Section 1101. Applicability of Evidentiary Sections
(a) Proceedings to Which Applicable. Except as provided in Subsection (c), these sections apply to all actions and proceedings in the courts of the Commonwealth.
(b) Privileges. The provisions of Article V apply at all stages of all actions, cases, and proceedings.
(c) Where Inapplicable. These sections (other than those concerning privileges) do not apply in the following situations:
(1) Preliminary Determinations of Fact. The determination of questions of fact preliminary to the admissibility of evidence when the determination is to be made by the judge under Section104(a).
(2) Grand Jury Proceedings. Proceedings before grand juries.
(3) Certain Other Proceedings. Most administrative proceedings; bail proceedings; bar discipline proceedings; civil motor vehicle infraction hearings; issuance of process (warrant, complaint, capias, summons); precomplaint, show cause hearings; civil commitment proceedings for alcohol and substance abuse; pretrial dangerousness hearings; prison disciplinary hearings; probation violation hearings; restitution hearings; sentencing; sexual offender registry board hearings; small claims sessions; and summary contempt proceedings.
(d) Motions to Suppress. The law of evidence does not apply with full force at motion to suppress hearings. As to the determination of probable cause or the justification of government action, out-of-court statements are admissible.
Subsection (a). This subsection summarizes the current practice in Massachusetts courts. “The rules of evidence stand guard to ensure that only relevant, reliable, noninflammatory considerations may shape fact finding. Without these rules, there would be nothing to prevent trials from being resolved on whim, personal affections, or prejudice.” Adoption of Sherry , 435 Mass. 331, 338 (2001). In addition to trials, therefore, the law of evidence applies at hearings on motions. See Thorell v. ADAP, Inc. , 58 Mass. App. Ct. 334, 340–341 (2003).
Subsection (b). Privileges are covered in Article V, Privileges and Disqualifications.
Subsection (c)(1). See Note to Section 104(a), Preliminary Questions: In General .
Subsection (c)(2). This subsection is derived from Commonwealth v. Gibson , 368 Mass. 518, 522–525 (1975), and Mass. R. Crim. P. 4(c). See Reporters’ Notes to Mass. R. Crim. P. 4(c) (“evidence which is not legally competent at trial is sufficient upon which to base an indictment”).
Subsection (c)(3). Evidence bearing directly on probable cause, such as what a witness, a police officer, or a probation officer tells a court in connection with a request for an arrest warrant, a probation violation warrant, a warrant of apprehension, a search warrant, a capias, or a summons, or in support of a criminal complaint or as justification for a search and seizure, is not objectionable on grounds of hearsay in a judicial proceeding to determine probable cause. Commonwealth v. Fletcher , 435 Mass. 558, 567 (2002); Commonwealth v. Weiss , 370 Mass. 416, 418 (1976); Commonwealth v. Rosenthal , 52 Mass. App. Ct. 707, 709 n.3 (2001). While the traditional rules of evidence may not apply in these situations, the evidence must still be reliable and trustworthy. See Abbott A. v. Commonwealth , 458 Mass. 24, 34–35 (2010); Brantley v. Hampden Div. of the Probate & Family Ct. Dep’t , 457 Mass. 172, 184–185 (2010); Commonwealth v. Wilcox , 446 Mass. 61, 71 (2006).
This subsection identifies the various miscellaneous proceedings to which the rules of evidence are not applicable, including the following:
Administrative Proceedings. See G. L. c. 30A, § 11(2) ; 452 Code Mass. Regs. § 1.11(5) ; Costa v. Fall River Hous. Auth ., 453 Mass. 614, 627 (2009); Rate Setting Comm’n v. Baystate Med. Ctr. , 422 Mass. 744, 752–755 (1996); Goodridge v. Director of Div. of Employment Sec. , 375 Mass. 434, 436 n.1 (1978). See also Care & Protection of Rebecca , 419 Mass. 67, 83 (1994) (a witness at such a proceeding is not permitted to express an opinion about the credibility of another witness).
Bail Proceedings. See Paquette v. Commonwealth , 440 Mass. 121, 133 (2003) (bail revocation proceedings); Querubin v. Commonwealth , 440 Mass. 108, 118 (2003) (G. L. c. 276, § 57 , proceedings); Snow v. Commonwealth , 404 Mass. 1007, 1007 (1989).
Bar Discipline Proceedings. See Matter of Abbott , 437 Mass. 384, 393 (2002).
Civil Commitment Proceedings for Alcohol and Substance Abuse. See G. L. c. 123, § 35 ; Matter of G.P. , 473 Mass. 112, 128–129 (2015). Substantially reliable hearsay is admissible to prove by clear and convincing evidence that a person presents a substantial and imminent risk of physical harm to himself or herself or others or demonstrates a very substantial risk of physical impairment caused by an inability to protect oneself, so as to allow a commitment to a facility pursuant to G. L. c. 123, § 35 . The standard of substantial harm to self or others requires evidence of specific threats or attempts at serious self-harm, which must be imminent in nature. The standard of inability to protect oneself requires evidence that “(1) the respondent’s judgment is so adversely affected by the abuse of alcohol or drugs that the respondent cannot protect himself or herself from physical harm, and (2) the respondent’s community does not include any reasonably available source of adequate protection.” Matter of G.P., 473 Mass. at 128–129, citing G. L. c. 123, § 1 . See Rule 7 of Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Abuse (2015).
Civil Motor Vehicle Infraction Hearings. See G. L. c. 90, § 20 (traffic citation). Under the Uniform Rules on Civil Motor Vehicle Infractions, the formal rules of evidence do not apply. See Commonwealth v. Curtin , 386 Mass. 587, 588 n.3 (1982). The same holds true for cases involving parking tickets under G. L. c. 90, § 20C . See Lemaine v. City of Boston , 27 Mass. App. Ct. 1173, 1175 (1989).
Issuance of Process (Warrant, Capias, Summons). See Commonwealth v. Weiss , 370 Mass. 416, 418 (1976); Commonwealth v. Young , 349 Mass. 175, 179 (1965); Commonwealth v. Lehan , 347 Mass. 197, 206 (1964); Commonwealth v. Rosenthal , 52 Mass. App. Ct. 707, 709 n.3 (2001).
Precomplaint Hearings. See G. L. c. 218, § 35A . The formal rules of evidence do not apply at a hearing conducted pursuant to G. L. c. 218, § 35A . Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Ct. Dep’t , 439 Mass. 352, 357–358 (2003); Commonwealth v. DiBennadetto , 436 Mass. 310, 314–315 (2002) (no right to cross-examine witness).
Pretrial Dangerousness Hearings. See G. L. c. 276, § 58A(4) ; Abbott A. v. Commonwealth , 458 Mass. 24, 30–33 (2010); Mendonza v. Commonwealth , 423 Mass. 771, 785–786 (1996). By statute, a judge must consider hearsay contained either in a police report or a statement of a victim or witness at a dangerousness hearing. G. L. c. 276, § 58A(4) . Before being able to summons the victim or the victim’s family to the hearing, a defendant must make a motion to the court prior to the issuance of the summons. The defendant must demonstrate a good-faith basis that there is a reasonable belief that the testimony of the witness will support a conclusion for conditions of release. G. L. c. 276, § 58A(4) .
Prison Disciplinary Hearings. See Murphy v. Superintendent, Mass. Correctional Inst. , 396 Mass. 830, 834 (1986).
Probation Violation Hearings. See Commonwealth v. Bukin , 467 Mass. 516, 522 (2014) (hearsay admissible in probation violation hearings as long as it is determined to be substantially reliable); Commonwealth v. Durling , 407 Mass. 108, 117–118 (1990) (hearsay evidence must still bear substantial indicia of reliability and trustworthiness). See also Rule 7 of the District Court Rules for Probation Violation Proceedings.
Restitution Hearings. See Section 1114, Restitution .
Sentencing. See Commonwealth v. Goodwin , 414 Mass. 88, 92 (1993) (a judge may consider many factors, including hearsay). See also G. L. c. 276, § 85 ; Mass. R. Crim. P. 28(d); Commonwealth v. Stuckich , 450 Mass. 449, 461–462 (2008) (evidence of uncharged conduct is admissible and relevant to the character of the offender, but may not be used to increase the punishment).
Small Claims. See generally G. L. c. 218, §§ 21, 22 .
Summary Contempt Proceedings. See Mass. R. Crim. P. 43.
Subsection (d). This subsection is derived from United States v. Matlock , 415 U.S. 164, 172–175 (1974), and Commonwealth v. Young , 349 Mass. 175, 179 (1965). While out-of-court statements are admissible as to the determination of probable cause or the justification of government action, other evidence that would be incompetent under the rules of evidence is not admissible at suppression hearings or other proceedings in which probable cause is challenged. If a defendant testifies at a motion to suppress hearing and subsequently testifies at trial, his or her testimony from the motion to suppress hearing may be used to impeach his or her credibility at the later trial. Commonwealth v. Rivera , 425 Mass. 633, 637–638 (1997).
Cross-Reference: Section 1112, Eyewitness Identification .
Section 1102. Spoliation or Destruction of Evidence
A judge has the discretion to impose sanctions for the spoliation or destruction of evidence, whether negligent or intentional, in the underlying action in which the evidence would have been offered.
This section is derived from Keene v. Brigham & Women’s Hosp., Inc. , 439 Mass. 223, 235–236 (2003), and Commonwealth v. Henderson , 411 Mass. 309, 311–312 (1991). See also Mass. R. Civ. P. 37(b); Kippenhan v. Chaulk Servs., Inc. , 428 Mass. 124, 126–129 (1998); Nally v. Volkswagen of Am., Inc. , 405 Mass. 191, 197 (1989). There is no tort cause of action for spoliation or destruction of evidence. See Fletcher v. Dorchester Mut. Ins. Co. , 437 Mass. 544 (2002).
“Sanctions may be appropriate for the spoliation of evidence that occurs even before an action has been commenced, if a litigant or its expert knows or reasonably should know that the evidence might be relevant to a possible action. The threat of a lawsuit must be sufficiently apparent, however, that a reasonable person in the spoliator’s position would realize, at the time of spoliation, the possible importance of the evidence to the resolution of the potential dispute.” (Citations omitted.)
Kippenhan v. Chaulk Servs., Inc., 428 Mass. at 127. “While a duty to preserve evidence does not arise automatically from a nonparty’s mere knowledge, there are ways that that duty may be imposed on a nonparty.” Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. at 548. For example, a witness served with a subpoena duces tecum must preserve evidence in his or her control when the subpoena is received, or a third-party witness may enter into an agreement to preserve evidence. Id. at 549.
Civil Cases. “[S]anctions for spoliation are carefully tailored to remedy the precise unfairness occasioned by that spoliation. A party’s claim of prejudice stemming from spoliation is addressed within the context of the action that was allegedly affected by that spoliation.” Fletcher v. Dorchester Mut. Ins. Co. , 437 Mass. 544, 551 (2002). “As a general rule, a judge should impose the least severe sanction necessary to remedy the prejudice to the nonspoliating party.” Keene v. Brigham & Women’s Hosp., Inc. , 439 Mass. 223, 235 (2003).
“[I]n a civil case, where an expert has removed an item of physical evidence and the item has disappeared, or the expert has caused a change in the substance or appearance of such an item in such circumstances that the expert knows or reasonably should know that that item in its original form may be material to litigation, the judge, at the request of a potentially prejudiced litigant, should preclude the expert from testifying as to his or her observations of such items before he or she altered them and as to any opinion based thereon. The rule should be applied without regard for whether the expert’s conduct occurred before or after the expert was retained by a party to the litigation.”
Nally v. Volkswagen of Am., Inc. , 405 Mass. 191, 197–198 (1989). See also Bolton v. MBTA , 32 Mass. App. Ct. 654, 655–657 (1992) (extending rule to cover spoliation of evidence by a party after expert inspection).
“The spectrum of remedies [also] includes allowing the party who has been aggrieved by the spoliation to present evidence about the preaccident condition of the lost evidence and the circumstances surrounding the spoliation, as well as instructing the jury on the inferences that may be drawn from spoliation” (citations omitted). Gath v. M/A-Com, Inc. , 440 Mass. 482, 488 (2003). A judge may preclude testimony that is dispositive of the ultimate merits of the case. Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. at 550. Once the moving party produces evidence sufficient to establish that another party lost or destroyed evidence that the litigant or its expert knew or reasonably should have known might be relevant to a pending or potential case, the burden shifts to the nonmoving party to prove that it was not at fault. Scott v. Garfield , 454 Mass. 790, 799 (2009). See also Nally v. Volkswagen of Am., Inc., 405 Mass. at 195, 199 (defendant entitled to summary judgment if excluded testimony prevents plaintiff from making prima facie case). For the extreme sanction of dismissal or entering a default judgment, ordinarily a finding of wilfulness or bad faith is necessary. Keene v. Brigham & Women’s Hosp., Inc., 439 Mass. at 235–236.
Criminal Cases. In Commonwealth v. DiBenedetto , 427 Mass. 414, 419 (1998), the court addressed the appropriate remedial action in criminal cases:
“[W]hen potentially exculpatory evidence is lost or destroyed, a balancing test is employed to determine the appropriateness and extent of remedial action. The courts must weigh the culpability of the Commonwealth, the materiality of the evidence and the potential prejudice to the defendant. To establish prejudice, the defendant must show a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the [material] would have produced evidence favorable to [the defendant’s] cause.” (Quotations and citation omitted.)
See also Mass. R. Crim. P. 14(c); Commonwealth v. Olszewski
, 416 Mass. 707, 714 (1993), cert. denied, 513 U.S. 835 (1994); Commonwealth v. Willie
, 400 Mass. 427, 432–433 (1987); Commonwealth v. Heath
, 89 Mass. App. Ct. 328, 335–337 (2016) (conviction reversed for improper calibration of factors of culpability and potential prejudice relating to destroyed evidence, and for insufficiency of remedial action). Remedial action in the form of sanctions or a “missing evidence” instruction is not appropriate unless the defendant meets “his initial burden of showing a reasonable possibility that the lost evidence was exculpatory.” Commonwealth v. Kee
, 449 Mass. 550, 554 (2007). If remedial action is required, the judge has the discretion to fashion a remedy that will protect the defendant’s rights. See, e.g., Commonwealth v. Kee, 449 Mass. at 557–558 (missing evidence instruction); Commonwealth v. Harwood
, 432 Mass. 290, 303 (2000) (suppression of evidence). Cf. Commonwealth v. Sasville
, 35 Mass. App. Ct. 15, 28 (1993) (dismissal appropriate only where the harm is irremediable). With reference to the Commonwealth’s duty to preserve evidence, see Commonwealth v. Williams
, 475 Mass. 705, 722–723 (2016).
Section 1103. Sexually Dangerous Person Proceedings
(a) In General. A person who has been convicted of a sex offense may be confined indefinitely for treatment after the termination of the person’s criminal sentence if the person is found to be a sexually dangerous person (SDP) in accordance with statutory procedures and based on the testimony of a qualified examiner.
(b) Proceedings. In proceedings for the commitment or discharge of a person alleged to be a sexually dangerous person, hearsay evidence is not admissible, except as provided in Subsections (b)(1) and (b)(2) of this section.
(1) Hearsay That Is Admissible. Hearsay consisting of reports or records relating to a person’s criminal conviction, adjudication of juvenile delinquency or as a youthful offender, the person’s psychiatric and psychological records, and a variety of records created or maintained by the courts and other government agencies, as more particularly defined by statute, is admissible in SDP proceedings.
(2) Hearsay That May Be Admissible. In addition to hearsay admissible under Subsection (a), other hearsay may be admissible if it concerns uncharged conduct of the person and is closely related in time and circumstance to a sexual offense for which the person was convicted or adjudicated a juvenile delinquent or youthful offender.
Subsection (a). This subsection is derived from Johnstone, petitioner , 453 Mass. 544, 547 (2009) (discussing G. L. c. 123A, §§ 12–14 ), and Green, petitioner , 475 Mass. 624 (2016). Expert witness testimony by a credible qualified examiner is required for a judge or a jury to make the determination that a person is sexually dangerous, and the jury must be instructed to that effect. Green, petitioner, 475 Mass. at 625–626.The current Massachusetts law, G. L. c. 123A , was adopted in 1999, St. 1999, c. 74, §§ 3–8 , and is the successor to an earlier statutory scheme for the civil commitment of sexually dangerous persons (St. 1958, c. 646 ) that was repealed by St. 1990, c. 150, § 304 . As a result, the population of the Massachusetts Treatment Center includes persons who are confined under commitment orders made prior to 1990 and subsequent to 1999. Each population has a right to file a petition in the Superior Court each year that requires a redetermination of whether they remain sexually dangerous. See G. L. c. 123A, § 9 . The law provides for trial by jury and affords the individual the right to counsel, the right to present evidence, and the right to cross-examine adverse witnesses. Unless the Commonwealth proves that the person remains sexually dangerous beyond a reasonable doubt, the person must be released. See Commonwealth v. Nieves , 446 Mass. 583, 587, 593–594 (2006) (explaining the statutory procedures governing commitment and discharge under G. L. c. 123A ). The criteria for commitment are set forth in the definition of a “sexually dangerous person” found in G. L. c. 123A, § 1 . See Commonwealth v. Boucher , 438 Mass. 274, 275–281 (2002).
Subsection (b). “It is settled that hearsay not otherwise admissible under the rules of evidence is inadmissible at the trial of a sexually dangerous person petition unless specifically made admissible by statute” (citations omitted). Commonwealth v. Markvart , 437 Mass. 331, 335 (2002). Thus, the catch-all provision found in G. L. c. 123A, § 14(c) , (“Any other evidence” tending to show that the person is sexually dangerous), is not interpreted to make any and all hearsay evidence admissible in SDP proceedings. McHoul, petitioner , 445 Mass. 143, 147 n.2 (2005). See also id. at 151 n.6 (“For example, there is no hearsay exception that would allow a party to introduce his own prior statements in the various reports and records; if offered by the petitioner, his own statements would not be the admission of a party opponent.”). It is equally settled that documents made admissible by statute in SDP proceedings such as police reports, psychological assessments, notes about treatment, and the like, are not subject to redaction simply because they contain hearsay statements. See id. at 147–148, 151 n.6.
“When the Legislature identified the specific records and reports that were to be admissible in sexually dangerous person proceedings, it did so with full knowledge that they routinely contain information derived from hearsay sources. Having made such records and reports ‘admissible,’ the Legislature did not intend that the documents be reduced to isolated shreds of partial information that would result from the application of hearsay rules to each individual entry in the documents.”
Miscellaneous Evidentiary Rulings. The Supreme Judicial Court and Appeals Court have addressed several other evidentiary questions that relate to these specialized proceedings. See Johnstone, petitioner , 453 Mass. 544, 550 (2009) (although the annual report of the Community Access Board as to a civilly committed person’s sexual dangerousness is admissible in discharge proceedings under G. L. c. 123A, § 9 , the Commonwealth cannot proceed to trial unless at least one of the two qualified examiners opines that the petitioner is a sexually dangerous person); Commonwealth v. Connors , 447 Mass. 313, 317–319 (2006) (although the allegedly sexually dangerous person has a right to refuse to speak to the qualified examiners, he or she may not offer his or her own expert testimony, based on his or her statements made to his or her own experts, while refusing to answer the questions of the qualified examiners); Commonwealth v. Nieves , 446 Mass. 583, 587, 593–594 (2006) (civil commitment of an incompetent person under G. L. c. 123A is not unconstitutional even though no effective treatment is available); Commonwealth v. Callahan , 440 Mass. 436, 439–442 (2004) (G. L. c. 123A, § 13[b] , which requires that certain material about a person alleged to be a sexually dangerous person be given to the qualified examiners, does not supersede the patient-psychotherapist privilege); Wyatt, petitioner , 428 Mass. 347, 355–359 (1998) (questions concerning the relevancy and probative value of evidence offered in proceedings under G. L. c. 123A are within the discretion of the trial judge in accordance with Sections 401–403 of this Guide); Gammel, petitioner , 86 Mass. App. Ct. 8, 9 (2014) (qualified examiner was permitted to testify at trial as to his opinion regarding the credibility of statements made by petitioner during evaluation of sexual dangerousness); Kenney, petitioner , 66 Mass. App. Ct. 709, 714–715 (2006) (admissibility of juvenile court records in SDP cases); Commonwealth v. Bradway , 62 Mass. App. Ct. 280, 287 (2004) (if reports of qualified examiners are admitted pursuant to G. L. c. 123A, § 14[c] , the author of report must be made available for cross-examination).
Hearsay Evidence Excluded. Police reports and out-of-court statements of witnesses from cases in which the charges have been dismissed or nolle prossed or in which the defendant was found not guilty are not statements of “prior sexual offenses,” as set forth in G. L. c. 123A, § 14(c) , and thus are inadmissible as hearsay. See Commonwealth v. Markvart , 437 Mass. 331, 335–336 (2002). However, this does not mean that the testimony of witnesses with personal knowledge of the facts in cases that were dismissed or nolle prossed cases would be inadmissible in SDP cases. See id. at 337.
Subsection (b)(1). This subsection is derived from G. L. c. 123A, §§ 6A, 9, and 14(c) . In proceedings for the initial commitment of a person under Section 12 (including the preliminary, probable cause hearing) and the discharge of committed persons under Section 9, the Legislature has removed many of the barriers against the admissibility of hearsay evidence. G. L. c. 123A, §§ 6A, 9, and 14(c) . The case law has harmonized these sections so that the general rule is that hearsay admissible in a proceeding under G. L. c. 123A, § 12 , is also admissible in a proceeding under Section 9. These statutory provisions permit psychiatrists or psychologists who are qualified examiners, see G. L. c. 123A, § 1 , to testify as experts without an independent determination by the court that they are qualified and that their testimony meets standards of reliability under Section 702, Testimony by Expert Witnesses . See Commonwealth v. Bradway , 62 Mass. App. Ct. 280, 285–289 (2004) (admission of testimony and reports of qualified examiners as to a person’s sexual dangerousness does not require the court to assess reliability under the standards established in Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579 , and Commonwealth v. Lanigan , 419 Mass. 15 ). Cf. Ready, petitioner , 63 Mass. App. Ct. 171, 172–179 (2005) (in a Section 9 proceeding, the trial judge was correct in excluding the results of the Abel Assessment for Sexual Interest test administered by an independent expert witness for the petitioner on grounds that it was not generally accepted by the relevant scientific community and thus not reliable under the Daubert-Lanigan standard).
Hearsay Evidence Expressly Made Admissible by Statute. Under G. L. c. 123A, § 6A , reports by the community access board of evaluations of residents of the Massachusetts Treatment Center are admissible in proceedings for discharge under G. L. c. 123A, § 9 . Under G. L. c. 123A, §§ 9 and 14(c) , reports prepared by qualified examiners are admissible. The phrase “psychiatric and psychological records” in G. L. c. 123A, § 9 , includes the reports prepared by psychiatrists and psychologists who have been retained as expert witnesses by the petitioner in connection with a Section 9 petition for examination and discharge. Santos, petitioner, 461 Mass. 565, 573 (2012). The cognate phrase in G. L. c. 123A, § 14(c) , will be interpreted in the same manner. Id. at 573 n.10. There also is a broad exemption from the hearsay rule found in G. L. c. 123A, § 14(c) , which states that the following records are admissible in proceedings under G. L. c. 123A, § 12 , for the initial commitment of an offender as a sexually dangerous person:
“Juvenile and adult court probation records, psychiatric and psychological records and reports of the person named in the petition, including the report of any qualified examiner, as defined in section 1, and filed under this chapter, police reports relating to such person’s prior sexual offenses, incident reports arising out of such person’s incarceration or custody, oral or written statements prepared for and to be offered at the trial by the victims of the person who is the subject of the petition and any other evidence tending to show that such person is or is not a sexually dangerous person shall be admissible at the trial if such written information has been provided to opposing counsel reasonably in advance of trial.”
See also Commonwealth v. Morales , 60 Mass. App. Ct. 728, 730 (2004) (“[Department of Social Services] reports and grand jury minutes containing information about victims of sexual offenses committed against them by a defendant convicted of those offenses are directly admissible in evidence at trials on petitions brought under G. L. c. 123A, § 14[a] ”). Under G. L. c. 123A, § 9 , either side may introduce in evidence the report of a qualified examiner, the petitioner’s “juvenile and adult court and probation records,” the petitioner’s “psychiatric and psychological records,” and the Department of Correction’s updated annual progress report pertaining to the petitioner. Constitutional challenges to the Legislature’s relaxation of the rule against the admissibility of hearsay in SDP cases were considered and rejected by the Supreme Judicial Court in Commonwealth v. Given , 441 Mass. 741, 746–748 (2004).
When Hearsay Evidence Is the Basis of Expert Testimony. In Commonwealth v. Markvart , 437 Mass. 331, 336–339 (2002), the Supreme Judicial Court applied Department of Youth Servs. v. A Juvenile , 398 Mass. 516, 531 (1986), see Section 703(c), Bases of Opinion Testimony by Experts , and harmonized the demands of the more general law of evidence and the special statutory exemptions from the hearsay rule found in G. L. c. 123A, §§ 9 and 14(c) . The Supreme Judicial Court held that in an SDP proceeding, a qualified examiner could base an expert opinion on police reports and witness statements pertaining to the sex offender even though the information is not in evidence, as long as the information could be admitted if the witnesses were called to testify. Commonwealth v. Markvart, 437 Mass. at 337–338. Because the statutes, G. L. c. 123A, §§ 9 and 14(c) , make the reports of these qualified examiners admissible, any independently admissible hearsay contained in such reports that is not admitted during the trial must be redacted from the reports before it is presented to the jury. Id. at 339. The reason why redaction is required in such cases is not because the qualified examiner’s report contains hearsay within hearsay, but rather because the report is the equivalent of an expert witness’s direct testimony which cannot be used as a vehicle for putting before the jury facts not in evidence. See McHoul, petitioner , 445 Mass. 143, 148 n.4 (2005).
Subsection (b)(2). This subsection is derived from Commonwealth v. Given , 441 Mass. 741, 745 (2004). The Supreme Judicial Court explained that in proceedings under G. L. c. 123A, § 9 or § 12, G. L. c. 123A, § 14(c) , makes admissible evidence of uncharged conduct when it is closely related in time and circumstance to the underlying sexual offense. Id. Cf. id. at 746 n.6 (“We do not consider or decide whether statements in a police report that include information concerning uncharged misconduct completely unrelated in time and circumstance to the underlying sexual offense must be redacted.”).
Section 1104. Witness Cooperation Agreements
In a criminal case in which there is a written agreement between the Commonwealth and a witness in which the Commonwealth makes a promise to the witness in relation to the charges or the sentence in exchange for the testimony of the witness at trial, the use and admission of the agreement by the Commonwealth at trial is within the discretion of the trial judge subject to the following guidelines:
(a) On direct examination, the prosecution may properly bring out the fact that the witness has entered into a plea agreement and that the witness generally understands his or her obligations under it.
(b) The agreement itself is admissible. The timing of the admission of the agreement is within the judge’s discretion. The judge may defer admission of the agreement until redirect examination, after the defendant has undertaken to impeach the witness’s credibility by showing that the witness had struck a deal with the prosecution in order to obtain favorable treatment.
(c) References to a witness’s obligation to tell the truth, any certification or acknowledgment by his or her attorney, and any provision that suggests that the Commonwealth has special knowledge as to the veracity of the witness’s testimony should be redacted from the agreement, on request.
(d) Ordinarily, questions by the prosecutor about the duty of the witness to tell the truth and the reading of the agreement are not permitted until redirect examination and after the witness has been cross-examined on the matter.
(e) Care must be taken by the Commonwealth not to suggest, by questions or argument, that it has knowledge of the credibility of the witness independent of the evidence.
(f) The trial judge must instruct the jury by focusing their attention on the particular care they should give in evaluating testimony given pursuant to a plea agreement that is contingent on the witness’s telling the truth.
Subsections (d) and (e). These subsections are derived from Commonwealth v. Rivera , 430 Mass. 91, 96–97 (1999), and Commonwealth v. Ciampa , 406 Mass. 257, 264–265 (1989). See also Commonwealth v. Webb , 468 Mass. 26, 32–34 (2014) (no error in permitting prosecutor to inquire on direct examination into witness’s agreement to provide truthful testimony after defense counsel had attacked witness’s credibility during opening statement).
Subsection (f). This subsection is derived from Commonwealth v. Ciampa , 406 Mass. 257, 266 (1989), and Commonwealth v. Asmeron , 70 Mass. App. Ct. 667, 675 (2007). See Commonwealth v. Meuse , 423 Mass. 831, 832 (1996) (reversible error where prosecutor vouched for witness testifying pursuant to plea agreement and judge failed to give Ciampa-type instruction); Commonwealth v. Daye , 411 Mass. 719, 739–740 (1992) (no special instruction necessary as it did not appear that evidence presented realistic possibility that jury would believe witness’s testimony based on her agreement to tell truth); Commonwealth v. Colon , 408 Mass. 419, 445 (1990) (no special instructions necessary where plea agreement does not condition immunization on truthfulness).
General Application. The above guidelines also apply to nonbinding pretrial “agreements.” See Commonwealth v. Davis , 52 Mass. App. Ct. 75, 78–79 & n.7 (2001) (holding that Ciampa’s prophylactic measures are applicable in circumstances in which Commonwealth witness testified that, after he was charged with distribution of marijuana, he agreed to help police arrest others involved in illegal sale of drugs in exchange for nonspecific “consideration” from prosecution). A defendant has the right to bring to the attention of the jury any “quid pro quo” agreement between the prosecution and a testifying witness, whether formal or informal, written or unwritten. See id. at 78 n.7; Commonwealth v. O’Neil , 51 Mass. App. Ct. 170, 179 (2001).
In Commonwealth v. Prater , 431 Mass. 86, 98 (2000), the Supreme Judicial Court indicated that the “better practice” is for the trial judge to include in the cautionary instruction a warning that the jury should not consider an accomplice’s guilty plea as evidence against the defendant.
An agreement that obligates a witness to testify to some particular version of the facts in exchange for a charge or sentence concession would be grounds for a motion to preclude the testimony or to strike it. See Commonwealth v. Ciampa , 406 Mass. 257, 261 n.5 (1989) (“Testimony pursuant to a plea agreement made contingent on obtaining . . . a conviction, as a result of the witness’s testimony, would presumably present too great an inducement to lie, [and] would not meet the test of fundamental fairness.”). See also Commonwealth v. Colon-Cruz , 408 Mass. 533, 553 (1990) (“[W]e do not condone the use of agreements which do not require a witness to tell the truth. Such agreements are antithetical to the fair administration of justice. . . . [F]uture plea agreements [should] be drafted so as to make the obligation to testify truthfully clear to the witness[.]”).
Section 1105. Third-Party Culprit Evidence
Evidence that a third party committed the crimes charged against the defendant, or had the motive, intent, and opportunity to commit the crimes, is admissible provided that the evidence has substantial probative value. In making this determination, the court must make a preliminary finding (a) that the evidence is relevant, (b) that the evidence will not tend to prejudice or confuse the jury, and (c) that there are other substantial connecting links between the crime charged and a third party or between the crime charged and another crime that could not have been committed by the defendant.
This section is derived from Commonwealth v. Silva-Santiago , 453 Mass. 782, 800–801 (2009); Commonwealth v. Jewett , 392 Mass. 558, 562 (1984); Commonwealth v. Murphy , 282 Mass. 593, 597–598 (1933); and Commonwealth v. Abbott , 130 Mass. 472, 475 (1881). See Commonwealth v. Buckman , 461 Mass. 24, 29–30 (2011) (trial judge had discretion to rule in advance of trial that defendant had not made adequate showing that three potential culprits were connected to the crime, and that defendant must provide advance warning to court before offering evidence or argument at trial of third-party culprit). The admission of evidence under this section does not require the trial judge to give a specific instruction on third-party culprit evidence so long as the jury instructions adequately convey the Commonwealth’s burden to prove beyond a reasonable doubt that the defendant committed the crime charged. Commonwealth v. Hoose , 467 Mass. 395, 412–413 (2014).
In Commonwealth v. Rosa , 422 Mass. 18, 22 (1996), the Supreme Judicial Court observed that
“[i]f the defense offers its own theory of the case (beyond merely putting the government to its proof), its evidence must have a rational tendency to prove the issue the defense raises, and the evidence cannot be too remote or speculative. Evidence that another person committed the crime charged also poses a real threat of prejudice, especially the risk of confusing jurors by diverting their attention to wholly collateral matters involving persons not on trial.”
For example, in Commonwealth v. Rosa, the Supreme Judicial Court upheld the trial judge’s exclusion of so-called third-party culprit evidence consisting of the fact that there was another person awaiting trial with a record for crimes of violence and who was held in the same jail as the defendant. Id. at 24–25. Even though this other person had been mistaken for the defendant by his lawyer and had lived in the same neighborhood as the defendant at the time of the murder, the court upheld the trial judge’s decision to exclude the evidence. The court concluded that “[w]ithout more, these are fairly common similarities that do not require the admission of evidence of similar crimes.” Id. at 23. The court contrasted Commonwealth v. Keizer , 377 Mass. 264, 267 (1979), where it held that the trial judge should have admitted evidence “because there were substantial connecting links between the robbery charged and another robbery in which the defendant could not have participated.” Commonwealth v. Rosa, 422 Mass. at 23. The court noted that in Keizer,
“[n]ot only did the two crimes share an identical modus operandi with several distinctive features, but the two robberies also had one common perpetrator (each robbery was by a team of three perpetrators). We also found distinctive a specific link between the identification testimony against the defendant and the identity of the perpetrators of the similar crime (only one witness could identify defendant, and same witness also identified common perpetrator of two crimes).”
Id. at 23, citing Commonwealth v. Keizer, 377 Mass. at 268 n.2.
The mere fact that a third party had the motive, intent, and opportunity to commit the crime, however, does not make evidence about that person and his or her possible culpability admissible. Commonwealth v. O’Brien , 432 Mass. 578, 588–589 (2000) (explaining that evidence that the victim had expressed fear of the third party in circumstances in which there were no substantial links between the third party and the crime was not admissible because it amounted to nothing more than the witness’s opinion that the third party committed the crime). Accord Commonwealth v. Buckman , 461 Mass. 24, 29–30 (2011); Commonwealth v. Rice , 441 Mass. 291, 305–306 (2004); Commonwealth v. DiBenedetto , 427 Mass. 414, 420–421 (1998). See also Commonwealth v. Wood , 469 Mass. 266, 278 (2014) (affirming exclusion of statements offered in furtherance of a Bowden defense where there was no evidence suggesting that the third party was in any way involved in the victim’s death); Commonwealth v. Smith , 461 Mass. 438, 446–448 (2012) (affirming exclusion of statements suggesting murder victim feared unknown persons because statements failed to establish connection between the unknown persons and the murder).
Where the Commonwealth seeks to obtain a DNA buccal swab from a third party in order to foreclose a possible third-party culprit defense, it bears the burden of establishing probable cause that a crime has been committed and that the sample probably will provide evidence relevant to the question of the defendant’s guilt. Commonwealth v. Kostka , 471 Mass. 656, 659 (2015) (DNA buccal swab of defendant’s twin brother).
Constitutional Considerations. “The defendant has a constitutional right to present evidence that another may have committed the crime.” Commonwealth v. Keohane , 444 Mass. 563, 570 (2005). State evidence rules which effectively bar the introduction of third-party culprit evidence deprive a defendant of his or her right to present a meaningful defense and violate the due process clause of the Fourteenth Amendment. See Holmes v. South Carolina , 547 U.S. 319 (2006); Chambers v. Mississippi , 410 U.S. 284 (1973). Hearsay evidence is admissible as third-party culprit evidence even though it does not fall within a hearsay exception, but “only if, in the judge’s discretion, the evidence is otherwise relevant, will not tend to prejudice or confuse the jury, and there are other substantial connecting links to the crime.” Commonwealth v. Silva-Santiago , 453 Mass. 782, 801 (2009), and cases cited; Commonwealth v. Alcantara , 471 Mass. 550, 559–561 (2015). See Commonwealth v. Drew , 397 Mass. 65, 72 (1986) (noting that in “rare circumstances,” the defendant’s constitutional right to present a defense may require the admission of third-party culprit evidence). However, “[a] defendant has no ‘constitutional right to the admission of unreliable hearsay.’” Commonwealth v. Burnham , 451 Mass. 517, 526 (2008), quoting Commonwealth v. Evans , 438 Mass. 142, 156 (2002), cert. denied, 538 U.S. 966 (2003). Accord Commonwealth v. Morgan , 449 Mass. 343, 358 (2007) (explaining that an absent witness’s statement that a third party told her that he had shot the victim was not admissible as a statement against penal interest or as third-party culprit evidence in circumstances in which the third party denied making the statement when interviewed by the police and where there was no corroboration). Hearsay evidence which does not qualify as third-party culprit evidence may nonetheless be admissible for a different but related purpose of establishing the inadequacy of the police investigation. See Commonwealth v. Silva-Santiago, 453 Mass. at 802 (explaining that based on the reasoning in Commonwealth v. Bowden , 379 Mass. 472, 486 (1980), “information regarding a third-party culprit, whose existence was known to the police but whose potential involvement was never investigated, may be admissible under a Bowden defense even though it may not otherwise be admissible under a third-party culprit defense”). Before such evidence is admitted, the judge should conduct a voir dire to determine whether the third-party culprit evidence was provided to the police and whether its admission would be more prejudicial than probative. Id. at 802–803.
Cross-Reference: Section 1107, Inadequate Police Investigation Evidence .
Section 1106. Abuse Prevention and Harassment Prevention Proceedings
In all civil proceedings under G. L. c. 209A (abuse prevention) and G. L. c. 258E (harassment prevention), the rules of evidence should be applied flexibly by taking into consideration the personal and emotional nature of the issues involved, whether one or both of the parties is self-represented, and the need for fairness to all parties.
Introduction. This section is derived from G. L. c. 209A ; Frizado v. Frizado , 420 Mass. 592, 597–598 (1995); S.T. v. E.M. , 80 Mass. App. Ct. 423, 429–430 (2011); and O’Brien v. Borowski , 461 Mass. 415 (2012). Civil proceedings under G. L. c. 209A are commenced by filing a civil complaint. G. L. c. 209A, § 3A . Violations of orders issued under G. L. c. 209A are punishable as crimes. G. L. c. 209A, § 7 . The remedies that may be ordered by the court are set forth in G. L. c. 209A, § 3 . Initially, a temporary order may be issued, ex parte, if the plaintiff demonstrates a substantial likelihood of immediate danger of abuse. G. L. c. 209A, § 4 . When courts are closed, emergency relief is available to any person who demonstrates a substantial likelihood of immediate danger of abuse. G. L. c. 209A, § 5 . Whenever a court issues a temporary order, the defendant has a right to be heard no later than ten business days after such order. This hearing constitutes a civil, jury-waived trial. At the temporary hearing and at any subsequent trial or hearing, the Supreme Judicial Court has observed that “the rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on.” Frizado v. Frizado, 420 Mass. at 597–598. For additional information, see Guidelines for Judicial Practice, Abuse Prevention Proceedings file size 1MB, at http://perma.cc/LN2Q-8672.
Evidentiary Principles Applicable in G. L. c. 209A Proceedings. In determining whether and how to apply the law of evidence, the Supreme Judicial Court in Frizado v. Frizado , 420 Mass. 592 (1995), offered the following guidelines.
“[First, t]he burden is on the complainant to establish facts justifying the issuance and continuance of an abuse prevention order. The court must on request grant a defendant an opportunity to be heard on the question of continuing the temporary order and of granting other relief. That opportunity, however, places no burden on a defendant to testify or to present evidence. The defendant need only appear at the hearing.” (Quotation omitted.)
Frizado v. Frizado, 420 Mass. at 596, quoting G. L. c. 209A, § 4 .
Second, the plaintiff’s burden of proof is preponderance of the evidence. Frizado v. Frizado, 420 Mass. at 597.
Third, an adverse inference can be drawn by the court from the defendant’s failure to testify in a G. L. c. 209A proceeding. The fact that the defendant may refuse to testify on the ground of self-incrimination does not bar the taking of an adverse inference. However, the adverse inference alone is not sufficient to justify the issuance of an abuse prevention order. Frizado v. Frizado, 420 Mass. at 596. See also Smith v. Joyce , 421 Mass. 520, 523 n.1 (1995) (a judge may not issue a restraining order “simply because it seems to be a good idea or because it will not cause the defendant any real inconvenience”). The plaintiff is still permitted to call the defendant as a witness even though the defendant is able to assert the privilege against self-incrimination. S.T. v. E.M. , 80 Mass. App. Ct. 423, 429 (2011).
Fourth, “[b]ecause a G. L. c. 209A proceeding is a civil, and not a criminal, proceeding, the constitutional right to confront witnesses and to cross-examine them set forth in art. 12 of the Declaration of Rights has no application.” Frizado v. Frizado, 420 Mass. at 596 n.3.
Fifth, “[t]he right of the defendant to be heard includes his right to testify and to present evidence.” Frizado v. Frizado, 420 Mass. at 597. It is not sufficient to hear from the defendant’s attorney and to deny the defendant the opportunity to present evidence. C.O. v. M.M. , 442 Mass. 648, 657 (2004). The plaintiff has a corresponding right to present evidence prior to the judge vacating any part of an abuse prevention order. S.T. v. E.M., 80 Mass. App. Ct. at 429–430.
Sixth, with respect to cross-examination, “[t]he judge’s discretion in restricting cross-examination may not be unlimited in particular situations.” Frizado v. Frizado, 420 Mass. at 598 n.5. The Supreme Judicial Court cautioned against “the use of cross examination for harassment or discovery purposes. However, each side must be given a meaningful opportunity to challenge the other’s evidence.” Id. See C.O. v. M.M., 442 Mass. at 656–658 (defendant’s due process rights were violated when the court refused to permit him to cross-examine witnesses or to present evidence).
Termination of an Order. A defendant who seeks to terminate a permanent G. L. c. 209A order must prove by clear and convincing evidence that there has been a significant change in circumstances such that the protected party no longer has a reasonable fear of imminent serious physical harm from the defendant, and that continuation of the order would therefore not be equitable. The mere passage of time, during which the defendant has complied with the order, is not alone sufficient to justify termination. MacDonald v. Caruso , 467 Mass. 382, 388–389 (2014).
Harassment Prevention Proceedings (G. L. c. 258E). The considerations set forth above regarding the conduct of a G. L. c. 209A proceeding also apply to proceedings conducted pursuant to G. L. c. 258E . See O’Brien v. Borowski , 461 Mass. 415 (2012).
Section 1107. Inadequate Police Investigation Evidence
Evidence that certain tests were not conducted, that certain police procedures were not followed, or that certain information known to the police about another suspect was not investigated, in circumstances in which it was reasonable to expect that the police should have conducted such tests, followed such procedures, or investigated such information, is admissible.
This section is derived from Commonwealth v. Bowden , 379 Mass. 472, 486 (1980), and cases cited. See Commonwealth v. Silva-Santiago , 453 Mass. 782, 801 (2009) (“[T]he inference that may be drawn from an inadequate police investigation is that the evidence at trial may be inadequate or unreliable because the police failed to conduct the scientific tests or to pursue leads that a reasonable police investigation would have conducted or investigated, and these tests or investigation reasonably may have led to significant evidence of the defendant’s guilt or innocence.”); Commonwealth v. Phinney , 446 Mass. 155, 165 (2006) (“Defendants have the right to base their defense on the failure of police adequately to investigate a murder in order to raise the issue of reasonable doubt as to the defendant’s guilt . . . .”). Compare Commonwealth v. Mattei , 455 Mass. 840, 857–860 (2010) (In a prosecution for attempted rape in which the defendant, a convict on work release, sought to demonstrate misidentification based on an inadequate police investigation because the police did not investigate three other Housing Authority employees who were on duty at the time who had criminal histories, it was error to refuse to permit the defense to question the police about their knowledge of the criminal histories of these employees.) with Commonwealth v. Alcantara , 471 Mass. 550, 561–563 (2015) (judge did not abuse her discretion in excluding proposed Bowden evidence as not probative of police thoroughness and likely to confuse jury).
The admission of Bowden evidence does not require the trial judge to give a special instruction to the jury. Instead, the judge is simply required not to take the issue of the adequacy of the police investigation away from the jury. See Commonwealth v. Williams , 439 Mass. 678, 687 (2003).
The Bowden defense “is a two-edged sword for the defendant, because it opens the door for the Commonwealth to offer evidence explaining why the police did not follow the line of investigation suggested by the defense” (citations omitted). Commonwealth v. Silva-Santiago, 453 Mass. at 803 n.25. “[T]he more wide-ranging the defendant’s attack on the police investigation, the broader the Commonwealth’s response may be.” Commonwealth v. Avila , 454 Mass. 744, 754–755 (2009) (“Here, the Bowden claim was an expansive one, calling into question police competence and judgment about both the leads that were not pursued and those that were. In response, the Commonwealth was entitled to elicit testimony about why the investigators chose the particular investigative path they did . . . .”).
Under a Bowden defense, information regarding a third-party culprit whose existence was known to the police but whose potential involvement was never investigated may be admissible to prove that the police knew of the possible suspect and failed to take reasonable steps to investigate the suspect. This information is not hearsay because it is not offered to show the truth of the matter asserted, but simply to show that the information was provided to the police. Therefore, it need not meet the standard set to admit hearsay evidence regarding a third-party culprit, including the substantial connecting links. See Commonwealth v. Reynolds , 429 Mass. 388, 391–392 (1999) (police detective could testify to what confidential informants had told him about suspect’s motive and opportunity to kill the victim, despite the confidential informants’ potential lack of firsthand knowledge). There is a lessened risk of prejudice to the Commonwealth from the admission of evidence of a Bowden defense because the police are able to explain what they did to determine that the suspect was not guilty of the crime. See Id. at 391 n.1. In contrast to the third-party culprit defense, where evidence may be admitted regardless of whether the police knew of the suspect, third-party culprit information is admissible under a Bowden defense only if the police had learned of it during the investigation and failed to reasonably act on the information. Commonwealth v. Silva-Santiago, 453 Mass. at 802–803. The judge would first need to conduct a voir dire hearing to determine whether the third-party culprit information had been furnished to the police, and whether the probative weight of the Bowden evidence exceeded the risk of unfair prejudice to the Commonwealth from diverting the jury’s attention to collateral matters. Id. at 803.
Cross-Reference: Section 1105, Third-Party Culprit Evidence .
Section 1108. Access to Third-Party Records Prior to Trial in Criminal Cases (Lampron-Dwyer Protocol)
(a) Filing and Service of the Motion.
(1) Whenever in a criminal case a party seeks to summons books, papers, documents, or other objects (records) from any nonparty individual or entity prior to trial, the party shall file a motion pursuant to Mass. R. Crim. P. 17(a)(2), stating the name and address of the custodian of the records (record holder) and the name, if any, of the person who is the subject of the records (third-party subject), for example, a complainant, and describing, as precisely as possible, the records sought. The motion shall be accompanied by an affidavit as required by Mass. R. Crim. P. 13(a)(2) and Commonwealth v. Lampron , 441 Mass. 265 (2004) (Lampron).
(2) The moving party shall serve the motion and affidavit on all parties.
(3) The Commonwealth shall forward copies of the motion and affidavit to the record holder and (where applicable) to the third-party subject, and notify them of the date and place of the hearing on the motion. The Commonwealth shall also inform the record holder and third-party subject that (i) the Lampron hearing shall proceed even if either of them is absent; (ii) the hearing shall be the third-party subject’s only opportunity to address the court; (iii) any statutory privilege applicable to the records sought shall remain in effect unless and until the third-party subject affirmatively waives any such privilege, and that failure to attend the hearing shall not constitute a waiver of any such privilege; and (iv) if the third-party subject is the victim in the case, he or she has the opportunity to confer with the prosecutor prior to the hearing.
(b) The Lampron Hearing and Findings.
(1) A party moving to summons documents pursuant to Mass. R. Crim. P. 17(a)(2) prior to trial must establish good cause by showing (i) that the documents are evidentiary and relevant; (ii) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (iii) that the party cannot properly prepare for trial without such production and inspection in advance of trial, and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (iv) that the application is made in good faith and is not intended as a general fishing expedition.
(2) At the Lampron hearing, the judge shall hear from all parties, the record holder, and the third-party subject, if present. The record holder and third-party subject shall be heard on whether the records sought are relevant or statutorily privileged.
(3) Following the Lampron hearing, and in the absence of having reviewed the records, the judge shall make oral or written findings with respect to the records sought from each record holder indicating (i) that the party seeking the records has or has not satisfied the requirements of Mass. R. Crim. P. 17(a)(2), and (ii) that the records sought are or are not presumptively privileged. A judge’s determination that any records sought are presumptively privileged shall not be appealable as an interlocutory matter and shall carry no weight in any subsequent challenge that a record is in fact not privileged.
(c) Summons and Notice to Record Holder.
(1) If all Mass. R. Crim. P. 17(a)(2) requirements have been met and there has been a finding that the records sought are not presumptively privileged or the third-party subject has waived all applicable statutory privileges, the judge shall order a summons to issue directing the record holder to produce all responsive records to the applicable clerk of the court on the return date stated in the summons. The clerk shall maintain the records in a location separate from the court file, and the records shall be made available for inspection by counsel, as provided in Subsection (d)(1) below. The records shall not be made available for public inspection unless and until any record is filed in connection with a proceeding in the case or introduced in evidence at the trial.
(2) Where a judge has determined that some or all of the requested records are presumptively privileged, the summons shall so inform the record holder and shall order the record holder to produce such records to the clerk of the court in a sealed envelope or box marked “PRIVILEGED,” with the name of the record holder, the case name and docket number, and the return date specified on the summons. The clerk shall maintain the records in a location separate from the court file, clearly designated “presumptively privileged records,” and the records shall not be available for inspection except by counsel as provided in Subsection (d)(2). The records shall not be made available for public inspection unless and until any record is introduced in evidence at trial.
(d) Inspection of Records.
(1) Nonpresumptively Privileged Records. The clerk of court shall permit counsel who obtained the summons to inspect and copy all records that are not presumptively privileged. When the defendant is the moving party, the Commonwealth’s ability to inspect or copy the records is within a judge’s discretion.
(2) Presumptively Privileged Records.
(A) The clerk of court shall permit only defense counsel who obtained the summons to inspect the records, and only on counsel’s signing and filing a protective order in a form approved by the court. The protective order shall provide that any violation of its terms and conditions shall be reported to the Board of Bar Overseers by anyone aware of such violation.
(B) [The Supreme Judicial Court has not reached the issue of whether the procedures governing defense counsel’s review of presumptively privileged records also apply to the Commonwealth.]
(e) Challenge to Privilege Designation.
(1) If, on inspection of the records, defense counsel believes that any record or portion thereof is in fact not privileged, then in lieu of or in addition to a motion to disclose or introduce at trial (see Subsections (f) and (g) below), counsel may file a motion to release specified records or portions thereof from the terms of the protective order.
(2) Defense counsel shall provide notice of the motion to all parties. Prior to the hearing, counsel for the Commonwealth shall be permitted to review such records in order to respond to the motion, subject to signing and filing a protective order as provided in Subsection (d)(2) above.
(3) If a judge determines that any record or portion thereof is not privileged, the record shall be released from the terms of the protective order and may be inspected and copied as provided in Subsection (d)(1) above.
(f) Disclosure of Presumptively Privileged Records.
(1) If defense counsel who obtained the summons believes that the copying or disclosure of some or all of any presumptively privileged record to other persons (for example, the defendant, an investigator, an expert) is necessary to prepare the case for trial, counsel shall file a motion to modify the protective order to permit copying or disclosure of particular records to specifically named individuals. The motion shall be accompanied by an affidavit explaining with specificity the reason why copying or disclosure is necessary; the motion and the affidavit shall not disclose the content of any presumptively privileged record. Counsel shall provide notice of the motion to all parties.
(2) Following a hearing, and in camera inspection of the records by the judge where necessary, a judge may allow the motion only on making oral or written findings that the copying or disclosure is necessary for the defendant to prepare adequately for trial. The judge shall consider alternatives to full disclosure, including agreed to stipulations or disclosure of redacted portions of the records. Before disclosure is made to any person specifically authorized by the judge, that person shall sign a copy of the court order authorizing disclosure. This court order shall clearly state that a violation of its terms shall be punishable as criminal contempt.
(3) All copies of any documents covered by a protective order shall be returned to the court on resolution of the case, i.e., on a change of plea or at the conclusion of any direct appeal following a trial or dismissal of the case.
(g) Use of Presumptively Privileged Records at Trial.
(1) A defendant seeking to introduce at trial some or all of any presumptively privileged record shall file a motion in limine at or before any final pretrial conference.
(2) Counsel for the Commonwealth shall be permitted to review enough of the presumptively privileged records to be able to respond adequately to the motion in limine, subject to signing and filing a protective order as provided in Subsection (d)(2) above.
(3) The judge may allow the motion only on making oral or written findings that introduction at trial of a presumptively privileged record is necessary for the moving defendant to obtain a fair trial. Before permitting the introduction in evidence of such records, the judge shall consider alternatives to introduction, including an agreed to stipulation or introduction of redacted portions of the record.
(h) Preservation of Records for Appeal. Records produced in response to a Mass. R. Crim. P. 17(a)(2) summons shall be retained by the clerk of court until the conclusion of any direct appeal following a trial or dismissal of a case.
Introduction. In criminal cases, pretrial discovery is limited to information and objects in the possession or control of the parties and is governed principally by Mass. R. Crim. P. 14. When a party seeks access in advance of trial to books, papers, documents, or objects (records, privileged or nonprivileged) that are in the hands of a third party, such requests are governed by Mass. R. Crim. P. 17(a)(2). Commonwealth v. Odgren , 455 Mass. 171, 186–187 (2009) (both prosecutor and defense counsel must follow the procedures contained in Mass. R. Crim. P. 17 and obtain prior judicial approval to obtain access before trial to any records in the hands of a third party, whether privileged or not). See Commonwealth v. Lampron , 441 Mass. 265, 268 (2004). See also Commonwealth v. Hart , 455 Mass. 230, 243 (2009) (Mass. R. Crim. P. 17[a] is the exclusive method to obtain records from a third party prior to trial); Commonwealth v. Hunt, 86 Mass. App. Ct. 494, 495 (2014) (affidavit accompanying motion for records must meet the specificity requirements of (Mass. R. Crim. P. 17[a]). When Mass. R. Crim. P. 17(a)(2) has been satisfied and a nonparty has produced records to the court, the protocol set forth in Commonwealth v. Dwyer , 448 Mass. 122, 139–147 (2006), governs review or disclosure of presumptively privileged records by defense counsel. To reference the forms promulgated by the Supreme Judicial Court, see http://perma.cc/45WM-J4NE.
At trial, a defendant seeking records must proceed under Mass. R. Crim. P. 17(a)(2). The Commonwealth may proceed under either Mass. R. Crim. P. 17(a)(2) or G. L. c. 277, § 68 . See Commonwealth v. Hart, 455 Mass. at 243 (a subpoena issued under G. L. c. 277, § 68 , may only request a third party to produce records to a court on the day of the trial).
Subsection (a). This subsection is derived from Commonwealth v. Lampron , 441 Mass. 265, 268 (2004). See also Commonwealth v. Odgren , 455 Mass. 171, 187 (2009) (Lampron procedures apply to both prosecution and defense).
Subsection (b). This subsection is derived generally from Commonwealth v. Lampron , 441 Mass. 265, 268 (2004), and Commonwealth v. Dwyer , 448 Mass. 122, 148 (2006). “The Commonwealth’s inability to locate either the record holder or the third-party subject shall not delay the Lampron hearing.” Id. at 148 n.2.
In Commonwealth v. Lampron , 441 Mass. 265 (2004), the Supreme Judicial Court followed Federal law as enunciated in United States v. Nixon , 418 U.S. 683, 699–700 (1974), and held that a party moving to summons documents pursuant to Mass. R. Crim. P. 17(a)(2) prior to trial must establish good cause by showing the following:
“(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general ‘fishing expedition.’”
Commonwealth v. Lampron, 441 Mass. at 269. Accord Commonwealth v. Mitchell , 444 Mass. 786, 792 (2005) (summarizing these requirements as “relevance, admissibility, necessity, and specificity”). See Commonwealth v. Olivier , 89 Mass. App. Ct. 836, 844–846 (2016) (trial judge correctly denied motion for release of privileged records where defendant failed to present evidence of connection between diagnosis in records and victim’s actions); Commonwealth v. Rivera , 83 Mass. App. Ct. 581, 588–589 (2013) (judge properly denied defendant’s pretrial motion seeking access to complainant’s preabuse mental health records based only on belief that they might yield evidence concerning her credibility).
“Presumptively privileged records are those prepared in circumstances suggesting that some or all of the records sought are likely protected by a statutory privilege, for example, a record prepared by one who holds himself or herself out as a psychotherapist, see G. L. c. 233, § 20B ; a social worker, see G. L. c. 112, § 135B ; a sexual assault counsellor, see G. L. c. 233, § 20J ; or a domestic violence victims’ counsellor, see G. L. c. 233, § 20K .”
Commonwealth v. Dwyer, 448 Mass. at 148. Because the judge will not have viewed any of the records sought by the defendant, “the judge shall make such determination based on the identity of the record holder or record preparer (if known) and any additional information adduced at the Lampron hearing. The defendant shall have the burden of showing that records are not presumptively privileged.” Id. at 148 n.3.
“Some records, although not presumptively privileged, may contain information of a personal or confidential nature, such as medical or school records. See, e.g., G. L. c. 71B, § 3 (special education records); G. L. c. 111, §§ 70, 70E (hospital records). The judge may, in his or her discretion, order such records produced subject to an appropriate protective order.” Commonwealth v. Dwyer, 448 Mass. at 149 n.5.
Subsection (d). This subsection is derived generally from Commonwealth v. Dwyer , 448 Mass. 122, 149 (2006). A judge may order that even nonpresumptively privileged records be subject to an appropriate protective order. Id. at 149 n.5 (Appendix).
“The Commonwealth may inspect or copy any records if prior consent is given by the record holder and third-party subject (where applicable).” Id. at 149 n.7. With respect to nonpresumptively privileged records, Subsection (d)(1), a party may have production obligations pursuant to Mass. R. Crim. P. 14 or other pretrial agreements. See Commonwealth v. Mitchell , 444 Mass. 786, 800 (2005).
Subsection (e). This subsection is taken nearly verbatim from Commonwealth v. Dwyer , 448 Mass. 122, 149–150 (2006).
Subsection (f). This subsection is taken nearly verbatim from Commonwealth v. Dwyer , 448 Mass. 122, 150 (2006).
Subsection (g). This subsection is taken nearly verbatim from Commonwealth v. Dwyer , 448 Mass. 122, 150 (2006).
Subsection (h). This subsection is taken nearly verbatim from Commonwealth v. Dwyer , 448 Mass. 122, 150 (2006).
Section 1109. View
(1) Upon motion in civil and criminal cases, the court has discretion to allow the jury, accompanied by the judge, or, in a matter tried without a jury, the judge to take a view of the premises or place in question or any property matter or thing relative to the case.
(2) In a limited class of civil cases, a party has the right, upon request, to a view.
(b) Conduct. Counsel may point out the essential features of the place or thing that is the subject of the view, but no comment or discussion is permitted. No witnesses are heard. Jurors are not permitted to ask questions. The presence of the defendant in a criminal case is left to the judge’s discretion.
(c) Status. Observations made by the jury or by the judge on a view may be used by the finder of fact in making a decision.
(d) Costs. In a civil case, the expenses of taking a view shall be paid by the party who makes the motion or in accordance with an agreement between or among some or all of the parties, and may be taxed as costs if the party or parties who advanced them prevails. In a criminal case, the expenses of taking a view shall be paid by the Commonwealth.
Subsection (a)(1). This subsection is derived from Commonwealth v. Gedzium , 259 Mass. 453, 462 (1927); Madden v. Boston Elevated Ry. Co. , 284 Mass. 490, 493–494 (1933); Commonwealth v. Gomes , 459 Mass. 194, 201–202 (2011); and G. L. c. 234, § 35 . In the administrative context, the judge or fact finder also may have the right to conduct a view. See, e.g., G. L. c. 152, § 2 (Authority of the Division of Industrial Accidents to “make all necessary inspections and investigations relating to causes of injuries for which compensation may be claimed . . . .”).
The court has the discretion to take a view any time after the jury is sworn. See Yore v. City of Newton , 194 Mass. 250, 253 (1907) (court permitted jury to take a view after deliberations had begun).
The court may exercise its discretion to deny a motion for a view when visiting a particular location would not fairly represent the way it appeared or the conditions that existed at the time of the events that are the subject of the trial. See Commonwealth v. Cataldo , 423 Mass. 318, 327 n.8 (1996). However, even though the appearance of premises or a thing has changed, if the premises or thing in its altered condition would be helpful to the jury in understanding the evidence the court has discretion to permit a view. See Commonwealth v. Welansky , 316 Mass. 383, 401–402 (1944) (there was no error in permitting the jury to take a view of a nightclub after a fire had severely damaged it and caused the death of numerous persons who were trapped inside). The court may deny a motion for a view because it will not contribute to the jury’s understanding of the evidence at trial. See Commonwealth v. Cambell , 378 Mass. 680, 704–705, cert. denied, 488 U.S. 847 (1979).
Subsection (b). This subsection is derived from Commonwealth v. Dascalakis , 246 Mass. 12, 29–30 (1923). “Generally, an impropriety occurring on a view may be cured by cautionary instructions.” Commonwealth v. Cresta , 3 Mass. App. Ct. 560, 562 (1975), citing Commonwealth v. Madeiros , 255 Mass. 304, 313 (1926).
The defendant has no right to be present at a view; the judge has discretion to impose reasonable restrictions on the defendant’s presence and conduct. Commonwealth v. Corliss , 470 Mass. 443, 448 (2015). “A defendant is not entitled of right to confer with his counsel during a view.” Commonwealth v. Gagliardi , 29 Mass. App. Ct. 225, 237 (1990).
Subsection (c). This subsection is derived from Commonwealth v. Curry , 368 Mass. 195 (1975), where the Supreme Judicial Court stated that
“[t]he chief purpose (of a view) is to enable the jury to understand better the testimony which has or may be introduced. The function of the jury . . . is simply to observe. Although what is seen on the view may be used by the jury in reaching their verdict, in a strict and narrow sense a view may be thought not to be evidence.” (Citations omitted.)
Id. at 197–198. See also Berlandi v. Commonwealth , 314 Mass. 424, 451 (1943) (“A view is not technically evidence and subject to all the principles applicable to evidence . . . [but] it inevitably has the effect of evidence” [citations and quotation omitted].); Commonwealth v. Perryman , 55 Mass. App. Ct. 187, 193–194 n.1 (2002) (a view is analogous to a courtroom demonstration or the use of a chalk; observations made on a view can be used “to illustrate testimony and assist the jury in weighing the evidence they hear” so long as the conditions are similar to the circumstances of the matter to be proved).
Subsection (d). This subsection is derived from G. L. c. 234, § 35 .
Section 1110. Consciousness of Guilt or Liability
(a) Criminal Cases. In a criminal case, the Commonwealth may offer evidence of a defendant’s conduct that occurred subsequent to the commission of the crime if
(1) the evidence reflects a state of consciousness of guilt;
(2) the evidence supports the inference that the defendant committed the act charged;
(3) the evidence is, with other evidence, together with reasonable inferences, sufficient to prove guilt; and
(4) the inflammatory nature of the conduct does not substantially outweigh its probative value.
Evidence of consciousness of guilt alone is not sufficient to support a verdict or finding of guilt. The judge should instruct the jury accordingly.
(b) Civil Cases. Subject to Sections 407–411 , in a civil case, a party may offer evidence of another party’s conduct that occurred subsequent to the commission of the alleged act or acts that give rise to the cause of action if the evidence
(1) reflects a state of consciousness of liability of that party;
(2) supports the inference that the party against whom the evidence is offered is liable; and
(3) is, with other evidence, together with reasonable inferences, sufficient to prove liability.
Evidence of consciousness of liability alone cannot sustain the burden to establish liability. The judge should instruct the jury accordingly.
(c) Rebuttal. The party against whom the evidence is offered has the right to offer evidence explaining the reason or reasons for the conduct to negate any adverse inference.
Subsection (a). This subsection is derived from Commonwealth v. Vick , 454 Mass. 418, 423 (2009), and Commonwealth v. Toney , 385 Mass. 575, 584–585 & n.4 (1982). Where self-defense is an issue and the defendant objects to an instruction on consciousness of guilt, the trial judge should first consider whether to instruct on flight as evidence of consciousness of guilt. If the instruction is given, the judge should focus first on possible innocent reasons for flight, and that the conduct does not necessarily reflect feelings of guilt, but may be consistent with self-defense. Commonwealth v. Morris , 465 Mass. 733, 738–739 (2013). The Commonwealth may properly argue consciousness of guilt even if a jury instruction is not requested or not given. Commonwealth v. Franklin , 465 Mass. 895, 915 (2013). Compare Section 1111, Missing Witness .
Illustrations. The following conduct may be offered as evidence of consciousness of guilt:
– flight itself, regardless of whether the police were actively searching for the defendant, Commonwealth v. Figueroa , 451 Mass. 566, 579 (2008);
– flight after discovery by the party that he or she was about to be arrested or charged with an offense, Commonwealth v. Jackson , 391 Mass. 749, 758 (1984);
– attempted escape while awaiting trial, Commonwealth v. Fritz , 472 Mass. 341, 350 (2015);
– flight from a defendant’s “usual environs,” Commonwealth v. Siny Van Tran , 460 Mass. 535, 553 (2011);
– an intentionally false statement made before or after arrest, Commonwealth v. Lavalley , 410 Mass. 641, 649–650 (1991);
– intentional attempts to intimidate, coerce, threaten, or bribe a witness, Commonwealth v. Vick, 454 Mass. at 423; Commonwealth v. Toney , 385 Mass. 575, 584 n.4 (1982);
– alteration of a defendant’s appearance after a crime to conceal physical characteristics, Commonwealth v. Carrion, 407 Mass. at 277; or
– an intentional attempt to conceal, destroy, or falsify evidence, Commonwealth v. Stuckich , 450 Mass. 449, 453 (2008).
The following conduct should not be admitted as evidence of consciousness of guilt:
– flight, where the issue is misidentification and there is no dispute that the person who fled the scene committed the offense, Commonwealth v. Bastaldo , 472 Mass. 16, 33–36 (2015); cf. Commonwealth v. Lopez , 87 Mass. App. Ct. 642, 647 (2015) (flight may be admitted as evidence of consciousness of guilt even when identification is an issue so long as it is not certain person fleeing committed the crime);
– evidence that the defendant lied during trial testimony, Commonwealth v. Edgerly , 390 Mass. 103, 110 (1983) (disfavoring such evidence; “[c]omment to a jury on the consequences of a criminal defendant’s lying in the course of his testimony must be made with care, and customarily should be avoided because it places undue emphasis on only one aspect of the evidence”);
– a defendant’s failure to appear at trial, except where the Commonwealth can show the defendant had knowledge of the scheduled date, Commonwealth v. Hightower , 400 Mass. 267, 269 (1987); Commonwealth v. Addy , 79 Mass. App. Ct. 835, 841 (2011); see also Commonwealth v. Zammuto , 89 Mass. App. Ct. 80, 82–83 (2016); cf. Commonwealth v. Muckle , 59 Mass. App. Ct. 631, 639–640 (2003) (where defendant is defaulted midtrial, judge should conduct voir dire to determine if Commonwealth can show requisite foundation); or
In a charge of murder, consciousness of guilt “is rarely relevant to the issue of premeditation,” Commonwealth v. Dagenais , 437 Mass. 832, 843–844 (2002), and it should not be used as proof that a homicide was murder rather than manslaughter. See Commonwealth v. Clemente , 452 Mass. 295, 334 (2008); Commonwealth v. Lowe , 391 Mass. 97, 108 n.6 (1984); Commonwealth v. Niland , 45 Mass. App. Ct. 526, 529 (1998). However, in a homicide case, consciousness-of-guilt evidence may be “relevant to an assessment of the defendant’s mental state and whether he was criminally responsible.” Commonwealth v. Chappell , 473 Mass. 191, 207 (2015).
Jury Instruction on Evidence of Consciousness of Guilt. If evidence of consciousness of guilt is admitted, the court should instruct the jury (1) that they are not to convict the defendant on the basis of the offered evidence alone, and (2) that they may, but need not, consider such evidence as one of the factors tending to prove the guilt of the defendant. Upon request, the jury must be further instructed (1) that the conduct does not necessarily reflect feelings of guilt, since there are numerous reasons why an innocent person might engage in the conduct alleged, and (2) that even if the conduct demonstrates feelings of guilt, it does not necessarily mean that the defendant is guilty in fact, because guilty feelings are sometimes present in innocent people. See Commonwealth v. Toney , 385 Mass. 575, 584–585 (1982); Commonwealth v. Estrada , 25 Mass. App. Ct. 907, 908 (1987). See also Commonwealth v. Vick , 454 Mass. 418, 424 (2009).
Evidence of Consciousness of Innocence. “Consciousness of innocence is a subject properly left to the give and take of argument, without jury instructions.” Commonwealth v. Lam , 420 Mass. 615, 619–620 (1995). In some instances, however, such evidence is not admissible. See Commonwealth v. Cassidy , 470 Mass. 201, 218–219 (2014) (judge properly excluded evidence of a telephone call and note to explain reason for fleeing); Commonwealth v. Martinez , 437 Mass. 84, 88 (2002) (offer to submit to polygraph inadmissible).
Subsection (b). This subsection is derived from Sheehan v. Goriansky , 317 Mass. 10, 16–17 (1944), and City of Boston v. Santosuosso , 307 Mass. 302, 349 (1940). Evidence of consciousness of liability alone cannot sustain the burden to establish liability. Olofson v. Kilgallon , 362 Mass. 803, 806 (1973); Miles v. Caples , 362 Mass. 107, 114 (1972).
Illustrations. The following conduct may be offered as evidence of consciousness of liability:
– providing false or inconsistent statements, McNamara v. Honeyman , 406 Mass. 43, 54 n.10 (1989);
– leaving the scene of an accident without identifying himself or herself, Olofson v. Kilgallon , 362 Mass. 803, 806 (1973);
– providing a false name or statement to police, Parsons v. Ryan , 340 Mass. 245, 248 (1960);
– providing intentionally false testimony, Sheehan v. Goriansky , 317 Mass. 10, 16–17 (1944);
– transferring property immediately prior to the beginning of litigation, Credit Serv. Corp. v. Barker , 308 Mass. 476, 481 (1941);
– suborning a witness to provide false testimony, bribing a juror, or suppressing evidence, Bennett v. Susser , 191 Mass. 329, 331 (1906); or
– destroying potential evidence, Gath v. M/A-Com, Inc. , 440 Mass. 482, 489–491 (2003).
Cross-Reference: Section 407, Subsequent Remedial Measures ; Section 408, Compromise Offers and Negotiations in Civil Case ; Section 409, Expressions of Sympathy in Civil Cases; Offers to Pay Medical and Similar Expenses ; Section 410, Pleas, Offers of Pleas, and Related Statements ; Section 411, Insurance ; Section 1102, Spoliation or Destruction of Evidence .
Jury Instruction on Evidence of Consciousness of Liability. Upon request, the judge should instruct the jury that they may, but are not required to, draw an inference; that any such inference must be reasonable in light of all the circumstances; that the weight of the evidence is for the jury to decide; that there may be innocent explanations for the conduct; and that the conduct does not necessarily reflect feelings of liability or responsibility. See Commonwealth v. Toney , 385 Mass. 575, 584–585 (1982) (it was for jury to decide which explanation for defendant’s departure from scene was most credible). See also Sheehan v. Goriansky , 317 Mass. 10, 16–17 (1944) (whether evidence of defendant’s conduct indicated consciousness of liability was for jury to decide); Hall v. Shain , 291 Mass. 506, 512 (1935) (jury to decide whether driver’s failure to contact police after accident was because of consciousness of liability).
Section 1111. Missing Witness
(a) Argument by Counsel. Counsel is not permitted to make a missing-witness argument without first obtaining judicial approval; if approval is granted, the court must give a missing witness instruction.
(b) Jury Instruction. The court may instruct the jury that an adverse inference may be drawn from a party’s failure to call a witness when
(1) the witness is shown to be available;
(2) the witness is friendly, or at least not hostile, to the party;
(3) the witness is expected to give noncumulative testimony of distinct importance to the case; and
(4) there is no logical or tactical explanation for the failure to call the witness.
Subsection (a). This subsection is derived from Commonwealth v. Pena , 455 Mass. 1, 16–17 (2009); Commonwealth v. Saletino , 449 Mass. 657, 670 (2007); and Commonwealth v. Ortiz , 61 Mass. App. Ct. 468, 471 (2004). See Hoffman v. Houghton Chem. Corp. , 434 Mass. 624, 640 (2001) (same principles apply in civil cases). The missing witness argument and the missing witness instruction are interrelated. The preferred practice is for counsel and the court to discuss the matter of a missing witness argument before the closing arguments. See Commonwealth v. Williams , 450 Mass. 894, 907 (2008). If the trial judge decides not to give the instruction, counsel is not permitted to make the argument. Commonwealth v. Saletino, 449 Mass. at 670–672.
In Commonwealth v. Saletino , 449 Mass. 657 (2007), the Supreme Judicial Court explained the critical distinction between argument by counsel that the evidence is insufficient, and the missing witness argument:
“A defendant has wide latitude in every case to argue that the Commonwealth has failed to present sufficient evidence and, in this sense, that there is an ‘absence’ of proof or that evidence is ‘missing.’ That is distinctly different from a missing witness argument, however. In the former, the defendant argues that the evidence that has been produced is inadequate; the defendant may even legitimately point out that a specific witness or specific evidence has not been produced; but the defendant does not argue or ask the jury to draw any conclusions as to the substance of the evidence that has not been produced. In the latter, the defendant points an accusatory finger at the Commonwealth for not producing the missing witness and urges the jury to conclude affirmatively that the missing evidence would have been unfavorable to the Commonwealth. That is the essence of the adverse inference.”
Id. at 672. Accord Commonwealth v. Pena, 455 Mass. at 17.
Subsection (b). This subsection is derived from Commonwealth v. Saletino , 449 Mass. 657, 668 (2007), and Commonwealth v. Anderson , 411 Mass. 279, 280 n.1 (1991). See also Commonwealth v. Franklin , 366 Mass. 284, 292–295 (1974). The instruction permits the jury, “if they think reasonable in the circumstances, [to] infer that the person, had he been called, would have given testimony unfavorable to the party.” Id.
Whether to allow argument and give a missing witness instruction is within the discretion of the trial judge, even when the foundation requirements are met. Commonwealth v. Thomas , 429 Mass. 146, 151 (1999). It is a highly fact-specific decision, and it cannot be insisted on as a matter of right. Id. “Because the inference, when it is made, can have a seriously adverse effect on the noncalling party—suggesting, as it does, that the party has willfully attempted to withhold or conceal significant evidence—it should be invited only in clear cases, and with caution.” Commonwealth v. Williams , 450 Mass. 894, 900–901 (2008), quoting Commonwealth v. Schatvet , 23 Mass. App. Ct. 130, 134 (1986). If the instruction is given, the court must take care not to negate its effect by instructing the jury not to consider anything beyond the evidence actually introduced at trial. See Commonwealth v. Remedor , 52 Mass. App. Ct. 694, 701 (2001).
Foundation for the Instruction. In Commonwealth v. Broomhead , 67 Mass. App. Ct. 547 (2006), the court stated as follows:
“In order to determine whether there has been a sufficient foundation for a missing witness instruction, we look at (1) whether the case against the defendant is [so strong that,] faced with the evidence, the defendant would be likely to call the missing witness if innocent; (2) whether the evidence to be given by the missing witness is important, central to the case, or just collateral or cumulative; (3) whether the party who fails to call the witness has superior knowledge of the whereabouts of the witness; and (4) whether the party has a ‘plausible reason’ for not producing the witness.”
Id. at 552, quoting Commonwealth v. Alves , 50 Mass. App. Ct. 796, 802 (2001). Even where the foundational requirements are met, the judge has discretion to decline to give the instruction and refuse to permit the argument if the judge finds that an adverse inference is not warranted. Commonwealth v. Pena , 455 Mass. 1, 17 n.15 (2009).
Is the “Missing Witness” Available? Availability is “the likelihood that the party against whom the inference is to be drawn would be able to procure the missing witness’[s] physical presence in court.” Commonwealth v. Happnie , 3 Mass. App. Ct. 193, 197 (1975). Availability does not necessarily require proof of “actual physical whereabouts,” but the court will look at whether the party made reasonable efforts to produce the witness under the circumstances. Commonwealth v. Luna , 46 Mass. App. Ct. 90, 95–96 nn.3 & 6 (1998). Compare Commonwealth v. Smith , 49 Mass. App. Ct. 827, 830–831 (2000) (basis to conclude that witnesses lived in area and no showing of impediment to obtaining their testimony), with Commonwealth v. Ortiz , 67 Mass. App. Ct. 349, 350 (2006) (defendant not entitled to missing witness instruction where he failed to show that prosecutor had knowledge of witness’s whereabouts).
A missing witness instruction is not warranted where a witness is equally available to both sides. Commonwealth v. Cobb , 397 Mass. 105, 108 (1986). For example, in Commonwealth v. Hoilett , 430 Mass. 369, 376 (1999), the court ruled the instruction was not warranted because both sides had the same contact information for a witness who was not aligned with either side. The instruction may properly be given where the missing witness is more friendly to one side than the other, even if the witness was available to the party requesting the instruction. See Commonwealth v. Thomas , 429 Mass. 146, 151–152 (1999). See also Hoffman v. Houghton Chem. Corp. , 434 Mass. 624, 641 (2001) (defendant corporation’s vice president not absent where plaintiff could have subpoenaed him to testify).
Is the “Missing Witness” Friendly, or At Least Not Hostile, to the Party? “The jury should ordinarily be instructed not to draw inferences from the neglect of a defendant to call witnesses, unless it appears to be within his power to call others than himself, and unless the evidence against him is so strong that, if innocent, he would be expected to call them.” Commonwealth v. Finnerty , 148 Mass. 162, 167 (1889). See Commonwealth v. Rollins , 441 Mass. 114, 118–119 (2004); Commonwealth v. Thomas , 429 Mass. 146, 152 (1999). See also Grady v. Collins Transp. Co. , 341 Mass. 502, 509 (1960) (“The plaintiff’s testimony was uncorroborated and was opposed by that of three witnesses, which, if accepted, showed his admitted fault to be the cause of the accident. The names of the plaintiff’s companions had been given to his counsel. There was very substantial likelihood that, notwithstanding the nine year interval, one or more of them lived in Worcester or near by [sic].”).
Would the “Missing Witness” Give Noncumulative Testimony of Importance? A missing witness instruction is warranted where the witness would be expected to give testimony “of distinct importance to the case.” Commonwealth v. Schatvet , 23 Mass. App. Ct. 130, 134 (1986). In determining the potential importance of the missing witness’s testimony, the court may consider whether the case against the party is so strong that the party would be likely to call the missing witness to rebut it. Commonwealth v. Broomhead , 67 Mass. App. Ct. 547, 552 (2006). See Commonwealth v. Rollins, 441 Mass. at 119 (proper to give missing witness instruction where defendant failed to call “good friend” who was with him at time of his arrest for OUI); Commonwealth v. Caldwell , 36 Mass. App. Ct. 570, 581–582 (1994) (defendant failed to call as alibi witness a cousin who supposedly let him into apartment at time of charged attack). Compare Commonwealth v. Graves , 35 Mass. App. Ct. 76, 81 (1993) (failure to call alibi witness who was “central” to defense), with Commonwealth v. Thomas , 439 Mass. 362, 370 (2003) (absent witness’s testimony would have been “merely corroborative”).
Is There an Explanation for Failure to Call a “Missing Witness”? “If the circumstances, considered by ordinary logic and experience, suggest a plausible reason for nonproduction of the witness, the jury should not be advised of the inference.” Commonwealth v. Anderson , 411 Mass. 279, 282–283 (1991). Thus, it is not error to refuse the instruction where it appears the witness may have been withheld because of his or her prior criminal record. Commonwealth v. Saletino , 449 Mass. 657, 668–669 (2007). See Commonwealth v. Figueroa , 413 Mass. 193, 197 (1992) (witnesses of limited mental capacity); Commonwealth v. Ortiz , 61 Mass. App. Ct. 468, 472–473 (2004) (defense counsel believed, albeit mistakenly, that witness had been subpoenaed and had failed to appear such that further efforts to compel his presence would be futile); Commonwealth v. Gagliardi , 29 Mass. App. Ct. 225, 244 (1990) (witness was reluctant to testify because of fear of intimidation by persons related to defendant). Contrast Brownlie v. Kanzaki Specialty Papers, Inc. , 44 Mass. App. Ct. 408, 420 (1998) (affidavit of company official stating only that “compelling business reasons” mandated his return to Japan did not provide judge with plausible explanation for his absence).
Criminal Cases. The judge must inform the jury in a criminal case that they may not draw an adverse inference from the defendant’s failure to call a witness unless and until they find beyond a reasonable doubt that if the witness had been called he or she would have given testimony unfavorable to the defendant. Commonwealth v. Niziolek , 380 Mass. 513, 522 (1980). The inference may also be applied to a situation where evidence is “missing.” See Commonwealth v. Kee , 449 Mass. 550, 558 (2007).
Cross-Reference: Section 1102, Spoliation or Destruction of Evidence .
Section 1112. Eyewitness Identification
(a) Eyewitness Identification Generally. The admissibility of eyewitness identification evidence is governed both by Article 12 of the Massachusetts Declaration of Rights and common-law principles of fairness.
(b) Out-of-Court Identification.
(1) Photographic Array.
(A) Suppression of Identification. Identification based on a pretrial photographic procedure is not subject to suppression unless the procedures employed in showing the photographic array were unnecessarily suggestive and conducive to mistaken identification. In making this ruling, the trial judge should consider
(i) whether the police properly informed the party making the identification that (1) the wrongdoer may or may not be in the depicted photographs, (2) it is just as important to clear a person from suspicion as to identify a person as the wrongdoer, (3) the depicted individuals may not appear exactly as they did on the date of the incident because features such as weight and head and facial hair may change, and (4) the investigation will continue regardless of whether an identification is made;
(ii) whether the party making the identification was asked to state how certain he or she is of any identification;
(iii) whether the array was composed of persons who possess reasonably similar features and characteristics; and
(iv) whether the array contained at least five fillers for every photograph of the suspect.
(B) Suggestive Police Procedures. If the trial judge finds that the police procedures employed in the showing of the photographic array were so unnecessarily suggestive and conducive to mistaken identity as to deny the defendant due process of law, the Commonwealth may offer evidence of the identification only if it establishes by clear and convincing evidence that the proffered identification has a source independent of the suggestive photographic array.
(C) Admissibility of Photographs. Police photographs used in an out-of-court identification may be admitted if (i) the prosecution demonstrates some need for their introduction, (ii) the photographs are offered in a form that does not imply a prior criminal record, and (iii) the manner of their introduction does not call attention to their source.
(2) Lineup. The considerations present with photographic arrays also apply to identifications resulting from lineups.
(3) Showup. Showup identifications are generally disfavored. However, for good cause shown, the trial judge may admit evidence of such an identification if the showup was not unnecessarily or impermissibly suggestive. This determination involves an inquiry of whether the Commonwealth has shown that police had good cause to use a one-on- one identification procedure and whether police avoided any special elements of unfairness.
(c) In-Court Identification.
(1) Where There Has Been an Out-of-Court Identification.
(A) Generally, an in-court identification of the defendant by an eyewitness who was present during commission of the crime is admissible if the eyewitness (i) participated before trial in an identification procedure and (ii) has made an unequivocal, positive identification of the defendant.
(B) If the out-of-court identification is determined to have been the result of unnecessarily suggestive police procedures, an in-court identification is not admissible unless the Commonwealth establishes, by clear and convincing evidence, that it has a source independent of and unrelated to the unnecessarily suggestive out-of-court identification.
(C) If the suggestiveness did not arise from police conduct, and the out-of-court identification was suppressed under common-law principles of fairness, a subsequent in-court identification cannot be admitted.
(2) Where There Has Been No Out-of-Court Identification.
(A) If an eyewitness who was present during the commission of a crime did not participate before trial in an identification procedure or has made something less than an unequivocal, positive identification, an in-court identification is not admissible unless there is good reason for its admission.
(B) In cases subject to Subsection (c)(2)(A), the Commonwealth must move in limine to admit the in-court identification. The Commonwealth has the burden of production on whether there is good reason for admitting the in- court identification. The defendant has the burden of persuasion to establish that an in-court identification would be unnecessarily suggestive and that there is not good reason for it.
(d) Testimony of Third-Party Observer. If the eyewitness testifies at trial and is subject to cross-examination, a third party who observed the eyewitness’s out-of-court identification may testify about that identification (1) where the eyewitness cannot identify a defendant at trial but acknowledges having made an out-of-court identification of the defendant, or (2) where the eyewitness denies or fails to remember having made an identification. The third party’s testimony about the identification may not be admitted until after the Commonwealth has questioned the eyewitness about the identification. The third party’s testimony about the out-of-court identification is admissible as substantive evidence.
(e) Expert Testimony. Expert testimony on the issue of eyewitness identification is admissible at the discretion of the trial judge.
(f) Jury Instruction.
(1) Positive Eyewitness Identification. Where the jury heard eyewitness evidence that positively identified the defendant and the identification of the defendant as the person who committed or participated in the alleged crime is contested, the judge should give the Model Eyewitness Identification Instruction.
(2) Partial Eyewitness Identification. Upon request, where an eyewitness partially identified the defendant, the judge should give some variation of the Model Eyewitness Identification Instruction that includes information about the risk of an honest but mistaken observation.
(3) Cross-Racial Identification. The judge should omit the cross-racial component of the Model Eyewitness Identification Instruction only if all parties agree that there was no cross-racial identification. Where the instruction is given, the judge has discretion to add references to ethnicity.
(4) Failure to Identify or Inconsistent Identification. The judge should instruct the jury to consider whether a witness ever failed to identify the defendant or made an identification that was inconsistent with the identification that the witness made at the trial.
(5) Preliminary/Contemporaneous Instruction. Upon request, before opening statements or immediately before or after the testimony of an identifying witness, the judge must give the Preliminary/Contemporaneous Instruction.
In both Crayton and Walker, the Supreme Judicial Court explained that Massachusetts law follows a per se rule of exclusion for unnecessarily suggestive identifications and, as a result, is more favorable to the defendant than Federal law, which permits the admission of such identifications so long as the judge finds that they are reliable under the totality of the circumstances. In Crayton, the court added that, in Massachusetts, an identification made under “‘especially suggestive circumstances’ even where the circumstances did not result from improper police activity is also in contrast with the United States Supreme Court jurisprudence” (quotation and citations omitted). Commonwealth v. Crayton, 470 Mass. at 235. Because Massachusetts constitutional and common law is more favorable to the defendant, there is no need to separately consider Federal law on questions relating to the admission of eyewitness identification.
In Walker, the court added that
“[b]ecause eyewitness identification is the greatest source of wrongful convictions but also an invaluable law enforcement tool in obtaining accurate convictions, and because the research regarding eyewitness identification procedures is complex and evolving, we shall convene a study committee to consider how we can best deter unnecessarily suggestive procedures and whether existing model jury instructions provide adequate guidance to juries in evaluating eyewitness testimony.”
Commonwealth v. Walker, 460 Mass. at 604 n.16. The study committee filed its report on July 25, 2013. See Supreme Judicial Court Study Group on Eyewitness Evidence, Report and Recommendations to the Justices , at http://perma.cc/52L8-C6SQ. See also Identifying the Culprit: Assessing Eyewitness Identification (2014) (report of the National Research Council of the National Academies of Science; prepublication copy available at http://perma.cc/6SRE-8UHR).
Ordinarily, these principles do not apply to the identification of inanimate objects such as an item of clothing or a vehicle, but “in an extreme case” an unnecessarily suggestive identification of such an object could violate due process. See Commonwealth v. Bresilla , 470 Mass. 422, 429 (2015).
Subsection (b)(1)(A)(i). This subsection is derived from Commonwealth v. Walker , 460 Mass. 590, 600 (2011), making mandatory the protocol adopted in Commonwealth v. Silva-Santiago , 453 Mass. 782, 797–798 (2009). While the Supreme Judicial Court has not yet required a double-blind procedure where the identification procedure is conducted by a law enforcement officer who does not know the identity of the suspect, it has recognized that such a process is the better practice to eliminate the risk of conscious or unconscious suggestion. Id. at 797.
Subsection (b)(1)(A)(ii). This subsection is derived from Commonwealth v. Silva-Santiago , 453 Mass. 782, 797–798 (2009).
Subsection (b)(1)(A)(iii). This subsection is derived from Commonwealth v. Silva-Santiago , 453 Mass. 782, 795 (2009). See, e.g., Commonwealth v. Arzola , 470 Mass. 809, 813 (2015) (after victim had given description of assailant that included a gray shirt, identification was not unnecessarily suggestive where victim explicitly stated that his identification was based on defendant’s facial features, hair, complexion, and eyes, even though defendant was the only subject wearing gray shirt).
Subsection (b)(1)(A)(iv). This subsection is derived from Commonwealth v. Walker , 460 Mass. 590, 602–603 (2011). Unless there are exigent circumstances, the police should not show a witness a photographic array that contains fewer than five fillers for every suspect photograph. Id. at 603–604.
Subsection (b)(1)(B). This subsection is derived from Commonwealth v. Johnson , 473 Mass. 594 (2016), and Commonwealth v. Warren , 403 Mass. 137, 139 (1988). Cf. Commonwealth v. Forte , 469 Mass. 469, 477 (2014).
In Johnson, the Supreme Judicial Court indicated that it will, in an appropriate case, determine whether the reasoning in Commonwealth v. Crayton , 470 Mass. 228 (2014), and Commonwealth v. Collins , 470 Mass. 255 (2014), dictates elimination or revision of the independent-source doctrine. Commonwealth v. Johnson, 473 Mass. at 602–603.
Subsection (b)(1)(C). This subsection is derived from Commonwealth v. Cruz , 445 Mass. 589, 592 (2005).
Subsection (b)(3). This subsection is derived from Commonwealth v. Martin , 447 Mass. 274, 279 (2006). See also Commonwealth v. Crayton , 470 Mass. 228, 235 (2014); Commonwealth v. Amaral , 81 Mass. App. Ct. 143, 148–149 (2012). Good cause may be based on (1) the nature of the crime and concerns for public safety, (2) the need for efficient investigation in the aftermath of a crime, and (3) the usefulness of prompt confirmation of the accuracy of information. Commonwealth v. Martinez , 67 Mass. App. Ct. 788, 792 (2006). The availability of an alternative identification procedure does not necessarily make an identification unduly suggestive. Id. at 793. A delay in time between the crime and the showup is one factor in determining whether the identification is inherently or unnecessarily suggestive, but such a delay does not make it per se inadmissible. Commonwealth v. Levasseur , 32 Mass. App. Ct. 629, 636 (1990). E.g., Commonwealth v. Pearson , 87 Mass. App. Ct. 720, 724–725 (2015) (showup procedure following victim’s spontaneous encounter with perpetrator fifty-three days after assault not unnecessarily suggestive). The defendant may argue to the jury that as an alternative to a one-on-one showup, it would have been fairer to ask the witness to pick the defendant out of a group of similar individuals. Commonwealth v. Gonzalez , 28 Mass. App. Ct. 906, 908 (1989).
Subsection (c). This subsection is derived from Commonwealth v. Crayton , 470 Mass. 228, 233–245 (2014), and Commonwealth v. Collins , 470 Mass. 255, 259–267 (2014), which apply prospectively to trials that commence after December 17, 2014. In both Crayton and Collins, the Supreme Judicial Court explained that the new rule was not mandated by the State constitution, but rather was a rule of the common law.
In Crayton, the court noted that the usual “good reasons” for conducting an out-of-court showup—“concerns for public safety,” “efficient police investigation[s],” and the value of rapid confirmation of investigatory details —“will never justify an in-court showup.” Commonwealth v. Crayton, 470 Mass. at 242. In Crayton, the court recognized two circumstances that may qualify as “good reasons” for not conducting an out-of-court identification procedure: the first is “where the eyewitness was familiar with the defendant before the commission of the crime, such as where a victim testifies to a crime of domestic violence,” and the second is “where the witness is an arresting officer who was also an eyewitness to the commission of the crime, and the identification merely confirms that the defendant is merely the person who was arrested for the charged crime.” Id. In Collins, the court added that
“‘good reason’ will not often exist where a witness has earlier failed to make a positive identification. In these circumstances, for an in-court showup to be admissible, it would need to be justified by some other ‘good reason’ for permitting a suggestive identification procedure, which usually would require a showing that the in-court identification is more reliable than the witness’s earlier failure to make a positive identification and that it poses little risk of misidentification despite its suggestiveness.”
Commonwealth v. Collins, 470 Mass. at 265.
The court specifically left open whether this new rule should apply to in-court identifications of the defendant by eyewitnesses who were not present during the commission of the crime but who may have observed the defendant before or after the crime. Commonwealth v. Crayton, 470 Mass. at 242 n.17; Commonwealth v. Collins, 470 Mass. at 265 n.15.
Subsection (c)(1)(B). This subsection is derived from Commonwealth v. Johnson , 420 Mass. 458, 463 (1995), as further elaborated by Commonwealth v. Johnson , 473 Mass. 594 (2016). The prosecution may introduce only an identification that is not the product of the suggestive identification. If the out-of-court identification was the result of unnecessarily suggestive police procedures, such an identification must have an independent source, as demonstrated by clear and convincing evidence. In the 2016 Johnson case, the Supreme Judicial Court indicated that it will, in an appropriate case, determine whether the reasoning in Commonwealth v. Crayton , 470 Mass. 228 (2014), and Commonwealth v. Collins , 470 Mass. 255 (2014), dictates elimination or revision of this independent-source doctrine. Commonwealth v. Johnson, 473 Mass. at 602–603. An in-court identification will be suppressed where either the physical presence of the witness in court or the witness’s basis of knowledge for the identification was procured in violation of the Fourth Amendment to the United States Constitution. Commonwealth v. Greenwood , 78 Mass. App. Ct. 611, 621 (2011). An in-court identification will be suppressed even in the absence of constitutional concerns or police action if admitting the identification would violate common-law principles of fairness. Commonwealth v. Jones , 423 Mass. 99, 108–109 (1996).
Subsection (c)(1)(C). This subsection is derived from Commonwealth v. Johnson , 473 Mass. 594 (2016). If an out-of-court identification was declared inadmissible under common-law principles of fairness, a subsequent in-court identification by the same person cannot be admitted. The independent-source doctrine does not apply. Id. at 603.
Subsection (d). This subsection is derived from Commonwealth v. Cong Duc Le , 444 Mass. 431, 441–442 (2005). Identification testimony must be accompanied by an accusation relevant to the issue before the court or some form of exclusionary statement.
“[A]n eyewitness’s out-of-court statement identifying a defendant as the person shooting at the eyewitness’s friend is part of the context of the identification, but a statement regarding the number of shots fired, the color of the firearm, and the defendant’s behavior after the shooting goes beyond the context of the identification of the shooter” (citation omitted).
Commonwealth v. Walker , 460 Mass. 590, 608 (2011). The Commonwealth is required to question the alleged eyewitness about the prior identification before it seeks to introduce substantive evidence of that identification through a third party. This procedure is necessary to provide the defendant with adequate notice about the identification and to permit the defendant to cross-examine the alleged eyewitness. Commonwealth v. Herndon , 475 Mass. 324, 334 (2016). The opportunity to recall the declarant witness after the statement has been introduced through a third party does not satisfy the requirement of meaningful cross-examination, as it is too limited and inappropriately places a “strategic burden on the non-offering party.” Id., quoting Smith v. State , 669 A.2d 1, 8 (Del. 1995). The third-party testimony of the declarant is admissible for probative purposes even if that third party was not a percipient observer of the entire identification process, including observing the declarant in the act of identifying the particular person. Commonwealth v. Raedy , 68 Mass. App. Ct. 440, 448–449 (2007). The testimony of the third-party witness who observed the out-of-court identification is governed by Section 801(d)(1)(C), Definitions: Statements Which Are Not Hearsay: Prior Statement by Witness .
Subsection (e). This subsection is derived from Commonwealth v. Bly , 448 Mass. 473, 495 (2007). The judge must conclude the subject of the expert opinion is one on which the jurors need assistance, and that they will not be confused or misled by the testimony. The tests and circumstances on which the opinion rests must provide a basis for determining it is reliable. The testimony must be sufficiently tied to the facts of the case so that it will aid the jury. Commonwealth v. Santoli , 424 Mass. 837, 844 (1997).
Subsection (f). This subsection is derived from the Model Jury Instructions on Eyewitness Identification set forth at 473 Mass. 1051 (2015). The instructions include the Model Eyewitness Identification Instruction and the Preliminary/Contemporaneous Instruction. The Model Eyewitness Identification Instruction should be given “unless a judge determines that different language would more accurately or clearly provide comparable guidance to a jury or better promote the fairness of the trial.” Model Jury Instructions on Eyewitness Identification, 473 Mass. at 1051. For the entire statement of the justices, see https://perma.cc/KH5B-J9YQ.
Section 1113. Opening Statement and Closing Argument; Applicable to Criminal and Civil Cases
(a) Opening Statement.
(1) Purpose. The proper function of an opening statement is to outline in a general way the nature of the case that a party expects to be able to prove or support by admissible evidence. The expectation must be reasonable and grounded in good faith. Except for a prosecutor in a criminal case, a party may discuss evidence expected to be offered by an opponent. Argument for or against either party is not permitted.
(2) Directed Verdict, Finding of Not Guilty, or Mistrial. If the evidence outlined in an opening statement is insufficient as a matter of law to sustain that party’s burden of proof, or to establish a cause of action, the court has discretion to direct a verdict against that party.
(b) Closing Argument.
(1) Critical Stage. Closing argument is not evidence but is a critical stage of a trial that requires advance preparation and knowledge of the principles expressed in this section.
(2) Permissible Argument. Closing argument must be based on the evidence and the fair inferences from the evidence. It may contain enthusiastic rhetoric, strong advocacy, and excusable hyperbole. It is permissible to argue from the evidence that a witness, document, or other evidence is or is not credible, as well as to suggest the conclusions, if any, that should be drawn from the evidence. A party may urge jurors to rely on common sense and life experience as long as the subject matter at issue does not require expert knowledge. In civil actions in the Superior Court, parties, through their counsel, may suggest a specific monetary amount for damages at trial.
(3) Improper Argument. The following are not permissible in a closing argument:
(A) to misstate the evidence, to refer to facts not in evidence (including excluded matters), to use evidence for a purpose other than the limited purpose for which it was admitted, or to suggest inferences not fairly based on the evidence;
(B) to state a personal opinion about the credibility of a witness, the evidence, or the ultimate issue of guilt or liability;
(C) to appeal to the jurors’ emotions, passions, prejudices, or sympathies;
(D) to ask the jurors to put themselves in the position of any person involved in the case;
(E) to misstate principles of law, to make any statement that shifts the burden of proof, or to ask the finder of fact to infer guilt based on the defendant’s exercise of a constitutional right; and
(F) to ask the jury to disregard the court’s instructions.
(c) Objections. An objection to a statement in an opening or closing, to be timely, must be made no later than the conclusion of the opponent’s opening or closing. If counsel is dissatisfied with a judge’s curative or supplemental instruction, an additional objection must be made.
(d) Duty of the Court. A trial judge has a duty to take appropriate action to prevent and remedy error in opening statements and closing arguments.
Subsection (a). An opening statement is generally limited to fifteen minutes. See Mass. R. Crim. P. 24(a)(2); Rule 7 of the Rules of the Superior Court. The defendant may present an opening statement immediately after the plaintiff’s opening or may choose to defer his or her opening until after the close of the plaintiff’s case. See Commonwealth v. Dupree , 16 Mass. App. Ct. 600, 603 (1983) (discussing tactical considerations that may affect decision whether to defer opening until after conclusion of Commonwealth’s case).
Subsection (a)(1). This subsection is derived from Commonwealth v. Croken , 432 Mass. 266, 268 (2000); Commonwealth v. Fazio , 375 Mass. 451, 454(1978); and Posell v. Herscovitz , 237 Mass. 513, 514 (1921). There is no place for inflammatory rhetoric in an opening statement. See Commonwealth v. Siny Van Tran , 460 Mass. 535, 554 (2011); Commonwealth v. Silva , 455 Mass. 503, 514 (2009) (“The prosecutor’s opening remark, describing the killing as cold blooded, was improper argument for an opening.”). But see Commonwealth v. Johnson , 429 Mass. 745, 748 (1999). Simply because a statement made in a reasonable, good-faith belief that the evidence would materialize at trial turns out not to be true does not mean the statement constitutes error. See Commonwealth v. Fazio , 375 Mass. at 457. Accord Commonwealth v. Qualls , 440 Mass. 576, 586 (2003) (holding that absent a showing of bad faith or prejudice, the fact that certain evidence cited in an opening statement fails to materialize is not a ground for reversal). Neither unreasonableness or bad faith is to be presumed. Commonwealth v. Errington , 390 Mass. 875, 883 (1984). Just because statements of a coconspirator the prosecutor believes to be admissible against the defendant are ruled inadmissible when offered at trial does not establish that the prosecutor acted in bad faith in referring to the statements in his or her opening statement. See Commonwealth v. Morgan , 449 Mass. 343, 361 (2007).
“[A] judge, acting within his discretion, may limit the scope of the prosecutor’s and defense counsel’s opening statements to evidence counsel expects to introduce.” Commonwealth v. Truong , 34 Mass. App. Ct. 668, 671 (1993). See also Commonwealth v. Medeiros , 15 Mass. App. Ct. 913, 913–914 (1983) (no abuse of discretion in refusing to permit an opening statement when defense counsel “announced no more than a hope to puncture the Commonwealth’s case somehow through cross-examination”; but, “[i]f defense counsel reasonably expects on cross-examination to elicit specific evidence, . . . a defense opening stating such [evidence] would be proper”); Commonwealth v. Dupree , 16 Mass. App. Ct. 600, 602–603 (1983) (“To deny the defendant the right to open at the commencement of the trial without inquiry into the [content] of the proposed statement was error. To attempt to evaluate the extent of the prejudice which ensued would be an exercise in speculation, and, therefore, we reverse.”). There may be special circumstances where a statement may be so “irretrievably and fatally prejudicial to the defendant” that a prosecutor should have “no doubt” as to its admissibility before including it in the opening. See Commonwealth v. Fazio , 375 Mass. at 455, discussing Commonwealth v. Bearse , 358 Mass. 481, 487 (1987). If there is a question asked as to the existence or admissibility of evidence, the matter may be brought to the judge by way of a motion in limine. See Commonwealth v. Spencer , 465 Mass. 32, 42 (2013). Cross-Reference: Section 103(f), Rulings on Evidence, Objections, and Offers of Proof: Motions in Limine .
Disciplinary Authority. See Mass. R. Prof. C. 3.4(e), 8.4(d) (2015); Admonition No. 0051, 16 Mass. Att’y Discipline Rep. 528 (2000), available at http://perma.cc/NB7Y-7BES (in opening statement, prosecutor described evidence that he was not in a position to produce).
Subsection (a)(2). This subsection is derived from Douglas v. Whittaker , 324 Mass. 398, 399 (1949), and Commonwealth v. Lowder , 432 Mass. 92, 102 (2000). The power to direct a verdict should be exercised with “great caution” because the outline of the evidence in the opening may not always fully describe the evidence at trial. See Hubert v. Melrose-Wakefield Hosp. Ass'n , 40 Mass. App. Ct. 172, 176 (1996), quoting from Upham v. Chateau de Ville Dinner Theatre, Inc. , 380 Mass. 350, 351 n.2 (1980). Thus, in close cases, the motion should be denied. Douglas v. Whittaker, 324 Mass. at 400. However, where the facts stated do not constitute a cause of action, a verdict is properly directed because “the court and jury’s time, the public purse, and the defendant’s time and purse ought not to be wasted.” Sereni v. Star Sportswear Mfg. Corp. , 24 Mass. App. Ct. 428, 431 (1987). In a criminal case, the judge should not allow a motion for a required finding of not guilty after the opening unless the prosecutor is made aware of the problem and given an opportunity to correct it, and it is clear that the defendant cannot be lawfully convicted. Commonwealth v. Lowder, 432 Mass. at 100–101. See Island Transp. Co. v. Cavanaugh , 54 Mass. App. Ct. 650, 654 (2002) (preference for civil cases to be decided upon “sworn evidence rather than an anticipatory statement of counsel” unless opening statement fails to describe the elements of a cause of action).
Subsection (b). A party is generally allowed thirty minutes for closing argument in a civil case. Mass. R. Civ. P. 51(a). “The defendant shall present his closing argument first.” Mass. R. Crim. P. 24(a)(1). “A trial judge has broad discretion in limiting the time for closing argument.” Commonwealth v. Mahar , 6 Mass. App. Ct. 875, 875–876 (1978). See also Commonwealth v. Rocheteau , 74 Mass. App. Ct. 17, 22 (2009). “[J]udges who intend to enforce a time limit [on closing argument should] make clear to counsel before closing argument the limit to be imposed and the possibility that the judge will warn them of the time remaining.” Commonwealth v. Brown , 462 Mass. 620, 633 n.11 (2012).
The defendant in a criminal case has a right under the Sixth Amendment to the United States Constitution to make a closing argument at trial. Commonwealth v. Marvin , 417 Mass. 291, 292 (1994). This right applies in cases in which the defendant represents himself or herself as well. Herring v. New York , 422 U.S. 853, 864 n.18 (1975). See also Commonwealth v. Martelli , 38 Mass. App. Ct. 669, 669–672 (1995) (failure to allow defense to present closing argument is structural error and requires reversal even absent objection).
Common Sense; Common Experience. Counsel may ask the jury to use their common sense and to apply their common experience to the evidence. See Commonwealth v. Jefferson , 461 Mass. 821, 836 (2012); Commonwealth v. Santiago , 425 Mass. 491, 498 (1997), cert. denied, 525 U.S. 1003 (1998). Contrast Commonwealth v. Hrabak , 57 Mass. App. Ct. 648, 654 (2003) (improper for prosecutor to urge jurors to infer from their own knowledge and experience that six-year-old child’s rectum could accommodate a penis without showing any injury, as this is beyond knowledge of ordinary layperson).
Subsection (b)(2). The first sentence of this subsection is taken nearly verbatim from Commonwealth v. Pettie , 363 Mass. 836, 840 (1973), and Mason v. General Motors Corp. , 397 Mass. 183, 192 (1986). See also Commonwealth v. Haas , 398 Mass. 806, 812 (1986); Teller v. Schepens , 25 Mass. App. Ct. 346, 352–353 (1988). The second sentence is derived from Commonwealth v. Costa , 414 Mass. 618, 629 (1993). See also Commonwealth v. Brown , 46 Mass. App. Ct. 279, 283 (1999) (prosecutor’s comment fell into category of enthusiastic rhetoric, strong advocacy, and excusable hyperbole). The third sentence is derived from Commonwealth v. Kee , 449 Mass. 550, 560 (2007). See also Commonwealth v. Grimshaw , 412 Mass. 505, 510 (1992); Commonwealth v. Ferreira , 381 Mass. 306, 316 (1980) (“Counsel may also attempt to assist the jury in their task of analyzing, evaluating, and applying evidence. Such assistance includes suggestions by counsel as to what conclusion the jury should draw from the evidence.”); Commonwealth v. Haas , 373 Mass. 545, 557 n.11 (1977) (“Counsel may ‘fit all the pieces of evidence together so that they form a comprehensive and comprehensible picture for the jury.’”). The fourth sentence is derived from Commonwealth v. Oliveira , 431 Mass. 609, 613 (2000). Counsel may argue that a witness is mistaken or lying when the argument is expressed as a conclusion to be drawn from the evidence and not as a personal opinion. See Commonwealth v. Murchison , 418 Mass. 58, 60 (1994) (defense counsel was entitled to argue from the evidence that police officers had lied). The last sentence of this subsection is derived from G. L. c. 231, § 13B . The Supreme Judicial Court has noted its concern with unfair tactics where, “[a]lthough the prosecutor’s comment d[oes] not violate the letter of the judge’s order, it undoubtedly undermine[s] the spirit of the ruling.” Commonwealth v. Durand , 475 Mass. 657, 672 (2016). In Durand, the court, while concluding there was no prejudicial error, noted that the prosecutor’s comment “unfairly suggested that the defendant withheld . . . information, and that this act reflected consciousness of guilt.” Id.
Stipulation or Transcript. Counsel may read from or quote any transcript or stipulation that has been admitted in evidence “so long as [counsel] furnishes opposing counsel with a copy of the transcript [or stipulation] from which he or she expects to read.” Commonwealth v. Delacruz , 443 Mass. 692, 694–696 (2005).
Special Role of the Prosecutor. The prosecutor performs a special function in representing the Commonwealth. The interest of the prosecutor is “not that [he] shall win a case, but that justice shall be done. . . . It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Commonwealth v. Keo , 467 Mass. 25, 35–36 (2014), quoting Berger v. United States , 295 U.S. 78, 88 (1935). See also Commonwealth v. Shelley , 374 Mass. 466, 472 (1978) (“The prosecuting attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”).
“We have never criticized a prosecutor for arguing forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence. On the other hand, a prosecutor should not refer to the defendant’s failure to testify, misstate the evidence or refer to facts not in evidence, interject personal belief in the defendant’s guilt, play on racial, ethnic, or religious prejudice or on the jury’s sympathy or emotions, or comment on the consequences of a verdict. . . . [P]rosecutors are held to a stricter standard of conduct than are errant defense counsel and their clients . . . .” (Citations and footnotes omitted.)
Within reason, prosecutors may comment on the tactics and strategy of the defense. Compare Commonwealth v. Felder , 455 Mass. 359, 369 (2009), citing Commonwealth v. Jackson , 428 Mass. 455, 463 (1998) (“When read in context, there was no error in the prosecutor’s limited references to the attempts by defense counsel to create ‘smoke screen[s].’”); Commonwealth v. Espada , 450 Mass. 687, 699 (2008) (not improper for prosecutor to refer to defendant’s “story as ‘ridiculous’”); Commonwealth v. Raposa , 440 Mass. 684, 697 (2004) (“[T]he prosecutor stated, ‘I mean, thank goodness you folks have notes, if I was sitting there listening to [defense counsel] tell you what the evidence was. Thank goodness you have the notes, because it’s not what [defense counsel] tells you the evidence is.’ The prosecutor went on to characterize defense counsel as an attorney able to ‘spin gold from straw.’ Our cases have upheld the use of language of this nature.”); and Commonwealth v. MacDonald (No. 1) , 368 Mass. 395, 401 (1975) (“Comment by the prosecutor on the tactics of the defense, based on the evidence and what the jury could observe in the court room, is permissible”), with Commonwealth v. Gentile , 437 Mass. 569, 580–581 (2002) (“Characterizing the defense tactic as ‘despicable’ goes beyond labeling it as unworthy of belief or lacking in merit and smacks more of an ad hominem attack.”); Commonwealth v. Fernandes , 436 Mass. 671, 674 (2002) (improper to characterize defense counsel as “obscuring the truth or intentionally misleading the jury”); and Commonwealth v. McCravy , 430 Mass. 758, 764 (2000) (prosecutor may address a particular point in defense counsel’s closing argument as a sham, but he or she may not characterize the entire defense as such). See also Commonwealth v. Silanskas , 433 Mass. 678, 702–703 (2001) (improper to comment on length of defense closing).
A prosecutor must be careful in making comments about defense counsel. See Commonwealth v. Lewis , 465 Mass. 119, 132 (2013) (Prosecutor’s closing argument improperly disparaged defense counsel.); Commonwealth v. Scott , 463 Mass. 561, 574 (2012) (“[S]ome of the prosecutor’s personal comments about defense counsel went beyond the bounds of proper argument.”); Commonwealth v. Hawley , 380 Mass. 70, 84–85 (1980) (concluding that “impropriety lay in the prosecutor’s suggestion that defense counsel was an active participant, if not the leader or mastermind, in the commission of the crimes of perjury”); Commonwealth v. Burts , 68 Mass. App. Ct. 684, 687–688 (2007) (“Criticisms of the defendant’s attorney, including the prosecutor’s urging of the jurors to be angry with the attorney, were improper and, among other things, impugned two basic constitutional rights, that of counsel, as well as the right of a defendant to make his defense.”); Commonwealth v. Awad , 47 Mass. App. Ct. 139, 142 (1999) (“Disparaging remarks about the qualifications or motivations of defense counsel, or lawyers in general, are disfavored.”).
Similarly, a prosecutor may not engage in “prejudicial name-calling.” Commonwealth v. Rivera , 52 Mass. App. Ct. 321, 328 (2001) (“We have cautioned counsel for the Commonwealth to avoid prejudicial name-calling.”). See Commonwealth v. Cosme , 410 Mass. 746, 754 (1991) (prosecutor’s comments regarding two defense witnesses were “tasteless and improper”); Commonwealth v. Saunders , 75 Mass. App. Ct. 505, 511 (2009) (“A prosecutor should not use extreme epithets to characterize the defendant.”).
“A prosecutor’s role at a trial does not change where the defendant represents himself.” Commonwealth v. Sapoznik , 28 Mass. App. Ct. 236, 240 n.3 (1990).
The disciplinary authority governing the special responsibilities of a prosecutor is Mass. R. Prof. C. 3.8(h) (1999).
Retaliatory Reply. Fighting fire with fire does not mean that a party has a right to exceed the proper bounds of closing argument because defense counsel did so. It means only that “a prosecutor may properly comment to correct ‘an erroneous impression created by opposing counsel.’” Commonwealth v. Kozec , 399 Mass. 514, 519 n.9 (1987), quoting Commonwealth v. Bradshaw , 385 Mass. 244, 277 (1982). Compare Commonwealth v. Rivera , 425 Mass. 633, 647 (1997) (“The prosecutor was entitled to respond to defense counsel’s improper suggestions regarding the use of prior convictions, and his reminder to the jury of the limited use of the defendant’s prior convictions, although not artful, is not a ground for reversal.”), and Commonwealth v. Prendergast , 385 Mass. 625, 633–634 (1982) (The defense counsel cited the defendant’s hospital records as evidence that the defendant was mentally ill and dangerous and, therefore, not criminally responsible. The prosecutor’s statement that the hospital records did not prevent the jury from finding the defendant criminally responsible was within his “right of retaliatory reply.”), with Commonwealth v. McCoy , 59 Mass. App. Ct. 284, 296 (2003) (prosecutor “exceeded the bounds of fair, corrective response” when he “impermissibly appealed to the jury’s emotional concern for crime-free streets by inferentially urging their trust in the police witnesses who had long protected those streets”).
Subsection (b)(3)(A). This subsection is derived from Commonwealth v. Beaudry , 445 Mass. 577, 580 (2005); Commonwealth v. Pearce , 427 Mass. 642, 646 (1998); and Hart v. Morris & Co. , 259 Mass. 211, 214–215 (1927). The right to argue inferences from the evidence does not include the right to “lead the jury to an improper inference not from the evidence but from the apparent personal knowledge of the attorney.” Commonwealth v. Nordstrom , 364 Mass. 310, 315 (1973). See also Commonwealth v. Jones , 471 Mass. 138, 147–149 (2015) (improper for prosecutor to argue that defendant might have assaulted another victim if child had not moved away).
For the rule that a party may not misstate the evidence, see Commonwealth v. Sanders , 451 Mass. 290, 298–300 (2008) (multiple misstatements of evidence); Commonwealth v. Coren , 437 Mass. 723, 731 (2002) (“We conclude that the prosecutor exceeded the scope of proper argument by misstating important aspects of the testimony beyond inferences that might reasonably have been drawn from the evidence, and thereby committed error.”); Commonwealth v. Sheehan , 435 Mass. 183, 191 (2001) (prosecutor had “no support in the evidence for labelling the defendant a 'predator,' and the remark [therefore] was unwarranted”); Commonwealth v. Daley , 66 Mass. App. Ct. 254, 257 (2006) (prosecutor misstated the evidence when he told the jury that trooper “detected a ‘strong’ odor of alcohol”); Commonwealth v. Vazquez , 65 Mass. App. Ct. 305, 312 (2005) (prosecutor misstated evidence when describing length of a kiss); and Commonwealth v. Gonzalez , 59 Mass. App. Ct. 622, 629 (2003) (no “basis in the evidence” for prosecutor’s “suggestion of a possibility that the defendant might have possessed a weapon at the time of his arrest”).
For the rule that a party may not refer to facts not in evidence, see Commonwealth v. Dirgo , 474 Mass. 1012, 1013–1014 (2016) (A party cannot suggest that evidence would have been available but for a prohibition of law, in this case, the first complaint doctrine. It was error for the prosecutor to argue she could have provided a “parade” of witnesses to corroborate the complainant’s testimony but for the first complaint doctrine.); Commonwealth v. Harris , 443 Mass. 714, 732 (2005) (“Counsel may not, in closing, ‘exploit the absence of evidence that had been excluded at his request.’ Such exploitation of absent, excluded evidence is ‘fundamentally unfair’ and ‘reprehensible.’” [Citations omitted.]); Commonwealth v. Daley , 439 Mass. 558, 565 & n.3 (2003) (error for prosecutor to argue that “the defendant’s ‘character’ as a dealer in crack cocaine and as a ‘thief’ should be used by the jury in assessing his credibility”); and Commonwealth v. Grimshaw , 412 Mass. 505, 508 (1992) (“A prosecutor is barred from referring in closing argument to matter that has been excluded from evidence, and a prosecutor should also refrain from inviting an inference from the jury about the same excluded subject matter” [citation omitted].).
For the rule that a party may not use evidence for a purpose other than the limited purpose for which it was admitted, see Commonwealth v. Cheremond , 461 Mass. 397, 413–414 (2012); Commonwealth v. Daley ,439 Mass. 558, 565–566 & n.3 (2003); Commonwealth v. Bregoli , 431 Mass. 265, 277–278 (2000); Commonwealth v. McIntyre , 430 Mass. 529, 543 (1999); Commonwealth v. Rosa , 412 Mass. 147, 156 (1992) (“A prosecutor may not present to the jury evidence admitted for a limited purpose as if it were substantive evidence.”); and Commonwealth v. Burns , 49 Mass. App. Ct. 677, 683 (2000) (where prosecutor impeached witness with grand jury testimony, subsequent “substantive use” of same testimony in closing argument was improper). See also Commonwealth v. Howard , 469 Mass. 721, 738 (2014) (even when evidence of prior bad acts has been properly admitted, it is improper to cite that evidence in support of propensity-based argument in closing).
It is improper to argue that a witness should be believed because the witness appeared in court to testify. See Commonwealth v. Polk , 462 Mass. 23, 39 (2012). While a prosecutor may argue that a testifying defendant has an interest in the outcome of a case and this may affect his or her credibility, it is improper to argue that the testimony of the criminal defendant is inherently incredible simply because he or she is on trial. Commonwealth v. Niemic , 472 Mass. 665, 674–675 (2015). A prosecutor must proceed with great caution before suggesting that a child who is alleged to be the victim of a sexual assault could only have acquired knowledge of sexual acts from the experience of victimization. See Commonwealth v. Beaudry , 445 Mass. 577, 580, 581–582 (2005) (declining to assume that twelve-year-old child is unfamiliar with sexual acts and terminology, while noting that an argument that a child had age-inappropriate knowledge could be made if supported by expert witness testimony); Commonwealth v. Helberg , 73 Mass. App. Ct. 175, 179 (2008), quoting Commonwealth v. Fuller , 22 Mass. App. Ct. 152, 158 (1986) (“[A] prosecutor may not suggest that a child sexual abuse victim ‘wouldn’t have that kind of idea in her head unless something like that happened to her.’”).
Disciplinary Authority. See Mass. R. Prof. C. 3.4(e) (2015), 3.8(i) (1999), 8.4(d) (2015); Private Reprimand No. 91-21, 7 Mass. Att’y Discipline Rep. 356 (1991) (among other issues, lawyer in administrative proceeding alluded in closing to matters ruled inadmissible); Admonition No. 05-04, 21 Mass. Att’y Discipline Rep. 671 (2005), available at http://perma.cc/Y8R2-ZWEJ (among other issues, prosecutor referred in closing arguments to police reports excluded from evidence as hearsay); and Admonition No. 01-20, 17 Mass. Att’y Discipline Rep. 694 (2001), available at http://perma.cc/R5FD-E5JX (prosecutor referred in closing argument to defendant’s prior convictions, despite instructions from judge not to do so).
Use of Props. Counsel may not display objects not in evidence and should discuss any “plan to employ dramatic props with the judge during the pre-argument conference.” Commonwealth v. Hoppin , 387 Mass. 25, 30–32 (1982).
Use of Chalks. A judge has “considerable, but not unrestrained, discretion as to the degree to which chalks can be used” to illustrate the evidence for the jury and to make use of such aids in closing argument (citation omitted). Commonwealth v. Walker , 10 Mass. App. Ct. 255, 264 (1980). See also Goldstein v. Gontarz , 364 Mass. 800, 814 (1974) (“Permission to use a blackboard as a graphic aid is discretionary with the trial judge.”).
Collateral Sources. In general, information of “outside source” compensation is legally irrelevant and should not be referred to in the closing argument. See Goldstein v. Gontarz , 364 Mass. 800, 808–809 (1974). See also Commonwealth v. Murray , 22 Mass. App. Ct. 984, 985 (1986) (improper to suggest that victim of theft had recovered his loss because recovery would not diminish the crime).
Missing Witnesses. If the trial judge declines to give a missing witness instruction, counsel is not permitted to argue that an adverse inference should be drawn against the other side for not calling the witness. Commonwealth v. Saletino , 449 Mass. 657, 670–672 (2007). However, a party is permitted to argue consciousness of guilt or liability even without a jury instruction. Commonwealth v. Franklin , 465 Mass. 895, 915 (2013). See also Commonwealth v. Saletino, 449 Mass. at 671–672 (explaining that defense counsel is always permitted to argue that Commonwealth has not produced sufficient evidence to warrant conviction beyond a reasonable doubt).
Subsection (b)(3)(B). This subsection is derived from Commonwealth v. Kee , 449 Mass. 550, 560 (2007); Commonwealth v. Ciampa , 406 Mass. 257, 265 (1989); Commonwealth v. Lindsey , 48 Mass. App. Ct. 641, 645 (2000); Commonwealth v. Omonira , 59 Mass. App. Ct. 200, 205 (2003); and Warren v. Edgeco, Inc. , 8 Mass. App. Ct. 171, 177 (1979). “The jury are presumed to recognize that the prosecutor is an advocate, not a witness.” Commonwealth v. Mitchell , 428 Mass. 852, 856–857 (1999) (prosecutor’s “use of phrases ‘I think,’ ‘I suggest,’ to preface some remarks did not, viewed in their proper context, imply that the prosecutor had personal knowledge or was stating a personal belief”). “Where credibility is at issue, it is certainly proper for counsel to argue from the evidence why a witness should be believed.” Commonwealth v. Thomas , 401 Mass. 109, 116 (1987). A prosecutor may make a fair response to an attack on the credibility of a government witness. Commonwealth v. Chavis , 415 Mass. 703, 713 (1993). See also Commonwealth v. Brewer , 472 Mass. 307, 315 (2015) (prosecutor’s statement that jury had “no reason to doubt” witness was a proper response to defense’s assertion that witness was not credible). An argument that a witness had a motive to lie must be based on the evidence. Commonwealth v. Murchison , 418 Mass. 58, 61 (1994). Counsel should avoid phrases such as “I think,” “I feel,” and “I believe” because they express a personal opinion concerning the credibility of witnesses. See Commonwealth v. Finstein , 426 Mass. 200, 205 n.1 (1997). In contrast, repeated use of the pronoun “we” is troubling. See Commonwealth v. Burts , 68 Mass. App. Ct. 684, 688–689 (2007) (“We are troubled by the prosecutor’s repeated use of the pronoun ‘we,’ which, when considered in light of the substance of some of those statements and phrases, conveyed, at least inferentially, the prosecutor’s belief or opinion about either certain evidence or the credibility of certain witnesses.”).
Disciplinary Authority. See Mass. R. Prof. C. 3.4(e) (2015), 3.8(i) (1999), 8.4(d) (2015); Matter of the Discipline of an Attorney, 2 Mass. Att’y Discipline Rep. 110, 112 (1980) (among other problems with closing argument, prosecutor said—as to defendant’s testimony to the contrary—“believe me,” no one in Chelsea is selling heroin at half price, and that “I would guess” the defendant supplemented his income by selling drugs); and Private Reprimand No. 91-21, 7 Mass. Att’y Discipline Rep. 356 (1991) (among other issues, lawyer in closing argument in administrative proceeding presented his personal opinion on merits of case).
Improper Vouching. “Improper vouching occurs if ‘an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.’” Commonwealth v. Ortega , 441 Mass. 170, 181 (2004), quoting Commonwealth v. Wilson , 427 Mass. 336, 352 (1998). Thus, argument based on an attorney’s “own subjective assessment of the evidence is improper.” Commonwealth v. Santiago , 425 Mass. 491, 498 (1997). See also Commonwealth v. Earltop , 372 Mass. 199, 203 (1977) (error for prosecutor to argue that he was “firmly convinced in [his] mind” of defendant’s guilt). Cf. Commonwealth v. Kozec , 399 Mass. 514, 521 (1987) (“It is not improper to make a factually based argument that, due to the demeanor, disclosed circumstances, and appearance of a witness, a particular witness should be believed or disbelieved.”).
Plea Agreements. Where a plea agreement requires a witness to give truthful testimony, the prosecutor must avoid any argument that the government has special knowledge or a method to determine the witness’s veracity. See Commonwealth v. Marrero , 436 Mass. 488, 501 (2002) (“[A]lthough the prosecutor was free to encourage the jury to read the [plea and immunity] agreement (especially in light of the defendants’ closing arguments to the jury that [the witness] was a ‘pretty street smart’ witness and one who ‘got her deal’ under which she ‘ha[d] to testify a certain way’), he should not have stated that [the witness] ‘tells the truth, at least that’s as far as [he] could follow it’” [footnote omitted].); Commonwealth v. Ciampa , 406 Mass. 257, 265 (1989) (“A prosecutor in closing argument may restate the government’s agreement with the witness and may argue reasonable inferences from the plea agreement’s requirement of truthful testimony. If, however, a prosecutor goes beyond the terms and circumstances of the plea agreement and suggests that the government has special knowledge by which it can verify the witness’s testimony, reversible error may occur.” [Citations omitted.]).
Disciplinary Authority. See Mass. R. Prof. C. 3.4(e) (2015), 3.8(h), (i) (1999), 8.4(d) (2015); Matter of Nelson, 25 Mass. Att’y Discipline Rep. 413 (2009), available at http://perma.cc/86SC-PSRJ (among other issues with closing argument, prosecutor improperly vouched for witnesses, claiming, as to one, to have verified witness’s account by following his route to crime scene and, as to other, to have “looked at” witness and seen how he had turned his life around); and Matter of the Discipline of an Attorney, 2 Mass. Att’y Discipline Rep. 110 (1980) (among other problems with closing argument, prosecutor appeared to vouch for credibility of police witnesses).
Subsection (b)(3)(C). This subsection is derived from Commonwealth v. Kozec , 399 Mass. 514, 517 (1987); Commonwealth v. Smith , 387 Mass. 900, 909–910 (1983); Commonwealth v. Shelley , 374 Mass. 466, 470 (1978); London v. Bay State Ry. Co. , 231 Mass. 480, 485–486 (1919); and Commonwealth v. Vazquez , 65 Mass. App. Ct. 305, 312 (2005).
It is permissible to argue relevant inferences from the evidence, even where the subject matter is potentially gruesome or inflammatory, but care must be given not to urge the jury to go beyond the proper use of such evidence and to make a decision based on improper considerations. See Commonwealth v. Raymond , 424 Mass. 382, 389–390 (1997) (“the gruesomeness of the crimes and the suffering of the victims were relevant to the issue whether the defendant’s actions constituted extreme atrocity or cruelty”). See also Commonwealth v. Cadet , 473 Mass. 173, 181 (2015) (while court emphasized that “the better practice is for the prosecutor, defense counsel, the judge, and all of the witnesses to refrain from describing the person killed as the ‘victim,’” jury was likely not swayed by the use of the term). Contrast Commonwealth v. Niemic , 472 Mass. 665, 675 (2015) (emotional impact of victim’s death on witnesses who saw it was not a proper matter for consideration by jury and it was improper to comment on it); Commonwealth v. Lodge , 431 Mass. 461, 470–471 (2000) (improper to argue that victim was “entitled to the right to live and [the defendant] took it”); Commonwealth v. Hamilton , 426 Mass. 67, 75 (1997) (comment that “there is no greater wrong that can be done to an individual than to deprive him of his very existence” improperly appealed to jurors’ sympathies); Commonwealth v. Ward , 28 Mass. App. Ct. 292, 295 (1990) (repeated references to extent of urban crime and duty to aid law-abiding citizens was an improper appeal to emotions and fear of jury). It is improper to comment on the defendant’s lack of remorse. Commonwealth v. Borodine , 371 Mass. 1, 9 (1976). “The nature of an appeal to sympathy is not so much a misstatement of evidence as an obfuscation of ‘the clarity with which the jury would look at the evidence and encourage the jury to find guilt even if the evidence does not reach the level of proof beyond a reasonable doubt.’” Commonwealth v. Guy , 454 Mass. 440, 445 (2009), quoting Commonwealth v. Santiago , 425 Mass. 491, 501 (1997), cert. denied, 525 U.S. 1003 (1998). “Comments that appeal to emotions are ones that have the effect of engendering the jury’s anger toward the defendant or his counsel so as to evoke an emotional rather than an intellectual response.” Commonwealth v. Seng , 436 Mass. 537, 556 (2002). Words such as “brutally” and “viciously” may be used when they are apt descriptions of the evidence. Commonwealth v. Mejia , 463 Mass. 243, 254 (2012). See also Commonwealth v. Rock , 429 Mass. 609, 615 (1999) (“While the prosecutor may, in opening statement or summation, ‘tell the jury something of the person whose life ha[s] been lost in order to humanize the proceedings,’ the testimony of a relative may not be elicited for the sole purpose of creating sympathy” [citation omitted].).
Disciplinary Authority. See Mass. R. Prof. C. 8.4(d) (2015); Matter of Nelson, 25 Mass. Att’y Discipline Rep. 413 (2009), available at http://perma.cc/86SC-PSRJ (among other problems with closing argument, prosecutor improperly implied to jury that they should avenge victim); and Admonition No. 01-03, 17 Mass. Att’y Discipline Rep. 659 (2001), available at http://perma.cc/R5FD-E5JX (prosecutor made improper appeal to jury in closing argument for sympathy for victim).
– Attacking Credibility. See Commonwealth v. Bishop , 461 Mass. 586, 598 (2012) (expert’s billing rate is admissible as evidence of bias, and the jury may be reminded that an expert was retained by the defendant; “[b]ut it is improper for a prosecutor to suggest that an expert witness’s testimony was ‘bought’ by a defendant or to characterize the witness as a ‘hired gun’ where, as here, there was no evidence that he was paid more than his customary fee”); Commonwealth v. Kee , 449 Mass. 550, 560 (2007) (prosecutor’s comments in closing argument about experience of police witnesses proper to show why those witnesses should be believed and did not amount to improper vouching); Commonwealth v. Obershaw , 435 Mass. 794, 807 (2002) (permissible to call defendant a liar where there “was substantial evidence that defendant had changed his story between his statements to the police and his testimony at trial and that his account at trial strained credulity”); Commonwealth v. Olszewski , 401 Mass. 749, 760 (1988), cert. denied, 513 U.S. 835 (1994) (prosecutor is not permitted to use “police on trial” maxim); Commonwealth v. Clary , 388 Mass. 583, 592 (1983) (“prosecutor’s insinuations regarding the defendant’s sexual preference clearly were likely to instigate prejudice against her”).
– Resort to Stereotypes. Both prosecutors and defense counsel should refrain from what is termed “broad brushing” or arguments based on racial, ethnic, or gender stereotypes. See Commonwealth v. Murchison , 35 Mass. App. Ct. 269, 275 (1993), and cases cited. See also Commonwealth v. Rosario , 430 Mass. 505, 515– 516 (1999) (describing defendant as a “monster”); Commonwealth v. Saunders , 75 Mass. App. Ct. 505, 511–512 (2009) (describing defendant as “[s]wooping down like a vulture”).
– No Motive to Lie. There is no per se rule against a prosecutor’s comment that a witness has no motive to lie when it is based on the evidence and is understood as a retaliatory reply to a defense attack on the credibility of the witness. See Commonwealth v. Smith , 450 Mass. 395, 408 (2008); Commonwealth v. Helberg , 73 Mass. App. Ct. 175, 179 (2008). If defense counsel challenges the credibility of the alleged victim in his or her closing argument, the prosecutor may invite the jury to consider whether the witness has a motive to lie and may identify the evidence that demonstrates the accuracy and reliability of the witness’s testimony. See Commonwealth v. Polk , 462 Mass. 23, 39–40 (2012). Compare Commonwealth v. Ramos , 73 Mass. App. Ct. 824, 826 (2009) (“prosecutor may not . . . suggest to the jury that a victim’s testimony is entitled to greater credibility merely by virtue of her willingness to come into court to testify”), with Commonwealth v. Pina , 430 Mass. 266, 269 (1999) (where there is evidence of a witness’s fear of testifying, “a prosecutor may argue that it took ‘courage’ or ‘character’ for a witness to testify”).
– Reference to Damages. In a civil case, “[a]n argument concerning money damages indulging in significant references to numerical amounts that have no basis in the record is improper. Repeated, substantive discussions of hypothetical damages in other circumstances, and especially references to verdicts in other cases, are not proper.” Harlow v. Chin , 405 Mass. 697, 704 (1989).
– Justice to the Victim. In Commonwealth v. Niemic , 472 Mass. 665 (2015), the Supreme Judicial Court addressed appealing to the jury for justice for the victim:
“It is improper for a prosecutor to characterize a criminal trial as a dispute between a deceased victim on the one hand, and the defendant on the other, and to exhort the jury to dispense justice evenly between them. The deceased is not a party to th[e] case. A criminal trial places the interests of the Commonwealth and the defendant against one another. An argument that asks the jury to give justice to the victim is an improper appeal to sympathy for the victim.”
Id. at 676, citing Commonwealth v. Drumgold , 423 Mass. 230, 253 (1996).
Subsection (b)(3)(D). This subsection is derived from Commonwealth v. Finstein , 426 Mass. 200, 205 n.1 (1997), where the court cautioned against so-called “Golden Rule” arguments in which jurors are asked to place themselves or a relative in the shoes of a party, witness, or victim, and against defense counsel asking jurors to put themselves or a relative in the shoes of the defendant. See also Commonwealth v. Bizanowicz , 459 Mass. 400, 420 (2011); Commonwealth v. Valentin , 420 Mass. 263, 274 (1995) (“The prosecutor’s suggestion, in effect that the jurors put themselves in the shoes of the two witnesses, was poorly phrased, and the argument should not have been made.”).
Subsection (b)(3)(E). This subsection is derived from Commonwealth v. Amirault , 404 Mass. 221, 240 (1989). See Doyle v. Ohio , 426 U.S. 610, 618–619 (1976) (defendant’s post-Miranda silence cannot be used against him), and Griffin v. California , 380 U.S. 609, 615 (1965) (defendant’s decision not to testify at trial cannot be used against him).
Misstatements of Law. For the rule that a party may not make misstatements of law, see Commonwealth v. Scesny , 472 Mass. 185, 202 (2015) (error for prosecutor to repeatedly characterize admitted defense evidence related to third-party defense as “irrelevant and immaterial ‘information,’ unworthy of even being called ‘evidence’”); Commonwealth v. Bins , 465 Mass. 348, 367 (2013); Commonwealth v. Morales , 461 Mass. 765, 783 (2012) (“We agree with the defendant that the prosecutor erroneously misstated the law of deliberately premeditated murder during his closing argument by improperly suggesting that on that theory of murder only an intent to kill was required to be proved.”); Commonwealth v. Weaver , 400 Mass. 612, 615–616 (1987) (error for prosecutor to argue that his duty was to present all the evidence and to assist jury to discover the truth, whereas function of defense counsel was to create doubts in minds of the jury); Commonwealth v. Killelea , 370 Mass. 638, 646 (1976) (misstatement of meaning of not guilty by reason of insanity); and Commonwealth v. Pagano , 47 Mass. App. Ct. 55, 62 (1999) (misstatement of presumption of innocence). In particular, a party should not attempt to define “reasonable doubt.” Commonwealth v. Snow , 30 Mass. App. Ct. 443, 447 (1991).
Although a party may not misstate principles of law, the party must be allowed to “argue the law as applied to the evidence.” Bloom v. Town Taxi, Inc. , 336 Mass. 78, 80 (1957) (new trial required where judge refused to allow the plaintiffs to “argue the law as applied to the evidence”; refusal “impaired the right of the plaintiffs to have their cases fully presented to the jury”).
Shifting the Burden of Proof. Counsel may not make any statement that shifts the burden of proof. Commonwealth v. Johnson , 463 Mass. 95, 112 (2012), quoting Commonwealth v. Amirault , 404 Mass. 221, 240 (1989) (“As a general rule, a ‘prosecutor . . . cannot make statements that shift the burden of proof from the Commonwealth to the defendant.’”). See Commonwealth v. Silva , 471 Mass. 610, 622–623 (2015) (permissible for prosecutor to state that “there is not a scintilla of evidence to support [the proposition that the defendant was merely present,]” because statement was “directed at the defendant’s defense and not at the defendant’s failure to testify”); Commonwealth v. Trinh , 458 Mass. 776, 787 (2011) (prosecutor engaged in burden shifting when he suggested that defendant had “an affirmative duty to bring forth evidence of his innocence, thereby lessening the Commonwealth’s burden to prove every element of a crime”); Commonwealth v. Miranda , 458 Mass. 100, 117 (2010) (“To the extent that the [prosecutor’s] remarks may have implied the unstated observation that . . . the defendant left the balance of the Commonwealth’s evidence from these witnesses uncontested, this indirect implication does not approach the sort of burden shifting that results from direct comment on a defendant’s failure to contradict testimony”); Commonwealth v. Stewart , 454 Mass. 527, 539–540 (2009) (no burden shifting where prosecutor stated “[t]here may be no trace evidence that places [the defendant] there . . . but there is nothing that excludes him from being there; that proves he wasn’t there”); Commonwealth v. Montez , 450 Mass. 736, 747 (2008) (“The prosecutor’s statement that defense counsel never addressed the evidence about . . . incidents was not a comment on the defendant’s failure to present evidence, and it did not impermissibly shift the burden of proof to the defendant”); Commonwealth v. Silanskas , 433 Mass. 678, 700 (2001) (“[T]he Commonwealth may not comment on the defendant’s failure to produce evidence.”); Commonwealth v. Feroli , 407 Mass. 405, 408–409 (1990) (“A prosecutor is entitled to emphasize the strong points of the Commonwealth’s case and the weaknesses of the defendant’s case, even though he may, in so doing, prompt some collateral or passing reflection on the fact that the defendant declined to testify.”); Commonwealth v. Ayoub , 77 Mass. App. Ct. 563, 567 (2010) (“We do not conclude, as the defendant proposes, that these statements amounted to improper personal comment on the defendant’s credibility and suggested that the defendant had failed to prove his innocence. Rather, they constitute commentary on the weakness of the defendant’s case.”).
Denigration of Constitutional Rights. A prosecutor may not ask the finder of fact to infer guilt based on the defendant’s exercise of a constitutional right. See Commonwealth v. Cook , 419 Mass. 192, 203 (1994) (improper for prosecutor to argue that “jury should ‘not be intimidated by the phrase “beyond a reasonable doubt”’”); Commonwealth v. Thomas , 401 Mass. 109, 113 (1987), quoting Commonwealth v. Smith , 387 Mass. 900, 903 (1983) (“We reiterate that ‘[l]awyers shall not and must not misstate principles of law nor may their summations infringe or denigrate constitutional rights.’”); Commonwealth v. Person , 400 Mass. 136, 141 (1987) (prosecutor may not ask jury to draw inference of guilt from defendant’s exercise of right to advice of counsel); Commonwealth v. Hanino , 82 Mass. App. Ct. 489, 498 (2012), quoting Commonwealth v. Haraldstad , 16 Mass. App. Ct. 565, 574 (1983) (“Although it would have been preferable had the prosecutor avoided the word ‘rehearsed,’ there is a qualitative difference between implying that it is improper for counsel to prepare a witness and ‘casting doubt on testimony by calling attention to extraordinary parallels between what a group of witnesses who could talk to each other have said on the stand’” [citation omitted].); Commonwealth v. Hughes , 82 Mass. App, Ct. 21, 29–31 (2012) (“plain error” for prosecutor to suggest in “closing argument that the jury could conclude that the Commonwealth’s case was strong, because the defendant chose to put on witnesses even though he had no obligation to do so”); Commonwealth v. Dodgson , 80 Mass. App. Ct. 307, 314 (2011) (“A prosecutor should generally avoid using the term ‘rehearse’ because it may impinge on the defendant’s right to prepare for trial.”); Commonwealth v. Youngworth , 55 Mass. App. Ct. 30, 39–40 (2002) (prosecutor’s statements were “not reasonably construable as ‘inferentially attack[ing] the defendant for asserting his right to trial’ or ‘calling on the jury to punish him for exercising that right’”).
Uncontradicted or Uncontested Evidence. The Supreme Judicial Court has stated that
“[r]eferences to material facts as uncontradicted or uncontested invariably approach the border of the forbidden territory of speculation regarding the absence of testimony by the defendant. ‘A claim that certain evidence is uncontested should be made with caution and only after careful reflection concerning the specific circumstances in which the defendant could have produced contradictory evidence.’”
Commonwealth v. Buzzell , 53 Mass. App. Ct. 362, 366–367 (2001), quoting Commonwealth v. Hawley , 380 Mass. 70, 83–84 (1980). See also Commonwealth v. Wilson , 443 Mass. 122, 132 (2004); Commonwealth v. Borodine , 371 Mass. 1, 10 (1976), cert. denied, 429 U.S. 1049 (1977) (prosecutor’s references to facts as “uncontested” were improper because the defendant was the only person who could contradict them).
Commenting on Criminal Defendant’s Silence or Testimony. Except in rare circumstances, the prosecutor may not comment on the defendant’s invocation of his or her right to silence. Thus, a prosecutor may not make any statement that is “reasonably susceptible” of being interpreted as a comment on a defendant’s decision not to testify. Commonwealth v. Pena , 455 Mass. 1 (2009); Commonwealth v. Botelho , 87 Mass. App. Ct. 846, 853 (2015). Compare Commonwealth v. Beneche , 458 Mass. 61, 75–76 (2010) (prosecutor should not have mentioned defendant’s statement, “I don’t want to talk about it,” because “a defendant’s statements about his desire not to speak with police may suggest to the jury that the defendant is guilty simply because he chose to exercise his constitutional right to silence”), and Commonwealth v. Brum , 438 Mass. 103, 121 (2003) (“It does not appear that there was any need to resort to the defendant’s invocation of his right to remain silent as a method of explaining any abrupt end to either interview, or any other permissible basis for admitting evidence of the defendant’s refusal to answer further questions.”), with Commonwealth v. Torres , 442 Mass. 554, 578 (2004) (“[W]e have recognized that, in some rare circumstances, a defendant’s invocation of his right to remain silent may be presented to the jury in order to avoid juror confusion about why an interview ended abruptly”), and cases cited; Commonwealth v. Caputo , 439 Mass. 153, 166 (2003) (“prosecutor’s reference in his closing statement to the defendant’s invocation of his right to remain silent was permissible” because “defense counsel elicited [invocation], and because in his closing argument the prosecutor referred to the statement solely to challenge the defendant’s claim of coercion”); and Commonwealth v. Martinez , 431 Mass. 168, 183 (2000) (although errors and prosecutorial misconduct occurred, considered individually and collectively, errors did not create substantial likelihood of miscarriage of justice). A prosecutor’s comments on “omissions” in the defendant’s statement to the police following the defendant’s receipt of Miranda warnings are not improper comments on the defendant’s silence. See Commonwealth v. Lodge , 89 Mass. App. Ct. 415, 419 (2016).
In Commonwealth v. McCray , 40 Mass. App. Ct. 936, 937 (1996), the Appeals Court held that a “prosecutor erred when he argued that the defendant had ‘the benefit of [the complainant’s] testimony over the course of the two days’ and ‘was able to conform her story with that.’” The Supreme Judicial Court has since explained that such comments are not necessarily improper. See Commonwealth v. Gaudette , 441 Mass. 762, 767 (2004) (“[A] prosecutor may, if there is a basis in the evidence introduced at trial, attack the credibility of a defendant on the ground that his testimony has been shaped or changed in response to listening to the testimony of other witnesses.”). The propriety of such a comment may depend on whether the defendant made a pretrial statement to police. Compare Commonwealth v. Person , 400 Mass. 136, 138–143 (1987) (prosecutor impermissibly commented on defendant’s right to remain silent when he stated that the defendant, who had not made a statement prior to trial, sat through prosecutor’s presentation at trial and fabricated a story that countered prosecution’s theory of case), with Commonwealth v. Greineder , 458 Mass. 207, 243–244 (2010) (where defendant made a pretrial statement that differed from his trial testimony, “[t]he prosecutor’s questions and argument concerning the length of time the defendant had to think about the case, hearing the testimony of [a police sergeant], and talking to [a defense expert], were all fair and grounded in the record”; the prosecutor’s questions and argument were not improper because “the defendant did not exercise his right to silence and the prosecutor did not comment directly or indirectly on an exercise of the right to remain silent”).
Prearrest Silence. “[I]mpeachment of a defendant with the fact of his pre-arrest silence should be approached with caution, and, whenever it is undertaken, it should be prefaced by a proper demonstration that it was ‘natural’ to expect the defendant to speak in the circumstances”; “the use of [pretrial silence] for impeachment purposes cannot be justified in the absence of unusual circumstances.” Commonwealth v. Nickerson , 386 Mass. 54, 62 & n.6 (1982). Compare Commonwealth v. Womack , 457 Mass. 268, 277–278 (2010) (“The defendant’s silence in response to [the lieutenant’s] query into his reason for standing outside the store for two seconds without entering was not an exercise of his right to remain silent, but a failure to respond to a particular question. As such it was admissible in evidence, and subject to comment” [citation omitted].), and Commonwealth v. Thompson , 431 Mass. 108, 118 (2000) (“[T]he prosecutor here did not comment on the defendant’s failure to proclaim his innocence, but rather on his failure to ask appropriate questions that an innocent party would ordinarily ask. The defendant did not invoke at any time his right to stop the questioning and be silent. Instead, the defendant agreed to give a far-ranging statement over several hours. It was therefore proper for the prosecutor to comment on the fact that the defendant did not ask appropriate questions.”), with Commonwealth v. Haas , 373 Mass. 545, 558–559 (1977) (prosecutor’s comments, asking jury to infer guilt from fact that defendant had not spontaneously volunteered his innocence during interrogation by police, were improper).
Statements Concerning the Role of the Jury. A prosecutor may not make any comment that could be interpreted to suggest that jurors have a duty to convict. Commonwealth v. Miller , 457 Mass. 69, 79–80 (2010); Commonwealth v. Francis , 450 Mass. 132, 140 (2007). Neither party may suggest that jurors may need to explain the verdict. Commonwealth v. Quinn , 61 Mass. App. Ct. 332, 334–335 (2004). “It [is] also inappropriate for the prosecutor to tell the jurors that they [are] the ‘conscience of the community.’ They bear no such burden; their role in a trial is limited to finding the facts on the basis of the evidence dispassionately and impartially.” Commonwealth v. Mathews , 31 Mass. App. Ct. 564, 573 (1991), cert. denied sub nom. Mathews v. Rakiey, 504 U.S. 922 (1992). See also Commonwealth v. Scesny , 472 Mass. 185, 200 (2015) (“prosecutor’s characterization of his role as representing the ‘citizens’ ran the risk of suggesting that the prosecutor was representing the jurors-as-citizens against the defendant, and in that way misrepresenting or at least confusing the jurors’ actual role as neutral fact finders”). A party should not discuss the consequences of a verdict with jury. See Commonwealth v. Duguay , 430 Mass. 397, 404 (1999) (“clearly error for the prosecutor to address the issue of punishment” with the jury); Commonwealth v. Ruddock , 428 Mass. 288, 292–293 (1998) (“Of course, a prosecutor should not argue to the jury that, if found not guilty by reason of insanity, a defendant will be released.”). Finally, while jurors may be encouraged to examine the physical evidence, it is improper to suggest that they should conduct outside experiments or investigation. See Commonwealth v. Beauchamp , 424 Mass. 682, 691 (1997) (“the prosecutor should not encourage the jury to conduct experiments or to obtain outside information of any sort”).
Disciplinary Authority. See Mass. R. Prof. C. 8.4(d) (2015) and Admonition No. 05-04, 21 Mass. Att’y Discipline Rep. 671 (2005), available at http://perma.cc/Y8R2-ZWEJ (among other issues, prosecutor, without court authorization, improperly commented during closing on defendant’s failure to call a witness).
Prosecutor’s Comment on Defendant’s Courtroom Appearance or Conduct. The appearance and demeanor of a person in a courtroom is evidence even if the person does not take the stand. See Commonwealth v. Roderick , 411 Mass. 817, 819 (1992) (mentally retarded victim who did not testify); Commonwealth v. Smith , 387 Mass. 900, 907 (1983) (defendant who did not testify); Commonwealth v. Houghton , 39 Mass. App. Ct. 94, 100 (1995) (victim who did testify). In a criminal case, “a prosecutorial argument that the jury should draw inferences against a defendant who did nothing but behave properly in the courtroom is improper.” Commonwealth v. Young , 399 Mass. 527, 531 (1987) (reversal based on this improper comment by prosecutor: “Did you notice how he just sits there stone-faced, cool, never blinks an eye, doesn’t get upset about anything? He’s very in control. He doesn’t show his emotions when he doesn’t want to, does he?”); Commonwealth v. Kozec , 399 Mass. 514, 523 (1987) (unfair and improper for prosecutor to comment that “the defendant looked sorry when the victim testified because she knew the truth about what happened between them would come out”). See also Commonwealth v. Valliere , 366 Mass. 479, 494–495 (1974) (improper for prosecutor to suggest that defendant demonstrates consciousness of guilt by reading transcripts or suggesting questions to counsel). Contrast Commonwealth v. Cohen , 412 Mass. 375, 385–386 (1992); Commonwealth v. Pina , 406 Mass. 540, 548 (1998) (where evidence showed that defendant changed his hairstyle and shaved his mustache soon after crime, proper for prosecutor to pose argument during closing about why a person would do that); Commonwealth v. Smith , 387 Mass. 900, 907 (1983) (prosecutor’s comments about defendant’s demeanor during trial, including that he was “smirking,” “laughing,” and “squirming,” were permissible where jury was entitled to observe demeanor of defendant and prosecutor did not suggest he had knowledge that jury did not share); Commonwealth v. Rogers , 43 Mass. App. Ct. 782, 787 (1997) (proper to refer to defendant’s size in comparison to size of victim).
Use of Rhetorical Questions. Rhetorical questions are not per se impermissible. See Commonwealth v. Grant , 418 Mass. 76, 83 (1994), quoting Commonwealth v. Smallwood , 379 Mass. 878, 892 (1980) (It is “well settled that a prosecutor may ask the jury rhetorical questions that touch on the defendant’s constitutional right not to incriminate himself without violating that right provided the questions are not ‘of such a nature that a jury would naturally and necessarily construe them to be directed to the failure of the defendant to testify.’”); Commonwealth v. Habarek , 402 Mass. 105, 111 (1988) (no error in prosecutor asking rhetorically and in reference to motive, “Why? Why does a person do that?”); Commonwealth v. Lawton , 82 Mass. App. Ct. 528, 541–542 (2012); Commonwealth v. Flint , 81 Mass. App. Ct. 794, 807 (2012) (“In the face of . . . direct assertions of evidence of improper motives underlying the victim’s accusations, it was fair for the prosecutor to reply by asking the jury rhetorically, ‘Why would a person make up something like this? What is the motive to fabricate? Are they being honest? Are they responsive to questions? Are they being direct? Do they appear to be forthcoming? Do they appear to be genuine? Do they sound as if they are giving contrived answers?’”). See also Commonwealth v. Nelson , 468 Mass. 1, 12–13 (2014) (rhetorical question did not shift burden of proof to defendant).
Subsection (b)(3)(F). This subsection is derived from Fyffe v. Massachusetts Bay Transp. Auth. , 86 Mass. App. Ct. 457, 478 (2014). “Jury nullification is inconsistent with a jury’s duty to return a guilty verdict of the highest crime proved beyond a reasonable doubt.” Commonwealth v. Kirwan , 448 Mass. 304, 319 (2007). See Commonwealth v. Fernette , 398 Mass. 658, 670–671 n.23 (1986) (“We recognize that jurors may return verdicts which do not comport with the judge’s instructions. We do not accept the premise that jurors have a right to nullify the law on which they are instructed by the judge, or that the judge must inform them of their power.”). Counsel should avoid any reference to the appellate process. Commonwealth v. Finstein , 426 Mass. 200, 205 n.1 (1997).
Subsection (c). This subsection is derived from Commonwealth v. Johnson , 374 Mass. 453, 458 (1978) (objection to closing argument not made until close of judge’s final instructions is ordinarily not timely to preserve issue for appellate review), and Commonwealth v. Beaudry , 445 Mass. 577, 587 (2005) (timely objection to an improper closing argument followed by “focused, particularized [curative] instructions” is not sufficient to preserve for appeal the issue of adequacy of the instructions to cure the improper argument where defense counsel acquiesced in the curative instruction). See Harlow v. Chin , 405 Mass. 697, 706 (1989) (if judge fails to cure alleged error, counsel must bring judge’s attention to alleged errors and omissions at end of charge).
Subsection (d). This subsection is derived from Commonwealth v. Witschi , 301 Mass. 459, 462 (1938); O'Neill v. Ross , 250 Mass. 92, 96–97 (1924); Posell v. Herscovitz , 237 Mass. 513, 514–515 (1921); and Commonwealth v. Truong , 34 Mass. App. Ct. 668, 671 (1993). The judge is “the directing and controlling mind at the trial, and not a mere functionary to preserve order and lend ceremonial dignity to the proceedings.” Whitney v. Wellesley & Boston St. Ry. Co. , 197 Mass. 495, 502 (1908). See also Beit v. Probate & Family Ct. Dep’t , 385 Mass. 854, 859 (1982); Sussman v. Commonwealth , 374 Mass. 692, 697 (1978). In discussing the duty of the judge in the circumstances of Commonwealth v. Cabot, the Supreme Judicial Court stated as follows:
“It was the duty of the judge to emphasize the fact that the argument [by the prosecutor] had been grossly improper, to point out in plain, unmistakable language the particulars in which it was unwarranted and to instruct the jury to cast aside in their deliberations the improper considerations that had been presented to them, using such clear and cogent language as would correct the obviously harmful effect of the argument.”
Commonwealth v. Cabot , 241 Mass. 131, 150–151 (1922). See also Commonwealth v. Pearce , 427 Mass. 642, 646 (1998) (trial judges have authority to interrupt “any argument” not “based solely on the evidence and all inferences therefrom”); Rolanti v. Boston Edison Corp. , 33 Mass. App. Ct. 516, 529 (1992) (“It is well established under our practice that a trial judge must take ‘rigorous and emphatic action’ to counteract prejudicial statements made in front of the jury.”). A judge has “considerable latitude” in the “choice of methods” to correct improper argument. Commonwealth v. Watson , 377 Mass. 814, 823 (1979), quoting Commonwealth v. Clark , 3 Mass. App. Ct. 481, 488 (1975). See Commonwealth v. Montecalvo , 367 Mass. 46, 56 (1975) (judge may guard against improper arguments by stopping counsel, instructing jury to disregard such an argument, or by combining both methods).
Responses to Improper Argument. For examples of proper responses to improper argument, see Rivera v. Club Caravan, Inc. , 77 Mass. App. Ct. 17, 21 (2010) (trial judge was appropriately specific and forceful in instructing jury to disregard reference in opening statement to blood alcohol level that would not be admitted in evidence); Salter v. Leventhal , 337 Mass. 679, 698 (1958); andHart v. Morris & Co. , 259 Mass. 211, 215 (1927). A judge may not limit closing arguments to the line of thought that the judge believes will prevail or is most consistent with the evidence. O’Driscoll v. Lynn & Boston R.R. , 180 Mass. 187 (1902). See also Gath v. M/A-Com, Inc. , 440 Mass. 482, 495 (2003) (judge’s instruction sufficient to correct improper argument on damages); Commonwealth v. Cutty , 47 Mass. App. Ct. 671, 675– 676 (1999) (judge must not prevent party from making relevant arguments that are based on evidence and fair inferences from evidence).
“[A] judge need take no vow of silence. He is there to see that justice is done, or at least to see that the jury have a fair chance to do justice. . . . The judge ought not to let the jury be diverted from the real issue. The skill of counsel must not be allowed to mislead the jury by raising false issues or by appeals to emotion and prejudice. . . . It is not always easy for a judge to see his duty clearly. But a first-rate trial judge will find and tread the narrow path that lies between meddlesomeness on the one hand and ineffectiveness and impotence on the other.”
Preventative Measures. There are several practical steps that judges may take to minimize the risk of error in closing arguments. One practice is to conduct a pre–closing argument conference to address the boundary lines of proper argument and any questions counsel may have. Commonwealth v. Finstein , 426 Mass. 200, 205 n.1 (1997). A judge also may wish to give a cautionary instruction to the jury before closing argument. See Commonwealth v. Olmande , 84 Mass. App. Ct. 231, 239–243 (2013) (Agnes, J., concurring).
Section 1114. Restitution
(a) Nature and Extent of Remedy. Restitution is a judicially determined penalty in the form of money or services imposed against the defendant in a criminal case or a juvenile in a delinquency case for the benefit of the victim of a crime. A judge may order restitution as a condition of probation provided that the judge finds, or the parties, in consultation with the probation department, agree, that (1) the victim has suffered economic loss that is causally related to the defendant’s criminal conduct, (2) the award does not exceed the victim’s economic loss, and (3) the defendant has the ability to pay the money or perform the services.
(b) Procedural Requirements. The defendant has the right to counsel and the right to be heard at a restitution hearing. Cross-examination of the victim is limited to the issue of restitution and does not extend to matters concerning guilt or innocence. Hearsay is admissible, but an award of restitution cannot rest entirely on unsubstantiated and unreliable hearsay. The Commonwealth has the burden of proving both a causal connection between the crime and the victim’s economic loss and the amount of the loss by a preponderance of the evidence.
(c) Judicial Determination. The amount of restitution ordered by the court must be based on evidence presented to the court or on a stipulation by the parties. The judge must determine (1) the amount of actual economic loss proved, (2) the appropriate length of the probation period, and (3) the defendant’s maximum monthly ability to pay. The defendant bears the burden of proving an inability to pay.
Subsection (a). This subsection is derived from Commonwealth v. Henry , 475 Mass. 117 (2016); Commonwealth v. Denehy , 466 Mass. 723 (2014); Commonwealth v. McIntyre , 436 Mass. 829 (2002); Commonwealth v. Malick , 86 Mass. App. Ct. 174 (2014); and Commonwealth v. Avram A. , 83 Mass. App. Ct. 208 (2013). See also G. L. c. 258B, § 1 (defining restitution as “money or services which a court orders a defendant to pay or render to a victim as part of the disposition”). Restitution is an “entirely judicially determined penalty” that is separate and distinct from “punishments such as imprisonment and fines that are accompanied by statutory prescriptions.” Commonwealth v. Denehy, 466 Mass. at 737. There is no right to trial by jury in connection with an order for restitution. Commonwealth v. Nawn , 394 Mass. 1, 8–9 (1985).
In Commonwealth v. McIntyre, the court explained that to establish a nexus between the defendant’s criminal conduct and the victim’s loss, the Commonwealth must prove that the “loss . . . is causally connected to the offense and bears a significant relationship to the offense. . . . [W]e look to the underlying facts of the charged offense, not the name of the crime [of which the defendant was convicted or] to which the defendant entered a plea.” Commonwealth v. McIntyre, 436 Mass. at 835. The court’s power to award restitution in criminal cases is “unquestionable” and derives from a judge’s power to order conditions of probation under G. L. c. 276, §§ 87 and 87A , and G. L. c. 279, § 1 . Commonwealth v. Denehy, 466 Mass. at 737. In Denehy, the Supreme Judicial Court rejected the argument that the constitutional principle that requires that certain factual determinations relating to sentencing must be found by a jury beyond a reasonable doubt does not apply to an award of restitution. Id. at 737–738. Restitution may not be ordered to reward anyone or to create an incentive for the dismissal of criminal charges. Commonwealth v. Rotonda , 434 Mass. 211, 221 (2001). Cf. G. L. c. 276, § 55 (accord and satisfaction). Restitution may be ordered as a condition of probation in the case of a conviction or a continuance without a finding. Commonwealth v. Rotonda, 434 Mass. at 221–222. An order of restitution is distinct from an order that the defendant pay the costs of the prosecution. See G. L. c. 280, § 6 (all such payments go to the Commonwealth not the victim). It is not necessary that the victim of a crime file a claim with an insurer to be eligible for restitution. Commonwealth v. Williams , 57 Mass. App. Ct. 917 (2003) (rescript).
The nexus between the defendant’s criminal conduct and the economic loss suffered by the victim does not require proof of every element of each crime with which the defendant is charged. Instead, the Commonwealth must establish “a significant causal relationship” between the facts admitted by the defendant or that form the basis of the crimes of which he or she is convicted and the economic losses suffered by the victim. See Commonwealth v. Denehy, 466 Mass. at 723 (There was a sufficient nexus between the defendant’s conviction for assault by means of a dangerous weapon and disorderly conduct and damage to the eyeglasses of the police officer attacked by the defendant even though the defendant was found not guilty of the charge of assault and battery on a police officer.); Commonwealth v. McIntyre , 436 Mass. at 835 (There was a sufficient causal relationship between damage to the victim’s automobile and the defendant’s conviction for stabbing the victim because, after the stabbing, the defendant returned to the scene and set his dog on the victim; eventually, as the victim retreated to his car to avoid the ongoing assault, the defendant kicked the victim’s car door and fender.); Commonwealth v. Palmer P. , 61 Mass. App. Ct. 230, 232 (2004) (Although the juvenile was found not delinquent of larceny, the facts related to the delinquency finding on the charge of breaking and entering during the daytime with intent to commit a felony was sufficient to support an order for restitution to the victim in the amount of $1,000 for the loss of his personal property.). But see Commonwealth v. Casanova , 65 Mass. App. Ct. 750, 750 (2006) (The evidence was not sufficient to establish a causal relationship between the victim’s injuries as a result of being struck in the face and stomach by the defendant and the victim’s decision one month later to withdraw from college, which caused him to incur a loss of $8,046 in tuition he had paid, although the court indicated that medical expenses, court-related travel expenses, property loss and damage, lost pay, and lost vacation days required to be used to attend court might be compensable as restitution.).
The Commonwealth must prove that the defendant’s criminal conduct is the cause in fact of the victim’s economic loss, and that such loss was a reasonably foreseeable consequence of the defendant’s conduct. Negligent acts of the victim or a third party that occur after the defendant’s criminal conduct do not necessarily break the causal connection between the defendant’s criminal conduct and the victim’s economic loss underlying an order of restitution. Commonwealth v. Buckley , 90 Mass. App. Ct. 177, 184 (2016) (due to miscommunication, victim was not notified for several months that police had recovered his vehicle and in interim had purchased replacement vehicle; negligence by third party did not break causal connection).
In Commonwealth v. Avram A. , 83 Mass. App. Ct. 208 (2013), an order to pay restitution in the amount of $1,063.78 against a twelve-year-old juvenile who had admitted to sufficient facts for a delinquency finding was upheld, along with an order extending the juvenile’s probation as a sanction for nonpayment of the restitution. The public policy of the Commonwealth favors the award of restitution to victims of crime “to the greatest extent possible.” G. L. c. 258B, § 3 . “There is no question that restitution is an appropriate consideration in a criminal sentencing.” Commonwealth v. Nawn , 394 Mass. 1, 6 (1985), citing Novelty Bias Binding Co. v. Shevrin , 342 Mass. 714, 717 (1961). See also G. L. c. 276, § 92A (providing that upon conviction of any one of enumerated offenses, defendant is required to pay restitution “for any financial loss sustained by the victim of his crime, his dependents or an insurer”).
Subsection (b). This subsection is derived from Commonwealth v. Denehy , 466 Mass. 723 (2014); Commonwealth v. Nawn , 394 Mass. 1, 6–8 (1985); and Commonwealth v. Casanova , 65 Mass. App. Ct. 750, 755–756 (2006). See Commonwealth v. Avram A. , 83 Mass. App. Ct. 208 (2013) (in case involving two incidents of tagging, upholding restitution order based in part on estimates of cost of repairs made by examining photographs of damage); Commonwealth v. Williams , 57 Mass. App. Ct. 917 (2003) (rescript) (repair cost estimates by various vendors for damage to glass in building and vehicle rather than actual costs for repairs was sufficient to support award of restitution). The victim has the right to assistance from the prosecutor in documenting and obtaining restitution. See G. L. c. 258B, § 3(e) . The prosecutor may offer testimony from the victim and expert witness testimony.
There is no right to a trial by jury in connection with an order for restitution. Commonwealth v. Nawn, 394 Mass. at 8–9.
Subsection (c). This section is derived from Commonwealth v. Henry , 475 Mass. 117 (2016). The Commonwealth bears the burden of proving that the victim’s actual economic loss is causally connected to defendant’s crime by a preponderance of the evidence. Id. at 121. The length of probation supervision imposed at the time of the sentence should not be based on the financial ability of the defendant but on the amount that will serve the dual goals of rehabilitation and protection of the public. Id. at 125. If the only basis for imposing probation is to collect restitution, the period of probation may be only for a brief period of time, thirty or sixty days. Id. at 125 n.8. Factors to be considered in determining the defendant’s ability to pay are the financial resources of the defendant, including income and net assets, and defendant’s financial obligations such as food, shelter, and clothing for the defendant and any dependents. Id. at 126. A payment order made as a condition of probation may not “cause a defendant a substantial financial hardship.” Id. at 127. Restitution as a condition of probation is established at the monthly amount the defendant is able to pay multiplied by the number of months of probation, but no more than the actual economic loss. Id. at 125. Where the victim is a retailer, economic loss is based on the wholesale, not retail, price, unless the Commonwealth proves the items “would have been sold were they not stolen.” Id. at 129.
Probation can be revoked or extended only upon a finding that the failure to pay the restitution amount was wilful and that there was an ability to pay. Id. at 121.
Section 1115. Evidentiary Issues in Care and Protection and Termination of Parental Rights Cases
(a) General Rule. Evidence in child protective cases—both parental unfitness and termination of parental rights (TPR) proceedings—is admissible according to the rules of the common law and the Massachusetts General Laws.
(b) Official/Public Records and Reports.
(1) Probation Records, Including Criminal Activity Record Information (CARI). Adult probation records, including CARI, are official records that are admissible as evidence of a parent’s character. Juvenile delinquency probation records are inadmissible in care and protection cases by operation of statute.
(2) Department of Children and Families (DCF) Records and Reports.
(A) G. L. c. 119, § 51A, Reports. Section 51A reports are admissible for the limited purpose of providing background information.
(B) G. L. c. 119, § 51B, Investigation Reports. Primary facts contained in Section 51B investigations are admissible. Statements of opinion, conclusions, and judgment contained in these reports are not admissible.
(C) DCF Service Plans, Affidavits, Foster Care Review Reports, Case Review Reports, and Family Assessments. Primary facts contained in these DCF records are admissible as official records. Assessments prepared by private entities under contract with the DCF also are admissible as official records.
(D) DCF Social Worker Investigation Reports. Reports of investigations into the facts of a child welfare case generated by DCF social workers generally are admissible under G. L. c. 119, § 21A, as official records. Parties seeking to challenge the contents of a Section 21A report must be afforded the opportunity to cross-examine the author should they request to do so.
(3) Drug and Alcohol Treatment Records. Drug and alcohol treatment records are confidential under State and Federal law. Such records may, however, be released to the parties by judicial order after application showing good cause therefor, including the need to avert a substantial risk of death or serious bodily harm, which specifically includes incidents of suspected child abuse and neglect.
(4) School Records. School records generally are admissible as official records, with the exception of records of clinical history and evaluations of students with special needs.
(5) Police Reports. Police reports regarding police responses are admissible as business records insofar as the report is a record of the police officers’ firsthand observations. Opinions and evaluations are not admissible. Hearsay statements within the report generally are not admissible unless the statement satisfies another hearsay exception.
(c) Written Court Reports.
(1) Court Investigation Reports. Written reports of court-appointed investigators are admissible.
(2) Guardian Ad Litem (GAL) Reports. Written guardian ad litem reports may properly be admitted into evidence and are entitled to such weight as the court sees fit to give them.
(3) Court-Appointed Special Advocate (CASA) Reports. Written CASA reports may properly be admitted into evidence and are entitled to such weight as the court sees fit to give them.
(4) Court-Ordered Psychiatric, Psychological, and Court Clinic Evaluation Reports. Written psychiatric, psychological, and Court Clinic evaluation reports generally are not admissible in evidence.
(d) Children’s Out-of-Court Statements.
(1) Statements Not Related to Sexual Abuse. Out-of-court statements made by children to social workers, teachers, experts, and evaluators, which statements are not related to sexual abuse, are admissible if they fall within an established exception to the hearsay rule.
(2) Statements Related to Sexual Abuse.
(A) Cases Involving TPR. An out-of-court statement of a child under the age of ten describing any act of sexual contact performed on or with the child, the circumstances under which it occurred, or the identity of the perpetrator offered in a TPR trial is admissible, provided that the statement is offered as evidence of a material fact and is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts, that the person to whom the statement was made or who heard the child make the statement testifies, that the court finds that the child is “unavailable” as a witness, and that the court finds the statement to be reliable.
(B) Custody Proceedings Not Involving TPR. In care and protection cases and other child custody proceedings that do not involve termination of parental rights, a child’s hearsay statement that describes any act of sexual contact performed on or with the child or the circumstances under which it occurred, or that identifies the perpetrator, is admissible, provided that the person to whom the statement was made or who heard the statement testifies, that the judge finds that the statement is offered as evidence of a material fact and is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable effort, and that the judge finds the statement to be reliable.
(1) Children. Children may testify in care and protection and TPR proceedings if the court determines, after consultation with the child’s attorney, that the child is competent and willing to do so.
(2) Foster/Preadoptive Parents. Foster parents and preadoptive parents have the right to attend care and protection trials and to be heard, subject to the usual evidentiary rules, but are not parties to care and protection or TPR proceedings.
(3) Parents Called by Adverse Party. A parent may be called as a witness by an opposing party. An adverse party who calls the parent as a witness may question the parent witness according to the rules of cross-examination.
(4) Social Workers. Social workers may be called as witnesses in care and protection and TPR proceedings regarding disclosures by a client that bear significantly on the client’s ability to provide suitable care or custody if the court first determines (1) that the social worker has such evidence, (2) that it is more important to the welfare of the child that the communication be disclosed than that the social worker–client relationship be preserved, and, if a TPR case, (3) that the patient has been informed that any such disclosure would not be privileged.
(5) Psychotherapists. Psychotherapists may be called as witnesses in care and protection and TPR proceedings regarding disclosures by a patient that bear significantly on the patient’s ability to provide suitable care and custody if the patient attempts to exercise the privilege at trial and the court then determines (1) that the psychotherapist has such evidence, (2) that it is more important to the welfare of the child that the information be disclosed than that the psychotherapist-patient relationship be preserved, and, if a TPR case, (3) that the patient has been informed that any such disclosure would not be privileged.
(6) Court-Appointed Investigators and G. L. c. 119, § 51B, Investigators. Court-appointed investigators appointed pursuant to G. L. c. 119, § 24, and investigators assigned to investigate G. L. c. 119, § 51A, reports pursuant to G. L. c. 119, § 51B, may be called as witnesses by any party for examination regarding the information contained in any such investigation report.
(7) Experts. Opinion testimony by persons qualified by the court as experts is admissible if it is based on scientific, technical, or specialized knowledge that will assist the trier of fact to understand the evidence or to determine a fact at issue.
(f) Other Evidence.
(1) Adoption Plans. Adoption plans prepared by the DCF are admissible.
(2) Bonding and Attachment Studies. Written reports of bonding and attachment studies are inadmissible. Evidence relevant to any such bonding and attachment study may be the subject of testimony from the evaluator.
(3) Judicial Findings from Prior Proceedings Regarding the Same Party or Parties. Judicial findings from prior proceedings regarding the same party or parties may be admissible if the findings are both relevant and material.
Subsection (a). This subsection is derived from G. L. c. 119, § 21A . Cross-Reference: Section 103, Rulings on Evidence, Objections, and Offers of Proof .
Subsection (b). This subsection is derived from Commonwealth v. Slavski , 245 Mass. 405, 415 (1923).
Subsection (b)(1). This subsection is derived from Adoption of Irwin , 28 Mass. App. Ct. 41, 43 (1989), and G. L. c. 276, § 100 . Probation records, including CARI, are records of the court system and are by statute available for use by the courts of the Commonwealth. Adoption of Irwin, 28 Mass. App. Ct. at 43. It is unnecessary to qualify probation records as business records because they are admissible as official records. Id. While not necessarily conclusive, a parent’s criminal record, as well as observations of his or her criminal conduct, are relevant as to the issue of parental fitness. Care & Protection of Frank , 409 Mass. 492, 495 (1991). “An adjudication of any child as a delinquent child . . . or any disposition thereunder . . . shall not be received in evidence or used against such child for any purpose in any proceedings in any court except in subsequent delinquency or criminal proceedings against the same person.” G. L. c. 119, § 60 .
Cross-Reference: Note to Section 405(b), Methods of Proving Character: By Specific Instances of Conduct .
Subsection (b)(2)(A). A “Section 51A report” is a report filed with the DCF that “details suspected child abuse or neglect.” G. L. c. 119, § 21 . Such reports are admissible only to “set the stage,” i.e., to explain the reasons for the filing of the petition. Care & Protection of Inga , 36 Mass. App. Ct. 660, 663–664 (1994), quoting Custody of Michel , 28 Mass. App. Ct. 260, 267 (1990). Competent evidence regarding an incident that was the subject of an unsubstantiated Section 51A report may be admitted at trial against a parent as long as the evidence is “sufficient to convey to a high degree of probability that the proposition is true.” Adoption of Rhona I , 57 Mass. App. Ct. 479, 484 (2003), quoting Adoption of Iris , 43 Mass. App. Ct. 95, 105 (1997). See also Adoption of Lorna , 46 Mass. App. Ct. 134, 141 (1999).
Subsection (b)(2)(B). This subsection is derived from Custody of Michel , 28 Mass. App. Ct. 260, 267 (1990), and Adoption of George , 27 Mass. App. Ct. 265, 272 (1994). Section 51B reports are required government documents and “may be considered for statements of fact, e.g., that there was screaming or beating or no food.” Custody of Michel, 28 Mass. App. Ct. at 267. Hearsay statements contained in these reports may only be admitted for the truth asserted therein if they are statements of primary fact, or if they satisfy some other established exception to the hearsay rule. Adoption of George, 27 Mass. App. Ct. at 272. “‘Primary fact’ is not a self-defining phrase, but at least connotes facts which can be recorded without recourse to discretion and judgment, e.g., the fire alarm sounded at 10:30 p.m.; it was raining lightly at the time of the accident; the child was placed with Mr. and Mrs. Doe . . . .” Id. at 274. The exclusion of expressions of opinion, evaluation, or judgment from official records is a “practical working rule” that has exceptions. Id. at 272. “More leeway” relative to admissibility may be given to material that “smacks of opinion” if the source of the opinion is available for cross-examination. Id. at 274.
Subsection (b)(2)(C). This subsection is derived from Adoption of George , 27 Mass. App. Ct. 265 (1994); Care & Protection of Zita , 455 Mass. 272, 275 n.6 (2009) (petitions in care and protection cases are pleadings and are not evidence, and are separate and distinct from DCF affidavits, which are official records); and Care & Protection of Bruce , 44 Mass. App. Ct. 758, 766 (1998) (DCF affidavits are reports of agents of DCF and are admissible as official records). Statements of primary fact contained in these DCF documents, including affidavits supporting care and protection petitions, are admissible under the official records exception to the hearsay rule, see Section 803(8), after redaction of expressions of opinion, evaluation, or judgment. Adoption of George, 27 Mass. App. Ct. at 271, 274–275. Service plans also are admissible under a statutory exception to the hearsay rule contained in G. L. c. 119, § 29 . See the note for Subsection (b)(2)(B) above regarding the meaning of “primary fact,” as well as regarding the extra “leeway” given to the admissibility of expressions of opinion, evaluation, or judgment included in these records. A private entity’s assessment or case review performed under a contract with the DCF is admissible in the same manner as an official record prepared by the DCF because the private entity was required to conduct the assessment as an agent of the DCF. Adoption of Vidal , 56 Mass. App. Ct. 916, 916 (2002).
Subsection (b)(2)(D). This subsection is derived from Care & Protection of Bruce , 44 Mass. App. Ct. 758, 765–766 (1998). As with other public/official records, DCF investigative reports admissible under G. L. c. 119, § 21A , must be limited to factual information. Opinions, conclusions, diagnoses, and evaluations contained within them should be redacted. Id. at 766. The admissibility of hearsay statements contained in these reports is subject to the court’s discretion. Such statements may be admitted subject to the availability for cross- examination of the author and his or her sources. Custody of Michel , 28 Mass. App. Ct. 260, 267 (1990). As with G. L. c. 119, § 51B , reports, statements of fact made by other DCF personnel under an official duty to report the facts to the author of a Section 21A report also are admissible. Adoption of George , 27 Mass. App. Ct. 265, 272 (1994).
Subsection (b)(3). This subsection is derived from G. L. c. 111B, § 11 (alcoholism treatment records); G. L. c. 111E, § 18 (drug rehabilitation treatment records); and 42 U.S.C. § 290dd-2 (substance abuse treatment records). Federal regulations require that, before issuing an order for release of these records to one or more parties, the court must determine that “disclosure [of the information] is necessary to protect against an existing threat to life or of serious bodily injury, including circumstances which constitute suspected child abuse and neglect and verbal threats against third parties [(among other things)].” 42 C.F.R. § 2.63(a)(1)-(3) . Orders of appointment issued to court-appointed investigators do not satisfy the requirements of State and Federal law and therefore do not permit the court investigator to obtain drug and alcohol treatment records where the specific factual determination necessary for release of these records has not been made by the appointing judge.
Cross-Reference: Introductory Note (f)(5) to Article V, Privileges and Disqualifications .
Subsection (b)(4). This subsection is derived from Introductory Note (f)(2) and (f)(3) to Article V, Privileges and Disqualifications. There is no privilege preventing the introduction of relevant school records in evidence at trial, and most school records are admissible as official records. See Introductory Note (f)(2) to Article V, Privileges and Disqualifications (student records). Records of the clinical history and evaluations of students with special needs, created or maintained in accordance with G. L. c. 71B , are confidential but not privileged. G. L. c. 71B, § 3 . See Introductory Note (f)(3) (special needs student records) and Introductory Note (d) (confidentiality versus privilege) to Article V, Privileges and Disqualifications.
Subsection (b)(5). This subsection is derived from G. L. c. 233, § 78 . See Adoption of Paula , 420 Mass. 716, 727 (1995); Julian v. Randazzo , 380 Mass. 391 (1980). Besides the ordinary business records hearsay exception, there is an additional business records exception permitting second-level hearsay where the proponent of a hearsay statement shows “that all persons in the chain of communication, from the observer to the preparer, reported the information as a matter of business duty or business routine.” Irwin v. Town of Ware , 392 Mass. 745, 749 (1984), quoting Wingate v. Emery Air Freight Corp. , 385 Mass. 402, 406 (1982).
Subsection (c). This subsection is derived from G. L. c. 119, § 24 .
Subsection (c)(1). By the express terms of G. L. c. 119, § 24 , investigators’ reports are admissible and become part of the record in care and protection cases. Care & Protection of Zita , 455 Mass. 272, 281 (2009), citing Custody of Michel , 28 Mass. App. Ct. 260, 265 (1990). Hearsay statements, including multilevel hearsay, contained within the reports, including opinions, clinical observations, and recommendations, are admissible probatively as long as the declarant is identifiable and the parties have a fair opportunity to rebut the statements of both the investigator and his or her sources through cross-examination or other means. Id.; Gilmore v. Gilmore , 369 Mass. 598, 604–605 (1976); Adoption of Astrid , 45 Mass. App. Ct. 538, 546 (1998). This principle applies to hearsay statements of children against their parents that are contained in investigators’ reports. Care & Protection of Inga , 36 Mass. App. Ct. 660, 664 (1994). “When a judge appoints an investigator under G. L. c. 119, § 24 , it signifies the judge’s expectation that the [investigator] has the training and specialized knowledge which will enable the [investigator] to make and report acute observations about the interactions of family members, and their respective mental conditions.” Custody of Michel, 28 Mass. App. Ct. at 266. Opinions of the court investigator as to the credibility of another witness (including the credibility of any source) are not admissible. Commonwealth v. Triplett , 398 Mass. 561, 567 (1986) (“[I]t is a fundamental principle that ‘a witness cannot be asked to assess the credibility of his testimony or that of other witnesses’” [citation omitted].).
Subsection (c)(2). Guardian ad litem (GAL) reports are analogous to court investigator reports in that hearsay, including multilevel hearsay, generally is admissible. See the Note to Subsection (c)(1) above and Adoption of Sean , 36 Mass. App. Ct. 261, 263 (1994). Guardian ad litem reports containing hearsay information are admissible, including multilevel hearsay and clinical evaluations, if the guardian ad litem is available to testify at trial and the source of the material is sufficiently identified so that the affected party has an opportunity to rebut any adverse or erroneous material contained therein. Adoption of Sean, 36 Mass. App. Ct. at 264. Adoption of Sean leaves open the question whether expert opinions contained in GAL reports are admissible. Id. Where neither party offered the investigator’s report into evidence, it is “sound practice” for the judge to give notice to the parties if the judge intends to use the report. See Custody of Two Minors , 19 Mass. App. Ct. 552, 559 (1985).
Subsection (c)(3). A CASA is analogous to a guardian ad litem. Adoption of Georgia , 433 Mass. 62, 68 (2000). See the Note to Subsection (c)(2) above. For a CASA report to be admitted into evidence, including reports containing multilevel hearsay, the CASA must be available to testify at trial, and the sources of the information contained in the report must be sufficiently identified so that the affected party has an opportunity to rebut. Id. at 68–69. A CASA is not qualified to file a report containing the CASA’s expert opinions or to testify as an expert simply by being a CASA. Rather, when an objection is made regarding a CASA’s qualifications to render an expert opinion, the court must determine whether the CASA is qualified to do so. Id. at 68 n.6. A CASA report may include “clinical evaluations” of others as long as the CASA is available to testify and the source of the evaluative material is sufficiently identified so that the affected party has an opportunity to rebut. Adoption of Sean , 36 Mass. App. Ct. 261, 264 (1994).
Subsection (c)(4). Written court-ordered psychiatric evaluation reports are inadmissible. Adoption of Seth , 29 Mass. App. Ct. 343, 351–352 (1990). Although those who conduct psychological evaluations, including psychological evaluations that are court ordered, may testify in care and protection and TPR proceedings (see Subsections [e], , and  below), there is no exception to the hearsay rule pertaining to written reports of such evaluations.
Cross-Reference: Section 503(d)(2), Psychotherapist-Patient Privilege: Exceptions: Court-Ordered Psychiatric Exam ; Section 503(d)(5), Psychotherapist-Patient Privilege: Exceptions: Child Custody and Adoption Cases .
Subsection (d)(1). This subsection is derived from Custody of Michel , 28 Mass. App. Ct. 260, 267 (1990). Children’s out-of-court statements to social workers, teachers, experts, and evaluators, including expressed preferences regarding where they want to live, are admissible insofar as the statements reflect the mental state of the children at the time. A child’s state of mind is often a material issue in child custody cases. Id. A child’s out-of-court hearsay statement made to an expert witness may also be admissible, not for the truth of the matter asserted, but rather to indicate the basis of an expert opinion given by the witness. Id. Similarly, a child’s statement may be admissible when used for diagnostic or treatment purposes. Id. at 268. See Mass. G. Evid. § 705. A child’s extrajudicial statement concerning a parent is not admissible as an admission by a party- opponent. Care & Protection of Sophie , 449 Mass. 100, 110 (2007); Mass. G. Evid. § 801(d)(2). With respect to a child’s privileged communications to a social worker or psychotherapist, exceptions exist that permit such statements to be admitted in certain circumstances. See Mass. G. Evid. § § 503(d), 507(c). Children’s out-of-court statements to court-appointed investigators are admissible where there is “an opportunity to refute the investigator and the investigator’s sources through cross-examination and other means.” Custody of Michel, 28 Mass. App. Ct. at 266. The child’s parent must be allowed the opportunity to effectively rebut such hearsay when the child does not testify and the trial judge has no other means by which to assess the credibility and accuracy of the child’s statements. Id.
Subsection (d)(2). This subsection is derived from G. L. c. 233, §§ 82 and 83 . Cross-Reference: Section 503(d)(5), Psychotherapist-Patient Privilege: Exceptions: Child Custody and Adoption Cases ; Section 803(24), Hearsay Exceptions; Availability of Declarant Immaterial: Out-of-Court Statement of Child Describing Sexual Contact in Proceeding to Place Child in Foster Care .
Subsection (d)(2)(A). This subsection is derived from G. L. c. 233, § 82 . “Child under the age of ten” refers to the age of the child at the time the out-of-court statements were made, not the age of the child at the time of trial. Adoption of Daisy , 460 Mass. 72, 78–79 (2011). The following procedures must be utilized in Section 82 proceedings: (1) the DCF must give prior notice to the parent of their intention to introduce a child’s out-of-court statements regarding alleged sexual abuse; (2) the DCF must show by more than a mere preponderance of the evidence that a compelling need exists for use of such a procedure; (3) any separate hearing regarding the reliability of the child’s out-of-court statements must be on the record; (4) specific findings must be issued that present the basis upon which the reliability of the statements was determined; and (5) independently admitted evidence must be presented that corroborates the out-of-court statements. See Mass. G. Evid. § 804(b)(9); Adoption of Quentin , 424 Mass. 882, 892 (1997); Adoption of Olivette , 79 Mass. App. Ct. 141, 147 (2011), quoting Adoption of Arnold , 50 Mass. App. Ct. 743, 752 (2001).
Cross-Reference: Section 804(b)(9), Hearsay Exceptions; Declarant Unavailable: The Exceptions: Out-of-Court Statement of Child Describing Sexual Contact in Civil Proceeding, Including Termination of Parental Rights .
Subsection (d)(2)(B). This subsection is derived from G. L. c. 233, § 83 . See Section 803(24), Hearsay Exceptions; Availability of Declarant Immaterial: Out-of-Court Statement of Child Describing Sexual Contact in Proceeding to Place Child in Foster Care . Where a care and protection case is joined with a TPR proceeding, the hearing should comply with the stricter requirements of G. L. c. 233, § 82 . Adoption of Tina , 45 Mass. App. Ct. 727, 733 (1998).
Subsection (e)(1). This subsection is derived from G. L. c. 119, § 21A , and G. L. c. 233, § 20 . Every person is competent to be a witness, unless excepted by statute or common law. This includes children of all ages who (1) have the ability to observe, remember, and give expression to that which they have seen, heard, or experienced and (2) have an understanding sufficient to comprehend the difference between truth and falsehood, their duty to tell the truth, that lying is wrong, and that failure to tell the truth will result in punishment. Mass. G. Evid. § 601(b) . In care and protection and termination of parental rights proceedings, “[evidence] may include the testimony of the child if the court determines that the child is competent and willing, after consultation with counsel, if any, to testify.” G. L. c. 119, § 21A (emphasis supplied). Judges must be sensitive to a child’s limited stamina and have considerable latitude to devise procedures and modify the usual rules of trial to accommodate child and other witnesses with special needs. Commonwealth v. Brusgulis , 398 Mass. 325, 332 (1986).
Cross Reference: Section 601, Competency .
Subsection (e)(2). This subsection is derived from G. L. c. 119, § 29D . Foster and preadoptive parents have a statutory right to testify at trial. Such testimony must be taken as any other witness’s, under oath and subject to cross-examination. Adoption of Sherry , 435 Mass. 331, 337 (2001).
Subsection (e)(3). This subsection is derived from G. L. c. 233, § 22 . Absent a valid assertion of a Fifth Amendment privilege, a parent may be required to testify in care and protection and TPR proceedings. Adoption of Salvatore , 57 Mass. App. Ct. 929, 930 (2003). The burden is on the party asserting the Fifth Amendment privilege to establish its existence. Commonwealth v. Brennan , 386 Mass. 772, 780 (1982). Negative inferences may be drawn against a party who asserts the privilege. See Care & Protection of Sharlene , 445 Mass. 756, 767 (2006). See also Mass. G. Evid. § 511 .
Subsection (e)(4). This subsection is derived from G. L. c. 112, §§ 135, 135A,and 135B .
General Laws c.112, § 135A , requires that from the initial phase of the professional relationship, a social worker shall inform the client about the confidential nature of their communications and not disclose any information acquired or revealed from the client except, inter alia, in the initiation of, or to give testimony in connection with, a proceeding under Paragraph C of G. L. c. 119, § 23 , to commit a child facing abuse or neglect to the custody of the department or agency, or to transfer custody by way of an emergency order, or to dispense with the need for consent to adoption of the child in the care or custody of the department or agency.
General Laws c. 112, § 135B , creates a privilege enabling a client to refuse to disclose, or prevent a witness from disclosing, any communication between the client and the social worker relative to the diagnosis or treatment of the client’s mental or emotional condition. The exception to the privilege in this subsection is taken nearly verbatim from G. L. c. 112, § 135B(g) .
Subsection (e)(5). This subsection is derived from G. L. c. 233, § 20B . See Section 503(a) for definitions of “psychotherapist,” “patient,” and “communications,” and Section 503(b) and (d) for descriptions of, and exceptions to, the privilege. See also Commonwealth v. Lamb , 365 Mass. 265, 270 (1974). Because the privilege is not self-executing, the patient must attempt to assert it during the trial. Adoption of Carla, 416 Mass. 510, 515 (1993).
Subsection (e)(6). This subsection is derived from G. L. c. 119, § 21A .
Subsection (e)(7). This subsection is modeled after Sections 702, 703, and 705 . Massachusetts law, unlike Federal law, allows expert opinion on the ultimate issue. Mass. G. Evid. § 704 . Expert testimony that simply “vouches” for the credibility of other witnesses, opines as to whether a child told the truth, makes legal conclusions, or renders an opinion within the common understanding of the trier of fact is inadmissible. See Mass. G. Evid. § 704 . See also Care & Protection of Rebecca , 419 Mass. 67, 83 (1994); Adoption of Olivette , 79 Mass. App. Ct. 141, 152 (2011).
Cross-Reference: Section 702, Testimony by Expert Witnesses .
Subsection (f)(1). This subsection is derived from G. L. c. 210, § 3(c) . Section 3(c) requires the court to consider the adoption plan by the DCF, which plan need not be in writing but may be presented to the court through testimony. Adoption of Stuart , 39 Mass. App. Ct. 380, 393–394 (1995). It is not necessary that the plan be fully developed or that the plan identify prospective adoptive parents, but it must have sufficient content and substance to permit the court to meaningfully evaluate and consider the suitability of the DCF adoption plan. Adoption of Lars , 46 Mass. App. Ct. 30, 31 (1998).
Subsection (f)(2). Bonding and attachment evaluators may testify in the same manner as any other witness. Expert opinions held by such evaluators are admissible subject to Sections 702, Testimony by Expert Witnesses , and 703, Bases of Opinion Testimony by Experts .
Subsection (f)(3). Findings of fact in a prior care and protection proceeding that are not “out of date, or the product of a proceeding where the parent may not have a compelling incentive to litigate,” may be admitted in a subsequent proceeding to the extent that they are both relevant and material. Adoption of Paula , 420 Mass. 716, 721 (1995). The parties and the judge are not bound by the prior findings, which carry no special evidentiary weight, and evidence may be offered by any party as to any of the issues covered by the prior findings, either to support or contradict them. Id. at 722. Where a prior proceeding is on appeal, the better practice is for the judge to decline to admit the prior findings in the subsequent proceeding. Adoption of Simone , 427 Mass. 34, 43 (1998), citing Adoption of Paula, 420 Mass. at 722.
Section 1116. Peremptory Challenges of Potential Jurors
(a) General Principles. This section applies to the use of peremptory challenges in civil, criminal, and juvenile cases. Peremptory challenges of potential jurors, which generally do not have to be supported by a reason, may not be based on a belief that the juror is biased because of the juror’s membership in a discrete community group, including groups based on gender, race, creed, religious belief, or national origin. Peremptory challenges may be based on a belief that a juror is biased as a result of factors such as age, employment, place of residence, educational level, income, demeanor, or conduct, or factors other than membership in a discrete community group.
(b) Objecting to a Peremptory Challenge. An objection to a peremptory challenge may be made by a party or the matter may be raised by the judge in the absence of an objection. Whether an objection to the exercise of a peremptory challenge should be overruled or sustained requires a three-stage analysis. The judge must make specific findings on the record at each stage.
(1) Stage One: Prima Facie Case of Unlawful Discrimination. There is a rebuttable presumption that a peremptory challenge is lawful. The party opposed to the peremptory challenge has the initial burden to present some evidence that the challenge is based on the juror’s membership in a discrete community group and is not based on a personal characteristic of the juror. A single peremptory challenge may be sufficient to establish a prima facie case of unlawful discrimination. The judge must make an explicit finding on the record whether the presumption of regularity has been overcome.
(2) Stage Two: Burden Shifts to Party Exercising Challenge. Once the moving party has overcome the presumption of regularity, the burden shifts to the party which exercised the peremptory challenge to supply a group-neutral, bona fide reason for the peremptory challenge. The reason must be clear, reasonably specific, related to the case before the court, and personal to the juror. Good faith alone is insufficient. The judge must allow all parties to be heard and may take evidence.
(3) Stage Three: Evaluation of Group-Neutral Explanation. The judge must determine whether the explanation given by the party exercising the peremptory challenge is bona fide or a pretext. The judge must make two specific findings on the record regarding the explanation:
(A) whether the reason given for the peremptory challenge is based on a factor other than the juror’s membership in a discrete community group, and
(B) whether the reason given for the peremptory challenge is genuine.
(c) Overruling the Objection. The judge must overrule the objection and allow the exercise of the peremptory challenge if the party opposed to the peremptory challenge has not established a prima facie case to overcome the presumption of regularity, or if the judge determines that
(1) the peremptory challenge was based on a specific reason other than the juror’s membership in a discrete community group, and
(2) the reason given for the peremptory challenge was credible, genuine, and not a pretext.
(d) Sustaining the Objection. The judge must sustain the objection to the peremptory challenge if the judge determines that
(1) the peremptory challenge was not based on a specific reason other than the juror’s membership in a protected class, or
(2) the reason given for the peremptory challenge was not credible or genuine, and was a pretext.
Subsection (a). This subsection is derived from Commonwealth v. Soares , 377 Mass. 461, cert. denied, 444 U.S. 881 (1979). “Defendants have a right under the United States Constitution and the Massachusetts Declaration of Rights to be tried by an impartial jury.” Commonwealth v. Obi , 475 Mass. 541, 550 (2016). All parties, including the Commonwealth, are entitled to a jury that has not been unfairly skewed. See Commonwealth v. Prunty , 462 Mass. 295, 308 (2012) (ensuring nondiscriminatory use of peremptory challenges is intended to benefit both sides in a criminal trial); Commonwealth v. Fruchtman , 418 Mass. 8, 13 (1994) (“[t]he Commonwealth is equally entitled to a fairly selected and representative jury . . .”); Anderson-Mole v. University of Mass. , 49 Mass. App. Ct. 723, 724 (2000) (“[c]ivil litigants, as well as parties in criminal cases, are entitled to a jury that has not been unfairly skewed”). Potential jurors are also entitled to the opportunity to serve on a jury without fear of being discriminated against. Commonwealth v. Prunty, 462 Mass. at 308. However, when a party is unlawfully deprived of a peremptory challenge, which results in the party having to accept a juror it did not wish to be seated on the jury, and that juror participates in deliberations, it is reversible error without a showing of prejudice. Commonwealth v. Smith , 461 Mass. 438, 443 (2012); Gates v. Flood , 57 Mass. App. Ct. 739, 742–743 (2003).
Protected Groups. The terms “discrete community group” and “protected group” reflect the language contained in Article 1 of the Declaration of Rights of the Constitution of the Commonwealth, as amended by Article 106 of the Amendments to the Massachusetts Constitution (Equal Rights Amendment), and include sex, race, color, creed, and national origin. Commonwealth v. Soares, 377 Mass. at 488 n.33. Contrast Commonwealth v. Wood , 389 Mass. 552, 564 (1983) (age is not a discrete or defined group); Commonwealth v. Acen , 396 Mass. 472, 477–478 (1986) (non-English speakers and noncitizens are not protected groups); Commonwealth v. Matthews , 406 Mass. 380, 389 (1990) (suburban parents and caretakers of adolescent children are not protected groups); and Commonwealth v. Evans , 438 Mass. 142, 149–150 (2002), cert. denied, 538 U.S. 966 (2003) (college students are not a protected group). The Supreme Judicial Court “has not considered the question whether the exercise of a peremptory challenge to remove a juror because of his or her sexual orientation or because the juror was transgendered would violate the guarantees of art. 12 or the equal protection clause.” Commonwealth v. Smith , 450 Mass. 395, 405 (2008).
The party opposing the exercise of a peremptory challenge must demonstrate that the challenged juror is a member of a protected group. Commonwealth v. Suarez , 59 Mass. App. Ct. 111, 114 (2003). See Commonwealth v. Obi , 475 Mass. 541, 550–551 (2016) (judge’s observation that juror wore headscarf traditionally worn by Muslim women and similar to that worn by Muslim victim was sufficient to establish juror’s membership in discrete group).
Subsection (b). This subsection is derived from Commonwealth v. Soares , 377 Mass. 461, 488, cert. denied, 444 U.S. 881 (1979).
Either a party or the judge, sua sponte, may initially raise the issue of a potentially improper peremptory challenge. Commonwealth v. Maldonado , 439 Mass. 460, 463 (2003). See Commonwealth v. LeClair , 429 Mass. 313, 322 (1999) (“immaterial” whether issue is initially raised by judge or opposing party).
It is imperative that the judge make explicit findings on the record at each stage of the analysis. Commonwealth v. Maldonado, 439 Mass. at 465 (judge must make specific findings as to whether explanation for peremptory challenge is both adequate and genuine); Commonwealth v. Burnett , 418 Mass. 769, 771 (1994) (trial judge should make finding as to whether requisite prima facie showing of impropriety has been made).
Timing of the Objection. To preserve the issue of an improper peremptory challenge on appeal, the objection to the peremptory challenge must be made as soon as it becomes evident that a pattern of unlawful challenges exists and prior to empanelment. Commonwealth v. Smith , 450 Mass. 395, 406 (2008) (trial judge’s obligation to assess propriety of peremptory challenge is not triggered where counsel fails to object or assert that pattern of improper exclusion has been established); Commonwealth v. Colon-Cruz , 408 Mass. 533, 550 (1990) (a record in which a party has not had an opportunity to explain the use of peremptory challenges is inadequate to raise a challenge to an allegedly impermissible peremptory challenge); Commonwealth v. Sosnowski , 43 Mass. App. Ct. 367, 372–373 (1997) (propriety of peremptory challenge could not be reviewed on appeal because defendant failed to object at trial).
Subsection (b)(1). The court begins with the presumption that the exercise of a peremptory challenge is proper. See Commonwealth v. Maldonado , 439 Mass. 460, 463 (2003); Commonwealth v. Curtiss , 424 Mass. 78, 80 (1997). To rebut that presumption, the party opposing the peremptory challenge must establish a prima facie case of discrimination by showing (1) a pattern of excluding members of a discrete group, or in some circumstances a single member of a discrete group, and (2) individuals are being excluded solely on the basis of their membership in that group. See Commonwealth v. Garrey , 436 Mass. 422, 428 (2002). The second prong of the prima facie case has been described as whether it was “likely” that peremptory challenges were used to exclude members of a protected class. See id. This burden has since been described as not “a terribly weighty one.” Commonwealth v. Maldonado, 439 Mass. at 464 n.4. See Commonwealth v. Obi , 475 Mass. 541, 550–551 (2016) (prima facie case met where challenged juror was Muslim, defendant was Muslim, and no other prospective jurors appeared to be Muslim); Commonwealth v. Rodriguez , 457 Mass. 461, 472 (2010) (removal of sole Hispanic juror adequate to rebut presumption). But see Commonwealth v. Roche , 44 Mass. App. Ct. 372, 377–378 & n.3 (1998) (peremptory challenge of member of protected class does not, by itself, constitute prima facie showing of impropriety). However, the United States Supreme Court stated that the party opposing the peremptory challenge must offer “evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” Johnson v. California , 545 U.S. 162, 170 (2005) (“California’s ‘more likely than not’ standard is at odds with the prima facie inquiry mandated by [Batson v. Kentucky , 476 U.S. 79 (1986)]”).
Generally, a judge must make a finding that the prima facie case has been made before requiring the party who made the allegedly improper challenge to provide reasons for the peremptory challenge. Commonwealth v. Green , 420 Mass. 771, 776–777 (1995). See Commonwealth v. Calderon , 431 Mass. 21, 25–26 (2000) (requiring party exercising peremptory challenge to provide explanation may demonstrate implicit finding that prima facie case has been made). However, in the early stages of jury selection, the trial judge also has broad discretion to require an explanation without making the determination that a pattern of improper exclusion exists. See Commonwealth v. Scott , 463 Mass. 561, 571 (2012), quoting Commonwealth v. Van Winkle , 443 Mass. 230, 236 (2005) (“[w]here a venire contains ‘a paucity of African-Americans’ a judge has broad discretion to require an explanation without first making the determination that a pattern of improper exclusion exists”), quoting Commonwealth v. Garrey , 436 Mass. 422, 429 (2002).
Factors that may be considered in evaluating whether the prima facie showing has been established are the number and percentage of group members excluded and whether the challenged jurors are members of the same constitutionally protected group as the defendant or victim. See Commonwealth v. Obi , 475 Mass. 541, 551 (2016); Commonwealth v. Issa , 466 Mass. 1, 9 (2013). The trial judge may also consider other relevant circumstances when considering the second part of the prima facie case. See, e.g., Commonwealth v. Issa, 466 Mass. at 10 (judge did not abuse his discretion in considering other relevant circumstances, including prosecutor’s statement that challenged juror looked familiar).
In some circumstances, a single peremptory challenge may be sufficient to rebut the presumption. See Commonwealth v. Issa, 466 Mass. at 9 (first part of prima facie test was satisfied by showing that prosecutor challenged only African-America male juror remaining in venire); Commonwealth v. Prunty , 462 Mass. 295, 306 n.15 (2012) (trial judge properly requested explanation for defendant’s peremptory challenge of only African-American in venire). See also Commonwealth v. Maldonado , 439 Mass. 460, 463 n.3 (2003) (“the ultimate issue is not whether there is a ‘pattern’ of excluding a discrete group, but whether the challenge made to any member of the panel is impermissibly based on the juror’s membership in one of the discrete groups protected under [Commonwealth v. Soares]”).
It is within the trial judge’s discretion to determine whether the party opposing the exercise of a peremptory challenge has rebutted the presumption of propriety. Commonwealth v. Issa, 466 Mass. at 10; Commonwealth v. Prunty, 462 Mass. at 304. See, e.g., Commonwealth v. Scott , 463 Mass. 561, 571 (2012) (judge did not abuse discretion in finding no pattern of discriminatory challenges); Commonwealth v. Aspen , 53 Mass. App. Ct. 259, 262 (2001) (appellate courts will not substitute their judgment for trial judge’s concerning whether presumption has been rebutted if there is support for it on the record, because trial judge is in best position to decide if peremptory challenge appears improper).
Subsection (b)(2). If the trial judge finds that the prima facie case has been met, the burden shifts to the party who sought to exercise the challenge to provide, if possible, a justification for that challenge that is “group neutral” or unrelated to the prospective juror’s group affiliation. Commonwealth v. Scott , 463 Mass. 561, 570 (2012); Commonwealth v. Prunty , 462 Mass. 295, 306 (2012). While general assertions are not enough, the level of specificity does not have to rise to the level of specificity required to remove a juror for cause. Commonwealth v. Cavotta , 48 Mass. App. Ct. 636, 638 (2000) (attitude, bearing, and demeanor of juror during voir dire may constitute sufficient basis for peremptory removal). See also Commonwealth v. Soares , 377 Mass. 461, 491, cert. denied, 444 U.S. 881 (1979); Commonwealth v. Mathews , 31 Mass. App. Ct. 564, 568 (1991), cert. denied sub nom. Mathews v. Rakiey, 504 U.S. 922 (1992). The trial judge must not provide the group-neutral reason for the preemptory challenge. See Commonwealth v. Fryar , 414 Mass. 732, 740–741 (1993) (although trial judge properly found prima facie case had been made, reversible error for judge to supply group-neutral reason instead of waiting to hear from party exercising challenge). After the party seeking to exercise the peremptory challenge asserts their group-neutral reason, the opposing party should be allowed to rebut the proffered explanation as mere pretext. See Commonwealth v. Maldonado , 439 Mass. 460, 464 n.6. (2003).
Subsection (b)(3). The third stage requires the judge to determine whether the reason provided was a bona fide reason for exercising the challenge or a mere pretext to avoid admitting facts of group discrimination. Commonwealth v. Soares , 377 Mass. 461, 491, cert. denied, 444 U.S. 881 (1979). In determining whether an explanation is bona fide or pretextual, the trial judge must make findings concerning two points: (1) whether the explanation is “adequate” and (2) whether the explanation is “genuine.” Commonwealth v. Maldonado , 439 Mass. 460, 464 (2003). While the soundness of the proffered explanation may be a strong indicator of its genuineness, the two prongs of the analysis are not identical. Id. at 466.
The judge must make specific findings or provide an explanation which is ascertainable to an appellate court concerning whether the party asserting the challenge provided both an adequate and genuine explanation for the peremptory challenge. See Commonwealth v. Benoit , 452 Mass. 212, 220 (2008) (trial judge’s specific findings aid appellate courts in ascertaining whether judge “considered both the adequacy and the genuineness of the proffered explanation, and did not conflate the two into a simple consideration of whether the explanation was ‘reasonable’ or ‘group neutral’”) (quotation omitted). See also Commonwealth v. Rodriguez , 457 Mass. 461, 470–471 (2010); Commonwealth v. Lacoy , 90 Mass. App. Ct. 427, 432 (2016). An appellate court is “not in a position to give deference to the judge’s findings” when the record does not reflect the trial judge’s independent evaluation and determination of the adequacy and credibility of the challenging party’s proffered reason for the peremptory challenge. Commonwealth v. Benoit, 452 Mass. at 223.
Subsection (b)(3)(A). Adequacy refers to the soundness of the proffered explanation. Commonwealth v. Maldonado , 439 Mass. 460, 464–465 (2003). An explanation is adequate if it is clear and reasonably specific, personal to the juror and not based on the juror’s group affiliation, and related to the particular case being tried. Id. Subjective challenges, such as a challenge to a juror’s looks or gestures, or a party’s “gut feeling,” should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination. Commonwealth v. Benoit , 452 Mass. 212, 219 (2008) (the inquiry must determine whether explanation is belatedly contrived to avoid admitting facts of group discrimination). See, e.g., Commonwealth v. Obi , 475 Mass. 541, 550–551 (2016) (defense counsel’s “gut feeling” that juror would not be sympathetic to defendant was insufficient); Commonwealth v. Calderon , 431 Mass. 21, 27 n.4 (2000) (juror who smiled at defense counsel did not justify challenge). Similarly, mere affirmations of good faith are not sufficient. See Commonwealth v. Carleton , 36 Mass. App. Ct. 137, 144 (1994). A trial judge’s determination that the explanation offered by the party exercising the peremptory challenge is adequate is within the sound discretion of the judge and will not be disturbed so long as there is support for the ruling in the record. Commonwealth v. Scott , 463 Mass. 561, 570 (2012). See Commonwealth v. Prunty , 462 Mass. 295, 309–310 (2012) (trial judge entitled to disbelieve defendant’s facially race-neutral reason for exercising peremptory challenge); Commonwealth v. LeClair , 429 Mass. 313, 323 (1999).
Subsection (b)(3)(B). “An explanation is genuine if it is in fact the reason for the exercise of the challenge.” Commonwealth v. Maldonado , 439 Mass. 460, 465 (2003). The mere denial of an improper motive is inadequate to establish the genuineness of the explanation. Id. A reasonable justification in the abstract must be rejected if the judge does not believe that it reflects the challenging party’s actual thinking. Id. See Commonwealth v. Prunty , 462 Mass. 295, 309 (2012) (trial judge warranted in finding that defendant’s challenge, allegedly based on juror’s occupation, was not genuine); Commonwealth v. LeClair , 429 Mass. 313, 323 (1999) (affirming judge’s disallowance of peremptory challenge after he determined that it was disingenuous).
If the trial judge determines that the peremptory challenge was improper, “the judge has the authority to fashion relief without declaring a mistrial.” Commonwealth v. Reid , 384 Mass. 247, 254–255 (1981) (defendant’s improper use of peremptory challenges of prospective male jurors authorized trial judge to strike all jurors and begin with a new venire).
Subsection (c). An objection to a peremptory challenge must be overruled if the prima facie case has not been made. See, e.g., Commonwealth v. Issa , 466 Mass. 1, 10 (2013) (“judge did not abuse his discretion in finding that the defendant had failed to rebut the presumption”); Commonwealth v. Scott , 463 Mass. 561, 571 (2012) (finding of no pattern of discriminatory challenges within judge’s discretion).
Subsection (c)(1). An objection to a peremptory challenge must be overruled if the challenge was based on a factor other than the juror’s membership in a discrete community group. See, e.g., Commonwealth v. Nom , 426 Mass. 152, 155 (1997) (explanation that prospective juror’s prior domestic arrest was reason for challenge was based on factor other than juror’s race); Commonwealth v. Barnoski , 418 Mass. 523, 533–534 (1994) (judge overruled objection to peremptory challenge and accepted prosecutor’s specific examples of juror’s demeanor as being reason for challenge, which were unrelated to juror’s ethnicity).
Subsection (c)(2). An objection to a peremptory challenge must be overruled if the explanation for the challenge is credible, genuine, and not pretext. See, e.g., Commonwealth v. Rodriguez , 457 Mass. 461, 470–471 (2010) (explanation that challenge to prospective juror was based on juror’s inability to follow instructions and experience in court was sufficient and credible).
Subsection (d)(1). An objection to a peremptory challenge must be sustained if the explanation for the challenge is not adequate. See, e.g., Commonwealth v. Obi , 475 Mass. 541, 552 (2016) (explanation that defense counsel had gut feeling that juror would not be sympathetic to defendant was not adequate); Commonwealth v. Rodriguez , 431 Mass. 804, 808–809 (2000) (after pattern of excluding female jurors was established, defendant’s attempt to challenge another female juror was invalid because not liking her looks was insufficient gender-neutral reason for peremptory challenge); Commonwealth v. Calderon , 431 Mass. 21, 26–28 (2000) (challenge based primarily on juror’s husband’s occupation inadequate).
Subsection (d)(2). An objection to a peremptory challenge must be sustained if the explanation for the challenge is not genuine and constitutes mere pretext. See, e.g., Commonwealth v. Prunty , 462 Mass. 295, 310 (2012) (explanation that peremptory challenge was used to remove juror based on her occupation was not genuine); Commonwealth v. Carvalho , 88 Mass. App. Ct. 840, 844 (2016) (explanation for challenge that “looking at the juror’s experience, I don’t feel that she would be a person that would be fair and equitable to my client” was not bona fide); Commonwealth v. Povez , 84 Mass. App. Ct. 660, 665 (2013) (explanation that juror was challenged because his father worked as a janitor in federal court was adequate but not genuine).