Evidence that certain tests were not conducted, that certain police procedures were not followed, or that certain information known to the police about another suspect was not investigated, in circumstances in which it was reasonable to expect that the police should have conducted such tests, followed such procedures, or investigated such information, is admissible.
This section is derived from Commonwealth v. Bowden, 379 Mass. 472, 486, 399 N.E.2d 482, 491 (1980), and cases cited. See Commonwealth v. Silva-Santiago, 453 Mass. 782, 801, 906 N.E.2d 299, 314 (2009) (“[T]he inference that may be drawn from an inadequate police investigation is that the evidence at trial may be inadequate or unreliable because the police failed to conduct the scientific tests or to pursue leads that a reasonable police investigation would have conducted or investigated, and these tests or investigation reasonably may have led to significant evidence of the defendant’s guilt or innocence.”); Commonwealth v. Phinney, 446 Mass. 155, 165, 843 N.E.2d 1024, 1033 (2006) (“Defendants have the right to base their defense on the failure of police adequately to investigate a murder in order to raise the issue of reasonable doubt as to the defendant’s guilt . . . .”). See also Commonwealth v. Mattei, 455 Mass. 840, 857–860, 920 N.E.2d 845, 859–862 (2010) (in a prosecution for attempted rape in which the defendant, a convict on work release, sought to demonstrate misidentification based on an inadequate police investigation because the police did not investigate three other Housing Authority employees who were on duty at the time who had criminal histories, it was error to refuse to permit the defense to question the police about their knowledge of the criminal histories of these employees).
The admission of Bowden evidence does not require the trial judge to give a special instruction to the jury. Instead, the judge is simply required not to take the issue of the adequacy of the police investigation away from the jury. See Commonwealth v. Williams, 439 Mass. 678, 687, 790 N.E.2d 662, 669 (2003).
The Bowden defense “is a two-edged sword for the defendant, because it opens the door for the Commonwealth to offer evidence explaining why the police did not follow the line of investigation suggested by the defense” (citations omitted). Commonwealth v. Silva-Santiago, 453 Mass. at 803 n.25, 906 N.E.2d at 315 n.25. “[T]he more wide-ranging the defendant’s attack on the police investigation, the broader the Commonwealth’s response may be.” Commonwealth v. Avila, 454 Mass. 744, 754–755, 912 N.E.2d 1014, 1024 (2009) (“Here, the Bowden claim was an expansive one, calling into question police competence and judgment about both the leads that were not pursued and those that were. In response, the Commonwealth was entitled to elicit testimony about why the investigators chose the particular investigative path they did . . . .”).
Under a Bowden defense, information regarding a third-party culprit whose existence was known to the police but whose potential involvement was never investigated may be admissible to prove that the police knew of the possible suspect and failed to take reasonable steps to investigate the suspect. This information is not hearsay because it is not offered to show the truth of the matter asserted, but simply to show that the information was provided to the police. Therefore, it need not meet the standard set to admit hearsay evidence regarding a third-party culprit, including the substantial connecting links. See Commonwealth v. Reynolds, 429 Mass. 388, 391–392, 708 N.E.2d 658, 662 (1999) (police detective could testify to what confidential informants had told him about suspect’s motive and opportunity to kill the victim, despite the confidential informants’ potential lack of firsthand knowledge). There is a lessened risk of prejudice to the Commonwealth from the admission of evidence of a Bowden defense because the police are able to explain what they did to determine that the suspect was not guilty of the crime. See Id. at 391 n.1, 708 N.E.2d at 662 n.1. In contrast to the third-party culprit defense, where evidence may be admitted regardless of whether the police knew of the suspect, third-party culprit information is admissible under a Bowden defense only if the police had learned of it during the investigation and failed to reasonably act on the information. Commonwealth v. Silva-Santiago, 453 Mass. at 802–803, 906 N.E.2d at 315. The judge would first need to conduct a voir dire hearing to determine whether the third-party culprit information had been furnished to the police, and whether the probative weight of the Bowden evidence exceeded the risk of unfair prejudice to the Commonwealth from diverting the jury’s attention to collateral matters. Id. at 803, 906 N.E.2d at 315.
Cross-Reference: Section 1105, Third-Party Culprit Evidence.