The judge ruled that:
DNA " notebooks" provided to jurors during the testimony of a forensic DNA analyst from the Maine laboratory could be used by jurors during deliberations. A copy was marked " P" for identification. The defendant objected and moved for a mistrial. During deliberations the jury sent a note asking if they could see items marked for identification or if they would be provided a list of such items. The judge responded by writing, " No. Those items are not exhibits in evidence, but were marked only to keep track of them for the record." The defendant argues that the jury were misled to think these DNA notebooks were evidence, when in fact they were not. This was error, but not prejudicial.
The " notebooks" essentially were summaries used during the testimony of the witness that compared DNA profiles of approximately twenty individuals considered in the investigation, including the victim's husband, the man first arrested, and the defendant, with the DNA profile obtained from saliva on the victim's left breast and brassiere. The notebooks permitted the jury to follow the complex and somewhat lengthy testimony and visually comprehend its import, during which the forensic DNA analyst explained why she was able to exclude all donors except the defendant, and why the DNA evidence pointed convincingly to the defendant. The notebooks mirrored the witness's testimony, and summarized it visually as an aid to its understanding. As such, they were a useful nonprejudicial [5] aid to jurors. See Commonwealth v. Walter, 10 Mass.App.Ct. 255, 264, 406 N.E.2d 1304 (1980); Commonwealth v. Boyden, 9 Mass.App.Ct. 857, 400 N.E.2d 1312 (1980).
There is no suggestion that the notebooks failed to reflect accurately the witness's testimony. We are satisfied that the jury's use of the notebooks did not expose them to extrinsic material outside the record so as to raise a serious question of possible prejudice. Commonwealth v. Jackson, 376 Mass. 790, 800, 383 N.E.2d 835 (1978). The judge would have acted within her discretion had she admitted the " notebooks" in evidence. See Commonwealth v. Greenberg, 339 Mass. 557, 581-582, 160 N.E.2d 181 (1959); Welch v. Keene Corp., 31 Mass.App.Ct. 157, 165-166, 575 N.E.2d 766 (1991); Mass. G. Evid. ยง 1006 (Summaries) (2008-2009).
Related Articles
Commonwealth v. Carnes, 933 N.E.2d 598, 457 Mass. 812 (2010)
Summaries of testimony are admissible, provided that the underlying records have been admitted in evidence and that the summaries accurately reflect the records. See Commonwealth v. Guy, 454 Mass. 440, 446 n. 5, 910 N.E.2d 358 (2009); Welch v. Keene ...
Commonwealth v. Greenberg, 160 N.E.2d 181, 339 Mass. 557 (1959)
As to several witnesses called by the Commonwealth the district attorney sought to refresh their recollection by showing them written statements purporting to have been made by them. There was no error in the denial of requests by the defendants that ...
Commonwealth v. Place, 961 N.E.2d 597, 81 Mass.App.Ct. 229 (2012)
“At trial, the prosecution introduced a photograph of Tina from the time when the rape occurred. This was not error, as demonstrative evidence of Tina's relative size and immaturity, such as the photograph at issue, was relevant to the element of ...
Commonwealth v. DiFonzo, 576 N.E.2d 1382, 31 Mass.App.Ct. 921 (1991)
“As far as any chalk diagrams that may be used (during retrial) are concerned, the general rule is that evidence must be admitted as an exhibit in order to be considered by the jury. A judge, however, has ‘considerable, but not unrestrained, ...
Commonwealth v. Boyden, 400 N.E.2d 1312, 9 Mass.App.Ct. 857 (1980)
Chalk should not have been sent into deliberation room was harmless error. The defendant appeals from his convictions on charges of assault with intent to murder, assault and battery with a dangerous weapon, and unlawful carrying of a firearm. He ...