## Facts

- A shooting occurred outside a bar in Revere, Massachusetts, on April 24, 1980, after a man ordered two youths who were wrestling to move and then shot one youth at close range.
- The shooter walked away with another man, entered a car, and drove off.
- Dennis M. Daye was tried before a jury and convicted of assault by means of a dangerous weapon, unlawfully carrying a firearm, and (as a lesser included offense) assault with intent to kill.
- The Commonwealth’s proof of identity relied heavily on: (1) one eyewitness’s in-court identification of Daye as the gunman, despite the witness’s admission that he had previously identified a codefendant as the gunman at a lineup; (2) testimony about prior photographic identifications; and (3) grand jury testimony from witnesses who at trial would not or could not identify Daye.
- A key witness, Steven Ciambelli, told the grand jury he recognized Daye as the shooter, but at trial denied recognizing Daye; the trial judge admitted Ciambelli’s grand jury testimony as past recollection recorded.

## Issues

1. Whether the trial court erred in admitting testimony about pretrial photographic identifications and witnesses’ grand jury statements when those witnesses could not or would not identify Daye at trial.
2. Whether, and under what conditions, a witness’s prior inconsistent grand jury testimony may be admitted substantively (for its truth), rather than only for impeachment.

## Decision

- The Supreme Judicial Court affirmed the Appeals Court’s reversal of the convictions and ordered a new trial.
- The court held that repudiated grand jury testimony could not be admitted as past recollection recorded when the witness disavows the statement’s accuracy.
- The court modified Massachusetts common law to permit a limited category of prior inconsistent grand jury testimony to be admitted for its probative value, subject to defined conditions.
- The court limited the new rule to grand jury testimony and left other categories of prior inconsistent statements for later case-by-case development.

## Legal Principles

- A prior statement cannot qualify as past recollection recorded if the witness affirmatively repudiates or disavows the statement’s accuracy.
- Prior inconsistent grand jury testimony may be admitted as substantive evidence if:
  - the declarant testifies at trial and is subject to cross-examination about the prior statement;
  - the prior statement is genuinely inconsistent with the trial testimony (including a claimed lack of memory or repudiation); and
  - the statement was made under circumstances of substantial reliability, including being given under oath before a grand jury and subject to perjury penalties.
- Even where a new substantive-evidence rule applies, a conviction may require reversal if the trial record shows improper, prejudicial use of identification and prior-statement evidence, particularly where identity proof is weak.

## Conclusion

The court ordered a new trial due to prejudicial evidentiary errors and simultaneously adopted a limited rule allowing prior inconsistent grand jury testimony to be used for its truth when reliability safeguards are present and the witness appears and can be cross-examined at trial.


Commonwealth v. Daye, 469 N.E.2d 483 (Mass. 1984)