Section 1105. Third-Party Culprit Evidence

Evidence that a third party committed the crimes charged against the defendant, or had the motive, intent, and opportunity to commit the crimes, is admissible provided that the evidence has substantial probative value. In making this determination, the court must make a preliminary finding (a) that the evidence is relevant, (b) that the evidence will not tend to prejudice or confuse the jury, and (c) that there are other substantial connecting links between the crime charged and a third party or between the crime charged and another crime that could not have been committed by the defendant.

NOTE

This section is derived from Commonwealth v. Silva-Santiago, 453 Mass. 782, 800–801, 906 N.E.2d 299, 313–314 (2009); Commonwealth v. Jewett, 392 Mass. 558, 562, 467 N.E.2d 155, 158 (1984); Commonwealth v. Murphy, 282 Mass. 593, 597–598, 185 N.E. 486, 487–488 (1933); and Commonwealth v. Abbott, 130 Mass. 472, 475 (1881). See Commonwealth v. Buckman, 461 Mass. 24, 29–30, 957 N.E.2d 1089, 1096 (2011) (trial judge had discretion to rule in advance of trial that defendant had not made adequate showing that three potential culprits were connected to the crime, and that defendant must provide advance warning to court before offering evidence or argument at trial of third-party culprit).

In Commonwealth v. Rosa, 422 Mass. 18, 22, 661 N.E.2d 56, 60 (1996), the Supreme Judicial Court observed that

“[i]f the defense offers its own theory of the case (beyond merely putting the government to its proof), its evidence must have a rational tendency to prove the issue the defense raises, and the evidence cannot be too remote or speculative. Evidence that another person committed the crime charged also poses a real threat of prejudice, especially the risk of confusing jurors by diverting their attention to wholly collateral matters involving persons not on trial.”

For example, in Commonwealth v. Rosa, the Supreme Judicial Court upheld the trial judge’s exclusion of so-called third-party culprit evidence consisting of the fact that there was another person awaiting trial with a record for crimes of violence and who was held in the same jail as the defendant. Id. at 24–25, 661 N.E.2d at 61. Even though this other person had been mistaken for the defendant by his lawyer and had lived in the same neighborhood as the defendant at the time of the murder, the court upheld the trial judge’s decision to exclude the evidence. The court concluded that “[w]ithout more, these are fairly common similarities that do not require the admission of evidence of similar crimes.” Id. at 23, 661 N.E.2d at 60. The court contrasted Commonwealth v. Keizer, 377 Mass. 264, 267, 385 N.E.2d 1001, 1004 (1979), where it held that the trial judge should have admitted evidence “because there were substantial connecting links between the robbery charged and another robbery in which the defendant could not have participated.” Commonwealth v. Rosa, 422 Mass. at 23, 661 N.E.2d at 60. The court noted that in Keizer,

“[n]ot only did the two crimes share an identical modus operandi with several distinctive features, but the two robberies also had one common perpetrator (each robbery was by a team of three perpetrators). We also found distinctive a specific link between the identification testimony against the defendant and the identity of the perpetrators of the similar crime (only one witness could identify defendant, and same witness also identified common perpetrator of two crimes).”

Id. at 23, 661 N.E.2d at 60, citing Commonwealth v. Keizer, 377 Mass. at 268 n.2, 385 N.E.2d at 1004 n.2.

The mere fact that a third party had the motive, intent, and opportunity to commit the crime, however, does not make evidence about that person and his or her possible culpability admissible. Commonwealth v. O’Brien, 432 Mass. 578, 588–589, 736 N.E.2d 841, 851–852 (2000) (explaining that evidence that the victim had expressed fear of the third party in circumstances in which there were no substantial links between the third party and the crime was not admissible because it amounted to nothing more than the witness’s opinion that the third party committed the crime). Accord Commonwealth v. Buckman, 461 Mass. 24, 29–30, 957 N.E.2d 1089, 1096 (2011); Commonwealth v. Rice, 441 Mass. 291, 305–306, 805 N.E.2d 26, 39–40 (2004); Commonwealth v. DiBenedetto, 427 Mass. 414, 420–421, 693 N.E.2d 1007, 1012 (1998). See also Commonwealth v. Smith, 461 Mass. 438, 446–448, 961 N.E.2d 566, 572–573 (2012) (affirming exclusion of statements suggesting murder victim feared unknown persons because statements failed to establish connection between the unknown persons and the murder).

Constitutional Considerations. “The defendant has a constitutional right to present evidence that another may have committed the crime.” Commonwealth v. Keohane, 444 Mass. 563, 570, 829 N.E.2d 1125, 1131 (2005). State evidence rules which effectively bar the introduction of third-party culprit evidence deprive a defendant of his or her right to present a meaningful defense and violate the due process clause of the Fourteenth Amendment. See Holmes v. South Carolina, 547 U.S. 319 (2006); Chambers v. Mississippi, 410 U.S. 284 (1973). Hearsay evidence is admissible as third-party culprit evidence even though it does not fall within a hearsay exception, but “only if, in the judge’s discretion, the evidence is otherwise relevant, will not tend to prejudice or confuse the jury, and there are other substantial connecting links to the crime.” Commonwealth v. Silva-Santiago, 453 Mass. 782, 801, 906 N.E.2d 299, 314 (2009), and cases cited. See Commonwealth v. Drew, 397 Mass. 65, 72, 489 N.E.2d 1233, 1239 (1986) (noting that in “rare circumstances,” the defendant’s constitutional right to present a defense may require the admission of third-party culprit evidence). However, “[a] defendant has no ‘constitutional right to the admission of unreliable hearsay.’” Commonwealth v. Burnham, 451 Mass. 517, 526, 887 N.E.2d 222, 229 (2008), quoting Commonwealth v. Evans, 438 Mass. 142, 156, 778 N.E.2d 885, 898 (2002), cert. denied, 538 U.S. 966 (2003). Accord Commonwealth v. Morgan, 449 Mass. 343, 358, 868 N.E.2d 99, 112 (2007) (explaining that an absent witness’s statement that a third party told her that he had shot the victim was not admissible as a statement against penal interest or as third-party culprit evidence in circumstances in which the third party denied making the statement when interviewed by the police and where there was no corroboration). Hearsay evidence which does not qualify as third-party culprit evidence may nonetheless be admissible for a different but related purpose of establishing the inadequacy of the police investigation. See Commonwealth v. Silva-Santiago, 453 Mass. at 802, 906 N.E.2d at 315 (explaining that based on the reasoning in Commonwealth v. Bowden, 379 Mass. 472, 486, 399 N.E.2d 482, 491 (1980), “information regarding a third-party culprit, whose existence was known to the police but whose potential involvement was never investigated, may be admissible under a Bowden defense even though it may not otherwise be admissible under a third-party culprit defense”). Before such evidence is admitted, the judge should conduct a voir dire to determine whether the third-party culprit evidence was provided to the police and whether its admission would be more prejudicial than probative. Id. at 802–803, 906 N.E.2d at 315–316.

Cross-Reference: Section 1107, Inadequate Police Investigation Evidence.