Mass. R. Evid. 1107
Mass. Guid. Evid. 1107
Subsection (a). This subsection is derived from Commonwealth v. Bowden, 379 Mass. 472, 486 (1980). Evidence concerning the inadequacy of a police investigation is known as " Bowden evidence," and a defense based on the inadequacy of the investigation is known as a " Bowden defense." A defendant may argue that deficiencies or omissions in the police investigation create a reasonable doubt as to the defendant's guilt. Commonwealth v. Moore, 480 Mass. 799, 808 (2018). Once determined to be relevant, Bowden evidence is admissible unless its probative value is substantially outweighed by its prejudicial effect. Id. at 809 n.9. See Commonwealth v. Mattei, 455 Mass. 840, 857-860 (2010) (judge erred in refusing to permit defendant, a convict on work release, to question police about their failure to investigate criminal records of other employees on duty at time of crime because evidence was "critical to the defendant's core theory of misidentification").
The Bowden defense is a "two-edged sword for the defendant," because the introduction of Bowden evidence permits the Commonwealth in rebuttal to explain why police did not conduct the investigation suggested by the defense, Commonwealth v. Silva-Santiago, 453 Mass. 782, 803 n.25 (2009), and "the more wide-ranging the defendant's attack on the police investigation, the broader the Commonwealth's response may be." Commonwealth v. Avila, 454 Mass. 744, 754-756 & n.12 (2009). See Commonwealth v. Brum, 492 Mass. 581, 601 (2023) (not error to admit otherwise inadmissible inconclusive results of DNA and occult blood tests conducted by police where defendant attacked adequacy of investigation). However, a broad Bowden defense does not render the trial "devoid of evidentiary constraint." Avila, 454 Mass. at 756 n.12. The trial judge must be alert to "the potential that the rebuttal evidence may come close to or cross the line between a permissible account of the police investigators' rationale for pursuing a certain suspect or investigatory direction, and an impermissible expression of opinion of the defendant's guilt or implicit comment on a witness's credibility." Id. Compare Commonwealth v. Wiggins, 477 Mass. 732, 743-744 (2017) (testimony that evidence collected during defendants' booking was removed from police custody by someone who was not a member of law enforcement was properly admitted to show why evidence was not available at trial where defendants "attacked the integrity and adequacy of the investigation throughout the trial"), with Commonwealth v. Trotto, 487 Mass. 708, 725-726, 732 (2021) (hearsay testimony to rebut Bowden defense improperly admitted where testimony introduced "at least one possibly relevant new fact" and could have affected jury's assessment of a witness's credibility but was not relevant to establish adequacy of investigation).
Comparison Between Bowdenand Third-Party Culprit Evidence. The same evidence may be used to support a Bowden defense and a third-party culprit defense, but the defenses are legally and logically distinct. See Moore, 480 Mass. at 806; Silva-Santiago, 453 Mass. at 802-803; Commonwealth v. Sin, 100 Mass. App. Ct. 172, 182-184 (2021). Third-party culprit evidence is used to suggest that "someone else committed the crime." Silva-Santiago, 453 Mass. at 801. Bowden evidence is used to suggest that "the evidence at trial may be inadequate or unreliable because the police failed to conduct the scientific tests or to pursue leads that a reasonable police investigation would have conducted or investigated, and these tests or investigation reasonably may have led to significant evidence of the defendant's guilt or innocence." Id. This information is not hearsay because it is not offered to show the truth of the matter asserted but simply to show that the information was provided to the police. Therefore, it does not have to meet the standard for hearsay evidence regarding a third-party culprit, particularly the requirement of substantial connecting links. Id. at 802-803. See Commonwealth v. Rosa-Roman, 485 Mass. 617, 639-640 (2020) (judge properly refused to permit hearsay to be introduced as part of third-party culprit defense but permitted same statements to be introduced as part of Bowden defense with limiting instruction that statements could not be considered for their truth); Commonwealth v. Reynolds, 429 Mass. 388, 391-392 (1999) (judge should have permitted defendant pursuing Bowden defense to question police detectives about tips received by confidential informants because defendant was not offering "the substance of the informants' tips for the truth of the matter asserted," but rather "the fact that the tips occurred and were not investigated").
Third-party culprit evidence may be admitted regardless of whether the police knew of the third party, whereas Bowden evidence is relevant only if the police had learned of the information during the investigation and failed to reasonably act upon it. Silva-Santiago, 453 Mass. at 802-803. Accordingly, the judge must conduct a voir dire hearing to determine whether the Bowden evidence had been furnished to the police and, if so, whether the probative value of the Bowden evidence is substantially outweighed by the risk of unfair prejudice to the Commonwealth from diverting the jury's attention to collateral matters. Moore, 480 Mass. at 809 n.9.
Unlike third-party culprit evidence, there is no constitutional right to present a Bowden defense, and the exclusion of such evidence is reviewable only as an abuse of discretion. Silva-Santiago, 453 Mass. at 804 n.26.
Cross-Reference: Section 1105, Third-Party Culprit Evidence.
Subsection (b). In closing argument, defense counsel is entitled to argue that the inadequacy of the police investigation creates reasonable doubt of the defendant's guilt, provided that the evidence supports the argument. See Commonwealth v. Alvarez, 480 Mass. 299, 316 (2018); Commonwealth v. Bowden, 379 Mass. 472, 486 (1980). Even though "it might be[ ] preferable for the judge to inform the jurors that the evidence of police omissions could create a reasonable doubt," Commonwealth v. Reid, 29 Mass. App. Ct. 537, 540-541 (1990), a judge is "never required" to give such an instruction. Commonwealth v. Williams, 439 Mass. 678, 687 (2003). Instead, the judge is simply required not to take the issue of the adequacy of the police investigation away from the jury. Commonwealth v. Wilkerson, 486 Mass. 159, 178 (2020).
The standard instruction that a jury should decide the case based solely on the evidence, when given as part of the final instructions and not during the Bowden argument by defense counsel or in response to a question from the jury, does not impermissibly limit the jury's consideration of a Bowden defense. Alvarez, 480 Mass. at 317-318. If no specific Bowden instruction is given, it is "prudent" for the judge to omit from the final instructions the sentence, "You are not to engage in any guesswork about any unanswered questions that remain in your mind." Id. at 318.