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SJC-11775

                COMMONWEALTH   vs.   CLAUZELL JONES.


        Worcester.     March 2, 2015. - September 21, 2015.

 Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                            Hines, JJ.


Rape.  Rape-Shield Statute. Deoxyribonucleic Acid.
     Constitutional Law, Confrontation of witnesses, Public
     trial. Evidence, Expert opinion, Scientific test, Hearsay,
     Chain of custody, Sexual conduct. Witness, Expert.
     Practice, Criminal, Confrontation of witnesses, Public
     trial, Instructions to jury.



     Indictments found and returned in the Superior Court
Department on March 17, 2009.

     The cases were tried before David Ricciardone, J., and a
motion for a new trial, filed on July 5, 2013, was heard by him.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Kathleen M. O'Connell for the defendant.
     Ellyn H. Lazar-Moore, Assistant District Attorney, for the
Commonwealth.
     Brad A. Compston, for Massachusetts Association of Criminal
Defense Lawyers, amicus curiae, submitted a brief.


     LENK, J.   The defendant was indicted on charges of rape, in
                                                                   2


violation of G. L. c. 265, § 22 (b), and furnishing alcohol to a

minor, in violation of G. L. c. 138, § 34.   At trial, the

defendant testified both that his sexual contact with the victim

did not involve penetration and that it was consensual.      To

establish the element of penetration necessary to sustain a

conviction of rape, the Commonwealth offered, in addition to the

victim's testimony, results of deoxyribonucleic acid (DNA)

testing that purportedly identified the defendant's saliva on

"intimate" swabs taken from the victim's vagina.   To prove that

the sexual contact was nonconsensual, the Commonwealth offered,

among other evidence, testimony concerning the victim's conduct

shortly after the alleged rape occurred.   The defendant was

convicted by a Superior Court jury in May, 2011, on both

indictments.

    On appeal, the defendant argues that the judge erred in

allowing the Commonwealth to introduce, through the testimony of

an expert witness who was not present when the victim's "rape

kit" examination was performed, evidence concerning how the

various swabs that the expert tested were collected.   The

defendant further contends that the judge violated his right to

a public trial by holding, pursuant to G. L. c. 233, § 21B (rape

shield law), an in camera hearing to determine the admissibility

of evidence relating to the victim's prior sexual contact with

the individual to whom the victim first reported the alleged
                                                                     3


rape (first complaint witness).    Finally, the defendant

challenges the judge's decision, also based on the rape shield

law, to prohibit defense counsel from introducing evidence

regarding the victim's prior sexual relationship with the first

complaint witness, and challenges the jury instructions as

inconsistent with a decision issued by this court after the

defendant's trial.

    We hold that the judge erred in permitting the expert to

testify about how the various swabs she tested had been

collected, and that the preserved error was prejudicial.      We

therefore vacate the defendant's convictions and remand for a

new trial.   We further conclude that the judge erred in closing

the rape shield hearing without conducting the four-prong

analysis required for court room closures under Waller v.

Georgia, 467 U.S. 39, 48 (1984) (Waller).    Because we are

ordering a new trial based on the erroneously admitted expert

testimony, we address only briefly the defendant's two remaining

arguments.

    1.   Background.   We summarize the evidence presented at

trial, with particular focus on the evidence relevant to the

defendant's arguments on appeal.    We reserve certain substantive

and procedural facts for later discussion.
                                                                     4


    On October 17, 2008, the victim, P.B.,1 then a high school

senior, attended a party at the defendant's house in Gardner.

Also in attendance were several other high school age friends of

the victim:    Rachel, Tim, and the defendant's son, Chris.2   The

victim and Rachel testified that, shortly after they arrived,

they drank some beer, followed by "nips," small containers of

flavored alcoholic beverages.    The group then played a game of

"strip poker," although the victim testified that she only took

off her sweatshirt and possibly her socks.    The defendant

provided marijuana, which everyone smoked.

    The defendant then offered P.B. and Rachel shots of rum,

which they accepted.    He served the rum out of wine glasses.

Both P.B. and Rachel testified that they saw some type of pink

substance in the glasses before they drank.

    After drinking the rum, both the victim and Rachel became

violently ill.    Although the victim had consumed alcohol before,

she testified that she had never felt as sick as she did that

night.    She vomited in the bathroom for approximately ten

minutes, and then went limp.    The other attendees picked the

victim up from the bathroom floor and placed her on a couch in

the defendant's bedroom.    While she was being carried, her head

struck the doorframe.

    1
         A pseudonym.
    2
         A pseudonym.
                                                                       5


     When the victim awoke, she was lying naked on her stomach

on the bed with the defendant behind her.    She felt the

defendant's fingers in her vagina; she then felt the defendant's

penis in her vagina.    When she turned over, he jumped out of the

bed and announced that he had to go to the bathroom.       After the

victim put her clothes on, the defendant emerged from the

bathroom wearing a robe.     The victim said, "I don't want to be

here.   I'm leaving."

     The victim entered the living room and climbed onto the

couch where Tim was sleeping, placing herself between the couch

and Tim's legs.   Tim said, "Nah," pushed the victim away, and

moved to another seat.     At that point, the victim said,

"[Chris]'s dad just fucked me," and began to cry.     The victim

then spent forty-five minutes to one hour making telephone calls

and sending text messages, trying to contact someone to pick her

up from the defendant's house.

     Sometime between 4 and 4:30 A.M., the victim finally

reached a school friend, Alexis.     The victim left the

defendant's house and went to a nearby twenty-four hour

pharmacy.   Alexis, in a vehicle driven by her mother, arrived to

pick up the victim.     They found her sitting on the curb outside

the pharmacy, crying.

     Alexis's mother urged the victim to go to the hospital.

The victim initially declined.     Instead, she went into Alexis's
                                                                    6


room, and the two talked for a while.    Another school friend,

Ellen, along with Ellen's boy friend, then came to get the

victim and drove her to Ellen's house.    There, the victim was

picked up by her boy friend, Chad, and taken to her house.

    That afternoon, Chad took the victim to the hospital.      They

first went to a hospital in Fitchburg.    From there, they were

directed to a hospital in Leominster, where a sexual assault

nurse examiner (SANE) performed a "rape kit" examination on the

victim.

    At trial, the defendant, testifying in his own defense,

offered a different account of the events of the evening.

According to the defendant's testimony, after the victim was

laid on his bed (rather than on the couch in his bedroom, as

other witnesses testified), the group continued drinking.     The

defendant then went into his room to watch television.   He sat

down on the bed next to the victim, who was sleeping and was

still fully clothed.   After the defendant watched television for

fifteen or twenty minutes, the victim woke up.    She rolled over

and said, "Hey, what's up?"    The pair watched television

together for about twenty minutes.    The victim then invited the

defendant to rub her back.    He began rubbing her back, and then

began touching her buttocks.    The victim pressed her buttocks

against the defendant's genitals, and removed her pants.     The

defendant licked his finger, reached around, and "touched her
                                                                     7


vagina."    The defendant testified that he touched the "top part"

of her vagina, that the touch was very brief, that he "felt

mostly hair," and that he did not feel either "the lips of her

vagina" or "a wet part of her vagina."

    The defendant then announced that he had to go to the

bathroom.   When he returned from the bathroom, the victim was on

the couch in the living room with Tim.    The defendant testified

that he believed that the victim was interested in having sex,

and that he too wanted to have sex.   He claimed, however, that

he never penetrated her vagina, either with his penis or with

his finger.

    The Commonwealth offered the testimony of two experts that

contradicted the defendant's account.    The first expert, a

chemist at the State police crime laboratory, testified that she

performed testing on three swabs purportedly collected from the

victim during the "rape kit" examination at the hospital in

Leominster:   a genital swab, which the expert testified was

taken from "the outside of the genital area"; a vaginal swab,

which the expert described as "an intimate swab of the vagina";

and a peri-anal swab, which the expert testified was taken "from

the outside of the anal area."    The expert indicated that all of

the swabs tested negative for semen agellin.   The vaginal and

genital swabs, however, tested positive for human alpha-amylase,

commonly known as saliva.
                                                                      8


    The second expert was also a chemist at the State police

crime laboratory.    She testified that she performed DNA analysis

on the saliva recovered from the vaginal and genital swabs.     She

indicated that the DNA profile obtained from the vaginal swab

matched a DNA sample acquired from the defendant.     She testified

that, based on currently available databases, the DNA profile

obtained was "not expected to occur more frequently than 1 in

1,065 Caucasian males, 1 in 936 African-American males, 1 in 561

Hispanic males, and 1 in 198 Asian males."

    After the defendant's convictions on both indictments, he

moved for a new trial on the basis of the court room closure

during the rape shield hearing.      Following an evidentiary

hearing, the motion judge, who was also the trial judge, denied

the defendant's motion.      The defendant appealed from his

convictions and from the denial of his motion for a new trial.

We granted the defendant's petition for direct appellate review.

    2.   Discussion.    a.    Confrontation clause and common-law

evidentiary rules.    The Commonwealth did not offer at trial the

testimony of the nurse at the hospital in Leominster who

conducted the "rape kit" examination.      Instead, the judge

permitted the Commonwealth's first expert witness, who was not

present during the examination and had no apparent connection to

the hospital at which the swabs were taken, to testify to her

"understanding" of how the three swabs had been collected.      That
                                                                    9


understanding was apparently based, in part, on information the

expert learned from the "evidence collection inventory list"

purportedly completed by the nurse who conducted the "rape kit"

examination.

    The defendant objected to the admission of the expert's

testimony "identify[ing] what swab came from where."     Defense

counsel argued that it was "improper" for the first expert "to

testify to facts for which [she] [was not] present," that

defense counsel had "no ability to cross examine" the expert as

to "how that swab was taken, or whether it was taken with the

correct procedure," and that the admission of the testimony

would violate the defendant's right to be confronted with

witnesses against him under the Sixth Amendment to the United

States Constitution.   In response, the prosecutor did not assert

that the nurse was unavailable to testify.   Indeed, she

indicated that the defense had the nurse on the witness list.

She further indicated that she would request a continuance to

secure the nurse's presence if the judge deemed the nurse's

testimony necessary, but urged the judge to reject the

defendant's confrontation clause argument.   The judge overruled

the defendant's objections and allowed the testimony.

    The Sixth Amendment provides that, "[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him . . . ."   Article 12
                                                                   10


of the Massachusetts Declaration of Rights similarly protects a

criminal defendant's right "to meet the witnesses against him

face to face."   Although art. 12 "has been interpreted to

provide a criminal defendant more protection than the Sixth

Amendment in certain respects, . . . when the question involves

the relationship between the hearsay rule and its exceptions, on

the one hand, and the right to confrontation, on the other hand,

the protection provided by art. 12 is coextensive with the

guarantees of the Sixth Amendment" (citation and quotation

omitted).   Commonwealth v. Nardi, 452 Mass. 379, 388 (2008).

    In Crawford v. Washington, 541 U.S. 36 (2004) (Crawford),

the United States Supreme Court swept aside its prior approach

to the confrontation clause, under which the admission of

hearsay statements against a criminal defendant did not violate

the confrontation clause so long as the statements "f[ell]

within a firmly rooted hearsay exception" or showed

"particularized guarantees of trustworthiness."   Ohio v.

Roberts, 448 U.S. 56, 66 (1980).   See id. at 65 n.7.   Instead,

the Court held in Crawford, supra at 68, that, "[w]here

testimonial evidence is at issue, . . . the Sixth Amendment

demands what the common law required:   unavailability and a

prior opportunity for cross-examination."

    Although the hearsay evidence at issue in Crawford, supra

at 38-42, involved statements to police officers, the rule
                                                                  11


articulated in the case called into question the admissibility

at criminal trials of the results of scientific or forensic

testing.   See Williams v. Illinois, 132 S. Ct. 2221 (2012);

Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011); Melendez-Diaz

v. Massachusetts, 557 U.S. 305 (2009).   During the Ohio v.

Roberts era of confrontation clause jurisprudence, such results

had been admitted routinely, even without the opportunity to

cross-examine the analyst who actually conducted the testing, on

the theory that the results showed particularized guarantees of

trustworthiness.   The Court's holding in Crawford eliminated

that rationale, potentially suggesting that any person who

played a role in the forensic or scientific testing of evidence

must be called to testify before the prosecution may present

expert opinion testimony regarding the evidence.   See Melendez-

Diaz v. Massachusetts, supra at 332 (Kennedy, J., dissenting).

    This court responded to the difficulty posed by forensic or

scientific opinion testimony in Commonwealth v. Greineder, 464

Mass. 580, 593 (Greineder), cert. denied, 134 S. Ct. 166 (2013).

There we held that, under our common-law evidentiary rules,

"[e]xpert opinion testimony, even if based on facts and data not

in evidence, does not violate the right of confrontation,"

provided that the facts and data "are independently admissible

and are a permissible basis for an expert to consider in

formulating an opinion," and that two further conditions are met
                                                                   12


(citation omitted).   Id. at 583, 584.   See Department of Youth

Servs. v. A Juvenile, 398 Mass. 516, 527-528 (1986).     First, the

expert must "not present on direct examination the specific

information on which he or she relied"; second, the expert

witness must have the capacity to "be meaningfully cross-

examined about the reliability of the underlying data."

Greineder, supra at 583, 595.   We characterized this evidentiary

rule as "more protective . . . than the [United States] Supreme

Court would require," and observed that, by fashioning such a

rule, we "necessarily satisfy the mandates of the Sixth

Amendment."   Id. at 593.

    Our common-law evidentiary rules, therefore, afford the

defendant a choice.   If the defendant challenges the reliability

of the expert's underlying data on cross-examination, then

"basis evidence that is hearsay may become available to the jury

to evaluate a witness's credibility."    Id. at 600.   By contrast,

"[i]f a defendant does not open the door on cross-examination to

the hearsay basis of an expert's opinion, then the jury may

properly accord less weight to the expert's opinion" due to the

absence of any testimony providing the basis for the expert's

opinion.   Id.

    Our common-law evidentiary rules decisively resolve this

case.   In labeling the various swabs and completing the "rape

kit" "inventory list," the nurse essentially made a series of
                                                                    13


factual statements concerning how the various swabs were

collected.   The purpose of a "rape kit" is to gather forensic

evidence for use in a criminal prosecution.    See What is a Rape

Kit?, Rape, Abuse & Incest National Network,

https://rainn.org/get-information/sexual-assault-recovery/rape-

kit [http://perma.cc/R7AN-NJM5].   Therefore, these statements

were plainly testimonial.   See Commonwealth v. Nardi, 452 Mass.

379, 394 (2008) (evidence is testimonial where "a reasonable

person in [the speaker's] position would anticipate his

[findings and conclusions] being used against the accused in

investigating and prosecuting a crime" [citation omitted]).      See

also Ohio v. Clark, 135 S. Ct. 2173, 2181 (2015) (rejecting

confrontation clause claim where hearsay statements at issue

"clearly were not made with the primary purpose of creating

evidence for [the defendant's] prosecution"); Davis v.

Washington, 547 U.S. 813, 822 (2006) (statements to police

officers are "testimonial when the circumstances objectively

indicate that there is no . . . ongoing emergency, and that the

primary purpose of the interrogation is to establish or prove

past events potentially relevant to later criminal

prosecution").   And because the Commonwealth's first expert then

recited these testimonial statements to the jury, they also were

plainly hearsay.   Although the prosecutor suggested at trial

that the first expert's recitation was permissible because the
                                                                 14


expert merely was "identif[ying] . . . the hearsay material on

which . . . she relied," Commonwealth v. Bizanowicz, 459 Mass.

400, 411 (2011), the expert obviously was "testifying to, and

asserting the truth of, [the] statements recorded by" the nurse.

Commonwealth v. Nardi, supra at 392.   Indeed, the very relevancy

of both experts' testimony was dependent upon the jury accepting

the nurse's assertions about how and from where the various

swabs had been collected, relayed through the first expert, for

the truth of the matter asserted.   Without the nurse's

statements linking the swabs to the examination performed on the

victim, the Commonwealth merely would have presented two experts

who performed various tests on three swabs -- origin unknown --

and identified on two of them saliva containing DNA that matched

the defendant's DNA.

    Because the challenged parts of the first expert's

testimony constituted testimonial hearsay, their admission was

permissible only if it complied with the rule articulated in

Greineder.   It did not.

    First, the Greineder rule only allows an expert, on cross-

examination, to present the specific underlying facts, derived

from hearsay statements, on which the expert relied.      The

challenged testimony at issue here, however, came in on direct

examination.   Indeed, the expert's statements concerning how the

various swabs had been collected were made near the beginning of
                                                                    15


her testimony, because the import of the test results that she

later described hinged on those statements.

    Second, the Greineder rule demands that "the expert

witness . . . can be meaningfully cross-examined about the

reliability of the underlying data."   Greineder, supra at 595.

See Commonwealth v. Tassone, 468 Mass. 391, 392 (2014)

(Tassone); Commonwealth v. Barbosa, 457 Mass. 773, 790-791

(2010), cert. denied, 131 S. Ct. 2441 (2011).     Greineder

responded to a recurrent situation involving forensic and

scientific evidence whereby the testifying analyst, in

formulating her expert opinion, draws upon testing conducted and

results reached by other analysts, who do not testify.        See

Greineder, supra at 582.   We held that such testimony is

permissible provided that the testifying analyst "reviewed the

nontestifying analyst's work, . . . conducted an independent

evaluation of the data," and "then expressed her own opinion,

and did not merely act as a conduit for the opinions of others"

(quotation and citation omitted).   Id. at 595.

    This case presents a significantly different scenario from

that involved in Greineder or in the United States Supreme

Court's confrontation clause decisions involving forensic or

scientific testimony.   The case does not involve a situation

where a testifying analyst reviewed and then built on the

findings of a nontestifying analyst in reaching his or her
                                                                     16


expert opinion.   See Department of Youth Servs. v. A Juvenile,

398 Mass. at 527-528.    Instead, the hearsay testimony at issue

here involved the circumstances under which the evidence that

the testifying expert tested was collected in the first place.

For the Commonwealth's expert to testify to how the swabs were

collected from the victim would be akin to allowing a chemist to

testify to the chemist's "understanding," based on information

relayed to the chemist in a report drafted by nontestifying

police officers, that a substance later determined to be cocaine

had been found in the defendant's trouser pocket.

       Furthermore, the Commonwealth's expert did not "review" or

make an "independent evaluation" of the nurse's representations

indicating that a given swab was collected from a particular

part of the victim's body.     Having no personal knowledge of the

process by which the swabs were collected, the expert lacked any

capacity to do so.   Under these circumstances, the expert could

not be "meaningfully cross-examined about the reliability" of

the nurse's representations concerning the origins of the swabs.

Greineder, 464 Mass. at 595.

       The expert also lacked any capacity to address the chain of

custody and evidence-handling protocols relevant to the process

by which the swabs were collected.     See Tassone, 468 Mass. at

401.   In Tassone, supra at 394, the Commonwealth's expert

purportedly had conducted an "independent review" of a DNA
                                                                     17


profile generated by a nontestifying analyst from a swab taken

from eyeglasses found at the scene of a crime, before concluding

that that profile matched the defendant's DNA profile.        We

nevertheless held that, because the testifying expert was "a

chemist at the State police laboratory," while the DNA profile

had been generated by Cellmark, an outside laboratory, the

defendant was deprived of a "meaningful opportunity to cross-

examine the expert as to the reliability of the underlying facts

or data."   Id. at 400, 401.    The expert, we observed, "was not

in a position to confirm that the DNA profile was from the

eyeglasses swab; she knew only that Cellmark said that it was."

Id.

      Here, similarly, the expert, by her own account, had "no

idea how [the swabs] were collected."     Consequently, the

defendant was deprived of any opportunity to question the expert

about the protocols in place to ensure that the swabs were

properly collected and labeled.    Simply put, the expert took it

as given that the swabs were collected as the nurse said they

were, and then relayed these statements to the jury.     Where the

only answer that the expert can give to questions concerning the

chain of custody and evidence-handling protocols is "I don't

know," a defendant has been deprived of the opportunity for

meaningful cross-examination.

      We have observed that a meaningful opportunity to cross-
                                                                   18


examine an expert witness regarding chain of custody and

evidence-handling protocols is especially crucial in relation to

DNA evidence.   "[W]ith DNA analysis, the testing techniques are

so reliable and the science so sound that fraud and errors in

labeling or handling may be the only reasons why an opinion is

flawed."   Commonwealth v. Barbosa, 457 Mass. at 790.   By

introducing the critical facts concerning how the swabs were

collected from the victim through the testimony of an expert

witness who played no role in the collection process whatsoever,

therefore, the Commonwealth sidestepped the one aspect of the

forensic evidence presented in this case that was likely most

"meet for cross-examination."   Bullcoming v. New Mexico, 131

S. Ct. 2705, 2714 (2011).3

     Because defense counsel objected to the first expert's

testimony, we must determine "whether the error was

nonprejudicial, that is whether the error did not influence the

jury, or had but very slight effect" (quotation and citation


     3
       As a general rule, information concerning how such swabs
were collected should be admitted through the testimony of a
person, such as, without limitation, the nurse or the victim,
who has personal knowledge of the specific "rape kit"
examination at issue. We leave for another day the question
whether evidence concerning the collection of the swabs could be
admitted through the testimony of a person who lacks personal
knowledge of the specific "rape kit" examination, but who is
familiar with the general procedures and protocols ordinarily
employed at a given facility in connection with the conduct of a
"rape kit" examination.
                                                                    19


omitted).   Tassone, 468 Mass. at 403.   We conclude that the

error was prejudicial.   The defendant testified that he licked

his finger and touched the outside of the victim's vagina, but

did not penetrate her or come into contact with her vulva or

labia, as required for a conviction of rape.    See Commonwealth

v. Donlan, 436 Mass. 329, 336 (2002).    The victim, by contrast,

testified that the defendant penetrated her vagina with his

finger and penis.   Because the expert testified that the

defendant's saliva was found on "an intimate swab" taken from

the victim's vagina, the expert's testimony supported the

victim's account and undermined the defendant's account on a key

aspect of the Commonwealth's case.4 During closing argument, the


    4
      Because the testimonial hearsay related to a key factual
dispute, this case differs from those decisions in which we have
determined that testimonial hearsay was improperly admitted, but
did not necessitate a new trial. In a few of these cases, the
defendant objected, but this court concluded that the error was
harmless beyond a reasonable doubt. See Commonwealth v.
Whitaker, 460 Mass. 409, 421-422 (2011); Commonwealth v. Rogers,
459 Mass. 249, 264-266, cert. denied, 132 S. Ct. 813 (2011). In
most, however, the defendant failed to object, causing us to
review only for a substantial likelihood of a miscarriage of
justice. Furthermore, in most of these cases, the hearsay
evidence at issue was an autopsy report, and the cause of death
was not a contested issue at trial, leading us to affirm despite
the error. See Commonwealth v. Emeny, 463 Mass. 138, 144-146
(2012); Commonwealth v. Phim, 462 Mass. 470, 479-480 (2012);
Commonwealth v. Walker, 460 Mass. 590, 594 n.6 (2011);
Commonwealth v. Housen, 458 Mass. 702, 710 (2011); Commonwealth
v. Mercado, 456 Mass. 198, 211 (2010); Commonwealth v. Taylor,
455 Mass. 372, 377-378 (2009); Commonwealth v. Pena, 455 Mass.
1, 15 (2009); Commonwealth v. Hensley, 454 Mass. 721, 732-734
(2009). Compare Commonwealth v. Durand, 457 Mass. 574, 582-588
(2010) (reversing where medical examiner's testimony was
                                                                    20


prosecutor argued that the defendant's testimony reflected an

effort "to come up with an explanation that's short of

penetration to get the saliva there," and attacked that

explanation as inconsistent with the DNA test results, asking,

"if he just touched her, then how did the saliva get inside her

vagina?"

    Had the nurse or some other individual with knowledge of

the process by which the swabs were collected testified, a

skillful defense attorney could have asked questions aimed at

challenging the integrity of the evidence-gathering process.

Defense counsel might have questioned, for instance, whether the

purportedly "intimate" swab taken from within the victim's

vagina could have come into contact with the "external" genital

swab, thereby creating the false impression that the defendant's

saliva was contained within the victim's vagina.    In responding

to such questions, the nurse or other individual would have made

"representations . . . relating to past events and human

actions" that are "not revealed in raw, machine-produced data."

See Bullcoming v. New Mexico, 131 S. Ct. at 2714.    Such

questioning has prompted expert witnesses to realize that they

had made labeling or handling errors, thereby preventing

convictions based on incorrect or misleading DNA test results.


improperly admitted, issue was preserved, and "[t]he cause of
death was very much a disputed issue").
                                                                    21


See Williams v. Illinois, 132 S. Ct. 2221, 2264 (2012) (Kagan,

J., dissenting).

      Of course, faced with these questions, the nurse or other

individual might have provided answers that convinced the jury

of the reliability and integrity of the evidence-collection

process.   But that is precisely why our evidentiary rules demand

an opportunity meaningfully to cross-examine the expert

regarding chain of custody and evidence-handling protocols.    By

requiring that opportunity, our common-law evidentiary rules,

like the confrontation clause itself, "command[] . . . that

reliability be assessed in a particular manner:   by testing in

the crucible of cross-examination."   See Crawford, 541 U.S. at

61.   Because the process by which the swabs were collected was

crucial to the Commonwealth's case, and because, as a result of

the trial judge's error, the defendant was deprived of the

opportunity for cross-examination regarding that process, we

conclude that the error was prejudicial and requires a new

trial.   See Tassone, 468 Mass. at 402-404.

      Finally, we do not agree with the Commonwealth's suggestion

that the defendant waived his confrontation clause claim by

agreeing to the admission of the unredacted inventory list from

the defendant's "rape kit" examination.   It is true that, before

the expert testified, the judge allowed the victim's medical

records to be marked as exhibits, and these records included the
                                                                   22


inventory list purportedly completed by the nurse who examined

the victim.   At that time, however, defense counsel observed

that the medical records had "to be redacted significantly."

The Commonwealth agreed "there are redactions," and indicated

that "they won't go to the jury until counsel and I have agreed

on the redactions."

    Later, when the Commonwealth's expert testified, defense

counsel made clear that she believed that it would violate the

confrontation clause for the expert to testify to facts that

were based in part on information learned from the inventory

list.   Defense counsel stated that, "if [the prosecutor] wanted

to put on a case which wouldn't raise questions about

confrontation, she would have put on the SANE [i.e., the

nurse] . . . as her witness.   She didn't."   Defense counsel

further objected that "[t]he only way it's coming in is through

this expert."   The judge acknowledged that "there could be

testimony from the person who did the swabbing that 'I took this

swab from the defendant and the vaginal area of the complaining

witness,'" but rejected defense counsel's confrontation clause

argument.   The judge noted defense counsel's continuing

objection to the evidence.

    Defense counsel later apparently agreed to the admission of

the medical records, including the inventory list.    Counsel's

apparent agreement to allow the inventory list to be presented
                                                                     23


to the jury, however, occurred long after the expert had already

testified -- over defense counsel's strenuous objection -- to

her "understanding" regarding how the swabs had been collected.

While the better practice would have been for defense counsel to

renew her objection to the information concerning the collection

of the swabs, we do not regard the subsequent admission of the

unredacted inventory list as a retroactive waiver of the

objection that defense counsel clearly voiced earlier.

    The inventory list, moreover, did not include the actual

content regarding how the swabs were collected.    The list, for

instance, simply indicates "Vaginal Swabs and Smear" with a

check mark next to it, without describing the swab as an

"intimate swab of the vagina."    By testifying to her

"understanding" concerning how the swabs were collected,

therefore, the Commonwealth's expert testified to underlying

facts of which she had no personal knowledge, and that went

beyond the facts later admitted in evidence via the inventory

list.   For both of these reasons, we reject the Commonwealth's

waiver argument.

    b.    Public trial right.    At trial, the defendant sought to

offer evidence of the victim's prior sexual relationship with

Tim, the first complaint witness.     Defense counsel argued that

this prior sexual relationship was "directly related to [the

victim's] motivation to lie."    Defense counsel contended that
                                                                   24


the victim's conduct, in climbing onto the couch where Tim was

sleeping, constituted a sexual advance.   Tim's apparent

rejection of that sexual advance, defense counsel claimed, gave

the victim an incentive to fabricate her rape allegation against

the defendant.   The Commonwealth countered that the proposed

testimony was inadmissible under the rape shield law.

    The judge held an evidentiary hearing on the proposed

testimony.   Before the hearing began, the prosecutor asked that

the court room be closed, contending that the rape shield

statute required that the hearing "be done in camera."     The

judge agreed, and "ask[ed] the court officers, for the purposes

of this rape shield hearing, to make sure that no member of the

public comes in for a short period of time."   Defense counsel

requested "that Mr. Jones's family be allowed to be with him

during this stage of the trial."   The judge asked, "They would

be members of the public, no?"   Defense counsel argued that, as

"with any trial proceeding, [the defendant] should have the

right to have the support of his family there."   The parties

then disputed the purpose of the rape shield statute, with the

defendant contending that its purpose is to guard against

evidence introduced for the "improper purpose" of arguing that

the victim's lack of chastity established consent, rather than

for the more general purpose of "protecting the privacy of the

alleged victim."   The judge, after noting that the statute
                                                                     25


specifically provides for an "in camera hearing," denied the

defendant's request and closed the court room.

    Following his conviction, the defendant moved for a new

trial on the basis of the court room closure during the rape

shield hearing.    In support of his motion, the defendant

submitted affidavits from various individuals who indicated that

they were excluded from the court room during the hearing.     The

Commonwealth stipulated that potential observers were excluded

from the hearing, and did not argue that the public trial issue

was unpreserved.    The motion judge denied the motion, concluding

that the court room was closed properly during the rape shield

hearing in accordance with the requirements of G. L. c. 233,

§ 21B, the rape shield law.

    The rape shield law provides:

         "Evidence of the reputation of a victim's sexual
    conduct shall not be admissible in an investigation or
    proceeding before a grand jury or a court of the
    commonwealth for a violation of [certain sexual offense
    statutes]. Evidence of specific instances of a victim's
    sexual conduct in such an investigation or proceeding shall
    not be admissible except evidence of the victim's sexual
    conduct with the defendant or evidence of recent conduct of
    the victim alleged to be the cause of any physical feature,
    characteristic, or condition of the victim; provided,
    however, that such evidence shall be admissible only after
    an in camera hearing on a written motion for admission of
    same and an offer of proof. If, after said hearing, the
    court finds that the weight and relevancy of said evidence
    is sufficient to outweigh its prejudicial effect to the
    victim, the evidence shall be admitted; otherwise not. If
    the proceeding is a trial with jury, said hearing shall be
    held in the absence of the jury. The finding of the court
    shall be in writing and filed but shall not be made
                                                                   26


    available to the jury."

G. L. c. 233, § 21B.   In addition to the express exceptions to

inadmissibility articulated in the statute, this court has

determined "that other exceptions may arise under the United

States Constitution and the Massachusetts Declaration of

Rights."   Commonwealth v. Mountry, 463 Mass. 80, 86 (2012).    One

of these exceptions applies where evidence that otherwise would

be barred by the statute "is relevant to the question of a

victim's bias or motive to fabricate."   Id.

    The motion judge, who was also the trial judge, rejected

the defendant's contention "that G. L. c. 233, § 21B[,] allows

for public attendance at its required 'in camera hearing,'" and

concluded that this mandatory closure rule was permissible.     We

agree with the motion judge that the requirement of G. L.

c. 233, § 21B, for "an in camera hearing" indicates that the

court room must be closed during the proceeding.    The term "in

camera" derives from the Latin meaning "in a chamber," and may

denote a proceeding taken either "[i]n the judge's private

chambers" or "[i]n the court room with all spectators excluded."

Black's Law Dictionary 878 (10th ed. 2010).    Under either

definition, therefore, an "in camera hearing" denotes one from

which the public is excluded.

    While we agree with the motion judge that the statute

provides for mandatory closure of the rape shield hearing, we
                                                                     27


conclude that the mandatory closure rule is impermissible.      In

reaching that conclusion, we emphasize at the outset that we do

not question the compelling interest underlying the rape shield

statute.    That statute, like similar statutes in other States,

was enacted in response to the pervasive practice of attacking a

victim's testimony that she did not consent to sex with evidence

of the victim's "lack of chastity."    Commonwealth v. Joyce, 382

Mass. 222, 227-228, 231 (1981) ("The major innovative thrust of

the rape-shield statute is found in the first sentence, which

reverses the common law rule under which evidence of the

complainant's general reputation for unchastity was

admissible").   See Berger, Man's Trial, Woman's Tribulation:

Rape Cases in the Courtroom, 77 Colum. L. Rev. 1, 17 (1977)

(Berger).   And although "[t]he primary purpose of the statute is

to prevent a general credibility attack of a victim with

evidence of his or her promiscuity," Commonwealth v. Mountry,

463 Mass. at 86, the statute's requirement for an "in camera

hearing" on the admissibility of evidence of sexual conduct

reflects a legitimate interest in guarding against the public

"revelation of facts that can only smear" a rape victim, and in

"protecting complainants and encouraging victim cooperation in

bringing suspected assailants to trial."   See Berger, supra at

96.

      We also stress the narrowness of our holding:   we do not
                                                                   28


determine that this particular rape shield hearing should have

been open to the public, much less that all rape shield hearings

must be open to the public.   Instead, we merely conclude that,

before a judge may order the court room closed for a rape shield

hearing, the judge must make a case-by-case determination in

accordance with the four-prong framework articulated by the

United States Supreme Court in Waller, 467 U.S. at 48, decided

after the enactment of the rape shield law at issue here.

    The Sixth Amendment, which applies in State court

proceedings, guarantees to the accused "in all criminal

proceedings . . . the right to a speedy and public trial."     See

In re Oliver, 333 U.S. 257, 267 (1948).   The closing of a

criminal proceeding to the public also may implicate rights

guaranteed by the First Amendment to the United States

Constitution.   See Commonwealth v. Cohen (No. 1), 456 Mass. 94,

106 (2010).   "[T]he explicit Sixth Amendment right of the

accused," however, "is no less protective of a public trial than

the implicit First Amendment right of the press and public."

Waller, supra at 46.   Because the public trial right is

constitutionally based, in reviewing an asserted violation of

the right, the court "exercise[s] its own judgment on the

ultimate factual as well as legal conclusions" (citation

omitted).   Commonwealth v. Cohen (No. 1), supra at 105.

    The Sixth Amendment right to a public trial "covers the
                                                                      29


entire trial, including the impaneling of the jury and the

return of the verdict" (footnote omitted).    6 W.R. LaFave, J.H.

Israel, N.J. King, & O.S. Kerr, Criminal Procedure § 24.1(a) (3d

ed. 2007).    See United States v. Sorrentino, 175 F.2d 721, 722

(3d Cir. 1949).   Even where the public trial right attaches to a

given proceeding, however, the right is "not absolute."       Globe

Newspaper Co. v. Superior Court for the County of Norfolk, 457

U.S. 596, 606 (1982) (Globe Newspaper Co.).    A court room

closure may be permissible, provided the party seeking the

closure satisfies the four-part test articulated in Waller, 467

U.S. at 48:   "[1] the party seeking to close the hearing must

advance an overriding interest that is likely to be prejudiced;

[2] the closure must be no broader than necessary to protect

that interest; [3] the trial court must consider reasonable

alternatives to closing the proceeding; and [4] it must make

findings adequate to support the closure."

    Neither the United States Supreme Court nor this court has

articulated a clear test for determining the threshold question

whether a given proceeding constitutes part of the "trial" for

purposes of the public trial right.    In Waller, supra, the

United States Supreme Court determined that the public trial

right attaches to a pretrial suppression hearing.    In reaching

that conclusion, the Court identified several values that the

public trial right serves.    Id. at 46-47.   Various United States
                                                                   30


Circuit Courts of Appeals have enumerated these values, and

turned to them to determine whether the public trial right

attaches to a given proceeding.

    These courts have determined that the public trial right

attaches to a given proceeding where recognition of the right

would serve "1) to ensure a fair trial; 2) to remind the

prosecutor and judge of their responsibility to the accused and

the importance of their functions; 3) to encourage witnesses to

come forward; and 4) to discourage perjury."   Peterson v.

Williams, 85 F.3d 39, 43 (2d Cir. 1996).   See United States v.

Rivera, 682 F.3d 1223, 1229 (9th Cir. 2012); United States v.

Perry, 479 F.3d 885, 890-891 (D.C. Cir. 2007); Braun v. Powell,

227 F.3d 908, 918-919 (7th Cir. 2000).   Based on these factors,

these courts have found violations of the public trial right

where the court room was closed "during [a] hearing" at which

"matters of vital importance were discussed and decided."

United States v. Rivera, supra at 1232 (finding violation of

public trial right where defendant's family members were

excluded from sentencing proceedings).   By contrast, courts have

rejected Sixth Amendment challenges based on court room closures

during "routine jury administrative matters," United States v.

Ivester, 316 F.3d 955, 960 (9th Cir. 2003) (finding no violation

of public trial right where judge closed court room to address

jurors' concerns about their safety), or where the closure was
                                                                  31


"so trivial as not to implicate the right to a public trial."

Carson v. Fischer, 421 F.3d 83, 92 (2d Cir. 2005) (no violation

of public trial right where judge excluded defendant's ex-

mother-in-law from court room during testimony of single

witness).   See Braun v. Powell, supra at 919 (no violation where

judge excluded former member of venire from trial); Peterson v.

Williams, supra at 41 (no violation where judge inadvertently

closed court room during defendant's testimony, which lasted

approximately fifteen to twenty minutes).

    A rape shield hearing is neither a routine administrative

matter nor is it "trivial" to the trial.    On the contrary, a

rape shield hearing has a far closer kinship to pretrial

suppression hearings, to which the United States Supreme Court

decided in Waller that the Sixth Amendment public trial right

attaches, than to any of the routine administrative matters that

courts have subsequently determined may be conducted in a closed

court room.   Like a pretrial suppression hearing, the

determination emerging from a rape shield hearing often will

have a critical impact on the trial itself, particularly in

cases that hinge on the issue of consent.   Additionally, the

admissibility of evidence otherwise barred under the rape shield

law hinges on a showing that the evidence fits into one of the

exceptions to the statute, and that its "weight and

relevancy . . . is sufficient to outweigh its prejudicial effect
                                                                   32


to the victim."   G. L. c. 233, § 21B.    The outcome of a rape

shield hearing, then, like that of a pretrial suppression

hearing, "frequently depends on a resolution of factual

matters."   Waller, 467 U.S. at 47.

    Citing a decision of the United States Court of Appeals for

the First Circuit in United States v. Vazquez-Botet, 532 F.3d

37, 51-52 (1st Cir. 2008), the Commonwealth contends that the

rape shield hearing is "more akin to 'question-and-answer' offer

of proof hearings . . . than to potentially dispositive

suppression hearings to which the public trial right applies."

In that decision, however, the United States Court of Appeals

for the First Circuit expressly "le[ft] open the possibility

that the public-trial right may apply to some offer-of-proof

hearings," only "declin[ing] to recognize such a right on facts

as uncompelling as these."   Id. at 52.   In concluding that the

public trial right did not attach to the particular offer of

proof hearing at issue in that case, moreover, the court

emphasized that the hearing "differed in at least two

fundamental respects from the categories of non-trial hearings

to which the Sixth Amendment public-trial right has been held to

apply in the past . . . . First, the evidence elicited at the

hearing had already . . . been ruled irrelevant. . . . Second,

the district court was under no obligation to hold the hearing

in the first place, but chose to do so for our and the
                                                                     33


defendants' benefit . . . ."   Id.

      Here, by contrast, the judge did not hold the rape shield

hearing solely "in order to create a record" of a relevancy

decision that it had already made for appellate review.        Id. at

45.   On the contrary, it was only after the rape shield hearing,

and on the basis of the testimony presented and the arguments

offered by the attorneys at that hearing, that the judge here

made his decision regarding the admissibility of the evidence of

the victim's prior sexual conduct.    Furthermore, the judge had

no choice whether to hold the hearing.     Rather, the judge was

obligated, under the rape shield statute, to hold the hearing

before reaching a decision on the admissibility of evidence

purportedly barred by the statute.

      In determining that the public trial right attaches to a

rape shield hearing, we acknowledge that courts of other States

have reached differing conclusions.     On the one hand, the

Connecticut Supreme Court has held that a trial judge erred in

justifying the closure of the court room for a rape shield

hearing on the basis of a "general reference to the rape shield

statute," as also occurred here.     State v. Kelly, 208 Conn. 365,

374 (1988).   Instead, the court held that, before closing the

court room, the trial judge should have made the case-specific

"findings as required by Waller."    Id.   See Kelly v. Meachum,

950 F. Supp. 461, 468 (D. Conn. 1996) (on collateral challenge
                                                                  34


to defendant's conviction, "concur[ring] with the [Connecticut]

Supreme Court's finding that the trial court improperly closed

the courtroom at the petitioner's trial in that the trial court

failed to make any findings adequate to support the closure,"

but rejecting Connecticut Supreme Court's requirement that

petitioner prove prejudice to obtain relief for Sixth Amendment

violation).

    On the other hand, courts in Oregon and North Carolina have

rejected public trial challenges to statutes mandating the

closure of court rooms during rape shield hearings.   See State

v. McNeil, 99 N.C. App. 235, 242 (1990); State v. MacBale, 353

Or. 789, 813-815 (2013); State v. Blake, 53 Or. App. 906, 909-

920 (1981).   The crux of the reasoning in these decisions is

that, because a "rape shield" hearing "is a preliminary one and

is conducted only to exclude from the trial that which is

irrelevant to the proceeding," and because "[u]nder the rules of

evidence, that which is irrelevant should not be heard at all,"

the closure of the court room for the hearing does not violate

the defendant's Sixth Amendment right to a public trial.     State

v. Blake, supra at 919.   See State v. MacBale, supra at 814;

State v. McNeil, supra.

    We are not persuaded by the analysis in these decisions.

First, evidence barred under the rape shield statute does not

necessarily fail to meet the "minimal standard" of
                                                                     35


"[r]elevancy."   State v. Blake, 53 Or. App. at 919.    On the

contrary, Massachusetts's rape shield statute precludes the

admission of evidence concerning a victim's past sexual conduct

unless the evidence fits within the exceptions to the statute

and the judge finds "that the weight and relevancy of said

evidence is sufficient to outweigh its prejudicial effect to the

victim."   G. L. c. 233, § 21B.    The statute, then, contemplates

situations in which evidence is relevant, but its relevance is

outweighed by its prejudicial effect to the victim.     Second, the

rape shield hearing may result in a finding that the weight and

relevancy of the evidence does outweigh its prejudicial effect,

and that the evidence consequently may be presented at trial.

In Waller, 467 U.S. at 43, the United States Supreme Court

observed that, following the petitioners' trial, "the transcript

of the suppression hearing was released to the public," yet the

public release of the transcript had no impact on the Court's

determination that the closure of the court room during the

hearing violated the petitioners' right to a public trial.

Similarly, the fact that a defendant "will ultimately have the

use of all . . . evidence" deemed relevant at the rape shield

hearing has no bearing on the constitutionality of the court

room closure during the hearing.     State v. Blake, 53 Or. App. at

919.   The subsequent presentation of certain evidence at trial

cannot "cure" the problem resulting from the mandatory closure
                                                                   36


rule any more than the subsequent release of a pretrial

suppression hearing transcript could "cure" the closure of the

hearing.   The notion that the ultimate presentation of evidence

at trial somehow may retroactively remedy the closure of the

hearing is particularly misguided because it was the improperly

closed hearing itself that determined the scope of the evidence

that could be presented at trial.

    Finally, we discern no support for the assumption that the

public trial right attaches only to proceedings at which

relevant evidence is presented.     On the contrary, the United

States Supreme Court has made clear that the public right

"extends beyond the actual proof at trial."    Waller, 467 U.S.

at 44.   The right, for instance, encompasses the pretrial jury

selection process, Presley v. Georgia, 558 U.S. at 213; opening

statements by counsel, Commonwealth v. Patry, 48 Mass. App.

Ct. 470, 474 (2000); instructions to the jury, id.; the return

of the verdict, id.; and posttrial sentencing proceedings,

United States v. Rivera, 682 F.3d at 1228.    At none of these

proceedings is relevant evidence presented, yet the public trial

right attaches to all of them because of the values that the

right serves.   As the United States Supreme Court has explained,

"the right of access to criminal trials plays a particularly

significant role in the functioning of the judicial process and

the government as a whole. . . .    [I]n the broadest terms,
                                                                   37


public access to criminal trials permits the public to

participate in and serve as a check upon the judicial process --

an essential component in our structure of self-government."

Globe Newspaper Co., 457 U.S. at 606.

    Courts that have determined that the public trial right

does not attach to a rape shield proceeding have further

observed that "a rape victim who is examined about the details

of her personal sexual background may be less likely to be

forthcoming if forced to discuss the matter in open court."

State v. MacBale, 353 Or. at 814.   See State v. Blake, 53 Or.

App. at 920.   That analysis confuses the threshold inquiry into

whether the public trial right attaches to a rape shield hearing

at all with the ultimate validity of a decision to close the

court room during the hearing.   The "public trial guarantee" is

"one created for the benefit of the defendant," Gannett Co. v.

DePasquale, 443 U.S. 368, 380 (1979); it is built on the premise

that "[t]he knowledge that every criminal trial is subject to

contemporaneous review in the forum of public opinion is an

effective restraint on possible abuse of judicial power."     In re

Oliver, 333 U.S. 257, 270 (1948).   In light of the important

role that the public trial guarantee provides in protecting the

rights of criminal defendants, we decline to conclude that a

crucial hearing, whose outcome has a significant impact on a

prosecution, falls outside of the public trial right altogether.
                                                                    38


    That conclusion does not mean, however, that we cannot

consider other interests, including the interest in guarding

against "harassment and further humiliation of the victim"

(citation omitted).    Commonwealth v. Joyce, 382 Mass. at 228.

As noted, the public trial right is not absolute, but may give

way in the face of "an overriding interest."    Waller, 467 U.S.

at 48.    Accordingly, the judge is free to consider, among other

things, the complainant's privacy interests and the potential

impact that the public disclosure of intimate details concerning

a rape victim's sexual history may have on a complainant's

willingness to come forward.

    Indeed, this court and others have upheld court room

closures in a variety of contexts where trial judges complied

with these constitutional requirements.    In Commonwealth v.

Caldwell, 459 Mass. 271, 283-284 (2011), for instance, we

concluded that the trial judge, after making the findings

required by Waller, properly excluded from the court room

spectators who threatened a court officer with bodily harm.

Other courts have concluded that a trial judge, again after

making the findings required by Waller, properly closed the

court room during an undercover police officer's testimony

during a drug trial.   See, e.g., Brown v. Kuhlmann, 142 F.3d

529, 537-539 (2d Cir. 1998); People v. Jones, 96 N.Y.2d 213, 220

(2001).   Similarly, this court has found that, generally, "the
                                                                   39


judge's verification of the validity of" an assertion of the

privilege against self-incrimination must "be based on

information provided in open court."     Pixley v. Commonwealth,

453 Mass. 827, 833 (2009).    A judge may hold an in camera

hearing (called a "Martin hearing," see Commonwealth v. Martin,

423 Mass. 496 [1996]) on the validity of an assertion of the

right against self-incrimination only after holding an open

hearing at which the parties are "invite[d] . . . to provide the

court with information that may shed light on whether the

witness's testimony . . . could possibly tend to incriminate

him."   Pixley v. Commonwealth, supra.    "Only in those rare

circumstances where this information is inadequate to allow the

judge to make an informed determination should the judge conduct

an in camera Martin hearing with the witness to verify the claim

of privilege."   Id. ("a Martin hearing should be conducted only

as an exception to the general rule that the judge's

verification of the validity of the privilege be based on

information provided in open court").     See Commonwealth v.

Sanders, 451 Mass. 290, 295–296 (2008).

    Our conclusion that the public trial right attaches to rape

shield hearings, therefore, does not mean that such hearings

must be open to the public.   It does not contemplate a major

change in the practice of court room closures during rape shield

hearings; the State's overriding interest in protecting the
                                                                    40


privacy rights of rape victims and the absence of any other more

narrowly tailored means of accommodating that interest may well

mean that the majority of rape shield proceedings properly are

closed.    Our conclusion simply means that, in view of the

importance of the public trial right, before the court room

properly may be closed during a rape shield procedure, the trial

judge must conduct an individualized analysis consistent with

the constitutional requirements set forth in Waller, supra.

    The United States Supreme Court's decision in

Globe Newspaper Co., 457 U.S. at 598, is instructive.     That case

concerned a statute that required the closure of a court room

during the testimony of child victims of sexual assault.      The

Commonwealth contended that the statute sought to protect "minor

victims of sex crimes from further trauma and embarrassment."

Id. at 607.   The Court agreed that the Commonwealth's asserted

interest was "a compelling one."    Id.   The Court concluded,

however, that, "as compelling as that interest is, it does not

justify a mandatory closure rule," noting that "[a] trial court

can determine on a case-by-case basis whether closure is

necessary to protect the welfare of a minor victim."     Id. at

607-608.   The Court further concluded that, because the statute

"requires closure even if the victim does not seek the exclusion

of the press and general public," and because the statute did

not take into account whether "the names of the minor victims
                                                                    41


were already in the public record" or whether the victims would

"have been willing to testify despite the presence of the

press," the statute could not "be viewed as a narrowly tailored

means of accommodating the State's asserted interest."     Id. at

608-609.   See G. L. c. 278, § 16D (b) (1) (requiring judicial

determination before child witness's testimony may be offered in

closed court room).

    The same reasoning applies to the rape shield law.      The

public undoubtedly does have a compelling interest in protecting

the privacy rights of rape victims and guarding against

retraumatization through the public disclosure of intimate

details regarding their past sexual conduct.   Like the similarly

compelling interest in protecting minor victims of sexual abuse,

however, the interest in protecting rape victims does not

require a mandatory closure rule, which commands that the

proceeding be conducted in camera regardless of the wishes of

the victim or any other factors that might argue against

closure.   In sum, the mandatory closure rule cannot be regarded

as narrowly tailored to the State's compelling interest in

protecting rape victims against retraumatization and smear

tactics, because that interest could be served equally well by a

case-by-case assessment, in accordance with the constitutional

framework articulated in Waller.   On remand for a new trial,

therefore, the trial judge may close the rape shield hearing
                                                                   42


only after making the findings as required by Waller.

    Finally, we make a few remarks to clarify the implications

of our determination regarding the public trial issue for other

cases.   Here, we are ordering a new trial on the basis of the

impermissible admission of the first expert's testimony

concerning how the swabs she tested were collected.     Because the

trial must be conducted anew, so must the rape shield hearing,

if the defendant again seeks to offer evidence of the

complainant's prior sexual interactions with the first complaint

witness.   In doing so, the judge must conduct the individualized

analysis required by Waller before ordering a court room

closure.   While a violation of the public trial right is a

structural error, the failure to comply with the Waller

requirements before ordering a court room closure does not,

standing alone, require a new trial.   Waller, 467 U.S. at 49-50.

See Commonwealth v. Cohen (No. 1), 456 Mass. 94, 118-119 (2010).

Rather, in Waller itself, the United States Supreme Court, after

concluding that the suppression hearing was closed improperly,

held that "the remedy should be appropriate to the violation."

Waller, 467 U.S. at 50.   Consequently, the Court required only a

new suppression hearing, observing that, "[i]f, after a new

suppression hearing, essentially the same evidence is

suppressed, a new trial presumably would be a windfall for the

defendant, and not in the public interest."   Id.   Based on the
                                                                    43


Waller Court's observations, various courts have concluded that,

where a court room closure could have been justified, but the

judge failed to comply with the requirement for individualized

findings under Waller, the proper course is "to remand the

case . . . for a hearing to reconstruct the circumstances that

existed at the time of the trial and to determine whether the

application to close the courtroom was well justified."

Gonzalez v. Quinones, 211 F.3d 735, 738 (2d Cir. 2000).    See

United States v. Galloway, 937 F.2d 542, 547 (10th Cir. 1991);

State v. Weber, 137 N.H. 193, 197 (1993).

    We believe that the same approach is appropriate where a

trial judge improperly closed a rape shield hearing without

making the case-specific findings required in Waller.     In such

cases, assuming the objection to the closure of the hearing was

properly preserved, and the case is still on direct appeal, the

proper remedy will be to remand to the trial judge to determine

whether the circumstances that existed at the time of the trial

would have warranted the closure of the court room for the rape

shield hearing.   Even if the judge concludes that the

circumstances did not warrant the closure of the hearing, the

result will not necessarily be a new trial.   Rather, the judge

should then conduct the rape shield hearing anew.   If the new

rape shield hearing results in a determination regarding the

admissibility of evidence of prior sexual conduct by the victim
                                                                      44


that is "essentially the same" as the determination that emerged

from the original hearing, then no new trial is required.       See

Waller, 467 U.S. at 50.    A new trial will be necessary as a

result of our holding, therefore, only if the circumstances that

existed at the time of the trial did not justify the court room

closure during the rape shield hearing, and only if the judge's

decision in the wake of the new rape shield hearing is not

"essentially the same" as the decision that emerged from the

original rape shield hearing.

    c.   Remaining arguments.     The defendant offers two

additional arguments.     Because we have granted a new trial on

the basis of the expert's improper testimony, we address these

issues only briefly.

    First, the defendant argues that his rights to a fair

trial, to confront witnesses against him, and to present a

defense were violated by the judge's decision to prohibit

defense counsel from questioning either the victim or Tim about

their prior sexual contact.     Because this decision was based on

the testimony and argument presented at the closed rape shield

hearing, and our remand may result in a new rape shield hearing,

we do not address the defendant's argument at this time.

    Second, the defendant argues that the judge erred in

instructing the jury regarding the impact of the defendant's

voluntary intoxication on whether he "reasonably should have
                                                                  45


known" of the victim's capacity to consent.    In response to a

jury question regarding the meaning of "reasonably should have

known," the judge indicated that the phrase denotes "an

objective rather than subjective standard" that "requires you to

consider all of the believable evidence in determining

whether . . . an ordinary, prudent person would have considered

the complainant too impaired to give consent."    In its brief,

the Commonwealth acknowledges that the jury instruction was

inconsistent with this court's subsequent decision in

Commonwealth v. Mountry, 463 Mass. at 92, where we held that the

"element of knowledge is not purely objective," and that the

Commonwealth must "prove what the defendant reasonably should

have known, not what the average reasonable unintoxicated person

would have known" (quotation omitted).    Because that case was

decided after the defendant's trial, however, and because the

new standard it articulates is a common-law rule and is not

constitutionally compelled, the Commonwealth argues that it

should be applied only prospectively.    Since we are remanding

for a new trial, we need not address this question.   At the

defendant's new trial, the judge should instruct the jury in

accordance with the new standard articulated in Commonwealth v.

Mountry, supra.

    3.   Conclusion.    The defendant's convictions are vacated

and set aside.    The matter is remanded to the Superior Court for
                                                             46


a new trial and for other proceedings consistent with this

opinion.

                                   So ordered.
    GANTS, C.J. (concurring, with whom Spina, J., joins).       I

agree with the court that making a determination in accordance

with Waller v. Georgia, 467 U.S. 39, 48-50 (1984), is

constitutionally required before closing a court room to conduct

a rape shield hearing under G. L. c. 233, § 21B.   Ante at          .

I also recognize that, because § 21B requires the hearing to be

conducted "in camera," the public has been excluded from the

court room without a Waller determination for most, if not all,

rape shield hearings conducted prior to the issuance of this

opinion.   Consequently, some may fear that this opinion will

generate a plethora of motions for a new trial claiming

structural error as a result of the violation of the public

trial right.   I write separately to provide some perspective.

    A motion for new trial (or a claim on direct appeal) based

on the absence of a Waller determination will almost certainly

be futile unless, as in this case, the defendant objected to the

closing of the court room at the time of the rape shield

hearing.   Ante at    .   I doubt that many defendants timely made

such an objection.   Without doing so, a defendant will be deemed

to have waived his or her claim of error regarding the closure

of the court room for such a hearing, and may only claim that

defense counsel was ineffective for having failed to object.

See Commonwealth v. Morganti, 467 Mass. 96, 102-103, cert.

denied, 135 S. Ct. 356 (2014) ("the right to a public trial may
                                                                     2


be procedurally waived by a failure to lodge a timely objection

to the offending error," and if waived, "we still may have

occasion to review that error in the postconviction context of a

challenge to trial counsel's effectiveness in failing to raise

the objection").   To prevail, a claim of ineffective assistance

of counsel would require a finding that a substantial risk of a

miscarriage of justice arose from the absence of such an

objection, and under these circumstances it is difficult to

imagine a case where such a finding would be warranted.    See

Commonwealth v. LaChance, 469 Mass. 854, 857-858 (2014).

     In the rare case where a defendant has preserved his or her

claim of error by objecting to the closure of the court room

during a rape shield hearing, the remedy the court provides is a

remand for a posttrial Waller hearing, where the trial judge (or

another judge, if the trial judge is no longer on the bench)

will determine whether the closure of the court room would have

satisfied the constitutional requirements of Waller had the

judge made a Waller determination at the time of trial.     Ante

at   .   The court states in its opinion that "the State's

overriding interest in protecting the privacy rights of rape

victims and the absence of any other more narrowly tailored

means of accommodating that interest may well mean that the

majority of rape shield proceedings properly are closed."     Ante

at   .   Thus, I expect that few, if any, posttrial Waller
                                                                       3


hearings will lead to a finding that the court room would not

have been closed had the judge made a Waller determination at

the time of trial.

    Where there is such a finding, the court makes clear that

the remedy is a new rape shield hearing with an open court room,

not a new trial.     Ante at   .   A new trial will be required

only if the judge determines at the new rape shield hearing that

significant evidence of prior sexual conduct by the victim,

which was found inadmissible at the earlier rape shield hearing,

would be admissible at a new trial.     Id.   I can understand why a

judge, upon revisiting a rape shield issue, may come to a

different conclusion regarding the admissibility of evidence of

the victim's prior sexual conduct, but it is hard to imagine

that this determination would be materially affected by whether

the court room was open or closed.

    Consequently, I foresee that very few, if any, defendants

will receive a new trial as a result of this opinion.     As with

Waller, the opinion here is not limited to prospective

application, but its practical impact will be.
