model instruction in Massachusetts

2018In Gomes II , the court held: "We also recognize that defense counsel cannot reasonably be found to have performed in a manner that falls measurably below that which might be expected from an ordinary fallible lawyer simply because counsel, in the attempt to persuade the judge to give an eyewitness identification jury instruction that differed from the model instruction earlier adopted by this court in [ Commonwealth v. Rodriguez , 378 Mass. 296 , 310-311 (1979) ], failed to demonstrate that each principle in the defendant's proposed instruction was generally accepted in the relevant scientifi

2016The judge declined to give the defendant’s requested instruction, stating that he would use the model instruction provided in Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (1979) (Appendix), S.C., 419 Mass. 1006 (1995). 10 The defendant claims that the judge erred by giving the model instruction in Rodriguez, rather than the instruction he requested, especially in light of this court’s recent adoption of the more inclusive instructions provisionally adopted in Gomes, 470 Mass. at 376 . 11 See id. at 379-388 (Appendix).

2025Finally, using a model instruction promulgated by the SJC in Commonwealth v. Chappell, 473 Mass. 191, 206, 209 (2015) (Appendix), the Court told the venire with some specificity the consequences to a defendant who is found not guilty by reason of lack of criminal responsibility, i.e., inter alia, that the Commonwealth could petition the court to commit the defendant to Bridgewater State Hospital where he would remain for so long as he was found to be mentally ill and dangerous. -7- The Individual Voir Dire Of Juror 37 As stated, the individual voir dire of Juror 37 was conducted on May 15th du

2019Since the defendant's trial, we have determined that the model instruction concerning the consequences of a verdict of not guilty by reason of lack of criminal responsibility, which was derived from Commonwealth v. Mutina , 366 Mass. 810 , 823 & n.12, 323 N.E.2d 294 (1975) ( Mutina instruction), should be modified to inform the jury: "There is no limit to the number of such renewed orders of commitments as long as the defendant continues to be mentally ill and dangerous; if these conditions do continue, the defendant may remain committed for the duration of his [or her] life." Commonwealth v.

2002Compare Commonwealth v. Elam, 412 Mass. 583, 587 (1992) (no error in the refusal to give a good faith mistake charge where the jurors were alerted to the issue of misidentification by defense counsel’s cross-examination of witnesses and closing argument, and where the jury charge tracked the model instruction on identification).

1993This case is distinguishable from Commonwealth v. Elam, 412 Mass. 583, 587 (1992), in which “counsel for the defendant neither requested [a good faith mistake in identification] charge, nor objected to the judge’s refusal *477 to give it,” and the judge’s instructions tracked the model instruction in Rodriguez and “clearly alerted the jury to the issue of misidentification.” Also, the testimony concerning the black tubular object, in the absence of any explanatory testimony from the police officer to whom the defendant handed that object, hardly made the case against the defendant overwhelming

2023Indeed, it was not until 2015 that the SIC promulgated its model instruction based on generally accepted scientific principles, expounding upon the critical role expert testimony can play in cases that rest on an eyewitness identification:"Expert testimony may be important to elaborate on the generally accepted principles in a model instruction and to explain how other variables relevant to the particular case can affect the accuracy of the identification." Gomes, 470 Mass. at 378 .

2018At trial, "[t]he defendant requested that the judge provide a jury instruction regarding eyewitness identification that essentially mirrored a model instruction that had become effective in New Jersey approximately one week before the defendant's trial commenced." Id . at 357 & n.10, 22 N.E.3d 897 , citing State v. Henderson , 208 N.J. 208 , 219, 228-229, 27 A.3d 872 (2011).

2019The judge gave the model instruction, which included the statement "that the Commonwealth does not know whether these witnesses are telling the truth." Considering these instructions and the strength of the evidence against the defendant, we cannot reasonably say that the prosecutor's single, improper reference to truthful testimony could have "materially influence[d] the guilty verdict." Commonwealth v. Alphas , 430 Mass. 8 , 13 (1999), quoting Commonwealth v. Freeman , 352 Mass. 556 , 564 (1967).

2002See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). 7 “When an error ‘pertains to the definition given to the jury of the crime charged, the possibility of a substantial risk of a miscarriage of justice is inherent.’ ” Commonwealth v. Cowans, 52 Mass. App. Ct. 811, 820 (2001), quoting from Commonwealth v. Hall, 48 Mass. App. Ct. 727, 730 (2000).

1997Shortly thereafter, we held that the principle in Mullaney applied with equal force to claims of self-defense, Commonwealth v. Rodriguez, 370 Mass. 684, 687-689 (1976), and proposed a model instruction.

1985The instructions also generally guided the jury to a separate consideration of the charges, a circumstance which further diminishes the possibility that they were misled by the deficiency in the instructions on assault with intent to murder. 6 Without limiting trial judges to a single formula, we commend to their attention a model instruction dealing with the question of burden of proof in a situation of self-defense set out in Commonwealth v. Rodriguez, 370 Mass. 684 , 692 n.10 (1976).

1995In charging the jury on identification evidence, the judge gave the critical portions of the model instruction taken from United States v. Telfaire, 469 F.2d 552, 558-559 (D.C.

1980In United States v. Telfaire, supra, the Court of Appeals for the District of Columbia Circuit adopted a model instruction for trial judges to use, with appropriate changes, to focus the attention of juries on identification issues.

2026Second, the judge's accident instruction omitted significant concepts contained in the model instruction, and it unnecessarily described the circumstances under which an accident instruction should be given, using the phrase "no matter how incredible," which the jury could have misunderstood as an opinion on the defendant's credibility.3 See Commonwealth v. Maloney, 23 Mass. App. Ct. 1016, 1017 (1987); Instruction 9.100 of the Criminal Model Jury Instructions for Use in the District Court (2009).

2026See Dumas, 83 Mass. App. Ct. at 540 ("There was no error in the judge's instruction to the jury on consent and constructive force, which tracked the model instruction on rape nearly verbatim and was a correct statement of the law of this Commonwealth. . . . [T]he law regarding constructive force long has been established").

2026See Dumas, 83 Mass. App. Ct. at 540 ("There was no error in the judge's instruction to the jury on consent and constructive force, which tracked the model instruction on rape nearly verbatim and was a correct statement of the law of this Commonwealth. . . . [T]he law regarding constructive force long has been established").

2026This is a question of fact . . . ."); Salsman, 565 S.W.2d at 641 ("In determining whether [the victim] submitted to [the defendant] because of an implied threat which placed [the victim] in fear of immediate death or physical injury, a subjective rather than objective standard must be applied"); Dinkens v. State, 92 Nev. 74, 79 (1976) ("So long as the evidence establishes that the victim was induced to submit to the sexual acts by actual fear, whether a 'reasonable' woman under such circumstances would have experienced the same fear is not a determination that courts and juries have to make").

2026This is a question of fact . . . ."); Salsman, 565 S.W.2d at 641 ("In determining whether [the victim] submitted to [the defendant] because of an implied threat which placed [the victim] in fear of immediate death or physical injury, a subjective rather than objective standard must be applied"); Dinkens v. State, 92 Nev. 74, 79 (1976) ("So long as the evidence establishes that the victim was induced to submit to the sexual acts by actual fear, whether a 'reasonable' woman under such circumstances would have experienced the same fear is not a determination that courts and juries have to make").

2025The judge explained, "I'm not saying that I find that evidence at all to be compelling, but I am going to consider it," and "I'm not saying . . . what I'm going to do with it." The defendant objected to the judge's ruling, but not to the language of the instruction.3 Cf. Commonwealth v. Tu Trinh, 458 Mass. 776, 779 (2011) (defendant objected both to giving consciousness of guilt instruction and its language). 3 Instruction 3.580 cautions that there may be numerous explanations, other than feelings of guilt, for why an innocent person might act suspiciously.

2025The Tuey–Rodriquez charge is a model instruction "given when jurors report deadlock after 'due and thorough deliberation'" that is "designed to urge the jury to reach a verdict by giving more serious consideration to opposing points of view." Commonwealth v. Carnes, 457 Mass. 812, 827 (2010).

2024"Consciousness of guilt instructions are permissible when there is an 'inference of guilt that may be drawn from evidence of flight, concealment, or similar acts.'" Commonwealth v. Stuckich, 450 Mass. 449, 453 (2008), quoting Commonwealth v. Toney, 385 Mass. 575, 584 (1982).

2024See United States v. Graham, 146 F.3d 6, 10 (1st Cir. 1998) ("the government does not have an obligation to make any opening statement"). 2 As the Commonwealth was not required to give an opening statement, defense counsel's failure to move for a required finding of not guilty when the Commonwealth waived its opening statement was not conduct so deficient that it would fail the performance prong of the Saferian formulation.

2024"Consciousness of guilt instructions are permissible when there is an 'inference of guilt that may be drawn from evidence of flight, concealment, or similar acts.'" Commonwealth v. Stuckich, 450 Mass. 449, 453 (2008), quoting Commonwealth v. Toney, 385 Mass. 575, 584 (1982).

2023At this juncture, the judge properly gave the Tuey-Rodriquez instruction, which is the model instruction for this situation. 3 See Ray v. Commonwealth, 463 Mass. 1, 5-6 (2012).

2023See Commonwealth v. Kennedy, 478 Mass. 804, 810-811 (2018); Commonwealth v. Butler, 97 Mass. App. Ct. 223 , 230-236 (2020). 3 The model instruction set forth by the Supreme Judicial Court in Blache, 450 Mass. at 595 n.19, reads in full: "In this case, there has been evidence that the complainant [had consumed alcohol; had consumed drugs; was unconscious; etc.].

2021See Instruction 6.600 of the Criminal Model Jury Instructions for Use in the District Court (2016) (stating that if charge is based on threatening act, acts, or language, defendant's conduct or language must "make a reasonable person fearful, not just uncomfortable," but, citing Cahill, 446 Mass. at 783 , noting that "[i]f the act was physically offensive, it need not also be threatening"; Instruction 6.600, supra at 4, note 5). [Note 6] Although the judge had declined to give the instruction, she did not direct the prosecutor to stay away from the topic.

2020According to the model instruction, the elements of indecent exposure are "[1] That the defendant exposed his [or her genitals] to one or more persons; [2] That the defendant did so intentionally; and [3] That one or more persons were offended by the defendant's thus exposing himself [or herself]." Instruction 7.340 of the Criminal Model Jury 3 Openly does not require a public place, but rather that "the actor in the given circumstances was being recklessly indifferent to a substantial chance that others would observe the act and might be offended by the sight." Commonwealth v. Guy G., 53 Mass