Appeals panel hears argument that extensive prior-bad-act testimony overwhelmed Marino trial
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Summary
Defense counsel William Corman told the appeals panel that roughly a third of the victim's direct testimony concerned uncharged conduct and that the admission of that material created a substantial risk of a miscarriage of justice; the Commonwealth argued the defense opened the door and limiting instructions were given.
The appeals court heard oral argument in Commonwealth v. Marino on whether extensive testimony about prior uncharged conduct should have been excluded at trial.
William Corman, representing the defendant, told the panel that the record was "murky to say the least" and urged the court to evaluate the case "from above" rather than line-by-line. He said the quantity of prior-bad-act evidence was overwhelming and estimated that about a third of the victim's direct testimony related to conduct that was not charged in this prosecution. "At some point the uncharged conduct overwhelms the charged conduct," he argued, asking the court to draw a limiting boundary to protect the defendant's rights.
A justice pressed Corman on preservation and prejudice, asking whether defense counsel had refused to object to certain testimony and what prejudice remained if particular matters were unobjected to. Counsel acknowledged the record's ambiguity about preservation but maintained the cumulative effect required appellate scrutiny for a substantial risk of miscarriage.
The Commonwealth, through Assistant Attorney General Daniel Rubin, said the record showed the Commonwealth limited its presentation and that defense strategy included eliciting or tolerating some evidence to impeach the victim. Rubin told the panel that, in light of the defense's opening and trial strategy, it would be difficult to conclude that admission of some testimony created a fundamental flaw in the proceeding.
During argument the justices questioned whether a trial judge must ever act on his or her own initiative to exclude excessive prejudicial material when counsel does not object. Counsel and the panel debated whether judges should intervene sua sponte in cases where the government's proof is strong and extensive prior-conduct evidence may skew the jury's focus.
No decision was announced from the bench; the court recessed to consider the arguments.
