Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.


The Boston Criminal Lawyer Blog was discussing evidence. How much is necessary to find a defendant guilty. What kind of evidence can be admitted and when.

That kind of thing.

Putting aside the issue of actual character evidence, bad acts and prior
convictions are often admissible to impeach a witnes’s credibility.

“Isn’t that to show the witness has a bad character?”

Well, technically, no. It is an example of a legal splitting of the proverbial hairs. For example, this evidence can not be introduced into evidence to show that the
witness has a propensity to commit such bad acts. It is only admissible, in
most cases, to be considered by a jury when judging credibility.

“So, isn’t that the same thing as showing that the witness is not worthy of
belief because he or she has a bad character? Bad character because he or
she commits bad acts?”

You might see it that way, in every-day logic, but according to the law…not really. It is just
there as information the jury may want to consider when judging credibility.


“Ok…is that the only reason for which such evidence can be admitted into

No. There are, as usual, exceptions to the general rule. For example, let’s
say a criminal defendant is on trial for Kidnapping and rape. The Commonwealth contends that he lured an unsuspecting lass to him by advertising that he was giving away a free puppy. It turns out that there were three previous allegations against him for rape and, each time, he allegedly did it by luring
his alleged victims by an ad stating that he was giving away a free puppy. He
was convicted on those previous matters, by the way.

“Doesn’t the fact that he was found guilty in those cases mean that this
evidence automatically can come in?

No. In fact, unless the Defendant testifies, evidence of prior bad acts and
prior convictions are usually not admissible at all. However, there are certain
exceptions to this rule that might come into play in this scenario.

The Commonwealth can claim that he has a common unusual pattern of committing
these crimes which help to identify him as the perpetrator. Therefore, for that
purpose alone, the Commonwealth may be able to tell the jury about the prior
cases. Even without the Defendant’s testifying.

In fact, if such evidence is being used to cross examine the Defendant to
impeach his credibility, the judge would only let it in for purposes of
credibility. Not for any other reason. In the other example, it would be
admitted into evidence solely to show the common scheme or plan…not for any
other reason…including credibility.

“Well, how is the jury supposed to know what the evidence is being admitted

The judge will tell them. It is called a “Curative Instruction”.

And the jury will be able to follow and obey such instruction?

Well, that is the theory. It is the same issue as when evidence is stricken
from the record. For example, let’s say that Homer Husband is on trial for
some violent crime. He testifies and the prosecutor gets up on cross-examination and starts with, “So, sir, when did you stop besting your wife?”

The defense lawyer should be on her feet instantly objecting to the question and
the judge would sustain the objection and tell the jury to disregard the
question. It is an unfair question. However, the jury heard it before the
judge told them to disregard it.

I now ask you, my readers, to not visualize a pink elephant in your living room eating toast.

Did you follow that instruction? Of course, at trial, there would be even more attention on it. For example, the opposing attorney gets up and yells, “:Objection, judge! There are no pink elephants eating toast anywhere in this case!”

The Judge admonishes, “Sustained. The jury is to disregard any mention of pink elepants in a living room eating toast.”

Could you block it out of your memory?:

But, I digress because now I m talking more about trial tactics that are
officially frowned upon in our system of fair trials.

Now…what does all this mean to you?

It shows you what a mind-bending mission it is to understand, and use
effectively, the myriad of evidentiary rules and tactics. What you have
hopefully learned is that, although it can be a complicated journey, it does not
take very much evidence to find you guilty. If the elements of the crime are
described by a witness, and the jury believes that witness beyond a reasonable
doubt (which it is allowed to do), then there is enough evidence to convict.

Anything else is helpful…but it is icing on the prosecutorial cake.

If you are accused of a crime, then you want an advocate who knows these rules
and how to use them. You want an experienced criminal defense attorney.

Have a great, safe and law-abiding rest of the President’s Day Weekend!

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