Appeals Court (April 18, 2007)

The Commonwealth is not required to produce a recording to obtain a conviction of unlawful electronic interception of an oral communication (G.L. c. 272, §99).

During a political rally the defendant secretly recorded his conversation with three MBTA officers as they conversed outside the subway station. After the officers discovered the conversations were being recorded, the defendant fled the scene and threw an audio tape into the crowd of on-lookers. No tape was ever recovered. After trial, the jury convicted the defendant of unlawful electronic interception of an oral communication under G.L. c. 272, § 99.

The defendant appealed his conviction arguing the Commonwealth's proof was insufficient because no actual recording was introduced at trial. The court disagreed, reasoning that for most crimes, indirect or circumstantial evidence is sufficient to prove any or all of the elements of an offense. The fact that the Commonwealth could not produce direct evidence - the tape itself - does not mean that its evidence was legally insufficient, as the circumstantial evidence in this case was sufficient for the Commonwealth to meet its burden of proof.