Section 102. Purpose and Construction
The sections contained in this Guide summarize the law of evidence applied in proceedings in the courts of the Commonwealth of Massachusetts as set forth in the Massachusetts General Laws, common law, and rules of court, and as required by the Constitutions of the United States and Massachusetts.
The provisions contained in this Guide may be cited by lawyers, parties, and judges, but are not to be construed as adopted rules of evidence or as changing the existing law of evidence.
The Advisory Committee has made every effort to provide the most accurate and clear statement of the law of evidence in Massachusetts as it exists at the time of the publication of this Guide. Importantly, these provisions are not to be interpreted as a set of formal or adopted rules of evidence, and they do not change Massachusetts law. Because Massachusetts has not adopted rules of evidence, the development of Massachusetts evidence law continues to be based on the common law and legislative processes. This Guide is intended to collect the law of evidence from those common law and legislative sources, and to make it readily accessible to judges, lawyers, and parties in Massachusetts courts so that judicial and administrative proceedings may be conducted fairly, efficiently, and without unjustifiable expense and delay.
The Guide tracks the general organization and structure of the Federal Rules of Evidence, but numerous sections have been changed or added to reflect the differences between Federal and Massachusetts law. Where the Advisory Committee determined that Federal law and Massachusetts law are consistent or very similar, the Guide uses the language of the Federal rule and identifies any minor differences in the Note accompanying that section. Sections of the Guide that are derived from Massachusetts statutes track the language of the statute as closely as possible, and the accompanying Note identifies the statute that provides the basis for the section. In all cases, the Note to each section identifies the authority on which the section is based, as well as other relevant authorities that may be helpful in interpreting or applying the section.
Discretion. Whether evidence should be admitted or excluded often reduces to the exercise of discretion, especially when the parties disagree about whether the evidence is relevant (see Section 401 , Test for Relevant Evidence), or whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, being unnecessarily time consuming, or needless presentation of cumulative evidence (see Section 403 , Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons). At one time, a discretionary decision was considered to be one that involved a choice made by the judge that was subject to review and reversal in only the most rare and unusual circumstances when it was shown that “no conscientious judge acting intelligently could honestly have taken the view expressed by him.” See Commonwealth v. Bys , 370 Mass. 350, 361 (1976), quoting Davis v. Boston Elevated Ry. Co. , 235 Mass. 482, 502 (1920). In recent years, appellate courts have established a variety of guidelines for the exercise of discretion by trial judges. See, e.g., Commonwealth v. Aviles , 461 Mass. 60, 73 (2011) (first complaint doctrine set forth in Section 413 is guideline to regulate exercise of judicial discretion); Commonwealth v. Heang , 458 Mass. 827, 850 (2011) (guideline for how expert witnesses may express degree of certitude in support of their opinions); Commonwealth v. Britto , 433 Mass. 596, 613–614 (2001) (guidelines for questioning of witnesses by jurors); Commonwealth v. Festa , 369 Mass. 419, 429–430 (1976) (guidelines for the use of interpreters); Commonwealth v. Bourgeois , 68 Mass. App. Ct. 433, 437 n.10 (2007) (discussing Lampron-Dwyer protocol established to regulate access to records in hands of third party).
In keeping with this trend in the law toward guided discretion, see, in particular, Lonergan-Gillen v. Gillen , 57 Mass. App. Ct. 746, 748–749 (2003), the Supreme Judicial Court has recalibrated the standard of review for discretionary decisions:
“An appellate court’s review of a trial judge’s decision for abuse of discretion must give great deference to the judge’s exercise of discretion; it is plainly not an abuse of discretion simply because a reviewing court would have reached a different result. But the ‘no conscientious judge’ standard is so deferential that, if actually applied, an abuse of discretion would be as rare as flying pigs. When an appellate court concludes that a judge abused his or her discretion, the court is not, in fact, finding that the judge was not conscientious or, for that matter, not intelligent or honest. Borrowing from other courts, we think it more accurate to say that a judge’s discretionary decision constitutes an abuse of discretion where we conclude the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives.”
L.L. v. Commonwealth , 470 Mass. 169, 185 n.27 (2014).). The following is a list of situations where the new abuse of discretion standard has been applied.
- Admissibility of Excited Utterances. Commonwealth v. Rodriguez , 90 Mass. App. Ct. 315, 318–319 (2016).
- Admissibility of Expert Testimony. Commonwealth v. Snyder , 475 Mass. 445, 452 (2016); Commonwealth v. Coates , 89 Mass. App. Ct. 728, 733 (2016).
- Admissibility of Prior Bad Acts for Nonpropensity Purpose. Commonwealth v. Robertson , 88 Mass. App. Ct. 52, 54 (2015).
- Motion to Reopen Evidence to Allow Additional Testimony. Clark v. Leisure Woods Estates, Inc. , 89 Mass. App. Ct. 87, 95–96 (2016).
- Remedy for Violation of Sequestration Order. Commonwealth v. Neves , 474 Mass. 355, 368 (2016).
- Sanctions for Attorney Misconduct. Wong v. Luu , 472 Mass. 208, 220 (2015).
- Weighing Probative Value of Evidence Versus Risk of Unfair Prejudice. Commonwealth v. Alleyne , 474 Mass. 771, 778–780 (2016); Commonwealth v. Bell , 473 Mass. 131, 144–145 (2015); Commonwealth v. Coates , 89 Mass. App. Ct. 728, 740 (2016); Commonwealth v. Vera , 88 Mass. App. Ct. 313, 321–322 (2015).
- Admissibility of Eyewitness Identification Not Arising from Police Procedure. Commonwealth v. Johnson , 473 Mass. 594, 602 (2016).
- Direct Appeal from Conviction of First-Degree Murder Under G. L. c. 278, § 33E. Commonwealth v. Chatman , 473 Mass. 840, 846 (2016).
- Dismissal of Criminal Complaint Without Prejudice. Commonwealth v. Butler , 87 Mass. App. Ct. 183, 186–187 (2015).
- Motion for New Trial. Commonwealth v. Ellis , 475 Mass. 459, 476 (2016); Commonwealth v. Chatman , 473 Mass. 840, 846 (2016); Commonwealth v. Kolenovic , 471 Mass. 664, 672 (2015); Commonwealth v. Brescia , 471 Mass. 381, 396–397 (2015).
- Application of Judicial Estoppel. Murphy v. Wachovia Bank of Del. , 88 Mass. App. Ct. 9, 16–17 (2015).
- Award of Attorney’s Fees. Schechter v. Schechter , 88 Mass. App. Ct. 239, 260 (2015).
- Characterization of Income for Calculation of Child Support. Hoegen v. Hoegen , 89 Mass. App. Ct. 6, 9–10 (2016).
- Child Custody and Child Support Orders. Rosenwasser v. Rosenwasser , 89 Mass. App. Ct. 577, 580 (2016); Ventrice v. Ventrice , 87 Mass. App. Ct. 190, 196 (2015); Murray v. Super , 87 Mass. App. Ct. 146, 148 (2015).
- Civil Action in Nature of Certiorari. Frawley v. Police Comm'r of Cambridge , 473 Mass. 716, 729 (2016).
- Grant of Parole to Juvenile Homicide Offender. Diatchenko v. District Attorney for the Suffolk Dist. , 471 Mass. 12, 31 (2015).
- Prisoner’s Petition for Name Change. Jaynes, petitioner , 88 Mass. App. Ct. 745, 747 (2015).
- Section 403 Balancing Test. Commonwealth v. Gomes , 475 Mass. 775, 785 (2016).
Section 103. Rulings on Evidence, Objections, and Offers of Proof
(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error injuriously affects a substantial right of the party and,
(1) if the ruling admits evidence, a party, on the record,
(A) timely objects or moves to strike and
(B) states the specific ground, unless it was apparent from the context, or,
(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
(b) Preliminary Evidentiary Motions: Effect on Appellate Rights. Where a party fails to object to the admission of evidence at trial, the party’s appellate rights with respect to the admission of that evidence are preserved only if the party raised the same specific objection to the very same evidence in a motion in limine, and the motion was heard and denied.
(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.
(d) Preventing the Jury or Witnesses from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury or witnesses by any means.
(e) Substantial Risk of a Miscarriage of Justice in Criminal Cases. In criminal cases, a court may take notice of a plain error that constitutes a substantial risk of a miscarriage of justice, even if the claim of error was not properly preserved.
(f) Motions in Limine. Where the issue can reasonably be anticipated, a motion in limine should be filed prior to trial.
(g) Exclusion as Sanction. Although the court should impose the least severe sanction necessary to remedy the prejudice to the innocent party, nothing in this section precludes a court from excluding evidence as a sanction for a violation of a discovery rule, order, or other obligation imposed on a party in a civil or criminal case.
Subsection (a). This subsection is derived from G. L. c. 231, § 119 , which states as follows:
“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or anything done or omitted by the trial court or by any of the parties is ground for modifying or otherwise disturbing a judgment or order unless the appeals court or the supreme judicial court deems that the error complained of has injuriously affected the substantial rights of the parties. If either court finds that the error complained of affects only one or some of the issues or parties involved it may affirm the judgment as to those issues or parties unaffected and may modify or reverse the judgment as to those affected.”
See also G. L. c. 231, § 132 (stating that no new trial in a civil proceeding may be granted based upon the improper admission or exclusion of evidence unless the error injuriously affected the proponent’s substantial rights). To determine whether a substantial right was injuriously affected by the exclusion of evidence
“the appropriate test is whether the proponent of erroneously excluded, relevant evidence has made a plausible showing that the trier of fact might have reached a different result if the evidence had been before it. Thus the erroneous exclusion of relevant evidence is reversible error unless, on the record, the appellate court can say with substantial confidence that the error would not have made a material difference.”
DeJesus v. Yogel , 404 Mass. 44, 48–49 (1989).
Judicial Duty to Give Curative Instruction. In a criminal case, if defense counsel is unable to present certain evidence promised in an opening statement because the court changes an earlier ruling, the danger of prejudice is so great that the judge must give the jury an explanation why the defendant could not keep the promise made in the opening statement. Commonwealth v. Chambers , 465 Mass. 520, 534–535 (2013) (alternatively, the judge may decline to give the curative instruction and instead allow the defendant to present the evidence).
Subsection (a)(1). This subsection is derived from Commonwealth v. Marshall , 434 Mass. 358, 365 (2001), and Commonwealth v. Pickles , 364 Mass. 395, 399 (1973). “[O]bjections to evidence, or to any challenged order or ruling of the trial judge, are not preserved for appeal unless made in a precise and timely fashion, as soon as the claimed error is apparent.” Commonwealth v. Perryman , 55 Mass. App. Ct. 187, 192 (2002). “The purpose of requiring an objection is to afford the trial judge an opportunity to act promptly to remove from the jury’s consideration evidence which has no place in the trial.” Abraham v. Woburn , 383 Mass. 724, 726 n.1 (1981). If a timely objection is not made, the evidence is properly admitted, and the fact finder is entitled to give it such probative effect as it deems appropriate. Id. But any objected-to statement at trial “is only worth what it is worth.” Commonwealth v. Drapaniotis , 89 Mass. App. Ct. 267, 274–276 (2016).
In both jury trials and jury-waived trials, counsel have the obligation to make timely objections. See Commonwealth v. Freeman , 352 Mass. 556, 563-564 (1967) (jury trials); Commonwealth v. Mazzone , 55 Mass. App. Ct. 345, 348 (2002) (jury-waived trials). Counsel have the same duty to make objections to improper questions by a judge as they do when the questions are asked by opposing counsel. Commonwealth v. Watkins , 63 Mass. App. Ct. 69, 72–73 (2005). Generally, counsel should make an objection to a question before the answer is given. See Commonwealth v. Baptiste , 372 Mass. 700, 706 (1977). Self-represented litigants are bound by the same rules of procedure as litigants with counsel. Mains v. Commonwealth , 433 Mass. 30, 35–36 (2000).
“When objecting, counsel should state the specific ground of the objection unless it is apparent from the context.” Commonwealth v. Marshall, 434 Mass. at 365, quoting P.J. Liacos, Massachusetts Evidence § 3.8.3, at 85 (7th ed. 1999). See Mass. R.Civ. P. 46; Mass. R. Crim. P. 22. The court may ask the party objecting to the admission or exclusion of evidence to state the precise ground for the objection. See Rule 8 of the Rules of the Superior Court. Further argument or discussion of the grounds is not allowed unless the court requests it. Id. The need for an exception has been abolished by Mass. R.Civ. P. 46 and Mass. R. Crim. P. 22.
A motion to strike is used to eliminate an answer that is objectionable either on substantive grounds or on the ground that it is nonresponsive. Commonwealth v. Pickles, 364 Mass. at 399. When testimony is subject to an objection that is sustained, but not followed by a motion to strike, the issue is not preserved. When an answer is nonresponsive and objectionable, a subsequent objection or a motion to strike is necessary to preserve the issue. Commonwealth v. Womack , 457 Mass. 268, 272–273 (2010); Commonwealth v. Rosado , 59 Mass. App. Ct. 913, 914 (2003).
As to the court’s instructions to the jury, an objection is necessary to preserve an issue regarding the giving or failure to give an instruction. See Mass. R. Civ. P. 51(b); Mass. R. Crim. P. 24(b). See also Harlow v. Chin , 405 Mass. 697, 703 n.5 (1989); Commonwealth v. Barbosa , 399 Mass. 841, 844 (1987). Counsel should renew any prior objection with specificity following the charge. Fein v. Kahan , 36 Mass. App. Ct. 967, 968 n.4 (1994).
Subsection (a)(2). This subsection is derived from Commonwealth v. Chase , 26 Mass. App. Ct. 578, 581 (1988), and Mass. R. Civ. P. 43(c). “[A]n offer of proof is required to preserve the right to appellate review of the denial of an offer to introduce evidence through the direct examination of a witness.” Commonwealth v. Chase, 26 Mass. App. Ct. at 581.
The offer of proof should state or summarize the testimony or evidence and show that the proponent would be prejudiced by the exclusion of the offered evidence. Holmgren v. LaLiberte , 4 Mass. App. Ct. 820 (1976). The court may consider only so much of the offer of proof that is responsive to the excluded question or evidence and apparently within the witness’s knowledge. Coral Gables, Inc. v. Beerman , 296 Mass. 267, 268–269 (1936). An offer of proof that fails to satisfy the statutory or common-law requirements for the admissibility of the evidence will lead to the exclusion of the evidence. See Rockport Granite Co. v. Plum Island Beach Co. , 248 Mass. 290, 295 (1924).
An offer of proof is not necessary where the context is clear, see Commonwealth v. Donovan , 17 Mass. App. Ct. 83, 88 (1983), or where there is no doubt what the testimony will be, see Commonwealth v. Caldron , 383 Mass. 86, 89 n.2 (1981); Commonwealth v. Smith , 163 Mass. 411, 429 (1895).
If the evidence is excluded on cross-examination, an offer of proof generally need not be made, Stevens v. William S. Howe Co. , 275 Mass. 398, 402 (1931), although there is a “relatively rare group of cases where, if the purpose or significance of the question is obscure and the prejudice to the cross-examiner is not clear . . . the record must disclose the cross-examiner’s reason for seeking an answer to an excluded question.” Breault v. Ford Motor Co. , 364 Mass. 352, 358 (1973).
Subsection (b). This subsection is derived from Commonwealth v. Grady , 474 Mass. 715 (2016), in which the Supreme Judicial Court held that,
“[g]oing forward, we dispense with any distinction, at the motion in limine stage, between objections based on constitutional grounds and objections based on other grounds. We will no longer require a defendant to object to the admission of evidence at trial where he or she has already sought to preclude the very same evidence at the motion in limine stage, and the motion was heard and denied.”
Id. at 719. See also Commonwealth v. Almele , 474 Mass. 1017 (2016) (decided the same day as Grady). However, to be safe, the Supreme Judicial Court has recommended that the “better practice” is for a party “to object at trial even if he or she has already raised an objection prior to trial.” Commonwealth v. Almele, 474 Mass. at 1018. The court also indicated that judges should no longer engage in the practice of “pre-serving” or “saving” a party’s rights when ruling on a motion in limine because this practice may lull the party into not “voicing a necessary objection at trial.” Id. at 1019; Commonwealth v. Grady, 474 Mass. at 721.
Subsection (c). The first sentence is derived from Mass. R. Civ. P. 43(c). As to the second sentence, if the court sustains an objection to a question, the court may permit the witness to answer the question in order to satisfy the need for an offer of proof.
Subsection (d). This subsection is derived generally from Mass. R. Civ. P. 43(c), Mass. R. Civ. P. 51(b), and Mass. R. Crim. P. 24(b). See Commonwealth v. Scullin , 44 Mass. App. Ct. 9, 14 (1997) (“[I]t is essential that [the court] take steps to ensure that the jury is not exposed to the questionable evidence before the issue of admissibility is finally decided. Failing to follow this course places the opponent of the evidence in a difficult situation, and may create an unfair advantage for the proponent of the testimony, especially in the event the evidence ultimately is excluded.”). See also Ruszcyk v. Secretary of Pub. Safety , 401 Mass. 418, 422 (1988). Cross-Reference: Section 611(a) , Mode and Order of Examining Witnesses and Presenting Evidence: Control by the Court.
The court has the discretion to employ any one of several methods to determine preliminary questions while insulating the jury from inadmissible evidence. These methods range from pretrial motions to suppress or motions in limine, to conducting proceedings during trial at sidebar, in chambers, or while the jury is absent from the courtroom. The court also has discretion whether to rule on the admissibility of evidence in advance of the trial by a motion in limine or to wait until the issue arises at trial. See Commonwealth v. Olsen , 452 Mass. 284, 292–293 (2008) (trial judge properly declined to rule in advance on motion in limine to permit defendant to call twenty-two witnesses to testify to the fact that the prosecution’s chief witness had a poor reputation in the community for truth-telling, leaving the issue to be decided as it arose with particular witnesses).
Subsection (e). This subsection is derived from Commonwealth v. Alphas , 430 Mass. 8, 13 (1999); Commonwealth v. Freeman , 352 Mass. 556, 561–564 (1967); and Commonwealth v. Watkins , 63 Mass. App. Ct. 69, 72–73 (2005). See also G. L. c. 278, § 33E .
As stated above, a timely objection at trial is required to preserve an issue for appellate review. If an objection was not made, the appellate court can consider an issue, but does so under a limited standard of review. For cases other than capital cases on direct appeal, the appellate court will apply the so-called Freeman standard to unpreserved trial errors and analyze whether the error created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. at 13. The proper standard of review for a noncapital offense is as follows:
“An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not ‘materially influence’ the guilty verdict. In making that determination, we consider the strength of the Commonwealth’s case against the defendant (without consideration of any evidence erroneously admitted), the nature of the error, whether the error is ‘sufficiently significant in the context of the trial to make plausible an inference that the jury’s result might have been otherwise but for the error,’ and whether it can be inferred ‘from the record that counsel’s failure to object was not simply a reasonable tactical decision.’” (Citations and footnotes omitted.)
Id. However, the application of the more stringent standard of review based on counsel’s failure to object does not, standing alone, create a substantial risk of a miscarriage of justice. Commonwealth v. Vargas , 475 Mass. 338, 358 n.28 (2016). Under G. L. c. 278, § 33E , in any case in which the defendant was found guilty of murder in the first degree, see Commonwealth v. Francis , 450 Mass. 132, 137 n.5 (2007), the Supreme Judicial Court has a special duty and plenary authority to review the whole case, on the law and the evidence, and may order a new trial or reduce the verdict even in the absence of an objection. See Commonwealth v. Wright , 411 Mass. 678, 682 n.1 (1992). ). A trial judge may reduce a jury verdict to any lesser included offense “to ensure that the result in every criminal case is consonant with justice.” Commonwealth v. Chhim , 447 Mass. 370, 381 (2006); G. L. c. 278, § 11 ; Mass. R. Crim. P. 25(b)(2). This power, which is designed to rectify a disproportionate verdict, or ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judge’s own error, or the interaction of several causes, should be used sparingly. Commonwealth v. Keough , 385 Mass. 314, 316–321 (1982). A judge considering a motion to reduce a verdict may rely on essentially the same considerations as does the Supreme Judicial Court when deciding whether to reduce a verdict to a lesser degree of guilt pursuant to G. L. c. 278, § 33E . Commonwealth v. Pagan , 471 Mass. 537, 543 (2015).
Subsection (f). This subsection is derived from Commonwealth v. Spencer , 465 Mass. 32, 42 (2013).
Purpose. Massachusetts practice encourages the use of motions in limine. Motions in limine are useful to clarify or simplify the issues that need to be addressed prior to trial and to prevent irrelevant, inadmissible, or prejudicial matters from being considered by the trier of fact. See Commonwealth v. Lopez , 383 Mass. 497, 500 n.2 (1981). Such motions should be “narrowly limited to focus on a discrete issue or item of anticipated evidence,” and “must not be used to choke off a valid defense in a criminal action, or to ‘knock out’ the entirety of the evidence supporting a defense before it can be heard by the jury.” Commonwealth v. O’Malley , 14 Mass. App. Ct. 314, 324–325 (1982). See also Commonwealth v. Hood , 389 Mass. 581, 594 (1983); J.D.H. v. P.A.H. , 71 Mass. App. Ct. 285, 290 (2008) (court may rely on evidence excluded in motion in limine where moving party later introduces the evidence where it is favorable to nonmoving party).
Timing. While a motion in limine may be filed during trial in advance of the evidence being offered, Commonwealth v. Spencer , 465 Mass. 32, 42 (2013), there is a preference for filing and ruling on such motions in advance of trial since it may affect counsels’ conduct of the trial. See Commonwealth v. Woodbine , 461 Mass. 720, 735 n.21 (2012); Commonwealth v. Diaz , 383 Mass. 73, 81 (1981). In some cases, such as where there are challenges to the reliability of expert witness testimony, a pretrial motion in limine is required to preserve the opposing party’s rights. Commonwealth v. Sparks , 433 Mass. 654, 659 (2001). A judge retains the discretion to reserve on a ruling until the evidence is presented at trial.
Illustrations. Cases involving common examples of motions in limine include the following: McLaughlin v. City of Lowell , 84 Mass. App. Ct. 45, 70 (2013) (application of collateral estoppel or issue preclusion); Scott v. Garfield , 454 Mass. 790, 802 (2009) (issues relating to collateral source rule and amount of medical bills); N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co. , 466 Mass. 358, 360 (2013) (admissibility of data compilations pursuant to G. L. c. 233, § 79B ); Vassallo v. Baxter Healthcare Corp. , 428 Mass. 1, 9 (1998) (Daubert-type motions relating to admissibility of expert testimony); Croall v. Massachusetts Bay Transp. Auth. , 26 Mass. App. Ct. 957, 959 (1988) (similar occurrences); and McDaniel v. Pickens , 45 Mass. App. Ct. 63, 67 (1998) (evidence of insurance offered to show bias).
A motion in limine may be used to obtain a ruling in advance of trial on whether a statement is subject to the rule against hearsay or whether the probative value of otherwise relevant evidence is substantially outweighed by its prejudicial effect. Commonwealth v. Spencer , 465 Mass. 32, 42 (2013). A motion in limine is also a useful method for obtaining a ruling on the admissibility of evidence of prior bad acts, see Commonwealth v. Leonard , 428 Mass. 782 (1999), as well as on evidence of prior criminal convictions and the application of the rape-shield law. See Commonwealth v. Harris , 443 Mass. 714 (2005). A motion in limine is commonly used to obtain a ruling in advance of trial on the admissibility of evidence under the first complaint doctrine. See, e.g., Commonwealth v. Aviles , 461 Mass. 60, 63–66 (2011).
Subsection (g). The trial court’s ruling on the exclusion of evidence as a sanction is reviewable for an abuse of discretion. Commonwealth v. Sanford , 460 Mass. 441, 445 (2010). Sanctions are to be appropriately tailored to cure prejudice relating to a party’s noncompliance with its discovery obligations and to ensure a fair trial. Commonwealth v. Carney , 458 Mass. 418, 427–428 (2010). Factors to be considered include the prevention of surprise, the effectiveness of sanctions short of exclusion of evidence, the presence or absence of bad faith, the prejudice to the nonoffending party, and the materiality of the evidence. Commonwealth v. Reynolds , 429 Mass. 388, 398 (1999). But see Commonwealth v. Giontzis , 47 Mass. App. Ct. 450, 462–463 (1999) (not prejudicial error to allow Commonwealth’s undisclosed rebuttal witness to testify even though there was evidence of surprise and bad faith).
Generally, the judge should impose the least severe sanction necessary to remedy the prejudice to the innocent party. Keene v. Brigham & Women’s Hosp., Inc. , 439 Mass. 223, 235 (2003). See Wiedmann v. Bradford Group, Inc. , 444 Mass. 698, 704–705 (2005) (oral testimony may be excluded as sanction for destruction of supporting documents). Exclusion of evidence as a sanction need not be based on an intentional act, but there must be some fault attributable to the sanctioned party. Kippenhan v. Chaulk Servs., Inc. , 428 Mass. 124, 127 (1998).
While a trial judge may exclude expert testimony for failure to comply with discovery, the judge must consider other options, including a sua sponte continuance of the trial or an order for a deposition of the late-identified expert. Morgan v. Jozus , 67 Mass. App. Ct. 17, 24 (2006). A pretrial motion to compel is not a prerequisite for relief for the innocent party. Mohamed v. Fast Forward, Inc. , 41 Mass. App. Ct. 643, 648 (1996).
Cross-Reference: Section 1102, Spoliation or Destruction of Evidence ; Mass. R. Crim. P. 14(c) ; Mass. R.Civ. P. 37.
Section 104. Preliminary Questions
(a) In General. The court must decide any preliminary question about whether a witness is qualified or competent, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by the law of evidence, except that on privilege.
(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence, de bene, on the condition that the proof be introduced later. Evidence so admitted is subject to a motion to strike if that proof is not forthcoming.
(c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if
(1) the hearing involves the admissibility of a confession or
(2) justice so requires.
(d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case, except issues that affect the witness’s credibility.
(e) Evidence Relevant to Weight and Credibility. The law stated in this section does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.
Subsection (a). This subsection is derived from Nally v. Volkswagen of Am., Inc. , 405 Mass. 191, 197–198 (1989), and Commonwealth v. Figueroa , 56 Mass. App. Ct. 641, 646 (2002). See also Gorton v. Hadsell, 63 Mass. 508, 511 (1852) (explaining that Massachusetts follows the orthodox principle under which “it is the province of the judge . . . to decide all questions on the admissibility of evidence. It is also his province to decide any preliminary questions of fact, however intricate, the solution of which may be necessary to enable him to determine the other question of admissibility.”). The court may consider, in appropriate circumstances, representations of counsel and summary testimony. When the credibility of witnesses is in dispute on a preliminary question of fact, the court’s determination is final. See Commonwealth v. Lyons , 426 Mass. 466, 470 (1998); Davis v. Boston Elevated Ry. Co. , 235 Mass. 482, 502 (1920). The general rule in all cases, except as to waiver of Miranda rights and the voluntariness of defendants’ statements in criminal cases, is that the judge’s findings of preliminary facts on which the admissibility of evidence depends need only be by a fair preponderance of the evidence. See Care and Protection of Laura , 414 Mass. 788, 792 (1993); Commonwealth v. Polian , 288 Mass. 494, 498–499 (1934). As to the waiver of Miranda rights and the issue of voluntariness, the standard under Massachusetts law is proof beyond a reasonable doubt. Commonwealth v. Day , 387 Mass. 915, 920 (1983).
When the preliminary question involves the applicability of a privilege and the substance of the proposed testimony or evidence is not known to the court, it may be necessary to require that the party or witness asserting the privilege make a disclosure in camera of enough of the evidence to enable the court to make a preliminary determination. See Commonwealth v. Collett , 387 Mass. 424, 436 (1982) (in camera review may be appropriate in determining applicability of client–social worker privilege); Notes to Section 511(b) , Privilege Against Self-Incrimination: Privilege of a Witness (discussing Commonwealth v. Martin , 423 Mass. 496 ). See also Carr v. Howard , 426 Mass. 514, 531 (1998) (medical peer review privilege). An in camera hearing should not be used unless the court is not able to determine the existence of the privilege from the record. Commonwealth v. Martin, 423 Mass. at 504–505. See, e.g., Bays v. Theran , 418 Mass. 685, 693 (1994); Bougas v. Chief of Police of Lexington , 371 Mass. 59, 65–66 (1976). Whether a privilege exists on behalf of a minor or incapacitated person is a preliminarily determination made by the court. If a privilege exists, the court appoints a guardian ad litem or guardian to waive or assert the privilege. G. L. c. 233, § 20B . See Adoption of Diane , 400 Mass. 196, 200–202 (1987).
Preliminary questions involving the voluntariness of a defendant’s statement, whether there was a valid waiver of the rights required by Miranda v. Arizona , 384 U.S. 436 (1966), or whether an identification was unnecessarily suggestive, should be raised in advance of trial by a motion to suppress. See Mass. R. Crim. P. 13(c)(1), (2). When voluntariness is a live issue and is challenged by a pretrial motion to suppress or an objection at trial, the court shall conduct an evidentiary hearing. See Commonwealth v. Adams , 389 Mass. 265, 269–270 (1983); Commonwealth v. Miller , 68 Mass. App. Ct. 835, 842 (2007); Commonwealth v. Gonzalez , 59 Mass. App. Ct. 622, 624 (2003); Commonwealth v. Florek , 48 Mass. App. Ct. 414, 419 (2000). However, if a pretrial motion to suppress was heard and determined in advance of trial, and the evidence at trial is not materially different, the trial judge has no duty to rehear the motion based on an objection made at trial. See Commonwealth v. Parker , 412 Mass. 353, 356 (1992).
In some criminal cases, there are certain preliminary facts which, after being found by the judge, must also be submitted to the jury. In those situations, the judge must instruct the jury to disregard the evidence if they do not believe that those preliminary facts exist. See, e.g., Commonwealth v. Tavares , 385 Mass. 140, 152 (humane practice rule), cert. denied, 457 U.S. 1137 (1982); Commonwealth v. Key , 381 Mass. 19, 22 (1980) (dying declaration); Commonwealth v. Boyer , 52 Mass. App. Ct. 590 (2001) (statements by joint venturers). See also G. L. c. 233, § 78 (business records). Cross-Reference: Section 1101(c)(3), Applicability of Evidentiary Sections: Where Inapplicable: Certain Other Proceedings .
For a comprehensive discussion of the difference between preliminary questions of fact upon which admissibility is determined by the judge under Mass. G. Evid. § 104(a) and the judge’s determinations of conditional relevance under Mass. G. Evid. § 104(b), see Commonwealth v. Bright , 463 Mass. 421, 427–429 (2012).
Subsection (b). This subsection is derived from Commonwealth v. Perry , 432 Mass. 214, 234 (2000); Commonwealth v. Leonard , 428 Mass. 782, 785–786 (1999); Fauci v. Mulready , 337 Mass. 532, 540 (1958); and Harris-Lewis v. Mudge , 60 Mass. App. Ct. 480, 485 n.4 (2004). “Relevancy conditioned on fact” means that the judge is satisfied that a reasonable jury could find that the event took place or the condition of fact was fulfilled. Commonwealth v. Leonard, 428 Mass. at 785–786. See, e.g., Commonwealth v. Gambora , 457 Mass. 715, 730 (2010) (expert shoe-print evidence was relevant because reasonable jury could have found that police seizure of sneaker “from a closet in a bedroom at the defendant’s mother’s home—a room where the police also found personal papers bearing the defendant’s name and photographs of him”—warranted an inference that the sneaker belonged to him, and therefore made it relevant). Contrast Section 104(a) (judge finds facts by preponderance of evidence).
In the event that the foundation evidence is not subsequently produced, the court has no duty to strike the evidence, admitted de bene, on its own motion. Commonwealth v. Sheppard , 313 Mass. 590, 595–596 (1943); Harris-Lewis v. Mudge , 60 Mass. App. Ct. at 485 n.4. If the objecting party fails to move to strike the evidence, the court’s failure to strike it is not error. Muldoon v. West End Chevrolet, Inc. , 338 Mass. 91, 98 (1958). See Commonwealth v. Navarro , 39 Mass. App. Ct. 161, 166 (1995). See also Section 611(a) , Mode and Order of Examining Witnesses and Presenting Evidence: Control by the Court.
Subsection (c). This subsection is derived from Fed. R. Evid. 104(c) and Proposed Mass. R. Evid. 104(c) and is consistent with Massachusetts law. See Ruszcyk v. Secretary of Pub. Safety , 401 Mass. 418, 422–423 (1988).
Subsection (d). This subsection is derived from Fed. R. Evid. 104(d) and Proposed Mass. R. Evid. 104(d) and is consistent with Massachusetts law. See Commonwealth v. Judge , 420 Mass. 433, 444–446 (1995). It is well established that a defendant’s testimony in support of a motion to suppress evidence may not be admitted against him or her at trial on the issue of guilt. See Simmons v. United States , 390 U.S. 377, 394 (1968). Such testimony may, however, be used for purposes of impeachment at trial if the defendant elects to testify. See Commonwealth v. Judge, 420 Mass. at 446 n.9 (the fact that defendant’s testimony at suppression hearing may later be used at trial does not mean the scope of cross-examination of defendant at preliminary hearing should be limited). See also United States v. Smith , 940 F.2d 710, 713 (1st Cir. 1991) (defendant’s testimony at a pretrial hearing can be used against him for impeachment purposes at trial).
Subsection (e). This subsection is based on the long-standing principle that, in cases tried to a jury, questions of admissibility are for the court, while the credibility of witnesses and the weight of the evidence are questions for the jury. See Vassallo v. Baxter Healthcare Corp. , 428 Mass. 1, 13 (1998); Commonwealth v. Festa , 369 Mass. 419, 424–425 (1976); Commonwealth v. Williams , 105 Mass. 62, 67 (1870).
Section 105. Limiting Evidence That is Not Admissible Against Other Parties or for Other Purposes
If the court admits evidence that is admissible against a party or for a purpose - but not against another party or for another purpose - the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
This section is derived from Commonwealth v. Carrion , 407 Mass. 263, 275 (1990) (“Evidence admissible for one purpose, if offered in good faith, is not inadmissible by the fact that it could not be used for another purpose.”). If there is no request for a limiting instruction, the evidence is before the trier of fact for all purposes. See, e.g., Commonwealth v. Roberts , 433 Mass. 45, 48 (2000); Commonwealth v. Hollyer , 8 Mass. App. Ct. 428, 431 (1979).
A party must ask for an instruction limiting the scope of the evidence, if one is desired, at the time the evidence is admitted. Commonwealth v. Roberts, 433 Mass. at 48. “[T]here is no requirement that the judge give limiting instructions sua sponte.” Commonwealth v. Sullivan , 436 Mass. 799, 809 (2002). “A judge may refuse to limit the scope of the evidence where the objecting party fails to request limiting instructions when the evidence is introduced.” Commonwealth v. Roberts, 433 Mass. at 48. “After the close of the evidence it is too late to present as of right a request for a ruling that the evidence be stricken.” Id.
The trial judge has discretion in determining how to formulate limiting instructions. The Supreme Judicial Court has stated that
“[a] trial judge may properly bring to the jury’s attention issues of fact and conflicts of testimony. [The judge] may point out factors to be considered in weighing particular testimony. Nothing . . . precludes, or could properly preclude, such guidance where the judge clearly places the function of ultimate appraisal of the testimony upon the jury.”
Barrette v. Hight , 353 Mass. 268, 271 (1967).
Instructions Required. Once the judge has determined that the probative value is not substantially outweighed by the danger of unfair prejudice, a limiting instruction is required where, even though evidence is admissible for one purpose, there is a risk that the evidence will improperly be used for an inadmissible purpose. See Commonwealth v. McGee , 467 Mass. 141, 158 (2014) (a firearm that could not have been used to shoot victim, but that was offered to establish that defendant was familiar with firearms, was admissible only if accompanied by limiting instruction that it could not be taken as propensity evidence).
Section 106. Doctrine of Completeness
(a) Remainder of Writings or Recorded Statements. If a party introduces all or part of a writing or recorded statement, the court may permit an adverse party to introduce any other part of the writing or statement that is (1) on the same subject, (2) part of the same writing or conversation, and (3) necessary to an understanding of the admitted writing or statement.
(b) Curative Admissibility. When the erroneous admission of evidence causes a party to suffer significant prejudice, the court may permit incompetent evidence to be introduced to cure or minimize the prejudice.
Subsection (a). This subsection is derived from Commonwealth v. Aviles , 461 Mass. 60, 74 (2011). See Mass. R. Civ. P. 32(a)(4) . “When a party introduces a portion of a statement or writing in evidence the doctrine of verbal completeness allows admission of other relevant portions of the same statement or writing which serve to ‘clarify the context’ of the admitted portion.” Commonwealth v. Carmona , 428 Mass. 268, 272 (1998), quoting Commonwealth v. Robles , 423 Mass. 62, 69 (1996). “The purpose of the doctrine is to prevent one party from presenting a fragmented and misleading version of events by requiring the admission of other relevant portions of the same statement or writing which serve to clarify the context of the admitted portion” (citations and quotations omitted). Commonwealth v. Eugene , 438 Mass. 343, 351 (2003). “The portion of the statement sought to be introduced must qualify or explain the segment previously introduced” (citations and quotations omitted). Commonwealth v. Richardson , 59 Mass. App. Ct. 94, 99 (2003). See, e.g., Commonwealth v. Aviles, 461 Mass. at 74 (where defendant offered portion of victim’s testimony describing touching of her buttocks, Commonwealth was properly permitted to offer testimony about touching of vaginal area, as both answers pertained to issue of where defendant had touched victim and were made during the same line of questioning).
The decision as to when the remainder of the writing or statement is admitted is left to the discretion of the judge, but the “better practice is to require an objection and contemporaneous introduction of the complete statements when the original statement is offered.” McAllister v. Boston Hous. Auth. , 429 Mass. 300, 303 (1999). See Section 611(a) , Mode and Order of Examining Witnesses and Presenting Evidence: Control by the Court. Compare Commonwealth v. Thompson , 431 Mass. 108, 115, cert. denied, 531 U.S. 864 (2000) (doctrine is not applicable to defendant’s effort to admit alibi portion of his or her statement that has nothing to do with statement offered by Commonwealth), with Commonwealth v. Crayton , 470 Mass. 228, 230 (2014) (in prosecution for possession of child pornography, it was error to admit defendant’s statement to police that he had been using a particular computer at library while excluding his contemporaneous denial that he had viewed child pornography on that computer).
Subsection (b). This subsection is derived from Commonwealth v. Ruffen , 399 Mass. 811, 813-814 (1987) (“The curative admissibility doctrine allows a party harmed by incompetent evidence to rebut that evidence only if the original evidence created significant prejudice.”). See also Commonwealth v. Reed , 444 Mass. 803, 810–811 (2005) (court required to admit evidence); Burke v. Memorial Hosp. , 29 Mass. App. Ct. 948, 950 (1990), citing Commonwealth v. Wakelin , 230 Mass. 567, 576 (1918).