Supreme Judicial Court, January 21, 2014

In separate trials of co-defendants for murder the prosecutor presented alternative, yet inconsistent theories of liability pursuant to Commonwealth v. Zanetti, 454 Mass. 449 (2009) (with regard to jury instructions on joint venture, when there is evidence that more than one person may have participated in the commission of the crime, judges should simply instruct the jury that the defendant is guilty if the Commonwealth has proved beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense).  The defendant argued on appeal that his counsel was ineffective for failing to obtain a transcript of the prosecutor’s closing argument from the first trial to be used as a prior inconsistent statement at the second trial.  The Court found no due process violation because each of the theories presented by the prosecutor was supported by the evidence therefore, a transcript from the first trial would not have been admissible at the second trial.  “[T]here was no manipulation or concealment of evidence, or other prosecutorial misconduct.”

The Court did provide a cautionary note.  “That said, prosecutors, in future cases, should proceed with caution when asserting inconsistent arguments in different trials involving the same crime, assuming no "innocent explanation," significant changes, or new evidence have come to light. We note that, particularly after Commonwealth v. Zanetti, supra, there is no need for a prosecutor to emphasize principal liability. If a prosecutor does so and the position is inconsistent with what he formerly argued at another trial for the same crime, he does so possibly at his own peril.”