abolishing fourth element, that witness was not asked by defendant to refrain from disclosing exculpatory information
How later courts described this case
- abolishing fourth element, that witness was not asked by defendant to refrain from disclosing exculpatory information
- affirming trial court’s admission of impeachment evidence regarding a witness’s pretrial silence and distinguishing that evidence from inadmissible impeachment evidence of a defendant’s pretrial silence
- although "'[a] person ordinarily has no legal obligation to provide exculpatory information to the police,' . . . a witness's failure to do so may support 'a reasonable inference that the exculpatory information is not credible'" [citation omitted]
- abolishing *42 fourth element, that witness was not asked by defendant to refrain from disclosing exculpatory information
Written by the judges who cited it.
The opinion
Marshall, C.J.
(concurring, with whom Botsford, J., joins). I fully agree with the court’s analysis on the first issue, concerning the prosecutor’s impeachment of the defendant’s alibi witnesses. With respect to the second issue, the admission in evidence of the recorded jailhouse telephone conversations between the defendant and his sister, I disagree, for the reasons stated in my dissenting opinion in Matter of a Grand Jury Subpoena, 454 Mass. 685, 693-705 (2009) (Marshall, C.J., dissenting), with the court’s conclusion that no constitutionally protected privacy rights of the defendant are implicated. I agree with the court’s conclusion, however, in its penultimate paragraph, that the admission of the recordings was harmless in the circumstances of this case.