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Sufficiency of Proof of Serious Bodily Injury in Connection With Crime of Assault and Battery Causing SBI Not Found by Massachusetts Supreme Judicial Court

Last week in Commonwealth v. Scott, the Massachusetts Supreme Judicial Court discussed the concept of Serious Bodily Injury in connection with the crime of Assault and Battery Causing Serious Bodily Injury. See Commonwealth v. Scott.

The facts of the case are as follows:

In 2006 the defendant and the victim had two children together. The couple did not live together. On October 23, 2006 the defendant went to the victim’s home. He accused her of seeing someone else. She admitted to doing so. The defendant punched the victim in the face and stomach. Neither that night nor the next day would the defendant permit the victim to leave her home. During that time the beatings continued. Eventually the police were called to the home. The defendant fled. The victim was taken to the hospital where it was determined that, among other things she had sustained a “grade II” lacerated liver. At trial the prosecution advanced the theory that the defendant’s punches to the victim’s stomach caused the damage to the liver. The district attorney drew authority from Massachusetts General Laws Chapter 265 Section 13(b)(i) which makes it a crime to commit an Assault and Battery that causes Serious Bodily Injury. Under this statute Serious Bodily Injury is defined as causing loss or impairment of an organ. Of applicable significance to Commonwealth v. Scott is the word “impairment”. The court reasoned that impairment of an organ, therefore, occurs when damage to the structure of the organ is significant enough to compromise its ability to perform its function in the victim’s body.” Absent expert testimony explaining the nature and extent of the liver injury, or medical records identifying the same, the jury could not have found, without speculation the presence of this element. The Supreme Judicial Court concluded that the defendant’s motion for a required finding of not guilty should have been allowed. The verdict as to this indictment was reversed.

The use of expert witnesses in Massachusetts Criminal Cases is often necessary for the accused to succeed in defending his or her case. Our office has used expert witnesses for all types of criminal cases; OUI cases, Rape, Drug Offenses, Theft Crimes and more. Sometimes experts are used to provide reports that assist a judge in determining how someone who is convicted or pleads guilty should be sentenced. Expert witnesses can educate jurors, corroborate defense theories, counter prosecution experts and help to exclude evidence that should not be presented to a jury. In this case the fact that the Commonwealth’s case could not survive without an expert does not mean that their engagement of an expert would have resulted in a successful prosecution. It might have been the other way around. A doctor’s testimony might have shown that there was no impairment and just maybe this is why the district attorney did not call an expert to trial.


The Law Offices of Stephen Neyman, PC views defending people accused of committing crimes as a privilege. If you are in trouble call us. Our number is 617-263-6800. You can also send us an email.