Massachusetts SJC Reverses Convictions After Improper Amendment of Indictments: Commonwealth v. Scott McCaffrey (2026)
In Commonwealth v. Scott McCaffrey, the Massachusetts Supreme Judicial Court delivered a significant reminder of a core constitutional principle: a defendant may be tried and convicted only for the crime that a grand jury actually indicted. When prosecutors change the theory of a crime by amending an indictment to add or alter essential elements, the conviction cannot stand—no matter how strong the evidence may appear.
The Court’s decision reinforces the central role of the grand jury in Massachusetts criminal practice and sharply limits the Commonwealth’s ability to “fix” charging errors after indictment.
Background of the Case
Scott McCaffrey was indicted on multiple counts of aggravated rape of a child. The indictments charged violations of a specific subsection of the aggravated child rape statute—one that applies when the victim is between twelve and sixteen years old and there is a significant age difference between the defendant and the victim.
But there was a problem. According to the evidence presented to the grand jury, the alleged victim was under twelve years old at the time of the offenses.
Rather than seeking new indictments from the grand jury, the Commonwealth moved to amend the existing indictments to charge a different subsection of the statute—one that applies to victims under twelve and requires proof of a different age relationship.
The trial judge allowed the amendment. The case proceeded to trial under the new statutory subsection, and McCaffrey was convicted.
The Appeals Court affirmed. The Supreme Judicial Court granted further appellate review.
The Legal Issue: Form vs. Substance
Under Massachusetts law, an indictment may be amended only as to matters of form, not substance. This distinction is grounded in Article 12 of the Massachusetts Declaration of Rights, which guarantees that serious criminal charges must be brought by a grand jury.
An amendment is considered one of form if it does not change the essential elements of the crime. For example, correcting a date, fixing a misspelled name, or clarifying a nonessential detail may be permissible.
An amendment is substantive if it changes what the Commonwealth must prove to secure a conviction.
The question in McCaffrey was whether changing the subsection of the aggravated child rape statute changed the essential elements of the crime.
The Supreme Judicial Court held that it did.
Why the Amendment Was Unconstitutional
Although the two subsections of the statute both fall under the umbrella of “aggravated rape of a child,” they are not interchangeable.
Each subsection requires proof of:
A different age range for the victim, and
A different age differential between the defendant and the victim.
Critically, the victim-age elements are mutually exclusive. A victim cannot be both under twelve and between twelve and sixteen at the same time. Because of that, the amendment altered an essential element of the offense.
In plain terms, McCaffrey was indicted for one crime and convicted of another.
The Court rejected the Commonwealth’s argument that the amendment caused no prejudice and did not surprise the defense. Constitutional violations of this kind do not turn on fairness or notice. If a defendant is convicted of a crime the grand jury did not indict, the conviction must be reversed.
The Role of Double Jeopardy in the Analysis
The Court also relied on double jeopardy principles to confirm its conclusion.
If a defendant could theoretically be prosecuted separately under each version of the statute without violating double jeopardy, that is strong evidence that the two charges are not the same offense. Here, because the age elements do not overlap, successive prosecutions would be possible—demonstrating that the amendment changed the substance of the charge.
That alone made the amendment impermissible.
The Result
The Supreme Judicial Court reversed McCaffrey’s aggravated rape convictions and ordered judgments of not guilty to enter on those indictments. The case was remanded for resentencing on the remaining convictions.
Importantly, the Court emphasized that when an indictment is substantively defective, harmless error analysis does not apply. The integrity of the grand jury process must be protected, even when the outcome feels uncomfortable.
Why This Decision Matters
This decision has broad implications for Massachusetts criminal practice:
Prosecutors cannot cure charging errors by amendment when the fix changes elements.
Defense counsel should closely examine indictments, especially in complex statutory schemes.
Trial judges must be vigilant in guarding the boundary between form and substance.
The case also serves as a reminder that constitutional protections are not technicalities. They exist precisely to prevent convictions based on charges that were never properly authorized by the grand jury.
Questions & Answers
Can a Massachusetts indictment ever be amended?
Yes, but only as to matters of form. Amendments that change essential elements of the offense are unconstitutional.
Why couldn’t the prosecutor just amend the indictment here?
Because changing the statutory subsection altered the age elements the Commonwealth had to prove. That is a substantive change requiring a new grand jury indictment.
Does it matter that the defense wasn’t surprised?
No. When an amendment changes the crime itself, lack of prejudice does not save the conviction.
What should defense attorneys take from this case?
Always scrutinize the exact statutory theory charged in the indictment and compare it to the evidence the Commonwealth intends to offer at trial.
If you or someone you love is facing serious criminal charges in Massachusetts, the details of the indictment matter. Charging errors, improper amendments, and constitutional violations are not technicalities—they can determine whether a conviction stands or falls.
If you are under investigation, have been indicted, or are already facing trial, speak with an experienced Massachusetts criminal defense attorney as early as possible. Early review of the charging documents can make the difference between defending a case and undoing one. Call us at (508) 897-0001.