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SJC-12257

COMMONWEALTH vs. MICHAEL J. WOLFE.

Middlesex. May 2, 2017. - October 13, 2017.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, 

& Cypher, JJ.1

Motor Vehicle, Operating under the influence. Practice, 

Criminal, Instructions to jury. Constitutional Law, Selfincrimination, Breathalyzer test. Evidence, Breathalyzer 

test, Field sobriety test.

Complaint received and sworn to in the Marlborough Division 

of the District Court Department on February 13, 2015.

The case was tried before Michael L. Fabbri, J.

The Supreme Judicial Court granted an application for 

direct appellate review.

Luke Rosseel for the defendant.

Thomas D. Ralph, Assistant District Attorney, for the 

Commonwealth.

Jeffrey J. Pokorak, Natalia Smychkovich, & Houston 

Armstrong, for Suffolk Defenders Program of Suffolk University 

Law School & others, amici curiae, submitted a brief.

 

1 Justice Hines participated in the deliberation on this 

case prior to her retirement.
2

BUDD, J. We are asked to decide whether, in a jury trial 

of an operating a motor vehicle while under the influence (OUI) 

case, a trial judge may properly give a jury instruction that 

specifically mentions the absence of breathalyzer or other 

alcohol-test evidence. We conclude that the judge should not 

give such an instruction unless the defendant requests it.

2

In this case, the jury were instructed about the absence of 

alcohol-test evidence in the judge's final instructions over the 

defendant's objection. We conclude that giving the objected-to 

charge constituted error and that, in the circumstances of this 

case, the error was prejudicial. Accordingly, we vacate the 

defendant's conviction and remand for a new trial.3

Background. The defendant was charged by complaint with 

one count of OUI, G. L. c. 90, § 24 (1) (a) (1), and twice faced 

trial on this complaint before a jury in the Marlborough

Division of the District Court Department. The first, in 

January, 2016, ended in a mistrial. The second, in March, 2016, 

resulted in a conviction. We summarize the facts as the jury 

 

2 It is possible that a rare case could justify giving such 

an instruction over a defendant's objection, but we have trouble 

imagining such a scenario.

3 We acknowledge the amicus brief of the Suffolk Defenders 

Program of Suffolk University Law School, the Committee for 

Public Counsel Services, and the Massachusetts Association of 

Criminal Defense Lawyers.
3

could have found them at the second trial,

4 reserving additional 

details for later discussion.

On February 13, 2015, at around 2 A.M., a Marlborough 

police officer patrolling the Main Street area noticed a Ford 

Explorer being driven with a broken taillight. The officer

followed the vehicle for approximately five to ten minutes. 

During that time, the officer witnessed the vehicle cross the 

double yellow line in a "jerking motion" to avoid hitting a snow 

bank, and later saw the vehicle cross the double yellow line 

again while executing a turn.

The officer then stopped the vehicle at the intersection of 

Union Street and Stevens Street. Upon approaching the vehicle, 

the officer observed the defendant in the driver's seat with 

"bloodshot glassy eyes, slurred speech and a distinct odor of 

alcohol coming from his breath when he spoke." The defendant 

initially told the officer he was coming from a sandwich shop on 

Main Street. When the officer replied that the shop closed much 

earlier in the evening, the defendant admitted that he had been 

at a nightclub where he had consumed "a few" drinks. The 

defendant gave "delayed" responses to several of the officer's 

questions.

The officer then asked the defendant to step out of the 

 

4 The evidence at the two trials was essentially the same.
4

vehicle and walk back to the officer's patrol vehicle. During 

this walk, the defendant used his own vehicle "for balance." 

Another officer at the scene testified that the defendant was 

"swaying" and "unsteady on his feet." The defendant was placed 

under arrest and transported to the Marlborough police station 

for booking.

At the station, the defendant "immediately" fell asleep in 

a holding cell. During the booking procedure, the officer again 

noticed the smell of alcohol on the defendant's breath and had 

to repeat questions multiple times before the defendant 

responded. At one point, the defendant was permitted to use his 

cellular telephone, but instead he sat "just staring" at his 

telephone and said that it would not turn on. The officer 

allowed the defendant to use the station's telephone, and 

explained to the defendant how to dial an outside number. The 

defendant appeared unable to understand this, so the officer 

dialed the number for him.

There was no mention in the trial evidence of the lack of a 

breathalyzer test or other alcohol-test evidence. Nevertheless, 

the judge instructed the jury, over the defendant's objection, 

not to consider the absence of breathalyzer tests, field 

sobriety tests, or blood tests.5 The judge explained that he 

 

5 The full instruction was as follows:
5

believed this instruction was warranted, in part, because the 

jury in the first trial had asked a question about the absence 

of breathalyzer evidence before failing to reach a verdict.

At the second trial, the jury found the defendant guilty. 

The defendant filed a timely notice of appeal, and we allowed 

his application for direct appellate review.

Discussion. Primarily, the defendant claims that the trial 

judge erred by instructing the jury, over objection, that they 

should disregard the lack of evidence of a breathalyzer test, 

blood test, or field sobriety test.6 Generally, trial judges 

have "considerable discretion in framing jury instructions." 

Commonwealth v. Kelly, 470 Mass. 682, 688 (2015). However, 

when, as here, a defendant raises a timely objection to an

instruction, we review for prejudicial error, conducting a two-

 

"Now, you may have noticed that there was no evidence 

of any breath test, blood test, or field sobriety test 

introduced in this case. You are not to mention or 

consider in any way whatsoever during your deliberations 

either for or against either side that there was no such 

evidence introduced in this case. Do not consider it in 

any way at all. Do not mention it at all during your 

deliberations. Put it completely out of your minds."

6 The defendant also claims error in certain statements the 

prosecutor made during his closing argument. Because our 

resolution of the jury instruction issue requires a new trial, 

we do not reach the closing argument claim. However, to the 

extent it is helpful at retrial, we note that there appeared to 

be scant, if any, evidentiary support for the prosecutor's 

statement that "the booking station was filled with the odor of 

alcohol" due to the defendant's presence.
6

part test that asks (1) whether the instruction was legally 

erroneous, and, if so, (2) whether that error was prejudicial. 

Id. at 687-688, and cases cited.

The challenged instruction was a modified version of an 

instruction upheld in Commonwealth v. Downs, 53 Mass. App. Ct. 

195, 198 (2001).7 In Downs, the Appeals Court distinguished 

Opinion of the Justices, 412 Mass. 1201 (1992), and Commonwealth

v. Zevitas, 418 Mass. 677 (1994), in both of which this court 

held that reference to possible reasons for the absence of 

breathalyzer evidence violated a defendant's right against selfincrimination under art. 12 of the Massachusetts Declaration of 

Rights. See Downs, supra at 199.

In Opinion of the Justices, 412 Mass. at 1202, this court 

was asked to opine on the constitutionality of a Senate bill 

proposing the admission of evidence in a criminal proceeding of 

a defendant's refusal to submit to a chemical test or 

breathalyzer. The court determined that admitting such evidence 

would violate art. 12, as it would be tantamount to providing 

 

7 The specific instruction at issue in Downs was as follows:

"You are not to mention or consider in anyway 

whatsoever, either for or against either side, that there 

is no evidence of a breathalyzer. Do not consider that in 

any way. Do not mention it. And put it completely out of 

your mind."

Commonwealth v. Downs, 53 Mass. App. Ct. 195, 198 (2001).
7

the jury with the defendant's self-incriminating evidence, i.e., 

that he refused to submit to testing because he believed it

would show he had too much to drink. Id. at 1209, 1211.

In Zevitas, 418 Mass. at 681-682, the defendant challenged 

a jury instruction stating, in part, that "a person has a legal 

right either to take or not to take" a breathalyzer test, and 

that "[i]n any particular situation, there may be a number of 

reasons why a person would not take such a test; and there may 

be a number of reasons why such a test was not administered by 

the police." The court held that such an instruction, although 

at the time mandated by statute,

8 violated the defendant's art. 

12 rights insofar as it invited speculation that the defendant 

failed to take a breathalyzer because he feared the results 

would be unfavorable. Id. at 683-684.

In Downs, 53 Mass. App. Ct. at 199-200, the Appeals Court 

reasoned that, because the instruction at issue made "no mention 

either of a defendant's legal right to refuse to take the 

 

8 See G. L. c. 90, § 24 (1) (e), as amended through 

St. 1994, c. 25, § 5 ("When there is no [alcohol-test] evidence 

presented at a civil or criminal proceeding . . . the presiding 

judge at a trial before a jury shall include in his instructions 

to the jury . . . that a person has a legal right to take or not 

take such a test; that there may be a number of reasons why a 

person would or would not take such a test; that there may be a 

number of reasons why such test was not administered; that there 

shall be no speculation as to the reason for the absence of the 

test and no inference can be drawn from the fact that there was 

no evidence of a blood alcohol test . . ."). See also St. 2003, 

c. 28, § 3 (striking out above language).
8

breathalyzer or the possible reasons for any refusal," it

avoided the art. 12 obstacles identified in Opinion of the 

Justices and Zevitas.

The defendant disagrees with that logic and asks us to

reject the reasoning of Downs. He argues, in effect, that all

so-called Downs instructions suffer from the same art. 12 defect

found in Opinion of the Justices and Zevitas. The Commonwealth, 

on the other hand, urges us to embrace the distinction 

articulated in Downs and hold that a Downs instruction 

adequately protects both the Commonwealth and defendants against 

jury speculation without inappropriately implicating a

defendant's art. 12 rights.

These arguments boil down to competing claims about who is 

most at risk of being harmed if the jury fail to follow 

instructions. In this way, both arguments diverge from a long 

tradition of appellate courts presuming that juries can and will 

follow a judge's instructions. See, e.g., Commonwealth v. 

Andrade, 468 Mass. 543, 549 (2014); Commonwealth v. Cline, 213 

Mass. 225, 227 (1913). The Commonwealth's argument assumes that 

a breathalyzer-specific instruction is necessary because, 

without it, the jury will speculate about the absence of 

breathalyzer evidence, contrary to the judge's more general 

directive to base their verdict solely on the evidence. See 

Instruction 2.120 of the Criminal Model Jury Instructions for 
9

Use in the District Court (2016) ("You are not to decide this 

case based on what you may have read or heard outside of this 

courtroom. You are not to engage in any guesswork about any 

unanswered questions that remain in your mind, or to speculate 

about what the 'real' facts might or might not have been"). The 

Downs case itself makes a similar assumption. See Downs, 53 

Mass. App. Ct. at 199 ("without some form of a limiting 

instruction concerning the breathalyzer, a jury very well could 

rely upon their common knowledge and engage in the same 

speculation invited by the erroneous instruction [rejected in 

Zevitas]").

Similarly, the defendant claims that giving a Downs

instruction unnecessarily introduces the specter of refusal 

evidence into the jury room and will have the opposite of the 

intended effect, that is, it will cause the jury specifically to 

focus on the absence of breathalyzer evidence. And, indeed, our 

decision in Zevitas, 418 Mass. at 684, was structured around our 

assessment of the risk that juries may not always hew to a 

judge's instructions to refrain from speculating about matters 

not in evidence.

We have encountered a variation of this problem before, 

when asked to decide whether (and, if so, when) a judge should 

instruct a jury about a defendant's choice not to testify at 

trial. See Commonwealth v. Rivera, 441 Mass. 358, 370-371 
10

(2004); Commonwealth v. Buiel, 391 Mass. 744, 746-747 (1984). 

In Buiel, supra at 746, we remarked that it is "difficult to 

determine" whether an instruction about the defendant's election 

not to testify "is beneficial to a particular defendant or to 

defendants as a group." On the one hand, such an instruction 

"warns the jury against drawing inferences adverse to the 

defendant from his not testifying." Id. at 746-747. On the 

other, it "may focus the jury's attention on the question why 

the defendant decided not to assist the jury in their factfinding function."9 Id. at 747. In light of that difficulty, we

announced the prospective and "not constitutionally based" rule 

that it would be "reversible error if a judge instructs the jury 

concerning a defendant's right not to testify when the defendant 

has requested that no such instruction be given." Id. at 746, 

747.

In Rivera, we reconsidered the rigidity of this rule, but 

not its basic thrust. We said that it would no longer be "per 

 

9 As the amici point out, this notion draws strong support 

from common sense and experience. See F.M. Dostoevsky, Winter 

Notes on Summer Impressions 112 (R.L. Renfield trans., 1955) 

("Try this experiment on yourself: try not to think of a polar 

bear and you will see that the cursed animal keeps returning to 

your mind"). Psychologists refer to this phenomenon as "ironic" 

mental processing and posit that an instruction not to think 

about something can trigger a mental monitoring process to guard 

against the forbidden thought; this monitoring process, in turn, 

may increase the frequency and power of the forbidden thought. 

See Lieberman & Arndt, Understanding the Limits of Limiting 

Instructions, 6 Psych., Pub. Pol'y & L. 677, 697-700 (2000).
11

se reversible error" for a judge to give an instruction about 

the defendant not testifying, but that the instruction, when 

objected to, would be subject to review for prejudicial error. 

Rivera, 441 Mass. at 370-371 & n.9. Nevertheless, "[w]e 

remain[ed] of the view that judges should not give the 

instruction when asked not to do so." Id. at 371 n.9.

We believe that similar logic applies here and compels a 

similar conclusion with respect to an objected-to instruction 

about the lack of alcohol-test evidence in an OUI case. The 

challenge here, as in Buiel and Rivera, is rooted in the 

defendant's art. 12 protection against self-incrimination. 

Although a Downs instruction does not implicate a defendant's 

self-incrimination rights as directly as an instruction about a 

defendant's choice not to testify, it evokes similar concerns. 

See Zevitas, 418 Mass. at 683-684; Downs, 53 Mass. App. Ct. at 

199-200. Also, as in Buiel, 391 Mass. at 746, we find it

difficult to assess whether a Downs-type instruction "is 

beneficial to a particular defendant or to defendants as a 

group." Doing so would require us to engage in a series of 

generalizations about defendants in OUI cases, make assumptions

about whether and when juries are able to follow a judge's 

instructions, and speculate ourselves about where the jury's 

speculation may lead -- all without the benefit of any 

supporting empirical evidence. The same basic problems are 
12

inherent in assessing the Commonwealth's claim that it, too, may 

be harmed by the lack of a Downs instruction.10

We are persuaded instead that the simpler and safer 

approach is to leave such an instruction to the defendant's 

choice. This approach has the benefit of simplicity because it 

reaffirms our traditional presumption that the jury will heed 

the judge's general instruction not to speculate about evidence 

 

10 Along these lines, we agree with the dissent that a 

trial, at its core, is a search for the truth. See post at . 

But we have a difference of opinion as to how to best achieve 

that goal. The dissent believes that giving a jury instruction 

that specifically mentions the absence of breathalyzer evidence 

is necessary to ensure that the jury, in fact, do not consider a 

missing breathalyzer test. See id. at . As discussed below, 

we do not agree that such an instruction is necessary to stave 

off speculation by the jury. Even so, we acknowledge that such 

an instruction very well may be effective. However, there is 

another possibility: that such a targeted instruction 

introduces the idea of missing breathalyzer evidence into the 

jury room, and, as a result, prompts the jury to wonder about 

the missing breathalyzer evidence and do the opposite of what 

they have been instructed to do. See note 9, supra, and 

accompanying text. Because this latter path risks encroaching 

upon a defendant's constitutional right not to incriminate 

himself or herself, we believe the decision whether the jury 

receive such an instruction should rest with the defendant, not 

the Commonwealth or the court. See Commonwealth v. Buiel, 391 

Mass. 744, 747 (1984).

To borrow the dissent's metaphor, we do not disagree that 

the jury might find an "oar," in the form of a more specific 

jury instruction, helpful in navigating the legal waters of an 

OUI case. Post at note 1. But we do not think it wise to 

present the jury with such a device in a case like this, where, 

for the reasons discussed in the text, the jury may use it so 

readily to paddle into restricted waters -- i.e., a defendant's 

art. 12 rights -- at least not without the defendant's consent, 

as in Buiel, 391 Mass. at 747, and Commonwealth v. Rivera, 441 

Mass. 358, 371 n.9 (2004).
13

not before them. By adhering to that presumption from the 

outset, the need for the breathalyzer-specific instruction 

approved of in Downs dissipates.

11

We also agree with the defendant that in Opinion of the 

Justices and Zevitas we have suggested a tendency to err on the 

side of caution when it comes to encroaching upon a defendant's 

constitutional right not to incriminate himself or herself. In 

those cases, we expressed concern that the introduction of 

refusal evidence (Opinion of the Justices) or instructions 

highlighting, however indirectly, the possibility of refusal 

(Zevitas) would nudge the jury toward using refusal evidence 

against a defendant in violation of his or her art. 12 rights. 

See Zevitas, 418 Mass. at 684; Opinion of the Justices, 412 

Mass. at 1211. Although this risk may be relatively low, its 

potential consequences are quite serious. See Commonwealth v. 

 

11 The dissent does not adequately explain why, if it is 

presumed that the jury follow the judge's instructions, there is 

any need for a Downs instruction in the first place. If we 

presume the jury follow the judge's instructions, that 

presumption should apply equally to the judge's general 

instruction not to speculate about matters not in evidence. 

This would protect both the Commonwealth and the defendant from 

speculation about the absence of breathalyzer evidence without 

creating the possibility of inducing speculation by specifically 

mentioning the absence of breathalyzer evidence. To the extent 

the dissent is concerned about jurors speculating based on their 

collective knowledge, from outside the court room, about 

breathalyzer testing, we have rejected a similar supposition 

when called upon to examine the need, or lack thereof, for socalled "CSI" instructions. See Commonwealth v. Vuthy Seng, 456 

Mass. 490, 503-504 (2010).
14

Sneed, 376 Mass. 867, 871 (1978) ("Even an unintended suggestion 

that might induce the jury to draw an unfavorable inference 

[based on defendant's right not to incriminate himself] is 

error"). And, of course, leading the jury down an inappropriate 

path is precisely the opposite of what jury instructions are 

supposed to do. Cf. King v. Trustees of Boston Univ., 420 Mass. 

52, 64 (1995), quoting Pfeiffer v. Salas, 360 Mass. 93, 100-101 

(1971) (jury instructions "should be full, fair and clear as to 

the issues to be decided by the jury, the rules to be followed 

by the jury in deciding the facts, and the law they are to apply 

to the facts found").

Accordingly, we conclude that typically a defendant should 

be able to elect whether the jury are instructed about the 

absence of alcohol-test evidence. See Buiel, 391 Mass. at 746-

747. We emphasize that this conclusion, although rooted in 

constitutional concerns, is not a new constitutional rule 

requiring retroactive application.12 See Rivera, 441 Mass. at 

370; Buiel, supra at 747. Rather, as an exercise of our 

superintendence power, we conclude that, as a matter of 

 

12 Although Commonwealth v. Zevitas, 418 Mass. 677 (1994), 

announced a constitutionally based rule requiring retroactive 

application, see Commonwealth v. D'Agostino, 421 Mass. 281, 286-

287 (1995), this case is distinguishable because the challenged 

instruction here, unlike in Zevitas, supra at 682, does not 

specifically mention the possibility of refusing a breathalyzer 

test. We reiterate that our decision today is procedural only 

and has only prospective application.
15

procedure, the better practice is for a judge to refrain from 

giving a Downs-type instruction absent a request by the 

defendant or some rare set of facts that specifically directs 

the jury's attention to the absence of alcohol-test evidence.13 

Cf. Commonwealth v. DiGiambattista, 442 Mass. 423, 444-445, 447–

448 (2004) (using superintendence power to regulate presentation 

of evidence at trial in requiring, under certain circumstances, 

jury instructions regarding defendant's unrecorded statement to 

police).

In this case, the instruction regarding alcohol-test 

evidence was given over the defendant's objection. Based on our 

analysis today, this was error.14 Because the defendant objected 

at trial and argued for this rule on direct appeal, he should 

have the benefit of this decision, which otherwise shall apply 

only prospectively. See Commonwealth v. Adjutant, 443 Mass. 

649, 667 (2005). Accordingly, we review for prejudicial error. 

 

13 Further, when a jury ask a question about the absence of 

alcohol-test evidence, as occurred in the defendant's first 

trial, we think it is the better practice to simply reiterate 

the general instruction not to speculate about matters not in 

evidence and, to the extent possible, refrain from reinforcing 

the jury's focus on items not in evidence by mentioning the lack 

of alcohol-test evidence.

14 We understand why the trial judge in the defendant's 

second trial chose to give the instruction that he did, given 

the Appeals Court's ruling in Downs. However, in light of our 

decision today, which differs from that of the Appeals Court in 

Downs, the instruction constituted legal error.
16

Commonwealth v. Allen, 474 Mass. 162, 168 (2016). This means 

that we "inquire[] whether there is a reasonable possibility 

that the error might have contributed to the jury's verdict." 

Commonwealth v. Alphas, 430 Mass. 8, 23 (1999) (Greaney, J., 

concurring). "An error is not prejudicial if it 'did not 

influence the jury, or had but very slight effect.'" 

Commonwealth v. Cruz, 445 Mass. 589, 591 (2005), quoting 

Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

Here, the evidence of impaired operation was far from 

overwhelming. For example, the defendant offered a plausible 

explanation that his first crossing of the double yellow line 

was necessary to avoid hitting a snow bank in the roadway, and 

that the second was a relatively brief and minor infraction in 

the course of making a left-hand turn. He also plausibly 

suggested that, as he walked back to the arresting officer's 

cruiser, he used his own vehicle to steady himself not because 

he was impaired, but as a caution against ice on a cold February 

night. Moreover, the erroneous remarks at issue here "f[e]ll 

from the judge himself," and thereby likely had a more damaging 

effect on the jury. See Zevitas, 418 Mass. at 684, quoting 

Commonwealth v. Goulet, 374 Mass. 404, 414 (1978). Under these 

circumstances, we cannot fairly say that "the jury would have 

inevitably reached the same result if the judge had omitted the 

challenged instruction." Buiel, 391 Mass. at 747.
17

Conclusion. For the reasons discussed, the defendant's 

conviction is vacated and the case is remanded for a new trial.

So ordered.
LOWY, J. (dissenting, with whom Gaziano and Cypher, JJ., 

join). Today the court recognizes that a defendant should be 

able to remove speculation regarding the absence of breathalyzer 

evidence from a trial on a charge of operating a motor vehicle 

while under the influence of alcohol (OUI) by requesting an 

instruction pursuant to Commonwealth v. Downs, 53 Mass. App. Ct. 

195, 198 (2001). I agree. However, because I feel that the 

Commonwealth should also be able to remove such speculation by 

requesting the same instruction, I respectfully dissent.

A trial serves many purposes, but at its core, it is a 

search for truth. When jurors find facts, not from a fair 

consideration of the evidence, but rather based upon 

bewilderment as to why no evidence of a breathalyzer test was 

introduced, confidence in trial by jury in some measure 

incrementally dissipates. Perhaps one might respond: jurors 

are instructed to apply the facts to the law as given and not to 

speculate as to any unanswered questions they may have. A 

general instruction not to speculate is ineffective in the face 

of common knowledge of the breathalyzer test. The beauty and 

simplicity of the Downs instruction is that it thoroughly 

removes speculation regarding the absence of breathalyzer 

evidence without prejudicing the defendant or the Commonwealth. 

In Downs, 53 Mass. App. Ct. at 199, the Appeals Court held 

that the jury instruction complained of here did not violate the 
2

defendant's privilege against self-incrimination under art. 12 

of the Massachusetts Declaration of Rights, noting that the jury 

"were simply but forcefully instructed that they were not to 

think about or otherwise consider the fact that no evidence was 

offered concerning the breathalyzer." The Appeals Court also 

pointed out the danger of allowing the specter of the 

breathalyzer to hang over the trial and that an OUI jury trial 

without any reference whatsoever to breathalyzer testing risks 

unfair prejudice to a defendant and the Commonwealth. Id. at 

199 & n.2. That is to say, without some form of a limiting 

instruction concerning the breathalyzer, a jury very well could 

rely upon their common knowledge and engage in improper 

speculation.

Indeed, this type of speculation appears to have occurred 

at the defendant's first trial, which resulted in a mistrial. 

There, the jury asked the judge, "Are we allowed to ask: 'Why 

there are no tests?' eg. Breathalyzer or blood test?" Although 

that record is not before us, presumably the jury were given the 

general instruction that they were to decide the case on the 

evidence presented to them and not to speculate on anything not 

in evidence. Yet they still engaged in speculation.

The Downs instruction prevents precisely this kind of 

speculation and rests on the long-standing principle that the 
3

jury are presumed to follow the judge's instructions.1 See 

Commonwealth v. Cline, 213 Mass. 225, 227 (1913). This 

principle lies at the very heart of our justice system:

"Unless we proceed on the basis that the jury will 

follow the court's instructions where those instructions 

are clear and the circumstances are such that the jury can 

reasonably be expected to follow them, the jury system 

makes little sense. Based on faith that the jury will 

endeavor to follow the court's instructions, our system of 

jury trial has produced one of the most valuable and 

practical mechanisms in human experience for dispensing 

substantial justice."

Delli Paoli v. United States, 352 U.S. 232, 242 (1957), rev'd on 

other grounds by Bruton v. United States, 391 U.S. 123, 126 

(1968).

 

1 The court concludes that the presumption that the jury 

follow instructions should apply equally to the general 

instruction not to speculate as it does to the specific Downs

instruction. The existence of a general instruction cannot, 

however, preclude the possibility that a specific instruction is 

needed. For example, in a trial where autopsy photographs are 

introduced, a general instruction that jurors should disregard 

emotion and sympathy when reaching a verdict does not preclude a 

judge from specifically instructing the jury on the proper use 

of such photographs. See Commonwealth v. Lawrence, 404 Mass. 

378, 390 (1989). Just because we send a jury navigating a rough 

sea of complex legal issues a life raft (i.e., general jury 

instructions) does not mean we should not also give them an oar 

(i.e., a specific instruction or Downs instruction).

Further, a general instruction not to speculate may be 

ineffective in the face of jurors' likely knowledge of the 

scientific capability to measure the amount of alcohol in an 

individual's blood. Cf. Commonwealth v. Gray, 465 Mass. 330, 

339-340 (2013) (not abuse of discretion "for voir dire questions 

designed to counter any 'CSI effect'" in certain circumstances).
4

For more than fifteen years, Downs has been the law of this 

Commonwealth. See Commonwealth v. Gibson, 82 Mass. App. Ct. 

834, 836 (2012). Nothing in this record suggests that the 

decision was in any way unsound. Because I believe the best way 

to prevent prejudice to the defendant and the Commonwealth is to 

allow either party to remove the threat of speculation from jury 

deliberations, I respectfully dissent.