Supreme Judicial Court, June 13, 2013

Adjutant Evidence:

For the first time the Supreme Judicial Court addressed whether evidence offered to determine first aggressor pursuant to Commonwealth v. Adjutant, 443 Mass. 649 (2005) is admissible when it is “…essentially undisputed that the victim provoked or initiated a nondeadly assault, but where it is disputed whether the defendant or the victim was the first to use or threaten deadly force.”  The Court concluded  “[w]here a victim's prior act or acts of violence demonstrate a propensity for violence … Adjutant evidence is as relevant to the issue of who initiated the use or threat of deadly force as it is to the issue of who initiated an earlier nondeadly assault, and such evidence may be admitted to assist the jury where either issue is in dispute, because the resolution of both issues may assist the jury in deciding whether the prosecution has met its burden of proving that the defendant did not act in self-defense.”

Promised Evidence Based on Judicial Ruling:

The Court also considered whether it was error for the judge, after ruling pretrial that certain evidence is admissible, to preclude counsel from introducing such evidence after counsel has already promised the jury that such evidence would be presented.  It concluded that it was an error in this case and “[i]f a judge wishes to preclude important evidence that defense counsel, in reliance on the judge's pretrial ruling, promises the jury he will offer, the judge should offer to cure the resulting prejudice by instructing the jury that counsel's promise was based on her prior ruling, and that counsel's apparent failure was the result of the judge's own legal determination either that the promised evidence was not admissible or that the issue on which the evidence bore relevance had been decided as a matter of law and therefore need not be decided by the jury.”