SJC weighs whether conviction can stand after indictment cited different statutory subsection than evidence supported

BOSTON — The Massachusetts Supreme Judicial Court on oral argument considered whether Scott McCaffrey’s conviction must be vacated because the indictment cited a different subsection of the aggravated sexual-offense statute than the theory on which a jury convicted. Defense counsel told the justices the grand jury was presented evidence that the victim was under 12, but the indictment charged the aggravating subsection that applies only when the victim was over 12 and under 16.

Defense attorney Emma Quinn told the court, “This case is about two fundamental principles of fairness, the right to indictment by a grand jury, and the requirement that a jury get proper instructions.” Quinn argued that the indictment was for subsection (b) while the conviction was entered under subsection (a), which she said is an impermissible change of substance because it altered the statutory subsection or the theory of the offense.

The issue matters because, under the case law the parties debated, a change of substance — as opposed to a change of form — requires reversal. Quinn said the appropriate remedy would be a new trial or reindictment, telling the court, “I believe it would be a new trial, your honor. I think they would have to reindict, frankly.”

Assistant district attorney Hansen, representing the Commonwealth, responded that the alteration was a change of form, not substance, and therefore permissible when it does not change the grand jury’s work. Hansen argued, “This change to correct the victim’s age on the indictments was a change of form rather than a change of substance,” and framed the aggravating element as a single element that the Commonwealth can prove by alternative theories (different age gaps or mandated-reporter status).

Counsel and the justices discussed precedent the parties cited. Defense counsel relied on cases the transcript identifies as Mayotte and Garcia and the analytical framework in Knight and Miranda, which separate form amendments (sometimes allowed with no prejudice) from substantive amendments (not permitted). Counsel also referenced Sousa (Souza) and McGillivray as examples of indictments described in the briefs as “garbled” where the charges were inconsistent with statute language presented to the grand jury. Hansen pointed to Foreman and to the proposition that the aggravating element may be proved in different ways; she compared the age condition to a timing or caption clarification that does not change the element itself.

Justices asked about whether the grand-jury record contained evidence supporting the subsection ultimately used at trial. One justice observed difficulty with the double-jeopardy analysis in this factual setting and pressed whether reversal would be required even if the defendant might keep a lesser non‑aggravated conviction or be resentenced. The parties acknowledged there is limited case law directly on point; both urged the court to apply the substance-versus-form framework and the existing line of appeals-court decisions.

No ruling was announced at argument. The justices heard debate over three paths discussed by counsel: (1) reversing and remanding for a new trial or reindictment; (2) stripping the aggravating factor and affirming a lesser included conviction (the transcript cites a single appeals-court decision identified as Rui Diaz that the defense says did that); or (3) treating the correction as a permissible amendment of form. The court will decide in a written opinion.

Ending: The SJC’s eventual decision will resolve whether, under Massachusetts precedent, a grand-jury record that lacks evidence for an indicted subsection requires reversal when a conviction rests on a different subsection. No decision was delivered at oral argument.