Criminal defense bar: SJC’s digital forensics case a win for truth - Massachusetts Lawyers Weekly

Home > Practice Areas > Criminal > Criminal defense bar: SJC’s digital forensics case a win for truth DEPOSITPHOTOS.COM Criminal defense bar: SJC’s digital forensics case a win for truth Rules post-conviction cellphone testing allowed Kris Olson//July 20, 2026// Listen to this article In brief The Supreme Judicial Court ruled that Chapter 278A permits post-conviction digital forensic analysis of cellphones, not just DNA or biological evidence. The decision allows defendant to seek forensic examination of co-defendants’ cellphones in support of a potential new trial. The SJC held that the statute’s broad language encompasses digital evidence and rejected prosecutors’ argument that it applies only to tangible biological evidence. Defense attorneys and innocence advocates say the ruling broadens access to evidence that could uncover wrongful convictions and strengthen post-conviction review. The state law that permits post-conviction access to “forensic and scientific analysis” applies equally to digital forensic analysis of a cellphone as to DNA testing, the Supreme Judicial Court has decided. In Commonwealth v. Watson, prosecutors argued that the defendant was not entitled to discovery under G.L.c. 278A because the act narrowly permits only “laboratory testing” of “physical evidence.” At oral argument, the commonwealth used the example of a “bloody sock” onto which a biological specimen had been deposited. The prosecution made that argument even though the SJC had previously recognized the act permits post-conviction testing of clothing, shell casings, and ballistics for non-DNA evidence. In Chapter 278A, the Legislature had defined the term “analysis” as “the process by which a forensic or scientific technique is applied to evidence or biological material to identify the perpetrator of a crime.” But it had not gone on to define the terms “forensic or scientific technique” or “evidence,” the SJC noted. The commonwealth’s principal argument was that the requested digital forensic analysis did not involve “evidence” as that term is used in Chapter 278A. The court disagreed. “The Commonwealth’s argument that the ‘structure’ of G.L.c. 278A ‘presupposes’ that ‘evidence’ consists of ‘tangible evidence capable of being handled, preserved, consumed, degraded or destroyed’ by testing and thus (according to the Commonwealth) does not encompass a cell phone or its digital contents, as well as its further contention that ‘evidence’ is limited to items containing biological specimens, ignores that the act uses the term ‘evidence ‘without the additional features fashioned to it by the Commonwealth,” Justice Dalila Argaez Wendlandt wrote for the court. The 31-page decision is Lawyers Weekly No. 10-078-26. Shining a light on injustice Given how prevalent the use of digital forensics has become in criminal cases, the defendant’s appellate counsel, Merritt S. Schnipper, said he was surprised the central issue in Watson had not come up sooner. One reason may be that prosecutors will frequently agree to the digital forensic testing, the Greenfield lawyer said. “This is the first time there’s been meaningful, contested litigation, even at the Superior Court level, about 278A’s application to digital forensics,” he said. The expansive definition of the term “analysis” in the statute has always been there, Schnipper added. “It’s really just previously been cabined by the imagination of the lawyers working on the cases, frankly,” he said. For the defendant in Watson individually, the SJC’s decision opens multiple avenues to argue for a new trial, Schnipper said. “I expect we’ll be within these phones within six weeks, and we’ll know — or have a pretty good sense — of what they contain,” he said. But the SJC’s decision will have implications for other defendants, too, Schnipper said. “There are going to be significant other situations in which digital forensic analysis is going to be sought post-conviction, because one of the things that makes this so well-suited to 278A is that there’s such a wide variety of information preserved in these devices,” he said. This is the first time there’s been meaningful, contested litigation, even at the Superior Court level, about 278A’s application to digital forensics. — Merritt S. Schnipper, Greenfield Schnipper said he was particularly pleased to see Wendlandt refer to Chapter 278A as a “discovery tool,” which is not always how it is described. “This is about getting information, and one of the things that is so challenging for [the defense bar] pretrial is that the government is the primary gatekeeper for access to the information necessary to fully explore a case,” he said. “Post-conviction, what the Legislature has specifically said is, alright, now that the conviction is in place — often a person is incarcerated — we’re going to loosen the controls on access to information because it’s really important to know that it was gotten right, to the extent that this stuff can help you do that. And it often can.” Radha Natarajan, executive director of the New England Innocence Project, which signed onto an amicus brief in Watson, agreed. “I see 278A as about finding the truth, and that both the Legislature and the court recognize that verdicts don’t always represent the truth,” she said. “People must have every reliable avenue to demonstrate that truth, even after they’ve been convicted.” The need for such a mechanism is particularly acute in Suffolk County, from which Watson emanates, Natarajan said. Official data from the National Registry of Exonerations show that Suffolk County has the greatest number of exonerations in the state, and 65 percent of those exonerations involved perjury, she noted. Suffolk Country’s wrongful convictions collectively account for more than 681 years in prison, Natarajan added. “The Watson decision is both true to the statutory language as well as the reality of wrongful convictions in the commonwealth,” she said. Michael Avitzur, director of government relations and public affairs at the Boston Bar Association, said as far back as 2009, when the BBA published its report “Getting it Right,” it has been clear that the Legislature purposefully designed Chapter 278A to apply to more than just DNA testing. “The Legislature recognized in enacting this that science would evolve, and they had the foresight to provide for the statute to cover types of testing that weren’t even contemplated at the time,” he said. The distinction between biological evidence and digital evidence for which the commonwealth was arguing does not have any basis either in the language of the statute or in science, said Mitha Nandagopalan, who worked on the amicus brief in Watson for the national Innocence Project. “Forensic testing can apply to lots of kinds of evidence, including digital evidence, and that evidence contemplates not just biological material but anything that can be analyzed and can have probative value in a case,” they said. Boston criminal defense attorney Alyssa T. Hackett said digital evidence, “for better or worse, has become a powerful and ubiquitous piece of evidence that reveals location information, communications, payments, search history and a myriad of details that could prove essential evidence that the defendant was wrongfully convicted.” To be sure, the Watson decision benefits people who are wrongly convicted, said Claudia Leis Bolgen, chair of the Massachusetts Association of Criminal Defense Lawyers Amicus Committee. “But truth also serves victims, the integrity of the criminal justice system, and ultimately society at large,” she said. “In Watson, the SJC rejected putting roadblocks in the way of truth, and that is the real victory here.” Possible perjury Romeo McCubbin was shot and killed while sitting in his car after attending an event at a nightclub in December 2013. Surveillance footage connected three men — Omar Bonner, Andrew Robertson and Omar Denton — to the crime. A fourth co-defendant, Javaine Watson, was initially tied to the murder when police discovered inside the alleged getaway vehicle the keys to Watson’s own car and to the back door of his home, along with a cellphone registered to Watson’s stepmother, which he used. Digital forensic analysis of the cellphone showed numerous communications between the phone and the co-defendants’ cellphones in the month preceding the murder, including multiple calls on the days before and on the night of the shooting. Listed on Watson’s phone was the contact information for a phone number ending in 8764, which was registered to Robertson’s former girlfriend. At Watson’s trial, a key prosecution witness was Nadira Amoroso, who testified that she had been dating Watson at the time of the murder and that Watson had asked to borrow the getaway vehicle, a Lincoln that she had rented. She also placed Watson at the scene of the crime and described an alleged conversation with him the morning after the murder. Most pertinent to the issue that would arise under Chapter 278A, Amoroso testified that she reached Watson at two different numbers, the one registered to Watson’s stepmother and the 8764 number associated with Robertson’s former girlfriend. Watson’s defense argued that Amoroso committed perjury to protect her real love interest, Robertson. Watson’s trial counsel noted that in the month before the murder, there were approximately 312 contacts between Amoroso’s cellphone and the 8764 number but only one between Amoroso and the phone registered to Watson’s stepmother. Commonwealth v. Watson THE ISSUE: In addition to DNA testing of biological material, does Chapter 278A contemplate digital forensic testing of cellphones seized by police? DECISION: Yes (Supreme Judicial Court) LAWYERS: Darcy A. Jordan, Ian Polumbaum and David D. McGowan, of the Suffolk County District Attorney’s Office, Boston (commonwealth) Merritt S. Schnipper of Schnipper Hennessy, Greenfield (defense) In the meantime, in connection with investigations of unrelated crimes, police had seized five other cellphones from Robertson, three of them two months after McCubbin’s shooting, and two of them five months before it. In May and December 2023, Watson filed two motions pursuant to G.L.c. 278A, §3, hoping that forensic analysis of the phones could yield evidence demonstrating that Amoroso had committed perjury to protect Robertson. In May 2025, the judge allowed Watson’s motions for forensic analysis of the five cellphones, concluding that digital forensics falls within the scope of “analysis” contemplated by the act, rejecting the commonwealth’s suggestion to the contrary. The commonwealth appealed, and last November a single justice of the SJC allowed the commonwealth’s petition under the gatekeeper provision of G.L.c. 278, §33E. Other arguments fail With respect to the term “forensic or scientific technique,” the SJC noted that it “need not dwell long” on the question of whether digital extraction of data on cellphones qualifies, given that the commonwealth had conceded that it did. Its effort to revive that argument by pointing to the SJC’s decision last year in Commonwealth v. Cronin failed. The prosecution also tried to support its argument by referencing §8 of G.L.c. 278A. But Wendlandt said the use of the word “or” in the phrase “evidence or biological material” suggested that the Legislature contemplated forms of evidence beyond “biological material” in fashioning the act. As the 49th state to enact legislation allowing for post-conviction testing, Massachusetts had templates to follow if it wanted to restrict such testing to biological material, as California, Colorado and North Carolina have done, the SJC noted. Instead, the law was crafted to provide a “broad, remedial mandate.” The court also rejected the commonwealth’s argument that Watson had not met his burden to show that the requested forensic analysis would yield evidence that is material to his identification as the perpetrator of the crime. The analysis has the potential to provide more than “mere” impeachment evidence, the court noted. “Evidence that Amoroso and the defendant did not in fact have numerous telephone calls together would ‘challenge the Commonwealth’s account of the sequence of events’ — namely, that the defendant was a full participant in the advanced planning of the murder, including by asking Amoroso if he could borrow the Lincoln, which the Commonwealth alleged the defendant used to bring Robertson to the location of the shooting and then to assist Robertson in fleeing the scene,” Wendlandt wrote. The commonwealth also tried to call the court’s attention to the other evidence tying Watson to the crime beyond Amoroso’s testimony, such as the presence of his fingerprints and belongings in the Lincoln and the call logs showing numerous contacts between him and his co-defendants around the time of the murder. “That other evidence may pose a challenge for the defendant to successfully move for a new trial… but it does not govern his ability to access discovery under the act, which was intended to ‘provide increased and expeditious access to scientific or forensic testing,’ ‘the results of which might support a motion for a new trial,’” Wendlandt wrote. RELATED JUDICIAL PROFILES Wendlandt, Dalila A. 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