Mass. Appeals Court hears challenge to admission of lottery and Facebook evidence in Commonwealth v. Matheson

At a Massachusetts Appeals Court oral argument, a three-judge panel heard competing arguments over the admissibility of lottery commission records and Facebook-derived testimony in Commonwealth v. Nicole Matheson, a criminal appeal that turns on whether the evidence proved intent to defraud under chapter 10, section 30. The panel took the case under advisement at the end of argument.

The details at issue centered on how the lottery records were prepared and authenticated and on whether officers’ testimony about what they saw online amounted to inadmissible hearsay. Ariane Bueno, court staff member who introduced the panel, told counsel that each side had 15 minutes to argue; the panel consisted of Justice Robert Brennan and Justice Annie D’Angelo.

Defense attorney Arter, representing appellant Nicole Matheson, argued that the documents introduced by Kevin Foster, identified at trial as a lottery investigator or compliance analyst, were admitted in error and did not fall within the business‑records exception to the hearsay rule. "He testified that these records did not exist in the shape and form that they were submitted to the court prior to him being asked by both the lottery customer service representative and the prosecutor to prepare a record," Arter told the panel, adding that Foster had to "mine through all sorts of data" and compiled material from multiple sources rather than producing an original, preexisting export from the lottery system.

Arter pressed that the Commonwealth never submitted a certification under the authentication procedure the defense cited as "2 33 79 j" and that the witness was not the keeper of the lottery records. Defense counsel argued that, absent a certification or keeper testimony, the jury (or judge) lacked the foundation to accept the printout as a true business record and that the printout had prejudiced the factfinder because it was used to suggest Matheson lacked a plausible explanation for possession or claim of the ticket.

On the Facebook evidence, Arter argued officers testified to conclusions formed from a third party’s social‑media posts without producing those posts or the author for cross‑examination. Arter said the officer who testified was not the officer who viewed the Facebook page and that the testimony therefore amounted to hearsay layered atop hearsay.

Karen Palumbo, arguing for the Commonwealth, countered that Foster was a lottery compliance analyst who testified he was familiar with the lottery's back‑office system and that the judge properly found the records met the standards for admission under the business‑records exception. "That lottery system ... tracks all the transactions for the mobile cashing app," Palumbo told the panel, and she argued the trial judge expressly found the records admissible.

Palumbo also said the prosecution excluded one summary report prepared by Foster and that other challenged records were either statements of a party opponent (the player profile) or otherwise admissible. On the Facebook point, Palumbo said officers did not testify to the third party’s exact words but to an absence of postings that would support the defendant’s claim; she also argued the officers’ opinions were based on their personal observations during the investigation.

Both sides addressed statutory law. Arter highlighted that chapter 10, section 30 requires intent to defraud to sustain a conviction for altering, forging or passing a counterfeit lottery ticket and argued the evidence did not show that Matheson intended to defraud. Palumbo replied that the record included evidence that the ticket had been scanned and paid out to Matheson and that the judge, as factfinder, found the defendant's account implausible.

During questioning, members of the panel asked whether the records had been authenticated by certification or keeper testimony, what precedent governs admission when records are compiled or summarized after creation, and whether a judge can properly rely on an officer's credibility assessment when the underlying social‑media content was not admitted. Counsel cited several cases during argument, including Broussard v. O'Toole, Driscoll, and a decision the defense referenced as Welford v. Bridal (circa 1992), to support competing positions on authentication and the effect of online processes that post barcode information publicly.

The panel did not announce a decision. At the conclusion of oral argument, the court said it would "take the case under advisement."