Criminal – Prior bad acts

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Where a jury convicted a defendant of two counts of rape of a child with force and two counts of aggravated rape of a child, the convictions should be vacated because prior bad act evidence may have overwhelmed the proceedings.

“Following a jury trial in the Superior Court, the defendant was convicted of two counts of rape of a child with force and two counts of aggravated rape of a child. This case presents a classic credibility contest between the victim and the defendant. The victim was the defendant’s daughter, who was a young teenager at the time the offenses were committed. The defendant, who testified in her own defense, denied all the allegations, contending that the victim was not credible.

“On appeal, the defendant contends that the judge erred in admitting prior bad act evidence. Mindful that we are reviewing most of this evidence to determine whether any error created a substantial risk of a miscarriage of justice, we conclude that this case presents the rare circumstance in which prior bad act evidence may have overwhelmed the proceedings; the record lacks careful and reasoned judicial scrutiny of each act, and the jury were not provided with contemporaneous limiting instructions. Accordingly, we are constrained to vacate the convictions. …

“Here, the judge did not expressly weigh the probative value of the prior bad act evidence against the risk of unfair prejudice to the defendant. … And we cannot say that he did so implicitly by the admission of the evidence, … where the judge indicated that he would defer certain rulings until he heard some initial testimony, but failed to revisit the admissibility of the bad act evidence. This causes us concern because, ‘even if relevant, a judge must guard against the risk that evidence of prior bad acts will divert the jury’s attention from the charged acts.’ … Here, the sheer amount of prior bad act evidence introduced by the Commonwealth was substantial in comparison to the evidence presented of the crimes charged. Indeed, it risked overwhelming the case with bad act evidence and distracting the jury from determining whether the Commonwealth proved its case beyond a reasonable doubt. …

“… The judge did not mitigate any potential prejudice by the admission of this evidence by providing clear, forceful contemporaneous limiting instructions, only providing them in his final charge to the jury, as part of his entire final instructions. …

“Accordingly, we are constrained to conclude that the judge’s admission of extensive prior bad act evidence, without a careful balancing of its probative value against the risk of unfair prejudice, and without any contemporaneous limiting instructions, despite the lack of objection, was an abuse of discretion and created a substantial risk of a miscarriage of justice. …”

Commonwealth v. Polacke (Lawyers Weekly No. 81-043-26) (13 pages) (Docket No. 24-P-1020) (April 21, 2026).

Click here to read the full text of the opinion.