likelihood standard in Massachusetts

2016Our case law requires that nonexclusion DNA evidence be presented to a jury with “reliable accompanying evidence as to the likelihood that the test could not exclude other individuals in a given population” so that the jury can “evaluate the meaning of the result.” Mattei, 455 Mass. at 852 .

2014The defendant did not object to the closing argument, or to Drugan’s testimony about the back left pocket. 20 Because “DNA evidence that a particular individual could not be excluded as a potential contributor of the DNA at issue should not be admitted without accompanying statistical evidence of the likelihood that the test could not exclude other individuals in a given population,” Commonwealth v. Bizanowicz, 459 Mass. 400, 409-410 (2011), citing Commonwealth v. Mattei, 455 Mass. 840, 851-855 (2010), we consider the issues raised by the lack of such evidence to determine whether “there is a

2020"In analyzing a claim under the substantial likelihood standard, we review the evidence and case as a whole and consider whether any error made in the course of the trial was likely to have influenced the jury's conclusion." Commonwealth v. Berry, 457 Mass. 602, 618 (2010), S.C., 466 Mass. 763 (2014).

2019"In analyzing a claim under the substantial likelihood standard, we review the evidence and case as a whole and consider whether any error made in the course of the trial was likely to have influenced the jury's conclusion." Commonwealth v. Berry , 457 Mass. 602 , 618, 931 N.E.2d 972 (2010), S .

2017But the SJC has held that the substantial likelihood standard is “more forgiving to a defendant than the substantial risk standard,” Commonwealth v. Smith, 460 Mass. 318 , 321 n.2 (2011), or, in other words, that the substantial risk standard “is a harder burden for the defendant to satisfy,” Commonwealth v. Amirault, 424 Mass. 618 , 646 n.20 (1997).

2016Commonwealth v. Smith, 460 Mass. 318 , 321 n.2 (2011). 3 likelihood" standard on issues that were either not preserved at trial or not included in an appellate brief, when issues were properly preserved at trial and raised on appeal, the court will apply the standard of review typically used for preserved claims in criminal cases.

2017“In analyzing a claim under the substantial likelihood standard, we review the evidence and case as a whole and consider whether any error made in the course of the trial was likely to have influenced the jury’s conclusion.” Id., citing Commonwealth v. Wright, 411 Mass. 678, 682 (1992).

2010Id.

2016See Commonwealth v. Evans, 469 Mass. 834, 851-852 (2014) (applying Mattei to Y-STR testing).

2014It is not apparent from the record whether, in light of the differences between the DNA findings as to the back left pocket and the findings as to the other three pockets, the statistical evidence would have been different from that of the other three pockets. 22 Because it was based, in part, on evidence that was not before the jury, the prosecutor’s argument should not have been made. *853 See Commonwealth v. Beaudry, 445 Mass. 577, 580 (2005), quoting Commonwealth v. Coren, 437 Mass. 723, 730 (2002).

2014It is not apparent from the record whether, in light of the differences between the DNA findings as to the back left pocket and the findings as to the other three pockets, the statistical evidence would have been different from that of the other three pockets. 22 Because it was based, in part, on evidence that was not before the jury, the prosecutor’s argument should not have been made. *853 See Commonwealth v. Beaudry, 445 Mass. 577, 580 (2005), quoting Commonwealth v. Coren, 437 Mass. 723, 730 (2002).

2014See Commonwealth v. Riley, 467 Mass. 799, 807 (2014).

2014The defendant did not object to the closing argument, or to Drugan’s testimony about the back left pocket. 20 Because “DNA evidence that a particular individual could not be excluded as a potential contributor of the DNA at issue should not be admitted without accompanying statistical evidence of the likelihood that the test could not exclude other individuals in a given population,” Commonwealth v. Bizanowicz, 459 Mass. 400, 409-410 (2011), citing Commonwealth v. Mattei, 455 Mass. 840, 851-855 (2010), we consider the issues raised by the lack of such evidence to determine whether “there is a

2014I still observed [the defendant’s] alleles” and “could not exclude him.” She did not testify as to the “statistical evidence of the likelihood that the test could not exclude other individuals in a given population.” Commonwealth v. Bizanowicz, supra at 409-410 , citing Commonwealth v. Mattei, supra at 851-855 .

2010The same reasoning applies to evidence that a DNA test, although resulting in less than a complete “match,” could not exclude a particular individual as a potential contributor. 25 , 26 *852 Without reliable accompanying evidence as to the likelihood that the test could not exclude other individuals in a given population, the jury have no way to evaluate the meaning of the result. 27 As the dissent in Commonwealth v. Mattei, 72 Mass. App. Ct. 510, 522 (2008) (Rubin, J., dissenting), noted, there is no way to determine whether the results of nonexclusion in this case mean “that half the people

2002See Commonwealth v. Nieves, 429 Mass. 763, 770 (1999).