Section 401.    Test for Relevant Evidence

Evidence is relevant if

(a) it has any tendency to make a fact more or less probable than it would be without the evidence and

(b) the fact is of consequence in determining the action.

NOTE

This section is derived from Commonwealth v. Schuchardt , 408 Mass. 347, 350 (1990), and is nearly identical to Fed. R. Evid. 401. See also Commonwealth v. Kennedy , 389 Mass. 308, 310 (1983) (citing with approval Proposed Mass. R. Evid. 401). Massachusetts law accords relevance a liberal definition. See Commonwealth v. Fayerweather , 406 Mass. 78, 83 (1989) (“rational tendency to prove an issue in the case”); Commonwealth v. Vitello , 376 Mass. 426, 440 (1978) (“renders the desired inference more probable than it would be without the evidence”). See, e.g., Commonwealth v. Scesny , 472 Mass. 185, 198–199 (2015) (testimony that witness was “pretty certain” defendant had been a patron at a bar was relevant and properly admitted). The concept of relevancy has two components: (1) the evidence must have some tendency (probative value) to prove or disprove a particular fact, and (2) that particular fact must be material to an issue (of consequence) in the case. Harris-Lewis v. Mudge , 60 Mass. App. Ct. 480, 485 (2004).

To be admissible, it is not necessary that the evidence be conclusive of the issue. Commonwealth v. Ashley , 427 Mass. 620, 624–625 (1998). It is sufficient if the evidence constitutes a link in the chain of proof. Commonwealth v. Arroyo , 442 Mass. 135, 144 (2004). “Evidence must go in by piecemeal, and evidence having a tendency to prove a proposition is not inadmissible simply because it does not wholly prove the proposition. It is enough if in connection with other evidence it helps a little.” Commonwealth v. Tucker , 189 Mass. 457, 467 (1905).

“The general pattern of our cases on the alleged remoteness in time or space of particular evidence indicates two general principles. If the evidence has some probative value, decisions to admit the evidence and to leave its weight to the jury have been sustained. The exclusion on the ground of remoteness of relevant evidence has generally not been sustained. The cases have recognized a range of discretion in the judge.” (Citations and footnote omitted.)

DeJesus v. Yogel , 404 Mass. 44, 47 (1989). To be relevant, evidence must not be too remote in time from the date of the crime. See, e.g., Commonwealth v. Corliss , 470 Mass. 443, 450–451 (2015) (judge was warranted in reasoning that sixteen-month interval between shooting and time witness saw defendant loading bullets into a firearm was not too remote because a person would retain knowledge of how to use a firearm). See also Crowe v. Ward , 363 Mass. 85, 88–89 (1973) (admissibility of weather reports as proof of conditions at some distance away from the reported observations).

Reliance is placed upon the trial judge’s discretion to exclude evidence whose probative value is “substantially outweighed” by risk of unfair prejudice, confusion, or waste of time. Commonwealth v. Bonds , 445 Mass. 821, 831 (2006). Although omitted in a number of cases, a proper explanation of this balancing test includes the term “substantially.” See Note to Section 403 , Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons.

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Section 402.    General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provides otherwise: 

(a) the United States Constitution,

(b) the Massachusetts Constitution, 

(c) a statute, or 

(d) other provisions of the Massachusetts common law of evidence. 

Irrelevant evidence is not admissible.

NOTE

This section is derived from Commonwealth v. DelValle , 443 Mass. 782, 793 (2005), and Commonwealth v. Owen , 57 Mass. App. Ct. 538, 547 (2003). Unless relevant, evidence will not be admitted because it does not make a fact in dispute more or less probable than it would be without the evidence. See Commonwealth v. Seabrooks , 425 Mass. 507, 512 n.7 (1997). But the converse is not true, which is to say that not all relevant evidence will be admitted. See Commonwealth v. Vitello , 376 Mass. 426, 440 (1978) (“all relevant evidence is admissible unless barred by an exclusionary rule”); Poirier v. Plymouth , 374 Mass. 206, 210 (1978) (same).    

Relevant evidence may be excluded for any number of reasons. See, e.g., G. L. c. 233, § 20 (evidence of a private conversation between spouses is inadmissible); Commonwealth v. Kater , 432 Mass. 404, 416–417 (2000) (hypnotically aided testimony is not admissible); Commonwealth v. Harris , 371 Mass. 462, 467–468 (1976) (constitutional mandate forbids admission of a coerced confession regardless of its relevance); Commonwealth v. Kartell , 58 Mass. App. Ct. 428, 432 (2003) (relevant evidence excluded on grounds it was too remote). “Alleged defects in the chain of custody usually go to the weight of the evidence and not its admissibility.” Commonwealth v. Viriyahiranpaiboon , 412 Mass. 224, 230 (1992); Section 403, Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons (relevant evidence may be excluded if its probative value is substantially outweighed by the risk of unfair prejudice, confusion, etc.). There may be circumstances where portions of documentary evidence should be excluded or redacted to protect personal privacy. See Matter of the Enforcement of a Subpoena , 436 Mass. 784, 794 (2002).    

Cross-Reference: Note “Address of Witness” to Section 501, Privileges Recognized Only as Provided .

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Section 403.    Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

NOTE

This section is derived from Ruszcyk v. Secretary of Pub. Safety , 401 Mass. 418, 423 (1988) (adopting the principles expressed in Proposed Mass. R. Evid. 403). See Commonwealth v. Bonds , 445 Mass. 821, 831 (2006); Gath v. M/A-Com, Inc. , 440 Mass. 482, 490–491 (2003); Commonwealth v. Beausoleil , 397 Mass. 206, 217 (1986); Commonwealth v. Cruz , 53 Mass. App. Ct. 393, 407–408 (2001).    

This section states the general rule that all relevant evidence may be excluded when its probative value is “substantially outweighed,” not simply 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 Commonwealth v. Crayton , 470 Mass. 228, 249 & n.27 (2014) (acknowledging this as general rule and explaining that more exacting standard is applicable when relevant evidence consists of prior bad act evidence under Section 404[b] ). See also Commonwealth v. Kindell , 84 Mass. App. Ct. 183, 187–188 (2013) (measure of prejudice is not simply whether evidence is adverse to party opposed to it, but instead whether it is unfairly prejudicial). While a majority of the cases stand for the proposition that relevant evidence may be excluded if its probative value is “substantially” outweighed by its prejudicial effect—see, e.g., Commonwealth v. Bonds, 445 Mass. at 831; Commonwealth v. Stroyny , 435 Mass. 635, 641 (2002); Commonwealth v. Otsuki , 411 Mass. 218, 236 (1991)—others state that the probative value must be merely outweighed by the prejudicial effect. See, e.g., Commonwealth v. Rosario , 444 Mass. 550, 557 (2005); Commonwealth v. Reynolds , 429 Mass. 388, 395 (1999). These latter cases, however, rely on cases which include the term “substantial” when explaining the balancing test. See, e.g., Commonwealth v. Chalifoux , 362 Mass. 811, 816 (1973) (relied on by cases which Commonwealth v. Rosario, 444 Mass. at 556–557, relied on); Commonwealth v. Otsuki, 411 Mass. at 236 (relied on by Commonwealth v. Reynolds, 429 Mass. at 395). 

Unfair Prejudice. “[T]rial judges must take care to avoid exposing the jury unnecessarily to inflammatory material that might inflame the jurors’ emotions and possibly deprive the defendant of an impartial jury.” Commonwealth v. Berry , 420 Mass. 95, 109 (1995). See, e.g., Commonwealth v. Bishop , 461 Mass. 586, 596–597 (2012) (“before a judge admits evidence that a defendant used [a racial slur] to describe a man of color, the judge must be convinced that the probative weight of such evidence justifies this risk”). Unfair prejudice also results when the trier of fact uses properly admitted evidence for an impermissible purpose, for example by relying on the truth of an out-of-court statement that was admitted for a nonhearsay purpose or, when evidence of a person’s prior bad act is admitted under Section 404(b) , by considering that evidence as indicating that person’s propensity to commit such acts. See, e.g., Commonwealth v. Valentin , 474 Mass. 301, 307–308 (2016) (admission of evidence concerning defendant’s ownership of weapons other than weapon used to commit crime was improper because it “portrayed him as someone who was likely to commit murder, the crime which was charged”); Commonwealth v. Rosario , 430 Mass. 505, 509–510 (1999); Commonwealth v. Fidalgo , 74 Mass. App. Ct. 130, 133 (2009).    

In balancing probative value against risk of prejudice, the fact that the evidence goes to a central issue in the case weighs in favor of admission. See Gath v. M/A-Com, Inc. , 440 Mass. 482, 490–491 (2003). Unfair prejudice does not mean that the evidence sought to be excluded is particularly probative evidence harmful to the opponent of the evidence. An illustrative weighing of probative value against unfair prejudice arises regarding the admissibility of photographs of the victim (especially autopsy) or the crime scene. See generally Commonwealth v. Bell , 473 Mass. 131, 142–145 (2015); Commonwealth v. Zhan Tang Huang , 87 Mass. App. Ct. 65, 77–78 (2015); Commonwealth v. Prashaw , 57 Mass. App. Ct. 19, 24–25 (2003). Evidence of a defendant’s prior bad act may be unfairly prejudicial and therefore inadmissible to prove the crime charged, but it may be admissible for other purposes (e.g., common plan, pattern of conduct, identity, absence of accident, motive). See Commonwealth v. Holloway , 44 Mass. App. Ct. 469, 475 (1998). See also Commonwealth v. Fidalgo , 74 Mass. App. Ct. 130, 133–134 (2009) (evidence that the defendant had been a passenger in three prior automobile accidents over the past nine years in which she had claimed injuries and sought damages was not relevant in a prosecution of the defendant for filing a false motor vehicle insurance claim because it showed nothing about the character of the prior claims and yet had the potential for prejudice since the case was essentially a credibility contest). The effectiveness of limiting instructions in minimizing the risk of unfair prejudice should be considered in the balance. Commonwealth v. Dunn , 407 Mass. 798, 807 (1990). See also Section 404(b), Character Evidence; Crimes or Other Acts: Crimes, Wrongs, or Other Acts

Confusion of Issues and Misleading the Jury. The trial judge has discretion to exclude relevant evidence if it has potential for confusing and misleading the fact finder. Commonwealth v. Rosa , 422 Mass. 18, 25 (1996); Commonwealth v. Beausoleil , 397 Mass. 206, 217 (1986); Lally v. Volkswagen Aktiengesellschaft , 45 Mass. App. Ct. 317, 332 (1998) (admissibility of a test, experiment, or reenactment requires consideration of “whether the evidence is relevant, the extent to which the test conditions are similar to the circumstances surrounding the accident, and whether the [experiment, demonstration, or reenactment] will confuse or mislead the jury” [quotation and citation omitted]). 

Unnecessarily Time Consuming. The trial judge has discretion to exclude evidence if it is unduly time consuming. Commonwealth v. Cruz , 53 Mass. App. Ct. 393, 407–408 (2001). 

Cumulative Evidence. The trial judge has discretion to exclude evidence if it is merely cumulative. Commonwealth v. Bonds , 445 Mass. 821, 831 (2006). See Fitchburg Gas & Elec. Light Co. v. Department of Telecomm. & Energy , 440 Mass. 625, 641 (2004) (no error in excluding testimony that would be “merely cumulative of the uncontroverted evidence”); Commonwealth v. Taghizadeh , 28 Mass. App. Ct. 52, 60–61 (1989) (evidence that is relevant to an essential element of a crime, claim, or defense is not cumulative and subject to exclusion simply because an opposing party offers to stipulate to the fact at issue). See also Old Chief v. United States , 519 U.S. 172 (1997). 

Courtroom Experiments and Demonstrations. In order to admit evidence of an in-court or out-of-court demonstration or experiment, the proponent must establish to the satisfaction of the judge that “the conditions or circumstances were in general the same in the illustrative case and the case in hand.” Commonwealth v. Makarewicz , 333 Mass. 575, 592 (1956). See, e.g., Commonwealth v. Corliss , 470 Mass. 443, 454–456 (2015) (judge did not abuse his discretion by excluding video of perpetrator committing the offense with a superimposed height chart created by defense expert on grounds that under the circumstances it was misleading; judge did admit height chart as a separate exhibit, along with expert witness testimony about limitations of the surveillance video); Commonwealth v. McGee , 469 Mass. 1, 7 (2014) (judge did not abuse his discretion in permitting child witness, then six years old, to use a couch to demonstrate how victim was positioned as defendant killed her); Commonwealth v. Perryman , 55 Mass. App. Ct. 187, 192–193 (2002) (judge did not abuse her discretion in permitting jurors during trial to look through telescope used by police officer to spot defendant in alleged drug transaction).

Evidence of Similar Occurrences. Evidence of similar occurrences may be admitted if there is substantial identity between the occurrences and there is minimal danger of unfairness, jury confusion, or wasted time. See Denton v. Park Hotel, Inc. , 343 Mass. 524, 527 (1962); Robitaille v. Netoco Community Theatre of N. Attleboro, Inc. , 305 Mass. 265, 267–268 (1940). The nonoccurrence of an event may be admissible to rebut an allegation that a dangerous condition existed at a particular time. Haskell v. Boat Clinton-Serafina, Inc. , 412 F.2d 896, 896–897 (1st Cir. 1969). 

The requirement of substantial identity is not met when the other occurrence or occurrences “may have been the consequence of idiosyncratic circumstances” and therefore irrelevant to the case being tried. Read v. Mt. Tom Ski Area, Inc. , 37 Mass. App. Ct. 901, 902 (1994); Robitaille v. Netoco Community Theatre of N. Attleboro, Inc., 305 Mass. at 266–267 (substantial identity in the circumstances is only the first element; “[u]nless a comparison of the circumstances and causes of the two injuries is made, the injury to another is without significance”). Evidence of similar occurrences may be admissible to show the following: 

Causation. Carter v. Yardley & Co. , 319 Mass. 92, 94 (1946) (other instances of skin irritation caused by defendant’s perfume properly admitted to show causation); Shea v. Glendale Elastic Fabrics Co. , 162 Mass. 463, 464–465 (1894) (evidence that other people who worked in the defendant’s mill, under similar conditions, became ill from lead poisoning was admissible to prove cause of the illness). But see Reil v. Lowell Gas Co. , 353 Mass. 120, 135–136 (1967) (after an explosion at a gas plant, evidence of multiple fires at that plant and another plant owned by the defendant were inadmissible because those incidents “would have been little help in determining the cause of the explosion on [the date in question]”).

Notice. Santos v. Chrysler Corp. , 430 Mass. 198, 202–205 (1999) (judge did not abuse her discretion in admitting the testimony of six Chrysler minivan owners regarding other braking incidents involving their minivans, as well as National Highway Transportation Safety Administration [NHTSA] vehicle owners’ questionnaires submitted by the six owners to establish notice of defect); Elwell v. Del Torchio , 349 Mass. 766, 766 (1965) (Where the plaintiff was injured by a stairway railing giving way, “[t]here was no error in admitting the evidence of a similar accident occurring about a year before and disclosed to one of the defendants. Such testimony was relevant to show knowledge of the defect.”). But see Crivello v. All-Pak Mach. Sys. , 446 Mass. 729, 737–738 (2006) (evidence of prior accidents involving a bagging machine were properly excluded because the evidence did not establish that the defendants were aware of any accidents). 

Rebuttal of Claim of Impossibility. Griffin v. General Motors Corp. , 380 Mass. 362, 365–366 (1980) (results of an experiment on the air filtration system of the same model car that was at issue in the case were admissible to rebut the defendant’s theory that it was impossible for fumes from the engine compartment to enter the passenger compartment).

Absence of Complaint. Carrel v. National Cord & Braid Corp. , 447 Mass. 431, 447–448 (2006) (absence of oral or written complaints concerning a bungee cord admissible to rebut questions regarding failure to conduct product testing); Silver v. New York Cent. R.R. Co. , 329 Mass. 14, 19–21 (1952) (evidence that eleven other passengers in the plaintiff’s train car did not complain about the temperature to a porter would be admissible if the other passengers were in a substantially similar situation, if the porter’s duties included receiving such complaints and he was present to receive complaints on that day, and if it was unlikely that the other passengers complained to another employee); Schuler v. Union News Co. , 295 Mass. 350, 352 (1936) (absence of complaints of illness after people ate at defendant’s restaurant was admissible to rebut claim that the defendant’s turkey sandwich caused the plaintiff’s sickness). 

Absence of Dangerous Condition. Haskell v. Boat Clinton-Serafina, Inc. , 412 F.2d 896, 896–897 (1st Cir. 1969) (evidence that no similar accidents had occurred was admissible to rebut a claim that the plaintiff slipped on a thick patch of slime on the deck of the ship). But see Marvin v. City of New Bedford , 158 Mass. 464, 467 (1893) (evidence that no accidents had occurred on a highway was inadmissible to prove that a defect in the road did not exist). 

Foreseeability. Whitaker v. Saraceno , 418 Mass. 196, 199 (1994) (previous occurrences of similar criminal acts on defendant’s premises may be considered in determining whether the event in question was foreseeable).

Exclusion as a Sanction. See Section 103(g), Rulings on Evidence, Objections, and Offers of Proof: Exclusion as Sanction ; Section 1102, Spoliation or Destruction of Evidence

Constitutional Considerations. In a criminal case, the defendant has a constitutional right to present a complete defense; however, this right does not deprive the trial judge of discretion to exclude evidence that is repetitive, only marginally relevant, or that creates an undue risk of unfair prejudice or confusion of the issues. See Commonwealth v. Kartell , 58 Mass. App. Ct. 428, 433 n.2 (2003). See also Commonwealth v. Carroll , 439 Mass. 547, 552 (2003); Commonwealth v. Edgerly , 372 Mass. 337, 343 (1977); Commonwealth v. Strickland , 87 Mass. App. Ct. 46, 54–55 (2015).

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Section 404. Character Evidence; Crimes or Other Acts

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or a character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. 

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case: 

(A) a defendant may offer evidence, in reputation form only, of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it; 

(B) where the identity of the first aggressor or the first to use deadly force is in dispute, a defendant may offer evidence of specific incidents of violence allegedly initiated by the victim, or by a third party acting in concert with or to assist the victim, whether known or unknown to the defendant, and the prosecution may rebut the same with specific incidents of violence by the defendant; and 

(C) a defendant may offer evidence known to the defendant prior to the incident in question of the victim’s reputation for violence, of specific instances of the victim’s violent conduct, or of statements made by the victim that caused reasonable apprehension of violence on the part of the defendant. 

(3) Exceptions for a Witness. Evidence of a witness’s character for truthfulness or untruthfulness may be admitted under Sections 607, 608, and 609. 

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. 

(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. However, evidence of other bad acts is inadmissible where its probative value is outweighed by the risk of unfair prejudice to the defendant, even if not substantially outweighed by that risk. Evidence of such an act is not admissible in a criminal case against a defendant who was prosecuted for that act and acquitted.

NOTE

Subsection (a). This subsection is derived from Commonwealth v. Helfant , 398 Mass. 214, 224 (1986), and Commonwealth v. Bonds , 445 Mass. 821, 829 (2006). Massachusetts follows the universally recognized rule against “propensity” evidence, i.e., evidence of a person’s character through reputation or specific acts (see Section 404[b]) offered to suggest that the person acted in conformity with that character or trait on the occasion in question is inadmissible. See Maillet v. ATF-Davidson Co. , 407 Mass. 185, 187–188 (1990); Commonwealth v. Doherty , 23 Mass. App. Ct. 633, 636–637 (1987). See also Commonwealth v. Reddy , 85 Mass. App Ct. 104, 108 (2014) (admission of unredacted Chapter 209A order that stated “THERE IS A SUBSTANTIAL LIKELIHOOD OF IMMEDIATE DANGER OF ABUSE” was error in prosecution for violation of order, as it constituted improper predictive or propensity evidence). In Figueiredo v. Hamill , 385 Mass. 1003, 1003–1005 (1982), for example, the Supreme Judicial Court explained the difference between evidence of habit (a regular way of doing things) and evidence of character (a general description of one’s disposition), and held that evidence offered by the defendant that the decedent acted in a “habitually reckless manner” was inadmissible evidence of the decedent’s character. There is a distinction between criminal profile evidence (evidence of whether the defendant shares characteristics common to individuals who commit a particular crime) and character evidence (traits personal to the defendant). Commonwealth v. Coates , 89 Mass. App. Ct. 728, 735 (2016) (holding that criminal profile evidence offered to show that defendant did not have pedophilic tendencies was irrelevant and inadmissible). The prosecution may not offer in its case-in-chief evidence that the defendant is a violent or dishonest person in order to demonstrate that the defendant has a propensity to commit the crime charged. Commonwealth v. Mullane , 445 Mass. 702, 708–709 (2006). See also Commonwealth v. Roe , 90 Mass. App. Ct. 801, 807–808 (2016) (even where normally inadmissible evidence of character may be admitted for permissible purpose, failure to guide jury on their use of this evidence through proper instruction is prejudicial error). But see Commonwealth v. Adjutant , 443 Mass. 649, 664 (2005), discussed in the notes to Section 404(a)(2)(B). As Justice Cardozo stated, “the law has set its face against the endeavor to fasten guilt upon him by proof of character or experience predisposing to an act of crime.” People v. Zackowitz, 254 N.Y. 192, 197 (1930). 

While Section 404(a) applies in both civil and criminal cases, the exceptions in (2) apply only in criminal cases, while the exception in (3) applies in both civil and criminal cases. 

Subsection (a)(2)(A). This subsection is derived from Commonwealth v. Nagle , 157 Mass. 554, 554–555 (1893), and Commonwealth v. Brown , 411 Mass. 115, 117–118 (1991). According to long-standing practice, the defendant may introduce evidence of his or her own good character—in reputation form only—to show that he or she is not the type of person to commit the crime charged. See Commonwealth v. Belton , 352 Mass. 263, 267–269 (1967). The defendant is limited to introducing reputation evidence of traits that are involved in the charged crime. Commonwealth v. Beal , 314 Mass. 210, 229–230 (1943). 

The prosecution has the right to cross-examine for impeachment purposes the defendant’s character witnesses on matters that are inconsistent with the character trait to which the witness has testified, including specific instances of bad conduct or criminal activity. See Commonwealth v. Oliveira , 74 Mass. App. Ct. 49, 53 (2009) (When, in a prosecution for assault and battery, the defendant testified to his character for peacefulness, the trial judge did not abuse her discretion by ruling that the Commonwealth was entitled to cross-examine the defendant based on his prior convictions for the same offenses involving the same victim to rebut his credibility as to his character, even though the Commonwealth’s motion in limine to use these prior convictions for impeachment purposes had been denied prior to trial.). See also Section 405(a), Methods of Proving Character: By Reputation . The prosecution may also present rebuttal evidence of the defendant’s bad character in reputation form. Commonwealth v. Maddocks , 207 Mass. 152, 157 (1910). 

Subsection (a)(2)(B). This subsection is derived from Commonwealth v. Adjutant , 443 Mass. 649, 664 (2005); Commonwealth v. Pring-Wilson , 448 Mass. 718, 737 (2007); and Commonwealth v. Chambers , 465 Mass. 520, 529–530 (2013). Where a claim of self-defense is asserted and the identity of the first aggressor is in dispute, trial courts have discretion to admit a defendant’s evidence of specific incidents of violence allegedly initiated by the victim even if unknown to the defendant. Commonwealth v. Adjutant, 443 Mass. at 664. The Adjutant rule does not permit evidence of the victim’s participation in athletic activities such as boxing or martial arts on the issue of whether the victim was the first aggressor, although such activities may, if known to the defendant, be relevant to a claim of self-defense based on the defendant’s reasonable fear of the victim. Commonwealth v. Amaral , 78 Mass. App. Ct. 557, 559 (2011). If known to the defendant, the specific act evidence goes to the defendant’s state of mind, Commonwealth v. Simpson , 434 Mass. 570, 577 (2001); if the defendant was not aware of the violent acts of the victim, the evidence goes merely to the propensity of the victim to attack. Commonwealth v. Adjutant, 443 Mass. at 661–662. See generally id. at 665 (courts “favor the admission of concrete and relevant evidence of specific acts over more general evidence of the victim’s reputation for violence”). The rule announced in Commonwealth v. Adjutant is a “new common-law rule of evidence” to be applied prospectively only. Id. at 667. See also Commonwealth v. Clemente , 452 Mass. 295, 304–305 (2008) (declining to apply the Adjutant rule retrospectively). Judicial discretion to admit evidence of specific acts of violence on the question of who was the first aggressor extends to third parties acting in concert with or to assist the victim. Commonwealth v. Lopes , 89 Mass. App. Ct. 560, 564 (2016). Where the identity of either the initial aggressor or the first person to use or threaten deadly force is not in dispute, evidence of the victim’s history of violence is not admissible. See Commonwealth v. Vargas , 475 Mass. 338, 346–348 (2016) (victim’s history of violence inadmissible where both defendant and prosecution witnesses were “consistent in their portrayal of the victim as the initial aggressor”).

If the defendant introduces evidence of specific instances of the victim’s violent conduct to help establish the identity of the first aggressor, the prosecution may rebut by introducing evidence of the victim’s propensity for peacefulness. Commonwealth v. Adjutant, 443 Mass. at 666 n.19. See Commonwealth v. Lapointe , 402 Mass. 321, 325 (1988). The Commonwealth is also permitted to rebut such evidence by introducing specific instances of the defendant’s prior violent acts. Commonwealth v. Morales , 464 Mass. 302, 310–311 (2013). In such cases, as in traditional Adjutant-type cases, the judge must exercise discretion and determine whether the probative value of the proposed testimony about who was the first to use deadly force is substantially outweighed by its prejudicial effect. Commonwealth v. Chambers , 465 Mass. 520, 531 (2013). 

Cross-Reference: Section 412, Sexual Behavior or Sexual Reputation (Rape-Shield Law)

Subsection (a)(2)(C). This subsection is derived from Commonwealth v. Sok , 439 Mass. 428, 434–435 (2003), and Commonwealth v. Fontes , 396 Mass. 733, 735–736 (1986). The evidence may be offered to prove the defendant’s state of mind and the reasonableness of his or her actions in claiming to have acted in self-defense so long as the defendant knew about it prior to the incident in question. See Commonwealth v. Edmonds , 365 Mass. 496, 502 (1974). 

Subsection (a)(3). This subsection is derived from Commonwealth v. Daley , 439 Mass. 558, 563 (2003). See Notes to Sections 607, Who May Impeach a Witness ; 608, A Witness’s Character for Truthfulness or Untruthfulness ; and 609, Impeachment by Evidence of Conviction of Crime

Subsection (b). This subsection is derived from Commonwealth v. Crayton , 470 Mass. 228 (2014); Commonwealth v. Helfant , 398 Mass. 214, 224–225 (1986); and G. L. c. 233, § 23F . “[W]hile evidence of other . . . wrongful behavior may not be admitted to prove the character or propensity of the accused as enhancing the probability that he committed the offence[,] . . . it is admissible for other relevant probative purposes.” Commonwealth v. Tobin , 392 Mass. 604, 613 (1984), quoting Commonwealth v. Chalifoux , 362 Mass. 811, 815–816 (1973). Thus, the prosecution may not offer proof of the defendant’s other bank robberies to paint the defendant as a “bank robber” or criminal type; but if the modus operandi of a prior bank robbery functions as an identifying feature because it is so distinctive as to be like a signature, it may be admitted to connect the defendant to the bank robbery which shares the same modus operandi. See Commonwealth v. Jackson , 428 Mass. 455, 459–460 (1998). See also, Commonwealth v. Miller , 475 Mass. 212, 229–230 (2016) (evidence of domestic violence committed by defendant against his girlfriend, which led to confrontation between defendant and murder victim, properly admitted to show “contentious nature” of relationship between defendant and victim, which provided motive for killing); Commonwealth v. Mazariego , 474 Mass. 42, 56 (2016) (history of bringing prostitutes to location relevant to show intent, similarity in location of past encounters, absence of mistake, and level of involvement in planning crime); Commonwealth v. Forte , 469 Mass. 469, 480 (2014) (instances of aggressive conduct in hours preceding murder to illustrate angry state of mind); Commonwealth v. McGee , 467 Mass. 141, 156 (2014) (means of committing the crime); Commonwealth v. Akara , 465 Mass. 245, 267 (2013) (use of gang affiliation for nonpropensity purposes);  Commonwealth v. Robidoux , 450 Mass. 144, 158 (2007) (to present full picture of events surrounding incident at issue); Commonwealth v. O’Laughlin , 446 Mass. 188, 208–209 (2006) (motive);  Commonwealth v. Mullane , 445 Mass. 702, 708–710 (2006) (knowledge); Commonwealth v. Walker , 442 Mass. 185, 201–203 (2004) (plan, common scheme, or course of conduct); Commonwealth v. Mendes , 441 Mass. 459, 466 (2004) (motive); Commonwealth v. Sullivan , 436 Mass. 799, 809 (2002) (intent); Commonwealth v. Bianchi , 435 Mass. 316, 322 (2001) (evidence of prior assault before crime); Commonwealth v. Leonard , 428 Mass. 782, 787–788 (1999) (identity/modus operandi); Commonwealth v. Cordle , 404 Mass. 733, 744 (1989) (knowledge and motive); Commonwealth v. Bradshaw , 86 Mass. App. Ct. 74, 76 (2014) (in prosecution for rape of child, defendant’s statement that he was attracted to young boys was admissible for limited purpose of revealing his motive or intent). See further Commonwealth v. Buswell , 468 Mass. 92, 104–105 (2014) (admissibility of prior bad acts when defense is entrapment); Dahms v. Cognex Corp. , 455 Mass. 190, 201 (2009) (trial judge did not err when, after careful consideration, he admitted evidence of female employee’s clothing, speech, and conduct, which was admissible in context of sexually hostile work environment and not barred as irrelevant character and propensity evidence); and Commonwealth v. Source One Assocs., Inc. , 436 Mass. 118, 128–129 (2002) (trial judge properly allowed evidence of telephone calls similar to ones at issue at trial—but which occurred after period of time at issue—for purposes of showing that defendants were familiar with using ruses and false pretenses to obtain personal financial information). Prior bad acts involving someone other than the victim may be admissible if connected in time, place, or other relevant circumstances. Commonwealth v. Robertson , 88 Mass. App. Ct. 52, 55 (2015).

It is not a foundational requirement for the admissibility of other bad act evidence under Section 404(b) that the Commonwealth show either that the evidence is necessary or that there is no alternative way to prove its case. Commonwealth v. Copney , 468 Mass. 405, 411–413 (2014).

Evidence of prior crimes or other bad acts is not admissible unless, as a matter of conditional relevance—see Section 104(b), Preliminary Questions: Relevance That Depends on a Fact—the judge is satisfied that a reasonable jury could find that the event took place. Commonwealth v. Leonard , 428 Mass. 782, 785–786 (1999). 

The evidence must be probative of a subsidiary fact at issue and not be too remote in time. Commonwealth v. Butler , 445 Mass. 568, 574 (2005); Commonwealth v. Trapp , 396 Mass. 202, 206–207 (1985). The same standards govern the admission of subsequent bad acts. Commonwealth v. Centeno , 87 Mass. App. Ct. 564, 566–567 (2015). See also Commonwealth v. Crayton , 470 Mass. 228, 248–252 (2014) (in prosecution for possession of child pornography on library computer, abuse of discretion to admit hand-drawn, pornographic sketches of children found in defendant’s jail cell ten months after charged event, where primary factual issue was identity of person who used the library computer to view child pornography). 

Due to the “inherent prejudice” associated with evidence of other bad acts, even when such evidence is relevant for a proper purpose other than propensity, the evidence should be excluded whenever “the risk of unfair prejudice outweighs its probative value.” Commonwealth v. Crayton , 470 Mass. 228, 249 & n.27 (2014). This is a more exacting standard than the standard set forth in Section 403, Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

The prohibition against propensity evidence in specific act form stems from the belief that not only does such evidence have low probative value and carry the distinct risk of undue prejudice, it will also inevitably lead to proliferation of issues and distract the attention of the fact finder from the main event. See Commonwealth v. Clifford , 374 Mass. 293, 298 (1978). See also Commonwealth v. Greineder , 458 Mass. 207 (2010). As the Appeals Court has observed, “all cases where prior bad acts are offered invite consideration of the potency of this type of evidence, the risk that it may be misused, and the importance, in jury trials, of delivering careful limiting instructions.” Commonwealth v. Gollman , 51 Mass. App. Ct. 839, 845 (2001), rev’d on other grounds, 436 Mass. 111 , 113–115 (2002) (extensive discussion). See Commonwealth v. Roe , 90 Mass. App. Ct. 801, 807 (2016) (conviction reversed where witness testified to prior bad act ruled inadmissible in earlier motion in limine and judge failed to give full and prompt curative instruction). See generally Peter W. Agnes, Jr., Guided Discretion in Massachusetts Evidence Law: Standards for the Admissibility of Prior Bad Acts Against the Defendant, 13 Suffolk J. Trial & App. Advoc. 1 (2008). 

Even if the evidence of another bad act is found to be more probative than unfairly prejudicial, it may be barred by the collateral estoppel principles of Article 12 of the Massachusetts Declaration of Rights if the defendant was prosecuted for the prior act and acquitted. See Commonwealth v. Dorazio , 472 Mass. 535, 547–548 (2015).

The corroboration requirement of G. L. c. 277, § 63 , is not satisfied without independent corroborating evidence of the “specific criminal act at issue” and cannot be satisfied with only evidence of uncharged sexual misconduct. Commonwealth v. White , 475 Mass. 724, 736–738 (2016).

Cross-Reference: Section 105, Limited Admissibility ; Section 403, Grounds for Excluding Relevant Evidence ; Section 405, Methods of Proving Character ; Section 406, Routine Practice of Business; Individual Habit ; Section 611(b)(2), Manner and Order of Interrogation and Presentation: Scope of Cross-Examination: Bias and Prejudice .

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Section 405.    Methods of Proving Character

(a) By Reputation. Except as provided in (b) and (c), when evidence of a person’s character or a character trait is admissible, it may be proved by testimony about the person’s reputation only. On cross-examination of the character witness, the court may allow impeachment by an inquiry into relevant specific instances of the person’s conduct.

(b) By Specific Instances of Conduct. When a person’s character or a character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

(c) By Violent Character of the Victim. See Section 404(a)(2), Character Evidence; Crimes or Other Acts: Character Evidence: Exceptions for a Defendant or Victim in a Criminal Case .

NOTE

Subsection (a). This subsection is derived from Commonwealth v. Roberts , 378 Mass. 116, 129 (1979), and Commonwealth v. Piedra , 20 Mass. App. Ct. 155, 160 (1985). Character may only be introduced through evidence of general reputation, except as provided by G. L. c. 233, § 21 (evidence of person’s prior conviction is admissible to impeach his or her credibility), and Section 609, Impeachment by Evidence of Conviction of Crime . See Commonwealth v. Binkiewicz , 342 Mass. 740, 755 (1961). Unlike Federal law, general reputation cannot be proven by evidence of personal opinions or isolated acts. Commonwealth v. Walker , 442 Mass. 185, 198–199 (2004); Commonwealth v. Benjamin , 430 Mass. 673, 678 n.6 (2000). Reputation evidence must be based on one’s reputation in the community or at that person’s place of work or business. Commonwealth v. Walker, 442 Mass. at 198. See G. L. c. 233, § 21A (work or business); Commonwealth v. Dockham , 405 Mass. 618, 631 (1989) (community). A witness’s testimony must be based on the witness’s knowledge of the person’s reputation in the community, not of the opinions of a limited number of people. Commonwealth v. Gomes , 11 Mass. App. Ct. 933, 933–934 (1981); Commonwealth v. LaPierre , 10 Mass. App. Ct. 871, 871 (1980). Contrast Commonwealth v. Walker, 442 Mass. at 197–19 (declining to adopt Proposed Mass. R. Evid. 405[a], which would permit character witnesses to testify not only about the defendant’s reputation in the community, but also about their own opinion of the defendant’s character).

A witness who testifies to a person’s reputation is then subject to cross-examination for impeachment purposes “as to his awareness of rumors or reports of prior acts of misconduct by the [person], including prior arrests or convictions, that are inconsistent or conflict with the character trait to which the witness has testified.” Commonwealth v. Montanino , 27 Mass. App. Ct. 130, 136 (1989). The prosecution may also present rebuttal evidence of a defendant’s bad reputation. Commonwealth v. Maddocks , 207 Mass. 152, 157 (1910). 

Subsection (b). This subsection is derived from Care & Protection of Martha , 407 Mass. 319, 325 n.6 (1990). “[P]ast parental conduct [is] relevant to the issue of current parental fitness where that conduct [is] not too remote, especially where the evidence support[s] the continuing vitality of such conduct.” Adoption of Larry , 434 Mass. 456, 469 (2001). For example, a person’s prior criminal history as maintained by the Commissioner of Probation (a Criminal Activity Record Information report) is admissible where character is directly at issue, as in child custody and adoption cases. See Custody of Vaughn , 422 Mass. 590 (1996) (domestic violence); Care & Protection of Frank , 409 Mass. 492 (1991) (substance abuse); Custody of Two Minors , 396 Mass. 610, 621 (1986) (“prior patterns of parental neglect or misconduct”). Specific act evidence may be admitted in those cases where character is directly at issue, such as negligent entrustment actions, see Leone v. Doran , 363 Mass. 1, 13–14, modified on other grounds, 363 Mass. 886 (1973); negligent hiring actions, see Foster v. Loft, Inc. , 26 Mass. App. Ct. 289, 290–291 (1988); and when a defendant raises the defense of entrapment, see Commonwealth v. Buswell , 468 Mass. 92, 104–105 (2014). 

Subsection (c). See Notes to Section 404(a)(2), Character Evidence; Crimes or Other Acts: Character Evidence: Exceptions for a Defendant or Victim in a Criminal Case .

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Section 406.    Routine Practice of a Business; Habit of an Individual

(a) Routine Practice of a Business. Evidence of the routine practice of a business organization or of one acting in a business capacity, if established through sufficient proof, may be admitted to prove that on a particular occasion the organization or individual acted in accordance with the routine practice.

(b) Individual Habit. Evidence of an individual’s personal habit is not admissible to prove action in conformity with the habit on a particular occasion.

NOTE

This section is derived from Palinkas v. Bennett , 416 Mass. 273, 276–277 (1993). “A habit is a regular response to a repeated situation with a specific type of conduct.” Id. at 277. A trial judge has discretion in distinguishing between a routine practice of a business and a personal habit. Id.

Subsection (a). Evidence of a routine practice or custom of a business is admissible to prove that the business acted in conformity therewith. See, e.g., Commonwealth v. Torrealba , 316 Mass. 24, 30 (1944) (custom of selling goods with receipt); Santarpio v. New York Life Ins. Co. , 301 Mass. 207, 210 (1938) (custom of submitting insurance applications); Prudential Trust Co. v. Hayes , 247 Mass. 311, 314–315 (1924) (custom of sending letters).

“Massachusetts draws a distinction between evidence of personal habit and evidence of business habit or custom. Evidence of a person’s habits is inadmissible to prove whether an act was performed in accordance with the habit. . . . [F]or the purpose of proving that one has or has not done a particular act, it is not competent to show that he has or has not been in the habit of doing other similar acts. Despite this rule, evidence of business habits or customs is admissible to prove that an act was performed in accordance with the habit. . . . The fact that a habit is done by only one individual does not bar it from being a business habit.” (Quotation and citations omitted.)

Palinkas v. Bennett , 416 Mass. 273, 276 (1993). See Ladd v. Scudder Kemper Invs., Inc. , 433 Mass. 240, 243 (2001) (business includes sole proprietorship); Mumford v. Coghlin , 249 Mass. 184, 188 (1924) (notary’s procedure of protesting notes); Mayberry v. Holbrook , 182 Mass. 463, 465 (1903) (physician’s records of rendering services). A person is competent to testify about a routine business practice if the person is familiar with the practice. O’Connor v. SmithKline Bio-Science Labs., Inc. , 36 Mass. App. Ct. 360, 365 (1994). Cf. Section 601, Competency .

Subsection (b). Unlike Federal practice, evidence of an individual’s personal habit is not admissible to prove action in conformity therewith. See Davidson v. Massachusetts Cas. Ins. Co. , 325 Mass. 115, 122 (1949). See also Commonwealth v. Wilson , 443 Mass. 122, 138 (2004) (owner’s personal, not business, habit of locking door would be inadmissible); Figueiredo v. Hamill , 385 Mass. 1003, 1004–1005 (1982) (evidence that pedestrian accident victim habitually acted in reckless manner properly excluded).

Habit Versus Character. The distinction between habit and character is often difficult to make: habit “is the person’s regular practice of meeting a particular kind of situation with a specific type of conduct,” whereas character “is a generalized description of one’s disposition, or of one’s disposition in respect to a general trait, such as honesty, temperance, or peacefulness.” Figueiredo v. Hamill, 385 Mass. at 1004, quoting Advisory Committee Notes, Fed. R. Evid. 406.

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Section 407.    Subsequent Remedial Measures

(a) Prohibited Uses. When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.

(b) Exceptions. The court may admit this evidence for another purpose, such as impeachment or, if disputed, proving ownership, control, or the feasibility of precautionary measures.

NOTE

This section is derived from doCanto v. Ametek, Inc. , 367 Mass. 776, 780 (1975), and Simmons v. Monarch Mach. Tool Co ., 413 Mass. 205, 214 (1992), abrogated on other grounds by Vassallo v. Baxter Healthcare Corp. , 428 Mass. 1, 20–23 (1998).

Subsection (a). Evidence of the following subsequent remedial measures has been excluded: sanding stairs or the street, Barnett v. Lynn , 433 Mass. 662, 666 n.5 (2001); National Laundry Co. v. Newton , 300 Mass. 126, 127 (1938); installation of a flashing light signal at a railroad crossing, Ladd v. New York, N.H. & H.R. Co. , 335 Mass. 117, 120 (1956); repositioning a barrier across a sidewalk, Manchester v. City of Attleboro , 288 Mass. 492, 493 (1934); and precautions taken to avoid another collapse of a trench, Shinners v. Proprietors of Locks & Canals on Merrimack River , 154 Mass. 168, 169–171 (1891). The rule has been extended to exclude the results of a defendant’s investigation into the causes of an accident. See Martel v. Massachusetts Bay Transp. Auth. , 403 Mass. 1, 5 (1988).

Subsection (b). Evidence of a subsequent remedial measure is admissible to prove issues other than negligence. See Santos v. Chrysler Corp. , 430 Mass. 198, 207–208 (1999) (manufacturer on notice of product defect); Schaeffer v. General Motors Corp. , 372 Mass. 171, 175–176 (1977) (feasibility of giving adequate warnings); doCanto v. Ametek, Inc. , 367 Mass. 776, 780–781 (1975) (feasibility of safety improvements); Reardon v. Country Club at Coonamessett, Inc. , 353 Mass. 702, 704–705 (1968) (knowledge of the danger at time of accident); Finn v. Peters , 340 Mass. 622, 625 (1960) (ownership or control over the premises). Evidence of a pre­accident remedial measure is also admissible for the same purposes. See doCanto v. Ametek, Inc., 367 Mass. at 780; Torre v. Harris-Seybold Co. , 9 Mass. App. Ct. 660, 676 (1980).

When a party offers evidence of remedial measures to prove an issue other than negligence, the judge should determine whether it is relevant, see Section 402 , General Admissibility of Relevant Evidence, and, if so, whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, see Section 403 , Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reason. If the judge admits the evidence, the judge should, upon request, instruct the jury that the evidence cannot be considered as an admission of negligence or fault. See Section 105 , Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purpose; Section 403 , Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reason.

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Section 408.    Compromise Offers and Negotiations in Civil Cases

(a) Prohibited Uses. Evidence of the following is not admissible—on behalf of any party—either to prove or disprove the validity or amount of a disputed claim:

(1) furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in compromising or attempting to compromise the claim or any other claim, and

(2) conduct or a statement made during compromise negotiations about the claim.

(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or other state of mind, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

NOTE

This section is derived from Proposed Mass. R. Evid. 408, which was adopted in principle in Morea v. Cosco, Inc. , 422 Mass. 601, 603–604 (1996). But see Zucco v. Kane , 439 Mass. 503, 510 (2003) (“even if we were to adopt the segment of [Proposed Mass. R. Evid. 408] pertaining to statements made during negotiations . . .”). “This rule is founded in policy, that there may be no discouragement to amicable adjustment of disputes, by a fear, that if not completed, the party amicably disposed may be injured” (quotation and citation omitted). Strauss v. Skurnik , 227 Mass. 173, 175 (1917).    

Evidence that a defendant compromised or offered to compromise a claim arising from the same transaction with a third person not a party to the action is not admissible to prove the defendant’s liability to the plaintiff. Murray v. Foster , 343 Mass. 655, 659–660 (1962); Ricciutti v. Sylvania Elec. Prods., Inc. , 343 Mass. 347, 349 (1961). A closing agreement between the Internal Revenue Service and the plaintiff constitutes a settlement of a claim and is inadmissible on the question of liability. National Grid Holdings, Inc. v. Commissioner of Revenue , 89 Mass. App. Ct. 506, 520 (2016). In mitigation of damages, however, a defendant is entitled to the admission of evidence of a settlement amount between the plaintiff and a joint tortfeasor on account of the same injury, but such evidence is for the judge only and not the jury to consider. See Morea v. Cosco, Inc., 422 Mass. at 602–603.    

Evidence of a compromise or offer to compromise may be admitted (with limiting instructions) for a purpose other than to prove liability or the invalidity of the claim, such as to impeach the credibility of a witness. See Zucco v. Kane, 439 Mass. at 509–510; Cottam v. CVS Pharmacy , 436 Mass. 316, 327–328 (2002). For example, in an employment discrimination case, statements contained in settlement correspondence were properly admitted as probative of the employer’s state of mind. Dahms v. Cognex Corp. , 455 Mass. 190, 199 (2009).    

There can be no offer to compromise a claim unless there is indication that there is a potential lawsuit. See Hurwitz v. Bocian , 41 Mass. App. Ct. 365, 372–373 (1996). Whether a particular conversation constitutes a settlement offer or admission may require the resolution of conflicting testimony and is a preliminary question for the trial judge. Marchand v. Murray , 27 Mass. App. Ct. 611, 615 (1989). See Section 104(a) , Preliminary Questions: In General. A unilateral statement that a party will “take care of” a loss will be treated as an admission of liability, not an offer to compromise. See, e.g., Cassidy v. Hollingsworth , 324 Mass. 424, 425–426 (1949) (defendant’s statement made after accident that “I guess I owe you a fender” held to be admission of liability); Bernasconi v. Bassi , 261 Mass. 26, 28 (1927) (defendant’s statement “I fix it up, everything,” held to be admission of liability); Dennison v. Swerdlove , 250 Mass. 507, 508–509 (1925) (defendant’s statement immediately after automobile accident that he would “adjust the damage to your car” was an admission of fault). An expression of sympathy does not qualify as either an offer to compromise or an admission of liability. See Section 409 , Expressions of Sympathy in Civil Cases; Offers to Pay Medical and Similar Expenses.    

Admissions made on the face of settlement documents are admissible. Zucco v. Kane, 439 Mass. at 510–511. Where, however, the parties “understood at [the time of the negotiations] that what was said at that time was said without prejudice to either party,” admissions of fact will not be admissible at trial (quotation omitted). Garber v. Levine , 250 Mass. 485, 490 (1925). However, evidence of conduct or statements made during such negotiations on collateral matters are admissible for their truth. See Wagman v. Ziskind , 234 Mass. 509, 510–511 (1920); Harrington v. Lincoln , 70 Mass. 563, 567 (1855); Dickinson v. Dickinson , 50 Mass. 471, 474–475 (1845). Cf. G. L. c. 233, § 23D (admissibility of benevolent statements, writings, or gestures relating to accident victims); Section 514 , Mediation Privilege (under G. L. c. 233, § 23C , any communication made in course of mediation proceedings and in presence of mediator are not admissible, except where mediating labor disputes).    

Cross-Reference: Section 403, Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons .

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Section 409.    Expressions of Sympathy in Civil Cases; Offers to Pay Medical and Similar Expenses

(a) Expressions of Sympathy in Civil Cases. Statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to such person or to the family of such person shall be inadmissible as evidence of an admission of liability in a civil action.

(b) Payment of Medical and Similar Expenses. Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

(c) Medical Malpractice Claims. Any expression of benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mis­take, error, or a general sense of concern made by a health care provider, a facility, or an employee or agent of a health care provider or facility to the patient, a relative of the patient, or a representative of the patient, and that relates to an unanticipated outcome, shall be inadmissible as evidence in a medical malpractice action, unless the maker of the statement, or a defense expert witness, when questioned under oath during the litigation about facts and opinions regarding any mistakes or errors that occurred, makes a contradictory or inconsistent statement as to material facts or opinions, in which case the statements and opinions made about the mistake or error shall be admissible for all purposes.

NOTE

Subsection (a). This subsection is taken verbatim from G. L. c. 233, § 23D . See Gallo v. Veliskakis , 357 Mass. 602, 606 (1970); Casper v. Lavoie , 1 Mass. App. Ct. 809, 810 (1973). See also Denton v. Park Hotel, Inc. , 343 Mass. 524, 528 (1962) (expressions of sympathy have “no probative value as an admission of responsibility or liability,” and “[c]ommon decency should not be penalized by treating such statements as admissions”).

Subsection (b). This subsection is derived from Gallo v. Veliskakis , 357 Mass. 602, 606 (1970), and Wilson v. Daniels , 250 Mass. 359, 364 (1924). This subsection is based on the public policy of encouraging a person to act “as a decent citizen with proper humane sensibilities” without having to admit liability (citations omitted). Lyons v. Levine , 352 Mass. 769, 769 (1967). Statements that accompany offers of payment are not excluded under this section if otherwise admissible. See Gallo v. Veliskakis, 357 Mass. at 606 (defendant’s statements of sympathy and that he would take care of the medical bills were inadmissible because they “had no probative value as an admission of responsibility or liability” [citations omitted]). Cf. G. L. c. 231, § 140B (evidence of advanced payments to injured person by insurer is not admissible to prove liability).

Subsection (c). This subsection is taken nearly verbatim from G. L. c. 233, § 79L (effective November 4, 2012).

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Section 410.    Pleas, Offers of Pleas, and Related Statements

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn or rejected,

(2) a nolo contendere plea,

(3) an admission to sufficient facts, or

(4) a statement made in connection with, and relevant to, any of the foregoing withdrawn or rejected pleas or admissions.

(b) Exception. The court may admit a statement described in Subsection (a)(4) in a criminal proceeding for perjury if the defendant made the statement under oath, on the record, and with counsel present.

NOTE

This section is taken from Mass. R. Crim. P. 12(f). Rule 12(f) bars the use in evidence in any criminal or civil proceeding of a withdrawn guilty plea, a withdrawn plea of nolo contendere, a withdrawn admission of sufficient facts, or a withdrawn offer of the same. See Mass. R. Crim. P. 12(f). But see Aetna Cas. & Sur. Co. v. Niziolek , 395 Mass. 737, 747–750 (1985) (guilty plea, not withdrawn, is an admission of material facts alleged in complaint or indictment and is admissible as evidence of an admission in subsequent civil case without having preclusive effect); Hopkins v. Medeiros , 48 Mass. App. Ct. 600, 613 (2000) (“An admission to sufficient facts may be introduced against the defendant in a subsequently litigated civil suit arising out of the same incident on the theory that the proceeding was the functional equivalent of a guilty plea, with the same degree of finality” [quotations and citation omitted].); Section 801(d)(2)(A) , Definitions: Statements That Are Not Hearsay: An Opposing Party’s Statement. Except in a prosecution for perjury, the bar applies to any statement made in the course of the plea negotiations as long as it is relevant to the negotiations. See Mass. R. Crim. P. 12(f).

Unlike Fed. R. Evid. 410, the statements in question need not have been made to an attorney for the prosecuting authority to qualify for exclusion. See Commonwealth v. Wilson , 430 Mass. 440, 442–443 (1999). Rule 12(f) excludes only statements made during “plea negotiations,” not the apparently broader “plea discussions” referred to in Fed. R. Evid. 410. Id. at 443 (while statements to a detective could be excluded under Mass. R. Crim. P. 12(f), the statements were nonetheless admissible because they were not made during plea negotiations). On the issue of what constitutes plea negotiations, see Commonwealth v. Smiley , 431 Mass. 477, 482 n.3 (2000) (holding there were no plea negotiations where prosecutor made no promises, commitments, or offers and defendant did not give his statement only in consideration of a benefit offered by prosecutor), and Commonwealth v. Luce , 34 Mass. App. Ct. 105, 111–112 (1993) (meetings between defendant, counsel, and government officers did not constitute plea bargaining).

A refusal to plead guilty is not admissible when offered by the defendant to prove consciousness of innocence. See Commonwealth v. DoVale , 57 Mass. App. Ct. 657, 662–663 (2003).

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Section 411.    Insurance

Evidence that a person or entity was or was not insured against liability is not admissible to prove whether the person or entity acted negligently or otherwise wrongfully. But the court may admit evidence of insurance for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

NOTE

The first sentence of this section is derived from Goldstein v. Gontarz , 364 Mass. 800, 807–814 (1974) (extensive discussion of principles and authorities), and Leavitt v. Glick Realty Corp. , 362 Mass. 370, 372 (1972). The exclusion covers (1) evidence offered by the plaintiff that the defendant is insured, (2) evidence offered by the defendant that the plaintiff has received third-party compensation for an injury, (3) evidence offered by the defendant that he or she is not protected by insurance, and (4) evidence offered by the plaintiff that he or she has no resort to insurance or other coverage for the loss. Goldstein v. Gontarz, 364 Mass. at 808–810.

The second sentence of this section is derived from Fed. R. Evid. 411 and Proposed Mass. R. Evid. 411 and is consistent with Massachusetts law. Evidence of insurance coverage may be admissible where the issue of control over the covered premises is disputed because the jury could properly infer “that the defendants would not have deemed it prudent to secure indemnity insurance on [an area] not within their control, or for the careless management or defective condition of which they could not be held responsible.” Perkins v. Rice , 187 Mass. 28, 30 (1904). A blanket insurance policy covering more than one location is not, however, admissible to show control. See Camerlin v. Marshall , 411 Mass. 394, 398 (1991).

Evidence of insurance coverage or lack thereof may be admissible to establish the bias of a witness.Goldstein v. Gontarz , 364 Mass. 800, 812 (1974). See Corsetti v. Stone Co. , 396 Mass. 1, 16–21 (1985); McDaniel v. Pickens , 45 Mass. App. Ct. 63, 66–67 (1998); Commonwealth v. Danis , 38 Mass. App. Ct. 968, 968 (1995). See also Masters v. Khuri , 62 Mass. App. Ct. 467, 471–472 (2004); Harris-Lewis v. Mudge , 60 Mass. App. Ct. 480, 487–488 (2004).

Inadmissibility Due to Prejudicial Effect. Evidence of an insurance policy may still be excluded where its prejudicial effect substantially outweighs its probative value after contemplating the effectiveness of a limiting instruction. SeeGoldstein v. Gontarz , 364 Mass. 800, 812–813 (1974). See also Shore v. Shore , 385 Mass. 529, 530–532 (1982) (appropriate instructions could have cured possible prejudice from excluded evidence of insurance policy). But see McDaniel v. Pickens , 45 Mass. App. Ct. 63, 70 (1998) (raising but not reaching the issue of “whether jurors have attained to such a level of sophistication that they can take insurance and related things in stride when properly instructed” [citations omitted]).

Collateral Source Rule. Evidence of collateral source payments is generally not admissible to reduce the amount of damages recoverable, but may be admissible if probative of a relevant issue, such as impeaching the plaintiff’s credibility or showing motive. See Corsetti v. Stone Co. , 396 Mass. 1, 16–21 (1985); Savers Prop. & Cas. Ins. Co. v. Admiral Ins. Agency, Inc. , 61 Mass. App. Ct. 158, 165–166 (2004), and cases cited; Rolanti v. Boston Edison Corp. , 33 Mass. App. Ct. 516, 524–‌525 (1992).

The full amount of a medical or hospital bill is admissible as evidence of the reasonable value of the services rendered to the injured person, even where the amount actually paid by a private or public insurer is less than that amount. The actual amount paid by insurance is not admissible, but the defendant may offer evidence to establish the range of payments accepted by that provider for that particular service. Law v. Griffith , 457 Mass. 349, 353–354 (2010). See G. L. c. 233, § 79G . The court may instruct the jury that any amounts paid by insurance are subject to recoupment by the payor. Scott v. Garfield , 454 Mass. 790, 801 (2009). The amounts actually paid to the health providers by the health insurer must be redacted on medical bills admitted into evidence. Id.

Unless it is relevant for some other purpose, evidence of a settlement with another defendant is not admissible to reduce the amount of damages, but the court should make the appropriate deduction after the verdict. Morea v. Cosco , Inc., 422 Mass. 601, 603 (1996). In most cases, the verdict in a motor vehicle liability case will be reduced by the amount of any personal injury protection benefits received by the plaintiff. G. L. c. 90, § 34M . In a medical malpractice case, the defendant may, at a post-verdict hearing, offer evidence to the court as to the amount of medical bills that have been covered by insurance. The amount of any such bills, less the amount of any premiums paid by the plaintiff for one year prior to the accrual of the cause of action, shall be deducted from the itemized verdict. This procedure does not apply to any payor who has subrogation rights based on any Federal law. G. L. c. 231, § 60G .

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Section 412.   Sexual Behavior or Sexual Reputation (Rape-Shield Law)

(a) Prohibited Uses. Except as otherwise provided, the following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: 

(1) evidence offered to prove that a victim engaged in other sexual behavior or 

(2) evidence offered to prove a victim’s sexual reputation. 

(b) Exceptions. The court may admit the following evidence in a criminal case: 

(1) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct; 

(2) evidence of specific instances of a victim’s recent sexual behavior if offered to prove that someone other than the defendant was the source of any physical feature, characteristic, or condition of the victim; and 

(3) evidence whose exclusion would violate the defendant’s constitutional rights. 

(c) Procedure to Determine Admissibility

(1) Motion. If a party intends to offer evidence under Subsection (b), the party must file a motion and an offer of proof. 

(2) Hearing. Before admitting evidence under this section, the court must conduct a hearing, in open court, unless the judge makes appropriate findings to support courtroom closure. The judge must find that the weight and relevance (probative value) of the evidence is sufficient to outweigh its prejudicial effect to the victim. The court must make and file a written finding, but its finding must not be made available to the jury. 

(d) Definition of “Victim.” In this section, “victim” includes an alleged victim.

NOTE

Subsection (a). This subsection is derived from G. L. c. 233, § 21B , and Commonwealth v. Domaingue , 397 Mass. 693, 696–700 (1986). Evidence of a victim’s sexual conduct cannot be introduced at a trial for any of the crimes on this nonexhaustive list: G. L. c. 265, §§ 13B, 13F, 13H, 22, 22A, 23, 24, and 24B , and G. L. c. 272, § 29A . Evidence in the form of reputation or opinion is not admissible to prove the complainant’s reputation for unchastity. See Commonwealth v. Joyce , 382 Mass. 222, 227–‌228 (1981) (the rape-shield statute “reverses the common law rule under which evidence of the complainant’s general reputation for unchastity was admissible” [citation omitted]). Note that the cases use the terms “victim” and “complainant” interchangeably.

“The rape-shield statute is principally designed to prevent defense counsel from eliciting evidence of the victim’s promiscuity as part of a general credibility attack.” Commonwealth v. Fitzgerald , 412 Mass. 516, 523 (1992). “The policy rationale for this law is that evidence of the victim’s prior sexual conduct might divert attention from the alleged criminal acts of the defendant, inappropriately putting the victim on trial” (citations omitted). Commonwealth v. Houston , 430 Mass. 616, 621 (2000). In Commonwealth v. Parent , 465 Mass. 395, 404–405 (2013), the Supreme Judicial Court held that the trial judge did not abuse her discretion in ruling that a witness who overheard the victim speaking on a cell phone could testify that the victim invited a boy to visit her on the evening of the alleged sexual assault but would not be permitted to testify that the victim was overheard promising to engage in oral sex.

Subsection (b)(1). This subsection is taken from G. L. c. 233, § 21B . The complainant’s prior sexual activity with the defendant may be relevant to the issue of consent, particularly to show the complainant’s emotion to that particular defendant. Commonwealth v. Grieco , 386 Mass. 484, 488 (1982). Cf. Commonwealth v. Fionda , 33 Mass. App. Ct. 316, 321–322 (1992) (provocative conversation and kissing on prior occasion not probative of consent to intercourse on later occasion). 

Subsection (b)(2). This subsection is taken from G. L. c. 233, § 21B .  Prior acts with another person may be relevant to establishing an alternative cause for the complainant’s physical condition. See, e.g., Commonwealth v. Fitzgerald , 402 Mass. 517, 521–522 (1988), S.C., 412 Mass. 516, 521–525 (1992) (presence of sperm where defendant underwent a vasectomy); Commonwealth v. Cardoza , 29 Mass. App. Ct. 645, 648–649 (1990) (presence of foreign pubic hair not belonging to defendant should have been admitted). 

Subsection (b)(3). This subsection is derived from Commonwealth v. Joyce , 382 Mass. 222, 227–229 (1981). The Supreme Judicial Court has stated that 

“[a] defendant’s constitutional right to put forth his full defense outweighs the interests underlying the rape-shield statute, however, only if he shows that the theory under which he proceeds is based on more than vague hope or mere speculation, and he may not engage in an unbounded and freewheeling cross-examination in which the jury are invited to indulge in conjecture and supposition” (quotations and citations omitted). 

Commonwealth v. Thevenin , 33 Mass. App. Ct. 588, 592–593 (1992).   

“Where evidence of bias is available by other means, no evidence of the complainant’s prior sexual history should be admitted.” Commonwealth v. Gagnon , 45 Mass. App. Ct. 584, 589 (1998). See also Commonwealth v. Pyne , 35 Mass. App. Ct. 36, 38 (1993), citing Commonwealth v. Elder , 389 Mass. 743, 751 nn.11–12 (1983). Cf. Commonwealth v. Stockhammer , 409 Mass. 867, 875 (1991) (specific act evidence may be used to demonstrate the complainant’s bias or motive to fabricate). Evidence may be used to show that the complainant made prior false allegations of rape or abuse. See Commonwealth v. Bohannon , 376 Mass. 90, 94–95 (1978) (evidence admissible where witness was the complainant at trial, consent was central issue, complainant’s testimony was inconsistent and confused, and there was independent basis for concluding that prior allegations were false). Cf. Commonwealth v. Talbot , 444 Mass. 586, 590–591 (2005); Commonwealth v. Blair , 21 Mass. App. Ct. 625, 626–629 (1986). A defendant may introduce evidence that a complainant has been subjected to past sexual abuse to explain the complainant’s inappropriate knowledge of sexual matters. See Commonwealth v. Ruffen , 399 Mass. 811, 814–817 (1987). See also Commonwealth v. Beaudry , 445 Mass. 577, 580–586 (2005). A trial judge has discretion to admit evidence of a complainant’s prior conviction for a sexual offense, but must take into consideration the objectives of the rape-shield statute. See Commonwealth v. Harris , 443 Mass. 714, 723–728 (2005) (harmonizing G. L. c. 233, §§ 21 and 21B ). “The judge must determine whether the weight and relevance of the proffered evidence of bias or motive to lie is sufficient to outweigh its prejudicial effect to the victim” (internal citation omitted). Commonwealth v. Noj , 76 Mass. App. Ct. 194, 198–199 (2010). See also Commonwealth v. Thomas , 89 Mass. App. Ct. 422, 425–427 (2016) (no error in excluding rape victim’s prior convictions for “prostitution-related offenses” where “nothing about the facts” gave victim motive to lie, and case did not involve consent defense).

Conversely, “[i]n the exercise of this discretion a trial judge should consider the important policies underlying the rape-shield statute. He should exclude evidence of specific instances of a complainant’s sexual conduct in so far [sic] as that is possible without unduly infringing upon the defendant’s right to show bias.” Commonwealth v. Joyce , 382 Mass. 222, 231 (1981). 

Subsection (c). This subsection is derived from G. L. c. 233, § 21B ; Commonwealth v. Jones , 472 Mass. 707, 720–731 (2015); and  Commonwealth v. Harris , 443 Mass. 714, 721 (2005). See Commonwealth v. Cortez , 438 Mass. 123, 129–130 (2002); Commonwealth v. Joyce , 382 Mass. 222, 232–233 (1981) (Braucher, J., concurring).    

In Commonwealth v. Jones , 472 Mass. 707 (2015), the Supreme Judicial Court held that the Sixth Amendment right to a public trial applies to a rape-shield hearing. Despite the language of  G. L. c. 233, § 21B , before closing the courtroom, the court must make case-specific findings in accordance with the four-part test articulated in Waller v. Georgia , 467 U.S. 39, 48 (1984):

“[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.”

Cross-Reference: Section 403, Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reason ; Note “Validity of Claim of Privilege” to Section 511(b), Privilege Against Self-Incrimination: Privilege of a Witness .

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Section 413.    First Complaint of Sexual Assault

(a) Admissibility of First Complaint. Testimony by the recipient of a complainant’s first complaint of an alleged sexual assault regarding the fact of the first complaint and the circumstances surrounding the making of that first complaint, including details of the complaint, is admissible for the limited purpose of assisting the jury in determining whether to credit the complainant’s testimony about the alleged sexual assault, not to prove the truth of the allegations.

(b) Admissibility of Additional Reports of a Sexual Assault Under an Alternative Evidentiary Basis. When otherwise admissible testimony or evidence other than the first complaint includes or implies that a report of a sexual assault was made, it may be admitted only if the trial judge determines that (1) it serves an evidentiary purpose other than to corroborate the testimony of the alleged victim and (2) its probative value outweighs its prejudicial effect.

NOTE

Subsection (a). This section is taken nearly verbatim from Commonwealth v. King , 445 Mass. 217, 218–219 (2005), cert. denied, 546 U.S. 1216 (2006). In Commonwealth v. King, the Supreme Judicial Court replaced the doctrine of “fresh complaint” with that of “first complaint.” Id. at 241–248. See also Commonwealth v. Aviles , 461 Mass. 60, 71 (2011) (reaffirming the first complaint doctrine and explaining that it is not an “evidentiary rule” but rather a “body of governing principles to guide a trial judge on the admissibility of first complaint evidence”).

“The doctrine seeks to balance the interest of two competing concerns: that a complainant (who . . . may be still a child) has her credibility fairly judged on the specific facts of the case rather than unfairly by misguided stereotypical thinking; and that the defendant receive a trial that is free from irrelevant and potentially prejudicial testimony.”

Commonwealth v. Arana , 453 Mass. 214, 228 (2009).

“Under the new doctrine . . . the recipient of a complainant’s first complaint of an alleged sexual assault may testify about the fact of the first complaint and the circumstances surrounding the making of that first complaint. The witness may also testify about the details of the complaint. The complainant may likewise testify to the details of the first complaint (i.e., what she told the first complaint witness), as well as why the complaint was made at that particular time. Testimony from additional complaint witnesses is not admissible.”

Commonwealth v. King, 445 Mass. at 218–219.

The first complaint rule not only applies to statements of the complaining witness, as a “neutral” rule of evidence, it is applicable whenever the credibility of an allegation of sexual assault is at issue. Therefore, the first complaint doctrine is available to the defendant in a sexual assault prosecution who claims to have been sexually assaulted by the complainant, because “such a defendant faces the same credibility obstacle in proving his or her defense as the Commonwealth faces in proving the indictment.” Commonwealth v. Mayotte , 475 Mass. 254, 260 (2016).

Role of the Trial Judge. The following sections of this Note amplify the doctrinal framework set forth in the guideline. Regarding this “body of governing principles,” the Supreme Judicial Court has explained that the trial judge “is in the best position to determine the scope of admissible evidence, keeping in mind the underlying goals of the first complaint doctrine, our established first complaint jurisprudence, and our guidelines for admitting or excluding relevant evidence.” Commonwealth v. Aviles , 461 Mass. 60, 73 (2011). The exercise of discretion as to whether evidence is admissible under the first complaint doctrine is fact specific and requires the trial judge to conduct a careful and thorough analysis based on the principles set forth in this Note. “Once a judge has carefully and thoroughly analyzed these considerations, and has decided that proposed first complaint evidence is admissible, an appellate court shall review that determination under an abuse of discretion standard.” Id.

Applicability of First Complaint Doctrine. The first complaint doctrine is not applicable to cases in which neither the fact of a sexual assault nor the consent of the complainant is at issue. Commonwealth v. King , 445 Mass. 217, 247 (2005).

“First complaint testimony, including the details and circumstances of the complaint, will be considered presumptively relevant to a complainant’s credibility in most sexual assault cases where the fact of the assault or the issue of consent is contested. However, where neither the occurrence of a sexual assault nor the complainant’s consent is at issue [i.e., identity of the perpetrator], the evidence will serve no corroborative purpose and will not be admissible under the first complaint doctrine.”

Id. 

Identifying the First Complaint. That the complainant’s first report of a sexual assault is abbreviated in nature does not change its status as the first complaint. See Commonwealth v. Stuckich , 450 Mass. 449, 455–456 (2008). A first complaint witness is not disqualified from testifying where the alleged victim previously disclosed only physical abuse to that witness. Commonwealth v. Rivera , 83 Mass. App. Ct. 581, 584 (2013). While ordinarily there will be only one first complaint witness, two first complaint witnesses may testify in circumstances “where each witness testifies to disclosures years apart concerning different periods of time and escalating levels of abuse, which constitute different and more serious criminal acts committed over a lengthy period.” Commonwealth v. Kebreau , 454 Mass. 287, 288–289 (2009). See Commonwealth v. Aviles , 461 Mass. 60, 71 n.9 (2011) (distinguishing Kebreau and limiting first complaint to initial disclosure of “touching” where subsequent disclosure of rape could have been disclosed by complainant as part of her first complaint). The fact that the complainant tells someone that he or she is upset, unhappy, or scared is not a first complaint. See Commonwealth v. Murungu , 450 Mass. 441, 446 (2008). “Law enforcement officials, as well as investigatory, medical, or social work professionals, may testify to the complaint only where they are in fact the first to have heard of the assault, and not where they have been told of the alleged crime after previous complaints or after an official report.”  Commonwealth v. King , 445 Mass. at 243.

The first complaint evidence could be in the form of a recorded 911 emergency telephone call or letter; a live witness is not required. Commonwealth v. Stuckich, 450 Mass. at 455–456.

Limiting Instruction Required. Whenever first complaint evidence is admitted, whether through the complainant or the first complaint witness, the court must give the jury a limiting instruction. Commonwealth v. King , 445 Mass. 217, 219, 247–248 (2005). The instruction must be given contemporaneously with the first complaint testimony and again during the final instruction. Id. at 248.

Determination of Who Is the First Complaint Witness. The determination of who is the first complaint witness is a preliminary question of fact for the trial judge.  Commonwealth v. Stuckich , 450 Mass. 449, 455–456 (2008). See Section 104(a) , Preliminary Questions: In General.

Scope of the Doctrine. The first complaint doctrine applies only if the complainant is available for cross-examination about the first complaint. Commonwealth v. King , 445 Mass. 217, 247 n.27 (2005). “The timing by the complainant in making a complaint will not disqualify the evidence, but is a factor the jury may consider in deciding whether the first complaint testimony supports the complainant’s credibility or reliability.” Id. at 219. The first complaint doctrine applies even to cases in which there is a percipient witness (in addition to the victim) to the sexual assault. See Commonwealth v. Hartnett , 72 Mass. App. Ct. 467, 470 (2008). An alleged victim’s inability to recall the details of the first complaint goes to the weight and not the admissibility of the testimony by the first complaint witness. See Commonwealth v. Wallace , 76 Mass. App. Ct. 411, 415 (2010).

The first complaint witness may “testify to the details of the complaint itself. By details, we mean that the witness ‘may testify to the complainant’s statements of the facts of the assault.’” Commonwealth v. King, 445 Mass. at 244, quoting Commonwealth v. Quincy Q. , 434 Mass. 859, 874 (2001). The witness

“may testify to the circumstances surrounding the initial complaint, [including] his or her observations of the complainant during the complaint; the events or conversations that culminated in the complaint; the timing of the complaint; and other relevant conditions that might help a jury assess the veracity of the complainant’s allegations or assess the specific defense theories as to why the complainant is making a false allegation” (citation omitted).

Id. at 246.

Complete congruence between the testimony of the complainant and the testimony of the first complaint witness is not required; the first complaint witness cannot fill in missing elements in the Commonwealth's case. Under Section 403, the trial judge has discretion to exclude details absent from the complainant’s testimony.  Commonwealth v. Rivera , 83 Mass. App. Ct. 581, 586 nn.5–6 (2013).

The alleged victim is permitted to testify to what he or she told the first complaint witness and why the complaint was made (1) when the first complaint witness or a court-approved substitute first complaint witness testifies at trial to those details, (2) when the first complaint witness is deceased, or (3) when the judge decides there is a compelling reason for the absence of the first complaint witness that is not the Commonwealth’s fault. Commonwealth v. King, 445 Mass. at 245 & n.24.

A statement that qualifies as a spontaneous utterance by the victim reporting the assault also constitutes first complaint evidence such that an additional first complaint witness should not be permitted to testify, even if what that witness has to offer is more detailed or complete. Commonwealth v. McGee , 75 Mass. App. Ct. 499, 502–503(2009); Commonwealth v. Davis , 54 Mass. App. Ct. 756, 765 (2002).

Substitution of a Witness. Where feasible, the first person told of the alleged sexual assault should be the initial or first complaint witness to testify. Commonwealth v. King , 445 Mass. 217, 243–244 (2005). In  Commonwealth v. Murungu , 450 Mass. 441, 445–448 (2008), the Supreme Judicial Court identified two exceptions to the first complaint doctrine. A person other than the first recipient of information from the complainant is allowed to testify as the first complaint witness (1) if the victim’s disclosure to the “first person does not constitute a complaint,” or (2) if the victim complains first to an individual who “has an obvious bias or motive to . . . distort the victim’s remarks.” Id. at 446. The court explained that in Commonwealth v. King, it had not “set forth an exhaustive list of appropriate substitutions.” Id. at 445. “Other exceptions are permissible based on the purpose and limitations of the first complaint doctrine.” Id. See also Commonwealth v. Hanino , 82 Mass. App. Ct. 489, 491 (2012) (feigning).

Even when the complainant has disclosed information about the sexual assault to a person with no obvious bias against the complainant, the trial judge has discretion to allow the Commonwealth to substitute another witness as the first complaint witness in circumstances “where [that person] is unavailable, incompetent, or too young to testify meaningfully . . . .” Commonwealth v. King, 445 Mass. at 243–244. See, e.g., Commonwealth v. Roby , 462 Mass. 398, 407–408 (2012) (where two child victims initially first told each other about defendant’s inappropriate touching, it was proper to allow first adult [and first noncomplainant] told about the sexual assaults to testify as first complaint witness); Commonwealth v. Thibeault , 77 Mass. App. Ct. 419, 421–423 (2010) (child’s mother could be substituted as witness for child’s father where father was first person to whom child complained but he appeared to have fled the Commonwealth and could not be located at time of trial).

Impeachment of First Complaint Witness. The court has discretion to permit the Commonwealth to impeach the first complaint witness by means of prior inconsistent statements in circumstances in which the court determines that the witness is feigning a lack of memory as to significant details of the first complaint. See Commonwealth v. Hanino , 82 Mass. App. Ct. 489, 497–498 (2012) (testimony of two police officers regarding statements made to them by first complaint witness and inconsistent with witness’s in-court testimony was admissible for limited purpose of impeaching witness’s in-court testimony and thus was not impermissible, multiple complaint hearsay).

Subsection (b). This subsection is derived from Commonwealth v. Dargon , 457 Mass. 387, 399–400 (2010); Commonwealth v. Arana , 453 Mass. 214, 224–229 (2009); and  Commonwealth v. Stuckich , 450 Mass. 449, 457 (2008).

“Evidence of a subsequent complaint is not admissible simply because a separate evidentiary rule applies (e.g., the statement is not hearsay, or it falls within an exception to the hear­say rule). If independently admissible evidence . . . serves no purpose other than to repeat the fact of a complaint and therefore corroborate the complainant’s accusations, it is inadmissible. However, if that evidence does serve a purpose separate and apart from the first complaint doctrine, the judge may admit it after careful balancing of the testimony’s probative and prejudicial value.” (Quotations and citations omitted.)

Commonwealth v. Dargon, 457 Mass. at 399–400. See also Commonwealth v. Santos , 465 Mass. 689, 700–701 (2013) (mother’s description of son’s appearance and demeanor after alleged sexual assault admissible to show victim’s state of mind at the time); Commonwealth v. Parent , 465 Mass. 395, 403–404 (2013) (claim of fabrication alone is insufficient to open the door to the admission of multiple complaints);  Commonwealth v. Aviles , 461 Mass. 60, 67 (2011) (testimony of both complainant and first complaint witness pertaining to subsequent disclosure, though not admissible under first complaint doctrine, was properly admitted to rebut the defendant’s suggestion that complainant’s accusations were fabricated); Commonwealth v. McCoy , 456 Mass. 838, 851 (2010) (admission of mother’s testimony that she and victim had conversation about assault, even without details of conversation, was error when testimony did not serve “any additional purpose”); Commonwealth v. Starkweather , 79 Mass. App. Ct. 791, 799–803 (2011) (applying Dargon and Arana analysis to several aspects of police involvement and investigation); Commonwealth v. Monteiro , 75 Mass. App. Ct. 489, 495 (2009) (admission of testimony indicating that complainant had made reports of sexual abuse to his mother, the Department of Social Services, and the district attorney’s office, without any more details, in circumstances where the father was the first complaint witness, was error). Contrast Commonwealth v. Santos , 465 Mass. at 701 (in a prosecution for rape, the judge did not abuse her discretion in allowing the Commonwealth to introduce testimony from the victim’s mother, a non–first complaint witness, about the victim’s appearance and demeanor to rebut the defense’s theory that the incident was fabricated where the “testimony did not repeat any details of the event, was relevant, and not merely cumulative of the [first complaint witness’s] testimony”); Commonwealth v. Lawton , 82 Mass. App. Ct. 528, 536–538 (2012) (victim’s statements to SAIN [Sexual Abuse Intervention Network] interviewer not offered as additional complaint testimony, but were independently relevant to contradict impeachment of victim and to rebut defendant’s theory of suggestibility).

The question whether testimony concerning multiple complaints is permissible “is fact-specific and requires, in the first analysis, a careful evaluation of the circumstances by the trial judge.”  Commonwealth v. Kebreau , 454 Mass. 287, 296 (2009). In Commonwealth v. Ramsey , 76 Mass. App. Ct. 844, 849 (2010), the Appeals Court explained that medical records that included statements by the alleged victim pointing to the defendant as the perpetrator of the sexual assault and statements of hospital personnel repeating the allegations, conclusory statements of rape, and a diagnosis of incest, which the judge found admissible under the hospital records exception to the hearsay rule, should not have been admitted at trial because the judge had not determined that the evidence served a purpose other than to corroborate the victim and had not carefully balanced its probative value and prejudicial effect.

“In [Commonwealth v.] Arana , [453 Mass. 214, 227 (2009)], further evidence of complaint was admissible in order to rebut the defendant’s allegation that the complainant fabricated the accusations to provide a basis for a civil lawsuit. In  Commonwealth v. Kebreau , 454 Mass. 287, 299 (2009), such evidence was admissible because the defense exploited discrepancies in the testimony of one of the victims and had ‘opened the door on cross-examination’; thus ‘the Commonwealth was entitled to attempt to rehabilitate the witness.’”

Commonwealth v. Ramsey, 76 Mass. App. Ct. at 850 n.12. See also Commonwealth v. Saunders , 75 Mass. App. Ct. 505, 509 (2009) (defense counsel cross-‌examined victim about reports she allegedly made that someone other than defendant got her pregnant; this opened the door to permit the Commonwealth to offer evidence of statements made by the victim about the defendant’s conduct to persons other than the first complaint witness).

SAIN Evidence. A SANE (sexual abuse nurse examiner) is permitted to testify about the SAIN (Sexual Abuse Intervention Network) evidence kit used in the examination of a person alleged to be the victim of a sexual assault and the sexual assault examination process, provided it is either to provide background for the nurse’s testimony about the examination of the alleged victim or to lay a foundation for the admission of physical evidence. See Commonwealth v. Dargon , 457 Mass. 387, 398 n.13 (2010). On the other hand, in Commonwealth v. Monteiro , 75 Mass. App. Ct. 489, 493–494 (2009), the Appeals Court found that the inclusion of testimony from a police detective who watched a tape of the SAIN interview and who described the interview process and indicated that as a result he continued with his investigation was error because it suggested that the SAIN interviews take place when persons are thought to be victims of sexual assault and implied that the detective found the complainant credible. In addition, the printed forms that are filled out by the SAIN interviewer (Forms 2 and 3) based on questions put to the alleged victim are not admissible, because the printing suggests that a sexual assault took place. See Commonwealth v. Dargon, 457 Mass. at 398 n.13.

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Section 414.    Industry and Safety Standards

Safety rules, governmental regulations or ordinances, and industry standards may be offered by either party in civil cases as evidence of the appropriate care under the circumstances.

NOTE

This section is derived from Torre v. Harris-Seybold Co. , 9 Mass. App. Ct. 660, 671 (1980). Like the safety rules themselves, evidence of an employee’s violation of his or her employer’s safety rules is admissible as evidence of negligence. Lev v. Beverly Enters. Mass., Inc. , 457 Mass. 234, 245 (2010). A company’s or industry’s “custom and practice,” even when not embodied in a written policy, is also admissible. Commonwealth v. Angelo Todesca Corp. , 446 Mass. 128, 137–138 (2006). A violation of such rules or regulations, while some evidence of negligence, is not conclusive. St. Germaine v. Prendergast , 411 Mass. 615, 620 (1992). The rule or regulation cannot, however, create a duty where none exists and is admissible only if the harm is of the kind intended to be prevented. Lev v. Beverly Enters. Mass., Inc., 457 Mass. at 246–247.

Cross-Reference: Section 803(17), Hearsay Exceptions; Availability of Declarant Immaterial: Statements of Facts of General Interest ; Section 803(18), Hearsay Exceptions; Availability of Declarant Immaterial: Learned Treatises .

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