Federal prosecutors say Matthew Farwell’s lawyer told the jury two things about the law that are wrong, and described texts from Sandra Birchmore that, according to the government, do not exist. In a motion filed Sunday, October 11, the government asked Chief Judge Denise Casper to correct the record before the first witness takes the stand on Tuesday.
We read the motion, Docket No. 339, in full. MassLive also reported that prosecutors accused the defense of making “two significant misstatements” in its opening. Here is what the government says was wrong, what the law actually requires, and what the judge can do about it. These are the government’s arguments. The defense had not filed a response as of Monday, and the judge has not ruled. Farwell has pleaded not guilty and is presumed innocent.
Claim one: “If any one of you…”
According to the government, defense attorney Kimberly Stevens told jurors that “if any one of you finds that the government has not met their burden of proof beyond a reasonable doubt, you must acquit Matthew Farwell,” quoting the rough transcript.
The government calls this “an obvious misstatement of the law.” In federal court, a verdict either way must be unanimous. A single juror who has a reasonable doubt cannot acquit the defendant alone; if the jury cannot agree, the result is a hung jury and a possible mistrial, not an acquittal. The government asked the judge to remind jurors that “any verdict that they reach, whether it is guilty or not guilty, must be unanimous and a single juror’s doubt does not require an acquittal just as a single juror’s decision to convict does not require a conviction.”
Massachusetts readers saw exactly this play out in September, when a single holdout juror deadlocked the Lindsay Clancy jury and the judge declared a mistrial.
Claim two: “His wife is not a federal law enforcement officer”
The main charge, killing a witness under 18 U.S.C. § 1512(a)(1)(C), requires proof that Farwell killed Birchmore with the intent to prevent a communication about a federal offense to a federal law enforcement officer. The defense told jurors that while Birchmore “might tell [the defendant’s] wife,” “his wife is not a federal law enforcement officer,” the motion says.
The government says that framing “improperly increased the government’s burden.” It points to the Supreme Court’s decision in Fowler v. United States, 563 U.S. 668 (2011), which we read. In Fowler, the Court held that “the Government must show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer,” and that “the likelihood of communication to a federal officer was more than remote, outlandish, or simply hypothetical.”
Under that standard, prosecutors argue, they do not have to prove that Birchmore herself would have gone to the FBI, or that preventing a federal report was Farwell’s only motive. The government’s proposed instruction says the jury “need not find that preventing a communication about the commission or possible commission of one of the foregoing federal offenses was the defendant’s sole intention.” Notably, the motion says Farwell’s own proposed instructions also used Fowler‘s “more than remote, outlandish, or simply hypothetical” language.
Claim three: texts the government says do not exist
The government also says the defense opening referred to at least six disputed or unnoticed exhibits. Among the examples in the motion:
- “I was gushing blood.” The defense said Birchmore told a friend this. “Such a text message does not exist,” the motion says. The government says Birchmore did text friends on or around January 18 and 19, 2021 that she was spotting or bleeding, that she texted around January 20 that the bleeding had stopped, and that an ultrasound on January 25 showed “a healthy baby with a heart rate of 167 beats per minute.” The government says the defense left jurors with the impression that she was miscarrying on February 1, which it says she was not.
- “Matt is denying paternity.” The defense said Birchmore texted friends this. “Once again, no such texts exist,” the motion says. According to the government, Birchmore texted friends that Farwell did not want to be involved or sign the birth certificate, but the first mention of Farwell denying he was the father was his own statement on February 6, 2021, to two investigators in a school parking lot, an interview the government says was not recorded and of which no notes were taken.
- Cached images. The defense told jurors Birchmore “calls up” and “pulls up” two cached images; the government says all experts, including the defense expert, will agree there is no way to prove she viewed them, and that she never sought them out.
- FBI notes. The government says the defense described the contents of FBI agents’ notes, including another person’s statement within them, which it calls “double hearsay that will not be admitted.”
The defense noticed 248 exhibits, and 175 remain in dispute, according to the motion.
What the judge can do
- A curative instruction. The government wants the judge to instruct jurors on unanimity and the elements of Count One on Tuesday morning, before testimony. It cites First Circuit case law that “the potential for prejudice … can be satisfactorily dispelled by appropriate curative instruction.”
- An order about exhibits. It also asks the court to bar the defense from questioning witnesses about the contents of any disputed or unnoticed exhibit, except for impeachment, without first raising it outside the jury’s presence.
- Or nothing more. Judges routinely remind jurors that what lawyers say in opening is not evidence, and Judge Casper did so Friday. She may decide that is enough, or that the law will be addressed in her final instructions.
The government’s argument for acting now: “When it comes to misstatement of the law on critical issues such as these, it is not simply enough to tell the jury that opening statements are not evidence.”
Frequently asked questions
Does a federal jury verdict have to be unanimous?
Yes. In federal criminal trials, both a guilty and a not guilty verdict must be unanimous. If jurors cannot agree, the judge may declare a mistrial.
What does the government have to prove about federal officers in the Farwell case?
Under Fowler v. United States (2011), that there was a reasonable likelihood a relevant communication would have been made to a federal officer, meaning more than a remote, outlandish or simply hypothetical possibility. The government argues it need not prove that was Farwell’s only motive.
What is a curative instruction?
An instruction from the judge telling jurors to disregard or correct something they heard, such as an improper statement or a misstatement of the law.
Has the judge ruled on the government’s motion?
Not as of Monday, October 12, 2026. Testimony begins Tuesday, October 13.
Sources: Government’s Motion for Curative Instructions, United States v. Farwell, No. 1:24-cr-10259-DJC (D. Mass.), ECF No. 339, filed October 11, 2026, read in full via CourtListener’s RECAP archive; quotations from the defense opening are from the rough transcript as quoted in the motion. MassLive, October 12, 2026. Fowler v. United States, 563 U.S. 668 (2011), read on CourtListener. All characterizations of the defense opening and the evidence are the government’s; the defense has not yet responded and the court has not ruled. Matthew Farwell is presumed innocent. General information about the law, not legal advice.