by Richard Resch

The Supreme Judicial Court of Massachusetts unanimously held that G. L. c. 278A (“Act”), the Commonwealth’s postconviction forensic testing statute, permits digital forensic analysis of a cellphone. The Court rejected the Commonwealth’s contention that the Act applies only to laboratory testing of tangible items testable for biological material, concluding that extraction of cellphone data applies a “forensic or scientific technique” and that cellphones and their contents are “evidence” under the Act. It affirmed the allowance of the defendant’s motions to analyze five cellphones seized from a codefendant.

Background

In December 2013, Romeo McCubbin was shot and killed in his car outside a nightclub. Surveillance footage placed three codefendants, among them Andrew Robertson, at the scene, and the prosecution argued that the defendant, Javaine Watson, drove the getaway vehicle, a red Lincoln MKX later found with Watson’s keys, his fingerprints, and a cellphone he used ending in 6426 (“6426 number”).

Watson’s phone listed a number ending in 8764 (“8764 number”) registered to Robertson’s former girlfriend, who canceled it the month of the murder at Robertson’s request. In the month before the murder, that number had 203 contacts with the 6426 number and 312 with the cellphone of Nadira Amoroso, the prosecution’s key witness. Amoroso testified that she had dated Watson, had lent him the Lincoln, and had reached him at both numbers. Trial counsel’s defense was that she was involved with Robertson and had testified falsely to protect him. Amoroso denied knowing Robertson and could not identify him. A jury convicted Watson of murder in the first degree, and the Supreme Judicial Court affirmed.

Chapter 278A Motions

In 2023, Watson filed two motions under G. L. c. 278A, § 3, for analysis of five cellphones seized from Robertson in unrelated matters, alleging that analysis could show Amoroso committed perjury to protect Robertson. Trial counsel had unsuccessfully sought three of the phones before trial and never requested the other two. After an evidentiary hearing at which Watson’s digital forensics expert was the sole witness, a Superior Court judge who had not presided at trial allowed both motions. A single justice allowed the Commonwealth’s petition for leave to appeal under G. L. c. 278, § 33E.

Analysis

The Court began its analysis by reviewing the Act, which permits forensic or scientific analysis of evidence or biological material, “the results of which could support a motion for a new trial.” Commonwealth v. Clark, 34 N.E.3d 1 (Mass. 2015). The Legislature intended “to remedy the injustice of wrongful convictions,” and the Act’s own requirements, not those for a new trial motion under Mass. R. Crim. P. 30, control discovery under it, the Court observed. Commonwealth v. Wade, 5 N.E.3d 816 (Mass. 2014) (“Wade II”), S.C., 55 N.E.3d 409 (Mass. 2016) (“Wade III”). The Act permits DNA testing and forensic testing of nonbiological items as well. Commonwealth v. Jenks, 170 N.E.3d 313 (Mass. 2021) (ballistics); Commonwealth v. Williams, 119 N.E.3d 1171 (Mass. 2019) (gunshot residue and fingerprints); Wade II (seminal fluid).

Scope of Permissible “Analysis”

The Legislature defined “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.” G. L. c. 278A, § 1. It left “forensic or scientific technique” and “evidence” undefined. The Court gave both their plain and ordinary meaning, construing them so that no word is inoperative or superfluous. Matter of E.C., 92 N.E.3d 724 (Mass. 2018); Commonwealth v. Fleury, 183 N.E.3d 1145 (Mass. 2022).

The Commonwealth conceded that the analysis Watson’s expert described is forensic science but argued that an extraction report falls outside the Act because it “can be generated by a layperson with basic training and read by anyone.” The Court distinguished Commonwealth v. Cronin, 248 N.E.3d 142 (Mass. 2025), which concerned only lay testimony about operating an extraction tool and explained that such a witness may not testify to the tool’s accuracy or reliability. Digital extraction applies a forensic or scientific technique, the Court concluded.

Turning to “evidence,” the Court observed that the term ordinarily includes objects “that tend[] to prove or disprove the existence of an alleged fact.” Black’s Law Dictionary 696 (12th ed. 2024). The Court determined that cellphones and their contents – call logs, message logs, location information, and application data – “fall comfortably within the scope of ‘evidence.’” Commonwealth v. Carleton, 272 N.E.3d 285 (Mass. 2026); Cronin; Commonwealth v. Woollam, 87 N.E.3d 64 (Mass. 2017).

The Court rejected the Commonwealth’s position that “evidence” means only tangible items “capable of being handled, preserved, consumed, degraded, or destroyed” by testing and containing biological specimens. The Act attaches no such restrictions to the term, nor do § 8’s analysis standards. The Court stated, “We do not read into the [Act] a provision which the Legislature did not see fit to put there, nor add words that the Legislature had the option to, but chose not to include.” Wade III. The Court explained that the Act applies to “evidence or biological material,” and the disjunctive “or” indicates that “evidence” is distinct from “biological material,” a term separately defined. Confining “evidence” to items testable for biological specimens would render the separate term “biological material” largely superfluous.

Re-analysis with an updated technique requires a showing of “a material improvement over any previously conducted analysis in accurately identifying or excluding the [moving] party as the perpetrator of the crime.” The moving party also must satisfy the Act’s other requirements. Commonwealth v. Donald, 8 N.E.3d 727 (Mass. 2014). The Act does not cover all evidence, the Court noted. The item must be “of a type as to which a forensic or scientific technique may be applied.”

Allowance of the Motions

The Court next addressed § 7(b)(3), which required Watson to show by a preponderance of the evidence that the analysis had not been performed earlier for a reason listed in § 3(b)(5). The motion judge found that a reasonably effective attorney would have sought the analysis; trial counsel failed to seek it as to two phones, and the trial judge denied the request as to three, satisfying § 3(b)(5)(iv). A moving party need show only that “‘a’ reasonably effective attorney would have sought the requested analysis, not that every reasonably effective attorney would have done so.” Wade II. The Court rejected the Commonwealth’s reading of prong (iv) as limited to denials resting on inadmissibility, which confuses it with prong (ii) and would render that prong superfluous. Tze-kit Mui v. Massachusetts Port Auth., 89 N.E.3d 460 (Mass. 2018).

The Court then examined § 7(b)(4), under which Watson had to show that the analysis “has the potential to result in evidence that is material to the [defendant’s] identification as the perpetrator of the crime in the underlying case.” Evidence is material when it “is of significance to the moving party’s identification as the perpetrator of the crime.” This includes evidence that “would tend to support” the defense theory and “challenge the Commonwealth’s account of the sequence of events.” Commonwealth v. Ramos, 198 N.E.3d 437 (Mass. 2022). Analysis of Robertson’s phones could reveal communications with Amoroso showing that she testified falsely in denying that she knew him, undermining her testimony as a whole. The Court explained that the statutory term “potential” permits analysis even if it ultimately does not produce the sought evidence. Clark.

The requested analysis would not produce “mere” impeachment evidence, the Court determined. The remaining inculpatory evidence, i.e., Watson’s fingerprints in the Lincoln and his contacts with the codefendants, may affect whether Watson can later obtain a new trial, but it does not bar the requested discovery under the Act, the Court explained. Commonwealth v. Gaines, 240 N.E.3d 193 (Mass. 2024). The Act does not permit a defendant to bypass rule 30. To obtain a new trial, Watson must still satisfy that rule, the Court instructed.

Conclusion

Accordingly, the Court affirmed the allowance of Watson’s motions for postconviction forensic analysis under G. L. c. 278A. See: Commonwealth v. Watson, 2026 Mass. LEXIS 348 (2026).  

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