SUPREME JUDICIAL COURT

The Supreme Judicial Court recommends the use of the Massachusetts Guide to Evidence. Our recommendation of the Massachusetts Guide to Evidence is not to be interpreted as an adoption of a set of rules of evidence, nor a predictive guide to the development of the common law of evidence. The purpose of the Massachusetts Guide to Evidence is to make the law of evidence more accessible and understandable to the bench, bar, and public. We encourage all interested persons to use the Massachusetts Guide to Evidence.

Chief Justice Ralph D. Gants

Justice Margot Botsford

Justice Barbara A. Lenk

Justice Geraldine S. Hines

Justice Frank M. Gaziano

Justice David A. Lowy

Justice Kimberly S. Budd

January 2017

PREFACE

The Massachusetts Guide to Evidence is prepared annually by the Supreme Judicial Court’s Advisory Committee on Massachusetts Evidence Law. By direction of the Justices of the Supreme Judicial Court, the Guide organizes and states the law of evidence applied in proceedings in the courts of the Commonwealth, as set forth in the Federal and State Constitutions, General Laws, common law, and rules of court. The Committee invites comments and suggestions on the Guide. 

The Guide follows the arrangement of the law contained in the Federal Rules of Evidence and thus is comprised of eleven articles. Wherever possible, the Guide expresses the principles of Massachusetts evidence law by using the language that appears in the corresponding Federal rules. Thus, since the law governing testimony by expert witnesses is found in Rule 702 of the Federal Rules of Evidence, the corresponding provision of Massachusetts law is found in Section 702 of the Guide and is based on the language that appears in the Federal rule. In some cases, a principle of Massachusetts law has no counterpart in the Federal rules of evidence. For example, the first complaint doctrine, a special hearsay exception applicable in sexual assault cases, is found in Section 413 of the Guide, but it has no counterpart in the Federal rules. Finally, Article XI of the Guide contains a series of miscellaneous provisions that do not fit within the other ten articles but that are closely related to core evidentiary issues. These include provisions on spoliation or destruction of evidence (Section 1102), witness cooperation agreements (Section 1104), eyewitness identification (Section 1112), and opening statements and closing arguments (Section 1113). 

Each section of the Guide, in addition to the statement of the law of Massachusetts current through December 31, 2016, contains an accompanying “Note” that includes supporting authority. Some sections are based on a single statute or decision, while other sections were derived from multiple sources. Certain sections were drafted “nearly verbatim” from a source with minimal changes, for instance, revised punctuation, gender-neutral terms, or minor reorganization, to allow the language to be stated more accurately in the context of the Massachusetts Guide to Evidence

The Guide is not a set of rules, but rather, as the title suggests, a guide to evidence based on the law as it exists today. The Committee did not attempt, nor is it authorized, to suggest modifications, adopt new rules, or predict future developments in the law. The Committee has recommended to the Supreme Judicial Court that the Guide be published annually to address changes in the law and to make any other revisions as necessary. The Committee’s goal is to reflect the most accurate and clear statement of current law as possible. Ultimately, the law of evidence in Massachusetts is what is contained in the authoritative decisions of the Supreme Judicial Court and of the Appeals Court, and the statutes duly enacted by the Legislature.

Supreme Judicial Court Advisory Committee
on Massachusetts Evidence Law

 

INTRODUCTION TO THE 2017 EDITION

On behalf of the Supreme Judicial Court’s Advisory Committee on Massachusetts Evidence Law, we want to express our gratitude to the Flaschner Judicial Institute for its support in publishing this 2017 official edition of the Massachusetts Guide to Evidence. As a result of Flaschner’s commitment to the continuing education and professional development of the Massachusetts judiciary, for the ninth straight year, the Guide will be distributed to every trial and appellate judge in the Commonwealth.

The purpose of the Guide is “to make the law of evidence more accessible and understandable to the bench, bar, and public.” Statement by the Justices of the Supreme Judicial Court (January 2014). The value of the Guide in practice is confirmed by the fact that it has been cited as a source of authority by the Appeals Court and by the Supreme Judicial Court in both published and unpublished opinions more than 500 times since it was first published in 2008. The Guide is also frequently cited and relied upon by judges throughout the Trial Court. Ultimately, the best evidence of the Guide’s value is the frequency with which it is cited by lawyers and parties in civil, criminal, juvenile, and youthful offender cases as an authoritative expression of Massachusetts evidence law. The extraordinary consensus that exists among the members of the bench and the bar as to the Guide’s authoritativeness is a tribute to the acumen and dedication of the members of the Advisory Committee with whom we serve who labor throughout the year to understand and to concisely integrate into the fabric of the Guide developments in our common law, court rules, constitutional law, and statutes, as well as pertinent decisions of the United States Supreme Court, that sometimes bring about sweeping changes in the law of evidence and in the responsibilities of lawyers and judges.

This 2017 edition of the Guide contains many significant revisions and additions. These include substantial revisions made to Section 103 (Rulings on Evidence, Objections, and Offers of Proof) and Section 1114 (Restitution), and a new Section 1116 (Peremptory Challenges of Potential Jurors).

In closing, we hope that you will take the opportunity to write to us with comments, suggestions, and even criticisms about the material contained in the Massachusetts Guide to Evidence so that we will be better informed about how to improve it and thereby make the law of evidence in Massachusetts more accessible to all.
 

Hon. Peter W. Agnes, Jr.
Editor-in-Chief

Joseph F. Stanton, Esq.
Reporter

Supreme Judicial Court Advisory Committee
on Massachusetts Evidence Law

Executive Committee

Honorable Peter W. Agnes, Jr., Appeals Court, Editor-in-Chief

Honorable Mark S. Coven, District Court, Editor

Elizabeth N. Mulvey, Esq., Crowe & Mulvey, LLP, Editor

Joseph F. Stanton, Esq., Appeals Court, Reporter

Honorable Heidi E. Brieger, Superior Court

Professor Philip K. Hamilton, New England School of Law

Honorable Barbara M. Hyland, Probate and Family Court

Honorable Stephen M. Limon, Juvenile Court

Professor Mark Pettit, Boston University School of Law

Benjamin K. Golden, Esq.

A. W. (Chip) Phinney, Esq., Deputy Legal Counsel, Supreme Judicial Court

Anthony Podesta, Esq., Law Clerk, Appeals Court

Jess Cochrane, Esq., Law Clerk, Appeals Court (through August 2016)

Edmund P. Daley III, Esq.

Hon. David A. Lowy, Supreme Judicial Court, Consulting Member

Hon. R. Marc Kantrowitz (Retired), Editor-in-Chief Emeritus

Research Assistant

Tiffany M. Knapp, Esq.
 

Acknowledgments

Over the years, many judges and lawyers, too numerous to identify, have generously contributed their time and talents to help make this Guide useful to the bench and the bar. We encourage judges and lawyers with an interest in the law of evidence to suggest improvements to the Guide. Comments and questions should be directed to the reporter at Joseph.Stanton@jud.state.ma.us.

 

Currency, Usage, and Terminology

Currency and usage. The Massachusetts Guide to Evidence has been updated to state the Massachusetts law of evidence as it exists through December 31, 2016. The Supreme Judicial Court Advisory Committee on Massachusetts Evidence Law has made every effort to provide accurate and informative statements of the law in the Massachusetts Guide to Evidence. Counsel and litigants are encouraged to conduct their own research for additional authorities that may be more applicable to the case or issue at hand. Importantly, given the fluidity of evidence law, all users of this Guide should perform their own research and monitor the law for the most recent modifications to and statements of the law. The Guide is not intended to constitute the rendering of legal or other professional advice, and the Guide is not a substitute for the advice of an attorney.

“Not recognized” sections. Where the Advisory Committee has noted that the Federal Rules of Evidence contain a provision on a particular subject and the Committee has not identified any Massachusetts authority that recognizes that subject, or where the Supreme Judicial Court has declined to follow the Federal rule on that subject, the topic is marked “not recognized” to await further development, if any, of the law on that topic.

“Nearly verbatim” sections. The notes to some sections state that the section’s text was derived “nearly verbatim” from a specific statute, court decision, or court rule. This phrase explains that the Advisory Committee made minor modifications to an authority’s original language to allow the language to be stated more accurately in the context of the Massachusetts Guide to Evidence. Such modifications may include revised punctuation, gender-neutral terms, minor reorganization, and the use of numerals instead of spelling numerals.

Comments and suggestions. Please send any comments or suggestions to the Advisory Committee on Massachusetts Evidence Law, c/o Joseph Stanton, Reporter, Appeals Court, Clerk’s Office, John Adams Courthouse, One Pemberton Square, Room 1200, Boston, MA 02108-1705, or by email to Joseph.Stanton@jud.state.ma.us.

Copyright. The Supreme Judicial Court holds the copyright to this original work. The Supreme Judicial Court makes the Massachusetts Guide to Evidence available to the public on the Court’s Web site at http://www.mass.gov/courts/case-legal-res/guidelines/mass-guide-to-evidence. Inquiries as to commercial use may be directed to the Court’s Public Information Office at 617-557-1114.