Commonwealth v. Daye
469 N.E.2d 483, 393 Mass. 55 (1984)
Rule of Law:
A witness's prior inconsistent statement made under oath before a grand jury is admissible as substantive evidence of guilt, provided the witness is available for cross-examination at trial and there is other corroborating evidence on the issue.
Facts:
- On April 24, 1980, two youths were wrestling on a sidewalk next to a bar in Revere.
- A man, later identified by some witnesses as Dennis M. Daye, emerged from the bar, told the youths to stop fighting, and ordered them around the corner.
- Following an altercation, the man produced a gun and shot one of the youths in the lower abdomen from a distance of two feet.
- The gunman and a companion walked away from the scene, entered a car, and drove away.
- Before trial, a witness named Steven Ciambelli testified to a grand jury that he had identified Dennis Daye as the gunman.
- At trial, Ciambelli and other eyewitnesses were unable or unwilling to identify Daye as the gunman, with Ciambelli explicitly disclaiming his grand jury identification and stating it was exaggerated.
- Another witness, James O’Connor, acknowledged selecting photographs of the shooter before trial but was not asked at trial to identify the specific photograph he chose.
- There was evidence suggesting that some witnesses, including the victim, were reluctant to testify or make an identification at trial due to fear of reprisal.
Procedural Posture:
- Dennis M. Daye was tried before a jury in the Superior Court on charges including assault with intent to murder.
- The jury convicted Daye of assault by means of a dangerous weapon, unlawfully carrying a firearm, and the lesser included offense of assault with intent to kill.
- Daye (as appellant) appealed his convictions to the Appeals Court, arguing the trial court erred by admitting certain testimony about pretrial identifications.
- The Appeals Court reversed the convictions and ordered a new trial.
- The Commonwealth (as appellant) applied for and was granted further appellate review by the Supreme Judicial Court of Massachusetts, asking the court to adopt a new evidentiary rule for the retrial.
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Issue:
Does Massachusetts common law permit the admission of a witness's prior inconsistent grand jury testimony as substantive evidence to prove the truth of the matter asserted?
Opinions:
Majority - Abrams, J.
Yes, a prior inconsistent statement is admissible as probative evidence if made under oath before a grand jury. The court altered the common law rule that previously limited such statements to impeachment purposes only. The court's reasoning is that the traditional hearsay concerns are mitigated because the declarant testifies at trial and is subject to cross-examination. A statement made under oath closer in time to the events may be more reliable than trial testimony affected by the passage of time and intervening influences, such as fear or intimidation. The court also noted that asking a jury to distinguish between impeachment and substantive use is a 'pious fraud' and 'mental gymnastics.' However, the court established several conditions for admissibility: the witness must be available for effective cross-examination, the statement must not have been coerced, it must be more than a mere 'yes' or 'no' to a leading question, and a conviction cannot be based exclusively on such a statement without other corroborating evidence.
Concurrence - Liacos, J.
Yes, a new trial is required, but the court should not have changed the evidentiary rule regarding prior inconsistent statements. Justice Liacos concurred with the majority's conclusion that evidentiary errors in the trial required a reversal. However, he dissented from the majority's decision to adopt a new rule allowing the substantive use of grand jury testimony, arguing it was unnecessary dictum because the issue was not properly raised or briefed. He argued that the new rule undermines the critical importance of timely, contemporaneous cross-examination, which cannot be effectively replaced by cross-examination at a later trial. He contended that the court was unwisely starting its 'modern' approach with the least justifiable form of prior testimony—one lacking any cross-examination—and that the new rule weakens a defendant's constitutional right to confront witnesses 'face to face' under the Massachusetts Declaration of Rights.
Analysis:
This decision marks a significant shift in Massachusetts evidence law, moving away from the traditional prohibition against the substantive use of prior inconsistent statements and partially aligning with the Federal Rules of Evidence. The ruling pragmatically addresses the problem of witness recantation due to intimidation by allowing juries to consider sworn grand jury testimony as evidence of the facts asserted. By establishing strict conditions, such as the requirement for corroborating evidence, the court attempts to create a balance between the prosecution's need for reliable evidence and the protection of a defendant's confrontation rights. This precedent fundamentally changes how prosecutors can build a case when key witnesses change their testimony between the grand jury and trial phases.
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