Improper Closing Argument in a Domestic Violence Trial: Commonwealth v. Pena

The Massachusetts Appeals Court has vacated a domestic violence conviction because of the prosecutor’s closing argument. In Commonwealth v. Pena, No. 24-P-970 (Mass. App. Ct. July 24, 2026), the Appeals Court set aside a Boston Municipal Court jury verdict for assault and battery on a family or household member.

The court held that the prosecutor created a substantial risk of a miscarriage of justice by vouching for the complainant’s credibility, misstating the evidence, and asserting the defendant’s guilt in closing argument. The decision was issued under Appeals Court Rule 23.0 and is not binding precedent, but it may be cited for its persuasive value. The decision shows the proper and improper ways to conduct a trial that is a credibility contest.

The Trial and the Verdicts

A criminal complaint issued on August 31, 2022, charging the defendant with threatening to commit a crime, G. L. c. 275, § 2. The complaint also charged the defendant with two counts of assault and battery on a family or household member, G. L. c. 265, § 13M (a), and assault by means of a dangerous weapon.

After a two-day trial in August 2023, the jury convicted the defendant of one count of assault and battery on a family or household member. The jury acquitted the defendant of the other count and of assault by means of a dangerous weapon. The complainant testified that the defendant struck her and held a small kitchen knife to her neck. The defendant testified and denied the complainant’s account. The outcome of the case depended entirely on which account the jury believed.

The Prosecutor’s Closing Argument

The defendant identified a series of improper statements in the closing. The court addressed three categories of statements. First, the prosecutor told the jury that false accusations motivated by revenge or anger “doesn’t happen.” The prosecutor’s statement about false accusations was improper vouching, because the statement implied that the prosecutor had knowledge, independent of the evidence, about how charges are brought.

Improper vouching occurs when an attorney expresses a personal opinion regarding the credibility of a witness or suggests knowledge independent of the evidence before the jury. Commonwealth v. Muller, 477 Mass. 415, 433 (2017); Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). The Commonwealth conceded on appeal that the phrase was “certainly ill-advised.”

Second, the prosecutor misstated the evidence, including an assertion that the defendant had “slammed” the complainant’s head. No witness had said that the defendant slammed her head. A prosecutor may not misstate the evidence or refer to facts not in evidence in closing argument. Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). Third, the prosecutor declared, “This fight did happen. [The defendant] did do those injuries to [the victim]. He did beat her up.”

A prosecutor may urge the jury to draw inferences from the evidence, Commonwealth v. Martinez, 476 Mass. 186, 199 (2017), but may not express a personal opinion on the defendant’s guilt. Commonwealth v. Penn, 472 Mass. 610, 627 (2015); Commonwealth v. Howell, 394 Mass. 654, 661 (1985). The panel held that the prosecutor’s declarations were definitive assertions of guilt, not argued inferences.

The Appeals Court’s Decision

Trial counsel had not objected, so the Appeals Court reviewed the closing argument for a substantial risk of a miscarriage of justice. The court found that the improper statements created a substantial risk of a miscarriage of justice. The case was the complainant’s word against the defendant’s. The improper remarks concerned the central issue in the case, the complainant’s credibility. The judge instructed the jury before the closings that closing arguments are not evidence but did not repeat those instructions afterward.

The panel concluded that the standard instructions could not cure the significant errors in the prosecutor’s closing argument. Commonwealth v. Dirgo, 474 Mass. 1012, 1017 (2016). The court vacated the judgment and set aside the verdict. The court rejected the defendant’s separate argument that the absence of a specific unanimity instruction was structural error.

The court reviewed the omission of the instruction under the same substantial risk standard, Commonwealth v. Palermo, 482 Mass. 620, 629 (2019). The court also held that the defendant’s double jeopardy argument was premature. The defendant may move to dismiss if the Commonwealth seeks a retrial. Commonwealth v. Hrycenko, 417 Mass. 309, 314-317 (1994).

What the Decision Means for a Domestic Violence Case

Many domestic violence prosecutions are credibility contests with no independent witnesses. The decision confirms that the rules of argument are strictest in a credibility contest. Jurors are the sole judges of credibility. Jurors want to judge credibility on the evidence. A prosecutor who tells the jurors that the complainant must be believed because false accusations do not happen takes the credibility decision away from the jurors.

For the defense, the decision is a reminder that closing arguments must be scrutinized in real time and preserved for appeal, and that even without an objection, pervasive error in a word-against-word case can require a new trial. The decision is also a reminder that a jury verdict does not always end a case. The Appeals Court vacated the defendant’s conviction. The split verdicts at trial, with acquittals on two of the four charges, show that the jury was already weighing the evidence charge by charge.

The Records After a Vacated Conviction

A vacated conviction, like a dismissal or an acquittal, leaves a paper record. The docket, the police reports, and the Board of Probation entry all persist unless further steps are taken. The firm’s page Domestic Violence Case Records in Massachusetts explains what each record shows and what can be done about each record. A defendant who prevails on appeal should address the records question as part of finishing the case.

Summary for a Person With a Pending Case

A domestic violence trial that depends on one person’s word against another’s can end in an acquittal. A conviction in a word-against-word trial can also be challenged on appeal when the Commonwealth argues beyond the evidence. Anyone facing an assault and battery charge involving a family or household member should have trial counsel who knows the boundaries of closing argument and enforces them. Serpa Law Office tries domestic violence cases in the Boston Municipal Court and the district courts of Greater Boston.