Proof Beyond a Reasonable Doubt--Part the Second

We make inferences every day. For instance, we might infer that a person is suffering pain from the person’s facial expression. How far can we extend inferences? Can we infer how much pain the person is in? Can we infer why the person is suffering pain? 

In a criminal prosecution, it frequently is necessary for a jury to make and rely upon inferences. How do we reconcile inferences--which are essentially guesses--with the rule that a defendant may only be convicted of a crime based upon proof beyond a reasonable doubt? 

In Commonwealth v. Oliver (Massachusetts Appeals Court no. 22-P162) (May 15, 2023), we learn that the concepts are not well reconciled.

In Commonwealth v. Oliver the defendant, Dominique M. Oliver, was convicted of cashing a forged check. The Appeals Court described the facts as follows:

In January 2019 Ms. Oliver entered a branch of the Salem Five Cents Savings Bank and presented a check in the amount of $3,600 to the teller. The check was a Salem Five check on the account of Dr. Thomas Mahoney and his wife, Eileen Mahoney, and made out to Ms. Oliver. The check appeared to reflect Eileen’s signature. The signature was clear and legible, with each letter easily discernable. Eileen's name, however, was misspelled--the spelling did not match the printed name on the check. Ms. Oliver signed the back of the check and presented her genuine Massachusetts driver's license to the teller. The teller successfully withdrew the funds. Eileen testified that she did not write the check or know the defendant.

On appeal, Ms. Oliver contended that the evidence was insufficient to prove beyond a reasonable doubt that she knew the check to be forged.

The Appeals Court explained that to convict a defendant of cashing a forged check, each of the following four elements must be proved beyond a reasonable doubt: that the defendant (1) offered as authentic; (2) a check; (3) known to be forged; (4) with the intent to steal. Before the Appeals Court, Ms. Oliver challenged the third element, that is, that the scant evidence was sufficient to prove her knowledge the check was forged.

The Appeals Court began with a familiar refrain: “Circumstantial evidence is competent to establish guilt beyond a reasonable doubt.” Circumstantial evidence is evidence that leads to a conclusion. For instance, if you’re outside and it begins to rain, your perception of the rain is direct (rather than circumstantial) evidence that it rained at that moment. On the other hand, if you’re in the lobby of a building and people are walking in wearing rain gear and wet, you can use those circumstances to conclude that it is (or at least recently was) raining.

The Appeal Court acknowledged: “evidence that a defendant . . . cashed a check from a person who did not know the defendant and did not owe the defendant money[ ] is not sufficient to [conclude] beyond a reasonable doubt that the defendant knew the [check] was forged . . .” The question then is: what additional evidence was capable of proving Ms. Oliver knew the check to be forged?

The Appeals Court continued: “[T]he evidence of forgery was apparent from the face of the check. Eileen Mahoney’s name is misspelled in the signature line, and the misspelling is obvious because the name is spelled differently than in the printed name on the check . . . [T]he signature is neat and precise, and every letter can be read with ease. Because the forgery was [obvious] on the face of the check that the defendant presented, the jury could reasonably infer that she knew of the forgery.” *  The Appeals Court added: “[T]he jury could reasonably infer that the defendant’s [cashing the check] to secure immediate possession of a large amount of cash supported the inference that she knew that the check was forged.”

The Appeals Court explained:

To be sure, it is possible that a person could fail to notice that the signature on a check did not match the name on the check, even where the signature is as clear and legible as in this case . . . The jury, however, were not required to draw [such an] inference[. T]he inferences a jury may draw need only be reasonable and possible and need not be necessary or inescapable. Among those reasonable inferences is that a person looks at a check before cashing it, especially where, as here, the check was for a large amount.

In this case, as in every criminal case, the Commonwealth was required to prove Ms. Oliver’s state of mind “beyond a reasonable doubt.” In Massachusetts, proof beyond a reasonable doubt is proof (evidence) that establishes “an abiding conviction, to a moral certainty, that [a fact] is true . . . [I]t is the highest degree of certainty possible in matters relating to human affairs . . .”

In many check forgery cases the judge or jury can be confident that the checking account owner did not personally deliver the forged check to the defendant, and thus the defendant either him or herself wrote (forged) the check or received the check from someone other than the account owner. Depending upon the surrounding circumstances it is perhaps reasonable to conclude that a person cashing (as opposed to depositing) such a check knows the check to be inauthentic. This conclusion is foreclosed, however, by the general rule (discussed above) that cashing a forged check itself does not establish the defendant’s knowledge of the forgery. Thus, the Appeals Court engaged in some mental (and legal) gymnastics (discussed above) to conclude that evidence beyond the mere cashing of the forged check was available to prove--beyond a reasonable doubt--that Ms. Oliver knew the check to be forged.

Evaluating the reasoning of the Appeals Court, it is difficult to reconcile how a reasonable inference that results from the possibility that one “looked at a check” can lead to “the highest degree of certainty possible.” Even if it is reasonable to conclude that a “person looks at a check before cashing it,” according to the Appeals Court, looking at a check includes inspecting the signature with sufficient attention to detect a misspelling (which apparently even the bank teller did not do in this case).

On the reasoning of the Appeals Court, the trial jury, to find Ms. Oliver guilty, must have concluded (inferred) that Ms. Oliver was astute enough to detect a misspelling. But Ms. Oliver also provided her genuine identification--that would identify her to the authorities. Providing her identification is either inconsistent with Ms. Oliver otherwise being astute in the circumstances--meaning the misspelling inference is suspect--or Ms. Oliver was willing to be detected--a conclusion that would require wholesale speculation. In either case--an inconsistent inference or speculation--a defendant has been convicted, seemingly, on something less than proof beyond a reasonable doubt. Such appears to be prohibited: in the case of Commonwealth v. Niziolek, 380 Mass. 513, 522 (1980), the Massachusetts Supreme Judicial Court stated: “the jury . . . should not [make an adverse] infer[ence] [as to the existence of an element of a crime] unless they are persuaded of the truth of the inference beyond a reasonable doubt.”

In Commonwealth v. Oliver the Appeals Court appears to have permitted the jury to draw a damning inference without requiring the jury to consider whether the necessary underlying inferences (referred to as subsidiary inferences) are consistent or reasonable.

Our jurisprudence deserves better.

* Some might interpret the signature as correctly spelled: the first “L” in the misspelling actually being an “I” and everything preceding being an “E”.

The Criminal Consequences of Social Media

In Commonwealth v. DeJesus, 489 Mass. 292 (2022), Christopher DeJesus was convicted of possessing a firearm without a license and appealed his conviction to the state supreme court, contending that mere video evidence of his handling a firearm was insufficient to prove that he criminally possessed the firearm.

At trial, the Commonwealth displayed a social media video, observed by the police, that showed Mr. DeJesus handling the firearm. The video led the police to a house. They entered the house through a partially open basement door that lead to an area that appeared to be where the video had been filmed. There they found the firearm depicted in the video inside an open backpack. Mr. DeJesus was found at the scene and arrested. 

At trial, the judge instructed the jury that Mr. DeJesus was not charged with possessing the firearm at the time of the search, but rather when the video was filmed. On this evidence the jury found Mr. DeJesus guilty.

On appeal, Mr. DeJesus argued, more or less, that video evidence was insufficient to prove possession of a firearm, particularly where he was not in possession of the firearm at the time he was arrested. The court disagreed, pointing out that the video showed Mr. DeJesus holding the firearm and posturing with it, and mimicking the action of aiming and firing the firearm. The court concluded: “This evidence was sufficient to show that [Mr. DeJesus] had the power to handle the firearm . . .” and affirmed the conviction.

Morale: Do not post videos of yourself committing a crime.

What is a Threat to Commit a Crime?

The contours of the crime of threat to commit a crime are explored in Commonwealth v. Leonardo L. (a juvenile) (Massachusetts Appeals Court No. 20-P-645, August 4, 2021).

In Leonardo, the thirteen-year-old defendant, during a meeting with a school vice principal, stated of one of his teachers, while agitated and in a loud voice: “The teacher makes me so angry!  I want to kill that b**ch.” Leonardo was known generally to be quick to anger and difficult to diffuse. The teacher was fearful of Leonardo. Based upon the statement, Leonardo’s character, and the teacher’s apprehension, the authorities charged Leonardo with threat to commit a crime. The Appeals Court considered whether the allegations were sufficient to amount to threat to commit a crime. 

Note that the “threat” was a statement of desire rather than of intended future action (“I want to . . .”); the “threat” was not made to the intended target; and there was no suggestion that Leonardo was prepared actually to commit or attempt murder.

The Appeals Court explained: A criminal threat occurs “[one,] when someone expresses an intention to inflict a crime on another, [two,] has the ability to carry out that crime, [three,] causes the victim to fear harm, and [four,] does so in circumstances that make the victim’s fear justifiable  . . . In analyzing [whether a statement is a] threat, [a court] . . . consider[s] the entire context in which a statement is made, including the [speaker’s] actions and demeanor at the time, and prior communications between the [speaker] and the recipient.”

Intent: The court concluded that Leonardo did express an intent to inflict a crime upon his teacher: He was angry when he uttered words of harm and expected the assistant principal to communicate his words to the teacher.

Ability: The court concluded that the teacher’s apprehension was sufficient to establish that Leonardo was with the ability to at least attempt to carry out the crime of murder.

Fear of Harm: Here, the court explained that all that was required was the teacher’s actual apprehension that Leonardo might cause or attempt to cause her harm.

Fear is Justifiable: Here, the court explained that justifiable fear is fear that the speaker may attempt to commit the threatened crime, not necessarily fear that the crime will be accomplished. Here too, the teacher’s actual apprehension satisfied the requirement of justifiable fear.

It is interesting that the requirement that the government prove the speaker possesses “the ability to carry out th[e] crime,” seems to be a given--since murder can be accomplished in any number of ways, this element seemingly would be meaningful only if the speaker made a statement of the impossible (e.g., “I will kill you yesterday” or “I will kill you when we meet on Mars.”). 

The Moral of the Story: Be very careful of what you say when you’re angry. 

image courtesy: wayhomestudio www.freepik.com

The Limits of an Automobile Stop

In Commonwealth v. Soriano-Lara (Massachusetts Appeals Court No. 19-P-1311, May 7, 2021), the defendant was stopped after failing to signal when moving to a left-turn only lane. The defendant produced a license and registration. A passenger explained that the car belonged to her mother. The defendant provided an address other than on the license (though nearby to the license address).

The trooper returned to the cruiser and confirmed that both the license and registration were valid and the car had not been reported stolen. 

When the trooper returned to the car, he asked the driver where he was coming from and during the questioning noticed that the car’s center console appeared to have been manipulated. From his experience, the trooper knew that the center console is frequently used to conceal drugs and drug paraphernalia. The trooper asked the defendant to step out of the vehicle and asked him questions about his identity that the defendant could not answer. He put the defendant in the cruiser and the then discovered drugs in the console.

The issue before the court was whether the trooper was justified--after returning the to car--in inquiring about the defendant’s recent whereabouts. The court explained that while the trooper was justified in continuing inquiry into the defendant’s identity, he was not justified in inquiring into the defendant’s recent activities--because that questioning was not related to the defendant’s identity--and it was during that questioning that the defendant observed the questionable console. In particular, the court explained:

Citizens do not expect that police officers handling a routine traffic violation will engage, in the absence of justification, in stalling tactics, obfuscation, strained conversation, or unjustified exit orders, to prolong the seizure in the hope that, sooner or later, the stop might yield up some evidence of an arrestable crime.

In this instance, because the stop was unnecessarily prolonged and it was during the prolonged period that evidence was discovered, the evidence should be suppressed--that is--not used in prosecuting the defendant.

Interestingly, the court noted that had the trooper’s questioning been limited to the defendant’s identity and it was during that questioning that the manipulated console was discovered, perhaps the evidence would need not be suppressed. 

Never Take an Arrest for Granted--Part the Second

In Commonwealth v. Daigle (Massachusetts Appeals Court No. 19-P-1215, January 25, 2021), discussed below, a more or less benign encounter with the police turned into a rather nightmarish event for Ms. Daigle, given the extent to which government prosecutors sought to torment Ms. Daigle.

In Commonwealth v. Fahey (Massachusetts Appeals Court No. 19-P-1487, March 15, 2021), the facts were not so innocuous but the prosecutor’s behavior was similar.

Mr. Fahey was convicted of murder in the second degree and he appealed, contending that the prosecutor’s conduct was outrageous. 

The Fahey court began: “[W]e agree with the defendant that a new trial is warranted based on the cumulative effect of the prosecutor's improper cross-examination and inflammatory closing argument. We therefore vacate the conviction."

The court described the standard applicable to prosecutors as follows:

[I]t ordinarily is improper for a prosecutor to suggest that a defendant "tailored" his testimony to conform with the evidence he heard at trial. [I]t is a fundamental principle that a witness cannot be asked to assess the credibility of his testimony or that of other witnesses. [A] prosecutor may not ask a defendant a question for which the prosecutor cannot reasonably expect the defendant to provide an affirmative answer in order to communicate an impression by innuendo. [I]t is generally error for the prosecutor to cross-examine the defendant about his failure to contact police and tell them about his alleged self-defense before his arrest. Finally, a prosecutor may not subject a defendant to questions that serve merely to harass, annoy or humiliate. A prosecutor's staying within such boundaries helps to ensure that a defendant receives a fair trial in which the jury dispassionately determine his or her guilt or innocence based on the objective facts. 

Describing this prosecutor’s cross-examination of the defendant, the court observed:

Here, the prosecutor’s questions went beyond proper cross-examination in all of the ways described above. For example, the prosecutor asked the defendant to comment on the veracity of other witnesses and suggested that the defendant was tailoring his testimony to that of the other witnesses . . . [T]he prosecutor asked, "So, you’re telling the truth and no one else is?" After the defendant answered, “Absolutely,” the prosecutor then asked, “[Isn’t it] convenient that [your story is similar to what] two other witnesses described last week?" [¶] [T]he prosecutor improperly posed numerous rhetorical questions that assumed a factual premise that the prosecutor knew the defendant denied . . . [¶]The prosecutor asked additional rhetorical questions to badger the defendant . . .  The prosecutor also asked the defendant if he "underst[oo]d how unbelievable [his testimony] sounds." . . . [¶] . . . The prosecutor [also] asked, "How often did you rehearse that line, Mr. Fahey?"

As to closing arguments in general, the court noted: “It is improper for a prosecutor to use insulting names designed to evoke an emotional, rather than a rational, response from jurors . . . The problem with such name-calling is not whether the labels are accurate, but instead is whether it amounts to an improper appeal for sympathy that risks obscuring the clarity with which the jury would look at the evidence and encourage the jury to find guilt even if the evidence does not reach the level of proof beyond a reasonable doubt.”

The court described the closing argument: "[In addition to calling the defendant a 'bully' 13 times], the prosecutor excessively mocked the defendant's defense . . . us[ing] excessive rhetoric.” 

The moral of the very recent cases of Commonwealth v. Diagle and Commonwealth v. Fahey is that the government will not play fair. 

You need a competent and diligent attorney to look out for your interests. 

The Police "Privilege"

In Commonwealth v. Garvey (Massachusetts Appeals Court No. 19-P-1018, February 2, 2021), MBTA police officer Jennifer Garvey arrested a witness to an arrest that Officer Garvey performed--but in the end Officer Garvey became the subject of criminal investigation.

Facts: On March 26, 2014, Officer Garvey was assigned to the Dudley Station bus terminal in the Roxbury neighborhood of Boston. That afternoon, an MBTA bus inspector requested Officer Garvey’s assistance with a passenger who appeared to be intoxicated and was causing a disturbance. Officer Garvey found and escorted the passenger off the bus and directed her to a nearby bench and then called for assistance. Assisting officers arrived and assessed the situation and concluded that the passenger did not pose a threat to officer safety.

At this time Mary Holmes was walking towards Dudley Station when she observed Officer Garvey leaning over a bench and yelling at the removed passenger. Holmes was familiar with the passenger from her (Holmes) daily commute and attempted to calm the passenger. Holmes watched Officer Garvey shove the passenger to the bench when she stood. When the passenger attempted to take a drink from a vodka bottle, Officer Garvey aggressively slapped the bottle away from the passenger’s hand and lips, picked the passenger by her coat, and with the assisting officers placed the passenger in handcuffs. 

Holmes dialed 911 and asked officer Garvey for her badger number: Officer Garvey responded: “It’s 6-7-7, now get the f**k out of my way before I arrest you for impeding on an ongoing investigation.” Holmes moved somewhat but not sufficiently for Officer Garvey, who  began pushing Holmes and threatened to pepper spray Holmes if she did not move faster. While Holmes was walking backwards, Officer Garvey continued pushing her with one hand then pepper sprayed Holmes. A struggle followed. Officer Garvey used her baton to hit Holmes in the shins several times and ultimately forced Holmes to the ground. Holmes was taken to the MBTA police headquarters where she was charged with assault and battery on a police officer and held overnight until her court appearance the following morning. Officer Garvey prepared a police report “documenting” the events forming the basis for Holmes’ arrest and charges.

Unfortunately for Officer Garvey, the incident was captured by four MBTA public safety cameras located throughout the bus station and she ultimately lost her job over the incident and was convicted of two counts of assault and battery and two counts of filing a false police report.

Commentary: From a legal perspective, what is interesting about this case is that at trial, former Officer Garvey  argued that her use of force was justified by the “police privilege,” which the court explained “permits police officers to use reasonable and necessary force when carrying out their official duties.” If an officer is prosecuted for using excessive force, “the Commonwealth . . . [is] required to prove beyond a reasonable doubt that the [officer’s] use of force was not justified by this privilege.” According to the “police privilege,” if an officer commits an assault and battery “when carrying out his or her official duties,” the government must prove “beyond a reasonable doubt” that the assault and battery was unjustified.

When a civilian commits an assault and battery, the government need only prove beyond a reasonable doubt that the civilian committed an assault and battery. When a police officer commits an assault and battery, the government must prove beyond a reasonable doubt both that the officer committed an assault and battery and that the assault and battery was not permitted--that is--exceeded a “reasonable” amount of force under the circumstances.

Thoughts to Ponder

In Commonwealth v. Pearson (Massachusetts Supreme Judicial Court No. SJC-12930, February 12, 2021), the Massachusetts Supreme Judicial Court commented upon occasions when a police officer must testify to his or her intent at the time he or she took some earlier action. The court observed: 

"[Such occasions] could incentivize post hoc (viz. after-the-fact) attestations from police that they intended to [act appropriately despite their] . . . earlier unlawful conduct. The [United States] Supreme Court anticipated this concern in Murray v. United States, 487 U.S. 533, 540 n. 2 (1988), noting that "[t]o say that a . . . court must be satisfied that [officers later acted appropriately despite their earlier] illegal [conduct] is not to give dispositive effect to police officers' assurances on the point."