Bowden defense in Massachusetts

2025Finally, the defendant argues that because Trooper Murphy failed to write a report or document pertinent information in Trooper Wabrek's police report, the judge erred by failing to give the so-called Bowden instruction.5 There is no error "because the giving of such an instruction is never required." See Commonwealth v. Williams, 439 Mass. 678, 687 (2003) ("judge 5 Commonwealth v. Bowden, 379 Mass. 472, 485 (1980).

2025Finally, the defendant argues that because Trooper Murphy failed to write a report or document pertinent information in Trooper Wabrek's police report, the judge erred by failing to give the so-called Bowden instruction.5 There is no error "because the giving of such an instruction is never required." See Commonwealth v. Williams, 439 Mass. 678, 687 (2003) ("judge 5 Commonwealth v. Bowden, 379 Mass. 472, 485 (1980).

2025The exclusion of evidence of a Bowden defense, however, is not an issue of constitutional dimension and "is examined under an abuse of discretion standard." Id. at 804 n.26.

2025The exclusion of evidence of a Bowden defense, however, is not an issue of constitutional dimension and "is examined under an abuse of discretion standard." Id. at 804 n.26.

2026Additionally, using the recording to bolster the defendant's Bowden defense would have permitted the Commonwealth to "offer 'testimony about why the investigators chose the particular investigative path they did,' in order to rebut that defense." Commonwealth v. Wardsworth, 482 Mass. 454, 478 (2019), quoting Commonwealth v. Avila, 454 Mass. 744, 755 (2009).

2026Additionally, using the recording to bolster the defendant's Bowden defense would have permitted the Commonwealth to "offer 'testimony about why the investigators chose the particular investigative path they did,' in order to rebut that defense." Commonwealth v. Wardsworth, 482 Mass. 454, 478 (2019), quoting Commonwealth v. Avila, 454 Mass. 744, 755 (2009).

2025Finally, the defendant argues that because Trooper Murphy failed to write a report or document pertinent information in Trooper Wabrek's police report, the judge erred by failing to give the so-called Bowden instruction.5 There is no error "because the giving of such an instruction is never required." See Commonwealth v. Williams, 439 Mass. 678, 687 (2003) ("judge 5 Commonwealth v. Bowden, 379 Mass. 472, 485 (1980).

2025Finally, the defendant argues that because Trooper Murphy failed to write a report or document pertinent information in Trooper Wabrek's police report, the judge erred by failing to give the so-called Bowden instruction.5 There is no error "because the giving of such an instruction is never required." See Commonwealth v. Williams, 439 Mass. 678, 687 (2003) ("judge 5 Commonwealth v. Bowden, 379 Mass. 472, 485 (1980).

2014See Commonwealth v. Phinney, 446 Mass. 155, 166 (2006) (police reports admissible to show that police were on notice of suspect but failed to investigate possible involvement in murder). “[T]he exclusion of evidence of a Bowden defense is not consti *278 tutional in nature and therefore is examined under an abuse of discretion standard.” Silva-Santiago, supra at 804 n.26.

2014See Commonwealth v. Phinney, 446 Mass. 155, 166 (2006) (police reports admissible to show that police were on notice of suspect but failed to investigate possible involvement in murder). “[T]he exclusion of evidence of a Bowden defense is not consti *278 tutional in nature and therefore is examined under an abuse of discretion standard.” Silva-Santiago, supra at 804 n.26.

2014We note that during trial, defense counsel argued that the knife was relevant only to show that the police investigation was inadequate, thus pursuing a so-called “Bowden defense.” See Commonwealth v. Fitzpatrick, 463 Mass. 581, 596-597 (2012), citing Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980).

2013See Commonwealth v. Fitzpatrick, 463 Mass. 581, 597 (2012), citing Commonwealth v. Silva-Santiago, 453 Mass. 782, 802 (2009) (“A ‘Bowden defense,’ as it has commonly come to be known, may focus on either the failure of police to conduct certain scientific tests or their failure to investigate leads concerning suspects other than the defendant”).

2012However, the defendant had the opportunity to argue his Bowden defense to the jury, and here, as in Commonwealth v. Rivera, 424 Mass. 266, 274 (1997), cert, denied, 525 U.S. 934 (1998), “[tjhe judge’s refusal to comment specifically on the failure of the police to conduct [certain procedures] did not undermine the defense and was not an abuse of discretion.” See Commonwealth v. Williams, 439 Mass. 678, 687 (2003) (“[i]n this case, the judge did not remove the inadequacy of the police investigation from consideration by the jury and so complied fully with Bowden's only requirement”).

2002A Bowden instruction is warranted because the “failure of the authorities to conduct certain tests is a permissible ground on which to build a defense.” Commonwealth v. Rivera, 424 Mass. 266, 274 (1997), cert. denied, 525 U.S. 934 (1998).

2018A defendant asserting a Bowden defense may "challenge the adequacy of a police investigation and may use information concerning third-party culprits to question whether the police took reasonable steps to investigate the crime." Ridge , 455 Mass. at 316 , 916 N.E.2d 348 , citing Bowden , supra .

2018A defendant asserting a Bowden defense may "challenge the adequacy of a police investigation and may use information concerning third-party culprits to question whether the police took reasonable steps to investigate the crime." Ridge , 455 Mass. at 316 , 916 N.E.2d 348 , citing Bowden , supra .

2019See Commonwealth v. Bizanowicz , 459 Mass. 400 , 414, 945 N.E.2d 356 (2011) (before allowing admission of Bowden evidence, judge must balance probative value against risk of prejudice). "[D]etermining precisely what evidence may be admitted to rebut a Bowden defense is a delicate and difficult task." Avila , supra at 753, 912 N.E.2d 1014 .

2019See Commonwealth v. Bizanowicz , 459 Mass. 400 , 414, 945 N.E.2d 356 (2011) (before allowing admission of Bowden evidence, judge must balance probative value against risk of prejudice). "[D]etermining precisely what evidence may be admitted to rebut a Bowden defense is a delicate and difficult task." Avila , supra at 753, 912 N.E.2d 1014 .

2018See, e.g., Commonwealth v. Durand , 475 Mass. 657 , 674, 59 N.E.3d 1152 (2016), cert. denied, --- U.S. ----, 138 S.Ct. 259 , 199 L.Ed.2d 167 (2017), quoting Commonwealth v. Lao , 460 Mass. 12 , 23, 948 N.E.2d 1209 (2011) ("a judge is not required to instruct on the claimed inadequacy of a police investigation. ' Bowden simply holds that a judge may not remove the issue from the jury's consideration' "); Commonwealth v. Williams , 439 Mass. 678 , 687, 790 N.E.2d 662 (2003) (declining to give Bowden instruction not error "because the giving of such an instruction is never required").

2018See, e.g., Commonwealth v. Durand , 475 Mass. 657 , 674, 59 N.E.3d 1152 (2016), cert. denied, --- U.S. ----, 138 S.Ct. 259 , 199 L.Ed.2d 167 (2017), quoting Commonwealth v. Lao , 460 Mass. 12 , 23, 948 N.E.2d 1209 (2011) ("a judge is not required to instruct on the claimed inadequacy of a police investigation. ' Bowden simply holds that a judge may not remove the issue from the jury's consideration' "); Commonwealth v. Williams , 439 Mass. 678 , 687, 790 N.E.2d 662 (2003) (declining to give Bowden instruction not error "because the giving of such an instruction is never required").

2025The permissible scope of rebuttal evidence to counter a Bowden defense "depends, in part, on the issues raised by the defense." Commonwealth v. Colon, 482 Mass. 162, 187 (2019).

2025The permissible scope of rebuttal evidence to counter a Bowden defense "depends, in part, on the issues raised by the defense." Commonwealth v. Colon, 482 Mass. 162, 187 (2019).

2018Accordingly, "a judge is not required to instruct on the claimed inadequacy of a police investigation." Commonwealth v. Doyle , 83 Mass. App. Ct. 384 , 392 (2013), quoting from Commonwealth v. Boateng , 438 Mass. 498 , 507 (2003).

2012In Bowden, supra at 486 , we held that a judge may not foreclose the jury’s consideration of the adequacy of the police investigation; we did not establish an affirmative requirement that the judge instruct the jury concerning their consideration of those perceived inadequacies. 26 See Commonwealth v. Boateng, 438 Mass. 498, 506-507 (2003).

2015See id.

2012See Commonwealth v. Mathews, supra at 872 .

2026Additionally, using the recording to bolster the defendant's Bowden defense would have permitted the Commonwealth to "offer 'testimony about why the investigators chose the particular investigative path they did,' in order to rebut that defense." Commonwealth v. Wardsworth, 482 Mass. 454, 478 (2019), quoting Commonwealth v. Avila, 454 Mass. 744, 755 (2009).

2026Additionally, using the recording to bolster the defendant's Bowden defense would have permitted the Commonwealth to "offer 'testimony about why the investigators chose the particular investigative path they did,' in order to rebut that defense." Commonwealth v. Wardsworth, 482 Mass. 454, 478 (2019), quoting Commonwealth v. Avila, 454 Mass. 744, 755 (2009).

2024See Scott, 470 Mass. at 332 ("Also relevant to our analysis is the fact that the judge did allow the defendant to pursue a number of lines of questioning and argument in support of a Bowden defense").

2024See Scott, 470 Mass. at 332 ("Also relevant to our analysis is the fact that the judge did allow the defendant to pursue a number of lines of questioning and argument in support of a Bowden defense").

2010“The Bowden instruction permits jurors to consider evidence (actually presented) of police failure to take certain investigatory steps, as it relates to the reliability of the Commonwealth’s case, and indeed evidence of such failures alone may be sufficient to create a reasonable doubt of the defendant’s guilt.” Commonwealth v. Tolan, 453 Mass. 634, 652 (2009).

2010“The Bowden instruction permits jurors to consider evidence (actually presented) of police failure to take certain investigatory steps, as it relates to the reliability of the Commonwealth’s case, and indeed evidence of such failures alone may be sufficient to create a reasonable doubt of the defendant’s guilt.” Commonwealth v. Tolan, 453 Mass. 634, 652 (2009).

2014Although “defendants are entitled to reasonable latitude on cross-examination, the scope of such cross-examination, including the extent of impeachment of a witness for credibility and competency, are well within the judge’s sound discretion.” Commonwealth v. Carrion, 407 Mass. 263, 273 (1990).

2014Although "defendants are entitled to reasonable latitude on cross-examination, the scope of such cross-examination, including the extent of impeachment of a witness for credibility and competency, are well within the judge's sound discretion." Commonwealth v. Carrion, 407 Mass. 263, 273 (1990).

2014In addition, the judge must determine “whether the probative weight of the Bowden evidence exceed[s] the risk of unfair prejudice to the Commonwealth from diverting the jury’s attention to collateral matters.” Commonwealth v. Silva-Santiago, supra. “If the [evidence] is admitted, the Commonwealth may offer evidence explaining why the police did not follow that line of investigation.” Commonwealth v. Ridge, supra, citing Commonwealth v. Silva-Santiago, supra at 803 n.25. “[T]he exclusion of evidence of a Bowden defense is not constitutional in nature and therefore is examined under an abuse of

2014In addition, the judge must determine “whether the probative weight of the Bowden evidence exceed[s] the risk of unfair prejudice to the Commonwealth from diverting the jury’s attention to collateral matters.” Commonwealth v. Silva-Santiago, supra. “If the [evidence] is admitted, the Commonwealth may offer evidence explaining why the police did not follow that line of investigation.” Commonwealth v. Ridge, supra, citing Commonwealth v. Silva-Santiago, supra at 803 n.25. “[T]he exclusion of evidence of a Bowden defense is not constitutional in nature and therefore is examined under an abuse of

2014See Commonwealth v. Wood, 469 Mass. 266, 278 (2014).

2014See Commonwealth v. Wood, 469 Mass. 266, 278 (2014).

2009See Lodge, supra at 467 (while Commonwealth may explain reasoning behind investigative decisions in response to Bowden defense, such testimony must be approached with caution and witness may not give opinion regarding culpability of defendant); Flanagan, 20 Mass. App. Ct. at 476 n.2 (prosecutor’s questioning about reason for omission of test [or pursuit of investigative lead], “going to the subjective reasons for omission . . . should be approached with caution, lest it be made the vehicle for an improper expression of the officer’s opinion as to the need for such [test] in light of the streng

2009See Commonwealth v. Lodge, 431 Mass. 461, 467-468 (2000); Commonwealth v. Reynolds, 429 Mass. 388 , 391 n.1 (1999).

2009“We have recognized that the failure of the police to investigate leads concerning another suspect is sufficient grounds for a Bowden defense.” Commonwealth v. Silva-Santiago, 453 Mass. 782, 802 (2009), citing Commonwealth v. Phin-ney, 446 Mass. 155, 166 (2006), and Commonwealth v. Reynolds, 429 Mass. 388, 391-392 (1999).

2009“We have recognized that the failure of the police to investigate leads concerning another suspect is sufficient grounds for a Bowden defense.” Commonwealth v. Silva-Santiago, 453 Mass. 782, 802 (2009), citing Commonwealth v. Phin-ney, 446 Mass. 155, 166 (2006), and Commonwealth v. Reynolds, 429 Mass. 388, 391-392 (1999).

2025See Hoime, supra (detective's testimony that investigation ceased because it was too emotional for victim, but that investigation resumed several months later after victim reengaged, did not violate first complaint rule as it served to meet anticipated defense).

2025See Hoime, supra (detective's testimony that investigation ceased because it was too emotional for victim, but that investigation resumed several months later after victim reengaged, did not violate first complaint rule as it served to meet anticipated defense).

2024See Commonwealth v. Feliciano, 442 Mass. 728, 737 (2004).13 Bowden defense to some extent.

2023"From this evidence, the defendant may pursue a so-called Bowden defense, arguing that the jury should 'find a reasonable doubt' because 'the investigation was careless, incomplete, or so focused on the defendant that it ignored leads that may have suggested other culprits.'" Commonwealth v. Grier, 490 Mass. 455 , 474 (2022), quoting Commonwealth v. Alvarez, 480 Mass. 299, 316 (2018).

2023"From this evidence, the defendant may pursue a so-called Bowden defense, arguing that the jury should 'find a reasonable doubt' because 'the investigation was careless, incomplete, or so focused on the defendant that it ignored leads that may have suggested other culprits.'" Commonwealth v. Grier, 490 Mass. 455 , 474 (2022), quoting Commonwealth v. Alvarez, 480 Mass. 299, 316 (2018).

2023Commonwealth v. Holbrook, 482 Mass. 596, 609 (2019).

2023Commonwealth v. Holbrook, 482 Mass. 596, 609 (2019).

2023To the contrary, defense counsel cross- examined the police officers on the lack of an investigation at the crash site. "[T]he Bowden instruction may be given in the judge's discretion, but it is never required." Commonwealth v. Bresilia, 470 Mass. 422, 439 (2015).