v. LaFrance, 362 Mass. 53, 57 (1972).[*284] Questions concerning a witness’s fear of testifying to the truth, threats by a defendant and statements of a defendant urging a witness to lie are appropriate in the judge’s discretion. However, the cross-examiner should have a reason for asking any such questions and should be prepared to disclose that reason to the judge. “The attempt to communicate impressions by innuendo through questions which are answered in the negative, for example . . . ‘Did you tell Mr. X that . . .?’ when the questioner has no evidence to support the innuendo, is an improper tactic which has often been condemned by the courts.” A. B. A. Standards Relating to The Prosecution Function, § 5.7 (d) (Approved Draft 1971). See Wig-more, Evidence, § 1808 (2) (3d ed. 1940). However, there was no showing of any violation of this requirement in this case.

There is nothing improper in interviewing a witness before trial, or, subject to the judge’s discretion, in cross-examining a witness concerning discrepancies between his in-court and out-of-court statements. Indeed, where the witness is one’s own, such questions may be a prerequisite to the admission of prior inconsistent statements for the purpose of impeaching that witness. G. L. c. 233, § 23. Commonwealth v. LaFrance, supra. There is no compulsion on the cross-examiner, however, to offer such impeaching evidence. In fact if no third person is present during a conversation between the witness and the prosecutor, the prosecutor has no basis for introducing the witness’s prior inconsistent statement unless he obtains leave to withdraw from the case in order to do so. A. B. A. Standards, supra, § 3.1 (b).

The defendants were not denied the fair trial to which they constitutionally were entitled. There was no impropriety in calling these witnesses. See Commonwealth v. Festo, 251 Mass. 275, 279 (1925). The questions themselves were permissible. Commonwealth v. Devereaux, 256 Mass. 387, 396 (1926). Commonwealth v. Granito, 326 Mass. 494, 498 (1950). They did not[*285] relate to extraneous or immaterial matters. See Commonwealth v. Homer, 235 Mass. 526, 535 (1920). There is no showing that they were put in bad faith or without foundation. See Commonwealth v. Granito, supra; Commonwealth v. Marsh, 354 Mass. 713, 720 (1968). The judge instructed the jury at least six times during the trial, and again in his charge, that a negative answer to a question provided no evidence for their consideration.

A criminal defendant is not denied a fair trial by rigorous cross-examination of witnesses concerning their prior inconsistent statements, unless the examination is shown to have been conducted in bad faith or without foundation. The defendants have cited no analogous authority in support of their constitutional contention. From a consideration of the entire transcript we see no support for the constitutional argument advanced by the defendants. [4]

Judgments of the Superior Court affirmed.

2

These two subjects are covered in the portions of the Appeals Court opinion numbered 4 and 5. In support of the conclusion reached by the Appeals Court in the fifth part of its opinion, concerning the prosecutor’s final argument, we add our recent opinion in Commonwealth v. Valliere, 366 Mass. 479, 494-495 (1974).

3

The defendant White’s assignments of error concerning the questioning of Leahy are not stated in constitutional terms. But with respect to the questioning of Bucelwicz, he asserts that he was denied due process of law because the prosecutor’s statements “were so inflammatory as to preclude the Defendant from obtaining a fair trial.”

The defendant O’Master’s assignments raise a due process fair trial argument based on prejudice arising from the questioning of Bucelwicz. Unlike White, O’Master bases assignments on due process and Sixth Amendment confrontation claims concerning the questioning of Leahy. There is no merit to the Sixth Amendment confrontation argument (see Nelson v. O’Neil, 402 U. S. 622 [1971]), and the issue has not been argued here.

4

The prosecutor was not alone in using questions which could have influenced the jury, even if answered negatively. Counsel for O’Master asked Paaso in cross-examination whether he recalled having a discussion with O’Master “concerning your involvement in narcotics, in selling narcotics?” The prosecutor objected “unless there’s going, to be proof.” Counsel for O’Master said there certainly would be such proof. The judge allowed the question but instructed the jury that “ [i']f the reply is negative, ladies and gentlemen, I will advise you once again, as I did earlier, there is no evidence in the question.” Paaso answered in the negative. No evidence of Paaso’s connection with narcotics ever was presented.

In his cross-examination of Paaso, who testified that he was a former professional football player, counsel for White asked whether he had assisted in the collection of a $2,000 debt owed to someone else. On objection by the prosecutor, counsel for White stated that the question would have some connection, but none was ever shown.