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-0970 (Mass. App. Ct. July 24, 2026), the court set aside a Boston Municipal Court jury verdict for assault and battery on a family or household member, holding that a closing argument that vouched for the complainant’s credibility, misstated the evidence, and asserted the defendant’s guilt created a substantial risk of a miscarriage of justice. The decision was issued under Appeals Court Rule 23.0 and is not binding precedent, but it may be cited for its persuasive value, and it shows how a credibility contest at trial is supposed to be fought, and how it is not.

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, 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, acquitted him of the other, and acquitted him 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 it. The case turned entirely on which account the jury believed.

The Prosecutor’s Closing Argument

The defendant identified a series of improper statements in the closing. Three categories mattered most. First, the prosecutor told the jury that false accusations motivated by revenge or anger “doesn’t happen.” That statement was improper vouching, because it 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, which no witness had said. 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 these were definitive assertions of guilt, not argued inferences.

The Appeals Court’s Decision

Trial counsel had not objected, so the Appeals Court reviewed for a substantial risk of a miscarriage of justice, and it found one. The case was the complainant’s word against the defendant’s, and the improper remarks went to the heart of the case: her credibility. The judge’s instructions that closing arguments are not evidence came before the closings and were not repeated afterward, and the panel concluded that these standard instructions could not cure errors of this significance. Commonwealth v. Dirgo, 474 Mass. 1012, 1017 (2016). The court vacated the judgment and set aside the verdict. It rejected the defendant’s separate argument that the absence of a specific unanimity instruction was structural error, reviewing that omission under the same substantial risk standard, Commonwealth v. Palermo, 482 Mass. 620, 629 (2019), and it held that the defendant’s double jeopardy argument was premature: if the Commonwealth seeks a retrial, the defendant may then move to dismiss. 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, and this decision confirms that the rules of argument are strictest exactly there. Jurors are the sole judges of credibility, and they want to do that job on the evidence; an argument that tells them the complainant must be believed because false accusations do not happen takes the decision away from them. 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. It is also a reminder that a jury verdict is not always the last word: this conviction was vacated on appeal, and the split verdicts at trial, acquittals on two of the four charges, show a jury that 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. What each record shows and what can be done about it is treated in The Records a Dismissed Massachusetts Domestic Violence Case Leaves Behind. A defendant who prevails on appeal should address the records question as part of finishing the case.

The Bottom Line for a Pending Case

A domestic violence trial that comes down to one person’s word against another’s is winnable, and it is also protectable 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.