SJC RULES THAT PROSECUTION WITNESS MAY SIT AT PROSECUTION’S TABLE DURING TRIAL

In Commonwealth v. Javier (2019), the defendant was tried and convicted of first degree murder, the SJC ruled that the judge did not abuse her discretion in permitting a crucial prosecution witness to sit at the prosecution‟s table throughout the trial. The facts are as follows. The victim “was shot and killed while he was sitting in his parked Dodge Caravan minivan.” “The Commonwealth‟s theory at trial was that the defendant and several friends planned and carried out the shooting in retaliation for a fight in which the victim” injured the defendant. “The shooting and the events immediately  preceding it were video recorded by … surveillance cameras…. The surveillance footage showed the victim‟s Dodge Caravan” arriving and parking at the crime scene. Twenty seconds later, another minivan came into view and stopped across the street from the Dodge Caravan. Four people got out of the second minivan and walked across the street toward the …Dodge Caravan.” In the video footage, the Dodge Caravan then “lurched forward” as “the four individuals ran from the scene.” In response to a 911 call made at that time, the police arrived at the scene and found the victim in the Dodge Caravan; he had been fatally shot.

In preparation for the defendant‟s trial, State police Trooper Ulrich participated in the production of a videotape suggesting that the vehicle in which the four perpetrators arrived at the crime scene could have been the minivan owned by the mother of the defendant‟s girlfriend. Ulrich testified about his role in producing the video and also gave the jury an overview of the rest of the Commonwealth‟s case against the defendant. Although Ulrich was the last prosecution witness to take the stand, the judge had permitted him, over the defendant‟s objection, to sit at the prosecutor‟s table throughout the trial. On appeal, “the defendant contended that the judge should not have allowed Ulrich to” do that, as he was “an important witness for the Commonwealth and summed up essentially all of the Commonwealth‟s other evidence…. Specifically, the defendant noted a concern „that this jury, which ultimately has to pass on what Ulrich says, can develop … a sense of him in the courtroom every day actively assisting, and it changes the dynamic of him as a traditional witness.‟”

In its decision, the SJC stated that “in challenging such a seating arrangement as was permitted here, … „the defendant cannot rest upon a bare allegation that this police officer had a “cloak of credibility” which was accentuated by his presence at counsel table as a sufficient basis to overturn the defendant‟s conviction.‟  The judge here concluded that Trooper Ulrich‟s assistance was essential to the management of the case…. The judge also attempted to combat any perceived „cloak of credibility‟ by asking potential jurors during voir dire whether they would credit the testimony of police witnesses more than the testimony of civilians simply because they were police officers. In light of this, we
cannot say that the judge abused her discretion in allowing Ulrich to be seated at the prosecution table.” The Court “emphasized, however, that the Commonwealth should proceed with caution in selecting a crucial witness to sit at counsel table and to help manage the case, prior to his testimony as the last of the Commonwealth‟s witnesses…. Particularly where the lead prosecutor is assisted by a second chair, the Commonwealth should consider whether that attorney, or another member of the prosecution team who will not be a witness, could assist with case management.”


Here, the SJC certainly got it wrong, and this decision should be appealed.  At a jury trial, no witness should be given more credibility by a juror than any other witness.  Furthermore, no side can claim a witness as their own.   The trooper was as much a defense witness as a prosecution witness, since his role was to present the facts truthfully.  During the trial, credibility(or lack of credibility) of a witness is established through the witnesses testimony in relation to the evidence presented.  In this case, the officer (who has an interest in the outcome of the case) while seated at counsel table was no longer a witness but a part of the prosecution team, giving an unfair boost to his credibility.

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