Massachusetts General Laws

Mass. Gen. Laws ch. 278, § 23 (2026)

Certain acts or omissions by defendant not admissible against him in criminal trial

✓ current as of July 2026

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Section 23. At the trial of a criminal case in the superior court, upon indictment, or in a district court, the fact that the defendant did not testify at any preliminary hearing in the first court, or that at such hearing he waived examination or did not offer any evidence in his own defense, shall not be used as evidence against him, nor be referred to or commented upon by the prosecuting officer.

Notes of Decisions

Cited in 27 cases (1 in the last 5 years), 1973–2025 · leading case: Commonwealth v. Rivera, 682 N.E.2d 636 (Mass. 1997).

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Commonwealth v. Rivera, 682 N.E.2d 636 (Mass. 1997). · cites it 4× “The defendant now argues that the Commonwealth’s use of the affidavit to impeach him was error because (1) the affidavit was an involuntary statement by the defendant and was thus inadmissible; (2) the prosecutor’s cross-examination based on the affidavit violated G. L. c. 278,…”

Commonwealth v. Cefalo, 409 N.E.2d 719 (Mass. 1980). · cites it 3× “In so doing, the prosecutor asked Orechva if he had been present in the court room at the probable cause hearing (to which he responded in the affirmative), and whether he had spoken to representatives of the Commonwealth at that time (to which he responded in the negative).”

Commonwealth v. Paradiso, 330 N.E.2d 825 (Mass. 1975). · cites it 12× “278, § 30, 1 requesting answers to the following questions: “1) Must a court, in order to comply with the terms of G. L. c. 278, § 23, grant a mistrial or a new trial in order to provide a reasonable sanction for violation of G.”

Commonwealth v. Egerton, 487 N.E.2d 481 (Mass. 1986). · cites it 2× “The defendant argues that the prosecutor’s cross-examination of Davis and Northington was improper for two reasons: First, the Commonwealth failed to lay an adequate foundation for the type of impeachment engaged in here of a nonparty witness; and, second, the inquiry into the…”

Commonwealth v. Sherick, 502 N.E.2d 156 (Mass. App. Ct. 1987). · cites it 3× “233, § 20, Third, in effect embodying or restating the privilege, 4 and a second, G. L. c. 278, § 23, applying it more particularly to references to the failure of a defendant to testify or offer evidence at a preliminary hearing.”

Myers v. Commonwealth, 298 N.E.2d 819 (Mass. 1973). · cites it 2× “325 (now G.L.c. 278, § 23), which prohibits a prosecutor from bringing to the jury's attention the fact that a defendant did not exercise his right to present any witnesses in his behalf at the probable cause hearing.”

Commonwealth v. Vallejo, 914 N.E.2d 22 (Mass. 2009). · cites it 2× “26, 33 (1920), we held that the prohibition in G. L. c. 278, § 23, inserted by St. 1912, c.”

Commonwealth v. Brown, 416 N.E.2d 218 (Mass. App. Ct. 1981). “319, 337-338 (1980), commented in passing in the context of an alleged violation of G. L. c. 278, § 23, the statutory provision proscribing reference to the fact that the defendant did not testify at any preliminary hearing, that the Commonwealth may examine witnesses as to…”

Commonwealth v. Sneed, 383 N.E.2d 843 (Mass. 1978). “See G. L. c. 278, § 23; Commonwealth v. Morrison, 1 Mass.”

Commonwealth v. Maguire, 378 N.E.2d 445 (Mass. 1978). “The defendant’s argument on this point is based on G. L. c. 278, § 23, which provides: “At the trial of a criminal case in the superior court, upon indictment or appeal, the fact that the defendant did not testify at the preliminary hearing or trial in the lower court, or that…”

Commonwealth v. Sherick, 516 N.E.2d 157 (Mass. 1987). “The defendant also argues that the prosecutor’s remarks violated G. L. c. 278, § 23, and that the judge erred in instructing the jury on consciousness of guilt.”

Commonwealth v. Barber, 441 N.E.2d 763 (Mass. App. Ct. 1982). · cites it 2× “Janusz, confined in the same prisons with Barber (and able there to communicate with him) had been called by Barber in an effort to show that Janusz owned heroin with the possession of which Barber was charged. Janusz was asked whether he had ever testified concerning the…”

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