Supreme Judicial Court (March 31, 2011)

While it is not uncommon for judges to forgo accompanying juries on a view of a crime scene, "we strongly disapprove, and henceforth require as a matter of our common law that judges attend a view."

In upholding a first-degree murder conviction, the SJC issued a directive to judges that they must accompany juries on views of crime scenes. "A judge who is present can address and cure at the earliest practicable time any improprieties that may occur on a view."

In this case, the defendant appealed his murder conviction on several grounds, including prosecutorial error during the view of the crime scene. At the view, the prosecutor stood where the defendant allegedly shot the victim and asked the jury, who were standing in the positions of eyewitnesses during the crime, if they could recognize his physical features. The defense counsel did not object.

Represented by new counsel on appeal, the defendant argued that the prosecutor conducted an unauthorized demonstration during the view. "Although what is seen on the view may be used by the jury in reaching their verdict, in a 'strict and narrow sense a view may be thought not to be evidence.'" Commonwealth v. Curry, 368 Mass. 195, 198 (1975), quoting Commonwealth v. Dascalakis, 246 Mass. 12, 30 (1923). Here, the Court found that the demonstration went beyond the proper scope of a view.

The Court then considered whether the error created a substantial likelihood of a miscarriage of justice. The Court found that, despite the improper demonstration, the prosecutor's conduct was appropriate in all other respects. Noting the defense counsel's failure to object during the view, the Court indicated that the demonstration was not prejudicial. The Court found that the prosecutor's closing argument was proper, as he did not ask the jurors to recall the view. The Court also found no errors in the judge's instructions, noting that he specifically added that the view was not evidence. "We conclude that, for the foregoing reasons, the prosecutor's demonstration during the view was mostly cumulative of the evidence adduced at trial, and any difference did not create a substantial likelihood of a miscarriage of justice."