Mass. R. Evid. 404
Mass. Guid. Evid. 404
Subsection (a). This subsection is derived from Commonwealth v. Helfant, 398 Mass. 214, 224 (1986), and Commonwealth v. Bonds, 445 Mass. 821, 829 (2006). Massachusetts follows the universally recognized rule against "propensity" evidence, i.e., evidence of a person's character through reputation or specific acts (see Section 404[b]) offered to suggest that the person acted in conformity with that character or trait on the occasion in question is inadmissible. See Maillet v. ATF-Davidson Co., 407 Mass. 185, 187-188 (1990); Commonwealth v. Doherty, 23 Mass. App. Ct. 633, 636-637 (1987). See also Commonwealth v. Reddy, 85 Mass. App. Ct. 104, 108 (2014) (admission of unredacted Chapter 209A order that stated "THERE IS A SUBSTANTIAL LIKELIHOOD OF IMMEDIATE DANGER OF ABUSE" was error in prosecution for violation of order, as it constituted improper predictive or propensity evidence). Evidence of character, a general description of a person's disposition, is generally inadmissible. Figueiredo v. Hamill, 385 Mass. 1003, 1003-1005 (1982) (testimony that decedent acted in a "habitually reckless manner" was inadmissible character evidence). Criminal profile evidence, regarding whether the defendant shares characteristics common to individuals who commit a particular crime, is also inadmissible. Commonwealth v. Coates, 89 Mass. App. Ct. 728, 733-735 (2016) (criminal profile evidence offered to show that defendant did not have pedophilic tendencies was fundamentally irrelevant and inadmissible). The prosecution may not offer in its case-in-chief evidence that the defendant is a violent or dishonest person in order to demonstrate that the defendant has a propensity to commit the crime charged. Commonwealth v. Mullane, 445 Mass. 702, 708-709 (2006). See also Commonwealth v. Roe, 90 Mass. App. Ct. 801, 807-808 (2016) (even where normally inadmissible evidence of character may be admitted for permissible purpose, failure to guide jury on their use of this evidence through proper instruction is prejudicial error). But see Commonwealth v. Adjutant, 443 Mass. 649, 664 (2005), discussed in the notes to Section 404(a)(2)(B).
Cross-Reference: Section 406, Routine Practice of a Business; Habit of an Individual.
Subsection (a)(2)(A). This subsection is derived from Commonwealth v. Nagle, 157 Mass. 554, 554-555 (1893), and Commonwealth v. Brown, 411 Mass. 115, 117-118 (1991). According to long-standing practice, evidence of the defendant's own good character-in reputation form only-is admissible to show that the defendant is not the type of person to commit the crime charged. See Commonwealth v. Belton, 352 Mass. 263, 267-269 (1967). The defendant is limited to introducing reputation evidence of traits that are involved in the charged crime. Commonwealth v. Beal, 314 Mass. 210, 229-230 (1943).
The prosecution has the right to impeach the defendant's character witnesses with specific instances of bad conduct or criminal activity that are inconsistent with the character trait to which the witness has testified. See Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 53 (2009) (when, in prosecution for assault and battery, defendant testified to his character for peacefulness, trial judge did not abuse her discretion by allowing Commonwealth to cross-examine defendant based on his prior convictions for same offenses involving same victim to rebut his credibility as to his character, even though Commonwealth's motion in limine to use these prior convictions for impeachment purposes had been denied prior to trial). Cross-Reference: Section 405(a), Methods of Proving Character: By Reputation. The prosecution may also present rebuttal evidence of the defendant's bad character in reputation form. Commonwealth v. Maddocks, 207 Mass. 152, 157 (1910).
Subsection (a)(2)(B). This subsection is derived from Commonwealth v. Adjutant, 443 Mass. 649, 664 (2005); Commonwealth v. Pring-Wilson, 448 Mass. 718, 737 (2007); and Commonwealth v. Chambers, 465 Mass. 520, 529-530 (2013). Where a claim of self-defense is asserted, a defendant may introduce evidence of specific acts of violence initiated by the alleged victim "only when one or both of the following issues are in dispute: . . . (1) who started the confrontation; or (2) who escalated the confrontation by using or threatening to use deadly force." Commonwealth v. Souza, 492 Mass. 615, 617 (2023). The trial judge has discretion to admit evidence not just of the initial violent act, but of the "entire violent incident" where it is necessary to "give the jury a full picture" of the events at issue. Id. The specific incidents of violence allegedly initiated by the victim need not be known to the defendant. Adjutant, 443 Mass. at 664-665. A defendant who intends to introduce evidence of the victim's specific acts of violence to support a claim that the victim was the first aggressor must provide notice to the court and to the Commonwealth of the specific evidence that will be offered and do so sufficiently prior to trial to permit the Commonwealth to investigate and prepare a rebuttal. The prosecution, in turn, must provide notice to the court and to the defendant of whatever rebuttal evidence the Commonwealth intends to offer at trial. Id. at 665-666; Mass. R. Crim. P. 14(b)(4).
The Adjutant rule does not permit evidence of the victim's participation in athletic activities such as boxing or martial arts on the issue of whether the victim was the first aggressor, although such activities may, if known to the defendant, be relevant to a claim of self-defense based on the defendant's reasonable fear of the victim. Commonwealth v. Amaral, 78 Mass. App. Ct. 557, 559 (2011). If known to the defendant, the specific act evidence goes to the defendant's state of mind, Commonwealth v. Simpson, 434 Mass. 570, 577 (2001); if the defendant was not aware of the violent acts of the victim, the evidence goes merely to the propensity of the victim to attack. Adjutant, 443 Mass. at 661-662. See generally Id. at 665 (courts "favor the admission of concrete and relevant evidence of specific acts over more general evidence of the victim's reputation for violence"). Judicial discretion to admit evidence of specific acts of violence on the question of who was the first aggressor extends to third parties acting in concert with or to assist the victim. Commonwealth v. Lopes, 89 Mass. App. Ct. 560, 564 (2016). Where the identity of either the initial aggressor or the first person to use or threaten deadly force is not in dispute, evidence of the victim's history of violence is not admissible. See Commonwealth v. Connors, 95 Mass. App. Ct. 46, 54-55 (2019) (no error in excluding evidence of victim's reputation for violence or specific violent acts in prison beating case where defendants did not argue that victim was first aggressor).
If the defendant introduces evidence of specific instances of the victim's violent conduct to help establish the identity of the first aggressor, the prosecution may rebut by introducing evidence of the victim's propensity for peacefulness. Adjutant, 443 Mass. at 666 n.19. See Commonwealth v. Lapointe, 402 Mass. 321, 325 (1988). The Commonwealth is also permitted to rebut such evidence by introducing specific instances of the defendant's prior violent acts. Commonwealth v. Morales, 464 Mass. 302, 310-311 (2013). In such cases, as in traditional Adjutant -type cases, the judge must exercise discretion and determine whether the probative value of the proposed testimony about who was the first to use deadly force is substantially outweighed by its prejudicial effect. Commonwealth v. Chambers, 465 Mass. 520, 531 (2013).
Although a trial judge's misunderstanding about the scope of discretion to permit Adjutant -type evidence is an error of law, a showing of prejudice is nevertheless required to warrant reversal. Souza, 492 Mass. at 626 n.6.
If evidence is admitted under this subsection, the trial judge must give a specific limiting instruction that identifies the permissible use (first aggressor, first to use deadly force, or both) of the evidence. Id. at 632-633, 639 (Appendix).
Cross-Reference: Section 412, Sexual Behavior or Sexual Reputation (Rape-Shield Law).
Subsection (a)(2)(C). This subsection is derived from Commonwealth v. Sok, 439 Mass. 428, 434-435 (2003), and Commonwealth v. Fontes, 396 Mass. 733, 735-736 (1986). The evidence may be offered to prove the defendant's state of mind and the reasonableness of actions claimed as self-defense so long as the defendant knew about it prior to the incident in question. See Commonwealth v. Edmonds, 365 Mass. 496, 502 (1974).
Subsection (a)(3). This subsection is derived from Commonwealth v. Daley, 439 Mass. 558, 563 (2003). Cross-Reference: Notes to Sections 607, Who May Impeach a Witness; 608, A Witness's Character for Truthfulness or Untruthfulness; and 609, Impeachment by Evidence of Conviction of Crime.
Subsection (b)(1). This subsection is derived from Commonwealth v. Clifford, 374 Mass. 293, 298 (1978), and Maillet v. ATF-Davidson Co., 407 Mass. 185, 188 (1990). Evidence of a prior bad act may not be admitted to show the defendant has a bad character or a propensity to commit the crime charged. See Commonwealth v. Valentin, 474 Mass. 301, 307-308 (2016) (admission of evidence concerning defendant's ownership of weapons other than weapon used to commit crime was improper because it "portrayed him as someone who was likely to commit murder, the crime which was charged"). "This rule stems from the belief that such evidence forces the defendant to answer accusations not set forth in the indictment, confuses his defense, diverts the attention of the jury, and may create undue prejudice against him." Clifford, 374 Mass. at 298. Even evidence of lawful conduct can be excluded as a prior "bad act." See Commonwealth v. Correia, 492 Mass. 220, 229-230 (2023) (rap lyrics written by defendant referencing violence, possible gang affiliation, and killing enemies with guns should have been analyzed as bad act evidence); Valentin, 474 Mass. at 307-308 (lawful ownership of weapons and ammunition). This rule applies to both civil and criminal cases. Maillet, 407 Mass. at 188 (evidence that plaintiff once before had a beer at work at an unspecified time and date prior to workplace accident).
Subsection (b)(2). This subsection is derived from Commonwealth v. Crayton, 470 Mass. 228 (2014); Commonwealth v. Helfant, 398 Mass. 214, 224-225 (1986); Commonwealth v. Tobin, 392 Mass. 604, 613 (1984), and G. L. c. 233, § 23F.
Comparison to Section 403. Section 404(b)(2) permits the court to exclude evidence of a crime, wrong, or other act that is offered for a proper purpose (e.g., to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident) if the risk of unfair prejudice simply outweighs the probative value of the evidence. This is a more exacting standard than the standard set forth in Section 403, Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons, which permits the court to exclude relevant evidence if the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence substantially outweighs the probative value. This difference is due to the "inherent prejudice" associated with evidence of other bad acts; even when such evidence is relevant for a proper purpose other than propensity, the evidence should be excluded whenever "the risk of unfair prejudice outweighs its probative value." Crayton, 470 Mass. at 249 & n.27. See Commonwealth v. Woollam, 478 Mass. 493, 500-501 (2017) (where offered to establish motive in prosecution for first-degree murder, "testimony regarding the changes in the defendant once he began using drugs," including the statement that defendant had become "a little more violent," was "more prejudicial than probative").
Admissibility. Evidence of prior crimes or other bad acts is not admissible unless, as a matter of conditional relevance-see Section 104(b), Preliminary Questions: Relevance That Depends on a Fact-the judge is satisfied that a reasonable jury could find that the event took place. Commonwealth v. Leonard, 428 Mass. 782, 785-786 (1999). Counsel proffering bad act evidence should articulate its precise nonpropensity purpose. It then falls upon the judge to articulate the precise manner in which the bad act evidence is relevant, material, and admissible for the specific nonpropensity purpose argued by the proponent of the evidence. Commonwealth v. Samia, 492 Mass. 135, 149 n.8 (2023). The judge should place on the record the weighing of the probative value and prejudicial effect of the evidence when a prior bad act objection is raised. Commonwealth v. Proia, 92 Mass. App. Ct. 824, 828 n.7 (2018). "The best practice is for the judge to consider and articulate on the record the risk that the jury will ignore the limiting instruction and make the prohibited character inference and use the evidence for an inadmissible purpose, such as propensity" (quotations and citations omitted). Samia, 492 Mass. at 148 n.8. Once the judge articulates these considerations on the record, it is then within the judge's discretion to determine whether the probative value of the bad act evidence is outweighed by the risk of prejudicial effect on the defendant, taking into account the effectiveness of a proper limiting instruction. Id. ; Commonwealth v. Gibson, 489 Mass. 37, 46 (2022).
"[T]hat prior bad act evidence may be disputed does not render it inadmissible." Commonwealth v. Teixeira, 486 Mass. 617, 629 (2021) (lack of support, other than testimony of victim's brother, "[did] not make the evidence demonstrably untrue," and it was unnecessary to conduct voir dire of prior bad act witness when sole issue was bad act witness's credibility). It is not a foundational requirement for the admissibility of other bad act evidence under Section 404(b) that the Commonwealth show either that the evidence is necessary or that there is no alternative way to prove its case. Commonwealth v. Copney, 468 Mass. 405, 411-413 (2014).
The evidence must be probative of a fact at issue and not be too remote in time. Commonwealth v. Butler, 445 Mass. 568, 574 (2005); Commonwealth v. Trapp, 396 Mass. 202, 206-207 (1985). However, evidence of an act that would ordinarily be too remote in time may be admissible to give context to later events. See Commonwealth v. Peno, 485 Mass. 378, 389 (2020) (evidence of defendant's drug and alcohol use while pregnant, resulting in involvement of Department of Children and Families and restrictions on her conduct, admissible to explain feelings of resentment toward two-year-old victim of fatal beating). The same standards govern the admission of subsequent bad acts. Commonwealth v. Centeno, 87 Mass. App. Ct. 564, 566-567 (2015). See also Commonwealth v. Crayton, 470 Mass. 228, 248-252 (2014) (in prosecution for possession of child pornography on library computer, abuse of discretion to admit hand-drawn, pornographic sketches of children found in defendant's jail cell ten months after charged event, where primary factual issue was identity of person who used the library computer to view child pornography). "For evidence to be sufficiently probative, "there must be a 'logical relationship' between the prior bad act and the crime charged." Commonwealth v. West, 487 Mass. 794, 805-807 (2021) (judge properly admitted evidence of defendant's prior acts of vandalism and Internet searches because it "tended to negate the defendant's contention that the sexual intercourse was consensual and that the victim's death was accidental"). See Teixeira, 486 Mass. at 628 (shots fired at victim's brother's vehicle, in which victim was passenger, relevant as to motive, including prior animus between defendant and victim's brother); Commonwealth v. Mason, 485 Mass. 520, 531-532 (2020) (testimony of prosecutor and civil attorney from prior proceedings between defendant and victim admissible to show pattern of escalating hostility toward victim); Commonwealth v. Hayes, 102 Mass. App. Ct. 455, 465-466 (2023) (evidence of Backpage.com advertisement recruiting "female companions" and including defendant's cell phone number placed six months before charged conduct relevant to show defendant engaged in human trafficking scheme, together with other relevant evidence). Thus, the prosecution may not offer proof of the defendant's other burglaries to paint the defendant as a "burglar" or criminal type; but if the modus operandi of a prior burglary functions as an identifying feature because it is so distinctive as to be like a signature, it may be admitted to connect the defendant to a burglary that shares the same modus operandi. Commonwealth v. Jackson, 428 Mass. 455, 459-460 (1998). See Dahms v. Cognex Corp., 455 Mass. 190, 201 (2009) (trial judge did not err when, after careful consideration, he admitted evidence of female employee's clothing, speech, and conduct-which was admissible in context of sexually hostile work environment to show she was not substantially offended by employer-not barred as irrelevant character and propensity evidence). Prior bad acts against someone other than the victim may be admissible if connected in time, place, or other relevant circumstances. Commonwealth v. Robertson, 88 Mass. App. Ct. 52, 55 (2015). See, e.g., Commonwealth v. Ubeda, 99 Mass. App. Ct. 587, 592-593 (2021) (testimony that defendant used similar tactics to commit similar acts on witness, who was not victim in this case, was properly introduced to show pattern of conduct and was not too remote in time).
Evidence of a prior bad act for which the defendant was prosecuted and acquitted is barred by the collateral estoppel principles of Article 12 of the Massachusetts Declaration of Rights. See Commonwealth v. Dorazio, 472 Mass. 535, 547-548 (2015). But see Commonwealth v. Adams, 485 Mass. 663, 676 (2020) (when one of three defendants was acquitted on charges of oral rape but jury deadlocked on charges of anal and vaginal rape as joint venturer, it was not error to allow victim to testify at retrial that "at least" two men had orally raped her).
The corroboration requirement of G. L. c. 277, § 63 (Limitation of Criminal Prosecutions), is not satisfied without independent corroborating evidence of the "specific criminal act at issue" and cannot be satisfied only with evidence of uncharged sexual misconduct. Commonwealth v. White, 475 Mass. 724, 736-738 (2016).
Limiting Instructions. "[A]ll cases where prior bad acts are offered invite consideration of the potency of this type of evidence, the risk that it may be misused, and the importance, in jury trials, of delivering careful limiting instructions." Commonwealth v. Gollman, 51 Mass. App. Ct. 839, 845 (2001), rev'd on other grounds, 436 Mass. 111, 113-115 (2002) (extensive discussion of admissibility of defendant's prior bad acts). See Commonwealth v. Roe, 90 Mass. App. Ct. 801, 807 (2016) (conviction reversed where witness testified to prior bad act ruled inadmissible in earlier motion in limine and judge failed to give full and prompt curative instruction). See generally Peter W. Agnes, Jr., Guided Discretion in Massachusetts Evidence Law: Standards for the Admissibility of Prior Bad Acts Against the Defendant, 13 Suffolk J. Trial & App. Advoc. 1 (2008). The judge should instruct the jury that they may consider the evidence "only for [the] narrow nonpropensity purpose" articulated by the proponent, Commonwealth v. Samia, 492 Mass. 135, 148 n.8 (2023), rather than list "every possible permissible purpose" of bad act evidence, Commonwealth v. Fernandes, 492 Mass. 469, 489 (2023). The Supreme Judicial Court has strongly suggested that limiting instructions should be given both contemporaneously and during the final charge. Commonwealth v. Facella, 478 Mass. 393, 402 (2017).
Cross-Reference: Section 105, Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes; Section 403, Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons; Section 405, Methods of Proving Character; Section 406, Routine Practice of a Business; Habit of an Individual; Section 611(b)(2), Mode and Order of Examining Witnesses and Presenting Evidence: Scope of Cross-Examination: Bias and Prejudice.
Illustrations.
- Criminal Activity. See Commonwealth v. Brown, 477 Mass. 805, 819-820 (2017) (evidence of uncharged armed robbery occurring earlier in day introduced to prove coventurer's intent to participate in subsequent armed robbery later that evening); Commonwealth v. Mazariego, 474 Mass. 42, 56 (2016) (history of bringing prostitutes to location relevant to show intent, similarity in location of past encounters, absence of mistake, and level of involvement in planning crime); Commonwealth v. Robidoux, 450 Mass. 144, 158 (2007) (evidence of prior starvation of child properly admitted to present full picture of events surrounding incident at issue); Commonwealth v. Walker, 442 Mass. 185, 201-203 (2004) (evidence tending to show that defendant previously engaged in similar, uncharged, criminal behavior admissible to show plan, common scheme, or course of conduct); Commonwealth v. Source One Assocs., Inc., 436 Mass. 118, 128-129 (2002) (trial judge properly allowed evidence of telephone calls similar to ones at issue at trial for purposes of showing that defendants were familiar with using ruses and false pretenses to obtain personal financial information); Commonwealth v. Leonard, 428 Mass. 782, 785, 787-788 (1999) (evidence of uncharged prior arson properly admitted in murder prosecution to show identity/modus operandi); Commonwealth v. Cordle, 404 Mass. 733, 736, 743-744 (1989) (evidence of prior break-in for which defendant was arrested and charged but never prosecuted properly admitted to show entire relationship between victim and defendant, state of mind, identification, knowledge, and motive).
- Defense of Entrapment. For cases involving the defense of entrapment, compare Commonwealth v. Buswell, 468 Mass. 92, 104-105 (2014) (admissibility of prior bad acts when defense is entrapment), with Commonwealth v. Denton, 477 Mass. 248, 252 (2017) (risk of prejudice may require exclusion if prior bad acts are too remote in time).
- Domestic Violence. See Commonwealth v. Da Lin Huang, 489 Mass. 162, 173-174 (2022) (evidence of domestic dispute at defendant's apartment before killing, including physical contact, was relevant to show volatile nature of defendant's relationship with victim and defendant's intent); Commonwealth v. Rintala, 488 Mass. 421, 446-447 (2021) (evidence of defendant's prior arrest for assault and battery of victim, defendant's and victim's restraining orders against each other, and pending divorce proceedings admissible in homicide prosecution to show motive and hostile relationship); Commonwealth v. Almeida, 479 Mass. 562, 567-569 (2018) (evidence of defendant's previous threat to stab his girlfriend to death admissible to show parties' violent relationship);
Commonwealth v. Oberle, 476 Mass. 539, 550-552 (2017) (allowing previous domestic violence incident by defendant against victim to be admitted in prosecution for subsequent domestic violence to show nature of relationship between the two, and to show intent, motive, and absence of mistake or accident); Commonwealth v. Miller, 475 Mass. 212, 229-230 (2016) (evidence of domestic violence committed by defendant against his girlfriend, which led to confrontation between defendant and murder victim, properly admitted to show "contentious nature" of relationship between defendant and victim, which provided motive for killing).
- Drug Use. See Commonwealth v. Bryant, 482 Mass. 731, 734-739 (2019) (evidence of drug distribution before and after shooting admissible as evidence of motive); Commonwealth v. O'Laughlin, 446 Mass. 188, 208-209 (2006) (evidence that defendant smoked crack cocaine and sought to obtain additional cocaine on night of incident relevant to prove motive to rob to get more drugs); Commonwealth v. Mendes, 441 Mass. 459, 466 (2004) (defendant's history of spending his wife's money on drugs and prostitutes and prior arguments over financial issues properly admitted to prove financial motive for wife's murder). But see Commonwealth v. Samia, 492 Mass. 135, 154-155 (2023) (evidence that defendant's relationship with former girlfriend "began with drugs" improperly admitted where it had "no clear connection" to defendant's drug business or victim's disappearance).
- Gang Affiliation. See Commonwealth v. Fernandes, 492 Mass. 469, 486 (2023) (evidence of gang affiliation is admissible to show motive for murder and state of mind or to establish joint venture liability, particularly where defendant denies that he participated in crime with the requisite intent); Commonwealth v. Chalue, 486 Mass. 847, 866-869 (2021) (evidence of Aryan Brotherhood membership admissible to explain why witness who cooperated in burying bodies did not initially go to police or tell anyone, as well as to enhance witnesses' credibility as defendant's confidants); Commonwealth v. Bannister, 94 Mass. App. Ct. 815, 821-822 (2019) (no error in admitting expert testimony that defendant and murder victim were members of rival gangs and lay testimony that defendant and victim had twice engaged in fist fights during incarceration). But see Commonwealth v. Carter, 488 Mass. 191, 206-208 (2021) (probative value of gang evidence outweighed by prejudicial unfairness where no evidence established that rival gang existed or that there were ongoing hostilities). Where gang evidence is admitted, the judge must carefully cabin evidence with limiting instructions, voir dire, and exclusion of any references to prior acts of gang-related violence. Commonwealth v. Wardsworth, 482 Mass. 454, 472 (2019).
- Grooming Evidence. See Commonwealth v. McDonagh, 480 Mass. 131, 135 n.6 (2018) (evidence of grooming, e.g., exposing a child to child pornography to reduce the child's inhibitions for sexual activity with defendant, may be admissible if relevant for nonpropensity purposes).
- Incarceration. See Commonwealth v. Rakes, 478 Mass. 22, 42-44 (2017) (evidence of defendant's prior incarceration, including certificate of parole, VAX transportation sheet, and booking sheet page with attached photographs, along with his statement that he "wasn't about to do any more time," admissible to prove defendant's identity and motive to kill victim).
- Motive. See Commonwealth v. Samia, 492 Mass. 135, 149 (2023) (testimony about defendant's subsequent arrest for activity related to drug distribution admissible to show continuing enterprise that served as motive for killing); Commonwealth v. MacCormack, 491 Mass. 848, 864 (2023) (in trial for murder of spouse, evidence that defendant "sought out an extramarital relationship" hours before murder was admissible for limited purpose of evaluating whether defendant entertained feelings of hostility toward spouse only after defendant had made repeated statements of "how happy the marriage was");
Commonwealth v. Gonsalves, 488 Mass. 827, 835-837 (2022) (evidence that defendant sold small amounts of marijuana relevant to show concern that victim was competing dealer as possible motive for murder); Commonwealth v. Welch, 487 Mass. 425, 443 (2021) (testimony concerning defendant's OUI charge, including victim's unwillingness to post bail, admissible to show deterioration of relationship, which provided motive for killing; evidence of text messages concerning work-related dispute and altercation that defendant blamed on victim also relevant to prove motive); Commonwealth v. Peno, 485 Mass. 378, 387-396 (2020) (evidence of defendant's prior interactions with her child relevant to her motive for fatal beating); Commonwealth v. Watt, 484 Mass. 742, 748 (2020) (evidence of prior shooting eleven days earlier properly admitted to show retaliatory motive for shooting; no danger that jury would improperly use earlier shooting as propensity or bad act evidence because neither defendant was alleged to have been shooter at earlier shooting); Rabinowitz v. Schenkman, 103 Mass. App. Ct. 538, 542 (2023) (evidence of wife's hatchet attack against husband and minor child relevant to wife's motive to undo separation agreement and constituted breach of covenant of good faith and fair dealing); Commonwealth v. Conley, 103 Mass. App. Ct. 496, 504-505 (2023) (evidence of prior act of contaminating daughter's nutrition tube admissible to show motive and intent to kill in prosecution for poisoning daughter's cecostomy tube when defendant had recanted confession and claimed no intent to harm).
- Police Investigations. See Commonwealth v. Samia, 492 Mass. 135, 149 (2023) (testimony about investigation and arrest of defendant for drug distribution relevant to show how police connected defendant to murder victim's disappearance); Commonwealth v. Mullane, 445 Mass. 702, 708-710 (2006) (evidence of prior investigation into prostitution at commercial property properly admitted to prove property owner's knowledge of illicit sexual activity occurring at property).
- Prior Sexual Offenses. See Commonwealth v. Childs, 94 Mass. App. Ct. 67, 71-75, 78-79 (2018) (evidence of uncharged conduct was properly admitted to show that relationship between defendant and victim "was one of continuous sexual abuse" and to rebut any claim of accident or mistake where judge excluded "two most damaging incidents of uncharged conduct," uncharged conduct did not overwhelm the evidence of charged conduct, and judge "forcefully limited" jury's use of uncharged conduct through limiting instructions "before the victim's testimony about the uncharged conduct, again after that testimony, and yet a third time in the final charge").
- Racial Animus. See Commonwealth v. Cruzado, 480 Mass. 275, 278-279 (2018) (defendant's use of racial slur in reference to murder victim properly admitted to show animus toward African-Americans and therefore motive for killing). But see Commonwealth v. Bishop, 461 Mass. 586, 596-597 (2012) ("before a judge admits evidence that a defendant used this word to describe a man of color, the judge must be convinced that the probative weight of such evidence justifies this risk").
- Rap Lyrics. For rap lyrics discussing violence, crime, gang activity, or negative attitudes toward the police to be admissible, the judge must engage in an individualized approach and determine that the lyrics have a "strong nexus"-which may be direct or indirect-to the issues in the case. Commonwealth v. Correia, 492 Mass. 220, 231 (2023).
- Statements About Other Acts. See Commonwealth v. Sullivan, 436 Mass. 799, 809 (2002) (evidence that defendant stated that he liked to rob jewelry stores properly admitted to prove intent to commit robbery in felony-murder prosecution); Commonwealth v. Bradshaw, 86 Mass. App. Ct. 74, 76 (2014) (in prosecution for rape of child, defendant's statement that he was attracted to young boys admissible for limited purpose of revealing his motive or intent).
- Victim's Pattern of Misconduct. When prior bad act evidence is offered by a defendant to show a victim's pattern of conduct, it is the defendant's burden, as the proponent of the evidence, to establish by a preponderance of the evidence (1) that the act occurred, (2) that the prior bad act evidence pertains to some relevant issue at trial, and (3) that the prior event and the circumstances of the crime charged had a uniqueness or particularly distinguishing pattern of conduct common to the current and former incidents. Commonwealth v. Ronchi, 491 Mass. 284, 299 (2023) (victim's statements to former boyfriend joking about paternity of her older child inadmissible propensity evidence; oral declaration of infidelity not a basis for reasonable provocation in murder indictment).
- Violent Interests or Conduct. See Commonwealth v. Veiovis, 477 Mass. 472, 482-486 (2017) (where evidence showed that unidentified perpetrator "enjoyed cutting the victims up," amputation drawings from defendant's home admissible to show identity, state of mind, and motive; drawings were not modus operandi evidence); Commonwealth v. Forte, 469 Mass. 469, 480 (2014) (instances of aggressive conduct in hours preceding murder to illustrate angry state of mind).
- Weapons Evidence. Weapons evidence does not always raise Section 404(b) issues because possession and use of weapons can be lawful and therefore would not constitute a prior bad act. See Commonwealth v. Valentin, 474 Mass. 301, 307 (2016) (evidence of defendant's lawful ownership of other firearms, ammunition, and buck knife was not relevant to jury's determination of whether shootings at issue were committed with extreme atrocity or cruelty and should not have been admitted). Introduction of evidence that a defendant possessed a weapon prior to the charged crime creates a risk the jury will infer bad character or a propensity to commit the crime charged. See Commonwealth v. McGee, 467 Mass. 141, 156 (2014). Often, however, even lawful possession of firearms, or lawful firearms practices, can raise Section 404(b) concerns. See Commonwealth v. Tassinari, 466 Mass. 340, 352-354 (2013) (evidence of defendant's lawful possession of numerous firearms and of his training and certification as firearms instructor admissible to show his carrying and storage practices and was relevant to Commonwealth's theory of premeditation, particularly whether defendant deliberately chose the two guns from his collection of firearms that he used to shoot victim, and to show access to and familiarity with each). Familiarity and skill with firearms may be probative of deliberate premeditation. Commonwealth v. Yat Fung Ng, 491 Mass. 247, 265 (2023) (where victim died of single gunshot to his forehead, evidence of defendant's qualification as sharpshooter with nine-millimeter handgun admissible). The evidence should be excluded if its probative value is outweighed by the danger of unfair prejudice to the defendant. See McGee, 467 Mass. at 157-158; Commonwealth v. Barbosa, 463 Mass. 116, 122-123 (2012).
Generally, evidence that the defendant possessed a weapon that could have been used to commit the charged crime is admissible, but evidence of a weapon that could not have been used in the charged crime is not admissible. Weapons evidence may also be admissible to rebut claims made by the defendant at trial or to show motive or state of mind.
Weapon Could Have Been Used in the Crime. Evidence that the defendant possessed a weapon that could have been used to commit the crime is admissible to show that the defendant had the means to commit the crime. See, e.g., Commonwealth v. Fernandes, 492 Mass. 469, 484 (2023) (gun recovered approximately eight months after murder admissible if shown to be one possible model of gun that "could have been used in the course of a crime"); Commonwealth v. Brown, 477 Mass. 805, 820 (2017) (photographs taken a few weeks prior to crime showing defendant brandishing firearm used in commission of crime admissible); Barbosa, 463 Mass. at 122 (evidence of weapon that could have been used in the crime admissible in judge's discretion); Commonwealth v. Ashman, 430 Mass. 736, 744 (2000); Commonwealth v. Toro, 395 Mass. 354, 356 (1985). The evidence need not establish that the defendant in fact used the weapon in the crime. See Commonwealth v. Vazquez, 478 Mass. 443, 449 (2017) (no abuse of discretion to admit evidence of prior possession of firearm absent definitive forensic evidence that it could not have been used in commission of the crime); Barbosa, 463 Mass. at 122. The evidence need not establish that the defendant possessed the weapon at the time the crime was committed. See Commonwealth v. Henley, 488 Mass. 95, 124-125 (2021) (evidence that defendant was present at an earlier shooting involving same weapon used to kill victim in murder case properly admitted to show defendant potentially had access to that firearm, even if he did not actually possess it at time of earlier shooting); Commonwealth v. Corliss, 470 Mass. 443, 450-451 (2015) (sixteen months before murder); Commonwealth v. McLaughlin, 352 Mass. 218, 229-230 (1967) (approximately one year after murder). See also Commonwealth v. DeJesus, 489 Mass. 292, 298-299 (2022) (video showing defendant holding and posturing with firearm admissible to show defendant had control of firearm); Commonwealth v. Holley, 478 Mass. 508, 532-534 (2017) (evidence of prior gun theft was relevant to show that defendant had means of committing the crime; risk that jury would use evidence to conclude that defendant "had a propensity to commit this particular crime was low" where type of crime charged in underlying matter was different).
Weapon Could Not Have Been Used in the Crime. In general, evidence of a weapon that could not have been used in the crime should not be admitted. See Commonwealth v. Carter, 488 Mass. 191, 205-206 (2021) (error to admit evidence of defendant's prior arrest for possession of firearm that was seized by police at that time and thus could not have been used in later murder even though it was of same caliber); Commonwealth v. Chalue, 486 Mass. 847, 872-873 (2021) (error to introduce photographs of spiked baseball bat and hatchet because they could not have been used to commit the crimes); Commonwealth v. Collazo, 481 Mass. 498, 501-502 (2019) (error to admit evidence that defendant owned second firearm absent evidence connecting second firearm to the crime); Barbosa, 463 Mass. at 122-123 (evidence of firearm that could not have been used in the crime should not have been admitted). However, evidence of a firearm not connected to the crime may be admissible for the limited purpose of demonstrating that the defendant had access to, and knowledge of, firearms. Commonwealth v. Gibson, 489 Mass. 37, 45-47 (2022) (no abuse of discretion to admit defendant's statements that he possessed firearms in days prior to shooting, as they were relevant to show his familiarity with and access to firearms and to impeach his previous denials); Commonwealth v. Pierre, 486 Mass. 418, 424 (2020); Commonwealth v. McGee, 467 Mass. 141, 156 (2014) (firearm that could not have been used to shoot victim, but was offered to establish that defendant was familiar with firearms, admissible only if accompanied by limiting instruction that it could not be taken as propensity evidence).
Limiting Instructions When Weapons Evidence Is Admitted. Where there is evidence that the defendant possessed a weapon that could have been used in the commission of the crime, a limiting instruction is not required. Holley, 478 Mass. at 533 n.25. In contrast, where a weapon could not have been used in the commission of the crime, a limiting instruction to the jury as to the proper use of the evidence is "often" required. Id.
Other Permissible Uses. Weapons evidence may be admissible to rebut the defendant's claims at trial. See Commonwealth v. Howard, 479 Mass. 52, 66-67 (2018) (testimony that defendant had gun in vehicle before victim was hired admissible to rebut defendant's claim that he had brought gun to work due to fear of victim). It may also be admissible to show motive or state of mind. See Commonwealth v. Don, 483 Mass. 697, 713-714 (2019) (defendant's attempt to purchase firearm properly admitted to show motive for waiting to carry out shooting until weapon was acquired); Commonwealth v. Rutherford, 476 Mass. 639, 649 (2017) (uncharged conduct involving possession of weapons permissible to show defendant's state of mind; prejudicial impact limited by prompt and thorough limiting instruction).