Procedural - Jury Instructions

JUDGE CANNONE: So you will not have an independent reader. Is it fair to say that the third and fourth motions, Commonwealth's motion to enforce compliance with court's April 16th AKA discovery order and the Commonwealth's motion to preclude new expert testimony or alternatively to continue the trial date, that those motions will take a little bit of time?

JUDGE CANNONE: Mr. Jackson, I did see that a list of text messages, a hundred or so, is in your response to my order on Friday. Did you provide the text messages themselves?

JUDGE CANNONE: All right. In light of that and the fact that we don't have time — this jury has been waiting, some as many as 3 weeks now — I'm going to prohibit you from mentioning AKA in your opening statement and then we'll deal with this later today. I ordered those text messages and they weren't delivered. So we're going to be bringing the jury in. I'll be in recess for 5 minutes.

JUDGE CANNONE: Five minutes. Mr. Alessi, Mr. Jackson's going to give me the facts. I would like the law back. That's more than 5 minutes. I'll see you at sidebar. Come up here. Guys, nice. You are muted. You are unmuted.

JUDGE CANNONE: This court is in session. Please be seated. 2282 CR 117, the Commonwealth versus Karen Read. Can I have counsel identify themselves for the record?

JUDGE CANNONE: Good morning, Mr. Lally.

JUDGE CANNONE: Good morning, Mr. Brennan.

JUDGE CANNONE: Good morning, Mr. Jackson.

JUDGE CANNONE: Good morning, Miss Little.

JUDGE CANNONE: Good morning, Mr. Alessi.

JUDGE CANNONE: Good morning, Mr. Yannetti. Good morning, Miss Read. Good morning, jurors. So I have three questions I have to ask you because I haven't seen many of you for a long time and we do appreciate that you were all here ready, willing and able to get started early. We sometimes have to deal with a few things before bringing you in but we do appreciate your patience. So those questions are: were you all able to follow the instructions and refrain from discussing this case with anyone since we last saw you? Everyone said yes affirmatively. Were you also able to refrain from doing any independent research or investigation into this case? Yes. Everyone said yes affirmatively. Did anyone happen to see, hear, or read anything about this case since we last met? Everyone said no or shook their heads.

JUDGE CANNONE: Thank you very much. Jurors, can I have each of you stand and raise your right hands, please? Do each of you solemnly swear you shall well and truly try the issue between the Commonwealth and the defendant according to the evidence and according to the law. So help you God. Thank you. You can have a seat. Jurors, hearken to these indictments.

JUDGE CANNONE: All right. Thank you. All right, members of the jury, I'm about to make some preliminary remarks to you to acquaint you with some of the legal principles, procedure and terminology that you may encounter during the course of this trial. These comments are not intended to be a substitute for the more detailed instructions on the law that I'll give you at the conclusion of the case. So, you'll remember that this is a trial of a criminal case. Miss Read is charged with second-degree murder. She's also charged with manslaughter while operating under the influence and leaving the scene after causing personal injury or death. The indictments that Mr.

JUDGE CANNONE: McDermott just read to you — I'll describe the law in detail at the end of the case and the elements of these charges, but briefly, murder is the unlawful killing of a human being. In order to prove Miss Read guilty of second-degree murder, the Commonwealth must prove beyond a reasonable doubt that she committed an unlawful killing and that it was done with malice. In comparison, manslaughter while operating under the influence is an unintentional unlawful killing caused by wanton or reckless conduct while under the influence of intoxicating liquor. And leaving the scene of an accident after causing personal injury or death requires the Commonwealth to prove that Ms. Read knowingly collided with John O'Keefe, that she caused him injury or death, and that she fled the scene.

JUDGE CANNONE: These terms and the elements of the crimes will be explained to you in detail at the end of the case before you begin your deliberations. Now, please remember that Miss Read starts this trial presumed to be innocent. The fact that she was arrested or that she was indicted is not proof of anything. An indictment is just a piece of paper. It just makes an accusation. It is merely a formal manner of accusing a person of a crime and bringing that person to trial in the superior court. But it is only the jury, in other words, you folks, who can decide whether the prosecution has proved its case beyond a reasonable doubt. If the Commonwealth does not do that, then the presumption of innocence alone requires you to find the defendant not guilty.

JUDGE CANNONE: The law never requires a defendant to prove her innocence, to produce any evidence whatsoever, or to do anything other than attend the trial. This presumption of innocence remains with the defendant until you, the jury, make your determination after listening and considering all the evidence. Now, what is proof beyond a reasonable doubt? The term is often used and probably pretty well understood, though it is not easily defined. Proof beyond a reasonable doubt does not mean proof beyond all possible doubt. For everything in the lives of human beings is open to some possible or imaginary doubt. A charge is proved beyond a reasonable doubt if after you have compared and considered all the evidence, you have in your minds an abiding conviction to a moral certainty that the charge is true.

JUDGE CANNONE: When we refer to moral certainty, we mean the highest degree of certainty possible in matters relating to human affairs based solely on the evidence that has been put before you. In this case, I have told you that every person is presumed to be innocent until he or she is proved guilty and that the burden of proof is on the prosecutor. If you evaluate all the evidence and you still have a reasonable doubt remaining, the defendant is entitled to the benefit of that doubt and must be acquitted. It is not enough for the Commonwealth to establish a probability, even a strong probability, that the defendant is more likely to be guilty than not guilty. That is not enough.

JUDGE CANNONE: Instead, the evidence must convince you of the defendant's guilt to a reasonable and moral certainty, a certainty that convinces your understanding and satisfies your reason and judgment as jurors who are sworn to act conscientiously on the evidence. This is what we mean by proof beyond a reasonable doubt. Now, our system of justice depends on judges like me and jurors like you being able and willing to make careful and fair decisions. All people deserve fair and equal treatment in our system of justice regardless of their race, national origin, religion, age, ability, gender, sexual orientation, education, income level, or any other personal characteristic. You have agreed to be fair, and I am sure that you want to be fair. But that is not always easy.

JUDGE CANNONE: One difficulty comes from our own built-in expectations and assumptions. They exist even if we're not aware of them and even if we believe we do not have them. Some of you may have heard this called implicit bias and that's what I'm talking about. Of course, we judges have the same problem as everyone else. So, let me share a few strategies that we have found useful. First, slow down. Do not rush to a decision. Hasty decisions are more likely to reflect stereotypes or hidden biases. Second, keep an open mind. Avoid drawing conclusions until the end of the case when you and your fellow jurors deliberate. Remember that when you deliberate, you will have all the evidence and all the time you need to make a careful decision. So, there truly is no need to make up your mind before then.

JUDGE CANNONE: Third, you should listen closely to all the witnesses. That is the best way to ensure that you decide this case based on the evidence and the law instead of upon unsupported assumptions. Fourth, as you listen to the testimony about the people involved in this case, please consider them as individuals rather than as members of a particular group. And finally, you might ask yourself, would I view the evidence differently if the people were from different groups such as different racial, ethnic, or gender identity groups? At the end of the case, I will remind you of these strategies and ask you to focus on the evidence instead of any unsupported assumptions you may have.

JUDGE CANNONE: All we ask is that you individually and as a group do your best to resolve this case based upon the evidence and the law without sympathy, bias, or prejudice to the best of your ability as human beings. Now, when I finish these initial instructions, the Commonwealth, Mr. Brennan will make his opening statement. Then Miss Read's lawyer, Mr. Jackson, can choose to make an opening statement or not. Because again, remember, the defendant has no burden of proof and doesn't have to prove anything. Her lawyer does not need to make an opening statement. An opening statement is a summary of what the lawyer expects the evidence at trial will be. It is intended simply to introduce the main issues in this case to you.

JUDGE CANNONE: Next, the prosecution will introduce evidence in support of the charges in the indictments. After that, the defendant may present evidence on her behalf if she wishes to do so, but she is not obliged to do so. Remember, the burden of proof is always on the Commonwealth to prove that the defendant is guilty. The law does not require any defendant to prove her innocence or to produce any evidence at all. After all the evidence, each side will have an opportunity to offer you closing arguments about what conclusions you might draw from the evidence. Like the opening statements, the closing arguments are not evidence. They're merely intended to help you understand the respective contentions of the parties.

JUDGE CANNONE: Finally, after all the evidence and the lawyers' arguments, I will instruct you in detail on the principles of law which you are to apply in your deliberations when you retire to consider your verdict. Your verdict must be unanimous. Let me speak briefly about our respective roles in this case. As the judge, my responsibility is to see that this case is tried orderly, fairly, and efficiently. It's also my function to decide any questions of law that come up during the trial and to instruct you about the law that applies to this case. It is your duty to accept the law as I stated to you, whether you agree with it or not. Your function — you folks are the most important people in the courtroom. Your function is to determine the facts. You are the sole and exclusive judges of the facts.

JUDGE CANNONE: You alone determine what evidence to believe, how important any evidence is that you do believe, and what conclusions all the believable evidence leads you to. You will have to consider and weigh the testimony of all the witnesses who will appear before you. Then you alone will determine whether to believe any witness and the extent to which you believe any witness. You can believe all of what a witness says, some of it or none of it. It's entirely up to you. It is part of your responsibility to resolve any conflicts in testimony that may arise during the course of the trial and to determine where the truth lies. Ultimately, you must determine whether or not the Commonwealth has proved the charges beyond a reasonable doubt. The lawyers have their own important role in this trial.

JUDGE CANNONE: They are, of course, advocates. Their job is to bring to your attention the evidence and arguments that best support their position. They may also object to evidence offered by the other side that may not be admissible under our rules of evidence. Similarly, we may engage in sidebar conferences out of your hearing. These sidebar conferences are not intended to keep secrets from you, but to allow the lawyers a little more time to argue their points so that I may rule on what you may consider as evidence. If I agree with an objection to a question, the term I will use is sustained. You are to disregard that question and you're not to speculate as to what the answer might have been. In the same way, you're to disregard any evidence that I tell you is stricken from the record.

JUDGE CANNONE: If I reject or overrule an objection, I'll permit the witness to answer. This happens a lot. You'll find this during the course of the trial. If I let the witness answer the question, but you're not allowed to give the answer any more weight than you would have had no objection been made. Please do not hold it against the lawyers if they make an objection. That's the important part of the lawyer's job. The lawyers have to let me know when there is a potential issue about the admissibility of certain evidence under our law. You must decide this case solely on the evidence presented in this courtroom. This will include the sworn testimony of witnesses and may also include any exhibits that are admitted into evidence.

JUDGE CANNONE: Any facts that I tell you have been agreed to by both sides and any facts that I indicate to you may be taken as a matter of common knowledge. Questions to witnesses, no matter how artfully phrased, are not evidence. Only the answers which you receive from the witnesses who are testifying under oath are evidence. So if a witness is asked, isn't it true that after you learn that your uncle left you money in his will, you poisoned him? And the witness's answer is no — based solely on that question and answer, there is no evidence that the witness has an uncle, that the uncle had a will, that the uncle left the witness money, that the witness knew that he did, or that the witness poisoned him.

JUDGE CANNONE: Any information that you may have read, heard, or seen about the case outside of the courtroom is not evidence. My instructions to you and any other comments I may make, the lawyers' openings and closing arguments, and any comments they may make are not evidence. I will emphasize this point because it's crucial to your understanding of your role. If the lawyers or I make any comments during the trial, those comments are not evidence and your verdict must be based only on the evidence. In Massachusetts, lawyers are not allowed to make comments other than during opening statements and closing arguments. They are permitted only to ask questions, but they cannot comment on the witness's answer. If a lawyer comments, you are to disregard it.

JUDGE CANNONE: In this way, communication in the courtroom is not like everyday conversation. If a lawyer seems to agree or disagree with an answer, or if a lawyer expresses confusion or any other reaction or emotion, you are to give no weight to what that lawyer does. In the interaction between a lawyer and a witness, you may consider only the witness's testimony as evidence. In a similar way, any comment I make is not evidence. But of course, you can't disregard what I say when I provide you with instruction or direction. Remember, however, I'm the only one who can instruct you or direct you in any way.

JUDGE CANNONE: Finally, on this topic, if one of the lawyers or I refer to some part of the evidence and that does not coincide with your own recollection, it is your collective recollection which you are to follow in your deliberations. Now, in this case, I anticipate that we will go by bus to an area that you'll hear about during the trial. You may consider as evidence anything that you observe about the layout of the area, including the scene of the alleged crime. When we do go there, I will give you further instructions prior to our leaving for the view. Now, in this case, I'm going to allow you to take notes. Any jurors who wish to take notes during the course of the trial, except during opening statements and closing arguments, because remember, those aren't evidence.

JUDGE CANNONE: If you wish to take notes, you may do so once the evidence begins. Notebooks and pencils will be provided to you. The notebooks will be collected each day and they'll be locked up and they will remain confidential. And they're destroyed at the end of the trial. Nobody sees them. You're not required to take notes. The choice is entirely up to you. Some jurors may feel that notes are helpful, particularly if the case involves many witnesses or complicated issues. Notes also can help you remember specific testimony or evidence such as times, places, dates, names, relationships, events, distances, things like that. Other jurors may feel that note-taking is a distraction and may interfere with hearing and evaluating the evidence. If you do take notes, I suggest you keep them brief.

JUDGE CANNONE: They are not and cannot be considered official transcripts of the trial testimony. However, bear in mind that although the court reporter is recording everything that transpires here, we do not have the capability of providing you with the transcript of the testimony at the conclusion of the trial. So, you'll have to rely on your own memories of the testimony, perhaps supplemented by your notes. Regardless of whether or not you take notes, please remember that how a witness testifies may be just as important as what he or she says. Therefore, your observations of the witness's appearance and demeanor on the witness stand may play an important part in your assessment of his or her credibility. Do not let note-taking distract from an appreciation of all the evidence.

JUDGE CANNONE: If you have any trouble hearing or seeing during the trial, please raise your hand or let a court officer know and we'll make any necessary adjustments. We generally take a morning recess at around 11:00 or so, but if you need a break at any other time, please raise your hand and let a court officer know. We'll take a break. If you need to communicate with me during the trial, and I'm not suggesting for a minute that you need to, but if you do, please speak with the court officer or give the court officer a note to bring to me. Now, I'm going to address the issue of public interest in this case again and the duty of this court and this jury to adhere to the rule of law because it is so very important.

JUDGE CANNONE: John Adams famously said that we are a government of laws, not of men and that the law must be deaf as an adder to the clamoring of the public. He meant that while public opinion about a given subject may ebb and flow, the law must be steady, reliable, and evenhanded. We know that on the subject of this case, there are people advocating for one outcome or another with great intensity, but unbound by any oath or even any inclination to follow the actual evidence. The law works in a different way and the difference is crucial to our system of justice. This jury selected for this trial will hear and judge the evidence. You will decide what the facts are, where the evidence is contested. You will determine where the truth lies.

JUDGE CANNONE: Ultimately, this jury will decide whether the Commonwealth has carried its burden of proving that the defendant is guilty of any crime beyond a reasonable doubt. People outside of this building have rights, and we know that they have voices. But this trial will be decided by you, an independent jury, free from outside interference, based only upon the evidence presented in this courtroom and the law. This is the only way to ensure that every person who comes before the court receives a fair trial. It is just that simple and that important. So, while public comment will likely continue, you must ignore it so that the rule of law will be upheld. Which leads me to the fact that it is very important that during this trial, until you deliberate, you must not discuss this case with anyone.

JUDGE CANNONE: This includes your family and friends and even your fellow jurors. Nor should you allow anyone to communicate with you about any specific aspect or any aspect of this case. You must not conduct any independent research about this case, the matters in this case, and the individuals involved in this case. In other words, you must not consult the internet or do anything else to try and find out information from any source outside the confines of this courtroom. Please be very careful with your social media use. Please do not use X or Twitter, Facebook, Instagram, or Reddit. Though you may never have seen anything about this case before on your social media feed, you cannot control what may pop up.

JUDGE CANNONE: You should also remember that use of these platforms can be public and traceable and any searches undertaken or information received by you can and likely will be discovered. So, please be extremely cautious. If you inadvertently see something about this case, please disregard it and let us know. As best as you recognize them, please have no contact with any of the participants in this trial or anyone associated with either side, including the lawyers. Please do not visit any locations that may be mentioned during the trial. We'll go on a view as I told you, and I'll discuss that with you before we go.

JUDGE CANNONE: Remember, you were instructed that you must not and you assured us that you would not read, watch, or listen to any account of any aspect of this case in any news media, social media, or from any other source. It is critical that you follow that instruction. Finally, please continue to keep an open mind. I know that you will try this case according to the oath that you've just taken as jurors. When you took that oath, you promised that you would well and truly try the issues between the Commonwealth and the defendant according to the evidence and the law. If you follow that oath, approach this case with an open mind, and make your decisions fairly and without prejudice or bias or sympathy for anyone, then you will arrive at a true and just verdict. And that's all we ask of you.

JUDGE CANNONE: So, it's now time for the opening statements, Mr. Brennan.