Commonwealth v. Javier Rosales, Appeals Court No. 22-P-0125 

On appeal from a guilty conviction on an assault and battery of a family or household member, the defendant argued the judge impermissibly allowed the Assistant District Attorney to introduce evidence that had not been disclosed to the defense in a timely fashion. The evidence was of testimony by a police officer that he observed bruises on the victim’s arms. This was not included in any police report narrative or subsequent discovery.

The Appeals Court concluded that the testimony did not prejudice the defendant because defense counsel did not object and adequately cross-examined the officer about having omitted this observation in his police report. This highlights the importance of an experienced trial lawyer knowing when to object to evidence, even though the attorney was competent at raising the issue on cross examination.  Failure to simply object, if it will most likely be in vain, is necessary to preserve the record for an appellate issue if the jury returns a conviction. 

The defendant next argued that the prosecutor made two improper comments in closing argument. The first comment referred to the primary defense as a “distraction.” The second comment referred to the defendant changing his story at trial. The Appeals Court concluded that neither statement was improper.

Attorneys are given broad discretion to characterize evidence in criminal matters, so long as there is a good faith basis for the argument. Closings arguments are just that…arguments. Each side argues the evidence before the jury or judge.  The arguments themselves are not evidence.