Earlier this week, the Massachusetts Supreme Judicial Court (SJC), in Commonwealth v. Dorazio, SJC-11765 (Sep. 2, 2015), reversed Herbert Dorazio’s convictions for rape of a child and of assault with intent to rape a second child. The Court reversed the convictions because, during trial, the Commonwealth put on testimony that the defendant had assaulted a third child. The problem? Twelve years ago, Dorazio had been charged for that alleged assault and found not guilty. The Commonwealth argued that his acquittal did not matter, and that it could still try to persuade the jury that Dorazio committed that assault. The SJC disagreed. In Dorazio, the Court held that under the “doctrine of collateral estoppel,” the Commonwealth cannot introduce “acquittal evidence” (evidence of an alleged wrongdoing for which the defendant had been found not guilty) against the defendant in any subsequent trials.
It is fairly common practice for prosecutors to rely on evidence of “prior bad acts.” Evidence of prior bad acts can’t be used as proof that the defendant committed the crime for which he is on trial. But prior bad act evidence can be admitted for many other reasons, including to prove motive, plan, knowledge, absence of mistake, or lack of accident. A court doesn’t need to find that beyond a reasonable doubt that the defendant committed that prior bad act for the evidence to be admitted, either. Instead, the evidence has to satisfy a lower standard of proof, called “preponderance of the evidence.” Under Dorazio, prior bad acts are still admissible in Massachusetts courts—unless, of course, the defendant was tried and acquitted of having committed those prior bad acts. Defendants can no longer be required to redefend themselves against old charges.
In creating this important protection, the SJC broke away from federal precedent. The Supreme Court, in Dowling v. United States, 493 U.S. 342 (1990), held that the acquittal evidence can be introduced in subsequent trials, without falling afoul of the constitutional right against double jeopardy (which incorporates the collateral estoppel doctrine). The Court reasoned that an acquittal did not necessarily mean that the jury believed the defendant to be innocent. The jury might have acquitted for a variety of reasons. The jury might have believed that the defendant did not commit the alleged act. Alternatively, the jury might have believed the defendant committed the act but that the prosecution did not satisfy its burden of proof as to some other element of the crime. The jury might have nullified, or it might have found the defendant not guilty because of insanity. Or the jury might also have believed that there was evidence of guilt, just not enough to satisfy the high bar of “beyond a reasonable doubt.” The Supreme Court reasoned that the same evidence might satisfy the lesser “preponderance of the evidence” standard that governs evidence of prior bad acts in subsequent cases.
The problem is that we usually don’t know why a jury acquits, and we don’t know for certain if the jury resolved the factual question of whether the defendant committed the alleged act. The question is: where it is ambiguous as to whether a factual issue was resolved with finality in a prior criminal proceeding, in whose favor is the ambiguity to be resolved?
The Supreme Court concluded that the ambiguity should be resolved in favor of the government. In other words, it presumes the jury went no further than to decide that there was not evidence of guilt beyond reasonable doubt. This leaves open the possibility that a different jury, for a different purpose, could look at the same evidence and find by a preponderance of the evidence that he committed the offense. Justice Brennan, who wrote a dissent in Dowling, was troubled by this possibility, particularly because prior bad act evidence always carries the risk that a jury will convict someone on the basis of that prior bad act. He believed that the ambiguity should be resolved in favor of the defendant—in other words, that acquittal evidence should not be admissible against the defendant.
The SJC found Justice Brennan’s dissent persuasive, and more in keeping with Massachusetts law. Although Massachusetts’ Constitution does not have a double jeopardy clause, the SJC has consistently held that collateral estoppel serves a similar purpose. Collateral estoppel means that once a court makes a final ruling on a fact, it is final; a party cannot try to get a different answer in another case. The SJC, relying heavily on Justice Brennan’s excellent dissent, decided that collateral estoppel means that acquittal should be considered a final ruling on the question of whether the defendant committed the offense. Prosecutors cannot be allowed to bring it back up in some future case, and defendants cannot be made to redefend themselves, sometimes many years later, after they have been found not guilty. Dorazio offers an important protection to criminal defendants in Massachusetts, and puts some teeth behind a fundamental tenet of our justice system: the presumption of innocence until guilt is proven.