4.Final Jury Instructions on Evidence, Burden of Proof, and Deliberations

THE COURT: So I want to talk about the presumption of innocence and the burden of proof. Once again, the indictments against Ms. Clancy are only an accusation. They're not evidence. The defendant has denied that she's guilty of the crimes charged in these indictments. The law presumes the defendant to be innocent of the charges against her. This presumption of innocence is a rule of law that compels you to find the defendant not guilty unless and until the Commonwealth produces evidence from whatever source that proves that the defendant is guilty beyond a reasonable doubt. This burden of proof never shifts. The defendant is not required to call any witnesses or produce any evidence since she is presumed to be innocent. The presumption of innocence stays with the defendant unless and until the evidence convinces you unanimously as a jury that the defendant is guilty beyond a reasonable doubt.

It requires you to find the defendant not guilty unless her guilt has been proved beyond a reasonable doubt. Your verdict, whether it is guilty or not guilty, must be unanimous. All right. Now, reasonable doubt. The burden is on the Commonwealth to prove beyond a reasonable doubt that the defendant is guilty of the charges made against her, as I just told you. But what is proof beyond a reasonable doubt? Well, the term is often used and probably pretty well understood, though it's not easily defined. Proof beyond a reasonable doubt does not mean proof beyond all possible doubt, for everything in the lives of human beings is open to some possible or imaginary doubt. The charge is proved beyond a reasonable doubt if, after you've compared and considered all of the evidence, you have in your minds an abiding conviction to a moral certainty that the charge is true.

When we refer to moral certainty, we mean the highest degree of certainty possible in matters relating to human affairs based solely on the evidence that has been put before you in this case. I've told you that every person is presumed to be innocent until she is proved guilty and that the burden of proof is on the prosecutor. If you evaluate all the evidence and you still have a reasonable doubt remaining, the defendant is entitled to the benefit of that doubt and must be acquitted. It is not enough for the Commonwealth to establish a probability, even a strong probability, that the defendant is more likely to be guilty than not guilty. That is not enough. Instead, the evidence must convince you of the defendant's guilt to a reasonable and moral certainty, a certainty that convinces your understanding and satisfies your reason and judgment as jurors who are sworn to act conscientiously on the evidence. This is what we mean by proof beyond a reasonable doubt. Now, I want to talk initially about my function, the function of the judge.

THE COURT: My function as a judge in this case has been to see that the trial is conducted fairly, efficiently, and in an orderly manner. It's also my responsibility to rule on what you may consider as evidence and to instruct you on the law that applies in this case. It's your duty as jurors in this case to accept the law as I state it to you. You should consider all of my instructions as a whole. You may not ignore any instruction or give special attention to any one instruction. You must follow the law as I give it to you, whether you agree with it or not. That's not just because I'm the judge. It's because every person who comes to court for trial is equal and is subject to the same law. And if jurors in each case were to apply what they thought the law should be, and the jurors in different cases had different views, then the parties in those cases would not be treated equally.

The law that I'm instructing you on is the law that has been established by our legislature and our appellate courts, and it applies to everyone. And you must apply the law as I instruct you. Function of the jury. Your function is to determine the facts of this case. You are the sole and exclusive judges of the facts. You alone determine what evidence to accept, how important any evidence is that you do accept, and what conclusions to draw from all the evidence. You must apply the law as I give it to you, to the facts as you determine them to be, in order to decide whether the Commonwealth has proven its case. You should determine the facts solely on a fair consideration of the evidence. You are to be completely fair and impartial, and you are not to be swayed by prejudice, by personal likes or dislikes towards either side or by any personal view you may have the nature of the claims or the defenses in the case.

Your decisions must rest solely on the facts that you find and the law that I give to you in these instructions. Nor are you to be influenced by any personal likes or dislikes you've come to feel towards any party or any attorney. In this courtroom, every person is equal and is entitled to a fair and impartial verdict in accordance with the evidence and the law. You are not to decide this case based on anything you may have read or heard outside of this courtroom. That, with the exception of that, is the observations you made at that view, and I'll talk about that a little bit later. You are not to engage in any guesswork about any unanswered questions that remain in your mind or to speculate about what the, quote, unquote, "real facts" might or might not have been beyond what has been proved by the evidence.

THE COURT: And whether the evidence is direct or circumstantial, the Commonwealth must prove the defendant's guilt beyond a reasonable doubt from all of the evidence presented in the case. Now, I want to talk about the credibility of witnesses, all right? It's going to be your duty to decide all the disputed questions of fact. You are going to have to determine which witnesses to believe and how much weight to give their testimony. You should give the testimony of each witness whatever degree of belief and importance that you judge it is fairly entitled to receive. You are the sole judges of the credibility of the witnesses, and if there are any conflicts in the testimony, it's your function to resolve those conflicts and to determine where the truth lies. You may believe everything a witness says or only part of it or none of it at all. If you do not believe a witness's testimony that something happened, of course, your disbelief is not evidence that it did not happen.

When you disbelieve a witness, it just means that you have to look elsewhere for credible evidence about that issue. And when deciding whether to believe a witness and how much importance to give a witness's testimony, you must look at all the evidence, drawing on your own common sense and experience of life. Often, it may be not what a witness says, but how the witness says it that might give you a clue whether or not to accept that witness's version of an event as believable. You may consider a witness's appearance and demeanor on the witness stand, the frankness or lack of frankness in testifying, whether the testimony is reasonable or unreasonable, probable or improbable. You may take into account how good an opportunity the witness had to observe the facts about which the witness testifies, the degree of intelligence the witness shows, and whether the witness's memory seems accurate.

You may also consider any motive that the witness may have for testifying and whether the witness displays any bias in testifying and whether or not the witness has any interest in the outcome of the case. Now, I want to talk a little bit about prior inconsistent statements. When you evaluate the testimony the witness gave here in court, you may consider whether that witness made any earlier statements that differ from or contradict in any way their in-court testimony. That earlier statement is generally admitted into evidence solely for your consideration in evaluating the witness's credibility or believability. If you determine that an earlier statement is different from the way the witness testified in court, you may decide that the witness's credibility or believability is affected adversely, or you may decide that it's not adversely affected, but that is the only purpose for which you may use that earlier statement. You may not consider the earlier statement as evidence or proof of truth of any fact contained in the statement.

THE COURT: Now, flip side, I want to talk about prior consistent statements now, all right? The testimony of a witness may be rehabilitated or supported by showing that he or she previously made statements that are consistent with their present testimony. The prior statement is admitted into evidence solely for your consideration in evaluating the credibility of the witness. Should you find the prior statement to be consistent, you may consider the prior statement only in connection with your evaluation of the credence to be given to the witness's present testimony in court. You are not to consider the prior statement as establishing the truth of any facts contained in that statement. Now, I want to talk about the defendant's statements that were made to evaluating psychiatrists or psychologists. You may not consider the defendant's statements made to a psychiatrist or psychologist in their evaluation of the defendant as establishing the truth of any facts contained therein.

Those statements cannot be used by you as evidence of premeditation, extreme atrocity, or cruelty, or specific intent to kill. Such statements are admissible only as they relate to the basis of the doctor's opinion of the defendant's mental condition. Now, I want to talk about evidence of post-incident conduct. Now, you have heard some evidence suggesting the defendant's actions after the killings. I'm not suggesting that these are the facts because the facts are your exclusive domain. But there is some evidence to that effect, and I mention it here to describe the legal point that's implicated. If the Commonwealth has proven that a defendant did any of these things, you may consider whether such actions indicate feelings or consciousness of guilt by the defendant and whether, in turn, such feelings of guilt might tend to show the defendant's actual guilt of the offenses with which he's been charged.

You are not, however, required to draw such inferences, and you should not do so unless they appear to be reasonable in light of all the circumstances in this case. If you decide that such inferences are reasonable, it will be up to you to determine how much importance to give them. But you should always remember that there may be numerous reasons why a person not responsible for the crimes charged might do the things attributed to her. Such conduct does not necessarily reflect feelings or consciousness of guilt. So please bear in mind that a person having feelings of guilt is not necessarily guilty, in fact, for such feelings are sometimes found in innocent people. So finally, remember that standing alone, consciousness of guilt evidence, if you find there was any, is never enough by itself to convict a person of a crime. You may not find the defendant guilty on such evidence alone, but you may consider it in your deliberations along all, with all the other evidence that was presented at the trial.

THE COURT: Now, there were a number of expert witnesses in this case. This term refers to witnesses who have specialized training or experience in a particular field. Generally, in cases that are tried in our courts, bo- civil and criminal, witnesses may testify only to facts that are within their own personal knowledge. That is, things they have personally seen or heard or felt. Because a particular witness has specialized training in their field does not put that witness on a higher level than any other witness, and you are to treat an expert witness just as you would treat any other witness. You may believe all of the expert's testimony, none of it, or anything between those two extremes. There is no requirement for you to believe an expert merely because they are an expert. As with any other witness, it's completely up to you to decide whether you accept the testimony of an expert witness, including the opinions that the witness gave.

It's also entirely up to you to decide whether you accept the facts relied on by the expert and decide what conclusions, if any, you draw from the expert's testimony. You must, as has been explained, keep firmly in mind that you alone decide what the facts are. If you conclude that an expert's opinion is not based on the facts as you find those facts to be, then you may reject the testimony and the opinion of the expert in whole or in part. You are also free to reject the testimony and the opinion of an expert witness in whole or in part if you determine that the witness's opinion is not based on sufficient education, experience, or that the testimony of the witness was motivated by some bias or interest in this case. All right. Now, you may have noticed that Ms. Clancy did not testify at this trial. The defendant has an absolute right not to testify since the entire burden of proof in this case is on the Commonwealth to prove that the defendant is guilty.

It is not up to the defendant to prove that she is innocent. Under our system of law, a defendant has a perfect right to say to the Commonwealth, quote, "You have the burden of proving your case against me beyond a reasonable doubt. I do not have to say a word," unquote. The fact that the defendant did not testify has nothing to do with the question of whether she's guilty or not guilty. You are not to draw any adverse inference against the defendant because she did not testify. You are not to consider it in any way or even discuss it in your deliberations. You must determine whether the Commonwealth has proved its case against the defendant based solely on the testimony of the witnesses and the exhibits. Now, speaking of exhibits, now I'm gonna talk about that.

THE COURT: You will have all the exhibits and the stipulations with you in the jury room. If there's a need to play an exhibit or view one, the court will make a computer available for you to use. The things you heard me say were marking for identification only are not evidence, and you're not gonna have those items with you in the jury room because they're not technically part of the evidence. We marked them so we could treat—keep track of them as we went from witness to witness, and there'd be a clear record of some of the rulings I made. So coming back, however, the exhibits that were introduced in evidence, you'll have those with you. You alone will decide the weight that they deserve to receive in helping you make your ultimate judgment about whether the Commonwealth has proven its case. You're not required to believe something simply because it's written on a piece of paper or it appears in a photograph. You're not, of course, required to disbelieve it just because it appears there either.

Whether to believe what an exhibit purports to show and how much weight to give the exhibit is entirely up to you to decide. Now, the view. Early in the trial, we drove by some sites and visited an address in Duxbury. As I told you at the time, we referred to that as a view. The purpose of the view was to help you better understand the evidence that you heard during the trial and to help you appreciate the location and its surroundings. The view is part of the case. The observations that you made while on the view may be used and considered in your deliberations in reaching a verdict. Now, I wanna talk a little bit about some photographs. The Commonwealth has introduced certain photographs depicting the victims. You'll have those photographs with you during your deliberations. The images depicted are not pleasant. As I instructed you at the time they were introduced, your verdict must not in any way be influenced by the fact that these images are unpleasant or graphic.

The defendant is entitled to a verdict based solely on the evidence and not one based on pity or sympathy for the decedents which might be occasioned by the images depicted. Consider those exhibits only as they may draw our attention to a clinical medical status or nature of the victim's injuries, the cause of their death, or to the nature of the incident itself. Now, about notes. At the outset of the case, I spoke to you regarding the use of notes, and I wanna repeat it this time. Your notes are only an aid to memory and should not be given any precedence over your independent recollection of the facts. Whether you took notes or you didn't, you must rely on your own memory.

THE COURT: You should all first agree on the form of the question, have the foreperson write it down on a piece of paper, and the foreperson should give it to the court officer, who will bring it to me. I'll call the lawyers together. We'll consider your question and how I should respond to it, and then I'll either bring you back out here in the courtroom and respond to you here in open court with an answer, or if it's appropriate, I might just write the answer down in response to your question and send it back to the jury room. So now that process accounts for—may cause a lag time between when you ask the question, get it sent out here, and I meet with the lawyers, decide how we answer it, and get the answer back to you. So if you can continue to keep deliberating while waiting for my response, by all means, do so. If you cannot go further without my response, then stop and I'll get my response to you as quickly as I can.

If it's necessary to communicate with me on any matter during the deliberations, I'd ask you to do so in writing. Send me a note, and I'll respond to it. You're instructed not to talk to anyone else about any aspect of the merits of this case during your deliberations, and that includes the staff, court officers, lawyers, witnesses, parties, family members, friends, acquaintances, anyone. All right? Now, your communications with the court officers should have to do really just matters of scheduling and breaks, when you come back to the courtroom, that kinda thing. But even with them, don't discuss what's going on inside that jury room if you can. Now, while you're in the jury room, you should all talk about this case only in the presence of each other. That is, at some point, we'll have lunch brought to you. So if you'd like, you may as a group decide to suspend your deliberations, have lunch, and then return to the deliberations, or you might decide you'd like to work through lunch while deliberating. Either way, the only thing we can't have is some of you eating lunch separate from others while deliberating. All right? So no subcommittees in a sense. What you do, you do as a group. All right? You do it all together. Now,

THE COURT: To avoid having to start the trial all over again, if that should occur, we impaneled, in this case, eighteen jurors, even though the case will be eventually decided by twelve of you. And we made that decision 'cause this is a lengthy case over the summer. The time has now come to reduce that number. This is especially difficult in this case, where all eighteen of you have been equally dedicated and attentive to this case during the course of this trial, but the case is to be decided by twelve. All right? And so the way it's done is the clerk will draw the alternates' names. We put all the numbers, the exclusion of the foreperson, and then we'll draw out the names randomly for the alternates. And the purpose of the alternate, for those of you who are selected, is that even during the course of deliberations, sometimes things happen. You know?

One of the deliberating jurors gets sick or a family emergency, and so we may, and it happens, it happens fairly regularly, they would have to substitute one of the alternate jurors into the deliberating jurors. Because if you didn't, if we didn't have the alternate jurors still here, we'd have to start all over again. So that's why we do it. It doesn't make it any easier, but I thought I'd just explain to you why we have to do that. So, as I put in here, fate makes you an alternate juror, don't take it personally. Your presence to this point and continuing availability, if you should be needed, is an important contribution. The court officers will make you as comfortable as possible while the jury deliberates. You should—if you're an alternate juror, you should not discuss this case with anyone at all while the deliberations are ongoing, nor discuss it among your fellow alternates, as the need might come up that you have to join in the deliberations. So in other words, the alternate jurors can't have their own kinda informal deliberations, and it's very difficult, but I just kinda wanna make that clear, that you have to do that. Or you cannot do that. So at this point I'm gonna ask the clerk to reduce the jury at this point.