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Justices probe trial judge’s refusal to give lesser-included instruction on counts 3–5
Summary
During argument in Commonwealth v. McCaffrey, the court considered whether the trial judge erred by declining to instruct the jury on lesser-included offenses for counts 3–5, with the Commonwealth arguing the trial testimony was unequivocal and the defense saying earlier ambiguous statements warranted the instruction.
BOSTON — The Massachusetts Supreme Judicial Court questioned whether the trial judge erred in refusing a requested lesser-included-offense instruction for counts 3–5 in the prosecution of Scott McCaffrey.
Assistant District Attorney Hansen told the court the victim “is 16 years old when she's testifying” and “clearly testified on direct examination that she was penetrated,” arguing that the trial testimony supported the greater offense and that earlier, vaguer statements were impeachment material rather than substantive evidence that would compel a lesser-included instruction.
Defense counsel argued cross-examination…
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