miscarriage of justice standard in Massachusetts

2013Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).* 11 “[Wjhen the claim of ineffectiveness is predicated . . . on counsel’s failure to object to something that occurred at trial,” Commonwealth v. Azar, 435 Mass. 675, 686 (2002), we use the ineffectiveness of counsel standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), because, “whether we view the unpreserved claim of error . . . [by] utilizing the substantial risk of a miscarriage of justice standard, or ... by focusing on counsel’s ineffectiveness in failing to object to the error, our approach is essentially the same,

1997We are aware that Commonwealth v. Amirault, 424 Mass. 618, 651 (1997), quoting from Commonwealth v. Miranda, 22 Mass. App. Ct. 10 , 21 n.22 (1986), stated that the substantial risk of a miscarriage of justice exception of Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967), “would generally not be available to a defendant prejudiced by the unobjected-to admission of highly incriminating evidence obtained in violation of Fourth Amendment protections” (emphasis supplied).

2025See also Adoption of Jacob, 99 Mass. App. Ct. 258 , 270-271 (2021) (applying waiver rule and explaining rationale that timely objection affords trial judge opportunity to correct possible errors in proceedings). 3 The mother's argument that her waived claims in this civil action must be reviewed for a substantial risk of a miscarriage of justice is misplaced; that standard is applicable to criminal appeals, see, e.g., Commonwealth v. Randolph, 438 Mass. 290, 296 (2002), and the mother has provided us with no precedent for application of that standard in the context of a termination of parental

2005See Commonwealth v. Randolph, 438 Mass. 290, 294-296 (2002). 2 As a result, assertions of unpreserved error offered as the basis of a claim of ineffective assistance of counsel in a motion for a new trial are evaluated in a case of murder in the first degree under a substantial likelihood of a miscarriage of justice standard, and in all other cases under the standard in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

2023Whether we review the defendant's late-raised claim directly under the substantial risk of a miscarriage of justice standard, or indirectly as a claim of ineffective assistance of counsel, "our approach is essentially the same." Azar, supra at 686-687 .

2018In applying the substantial risk of a miscarriage of justice standard, "[w]e consider the strength of the Commonwealth's case, the nature of the error, the significance of the error in the context of the trial, and the possibility that the absence of an objection was the result of a reasonable tactical decision." Azar , supra at 687, 760 N.E.2d 1224 .

2011We must decide whether there is a substantial likelihood that a miscarriage of justice has occurred.” Commonwealth v. Wright, 411 Mass. 678, 681 (1992). “[Assertions of unpreserved error offered as the basis of a claim of ineffective assistance of counsel in a motion for a new trial are evaluated in the case of murder in the first degree under a substantial likelihood of a miscarriage of justice standard.” Commonwealth v. Bly, 444 Mass. 640, 648 (2005).

1998We reject, as did the judge, the defendant’s claim that he was deprived of effective representation by his trial counsel. 2 We consider the defendant’s argument under the substantial likelihood of a miscarriage of justice standard, Commonwealth v. Wright, 411 Mass. 678, 681-682 (1992), keeping in mind that the defendant’s trial counsel were faced with overwhelming evidence of their client’s guilt. (a) The defendant asserts that he told his trial counsel his “version” of the events (as described in his testimony summarized above) on the morning trial commenced; that his trial counsel failed to

2023Applying the prejudicial error standard, a test that is "quantitatively more favorable to a defendant than the substantial risk of a miscarriage of justice test" we applied in Spring, Commonwealth v. Alphas, 430 Mass. 8, 23 (1999) (Greaney, J., concurring), "there is a reasonable possibility that the error might have contributed to the jury's verdict" (citation omitted).

2000I am mindful that our authority to vacate a conviction in a noncapital case under the miscarriage of justice standard — whether that standard is cast in terms of a trial error’s material influence on the jury’s verdict or the danger that an innocent person has been convicted of a crime — should be exercised with caution and, therefore, rarely. 3 See Commonwealth v. Alphas, supra at 13 ; id. at 27-28 (Fried, J., concurring, with whom Lynch.

2016See Wright, supra at 681. 13 We recognize that the language we adopt for the prejudice standard under the second prong of the test in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) — “we have a serious doubt whether the jury verdict would have been the same had the defense been presented” — differs slightly from the language of the substantial risk of a miscarriage of justice standard that we used in Commonwealth v. Azar, 435 Mass. 675, 685 (2002), quoting Commonwealth v. LeFave, 430 Mass. 169, 174 (1999) (“we have a serious doubt whether the result *433 of the trial might have been differe

2013Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).* 11 “[Wjhen the claim of ineffectiveness is predicated . . . on counsel’s failure to object to something that occurred at trial,” Commonwealth v. Azar, 435 Mass. 675, 686 (2002), we use the ineffectiveness of counsel standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), because, “whether we view the unpreserved claim of error . . . [by] utilizing the substantial risk of a miscarriage of justice standard, or ... by focusing on counsel’s ineffectiveness in failing to object to the error, our approach is essentially the same,

2008The substantial risk of a miscarriage of justice standard applicable to unpreserved claims of error “is particularly well suited to a situation, such as here, where the elements of a crime are erroneously stated in the jury charge.” Commonwealth v. Azar, 435 Mass. 675, 687 (2002), citing Commonwealth v. Amirault, 424 Mass. 618 , 647 n.21 (1997) (noting that court’s power to order new trial because of substantial risk of miscarriage of justice “is frequently used in respect to jury charges that include erroneous instructions as to the elements of a crime. . . .

2006However, in Commonwealth v. Amirault, 424 Mass. 618, 646 (1997), the Supreme Judicial Court held that even errors of a constitutional dimension can be waived, and applied the substantial risk of a miscarriage of justice standard to the defendants’ claims of confrontation clause violations.

2023In all noncapital cases,8 where a defendant has waived a claim of error, our review is limited to the substantial risk of a miscarriage of justice standard, which "calls for us to decide if we have a serious doubt whether the result of the trial might have been different had the error not been made."9 LeFave, 430 Mass. at 174 -175 & n.6.

2016See Wright, supra at 681. 13 We recognize that the language we adopt for the prejudice standard under the second prong of the test in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) — “we have a serious doubt whether the jury verdict would have been the same had the defense been presented” — differs slightly from the language of the substantial risk of a miscarriage of justice standard that we used in Commonwealth v. Azar, 435 Mass. 675, 685 (2002), quoting Commonwealth v. LeFave, 430 Mass. 169, 174 (1999) (“we have a serious doubt whether the result *433 of the trial might have been differe

2025See Commonwealth v. Bly, 444 Mass. 640, 648 (2005) ("assertions of unpreserved error offered as the basis of a claim of ineffective assistance of counsel in a motion for a new trial are evaluated in a case of murder in the first degree under a substantial likelihood of a miscarriage of justice standard").

2011We must decide whether there is a substantial likelihood that a miscarriage of justice has occurred.” Commonwealth v. Wright, 411 Mass. 678, 681 (1992). “[Assertions of unpreserved error offered as the basis of a claim of ineffective assistance of counsel in a motion for a new trial are evaluated in the case of murder in the first degree under a substantial likelihood of a miscarriage of justice standard.” Commonwealth v. Bly, 444 Mass. 640, 648 (2005).

2023Cf. Commonwealth v. Smith, 460 Mass. 318, 320-321 (2011) ("in a capital case, issues raised in a postappeal motion for a new trial that were or could have been raised at trial or in the direct appeal are to be measured by the substantial risk of a miscarriage of justice standard").

2016See Commonwealth v. Smith, 460 Mass. 318 , 321 n.2 (2011) ("The substantial likelihood of a miscarriage of justice standard that is associated with plenary review under G.

2011See also Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 7-8 (2001) (unpreserved constitutional error typically reviewed under substantial risk of a miscarriage of justice standard). 1 The defendant assigns three errors to the uncontested admission of his hospital records under authority of G.

2006While an omission of an element of a crime does not require automatic reversal, Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 7 (2001), we believe that, in the facts and circumstances of this case, reversal is nonetheless required under a substantial risk of a miscarriage of justice standard.

2023We admit to some difficulty in understanding Mahdi, a post-Miranda silence, first-degree murder case which purports to apply both the harmless error beyond a reasonable doubt standard and the substantial risk of a miscarriage of justice standard, see id. at 690, 696, 699 .

2014See Commonwealth v. Peixoto, 430 Mass. 654 , 658 n.4, 661 (2000). 25 In cases of murder in the first degree where the substantial likelihood of a miscarriage of justice standard applies, Mahdi indicates that where a clear Doyle error occurs, “reversal is the norm, not the exception.” Mahdi, 388 Mass. at 698 .

2001See Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 16 (1986), quoting from Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).

1997We are aware that Commonwealth v. Amirault, 424 Mass. 618, 651 (1997), quoting from Commonwealth v. Miranda, 22 Mass. App. Ct. 10 , 21 n.22 (1986), stated that the substantial risk of a miscarriage of justice exception of Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967), “would generally not be available to a defendant prejudiced by the unobjected-to admission of highly incriminating evidence obtained in violation of Fourth Amendment protections” (emphasis supplied).

2015By contrast, involuntary manslaughter is "the unintentional result of an act committed with such disregard of its probable harm to another as to amount to wanton or reckless 16 We use the substantial risk of a miscarriage of justice standard because we affirm the defendant's conviction of murder in the second degree, not murder in the first degree. 18 conduct."17 Commonwealth v. Souza, 428 Mass. 478, 492-493 (1998), quoting Commonwealth v. Nichypor, 419 Mass. 209, 217 (1994).

2015By contrast, involuntary manslaughter is "the unintentional result of an act committed with such disregard of its probable harm to another as to amount 16 We use the substantial risk of a miscarriage of justice standard because we affirm the defendant's conviction of murder in the second degree, not murder in the first degree. 18 to wanton or reckless conduct." 17 Commonwealth v. Souza, 428 Mass. 478, 492-493 (1998), quoting Commonwealth v. Nichypor, 419 Mass. 209, 217 (1994).

2015By contrast, involuntary manslaughter is "the unintentional result of an act committed with such disregard of its probable harm to another as to amount to wanton or reckless 16 We use the substantial risk of a miscarriage of justice standard because we affirm the defendant's conviction of murder in the second degree, not murder in the first degree. 18 conduct."17 Commonwealth v. Souza, 428 Mass. 478, 492-493 (1998), quoting Commonwealth v. Nichypor, 419 Mass. 209, 217 (1994).

2015By contrast, involuntary manslaughter is "the unintentional result of an act committed with such disregard of its probable harm to another as to amount 16 We use the substantial risk of a miscarriage of justice standard because we affirm the defendant's conviction of murder in the second degree, not murder in the first degree. 18 to wanton or reckless conduct." 17 Commonwealth v. Souza, 428 Mass. 478, 492-493 (1998), quoting Commonwealth v. Nichypor, 419 Mass. 209, 217 (1994).

2015At trial, the defendant argued on the wanton and reckless conduct prong only, conceding that the basis for doing so was “weak.” 18 “This court has described conduct amounting to involuntary manslaughter as both ‘wanton or reckless’ and ‘wanton and reckless.’ ” Commonwealth v. Tavares, 471 Mass. 430 , 437 n.13 (2015), citing Commonwealth v. Chase, 433 Mass. 293, 301 (2001).

2002Commonwealth v. Chase, 433 Mass. 293, 299 (2001).

2011For other examples of cases that appear to countenance review of a new suppression theory under a substantial risk of a miscarriage of justice standard even on direct review, see Commonwealth v. Scala, 380 Mass. 500, 509-510 (1980); Commonwealth v. Hilton, 443 Mass. 597 , 618-619 n.12 (2005), S.C., 450 Mass. 173 (2007).

2003See, e.g., Commonwealth v. Scala, 380 Mass. 500, 509-510 (1980); Commonwealth v. Rivera, 429 Mass. 620, 623 (1999); Commonwealth v. Vuthy Seng, 436 Mass. 537, 550 , cert, denied, 537 U.S. 942 (2002).

2001Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986).

1999See, e.g., Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986).

2014See, e.g., Commonwealth v. Azar, 435 Mass. 675, 686-687 (2002); Commonwealth v. Peters, 429 Mass. 22 , 31 & n.12 (1999); Commonwealth v. Curtis, 417 Mass. 619 , 624 n.4 (1994).

2014See, e.g., Commonwealth v. Azar, 435 Mass. 675, 686-687 (2002); Commonwealth v. Peters, 429 Mass. 22 , 31 & n.12 (1999); Commonwealth v. Curtis, 417 Mass. 619 , 624 n.4 (1994).

2023Moreover, we do not suggest that the case would 8 n.8 (2000), citing Commonwealth v. Hill, 432 Mass. 704 , 710 n.14 (2000) ("Where the defendant's motion for a new trial was allowed and the matter is before us on the Commonwealth's appeal, we do not apply the substantial likelihood of a miscarriage of justice standard provided by . . . § 33E"). 2.

2008L. c. 278, § 33E.” 9 Commonwealth v. Hill, 432 Mass. 704 , 710 n.14 (2000).

2025Commonwealth v. Hanino, 82 Mass. App. Ct. 489, 493 (2012).

2021Id. a.

2019See Bois, 476 Mass. at 34 , quoting Santiago, 425 Mass. at 501 .

1999Id. at 518 n.8.

2018Commonwealth v. Grandison , 433 Mass. 135 , 141-142 (2001). " '[T]he Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof.' Commonwealth v. Pinckney , 419 Mass. 341 , 342, (1995), quoting Victor v. Nebraska , 511 U.S. 1 , 5 (1994).

2005Commonwealth v. Grandison, 433 Mass. 135, 142 (2001).

2007Commonwealth v. Kozec, 399 Mass. 514 , 518 n.8 (1987).

2002See Commonwealth v. Kozec, 399 Mass. 514 , 518 & n.8 (1987).