Commonwealth v. Alphas

(concurring, with whom Lynch, J., joins). On the ground that the judge’s failure to instruct in accordance with the law did not create a substantial risk of a miscarriage of justice, the court spares the victim the further terror of a retrial. I disagree only with the court’s description of what the standard of substantial risk of a miscarriage of justice means and with the instructions it issues as to the application of that standard in future cases.

The defendant has had a trial in which his guilt was determined according to rules of law in which he himself acquiesced. In the terminology of…