## Facts

- Police seized sexually explicit materials from premises associated with an adult-oriented business operated or managed by an individual defendant and a corporate defendant.
- The Commonwealth indicted both defendants for possessing obscene matter with intent to disseminate under G.L. c. 272, § 29.
- The defendants conceded the materials depicted “sexual conduct” as defined by G.L. c. 272, § 31, but challenged the obscenity definition and related constitutional and evidentiary rulings.
- In a jury-waived Superior Court trial, the judge found both defendants guilty on all counts.
- The defense offered a public opinion survey to show community acceptance or toleration of such materials; the trial judge excluded the survey.
- On direct appellate review, the defendants waived any claim that the prosecution was required to proceed first through statutory in rem procedures for obscene materials.

## Issues

1. Whether the statutory definition of “obscene matter” in G.L. c. 272, § 31 is unconstitutionally vague under federal or state due process principles.
2. Whether the Commonwealth must present expert testimony to prove obscenity and contemporary community standards in a prosecution under G.L. c. 272, § 29.
3. Whether § 29 requires proof that defendants knew the materials were legally obscene, rather than merely knowing their nature and character.
4. Whether exclusion of the defense public opinion survey regarding community standards was error.
5. Whether the Massachusetts obscenity scheme violates art. 16 of the Massachusetts Declaration of Rights.

## Decision

- The Supreme Judicial Court affirmed the convictions.
- The court held the § 31 definition of “obscene matter” is not unconstitutionally vague and satisfies constitutional obscenity requirements.
- The court held expert testimony is not required to establish obscenity or community standards.
- The court held § 29 does not require proof that a defendant knew the materials were legally obscene; knowledge of their content and character suffices.
- The court held exclusion of the proffered public opinion survey was proper because the offer of proof did not establish representativeness or relevance to a material issue.
- Two dissents would have found the statutory scheme inconsistent with art. 16, but the majority rejected that view.

## Legal Principles

- A statutory obscenity definition that tracks the constitutional obscenity framework (including prurient appeal and patent offensiveness judged by the average person applying contemporary statewide standards) is not void for vagueness.
- In obscenity prosecutions, the fact-finder may determine obscenity by examining the materials; the Commonwealth is not required to present expert testimony on community standards.
- For possession of obscene matter with intent to disseminate, the Commonwealth must prove the defendant knew the character and content of the materials; it need not prove knowledge that the materials met the legal definition of obscenity.
- Survey evidence offered to show community standards may be excluded when the proponent fails to lay a foundation showing the surveyed group is representative and the results are relevant to the legal issues in dispute.

## Conclusion

The court upheld Massachusetts obscenity convictions and reaffirmed the constitutionality of the statutory definition of “obscene matter,” ruling that the prosecution need not use expert testimony, that mens rea does not include knowledge of legal obscenity, and that a community-opinion survey may be excluded absent a reliable foundation and demonstrated relevance.


Commonwealth v. Trainor, 374 Mass. 796, 374 N.E.2d 1216 (1978)