MA · jury_instructions
Instruction 3.900, Criminal Model Jury Instructions for Use in the District Court
Intentionally not recorded exculpatory evidence
INTENTIONALLY NOT RECORDED EXCULPATORY
EVIDENCE
This instruction may be given as one possible judicial remedy in cases where
there is evidence that the police intentionally failed to record an encounter with
the defendant(s) in violation of departmental policy. To be entitled to this
instruction, the defendant must establish a “reasonable possibility, based on
concrete evidence" that recording would have been favorable to the defendant.
See Commonwealth v. Neal, 392 Mass. 1, 12 (1984). The Court must weigh “the
Commonwealth’s culpability, the materiality of the evidence, and the prejudice to
the defendant” in determining what remedy is appropriate. Commonwealth v.
Williams, 455 Mass. 706, 718 (2010).
You have (heard) (seen) evidence that a [_______ video] [______
audio recording] was intentionally not recorded in violation of the
officer’s departmental policy.
If the failure to record was intentional and was in violation of
department policy, you may infer that, if there was a recording, it
would have been favorable to the defendant. You are not compelled
to make this inference, but you may, after considering all of the facts
and circumstances you have heard about the failure to record.
History
Instruction 3.900, Criminal Model Jury Instructions for Use in the District Court (June 2023). Published by the Administrative Office of the District Court, District Court Department of the Trial Court, Commonwealth of Massachusetts, on www.mass.gov. © 1988-2009 Administrative Office of the District Court; reproduced under its title-page permission ("You may freely reproduce or copy this work if you identify its source and any changes made to the original work"). Source: https://www.mass.gov/doc/3900-intentionally-not-recorded-exculpatory-evidence/download. Changes made: the text is extracted from the published PDF (verified by three extraction engines); the running headers, page numbers and line layout are removed, and a closing NOTES section, where printed, is carried as the note.
Provenance
- Source
- mass.gov
- Retrieved
- 2026-09-25
- Edition
- 2026-09-25
- Content hash
40860da93a0d284558f1b5c0be920de085225f51d26775021a602c5ceb990816
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