SUPREME JUDICIAL COURT DIRK GKEINEDER - Mass Cases

3. The Commonwealth may not misuse evidence
admitted for a limited purpose or refer
to "facta" which were not admitted at
trial in its cloaing argument.
The Commonwealth's misuse of evidence introduced for
a limited purpose is error and may create a substantial
risk of unfair prejudice. See, e.q., Commonwealth v.
Rosa, 412 Mass. 147, 157 (1992). Prosecutors must limit
their arguments "to facts in evidence and inferences that
may reasonably be drawn from the evidence." Commonwealth
v. Coren, 437 Mass. 723, 731 (2002).
4. Standard of review.
The trial court's determination of whether evidence
is relevant and, if so, whether it is more probative than
prejudicial, is reviewed for "palpable error.
Commonwealth v. Talbot, 444 Mass. 586, 589 n.2 (2005).
In adjudicating a claim of error during the
Commonwealth's closing argument, a reviewing court
considers:
(1) whether the defendant seasonably objected;
(2) whether the error was limited to
collateral issues or went to the heart of the
case; (3) what specific ox general
instructions the judge gave the jury which may
have mitigated the mistake; and (4) whether
the error, in the circumstances, possibly made
a difference in the jury's conclusions.
Commonwealth v. Perez, 444 Mass. 143, 151 ( 2005).
C. Application of Law to Pacts.
1. The sex evidence was inadmissible.
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