Instruction 3.940, Criminal Model Jury Instructions for Use in the District Court

GANG AFFILIATION

You have heard testimony about an alleged gang affiliation in

this case. I instruct you that you cannot use any evidence that the

defendant [was] [may have been] affiliated with [a gang] [people who

belong to a gang] to infer anything about the defendant’s character

or general propensity to commit a crime. Such evidence, standing

alone, does not make the defendant more likely to have (committed a

crime), (or) (acted violently).

Evidence of the defendant’s alleged gang affiliation was

admitted only for a limited purpose(s): to demonstrate [their motive

for committing the offense(s) involved] (and/or) [their participation in

a joint venture] and for no other purpose. You may not take that

evidence as a substitute for proof that the defendant committed the

crime(s) charged, nor may you consider it as proof that the

defendant has a bad character or a propensity to commit crimes.

SUPPLEMENTAL INSTRUCTIONS

In cases where there is evidence that the defendant believed someone else was

affiliated with a gang:

If there was credible evidence that the defendant

believed someone was affiliated with a gang, that alone is

not evidence that the person was, indeed, a gang member.

Therefore, you may not use that evidence to infer that the

person was a gang member. Such evidence was admitted

solely on the issue of the defendant's state of mind for

what the defendant believed, at a particular time, and for no

other purpose.

Commonwealth v. Maldonado, 429 Mass. 502, 505 (1999).

In cases where there is testimony from an “expert” about indicia of gang

affiliation:

When a case involves allegations of gang affiliation, a

person with special training or experience in that subject

matter is permitted to give their opinion about that matter,

in order to help you as the jury. However, an expert

witness is like any other witness in that you alone make

the judgement about how much credibility and weight you

give the expert’s testimony and what conclusions you draw

from that testimony.

See Instruction 3.640 Expert Witness.

If the court inquired of venire about gang affiliation during empanelment:

I caution you and remind you of the promise you

made under oath when you were questioned before being

sworn in as a juror. You promised that you would not

allow any suggestion of gang association to affect your

ability to remain fair and impartial as a juror in this case,

and you must follow that promise in your deliberations.

See Commonwealth v. Rosario, 460 Mass. 181, 192 (2011) Commonwealth v.

Maldonado, 429 Mass. 502, 506 n. 1 (1999) for example of a comprehensive limiting

instruction. See also Massachusetts Jury Trial Benchbook, (4th Edition, 2019), Appendix

4DD – Sample Jury Instruction on Gang Affiliation or Involvement.