Appeals Court Vacates OUI Conviction After Jury Sees Prior Offense
The Massachusetts Appeals Court recently vacated an OUI conviction in Commonwealth v. Greg McCollum (24-P-1308, March 13, 2026), after jurors were inadvertently exposed to evidence that the defendant was charged as a second offender.
At first glance, the case looks like a powerful defense win—one that reinforces the strict rule prohibiting juries from learning about prior OUI offenses during trial.
But before diving into the substance, one point must be made clear:
This is a Rule 23.0 decision.
That means:
It is a summary decision
It reflects only the views of the panel
It is not binding precedent
It may be cited only for persuasive value
The Appeals Court expressly includes that limitation in the decision itself.
Even so, McCollum offers valuable insight into how Massachusetts courts treat:
Ineffective assistance of counsel
Jury exposure to prior bad acts
The prejudice created by second-offense evidence in OUI cases
The Core Issue: Jury Exposure to Prior OUI Offense
The central problem in McCollum was simple—but devastating:
The jury learned that the defendant was charged with OUI, second offense.
That information is strictly prohibited during the first phase of a bifurcated OUI trial.
Under Massachusetts law:
The jury deciding guilt on an OUI charge must not hear anything about prior OUI convictions.
This rule exists to prevent exactly what happened here: unfair prejudice.
The Facts: A Typical OUI Case—With One Critical Mistake
The defendant was involved in a multi-car accident and exhibited several common signs of intoxication:
Slurred speech
Bloodshot and glassy eyes
Difficulty standing
Odor of alcohol
There was also:
Alcohol found near the vehicle
Admissions by the defendant about drinking
At first glance, this looks like a fairly standard OUI prosecution.
But the case unraveled because of what happened with the medical records.
The Error: Failure to Properly Redact Medical Records
Before trial, the Commonwealth sought to introduce the defendant’s medical records.
Both parties:
Reviewed the records
Agreed that redactions had been made
But a critical error slipped through.
On the top page of the records—visible to the jury—was the phrase:
“OUI/LIQUOR, 2nd OFFENSE”
That single line changed the entire case.
How the Error Came to Light
After the jury returned guilty verdicts, something unusual happened.
A juror told the judge:
The jury had seen the reference to a second offense
They were aware the defendant had a prior OUI
They tried to “put it out of [their] minds”
That statement confirmed what every defense attorney fears:
The jury had been exposed to highly prejudicial information.
Why This Matters: The Law of Bifurcated OUI Trials
Massachusetts uses a bifurcated trial process for OUI second offenses.
This means:
Phase 1: Jury decides whether the defendant is guilty of OUI
Phase 2: If guilty, the court determines whether it is a second offense
During Phase 1:
The jury must not hear about prior convictions
The issue of prior offenses is completely off-limits
This is codified in G. L. c. 278, § 11A.
The purpose is straightforward:
To ensure the jury decides guilt based only on the evidence of the current incident—not the defendant’s past.
The Legal Issue: Ineffective Assistance of Counsel
On appeal, the defendant argued that his trial attorney was ineffective for failing to ensure the records were properly redacted.
The Appeals Court agreed.
The Saferian Standard
Massachusetts evaluates ineffective assistance claims under the familiar Saferian standard:
Did counsel’s performance fall measurably below that of an ordinary lawyer?
Did that failure likely deprive the defendant of a substantial defense?
Both prongs were satisfied here.
Prong One: Clear Error
The Court had little trouble concluding that:
Failing to redact the reference to “2nd offense” was a serious mistake
The error was obvious on the trial record
Even the Commonwealth conceded the error.
Prong Two: Prejudice
The harder question was whether the error mattered.
The trial judge initially ruled that it did not, finding:
The evidence of guilt was “overwhelming”
But the Appeals Court disagreed.
Why the Court Found Prejudice
The Court emphasized several key points:
1. The Jury Actually Noticed the Information
This was not a theoretical risk.
The jury:
Saw the reference
Discussed it
Tried (unsuccessfully) to ignore it
That alone raised serious concerns.
2. No Curative Instruction Was Given
Unlike some cases where judges attempt to fix the problem, here:
No instruction was given
No guidance was provided
The jury was left to manage the issue on their own.
3. The Evidence Was Not Overwhelming
This was critical.
While there was evidence of intoxication, it was not ironclad:
No failed field sobriety tests
Limited admissions
Ambiguity about timing of alcohol consumption
The Court explicitly rejected the idea that the case was overwhelming.
The Key Conclusion
The Appeals Court ultimately held that:
There was a serious doubt whether the jury’s verdict would have been the same had the error not occurred.
That is enough to require reversal.
The Result
The Court:
Vacated the convictions
Set aside the verdicts
Remanded the case for further proceedings
This is a complete defense win—at least for now.
Why Prior OUI Evidence Is So Dangerous
The reasoning behind this decision is rooted in a fundamental principle:
Jurors are highly influenced by prior misconduct.
If jurors know a defendant has a prior OUI, they may think:
“He’s done this before”
“He’s probably guilty again”
That is exactly the kind of reasoning the law seeks to prevent.
How This Case Fits Into Massachusetts Law
Although McCollum is not binding precedent, it aligns with existing Massachusetts case law.
Courts have repeatedly held that:
Improper exposure to prior offenses can require reversal
Even curative instructions may not be enough in some cases
The risk of prejudice is particularly high in OUI cases
Defense Takeaways
For defense attorneys, McCollum—even as a Rule 23.0 decision—offers critical lessons.
1. Scrutinize Every Exhibit
Redactions are not a formality.
They are essential.
Every document going to the jury must be reviewed for:
References to prior offenses
Inadmissible language
Hidden prejudicial content
2. Don’t Rely on Opposing Counsel
Even if the Commonwealth agrees to redactions:
Verify everything yourself
Assume nothing
3. Preserve the Record Immediately
If an issue arises:
Move for a mistrial
Request a curative instruction
Create a clear record
4. Challenge “Overwhelming Evidence” Claims
Courts often rely on this concept to deny relief.
But as McCollum shows:
“Strong” evidence is not always “overwhelming”
The distinction matters
Prosecutorial Takeaways
For prosecutors, the case is a cautionary tale:
Redaction errors can undo an entire trial
Even inadvertent mistakes can require reversal
Careful exhibit review is essential
Key Takeaways
Commonwealth v. McCollum is a Rule 23.0 decision and not binding precedent
Jury exposure to prior OUI offenses is highly prejudicial
Failure to redact such information can constitute ineffective assistance of counsel
Even strong evidence may not overcome the risk of prejudice
Proper trial preparation is critical to avoiding reversible error
Frequently Asked Questions (FAQ)
1. What is a Rule 23.0 decision?
It is a summary Appeals Court decision that is not binding precedent but may be cited for persuasive value.
2. Why can’t juries hear about prior OUI offenses?
Because it creates a high risk that the jury will assume the defendant has a criminal propensity, which is unfairly prejudicial.
3. What is a bifurcated trial?
A trial divided into two parts—one to determine guilt, and another to determine prior offenses or sentencing enhancements.
4. What is ineffective assistance of counsel?
When a lawyer’s performance falls below professional standards and affects the outcome of the case.
5. Does this case change Massachusetts law?
No. It applies existing principles but does not create binding precedent.
Final Thoughts
Commonwealth v. McCollum is a reminder that in criminal trials, small mistakes can have enormous consequences.
A single unredacted line—just a few words—was enough to:
Contaminate the jury’s deliberations
Undermine confidence in the verdict
Require a new trial
Even though this decision is not binding, the lesson is clear:
When it comes to prior offenses, there is no room for error.
And for defense attorneys, it reinforces a fundamental truth:
Protecting your client often comes down to the details.