Posts tagged "1106617"

Commonwealth v. Connolly (Lawyers Weekly No. 11-066-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030;   16-P-107                                        Appeals Court   COMMONWEALTH  vs.  DAVID A. CONNOLLY.     No. 16-P-107.   Middlesex.     December 14, 2016. – May 25, 2017.   Present:  Wolohojian, Milkey, & Shin, JJ.     Assault and Battery.  Evidence, Videotape, Best and secondary, Cross-examination, Authentication, Identification, Opinion.  Identification.  Witness, Cross-examination.  Fair Trial.       Complaint received and sworn to in the Malden Division of the District Court Department on August 19, 2014.   The case was tried before Emily A. Karstetter, J.     Justin J. Patch for the defendant. Alaina Catherine Sullivan, Assistant District Attorney, for the Commonwealth.     SHIN, J.  The defendant was convicted of assault and battery for pushing someone in a hallway of an apartment building.  While he admitted that contact occurred, his defense was that it was accidental.  The case therefore turned on the details of the interactions between the two individuals.  At trial the Commonwealth presented a single witness — a police officer who watched a video of surveillance footage[1] that he said was recorded from inside the building.  Before the defense had an opportunity to view the video, it was erased through no fault of the Commonwealth.  Over the defendant’s objection, the judge allowed the officer to testify as to his recollections of what he saw on the video, including that, contrary to the theory of the defense, it showed the defendant lifting both arms and “shoving” the victim to the ground. We consider in this appeal (1) whether the requirement of authentication pertaining to real evidence applies to the lost video, and (2) whether, and in what circumstances, a judge can admit a witness’s lay opinion identifying a person on a video, where the video is not available for the jury to view.  With respect to the first question, we conclude that, before the officer’s testimony could be admitted, the Commonwealth had to lay a foundation establishing that the lost video was what the officer claimed it to be, i.e., a genuine recording of the encounter that occurred between the defendant and the victim.  With respect to the second question, while we reject the defendant’s contention that the unavailability of the video required automatic exclusion of the officer’s identification testimony, we conclude that the Commonwealth had to lay sufficient foundational facts to enable the jury to make their own findings about the accuracy and reliability […]


Posted by Massachusetts Legal Resources - May 26, 2017 at 11:03 am

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