"[E]vidence of prior bad acts may not be received to show the defendant's propensity to commit the crime charged"
How later courts described this case
- "[E]vidence of prior bad acts may not be received to show the defendant's propensity to commit the crime charged"
Written by the judges who cited it.
The opinion
Brown, J.
(dissenting in part). I disagree as to the potency of the toxin injected into the trial by the prosecutor. I think it was lethal. The defendant should have a new and fairer trial on the complaint charging operating a motor vehicle under the influence of intoxicating liquor.
Fair trial means fair, i.e., as close to impeccable as possible. Cf. Townsend v. Sain, 372 U.S. 293 (1963). Let us not forget, trials are not mini-Super Bowls, where only victory is sought. Prosecutors and defense counsel are officers of the court and that awesome responsibility compels each to act fairly and responsibly in the performance of their respective roles.
The manner in which the prosecutor handled the matter of the defendant’s prior arrests (and the interchanging of the term “convictions” at several instances) was reckless, unprofessional, and, worst of all, patently unfair. 1 As we have often said, the Commonwealth permissibly may play “hard ball,” but “foul” ball is inherently unfair and, of course, totally unacceptable.
As to the prosecutor’s closing argument, the majority acknowledges, as it must, that this “was a blow below the belt.” Not only was the matter referred to in the prosecutor’s closing argument not in evidence, but the judge had specifically ordered it excluded. Further, it was almost certainly prejudicial. Admonitions against careless and poor preparation resulting in improper closing argument are too numerous to list. I will merely point to the cases and authorities cited in Commonwealth v. West, ante 150, 153 n.4 (1998), as well as the language in a recent opinion authored by the Chief Justice of the Supreme *530 Judicial Court in a civil case: “A lawyer should not be free to argue improperly to a jury, relying on the judge to give a saving instruction. Even after a long trial. . . , the allowance of a new trial motion may be the only fair resolution of a problem that counsel wilfully or recklessly created.” Birbiglia v. Saint Vincent Hosp., Inc., 427 Mass. 80, 88-89 (1998).
The judge’s ruling permitting the questioning regarding prior arrests was also, I think, unwise.