Section 1110. Consciousness of Guilt or Liability
(a) Criminal Cases. In a criminal case, the Commonwealth may offer evidence of a defendant’s conduct that occurred subsequent to the commission of the crime if
(1) the evidence reflects a state of consciousness of guilt;
(2) the evidence supports the inference that the defendant committed the act charged;
(3) the evidence is, with other evidence, together with reasonable inferences, sufficient to prove guilt; and
(4) the inflammatory nature of the conduct does not substantially outweigh its probative value.
Evidence of consciousness of guilt alone is not sufficient to support a verdict or finding of guilt. The judge should instruct the jury accordingly.
(b) Civil Cases. Subject to Sections 407411, in a civil case, a party may offer evidence of another partys conduct that occurred subsequent to the commission of the alleged act or acts that give rise to the cause of action if the evidence
(1) reflects a state of consciousness of liability of that party;
(2) supports the inference that the party against whom the evidence is offered is liable; and
(3) is, with other evidence, together with reasonable inferences, sufficient to prove liability.
Evidence of consciousness of liability alone cannot sustain the burden to establish liability. The judge should instruct the jury accordingly.
(c) Rebuttal. The party against whom the evidence is offered has the right to offer evidence explaining the reason or reasons for the conduct to negate any adverse inference.
NOTE
Subsection (a). This subsection is derived from Commonwealth v. Vick, 454 Mass. 418, 423, 910 N.E.2d 339, 347 (2009), and Commonwealth v. Toney, 385 Mass. 575, 584585 & n.4, 433 N.E.2d 425, 431432 & n.4 (1982). Where self-defense is an issue and the defendant objects to an instruction on consciousness of guilt, the trial judge should first consider whether to instruct on flight as evidence of consciousness of guilt. If the instruction is given, the judge should focus first on possible innocent reasons for flight, and that the conduct does not necessarily reflect feelings of guilt, but may be consistent with self-defense. Commonwealth v. Morris, 465 Mass. 733, 738–739, 991 N.E.2d 1081, 1084–1085 (2013). The Commonwealth may properly argue consciousness of guilt even if a jury instruction is not requested or not given. Commonwealth v. Franklin, 465 Mass. 895, 915, 992 N.E.2d 319, 335 (2013). Compare Section 1111, Missing Witness.
Illustrations. The following conduct may be offered as evidence of consciousness of guilt:
– flight itself, regardless of whether the police were actively searching for the defendant, Commonwealth v. Figueroa, 451 Mass. 566, 579, 887 N.E.2d 1040, 1050 (2008);
– flight after discovery by the party that he or she was about to be arrested or charged with an offense, Commonwealth v. Jackson, 391 Mass. 749, 758, 464 N.E.2d 946, 952 (1984);
– flight from a defendant’s “usual environs,” Commonwealth v. Siny Van Tran, 460 Mass. 535, 553, 953 N.E.2d 139, 157 (2011);
– an intentionally false statement made before or after arrest, Commonwealth v. Lavalley, 410 Mass. 641, 649–650, 574 N.E.2d 1000, 1006 (1991);
– use of a false name to conceal his or her identity, Commonwealth v. Vick, 454 Mass. 418, 424, 910 N.E.2d 339, 347 (2009); Commonwealth v. Carrion, 407 Mass. 263, 276, 552 N.E.2d 558, 566 (1990);
– intentional attempts to intimidate, coerce, threaten, or bribe a witness, Commonwealth v. Vick, 454 Mass. at 423, 910 N.E.2d at 347; Commonwealth v. Toney, 385 Mass. 575, 584 n.4, 433 N.E.2d 425, 431 n.4 (1982);
– alteration of a defendant’s appearance after a crime to conceal physical characteristics, Commonwealth v. Carrion, 407 Mass. at 277, 552 N.E.2d at 567; or
– an intentional attempt to conceal, destroy, or falsify evidence, Commonwealth v. Stuckich, 450 Mass. 449, 453, 879 N.E.2d 105, 110 (2008).
The following conduct should not be admitted as evidence of consciousness of guilt:
– flight, where the issue is misidentification and there is no dispute that the person who fled the scene committed the offense, Commonwealth v. Pina, 430 Mass. 266, 272–273, 717 N.E.2d 1005, 1011 (1999);
– evidence that the defendant lied during trial testimony, Commonwealth v. Edgerly, 390 Mass. 103, 110, 453 N.E.2d 1211, 1216 (1983) (disfavoring such evidence; “[c]omment to a jury on the consequences of a criminal defendant’s lying in the course of his testimony must be made with care, and customarily should be avoided because it places undue emphasis on only one aspect of the evidence”);
– a defendant’s failure to appear at trial, except where the Commonwealth can show the defendant had knowledge of the scheduled date, Commonwealth v. Hightower, 400 Mass. 267, 269, 508 N.E.2d 850, 852 (1987); Commonwealth v. Addy, 79 Mass. App. Ct. 835, 841, 950 N.E.2d 883, 889 (2011); cf. Commonwealth v. Muckle, 59 Mass. App. Ct. 631, 639–640, 797 N.E.2d 456, 463–464 (2003) (where defendant is defaulted midtrial, judge should conduct voir dire to determine if Commonwealth can show requisite foundation); or
– the denial or failure to deny guilt during a police interrogation, Commonwealth v. Diaz, 453 Mass. 266, 273–274, 901 N.E.2d 670, 678 (2009); Commonwealth v. Haas, 373 Mass. 545, 558–562, 369 N.E.2d 692, 702–703 (1977).
In a charge of murder, consciousness of guilt is rarely relevant to the issue of premeditation, Commonwealth v. Dagenais, 437 Mass. 832, 843844, 776 N.E.2d 1010, 1019 (2002), and it should not be used as proof that a homicide was murder rather than manslaughter. See Commonwealth v. Clemente, 452 Mass. 295, 334, 893 N.E.2d 19, 51 (2008); Commonwealth v. Lowe, 391 Mass. 97, 108 n.6, 461 N.E.2d 192, 199 n.6 (1984); Commonwealth v. Niland, 45 Mass. App. Ct. 526, 529, 699 N.E.2d 1236, 1239 (1998).
Jury Instruction on Evidence of Consciousness of Guilt. If evidence of consciousness of guilt is admitted, the court should instruct the jury (1) that they are not to convict the defendant on the basis of the offered evidence alone, and (2) that they may, but need not, consider such evidence as one of the factors tending to prove the guilt of the defendant. Upon request, the jury must be further instructed (1) that the conduct does not necessarily reflect feelings of guilt, since there are numerous reasons why an innocent person might engage in the conduct alleged, and (2) that even if the conduct demonstrates feelings of guilt, it does not necessarily mean that the defendant is guilty in fact, because guilty feelings are sometimes present in innocent people. See Commonwealth v. Toney, 385 Mass. 575, 584585, 433 N.E.2d 425, 431432 (1982); Commonwealth v. Estrada, 25 Mass. App. Ct. 907, 908, 514 N.E.2d 1099, 1100 (1987). See also Commonwealth v. Vick, 454 Mass. 418, 424, 910 N.E.2d 339, 347 (2009).
Evidence of Consciousness of Innocence. Consciousness of innocence is a subject properly left to the give and take of argument, without jury instructions. Commonwealth v. Lam, 420 Mass. 615, 619620, 650 N.E.2d 796, 799 (1995). In some instances, however, such evidence is not admissible. See Commonwealth v. Martinez, 437 Mass. 84, 88, 769 N.E.2d 273, 278 (2002) (offer to submit to polygraph inadmissible).
Cross-Reference: Section 410, Inadmissibility of Pleas, Offers of Pleas, and Related Statements; Section 1102, Spoliation or Destruction of Evidence.
Subsection (b). This subsection is derived from Sheehan v. Goriansky, 317 Mass. 10, 1617, 56 N.E.2d 883, 886 (1944), and City of Boston v. Santosuosso, 307 Mass. 302, 349, 30 N.E.2d 278, 304 (1940). Evidence of consciousness of liability alone cannot sustain the burden to establish liability. Olofson v. Kilgallon, 362 Mass. 803, 806, 291 N.E.2d 600, 602603 (1973); Miles v. Caples, 362 Mass. 107, 114, 284 N.E.2d 231, 236 (1972).
Illustrations. The following conduct may be offered as evidence of consciousness of liability:
– providing false or inconsistent statements, McNamara v. Honeyman, 406 Mass. 43, 54 n.10, 546 N.E.2d 139, 146 n.10 (1989);
– leaving the scene of an accident without identifying himself or herself, Olofson v. Kilgallon, 362 Mass. 803, 806, 291 N.E.2d 600, 602–603 (1973);
– providing a false name or statement to police, Parsons v. Ryan, 340 Mass. 245, 248, 163 N.E.2d 293, 295 (1960);
– providing intentionally false testimony, Sheehan v. Goriansky, 317 Mass. 10, 16–17, 56 N.E.2d 883, 886 (1944);
– transferring property immediately prior to the beginning of litigation, Credit Serv. Corp. v. Barker, 308 Mass. 476, 481, 33 N.E.2d 293, 295 (1941);
– suborning a witness to provide false testimony, bribing a juror, or suppressing evidence, Bennett v. Susser, 191 Mass. 329, 331, 77 N.E. 884, 885 (1906); or
– destroying potential evidence, Gath v. M/A-Com, Inc., 440 Mass. 482, 489–491, 802 N.E.2d 521, 528–529 (2003).
Cross-Reference: Section 407, Subsequent Remedial Measures; Section 408, Compromise and Offers to Compromise in Civil Cases; Section 409, Expressions of Sympathy in Civil Cases; Payment of Medical and Similar Expenses; Section 410, Inadmissibility of Pleas, Offers of Pleas, and Related Statements; Section 411, Insurance; Section 1102, Spoliation or Destruction of Evidence.
Jury Instruction on Evidence of Consciousness of Liability. Upon request, the judge should instruct the jury that they may, but are not required to, draw an inference; that any such inference must be reasonable in light of all the circumstances; that the weight of the evidence is for the jury to decide; that there may be innocent explanations for the conduct; and that the conduct does not necessarily reflect feelings of liability or responsibility. See Commonwealth v. Toney, 385 Mass. 575, 584585, 433 N.E.2d 425, 432 (1982) (it was for jury to decide which explanation for defendants departure from scene was most credible). See also Sheehan v. Goriansky, 317 Mass. 10, 1617, 56 N.E.2d 883, 886 (1944) (whether evidence of defendants conduct indicated consciousness of liability was for jury to decide); Hall v. Shain, 291 Mass. 506, 512, 197 N.E. 437, 440 (1935) (jury to decide whether drivers failure to contact police after accident was because of consciousness of liability).
Subsection (c). This subsection is derived from Commonwealth v. Chase, 26 Mass. App. Ct. 578, 580581, 530 N.E.2d 185, 187188 (1988), and Commonwealth v. Kerrigan, 345 Mass. 508, 513, 188 N.E.2d 484, 487 (1963).
