Introductory Note

(a) General Duty to Give Evidence. A privilege is an exception to the general duty of a witness to offer evidence. Commonwealth v. Corsetti, 387 Mass. 1, 5, 438 N.E.2d 805, 808 (1982).

(b) Interpretation of Privileges. “Testimonial privileges are exceptions to the general duty imposed on all people to testify, and therefore must be strictly construed” (quotations and citations omitted). Commonwealth v. Oliveira, 438 Mass. 325, 330, 780 N.E.2d 453, 457 (2002). See also Matter of a Grand Jury Subpoena, 430 Mass. 590, 593–594, 597–599, 722 N.E.2d 450, 453, 455–456 (2000); Commonwealth v. Corsetti, 387 Mass. 1, 5, 438 N.E.2d 805, 808 (1982). In criminal cases, even statutory privileges may be pierced when necessary to preserve a defendant’s constitutional rights. See Commonwealth v. Dwyer, 448 Mass. 122, 144, 859 N.E.2d 400, 417 (2006).

(c) Most Privileges Are Not Self-Executing. Most privileges require “some action by the patient or client . . . to ‘exercise’ the privilege.” Commonwealth v. Oliveira, 438 Mass. 325, 331, 780 N.E.2d 453, 458 (2002) (psychotherapist-‌patient privilege). See Commonwealth v. Pelosi, 441 Mass. 257, 261, 805 N.E.2d 1, 6 (2004) (social worker–client privilege); District Attorney for Plymouth Dist. v. Board of Selectmen of Middleborough, 395 Mass. 629, 633–634, 481 N.E.2d 1128, 1131 (1985) (attorney-client privilege); Commonwealth v. Brennan, 386 Mass. 772, 780, 438 N.E.2d 60, 65 (1982) (privilege against self-‌incrimination). The Legislature can create a privilege that is automatic and that does not require any action on the part of the holder of the privilege. See Commonwealth v. Oliveira, 438 Mass. at 331 n.7, 780 N.E.2d at 458 n.7 (“the sexual assault counsellor-‌victim privilege created by G. L. c. 233, § 20J . . . does not suggest that the victim need do anything to ‘exercise’ the privilege contained therein, or to ‘refuse’ to disclose the communications, or to ‘prevent’ the counsellor from disclosing the communications.”). See also Borman v. Borman, 378 Mass. 775, 787, 393 N.E.2d 847, 856 (1979) (Code of Professional Responsibility applicable to lawyers is self-executing). In the case of a privilege that is not self-executing, it may be appropriate for the proponent of the privilege to temporarily assert the privilege pending notice to the party which holds the privilege. See Commonwealth v. Oliveira, 438 Mass. at 332 n.8, 780 N.E.2d at 459 n.8.

(d) Confidentiality Versus Privilege. There is a distinction between a duty of confidentiality and an evidentiary privilege. See Commonwealth v. Vega, 449 Mass. 227, 229 n.7, 866 N.E.2d 892, 894 n.7 (2007), citing Commonwealth v. Brandwein, 435 Mass. 623, 628 n.7, 760 N.E.2d 724, 729 n.7 (2002). A duty of confidentiality obligates one, such as a professional, to keep certain information, often about a client or patient, confidential. It also may impose an obligation on a State agency. See G. L. c. 66A, §§ 1, 2.

“A provider’s obligation to keep matters confidential may stem from a statute imposing such an obligation (oftentimes with a host of exceptions to that obligation), or may arise as a matter of professional ethics.” Commonwealth v. Oliveira, 438 Mass. 325, 335, 780 N.E.2d 453, 461 (2002). When a duty of confidentiality is set forth in a statute, there may or may not be an accompanying evidentiary privilege. See Commonwealth v. Vega, 449 Mass. at 233–‌234, 866 N.E.2d at 896–897 (holding that G. L. c. 112, § 172, imposes a duty of confidentiality and creates an evidentiary privilege). Sometimes, the duty of confidentiality and the corresponding evidentiary privilege are set forth in separate statutes. See, e.g., G. L. c. 112, §§ 135A and 135B (social workers), and G. L. c. 112, § 129A, and G. L. c. 233, § 20B (psychologists and psychotherapists). In other cases, the duty of confidentiality and a privilege exist in the same statute. See Commonwealth v. Vega, 449 Mass. at 232, 866 N.E.2d at 896, citing G. L. c. 233, § 20J (sexual assault counselors) and G. L. c. 233, § 20K (domestic violence counselors).

In some circumstances, when a provider breaches a duty of confidentiality, the absence of an accompanying evidentiary privilege may permit a party in litigation to gain access to the information or to offer it in evidence. See Commonwealth v. Brandwein, 435 Mass. at 628–629, 760 N.E.2d at 728–729 (access to information improperly disclosed by a nurse in violation of her professional duty of confidentiality was not otherwise covered by an evidentiary privilege); Commonwealth v. Senior, 433 Mass. 453, 457 n.5, 744 N.E.2d 614, 618 n.5 (2001) (noting the distinction between the confidentiality of medical and hospital records under G. L. c. 111, § 70, and the absence of a physician-‌patient privilege).

(e) Impounding Versus Sealing. In Pixley v. Commonwealth, 453 Mass. 827, 906 N.E.2d 320 (2009), the Supreme Judicial Court addressed the difference between impounding and sealing:

“The terms ‘impounded’ and ‘sealed’ are closely related and often used interchangeably, but are meaningfully different. Under the Uniform Rules o[n] Impoundment Procedure 1708 (LexisNexis 2008), which governs impoundment in civil proceedings and guides practice in criminal matters as well, ‘impoundment’ means ‘the act of keeping some or all of the papers, documents, or exhibits, or portions thereof, in a case separate and unavailable for public inspection.’ Rule 1 of the Uniform Rules o[n] Impoundment Procedure. Consequently, an order of impoundment prevents the public, but not the parties, from gaining access to impounded material, unless otherwise ordered by the court. A document is normally ordered ‘sealed’ when it is intended that only the court have access to the document, unless the court specifically orders limited disclosure. Therefore, we directed in Commonwealth v. Martin, [423 Mass. 496, 505, 668 N.E.2d 825, 832 (1996),] that the record of the in camera hearing ‘should be kept, under seal.’ Similarly, we ordered that privileged psychological or counseling records of an alleged victim of a sexual assault be ‘retained in court under seal,’ but permitted defense counsel to have access pursuant to a strict protective order. Commonwealth v. Dwyer, 448 Mass. 122, 146, 859 N.E.2d 400, 419 (2006).”

Pixley v. Commonwealth, 453 Mass. at 836 n.12, 906 N.E.2d at 328 n.12. Martin hearings are discussed in the note to Section 511(b), Privilege Against Self-Incrimination: Privilege of a Witness . The Lampron-Dwyer protocol is summarized in Section 1108, Access to Third-Party Records Prior to Trial in Criminal Cases (Lampron-Dwyer Protocol) .

(f) Examples of Relationships in Which There May Be a Duty to Treat Information as Confidential Even Though There Is No Testimonial Privilege. Examples include the following:

(1) Patient Medical Information. There is no doctor-patient privilege recognized under Massachusetts law. Bratt v. International Bus. Machs. Corp., 392 Mass. 508, 522–523 n.22, 467 N.E.2d 126, 136–137 n.22 (1984). See also Commonwealth v. Senior, 433 Mass. 453, 456–457, 744 N.E.2d 614, 617 (2001); Tower v. Hirschhorn, 397 Mass. 581, 588, 492 N.E.2d 728, 733 (1986). However, physicians have a duty not to make out-of-court disclosures of medical information about the patient without the patient’s consent, Alberts v. Devine, 395 Mass. 59, 67–68, 479 N.E.2d 113, 119, cert. denied sub nom., Carroll v. Alberts, 474 U.S. 1013 (1985), unless disclosure is necessary to meet a serious danger to the patient or others. Id. A breach of doctor-patient confidentiality does not require exclusion of the evidence, Commonwealth v. Senior, 433 Mass. at 457 n.5, 744 N.E.2d at 618 n.5, citing Schwartz v. Goldstein, 400 Mass. 152, 153, 508 N.E.2d 97, 99 (1987), but may subject the offending doctor to an action for damages. Alberts v. Devine, 395 Mass. at 65–‌69, 479 N.E.2d at 118–120.

(2) Student Records. “There is no privilege which would prevent the introduction of relevant school records in evidence at a trial.” Commonwealth v. Beauchemin, 410 Mass. 181, 185, 571 N.E.2d 395, 398 (1991). However, the Legislature has recognized that privacy interests are at stake. School records pertaining to specific individuals are not subject to disclosure under our public records law if disclosure “may constitute an unwarranted invasion of personal privacy.” G. L. c. 4, § 7, Twenty-sixth (c). See also G. L. c. 66, § 10. Access to student records is also restricted under regulations promulgated by the State board of education pursuant to G. L. c. 71, § 34D. See Commonwealth v. Buccella, 434 Mass. 473, 477, 751 N.E.2d 373, 378 (2001) (third persons may access “student records” only with written consent from student or student’s parents unless an exception promulgated by regulation applies).

(3) Special Needs Student Records. Records of the clinical history and evaluations of students with special needs created or maintained in accordance with G. L. c. 71B “shall be confidential.” G. L. c. 71B, § 3.

(4) News Sources and Nonpublished Information. Before ordering a reporter to divulge a source and the information gathered, a judge must “consider the effect of compelled disclosure on values underlying the First Amendment and art. 16.” Petition for Promulgation of Rules Regarding the Protection of Confidential News Sources & Other Unpublished Info., 395 Mass. 164, 171, 479 N.E.2d 154, 158 (1985). Accordingly, a judge must balance the public interest in the use of every person’s evidence against the public interest in protecting the free flow of information. Matter of a John Doe Grand Jury Investigation, 410 Mass. 596, 599, 574 N.E.2d 373, 375 (1991). See also Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 403 n.33, 822 N.E.2d 667, 696 n.33 (2005).

(5) Certain Documents, Records, and Reports. A nonexhaustive list of confidentiality statutes includes the following:

G. L. c. 4, § 6, Twenty-sixth (documents and records);

G. L. c. 6, § 167 et seq. (Criminal Offender Record Information [C.O.R.I.]);

G. L. c. 41, § 97D (reports of rape and sexual assault);

G. L. c. 66A, §§ 1, 2 (personal data held by Commonwealth agencies);

G. L. c. 111, §§ 70, 70E (hospital records);

G. L. c. 111, § 70F (HIV test results);

G. L. c. 111, § 70G (genetic testing);

G. L. c. 111B, § 11 (alcohol treatment);

G. L. c. 111E, § 18 (drug treatment);

G. L. c. 112, § 129A (psychologist-patient communications);

G. L. c. 119, § 51E (Department of Children and Families records);

G. L. c. 119, §§ 60–60A (juvenile records);

G. L. c. 123, §§ 36–36A (Department of Mental Health records);

G. L. c. 123B, § 17 (Department of Developmental Services records);

G. L. c. 127, § 29 (Department of Correction records);

G. L. c. 127, § 130 (parole board); and

G. L. c. 148, § 32 (fire insurance).

There are also numerous regulations (Code Mass. Regs.) which contain confidentiality requirements.

(6) Applicability of Federal Law. The Constitution of the United States or an act of Congress may govern the applicability of a privilege in Massachusetts State courts. See, e.g., 23 U.S.C. § 409 (protecting from disclosure in discovery or at trial and in Federal or State court proceedings information “compiled or collected” in connection with certain Federal highway safety programs); Pierce County v. Guillen, 537 U.S. 129, 146–148 (2003) (23 U.S.C. § 409 is a valid exercise of congressional power under the commerce clause and is binding on the States). Accord Boyd v. National R.R. Passenger Corp., 62 Mass. App. Ct. 783, 795–797, 821 N.E.2d 95, 105–106 (2005). Access to records also may be restricted by Federal law. See, e.g., Commonwealth v. Nathaniel N., 54 Mass. App. Ct. 200, 206, 764 N.E.2d 883, 888 (2002); Health Insurance Portability and Accountability Act (of 1996) (HIPAA), Pub. L. No. 104-‌191 (codified as amended at 42 U.S.C. § 1320(d) et seq.).

(g) Production of Presumptively Privileged Records from Nonparties Prior to Trial in Criminal Cases. Whenever a party in a criminal case seeks production of any records (privileged or nonprivileged) from nonparties prior to trial, Mass. R. Crim. P. 17(a)(2) must be satisfied. Commonwealth v. Lampron, 441 Mass. 265, 268, 806 N.E.2d 72, 76 (2004). See also Commonwealth v. Odgren, 455 Mass. 171, 187, 915 N.E.2d 215, 227 (2009). 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, 859 N.E.2d 400, 414–420 (2006), governs review or disclosure of presumptively privileged records by defense counsel. To reference the forms promulgated by the Supreme Judicial Court pdf format of Order Entered in Commonwealth v. Dwyer, 448 Mass. 122
, see http://www.mass.gov/‌courts/‌formsandguidelines/dwyerforms.html.

Cross-Reference: Section 1108, Access to Third-Party Records Prior to Trial in Criminal Cases (Lampron-Dwyer Protocol) .

(h) Nonevidentiary Privileges. There are certain so-called privileges which concern nonevidentiary areas. Basically, they are defenses to suit and include the following:

(1) Immunity from Liability (Litigation Privilege). Written or oral communications made by a party, witness, or attorney prior to, in the institution of, or during and as a part of a judicial proceeding involving said party, witness, or attorney are absolutely privileged even if uttered maliciously or in bad faith. See Correllas v. Viveiros, 410 Mass. 314, 319–321, 572 N.E.2d 7, 10–12 (1991); Sriberg v. Raymond, 370 Mass. 105, 108, 345 N.E.2d 882, 883 (1976); Mezullo v. Maletz, 331 Mass. 233, 236, 118 N.E.2d 356, 358 (1954). The absolute privilege applies to statements made in a letter by an employee to a former employer explaining that the reason for his or her resignation was sexual harassment and indicating an intention to pursue the matter with the Equal Employment Opportunity Commission (EEOC) and the Massachusetts Com­mission Against Discrimination (MCAD). Further, the absolute privilege extends to similar statements made in a subsequent filing with the EEOC. Visnick v. Caulfield, 73 Mass. App. Ct. 809, 812–813, 901 N.E.2d 1261, 1263–1264 (2009). The absolute privilege is based on the view that “it is more important that witnesses be free from the fear of civil liability for what they say than that a person who has been defamed by their testimony have a remedy.” Aborn v. Lipson, 357 Mass. 71, 72, 256 N.E.2d 442, 443 (1970). Accord Hoar v. Wood, 44 Mass. 193, 196–198 (1841) (same point with reference to statements by an attorney at trial). Contrast Kobrin v. Gastfriend, 443 Mass. 327, 342 n.17, 821 N.E.2d 60, 71 n.17 (2005) (Anti-SLAPP statute, G. L. c. 231, § 59H, supercedes the common-‌law immunity against allegedly defamatory statements made by an expert witness called by the board of registration in medicine to testify against a medical doctor in a disciplinary proceeding).

A privilege attaches “[w]here a communication to a prospective defendant relates to a proceeding which is contemplated in good faith and which is under serious consideration.” Sriberg v. Raymond, 370 Mass. at 109, 345 N.E.2d at 884.

“[A]n attorney’s statements are privileged where such statements are made by an attorney engaged in his function as an attorney whether in the institution or conduct of litigation or in conferences and other communications preliminary to litigation. The litigation privilege recognized in our cases, however, would not appear to encompass the defendant attorneys’ conduct in counseling and assisting their clients in business matters generally.” (Citations, quotation, and footnote omitted.)

Kurker v. Hill, 44 Mass. App. Ct. 184, 192, 689 N.E.2d 833, 838–839 (1998).  See Harmon Law Offices, P.C. v. Attorney Gen., 83 Mass. App. Ct. 830, 838, 991 N.E.2d 1098, 1106 (2013) (privilege not applicable because law firm failed to establish that documents sought by attorney general related to judicial proceedings contemplated or instituted by law firm).

(2) Legislative Deliberation Privilege. Conduct or speech by a member of the Legislature in the course of exercising the member’s duties as a legislator is absolutely privileged and cannot be the basis of any criminal or civil prosecution. See Article 21 of the Massachusetts Declaration of Rights (“[t]he freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever”). This provision also establishes a privilege applicable to “the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office.” Coffin v. Coffin, 4 Mass. 1, 27 (1808).

(3) Fair Report Privilege. The fair report privilege is a common-law rule that protects from liability the republisher of a newsworthy account of one person’s defamation of another so long as it is fair and accurate. See Howell v. Enterprise Publ. Co., LLC, 455 Mass. 641, 650–651, 920 N.E.2d 1, 13 (2010), and cases cited.

“The privilege recognizes that (1) the public has a right to know of official government actions that affect the public interest, (2) the only practical way many citizens can learn of these actions is through a report by the news media, and (3) the only way news outlets would be willing to make such a report is if they are free from liability, provided that their report was fair and accurate.”

ELM Med. Lab, Inc. v. RKO Gen., Inc., 403 Mass. 779, 782, 532 N.E.2d 675, 678 (1989).

“The privilege is not absolute” and “may be ‘be vitiated by misconduct on the newspapers’ part, but that misconduct must amount to more than negligent, or even knowing, republication of an inaccurate official statement. To defeat the privilege, a plaintiff must either show that the publisher does not give a fair and accurate report of the official statement [or action], or malice.’” Howell v. Enterprise Publ. Co., LLC, 455 Mass. at 651 n.8, 920 N.E.2d at 13 n.8, quoting Yohe v. Nugent, 321 F.3d 35, 44 (1st Cir. 2003). Newspapers are on “solid ground” when they report on “formal (as opposed to informal) governmental (as opposed to private) proceedings and actions.” Howell v. Enterprise Publ. Co., LLC, 455 Mass. at 655–656, 920 N.E.2d at 17. In such cases, “the privilege extends to reports of official actions based on information provided by nonofficial third-party sources.” Id. at 658, 920 N.E.2d at 18.

“If, however, the source is an unofficial or anonymous one, a report based on that source runs a risk that the underlying official action will not be accurately and fairly described by the source, and therefore will not be protected by the privilege, or that the information provided will go beyond the bounds of the official action and into unprivileged territory” (footnote omitted).

Id. at 659, 920 N.E.2d at 19. “Whether a report was fair and accurate is a matter of law to be determined by a judge unless there is a basis for divergent views” (citation omitted). Id. at 661, 920 N.E.2d at 21.

(4) Communications with Board of Bar Overseers and Bar Counsel. In Bar Counsel v. Farber, 464 Mass. 784, 787, 985 N.E.2d 1155, 1158 (2013), the Supreme Judicial Court interpreted S.J.C. Rule 4:01, § 9, to provide a complainant with “absolute immunity from any civil liability with respect to his complaint and its allegations and . . . with respect to testimony that the complainant may provide in the course of a proceeding before a hearing committee of the board.” Id. at 787, 985 N.E.2d at 1158. The court further explained that the rule does not extend this immunity to statements made or testimony provided by the complainant “to a person or entity outside a bar discipline proceeding.” Id. This is true even when the communication to someone outside a bar disciplinary proceeding is identical to the protected communication. Id. at 793, 985 N.E.2d at 1163.

Back to Top

Section 501.    Privileges Recognized Only as Provided

Except as otherwise provided by constitution, statute, rules promulgated by the Supreme Judicial Court, or the common law, no person has a privilege to

(a) refuse to be a witness,

(b) refuse to disclose any matter,

(c) refuse to produce any object or writing, or

(d) prevent another from being a witness or disclosing any matter or producing any object or writing.

NOTE

This section, which is taken nearly verbatim from Proposed Mass. R. Evid. 501, reflects Massachusetts practice. Subsections (a), (b), and (c) follow the “long­standing principle that the public . . . has a right to every man’s evidence” (quotations omitted). Matter of Roche, 381 Mass. 624, 633, 411 N.E.2d 466, 473 (1980). See also G. L. c. 233, § 20 (“[a]ny person of sufficient understanding, although a party, may testify in any proceeding, civil or criminal, in court or before a person who has authority to receive evidence”).

“A witness may not decline to respond to a proper question on the ground that his answer might embarrass him (or another). . . . Nor can fear of harm to the witness generally be offered as an excuse for declining testimony. Relief of witnesses on this ground would encourage intimidation of those in possession of information and proclaim a sorry confession of weakness of the rule of law” (citation omitted).

Commonwealth v. Johnson, 365 Mass. 534, 543–544, 313 N.E.2d 571, 577 (1974). Subsection (d) is derived from Commonwealth v. Edwards, 444 Mass. 526, 536, 830 N.E.2d 158, 168 (2005) (“forfeiture by wrongdoing” doctrine adopted).

The Supreme Judicial Court has the power to create privileges under the common law. Babets v. Secretary of Human Servs., 403 Mass. 230, 234, 526 N.E.2d 1261, 1264 (1988). However, the creation of a new privilege or the expansion of an existing privilege is usually left to the Legislature, which is better equipped to weigh competing social policies or interests. Matter of a Grand Jury Subpoena, 430 Mass. 590, 597–598, 722 N.E.2d 450, 455–‌456 (2000).

Address of Witness. A party seeking to elicit information about the home or employment address of a witness must demonstrate that the information is relevant in accordance with Section 402, Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible. However, “the very starting point in exposing falsehood and bringing out the truth through cross-examination must necessarily be to ask the witness who he is and where he lives” (quotations and citation omitted). Smith v. Illinois, 390 U.S. 129, 131 (1968). Nonetheless, such evidence may be excluded if the trial judge makes a preliminary finding that any relevance is outweighed by the risks to the safety of the witness. See Commonwealth v. McGrath, 364 Mass. 243, 250–252, 303 N.E.2d 108, 113–114 (1973). In a criminal case, the trial judge must weigh the safety concerns of the witness against the defendant’s right to confrontation. See McGrath v. Vinzant, 528 F.2d 681, 685 (1st Cir. 1976). A witness’s general concerns for privacy or personal safety, without more, are not sufficient to overcome the defendant’s right to confrontation under Article 12 of the Massachusetts Declaration of Rights and the Sixth Amendment. See Commonwealth v. Johnson, 365 Mass. 534, 544–547, 313 N.E.2d 571, 577–579 (1974). See also Commonwealth v. Francis, 432 Mass. 353, 357, 734 N.E.2d 315, 321 (2000) (In a murder case, Supreme Judicial Court relied on McGrath and upheld trial judge’s ruling that “defense counsel could ask Rodriguez whether he was engaged in an occupation other than selling drugs, but not his specific employment or his employment address, and whether he now lived in western Massachusetts or in Connecticut, but not his city of residence or residential address. He also prohibited defense counsel from investigating these matters.”); Commonwealth v. Righini, 64 Mass. App. Ct. 19, 25–26 n.5, 831 N.E.2d 332, 337 n.5 (2005) (relying on reasoning of McGrath to explain why criminal defendants are ordinarily not entitled to obtain dates of birth of police witnesses). The existence of valid safety concerns on the part of a witness may be inherent in the nature of the criminal charges. Commonwealth v. Francis, 432 Mass. at 358 n.3, 734 N.E.2d at 322 n.3.

Back to Top

Section 502.    Attorney-Client Privilege

(a) Definitions. As used in this section, the following words shall have the following meanings:

(1) A “client” is a person, public officer, or corporation, association, or other entity, either public or private, who is rendered professional legal services by an attorney, or who consults an attorney with a view to obtaining professional legal services.

(2) A “representative of the client” may include the client’s agent or employee.

(3) An “attorney” is a person who is authorized to practice law.

(4) A “representative of the attorney” is one used by the attorney to assist the attorney in providing professional legal services.

(5) A communication is “confidential” if it is not intended to be disclosed to third persons other than those to whom disclosure is made to obtain or provide professional legal services to the client, and those reasonably necessary for the transmission of the communication.

(b) General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent others from disclosing confidential communications made for the purpose of obtaining or providing professional legal services to the client as follows:

(1) between the client or the client’s representative and the client’s attorney or the attorney’s representative,

(2) between the client’s attorney and the attorney’s representative,

(3) between those involved in a joint defense,

(4) between representatives of the client or between the client and a representative of the client, or

(5) among attorneys and their representatives representing the same client.

(c) Who May Claim the Privilege. The privilege may be claimed by the client, the client’s guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization whether or not in existence at the time the privilege is claimed. The attorney or the attorney’s representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.

(d) Exceptions. The attorney-client privilege does not apply to the following:

(1) Furtherance of Crime or Fraud. If the services of the attorney were sought or obtained to commit or to plan to commit what the client knew or reasonably should have known was a crime or fraud;

(2) Claimants Through Same Deceased Client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction;

(3) Breach of Duty or Obligation. As to a communication relevant to an issue of breach of duty between an attorney and client;

(4) Document Attested by an Attorney. As to a communication relevant to an issue concerning an attested document to which the attorney is an attesting witness;

(5) Joint Clients. As to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any one of them to an attorney retained or consulted in common, when offered in an action between or among any of the clients; or

(6) Public Officer or Agency. [Privilege not recognized]

NOTE

Introduction. The Supreme Judicial Court has defined the attorney-client privilege as follows:

“The classic formulation of the attorney-client privilege . . . is found in 8 J. Wigmore, Evidence § 2292 (McNaughton rev. ed. 1961): (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived. The purpose of the privilege is to enable clients to make full disclosure to legal counsel of all relevant facts . . . so that counsel may render fully informed legal advice with the goal of promot[ing] broader public interests in the observance of law and administration of justice.” (Quotations and citations omitted.)

Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 303, 901 N.E.2d 1185, 1194 (2009).

“The existence of the privilege and the applicability of any exception to the privilege is a question of fact for the judge. The burden of proving that the attorney-client privilege applies to a communication rests on the party asserting the privilege. This burden extends not only to a showing of the existence of the attorney-client relationship but to all other elements involved in the determination of the existence of the privilege, including (1) the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) the communications were made in confidence; and (3) the privilege as to these communications has not been waived.” (Citations omitted.)

Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. (Bermuda), 425 Mass. 419, 421, 681 N.E.2d 838, 840 (1997). This privilege is not self-executing. See District Attorney for Plymouth Dist. v. Board of Selectmen of Middleborough, 395 Mass. 629, 633–634, 481 N.E.2d 1128, 1131 (1985).

Subsection (a)(1). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(a)(1), reflects Massachusetts practice. The term “client” includes more than simply natural persons. See Mass. R. Prof. C. 1.13 (1998). See also Matter of a Grand Jury Investigation, 437 Mass. 340, 351–352, 772 N.E.2d 9, 17–18 (2002); Bays v. Theran, 418 Mass. 685, 690, 639 N.E.2d 720, 723 (1994).

The attorney-client privilege survives the death of the client. Matter of a John Doe Grand Jury Investigation, 408 Mass. 480, 483, 562 N.E.2d 69, 70 (1990).

Subsection (a)(2). This subsection is derived from Ellingsgard v. Silver, 352 Mass. 34, 40, 223 N.E.2d 813, 817 (1967) (“The attorney-client privilege may extend to communications from the client’s agent or employee to the attorney.”). The Supreme Judicial Court has yet to determine the scope of the privilege when the client is an organization such as a corporation. See Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep’t of Mental Retardation, 424 Mass. 430, 457 n.26, 677 N.E.2d 127, 145 n.26 (1997) (attorney-client privilege not automatically extended to all employees of corporation who communicate with corporation’s attorney). Cf. Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College, 436 Mass. 347, 357, 764 N.E.2d 825, 833 (2002) (a lawyer is barred from ex parte contact with employees of a corporation, under the rule of professional responsibility prohibiting a lawyer from communicating with a represented party in the absence of that party’s counsel, only as to employees who exercise managerial responsibility with regard to the subject of pending litigation, those alleged to have committed wrongful actions at issue in the litigation, and employees with authority to make decisions about the course of litigation or having management authority sufficient to speak for and bind the corporation).

Subsection (a)(3). This subsection is derived from Barnes v. Harris, 61 Mass. 576, 576–577 (1851).

Subsection (a)(4). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(a)(4), reflects Massachusetts practice. In Foster v. Hall, 29 Mass. 89 (1831), the court explained that the attorney-client privilege applied to communications to members of the legal profession, and also to those who “facilitate the communication between attorney and client, as interpreters, agents, and attorneys’ clerks” (citations omitted). Id. at 94.

Subsection (a)(5). This subsection is derived from Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 901 N.E.2d 1185 (2009), where the Supreme Judicial Court stated that “information contained within a communication need not itself be confidential for the communication to be deemed privileged; rather the communication must be made in confidence—that is, with the expectation that the communication will not be divulged.” Id. at 305, 901 N.E.2d at 1196. The communication of an otherwise privileged matter to an accountant for the purpose of obtaining legal advice from the lawyer does not destroy the privilege. Id. at 306–307, 901 N.E.2d at 1196–1197, citing Foster v. Hall, 29 Mass. 89, 92 (1831), and Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., Inc., 449 Mass. 606, 616, 870 N.E.2d 1105, 1111 (2007). However, in order for the derivative privilege to apply to the communication to an accountant, it must be necessary for effective consultation between client and attorney and not merely useful and convenient. Id. at 308, 901 N.E.2d at 1198 (“We agree with the majority of courts that the Kovel [Kovel v. United States, 296 F.2d 918 (2d Cir. 1961)] doctrine applies only when the accountant’s role is to clarify or facilitate communications between attorney and client.”). In Comcast Corp., the Supreme Judicial Court held that an attorney’s communications with an accountant were not privileged because they were not intended to help the lawyer understand the client’s communications to him, but rather to give the lawyer advice about Massachusetts tax law, even though such advice would be helpful to the lawyer in advising his client. Id. at 308–309, 901 N.E.2d at 1198. See also Chambers v. Gold Medal Bakery, Inc., 464 Mass. 383, 392, 983 N.E.2d 683, 691 (2013) (attorney-client privilege “does not immunize underlying facts available from another source from discovery just because a client disclosed the facts to an attorney”); Peters v. Wallach, 366 Mass. 622, 627, 321 N.E.2d 806, 809 (1975) (“Communications between an attorney and his client are not privileged, though made privately, if it is understood that the information communicated is to be conveyed to others. The client’s grant of authority to settle must be communicated to the other party to the settlement and is thus not confidential.” [Citations omitted.]).

Subsection (b). Subsections (b)(1), (2), (4), and (5) are derived from Proposed Mass. R. Evid. 502(b), which was cited with approval in Purcell v. District Attorney for the Suffolk Dist., 424 Mass. 109, 115, 676 N.E.2d 436, 440 (1997) (“The attorney-client privilege applies only when the client’s communication was for the purpose of facilitating the rendition of legal services.”). Subsection (b)(3) is derived from Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., Inc., 449 Mass. 609, 614–617, 870 N.E.2d 1105, 1110–1112 (2007), where the Supreme Judicial Court recognized the “common interest doctrine” and adopted the principle of the Restatement (Third) of the Law Governing Lawyers § 76(1) (2000), which states as follows:

“If two or more clients with a common interest in a litigated or nonlitigated matter are represented by separate lawyers and they agree to exchange information concerning the matter, a communication of any such client that otherwise qualifies as privileged . . . that relates to the matter is privileged as against third persons. Any such client may invoke the privilege, unless it has been waived by the client who made the communication.”

This principle expresses the component of the doctrine known as “joint defense agreements,” “joint defense privilege,” or “joint prosecution privilege.” See also Proposed Mass. R. Evid. 502(b)(3). In Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., Inc., 449 Mass. at 618, 870 N.E.2d at 1113, the Supreme Judicial Court explained that the common-interest doctrine depends on communications that are protected by the attorney-client privilege and is simply an exception to the waiver of the privilege. Thus, there is no requirement of a writing. Id. at 618, 870 N.E.2d at 1113. The court also explained that the legal interests of the parties do not have to be identical in order for the common-interest doctrine to apply. Parties will be deemed to have a common interest when they “share a sufficiently similar interest and attempt to promote that interest by sharing a privileged communication” (quotation and citation omitted). Id. at 619, 870 N.E.2d at 1113. Finally, the Supreme Judicial Court also noted that Section 76(2) of the Restatement is consistent with Massachusetts law. Id. at 614 n.4, 870 N.E.2d at 1110 n.4. Section 76(2) states that “[u]nless the clients have agreed otherwise, a communication described in Subsection (1) is not privileged as between clients described in Subsection (1) in a subsequent adverse proceeding between them.” Id., quoting Restatement (Third) of the Law Governing Lawyers § 76(2) (2000).

Subsection (c). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(c), reflects Massachusetts practice. See District Attorney for the Norfolk Dist. v. Magraw, 417 Mass. 169, 172–173, 628 N.E.2d 24, 26 (1994). In the case of litigation between a corporation and its shareholders, the corporation may assert the privilege against a shareholder whose interests are opposed to the corporation’s interests, because the privilege belongs to the corporation and not to the individual shareholders. See Chambers v. Gold Medal Bakery, Inc., 464 Mass. 383, 392, 983 N.E.2d 683, 691 (2013); Clair v. Clair, 464 Mass. 205, 218, 982 N.E.2d 32, 42 (2013). A law firm may claim the attorney-client privilege for communications between law firm attorneys and the firm’s in-house counsel against a client who threatens a malpractice claim against the firm if (1) the law firm has designated an attorney or attorneys within the firm to represent the firm as in-house counsel; (2) the in-house counsel has not performed any work on the client matter at issue or a substantially related matter; (3) the time spent by the attorneys in these communications with in-house counsel is not billed to a client; and (4) the communications are made in confidence and kept confidential. RFF Family Partnership LLP v. Burns & Levinson LLP, 465 Mass. 702, 703, 991 N.E.2d 1066, 1067–1068 (2013).

Subsection (d)(1). This subsection is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(1), which the Supreme Judicial Court described as an adequate definition of the crime-fraud exception to the attorney-client privilege. Purcell v. District Attorney for the Suffolk Dist., 424 Mass. 109, 112, 676 N.E.2d 436, 439 (1997). See also Mass. R. Prof. C. 1.6(b)(1) (1998). “Th[e] exception applies only if the client or prospective client seeks advice or assistance in furtherance of criminal conduct.” Purcell v. District Attorney for the Suffolk Dist., 424 Mass. at 115, 676 N.E.2d at 441. See Matter of a Grand Jury Investigation, 453 Mass. 453, 459, 902 N.E.2d 929, 934 (2009) (“a client’s communications to his lawyer threatening harm are privileged unless the crime-‌fraud exception applies”).

Subsection (d)(2). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(2), reflects Massachusetts practice. See Phillips v. Chase, 201 Mass. 444, 449, 87 N.E. 755, 757–758 (1909).

Subsection (d)(3). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(3), reflects Massachusetts practice. See Mass. R. Prof. C. 1.6(b) (1998); GTE Prods. Corp. v. Stewart, 421 Mass. 22, 32, 653 N.E.2d 161, 167–168 (1995) (there are limits to the extent to which in-house counsel may disclose client confidences in pursuing a claim of wrongful discharge); Commonwealth v. Brito, 390 Mass. 112, 119, 453 N.E.2d 1217, 1221 (1983) (“[T]rial counsel’s obligation may continue to preserve confidences whose disclosure is not relevant to the defense of the charge of his ineffectiveness as counsel.”).

Subsection (d)(4). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(4), reflects Massachusetts practice. See Foster v. Hall, 29 Mass. 89, 98–99 (1831).

Subsection (d)(5). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(5), reflects Massachusetts practice. See Beacon Oil Co. v. Perelis, 263 Mass. 288, 293, 160 N.E. 892, 894 (1928); Thompson v. Cashman, 181 Mass. 36, 37, 62 N.E. 976, 977 (1902).

Subsection (d)(6). In Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444, 450, 870 N.E.2d 33, 38 (2007), the Supreme Judicial Court held that “confidential communications between public officers and employees and governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege.” Thus, the Supreme Judicial Court rejected the proposed limitation on the attorney-client privilege for public employees and governmental entities found in Proposed Mass. R. Evid. 502(d)(6). Id. at 452 n.12, 870 N.E.2d at 40 n.12. Additionally, the Supreme Judicial Court held that its decision in General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 801–806, 711 N.E.2d 589, 592–595 (1999), which states that under the Massachusetts public records statute, G. L. c. 66, § 10, documents held by a State agency are not protected from disclosure under the attorney work-‌product doctrine, but rather enjoy the more limited protection of the so-called “deliberative process” exemption found in G. L. c. 4, § 7, Twenty-‌sixth (d), did not limit the applicability of the attorney-client privilege as to written communications between government officials and entities and their counsel.

“With the attorney-client privilege, the principal focus is on encouraging the client to communicate freely with the attorney; with work-product, it is on encouraging careful and thorough preparation by the attorney. As a result, there are differences in the scope of the protection. For example, the privilege extends only to client communications, while work product encompasses much that has its source outside client communications. At the same time, the privilege extends to client-‌attorney communications whenever any sort of legal services are being provided, but the work-product protection is limited to preparations for litigation.”

Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. at 456, 870 N.E.2d at 43, quoting E.S. Epstein, The Attorney-Client Privilege and the Work-‌Product Doctrine 477 (4th ed. 2001).

Work-Product Doctrine. The work-product doctrine is not an evidentiary privilege, but rather a discovery rule which

“protects a client’s nonlawyer representatives, protecting from discovery documents prepared by a party’s representative ‘in anticipation of litigation.’ The protection is qualified, and can be overcome if the party seeking discovery demonstrates ‘substantial need of the materials’ and that it is ‘unable without undue hardship to obtain the substantial equivalent of the materials by other means.’ There is a further limitation: the court is to ‘protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.’ This so-called ‘opinion’ work product is afforded greater protection than ‘fact’ work product.”

Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 314, 901 N.E.2d 1185, 1202 (2009), quoting Mass. R. Civ. P. 26(b)(3).

“The work product doctrine, drawn from the well-known case of Hickman v. Taylor, 329 U.S. 495 (1947), is intended to enhance the vitality of an adversary system of litigation by insulating counsel’s work from intrusions, inferences, or borrowings by other parties as he prepares for the contest. Originally developed in connection with civil litigation, the doctrine has been extended to criminal cases. United States v. Nobles, 422 U.S. 225, 238 (1974).” (Citations omitted.)

Ward v. Peabody, 380 Mass. 805, 817, 405 N.E.2d 973, 980 (1980). It is codified in Massachusetts and applicable in both civil and criminal cases. See Mass. R. Civ. P. 26(b)(3); Mass. R. Crim. P. 14(a)(5). The protections afforded by the work-product doctrine can be waived by the attorney. Adoption of Sherry, 435 Mass. 331, 336, 757 N.E.2d 1097, 1102 (2001). See also Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. (Bermuda), 425 Mass. 419, 423, 681 N.E.2d 838, 841 (1997) (no waiver when disclosure of work-product is due to inadvertence and adequate steps were taken to maintain the confidentiality of the information).

Initially, the burden is on the party asserting the work-product doctrine to demonstrate that the document was prepared in anticipation of litigation. If that burden is met, the burden shifts to the party seeking access to the document to prove that it cannot obtain the substantial equivalent of the document without undue hardship. If the material is opinion work product, the party seeking access to it must make, at a minimum, a “far stronger showing of necessity and unavailability by other means.” Upjohn Co. v. United States, 449 U.S. 383, 402 (1981). See Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 315, 901 N.E.2d 1185, 1203 (2009).

In Comcast Corp., the Supreme Judicial Court further explained that the phrase “in anticipation of litigation” has been defined by courts in two different ways: (1) whether the documents “are prepared ‘primarily or exclusively to assist in litigation’—a formulation that would potentially exclude documents containing analysis of expected litigation, if their primary, ultimate, or exclusive purpose is to assist in making the business decision,” and (2) whether the documents “were prepared ‘because of’ existing or expected litigation—a formulation that would include such documents, despite the fact that their purpose is not to ‘assist in’ litigation” (citation omitted). Id. at 316, 901 N.E.2d at 1203. In Comcast Corp., the Supreme Judicial Court adopted the second of these two formulations as the law in Massachusetts:

“The ‘because of’ test ‘appropriately focuses on both what should be eligible for the [r]ule’s protection and what should not.’ Thus, a document is within the scope of the rule if, ‘in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared because of the prospect of litigation’” (citations omitted).

Id. at 316–317, 901 N.E.2d at 1204 (“a litigation analysis prepared so that a party can make an informed business decision is afforded the protections of the work-product doctrine”; additionally, memos prepared for counsel by the accountant that were not protected by the attorney-client privilege also fall within the scope of the opinion work-product doctrine). The formulation of the work-‌product doctrine in the Federal system may be narrower. See United States v. Textron Inc. & Subsidiaries, 577 F.3d 21 (1st Cir. 2009). See also Christian M. Hoffman & Matthew C. Baltay, Maintaining Client Confidences: Developments at the Supreme Judicial Court and First Circuit in 2009, 53 Boston B.J. 4, 20–23 (Fall 2009).

Opinion work product relating to a different case is nonetheless entitled to work-product protection, although it may require a lesser showing to overcome the work-product rule. McCarthy v. Slade Assocs., Inc., 463 Mass. 181, 198 n.37, 972 N.E.2d 1037, 1051 n.37 (2012).

Waiver. For issues relating to waiver, see Section 523, Waiver of Privilege .

Back to Top

Section 503.    Psychotherapist-Patient Privilege

(a) Definitions. As used in this section, the following words shall have the following meanings:

(1) A “patient” is a person who, during the course of diagnosis or treatment, communicates with a psychotherapist.

(2) A “psychotherapist” is (A) a person licensed to practice medicine who devotes a substantial portion of his or her time to the practice of psychiatry; (B) a person who is licensed as a psychologist by the board of registration of psychologists or a graduate of, or student enrolled in, a doctoral degree program in psychology at a recognized educational institution, who is working under the supervision of a licensed psychologist; or (C) a person who is a registered nurse licensed by the board of registration in nursing whose certificate of registration has been endorsed authorizing the practice of professional nursing in an expanded role as a psychiatric nurse mental health clinical specialist.

(3) “Communications” includes conversations, correspondence, actions, and occurrences relating to diagnosis or treatment before, during, or after institutionalization, regardless of the patient’s awareness of such conversations, correspondence, actions, and occurrences, and any records, memoranda, or notes of the foregoing.

(b) Privilege. Except as hereinafter provided, in any court proceeding and in any proceeding preliminary thereto, and in legislative and administrative proceedings, a patient shall have the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication, wherever made, between said patient and a psychotherapist relative to the diagnosis or treatment of the patient’s mental or emotional condition. This privilege shall also apply to patients engaged with a psychotherapist in marital therapy, family therapy, or consultation in contemplation of such therapy. If a patient is incompetent to exercise or waive such privilege, a guardian shall be appointed to act in his or her behalf under this section. A previously appointed guardian shall be authorized to so act.

(c) Effect of Exercise of Privilege. Upon the exercise of the privilege granted by this section, the judge or presiding officer shall instruct the jury that no adverse inference may be drawn therefrom.

(d) Exceptions. The privilege granted hereunder shall not apply to any of the following communications:

(1) Disclosure to Establish Need for Hospitalization or Imminently Dangerous Activity. A disclosure made by a psychotherapist who, in the course of diagnosis or treatment of the patient, determines that the patient is in need of treatment in a hospital for mental or emotional illness or that there is a threat of imminently dangerous activity by the patient against himself or herself or another person, and on the basis of such determination discloses such communication either for the purpose of placing or retaining the patient in such hospital, provided, however, that the provisions of this section shall continue in effect after the patient is in said hospital, or placing the patient under arrest or under the supervision of law enforcement authorities;

(2) Court-Ordered Psychiatric Exam. A disclosure made to a psychotherapist in the course of a psychiatric examination ordered by the court, provided that such disclosure was made after the patient was informed that the communication would not be privileged, and provided further that such communications shall be admissible only on issues involving the patient’s mental or emotional condition but not as a confession or admission of guilt;

(3) Patient Raises the Issue of Own Mental or Emotional Condition as an Element of Claim or Defense. A disclosure in any proceeding, except one involving child custody, adoption, or adoption consent, in which the patient introduces the patient’s mental or emotional condition as an element of a claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected;

(4) Party Through Deceased Patient Raises Issue of Decedent’s Mental or Emotional Condition as Element of Claim or Defense. A disclosure in any proceeding after the death of a patient in which the patient’s mental or emotional condition is introduced by any party claiming or defending through, or as a beneficiary of, the patient as an element of the claim or defense, and the judge or pre­siding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected;

(5) Child Custody and Adoption Cases. A disclosure in any case involving child custody, adoption, or the dispensing with the need for consent to adoption in which, upon a hearing in chambers, the judge, in the exercise of his or her discretion, determines that the psychotherapist has evidence bearing significantly on the patient’s ability to provide suitable care or custody, and that it is more important to the welfare of the child that the communication be disclosed than that the relationship between patient and psychotherapist be protected; provided, however, that in such cases of adoption or the dispensing with the need for consent to adoption, a judge shall first determine that the patient has been informed that such communication would not be privileged;

(6) Claim Against Psychotherapist. A disclosure in any proceeding brought by the patient against the psychotherapist, and in any malpractice, criminal, or license revocation proceeding, in which dis­closure is necessary or relevant to the claim or defense of the psychotherapist; or

(7) Child Abuse or Neglect. A report to the Department of Children and Families of reasonable cause to believe that a child under the age of eighteen has suffered serious physical or emotional injury resulting from sexual abuse, pursuant to G. L. c. 119, § 51A.

(8) Exception. In criminal actions, such confidential communications may be subject to discovery and may be admissible as evidence, subject to applicable law.

NOTE

Subsection (a). This subsection is taken nearly verbatim from G. L. c. 233, § 20B.

Subsection (b). This subsection is taken nearly verbatim from G. L. c. 233, § 20B. The psychotherapist-patient privilege recognizes the critical role of confidentiality in this medical speciality. Usen v. Usen, 359 Mass. 453, 457, 269 N.E.2d 442, 444 (1971). This privilege is not self-executing. Commonwealth v. Oliveira, 438 Mass. 325, 331, 780 N.E.2d 453, 458 (2002).

Scope of the Privilege. “The privilege gives the patient the right to refuse to disclose and to prevent another witness from disclosing any communication between patient and psychotherapist concerning diagnosis or treatment of the patient’s mental condition.” Commonwealth v. Clancy, 402 Mass. 664, 667, 524 N.E.2d 395, 397 (1988). The privilege does not protect the facts of the hospitalization or treatment, the dates, or the purpose of the hospitalization or treatment, if such purpose does not implicate communications between the wit­nesses and the psychotherapist. Id. See Commonwealth v. Kobrin, 395 Mass. 284, 294, 479 N.E.2d 674, 681 (1985) (holding, in context of grand jury investigation into Medicaid fraud, that patient diagnosis is not privileged but portions of records that “reflect patients’ thoughts, feelings, and impressions, or contain the substance of the psychotherapeutic dialogue are protected”).

The privilege is evidentiary and applies only “in any court proceeding and in any proceeding preliminary thereto and in legislative and administrative proceedings.” G. L. c. 233, § 20B. See Commonwealth v. Brandwein, 435 Mass. 623, 628–630, 760 N.E.2d 724, 728–730 (2002) (psychotherapist not prohibited by G. L. c. 233, § 20B, from informing police of statements made to her in her office by a client who confessed to a robbery and turned over a firearm).

Subsection (c). This subsection is taken verbatim from G. L. c. 233, § 20B.

Subsection (d)(1). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(a).

Subsection (d)(2). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(b). See also Commonwealth v. Lamb, 365 Mass. 265, 270, 311 N.E.2d 47, 51 (1974) (patient’s communications to a psychotherapist in a court-‌ordered evaluation may not be disclosed against the patient’s wishes absent a warning that the communications would not be privileged).

Subsection (d)(3). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(c). In Commonwealth v. Dung Van Tran, 463 Mass. 8, 20–21, 972 N.E.2d 1, 11–12 (2012), the Supreme Judicial Court found that the defendant did not put his mental or emotional condition in issue where “the defense was not that the defendant was incapable of forming the intent necessary to support conviction but, rather, that he lacked the requisite intent to harm another.” Id. at 20, 972 N.E.2d at 11. The court held that the “Commonwealth may not introduce against a defendant statements protected by the psychotherapist-‌patient privilege on the ground that the defendant himself placed his mental or emotional condition in issue, unless the defendant has at some point in the proceedings asserted a defense based on his mental or emotional condition, defect, or impairment.” Id. at 21, 972 N.E.2d at 12.

Subsection (d)(4). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(d).

Subsection (d)(5). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(e).

Subsection (d)(6). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(f).

Subsection (d)(7). This subsection is derived from G. L. c. 119, § 51A.

Subsection (d)(8). This subsection is derived from Commonwealth v. Dwyer, 448 Mass. 122, 145–146, 859 N.E.2d 400, 418–419 (2006) (establishing protocol in criminal cases governing access to and use of material covered by statutory privilege). See Introductory Note to Article V, Privileges and Disqualifications .

Back to Top

Section 504.    Spousal Privilege and Disqualification; Parent-‌Child Disqualification

(a) Spousal Privilege.

(1) General Rule. A spouse shall not be compelled to testify in the trial of an indictment, complaint, or other criminal proceeding brought against the other spouse.

(2) Who May Claim the Privilege. Only the witness-spouse may claim the privilege.

(3) Exceptions. This privilege shall not apply in civil proceedings, or in any prosecution for nonsupport, desertion, neglect of parental duty, or child abuse, including incest.

(b) Spousal Disqualification.

(1) General Rule. In any proceeding, civil or criminal, a witness shall not testify as to private conversations with a spouse occurring during their marriage.

(2) Exceptions. This disqualification shall not apply to

(A) a proceeding arising out of or involving a contract between spouses;

(B) a proceeding to establish paternity or to modify or enforce a support order;

(C) a prosecution for nonsupport, desertion, or neglect of parental duty;

(D) child abuse proceedings, including incest;

(E) any criminal proceeding in which a spouse has been charged with a crime against the other spouse;

(F) a violation of a vacate, restraining, or no-contact order or judgment issued by a Massachusetts court or a similar protection order from another jurisdiction;

(G) a declaration of a deceased spouse if the court finds that it was made in good faith and upon the personal knowledge of the declarant; or

(H) a criminal proceeding in which the private conversation reveals a bias or motive on the part of a spouse testifying against his or her spouse.

(c) Parent-Child Disqualification.

(1) Definitions. As used in this subsection, the following words shall have the following meanings:

(A) Minor Child. A “minor child” is any person under eigh­teen years of age.

(B) Parent. A “parent” is the natural or adoptive mother or father of the minor child referred to in Subsection (c)(1)(A).

(2) Disqualification. An unemancipated, minor child, living with a parent, shall not testify before a grand jury or at the trial of an indictment, complaint, or other criminal proceeding against said parent where the victim in such proceeding is not a member of said parent’s family and does not reside in the said parent’s household.

NOTE

Subsection (a)(1). This subsection is taken nearly verbatim from G. L. c. 233, § 20, Second.

The existence of the privilege depends on whether the spouse who asserts it is then married. The privilege applies even if the spouse was not married at the time of the events that are the subject of the criminal trial, and even if the spouse who asserts the privilege had testified in an earlier proceeding or trial. See Commonwealth v. DiPietro, 373 Mass. 369, 382, 367 N.E.2d 811, 819 (1977). There is no common-law privilege, similar to the spousal privilege, applicable to unmarried cohabitants. Commonwealth v. Diaz, 422 Mass. 269, 274, 661 N.E.2d 1326, 1329 (1996).

The privilege not to testify against a spouse applies regardless of whether the proposed testimony would be favorable or unfavorable to the other spouse. Commonwealth v. Maillet, 400 Mass. 572, 578, 511 N.E.2d 529, 533 (1987). The privilege is broad and it applies even though a spouse is called to give testimony concerning “persons other than the spouse.” Matter of a Grand Jury Subpoena, 447 Mass. 88, 97, 849 N.E.2d 797, 804 (2006).

The privilege applies to testimony at trial and not to testimony before a grand jury. See Matter of a Grand Jury Subpoena, 447 Mass. at 99, 849 N.E.2d at 805 (court finds it unnecessary to “decide whether, or to what extent, the spousal privilege may be invoked in pretrial [or posttrial] proceedings”). But see Commonwealth v. Szerlong, 457 Mass. 858, 864, 933 N.E.2d 633, 641 (2010) (spousal privilege applied at pretrial hearing on motion in limine). The court should conduct a voir dire, outside the presence of the jury, and may inquire of the witness whether he or she will assert the privilege or otherwise refuse to testify. Id. at 864 n.10, 933 N.E.2d at 642 n.10, citing Commonwealth v. Fisher, 433 Mass. 340, 350, 742 N.E.2d 61, 70 (2001). However, a “spouse cannot be forced to testify regarding [his or] her reasons for doing so.” Id.

Subsection (a)(2). This subsection is derived from Commonwealth v. Spencer, 212 Mass. 438, 451, 99 N.E. 266, 271 (1912). See also Commonwealth v. Stokes, 374 Mass. 583, 595, 374 N.E.2d 87, 96 (1978).

A spouse may testify against the other spouse if he or she is willing to do so. Commonwealth v. Saltzman, 258 Mass. 109, 110, 154 N.E. 562, 562 (1927). The defendant-spouse has no standing to object to his or her spouse’s testimony. Commonwealth v. Stokes, 374 Mass. at 595, 374 N.E.2d at 95–96. When a spouse decides to waive the privilege and testify against his or her spouse in a criminal proceeding, the judge should be satisfied, outside the presence of the jury, that the waiver is knowing and voluntary. Id. at 595 n.9, 374 N.E.2d at 96 n.9.

Subsection (a)(3). This subsection is derived from G. L. c. 233, § 20, Second, and G. L. c. 273, § 7. See Three Juveniles v. Commonwealth, 390 Mass. 357, 361, 455 N.E.2d 1203, 1206 (1983) (privilege inapplicable in civil proceedings), cert. denied, 465 U.S. 1068 (1984).

Subsection (b)(1). This subsection is derived from G. L. c. 233, § 20, First.

The disqualification, unlike the privilege, bars either spouse from testifying to private conversations with the other, even where both spouses wish the communication to be revealed. Gallagher v. Goldstein, 402 Mass. 457, 459, 524 N.E.2d 53, 54 (1988). “The contents of private conversations are absolutely excluded, but the statute does not bar evidence as to the fact that a conversation took place” (citations omitted). Id. The disqualification survives the death of a spouse, see Dexter v. Booth, 84 Mass. 559, 561 (1861), except in civil cases subject to G. L. c. 233, § 65 (“In any action or other civil judicial proceeding, a declaration of a deceased person shall not be inadmissible in evidence as hearsay or as private conversation between husband and wife, as the case may be, if the court finds that it was made in good faith and upon the personal knowledge of the declarant.”). See Section 504(b)(2)(G), Spousal Privilege and Disqualification; Parent-Child Disqualification: Spousal Disqualification: Exceptions.

Whether a conversation was “private” is a question of preliminary fact for the trial judge. See Freeman v. Freeman, 238 Mass. 150, 161–162, 130 N.E. 220, 222 (1921).  In the absence of an objection, evidence of private conversations is admissible and may be given its full probative value. Commonwealth v. Stokes, 374 Mass. 583, 595 n.8, 374 N.E.2d 87, 95 n.8 (1978). However, if there is an objection, the conversation is excluded even if neither spouse objects to the conversation being admitted. Gallagher v. Goldstein, 402 Mass. at 461, 524 N.E.2d at 55; Commonwealth v. Salyer, 84 Mass. App. Ct. 346, 354, 996 N.E.2d 488, 495 (2013).

The disqualification applies only to conversations, not to other types of communications. For example, written communications are not included. Commonwealth v. Szczuka, 391 Mass. 666, 678 n.14, 464 N.E.2d 38, 46 n.14 (1984). A spouse is not barred from testifying that a conversation took place, and, as a result, that he or she did something. See Sampson v. Sampson, 223 Mass. 451, 458–459, 112 N.E. 84, 87 (1916). The disqualification does not bar a third person who overheard the “private conversation” from testifying to its contents. Commonwealth v. O’Brien, 377 Mass. 772, 774–775, 388 N.E.2d 658, 661 (1979). See also Martin v. Martin, 267 Mass. 157, 159, 166 N.E. 820, 820 (1929).

“[W]ords constituting or accompanying abuse, threats, or assaults of which the other spouse is the victim” are not regarded as private conversation for the purpose of the disqualification. Commonwealth v. Gillis, 358 Mass. 215, 218, 263 N.E.2d 437, 440 (1970). Complaints and exclamations of pain and suffering are also not private conversations for the purpose of the disqualification. Commonwealth v. Jardine, 143 Mass. 567, 567–568, 10 N.E. 250, 250–‌251 (1887).

The disqualification depends upon the existence of the marriage at the time of the communication; it does not prohibit testimony by a spouse as to communications made prior to the marriage. Commonwealth v. Azar, 32 Mass. App. Ct. 290, 304, 588 N.E.2d 1352, 1361 (1992), remanded for new trial on other grounds, 435 Mass. 675, 760 N.E.2d 1224 (2002). See also Commonwealth v. Barronian, 235 Mass. 364, 366, 126 N.E. 833, 834 (1920).

The Supreme Judicial Court has left open whether the disqualification would bar testimony of a spouse when husband and wife are jointly engaged in criminal activity. Commonwealth v. Walker, 438 Mass. 246, 254 n.4, 780 N.E.2d 26, 33 n.4 (2002).

The defendant’s constitutional right to confront witnesses may trump the statutory disqualification. “To determine whether the [marital] disqualification should yield to the invoked constitutional rights [in a criminal case the court] look[s] to whether the evidence at issue if admitted might have had a significant impact on the result of the trial” (quotations and citations omitted). Commonwealth v. Perl, 50 Mass. App. Ct. 445, 453, 737 N.E.2d 937, 944 (2000) (upholding exclusion of private conversations which would have been cumulative of other evidence).

“Where [G. L. c. 233, § 20] confers a testimonial privilege, the language of the statute is to be strictly construed.” Matter of a Grand Jury Subpoena, 447 Mass. 88, 90, 849 N.E.2d 797, 800 (2006).

Subsection (b)(2)(A). This subsection is derived from G. L. c. 233, § 20, First.

Subsection (b)(2)(B). This subsection is derived from G. L. c. 233, § 20, First. Spousal disqualification does not apply in any Chapter 209C action. See G. L. c. 209C, § 16(c). It also does not apply to any action to establish paternity, support, or both under the Massachusetts Uniform Interstate Family Support Act (Chapter 209D), or to enforce a child support or alimony order. See G. L. c. 209D, § 3‑316(h).

Subsection (b)(2)(C). This subsection is derived from G. L. c. 233, § 20, First.

Subsection (b)(2)(D). This subsection is derived from G. L. c. 233, § 20, First. See Commonwealth v. Burnham, 451 Mass. 517, 521–522, 887 N.E.2d 222, 225–‌226 (2008) (the statutory exception to the applicability of the marital disqualification in child abuse cases applies to both civil and criminal proceedings).

Subsection (b)(2)(E). This subsection is derived from G. L. c. 233, § 20, First.

Subsection (b)(2)(F). This subsection is derived from G. L. c. 233, § 20, First.

Subsection (b)(2)(G). This subsection is taken nearly verbatim from G. L. c. 233, § 65.

Subsection (b)(2)(H). This subsection is derived from Commonwealth v. Sugrue, 34 Mass. App. Ct. 172, 175–178, 607 N.E.2d 1045, 1047–1049 (1993), where the Appeals Court explained that the criminal defendant’s constitutional right to confrontation and to a fair trial outweighed the public policy behind the spousal disqualification.

Subsection (c)(1)(A). This subsection is derived from G. L. c. 4, § 7, Forty-‌eighth.

Subsection (c)(1)(B). This subsection is derived from G. L. c. 233, § 20, Fourth.

Subsection (c)(2). This subsection is derived from G. L. c. 233, § 20, Fourth.

The Supreme Judicial Court has declined to recognize a testimonial privilege that parents could exercise to avoid being compelled to testify in criminal proceedings about confidential communications with their children. See Matter of a Grand Jury Subpoena, 430 Mass. 590, 590–591, 722 N.E.2d 450, 451 (2000) (“the Legislature, in the first instance, is the more appropriate body to weigh the relative social policies and address whether and how such a privilege should be created”).

Back to Top

Section 505.    Domestic Violence Victims’ Counselor Privilege

(a) Definitions. The definitions that follow apply to this section unless the context clearly requires otherwise.

(1) Abuse. “Abuse” means causing or attempting to cause physical harm; placing another in fear of imminent physical harm; or causing another to engage in sexual relations against his or her will by force, threat of force, or coercion.

(2) Confidential Communication. A “confidential communication” is information transmitted in confidence by and between a victim and a domestic violence victims’ counselor by a means which does not disclose the information to a person other than a person present for the benefit of the victim, or to those to whom disclosure of such information is reasonably necessary to the counseling and assisting of such victim. The term “information” includes, but is not limited to, reports, records, working papers, or memoranda.

(3) Domestic Violence Victims’ Counselor. A “domestic violence victims’ counselor” is a person who is employed or volunteers in a domestic violence victim’s program; who has undergone a minimum of twenty-five hours of training; who reports to and is under the direct control and supervision of a direct service supervisor of a domestic violence victims’ program; and whose primary purpose is the rendering of advice, counseling, or assistance to victims of abuse.

(4) Domestic Violence Victims’ Program. A “domestic violence victims’ program” is any refuge, shelter, office, safe home, institution or center established for the purpose of offering assistance to victims of abuse through crisis intervention, medical, legal, or support counseling.

(5) Victim. A “victim” is a person who has suffered abuse and who consults a domestic violence victims’ counselor for the purpose of securing advice, counseling, or assistance concerning a mental, physical, or emotional condition caused by such abuse.

(b) Privilege. A domestic violence victims’ counselor shall not disclose confidential communications between the counselor and the victim of domestic violence without the prior written consent of the victim. Such confidential communication shall not be subject to discovery in any civil, legislative, or administrative proceeding without the prior written consent of the victim to whom such confidential communication relates, except as provided in Subsection (c).

(c) Exception. In criminal actions, such confidential communications may be subject to discovery and may be admissible as evidence, subject to applicable law.

NOTE

This section is derived from G. L. c. 233, § 20K; Commonwealth v. Dwyer, 448 Mass. 122, 143 n.25, 859 N.E.2d 400, 416 n.25 (2006) (characterizing records prepared by domestic violence victims’ counselor as privileged); and Commonwealth v. Tripolone, 425 Mass. 487, 489, 681 N.E.2d 1216, 1218 (1997) (same). The specific provision in G. L. c. 233, § 20K, for in camera judicial review prior to an order allowing any discovery of material covered by the domestic violence victims’ counselor privilege is different from the procedure recently established by the Supreme Judicial Court in Commonwealth v. Dwyer, 448 Mass. at 145–146, 859 N.E.2d at 418–419. See Introductory Note to Article V, Privileges and Disqualifications .

Back to Top

Section 506.    Sexual Assault Counselor–Victim Privilege

(a) Definitions. The definitions that follow apply to this section unless the context clearly requires otherwise.

(1) Rape Crisis Center. A “rape crisis center” is any office, institution, or center offering assistance to victims of sexual assault and the families of such victims through crisis intervention, medical, and legal counseling.

(2) Sexual Assault Counselor. A “sexual assault counselor” is a person who (A) is employed by or is a volunteer in a rape crisis center; (B) has undergone thirty-five hours of training; (C) reports to and is under the direct control and supervision of a licensed social worker, nurse, psychiatrist, psychologist, or psychotherapist; and (D) has the primary purpose of rendering advice, counseling, or assistance to victims of sexual assault.

(3) Victim. A “victim” is a person who has suffered a sexual assault and who consults a sexual assault counselor for the purpose of securing advice, counseling, or assistance concerning a mental, physical, or emotional condition caused by such sexual assault.

(4) Confidential Communication. A “confidential communication” is information transmitted in confidence by and between a victim of sexual assault and a sexual assault counselor by a means which does not disclose the information to a person other than a person present for the benefit of the victim, or to those to whom disclosure of such information is reasonably necessary to the counseling and assisting of such victim. The term includes all information received by the sexual assault counselor which arises out of and in the course of such counseling and assisting, including, but not limited to, reports, records, working papers, or memoranda.

(b) Privilege. A confidential communication as defined in Subsection (a)(4) shall not be disclosed by a sexual assault counselor, is not subject to discovery, and is inadmissible in any criminal or civil proceeding without the prior written consent of the victim to whom the report, record, working paper, or memorandum relates. Nothing in this section shall be construed to limit the defendant’s right of cross-examination of such counselor in a civil or criminal proceeding if such counselor testifies with such written consent.

(c) Exception. In criminal actions, such confidential communications may be subject to discovery and may be admissible as evidence, subject to applicable law.

NOTE

Subsection (a). This subsection is taken nearly verbatim from G. L. c. 233, § 20J.

Subsection (b). This subsection is taken nearly verbatim from G. L. c. 233, § 20J. See Commonwealth v. Dwyer, 448 Mass. 122, 143 n.25, 859 N.E.2d 400, 416 n.25 (2006) (characterizing records prepared by sexual assault victims’ counselor as privileged).

This privilege protects only confidential communications between the victim and the counselor and does not extend to the date, time, or fact of the communication. Commonwealth v. Neumyer, 432 Mass. 23, 29, 731 N.E.2d 1053, 1058 (2000). The victim’s testimony to the content of a privileged communication under this section does not constitute a waiver of the privilege unless the testimony is given with knowledge of the privilege and an intent to waive it. Id. at 35–36, 731 N.E.2d at 1062. See Section 523(b), Waiver of Privilege: Conduct Constituting Waiver .

Subsection (c). This subsection is derived from Commonwealth v. Dwyer, 448 Mass. 122, 145–146, 859 N.E.2d 400, 418–419 (2006) (establishing protocol in criminal cases governing access to and use of material covered by privilege). See Introductory Note to Article V, Privileges and Disqualifications .

Back to Top

Section 507.    Social Worker–Client Privilege

(a) Definitions. As used in this section, the following words shall have the following meanings:

(1) Client. A “client” is a person with whom a social worker has established a social worker–client relationship.

(2) Communications. “Communications” includes conversations, correspondence, actions, and occurrences regardless of the client’s awareness of such conversations, correspondence, actions, and occurrences and any records, memoranda, or notes of the foregoing.

(3) [Reserved]

(4) Social Worker. As used in this section, a “social worker” is a social worker licensed pursuant to the provisions of G. L. c. 112, § 132, or a social worker employed in a State, county, or municipal governmental agency.

(b) Privilege. A client shall have the privilege of refusing to disclose and of preventing a witness from disclosing any communication, wherever made, between said client and a social worker relative to the diagnosis or treatment of the client’s mental or emotional condition. If a client is incompetent to exercise or waive such privilege, a guardian shall be appointed to act in the client’s behalf under this section. A previously appointed guardian shall be authorized to so act.

(c) Exceptions. The privilege in Subsection (b) shall not apply to any of the following communications:

(1) if a social worker, in the course of making a diagnosis or treating the client, determines that the client is in need of treatment in a hospital for mental or emotional illness or that there is a threat of imminently dangerous activity by the client against himself or herself, or another person, and on the basis of such determination discloses such communication either for the purpose of placing or retaining the client in such hospital; provided, however, that the provisions of this section shall continue in effect after the client is in said hospital, or placing the client under arrest or under the supervision of law enforcement authorities;

(2) if a judge finds that the client, after having been informed that the communications would not be privileged, has made communications to a social worker in the course of a psychiatric examination ordered by the court; provided, however, that such communications shall be admissible only on issues involving the client’s mental or emotional condition but not as a confession or admission of guilt;

(3) in any proceeding, except one involving child custody, adoption, or adoption consent, in which the client introduces his or her mental or emotional condition as an element of a claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between the client and the social worker be protected;

(4) in any proceeding after the death of a client in which the client’s mental or emotional condition is introduced by any party claiming or defending through or as a beneficiary of the client as an element of the claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between client and social worker be protected;

(5) in the initiation of proceedings under G. L. c. 119, §§ 23(C) and 24, or G. L. c. 210, § 3, or to give testimony in connection therewith;

(6) in any proceeding whereby the social worker has acquired the information while conducting an investigation pursuant to G. L. c. 119, § 51B;

(7) in any other case involving child custody, adoption, or the dispensing with the need for consent to adoption in which, upon a hearing in chambers, the judge, in the exercise of his or her discretion, determines that the social worker has evidence bearing significantly on the client’s ability to provide suitable care or custody, and that it is more important to the welfare of the child that the communication be disclosed than that the relationship between client and social worker be protected; provided, however, that in such case of adoption or the dispensing with the need for consent to adoption, a judge shall determine that the client has been informed that such communication would not be privileged;

(8) in any proceeding brought by the client against the social worker and in any malpractice, criminal, or license revocation proceeding in which disclosure is necessary or relevant to the claim or defense of the social worker; or

(9) in criminal actions, such privileged communications may be subject to discovery and may be admissible as evidence, subject to applicable law.

NOTE

Subsections (a)(1)–(2). These subsections are taken nearly verbatim from G. L. c. 112, § 135.

Subsection (a)(4). This subsection is taken nearly verbatim from G. L. c. 112, §§ 135A and 135B. See Bernard v. Commonwealth, 424 Mass. 32, 35, 673 N.E.2d 1220, 1222 (1996) (State police trooper employed as a peer counselor qualified as a social worker for purposes of this section).

Subsection (b). This subsection is taken nearly verbatim from G. L. c. 112, § 135B. See Commonwealth v. Pelosi, 441 Mass. 257, 261 n.6, 805 N.E.2d 1, 5 n.6 (2004) (characterizing records prepared by clients’ social worker as privileged; privilege is not self-executing).

Subsections (c)(1)–(8). These subsections are taken nearly verbatim from G. L. c. 112, § 135B.

The social worker–client privilege is set forth in G. L. c. 112, § 135B. General Laws c. 112, § 135A, addresses the general duty of confidentiality of certain social workers. See Commonwealth v. Pelosi, 441 Mass. 257, 261 n.6, 805 N.E.2d 1, 5 n.6 (2004). The privilege is not self-executing. See Commonwealth v. Oliveira, 438 Mass. 325, 331, 780 N.E.2d 453, 458 (2002).

Subsection (c)(9). This subsection is derived from Commonwealth v. Dwyer, 448 Mass. 122, 145–146, 859 N.E.2d 400, 418–419 (2006) (establishing protocol in criminal cases governing access to and use of material covered by statutory privilege). See Introductory Note to Article V, Privileges and Disqualifications .

Back to Top

Section 508. Allied Mental Health or Human Services Professional Privilege

(a) Definitions. As used in this section, an “allied mental health and human services professional” is a licensed marriage and family therapist, a licensed rehabilitation counselor, a licensed mental health counselor, or a licensed educational psychologist.

(b) Privilege. Any communication between an allied mental health or human services professional and a client shall be deemed to be confidential and privileged.

(c) Waiver. This privilege shall be subject to waiver only in the following circumstances:

(1) where the allied mental health and human services professional is a party defendant to a civil, criminal, or disciplinary action arising from such practice in which case the waiver shall be limited to that action;

(2) where the client is a defendant in a criminal proceeding and the use of the privilege would violate the defendant’s right to compulsory process and right to present testimony and witnesses in his or her own behalf;

(3) when the communication reveals the contemplation or commission of a crime or a harmful act; and

(4) where a client agrees to the waiver, or in circumstances where more than one person in a family is receiving therapy, where each such family member agrees to the waiver.

(d) Exception. In criminal actions, such privileged communications may be subject to discovery and may be admissible as evidence, subject to applicable law.

NOTE

Subsection (a). This subsection is taken nearly verbatim from G. L. c. 112, § 163. General Laws c. 112, § 165, outlines license eligibility. A licensed educational psychologist must also be certified as a school psychologist by the Massachusetts Department of Education. G. L. c. 112, § 163.

Subsections (b) and (c). These subsections are taken nearly verbatim from G. L. c. 112, § 172. See Commonwealth v. Vega, 449 Mass. 227, 231, 866 N.E.2d 892, 895 (2007) (the statute creates an evidentiary privilege as well as a confidentiality rule).

These subsections do not prohibit a third-party reimburser from inspecting and copying any records relating to diagnosis, treatment, or other services provided to any person for which coverage, benefit, or reimbursement is claimed, so long as access occurs in the ordinary course of business and the policy or certificate under which the claim is made provides that such access is permitted. G. L. c. 112, § 172. Further, this section does not apply to access to such records pursuant to any peer review or utilization review procedures applied and implemented in good faith. G. L. c. 112, § 172.

Subsection (d). This subsection is derived from Commonwealth v. Dwyer, 448 Mass. 122, 145–146, 859 N.E.2d 400, 418–419 (2006) (establishing protocol in criminal cases governing access to and use of material covered by statutory privilege). See Introductory Note to Article V, Privileges and Disqualifications .

Back to Top

Section 509. Identity of Informer, Surveillance Location, and Protected Witness Privileges

(a) Identity of Informer. The identity of persons supplying the government with information concerning the commission of a crime is privileged in both civil and criminal cases, except there is no privilege under this subsection when

(1) the identity of the informer has been disclosed by the government or by the informer, or is otherwise known, or

(2) the identity of the informer is relevant and helpful to the defense of an accused, or is essential to a fair determination of a criminal or civil case in which the government is a party. Before the identity of the informer is disclosed, the court must balance the public interest in protecting the flow of information against the individual’s right to prepare a defense.

(b) Surveillance Location. The exact location, such as the location of a police observation post, used for surveillance is privileged, except there is no privilege under this subsection when a defendant shows that revealing the exact surveillance location would provide evidence needed to fairly present the defendant’s case to the jury.

(c) Protected Witness. The identity and location of a protected witness and any other matter concerning a protected witness or the Commonwealth’s witness protection program is privileged in both civil and criminal cases, except there is no privilege as to the identity and location of the protected witness under this subsection when

(1) the prosecuting officer agrees to a disclosure after balancing the danger posed to the protected witness, the detriment it may cause to the program, and the benefit it may afford to the public or the person seeking discovery, or

(2) disclosure is at the request of a local, State, or Federal law enforcement officer or is in compliance with a court order in circumstances in which the protected witness is under criminal investigation for, arrested for, or charged with a felony.

(d) Who May Claim. These privileges may be claimed by the government.

NOTE

Subsection (a). This subsection is derived from Roviaro v. United States, 353 U.S. 53, 59–62 (1957); Attorney Gen. v. Tufts, 239 Mass. 458, 490–491, 132 N.E. 322, 326–327 (1921); and Worthington v. Scribner, 109 Mass. 487, 488–‌489 (1872). Although the privilege remains intact, it may expire. The public records statute, G. L. c. 66, § 10, provides an independent right of access to records and documents that were covered by the privilege if the reason for the privilege no longer exists. See, e.g., District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511–512, 646 N.E.2d 127, 130 (1995) (discussing Bougas v. Chief of Police of Lexington, 371 Mass. 59, 66, 354 N.E.2d 872, 878 [1976], and WBZ-TV4 v. District Attorney for the Suffolk Dist., 408 Mass. 595, 602–604, 562 N.E.2d 817, 821–822 [1990]).

When a defendant challenges the sufficiency of an affidavit in support of a search warrant, the court’s review “begins and ends with the ‘four corners of the affidavit.’” Commonwealth v. O’Day, 440 Mass. 296, 297, 798 N.E.2d 275, 277 (2003), quoting Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428, 657 N.E.2d 237, 238 (1995). The defendant has the burden of establishing by a preponderance of the evidence that the affidavit contains false statements. See Commonwealth v. Nine Hundred & Ninety-two Dollars, 383 Mass. 764, 767, 769, 422 N.E.2d 767, 770, 771 (1981). Intentionally or recklessly omitted material may satisfy the defendant’s burden. See Commonwealth v. Long, 454 Mass. 542, 552, 911 N.E.2d 174, 182 (2009). A negligent misrepresentation by the affiant is not a basis for relief. See Commonwealth v. Amral, 407 Mass. 511, 520, 554 N.E.2d 1189, 1195 (1990); Commonwealth v. Nine Hundred & Ninety-‌two Dollars, 383 Mass. at 771–772, 422 N.E.2d at 772–773. If the affidavit contains false statements, the court must simply assess whether it establishes probable cause without reliance on the false statements. See Commonwealth v. Amral, 407 Mass. at 519, 554 N.E.2d at 1195. Cf. Commonwealth v. Nine Hundred & Ninety-two Dollars, 383 Mass. at 768, 422 N.E.2d at 770–771 (leaving open whether suppression of evidence should be ordered under Article 14 of the Massachusetts Declaration of Rights when there has been a deliberately false, though nonmaterial, misstatement by the affiant).

Amral Hearing. In keeping with the “four corners rule,” the court should not take any action simply based on an allegation that the affidavit contains false information. Only if the defendant makes an initial showing that “cast[s] a reasonable doubt on the veracity of material representations made by the affiant concerning a confidential informant” is the court required to act (citations omitted). See Commonwealth v. Youngworth, 55 Mass. App. Ct. 30, 38, 769 N.E.2d 299, 307 (2002), cert. denied, 538 U.S. 1064 (2003). The first step is to conduct an in camera hearing. See Commonwealth v. Ramirez, 416 Mass. 41, 53–54, 617 N.E.2d 983, 989–990 (1993). The informant may be ordered to appear and submit to questions by the court at this “Amral hearing”; however, the identity of the informant is not revealed. The court has discretion to permit the prosecutor to attend this hearing. Neither the defendant nor defense counsel is permitted to attend. See Commonwealth v. Amral, 407 Mass. at 525, 554 N.E.2d at 1198. If the court is satisfied that the informant exists and that the defendant’s allegations of false statements are not substantiated, there is no further inquiry. On the other hand, if the defendant makes “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit,” the court must take the next step (citation omitted). See Commonwealth v. Youngworth, 55 Mass. App. Ct. at 37–38, 769 N.E.2d at 306–‌307. In this situation, the defendant is entitled to an evidentiary hearing and to the disclosure of the identity of the informant. The burden of proof at this hearing rests with the defendant to establish that the affiant presented the magistrate with false information purposely or with reckless disregard for its truth. If it is shown that an affidavit in support of a warrant contains false information that was material to the determination of probable cause, suppression of the evidence is required. See Franks v. Delaware, 438 U.S. 154, 155–156 (1978); Commonwealth v. Amral, 407 Mass. at 519–520, 554 N.E.2d at 1195.

Subsection (a)(1). This subsection is derived from Commonwealth v. Congdon, 265 Mass. 166, 175, 165 N.E. 467, 470 (1928), and Pihl v. Morris, 319 Mass. 577, 579, 66 N.E.2d 804, 806 (1946).

Subsection (a)(2). The first sentence of this subsection is quoted nearly verbatim from Commonwealth v. Johnson, 365 Mass. 534, 544–545, 313 N.E.2d 571, 578 (1974), quoting Roviaro v. United States, 353 U.S. 53, 60–61 (1957). The last sentence of this subsection is derived from Commonwealth v. Nelson, 26 Mass. App. Ct. 794, 797, 536 N.E.2d 1094, 1096 (1989). See also Commonwealth v. Dias, 451 Mass. 463, 469, 886 N.E.2d 713, 718 (2008) (“Part of the balance involves weighing the potential danger to the informant.”). “Cases which have considered the subject have maintained the distinction between a demand for disclosure at a pretrial hearing, where the issue is probable cause for arrest or a search, and a demand for disclosure at trial, where the issue is the defendant’s ultimate guilt or innocence.” Commonwealth v. Lugo, 406 Mass. 565, 571, 548 N.E.2d 1263, 1266 (1990). “[T]he government is not required to disclose the identity of an informant who is a mere tipster and not an active participant in the offense charged.” Commonwealth v. Brzezinski, 405 Mass. 401, 408, 540 N.E.2d 1325, 1330 (1989), quoting United States v. Alonzo, 571 F.2d 1384, 1387 (5th Cir.), cert. denied, 439 U.S. 847 (1978). Accord McCray v. Illinois, 386 U.S. 300, 308–309 (1967). See also Commonwealth v. Martin, 362 Mass. 243, 245, 285 N.E.2d 124, 126 (1972) (trial judge “reasonably refused to permit inquiry about an informant who seems merely to have told the police where the defendants were living together”); Commonwealth v. McKay, 23 Mass. App. Ct. 966, 967, 503 N.E.2d 48, 49 (1987) (trial judge was not required to order disclosure of the identity of two inmates who informed on the defendant, although their statements were disclosed and they were not called as witnesses at trial by the Commonwealth). When the informant “is an active participant in the alleged crime or the only nongovernment witness, disclosure [of the identity of the informant] usually has been ordered.” Commonwealth v. Lugo, 406 Mass. at 572, 548 N.E.2d at 1266.

Where a defendant seeks disclosure of otherwise privileged information to support an entrapment defense, the question is whether the defense has been “appropriately raised . . . by the introduction of some evidence of inducement by a government agent or one acting at his direction.” Commonwealth v. Madigan, 449 Mass. 702, 707, 871 N.E.2d 478, 483 (2007), quoting Commonwealth v. Miller, 361 Mass. 644, 651–652, 282 N.E.2d 394, 400 (1972). “The types of conduct that possess the indicia of inducement include ‘aggressive persuasion, coercive encouragement, lengthy negotiations, pleading or arguing with the defendant, repeated or persistent solicitation, persuasion, importuning, and playing on sympathy or other emotion.’” Id. at 708, 871 N.E.2d at 483, quoting Commonwealth v. Tracy, 416 Mass. 528, 536, 624 N.E.2d 84, 89 (1993). See Commonwealth v. Mello, 453 Mass. 760, 765, 905 N.E.2d 562, 566 (2009) (reversing trial judge’s order that Commonwealth must disclose the identity of an unnamed informant because the defendant’s proffer showed no more than a solicitation; duty to disclose identity of an undercover police officer or unnamed informant does not carry over to a second unnamed informant unless the second informant participated in the first informant’s inducement).

Unless the relevancy and materiality of the information sought is readily apparent, the party seeking access to the information has the burden to provide the trial judge with the basis for ordering the disclosure. Commonwealth v. Swenson, 368 Mass. 268, 276, 331 N.E.2d 893, 898–899 (1975). When it is not clear from the record whether disclosure of the informant’s identity is required, the court has discretion to hold an in camera hearing to assist in making that determination. Commonwealth v. Dias, 451 Mass. at 472 n.15, 866 N.E.2d at 721 n.15 (“The nature of the in camera hearing is left to the judge.”). In exceptional circumstances, a motion for the disclosure of the identity of an informant may be based on an ex parte affidavit in order to safeguard the defendant’s privilege against self-incrimination. However, in such a case, before any order of disclosure is made, the Commonwealth must be given a summary or redacted version of the defendant’s affidavit and an opportunity to oppose the defendant’s motion. Commonwealth v. Shaughessy, 455 Mass. 346, 357–‌358, 916 N.E.2d 980, 989 (2009).

Subsection (b). This subsection is derived from Commonwealth v. Lugo, 406 Mass. 565, 570–574, 548 N.E.2d 1263, 1265–1267 (1990), and Commonwealth v. Rios, 412 Mass. 208, 210–213, 588 N.E.2d 6, 7–9 (1992). It would be a violation of the defendant’s right to confrontation to preserve the confidentiality of a surveillance site by permitting the trier of fact to hear testimony from a witness outside of a defendant’s presence. Commonwealth v. Rios, 412 Mass. at 212–213, 588 N.E.2d at 8–9.

Subsection (c). This subsection is derived from St. 2006, c. 48, § 1, inserting G. L. c. 263A, entitled “Witness Protection in Criminal Matters.” As for the right of the defense to have access to a Commonwealth witness, see Commonwealth v. Balliro, 349 Mass. 505, 515–518, 209 N.E.2d 308, 314–316 (1965).

Subsection (d). This subsection is derived from Commonwealth v. Johnson, 365 Mass. 534, 544, 313 N.E.2d 571, 577 (1974).

Back to Top

Section 510. Religious Privilege

(a) Definitions. As used in this section, the following words shall have the following meanings:

(1) A “clergyman” includes a priest, a rabbi, an ordained or licensed minister of any church, or an accredited Christian Science practitioner.

(2) A “communication” is not limited to conversations, and includes other acts by which ideas may be transmitted from one person to another.

(3) “In his professional character” means in the course of discipline enjoined by the rules or practice of the religious body to which the clergyman belongs.

(b) Privilege. A clergyman shall not disclose a confession made to him in his professional character without the consent of the person making the confession. Nor shall a clergyman testify as to any communication made to him by any person seeking religious or spiritual advice or comfort, or as to his advice given thereon in the course of his professional duties or in his professional character, without the consent of such person.

(c) Child Abuse. Any clergyman shall report all cases of child abuse, but need not report information solely gained in a confession or similarly confidential communication in other religious faiths. Nothing shall modify or limit the duty of a clergyman to report a reasonable cause that a child is being injured when the clergyman is acting in some other capacity that would otherwise make him a reporter.

NOTE

Subsection (a)(1). This subsection is taken nearly verbatim from G. L. c. 233, § 20A. In Commonwealth v. Marrero, 436 Mass. 488, 495, 766 N.E.2d 461, 467–‌468 (2002), the Supreme Judicial Court declined to include the manager of a “Christian rehabilitation center” for drug addicts and alcoholics, who was not an ordained or licensed minister, within the definition of “clergyman.” The court also noted it was not an appropriate case to consider adopting the more expansive definition of “clergyman” found in Proposed Mass. R. Evid. 505(a)(1). Id.

Subsection (a)(2). This subsection is taken nearly verbatim from Commonwealth v. Zezima, 365 Mass. 238, 241, 310 N.E.2d 590, 592 (1974), rev’d on other grounds, 387 Mass. 748, 443 N.E.2d 1282 (1982).

Subsection (a)(3). This subsection is taken nearly verbatim from G. L. c. 233, § 20A.  See Commonwealth v. Vital, 83 Mass. App. Ct. 669, 673–674, 988 N.E.2d 866, 871 (2013) (a communication by the defendant to his pastor with a request that it be passed on to a person who was the alleged victim of a sexual assault by the defendant was not covered by the privilege because the defendant’s purpose was not to receive “religious or spiritual advice or comfort,” but instead to circumvent the terms of a restraining order).

Subsection (b). This subsection is taken nearly verbatim from G. L. c. 233, § 20A. It is a preliminary question of fact for the trial judge whether a communication to a clergyman is within the scope of the privilege. Commonwealth v. Zezima, 365 Mass. 238, 242 n.4, 310 N.E.2d 590, 592 n.4 (1974), rev’d on other grounds, 387 Mass. 748, 443 N.E.2d 1282 (1982).

Subsection (c). This subsection is taken nearly verbatim from G. L. c. 119, § 51A.

Back to Top

Section 511. Privilege Against Self-Incrimination

(a) Privilege of Defendant in Criminal Proceeding.

(1) Custodial Interrogation. A person has a right to refuse to answer any questions during a custodial interrogation.

(2) Refusal Evidence.

(A) No Court Order or Warrant. In the absence of a court order or warrant, evidence of a person’s refusal to provide real or physical evidence, or to cooperate in an investigation ordered by State officials, is not admissible in any criminal proceeding.

(B) Court Order or Warrant. When State officials have obtained a court order or warrant for physical or real evidence, a person’s refusal to provide the real or physical evidence is admissible in any criminal proceeding.

(3) Compelled Examination. A defendant has a right to refuse to answer any questions during a court-ordered examination for criminal responsibility.

(4) At a Hearing or Trial. A defendant has a right to refuse to testify at any criminal proceeding.

(b) Privilege of a Witness. Every witness has a right, in any proceeding, civil or criminal, to refuse to answer a question unless it is perfectly clear, from a careful consideration of all the circumstances, that the testimony cannot possibly have a tendency to incriminate the witness.

(c) Exceptions.

(1) Waiver by Defendant’s Testimony. When a defendant voluntarily testifies in a criminal case, the defendant waives his or her privilege against self-incrimination to the extent that the defendant may be cross-examined on all relevant and material facts regarding that case.

(2) Waiver by Witness’s Testimony. When a witness voluntarily testifies regarding an incriminating fact, the witness may thereby waive the privilege against self-incrimination as to subsequent questions seeking related facts in the same proceeding.

(3) Limitation. A waiver by testimony under Subsection (1) or (2) is limited to the proceeding in which it is given and does not extend to subsequent proceedings.

(4) Required Records. A witness may be required to produce required records because the witness is deemed to have waived his or her privilege against self-incrimination in such records. Required records, as used in this subsection, are those records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established.

(5) Immunity. In any investigation or proceeding, a witness shall not be excused from testifying or from producing books, papers, or other evidence on the ground that the testimony or evidence required may tend to incriminate the witness or subject him or her to a penalty or forfeiture if the witness has been granted immunity with respect to the transactions, matters, or things concerning which the witness is compelled, after having claimed his or her privilege against self-incrimination, to testify or produce evidence by a justice of the Supreme Judicial Court, Appeals Court, or Superior Court.

NOTE

Subsection (a). The Fifth Amendment to the Constitution of the United States provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” Similarly, Article 12 of the Declaration of Rights of the Massachusetts Constitution provides that “[n]o subject shall . . . be compelled to accuse, or furnish evidence against himself.” These provisions protect a person from the compelled production of testimonial communications. See Blaisdell v. Commonwealth, 372 Mass. 753, 758–759, 364 N.E.2d 191, 196 (1977). See also Commonwealth v. Brennan, 386 Mass. 772, 776, 438 N.E.2d 60, 63 (1982). When the privilege is applicable, it may be overcome only by an adequate grant of immunity or a valid waiver. Blaisdell v. Commonwealth, 372 Mass. at 761, 364 N.E.2d at 198. Under both Article 12 and the Fifth Amendment, the privilege does not apply to a corporation. Hale v. Henkel, 201 U.S. 43, 74–75 (1906); Matter of a John Doe Grand Jury Investigation, 418 Mass. 549, 552, 637 N.E.2d 858, 860 (1994). Whether the privilege exists, its scope, and whether it has been waived are preliminary questions for the court to decide under Section 104(a), Preliminary Questions: Determinations Made by the Court.

Subsection (a)(1). This subsection is derived from the Fifth Amendment to the United States Constitution and Miranda v. Arizona, 384 U.S. 436, 444 (1966). The Miranda doctrine, including its accompanying exclusionary rule, has been developed and explained in numerous decisions of the United States Supreme Court and the appellate courts of Massachusetts. See K.B. Smith, Criminal Practice and Procedure § 6.12 et seq. (3d ed. 2007).

Subsection (a)(2). This subsection is derived from Commonwealth v. Delaney, 442 Mass. 604, 609–611, 814 N.E.2d 346, 351–353 (2004). The privilege against self-incrimination, under both Federal and State law, protects only against the compelled production of communications or testimony by the government. See Bellin v. Kelley, 48 Mass. App. Ct. 573, 581 n.13, 724 N.E.2d 319, 325 n.13 (2000), and cases cited. It does not prevent the government from forcing a person to produce real or physical evidence, such as fingerprints, photographs, lineups, blood samples, handwriting, and voice exemplars. Commonwealth v. Brennan, 386 Mass. 772, 776–777, 783, 438 N.E.2d 60, 63–64, 67 (1982) (standard field sobriety tests do not implicate the privilege). The privilege against self-incrimination does not forbid the compelled production of certain statements that are necessarily incidental to the production of real or physical evidence. See Commonwealth v. Burgess, 426 Mass. 206, 220, 688 N.E.2d 439, 449 (1997). On the other hand, testimonial evidence which reveals a person’s knowledge or thoughts concerning some fact is protected. Commonwealth v. Brennan, 386 Mass. at 778, 438 N.E.2d at 64–65. In some respects, Article 12 provides greater protections than the Fifth Amendment. See Attorney Gen. v. Colleton, 387 Mass. 790, 796, 444 N.E.2d 915, 919 (1982); Commonwealth v. Hughes, 380 Mass. 583, 595, 404 N.E.2d 1239, 1246 (1980). Compare Braswell v. United States, 487 U.S. 99, 109, 117–118 (1988) (Fifth Amendment privilege not applicable to order requiring custodian of corporate records to produce them even though the records would tend to incriminate the custodian because he is only acting as a representative of the corporation when he responds to the order), with Commonwealth v. Doe, 405 Mass. 676, 678–680, 544 N.E.2d 860, 861–862 (1989) (describing result in Braswell v. United States as a “fiction” and holding that the privilege under Article 12 is fully applicable to protect custodian of corporate records from duty to produce them in circumstances in which act of production would incriminate the custodian as well as the corporation).

In Opinion of the Justices, 412 Mass. 1201, 1208, 591 N.E.2d 1073, 1077 (1992), the Supreme Judicial Court opined that legislation permitting the Commonwealth to offer evidence of a person’s refusal to take a breathalyzer test would violate the privilege against self-incrimination under Article 12 because such evidence reveals the person’s thought processes, i.e., it indicates the person has doubts or concerns about the outcome of the test, and thus constitutes testimonial evidence, the admission of which into evidence would violate the privilege under Article 12 of the Massachusetts Declaration of Rights. Federal law and the law of most other States is to the contrary. See South Dakota v. Neville, 459 U.S. 553, 560–561 (1983). See also Commonwealth v. Conkey, 430 Mass. 139, 142, 714 N.E.2d 343, 348 (1999) (“evidence admitted to show consciousness of guilt is always testimonial because it tends to demonstrate that the defendant knew he was guilty”). The reasoning employed by the Supreme Judicial Court in Opinion of the Justices, 412 Mass. at 1208–1211, 591 N.E.2d at 1077–1078, has been extended to other circumstances in which a person refuses to take a test, or to supply the police with real or physical evidence in the absence of a court order or warrant. See, e.g., Commonwealth v. Conkey, 430 Mass. at 141–143, 714 N.E.2d at 347–348 (evidence of a defendant’s failure to appear at a police station for fingerprinting); Commonwealth v. Hinckley, 422 Mass. 261, 264–265, 661 N.E.2d 1317, 1319–1320 (1996) (evidence of a defendant’s refusal to turn over sneakers for comparison with prints at a crime scene is not admissible); Commonwealth v. McGrail, 419 Mass. 774, 779–780, 647 N.E.2d 712, 715 (1995) (evidence of refusal to submit to field sobriety tests is not admissible); Commonwealth v. Zevitas, 418 Mass. 677, 683, 639 N.E.2d 1076, 1079 (1994) (evidence of refusal to submit to a blood alcohol test under G. L. c. 90, § 24, is not admissible); Commonwealth v. Lydon, 413 Mass. 309, 313–315, 597 N.E.2d 36, 39–40 (1992) (evidence of a defendant’s refusal to let his hands be swabbed for the presence of gunpowder residue is not admissible). See also Commonwealth v. Buckley, 410 Mass. 209, 214–216, 571 N.E.2d 609, 612–613 (1991) (a suspect may be compelled to provide a handwriting exemplar); Commonwealth v. Burke, 339 Mass. 521, 534–535, 159 N.E.2d 856, 864 (1959) (defendant may be required to go to the courtroom floor and strike a pose for identification purposes). Contrast Commonwealth v. Delaney, 442 Mass. 604, 607–612 & n.8, 814 N.E.2d 346, 350–353 & n.8 (2004) (explaining that although a warrant involves an element of compulsion, it leaves the individual with no choice other than to comply unlike the compulsion that accompanies a police request for information or evidence during the investigative stage; therefore, the Commonwealth may offer evidence of a defendant’s resistance to a warrant or court order without violating Article 12); Commonwealth v. Brown, 83 Mass. App. Ct. 772, 778–779, 989 N.E.2d 915, 920 (2013) (statements by defendant while performing field sobriety tests expressing difficulty with or inability to do the test are admissible).

Subsection (a)(3). This subsection is derived from the Fifth Amendment to the United States Constitution; Article 12 of the Massachusetts Declaration of Rights; G. L. c. 233, § 23B; and Blaisdell v. Commonwealth, 372 Mass. 753, 364 N.E.2d 191 (1977). At any stage of the proceeding, the trial judge may order a defendant to submit to an examination by one or more qualified physicians or psychologists under G. L. c. 123, § 15(a), on the issue of competency or criminal responsibility.

Competency Examinations. A competency examination does not generally implicate a person’s privilege against self-incrimination because it is concerned with whether the defendant is able to confer intelligently with counsel and to competently participate in the trial of his or her case, and not whether he or she is guilty or innocent. See Seng v. Commonwealth, 445 Mass. 536, 545, 839 N.E.2d 283, 290–291 (2005). If the competency examination ordered by the court under G. L. c. 123, § 15(a), results in an opinion by the qualified physician or psychologist that the defendant is not competent, the court may order an additional examination by an expert selected by the Commonwealth. G. L. c. 123, § 15(a). “In the circumstances of a competency examination, G. L. c. 233, § 23B, together with the judge-imposed strictures of [Mass. R. Crim. P.] 14(b)(2)(B), protects the defendant’s privilege against self-‌incrimination.” Seng v. Commonwealth, 445 Mass. at 548, 839 N.E.2d at 292.

Criminal Responsibility Examination. If a defendant voluntarily submits to an examination on the issue of criminal responsibility by a psychiatrist or a psychologist selected by the defense and decides to offer evidence at trial based on statements made during such an examination, the defendant must give advance notice to the Commonwealth and may be required to submit to an examination and answer questions by an expert selected by the Commonwealth under a special procedure devised by the Supreme Judicial Court in Blaisdell v. Commonwealth, 372 Mass. 753, 364 N.E.2d 191 (1977), and codified in Mass. R. Crim. P. 14(b)(2), whereby the defendant’s statements to the court-ordered examiner are not disclosed to the Commonwealth until the defendant offers evidence at trial based on those statements. In Blaisdell v. Commonwealth, 372 Mass. at 766–769, 364 N.E.2d at 200–202, the Supreme Judicial Court held that this procedure was adequate to safeguard the defendant’s privilege against self-incrimination.

Subsection (a)(4). This subsection is derived from the Fifth Amendment to the United States Constitution; Article 12 of the Massachusetts Declaration of Rights; and G. L. c. 233, § 20, Third. Generally, in determining the existence of the privilege, the judge is not permitted to pierce the privilege. See Section 104(a), Preliminary Questions: Determinations Made by the Court. This privilege is not self-executing. See Commonwealth v. Brennan, 386 Mass. 772, 780, 438 N.E.2d 60, 65 (1982).

Subsection (b). This subsection is derived from the Fifth Amendment to the United States Constitution; Article 12 of the Massachusetts Declaration of Rights; Wansong v. Wansong, 395 Mass. 154, 157–158, 478 N.E.2d 1270, 1272 (1985) (civil proceeding); and Commonwealth v. Baker, 348 Mass. 60, 62–63, 201 N.E.2d 829, 831–832 (1964) (criminal proceeding). See also Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) (“The [Fifth] Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.”). The test used to determine whether an answer might incriminate the witness is the same under both Federal and State law. See Malloy v. Hogan, 378 U.S. 1, 11 (1964). See also Commonwealth v. Lucien, 440 Mass. 658, 665, 801 N.E.2d 247, 254 (2004); Commonwealth v. Funches, 379 Mass. 283, 289, 397 N.E.2d 1097, 1100 (1979). Also, under both Federal and State law, a public employee cannot be discharged or disciplined solely because the employee asserts his or her privilege against self-incrimination in response to questions by the public employer. Furtado v. Plymouth, 451 Mass. 529, 530 n.2, 888 N.E.2d 357, 358 n.2 (2008). In Furtado, the Supreme Judicial Court interpreted the “criminal investigations” exception to G. L. c. 149, § 19B, which forbids the use of lie detector tests in the employment context except in very limited circumstances, as permitting a police chief to require a police officer under departmental investigation to submit to a lie detector test as a condition of his continued employment on grounds that there was an investigation of possible criminal activity, even though the police officer had been granted transactional immunity and could not be prosecuted criminally for that conduct. Id. at 532–538, 888 N.E.2d at 359–364. Unlike other testimonial privileges, the privilege against self-incrimination should be liberally construed in favor of the person claiming it. Commonwealth v. Koonce, 418 Mass. 367, 378, 636 N.E.2d 1305, 1311 (1994). This privilege is not self-executing. See Commonwealth v. Brennan, 386 Mass. 772, 780, 438 N.E.2d 60, 65 (1982).

Martin Hearing. Whenever a witness or the attorney for a witness asserts the privilege against self-incrimination, the judge “has a duty to satisfy himself that invocation of the privilege is proper in the circumstances.” Commonwealth v. Martin, 423 Mass. 496, 503, 668 N.E.2d 825, 831 (1996). The mere assertion of the privilege is not sufficient. The witness or counsel must show “a real risk” that answers to the questions will tend to indicate “involvement in illegal activity,” as opposed to “a mere imaginary, remote or speculative possibility of prosecution.” Id. at 502, 668 N.E.2d at 830. If the court is unable to make the required finding that a basis exists for the assertion of the privilege, it may conduct an in camera hearing (hereafter “Martin hearing”) and require the witness to “open the door a crack.” Id. at 504–505, 668 N.E.2d at 832, quoting In re Brogna, 589 F.2d 24, 28 n.5 (1st Cir. 1978). “A witness also is not entitled to make a blanket assertion of the privilege. The privilege must be asserted with respect to particular questions, and the possible incriminatory potential of each proposed question, or area which the prosecution might wish to explore, must be considered.” Commonwealth v. Martin, 423 Mass. 496, 502, 668 N.E.2d 825, 830 (1996). If, however, it is apparent that most, if not all, of the questions will expose the witness to self-‌incrimination, and there is no objection, it is not necessary for the witness to assert the privilege as to each and every question. Commonwealth v. Sueiras, 72 Mass. App. Ct. 439, 445–446, 892 N.E.2d 768, 774–775 (2008).

A Martin hearing should not be conducted when the statements by the witness or counsel in open court are sufficient to support the witness’s claim of privilege. Commonwealth v. Alicea, 464 Mass. 837, 843, 985 N.E.2d 1197, 1204 (2013). Neither the defendant nor counsel has a right to be present during a Martin hearing. Commonwealth v. Clemente, 452 Mass. 295, 318, 893 N.E.2d 19, 40 (2008). If the judge rules that there is a valid basis for the witness to assert the privilege, the defendant has no right to call that witness. Pixley v. Commonwealth, 453 Mass. 827, 834, 906 N.E.2d 320, 326 (2009). At the conclusion of a Martin hearing, the trial judge should seal the transcript or tape of the hearing, which may be reopened “only by an appellate court on appellate review.” Id. at 836–837, 906 N.E.2d at 328–329. “A person may not seek to obtain a benefit or to turn the legal process to his advantage while claiming the privilege as a way of escaping from obligations and conditions that are normally incident to the claim he makes.” Mello v. Hingham Mut. Fire Ins. Co., 421 Mass. 333, 338, 656 N.E.2d 1247, 1250 (1995) (party seeking to recover insurance benefits as a result of a fire loss properly had summary judgment entered against him for refusing to submit to an examination required by his policy on grounds that his answers to questions would tend to incriminate him). See also Department of Revenue v. B.P., 412 Mass. 1015, 1016, 593 N.E.2d 1305, 1306 (1992) (in paternity case, court may draw adverse inference against party who asserts the privilege and refuses to submit to blood and genetic marker testing); Wansong v. Wansong, 395 Mass. at 157–158, 478 N.E.2d at 1272–1273 (discovery sanction). In addition, the court has discretion to reject claims by parties that they are entitled to continuances of administrative proceedings or civil trials until after a criminal trial because they will not testify for fear of self-incrimination. See Oznemoc, Inc. v. Alcoholic Beverages Control Comm’n, 412 Mass. 100, 105, 587 N.E.2d 751, 754–‌755 (1992); Kaye v. Newhall, 356 Mass. 300, 305–306, 249 N.E.2d 583, 586 (1969). Whenever a court faces a decision about the consequence of a party’s assertion of the privilege in a civil case, “the judge’s task is to balance any prejudice to the other civil litigants which might result . . . against the potential harm to the party claiming the privilege if he is compelled to choose between defending the civil action and protecting himself from criminal prosecution” (citations and quotations omitted). Wansong v. Wansong, 395 Mass. at 157, 478 N.E.2d at 1272.

The existence of the privilege against self-incrimination does not shield a witness, other than a defendant in a criminal case, from being called before the jury to give testimony. See Kaye v. Newhall, 356 Mass. at 305, 249 N.E.2d at 586. The trial judge has discretion to deny a defense request for process to bring an out-of-State witness back for trial based on evidence that there is a factual basis for the witness to assert his or her privilege against self-‌incrimination and a representation by the witness’s attorney that the witness will invoke his or her privilege if called to testify. Commonwealth v. Sanders, 451 Mass. 290, 294–295, 885 N.E.2d 105, 111–112 (2008). The assertion of the privilege by a party or a witness in a civil case may be the subject of comment by counsel, and the jury may be permitted to draw an adverse inference against a party as a result. See Section 525(a), Comment upon or Inference from Claim of Privilege: Civil Case.

Subsection (c)(1). This subsection is derived from Jones v. Commonwealth, 327 Mass. 491, 493, 99 N.E.2d 456, 457 (1951). In such a case, the cross-‌examination is not limited to the scope of direct examination and may include inquiry about any matters that may be made the subject of impeachment. See, e.g., G. L. c. 233, § 21; Commonwealth v. Seymour, 39 Mass. App. Ct. 672, 675, 660 N.E.2d 679, 681 (1996).

Subsection (c)(2). This subsection is derived from Taylor v. Commonwealth, 369 Mass. 183, 189–191, 338 N.E.2d 823, 827–828 (1975). Though a witness may waive the privilege against self-incrimination as to subsequent questions by voluntarily testifying regarding an “incriminating fact,” if a question put to the witness poses “a real danger of legal detriment,” i.e., the answer might provide another link in the chain of evidence leading to a conviction, the witness may still have a basis for asserting the privilege against self-‌incrimination. See Commonwealth v. Funches, 379 Mass. 283, 290–291 & nn.8–10, 397 N.E.2d 1097, 1101 & nn.8–10 (1979). In Commonwealth v. King, 436 Mass. 252, 258 n.6, 763 N.E.2d 1071, 1078 n.6 (2002), the Supreme Judicial Court explained the scope of this doctrine by stating that “[t]he waiver, once made, waives the privilege only with respect to the same proceeding; the witness may once again invoke the privilege in any subsequent proceeding.” See Commonwealth v. Martin, 423 Mass. 496, 500–‌501, 668 N.E.2d 825, 829–‌830 (1996) (waiver of privilege before grand jury does not waive privilege at trial); Commonwealth v. Borans, 388 Mass. 453, 457–458, 446 N.E.2d 703, 705–‌706 (1983) (same). A voir dire hearing, held on the day of trial, is the same proceeding as the trial for purposes of the doctrine of waiver by testimony. Luna v. Superior Court, 407 Mass. 747, 750–751, 533 N.E.2d 881, 883, cert. denied, 498 U.S. 939 (1990) (privilege could not be claimed at trial where witness had submitted incriminating affidavit in connection with pretrial motion and testified at pretrial hearing); Commonwealth v. Penta, 32 Mass. App. Ct. 36, 45–46, 586 N.E.2d 996, 1002 (1992) (witness who testified at motion to suppress, recanted that testimony in an affidavit, and testified at hearing on motion to reconsider could not invoke the privilege at trial). See also Commonwealth v. Judge, 420 Mass. 433, 445 n.8, 650 N.E.2d 1242, 1250 n.8 (1995) (hearing on motion to suppress is same proceeding as trial for purposes of waiver by testimony).

The trial judge may be required to caution a witness exhibiting “ignorance, confusion, or panic . . . or other peculiar circumstances” in order for a voluntary waiver to be established. Taylor v. Commonwealth, 369 Mass. at 192, 338 N.E.2d at 829. The proper exercise of this judicial discretion “involves making a circumstantially fair and reasonable choice within a range of permitted options.” Lonergan-Gillen v. Gillen, 57 Mass. App. Ct. 746, 748–749, 785 N.E.2d 1285, 1288 (2003). Ultimately, whether a voluntary waiver has occurred is a question of fact for the trial judge. See Commonwealth v. King, 436 Mass. at 258–259, 763 N.E.2d at 1078.

Subsection (c)(3). This subsection is derived from Taylor v. Commonwealth, 369 Mass. 183, 190–191, 338 N.E.2d 823, 828 (1975). See also Commonwealth v. Martin, 423 Mass. 496, 500, 668 N.E.2d 825, 829 (1996) (grand jury proceedings and the defendant’s subsequent indictment are separate proceedings); Commonwealth v. Johnson, 175 Mass. 152, 153, 55 N.E. 804, 804 (1900); Commonwealth v. Mandile, 17 Mass. App. Ct. 657, 662, 461 N.E.2d 838, 841 (1984).

Subsection (c)(4). This subsection is derived from Stornanti v. Commonwealth, 389 Mass. 518, 521–522, 451 N.E.2d 707, 710 (1983) (“The required records exception applies when three requirements are met: First, the purposes of the State’s inquiry must be essentially regulatory; second, information is to be obtained by requiring the preservation of records of a kind which the regulated party has customarily kept; and third, the records themselves must have assumed ‘public aspects’ which render them at least analogous to public documents” [quotations and citation omitted].). See also Matter of Kenney, 399 Mass. 431, 438–441, 504 N.E.2d 652, 656–658 (1987) (court notes that if the records in question are required to be kept by lawyers there is nothing incriminating about the fact that they exist and are in the possession of the lawyer required to produce them).

Subsection (c)(5). This subsection is derived from Article 12 of the Massachusetts Declaration of Rights; G. L. c. 233, § 20C; and Attorney Gen. v. Colleton, 387 Mass. 790, 796–801, 444 N.E.2d 915, 919–921 (1982), quoting and citing Emery’s Case, 107 Mass. 172, 185 (1871) (Article 12 requires transactional and not merely use or derivative use immunity to overcome the privilege against self-incrimination). See also G. L. c. 233, §§ 20D–‌20I (statutes governing the granting of immunity); Commonwealth v. Austin A., 450 Mass. 665, 669–670, 881 N.E.2d 117, 121–122 (2008) (grant of immunity in Superior Court applicable to testimony in Juvenile Court). The Federal Constitution only requires use immunity to overcome the privilege against self-‌incrimination. See Kastigar v. United States, 406 U.S. 441 (1972).

Back to Top

Section 513.    Medical Peer Review Privilege

(a) Definitions.

(1) As used in this section, “medical peer review committee” is a committee of a State or local professional society of health care providers, including doctors of chiropractic, or of a medical staff of a public hospital or licensed hospital or nursing home or health maintenance organization organized under G. L. c. 176G, provided the medical staff operates pursuant to written bylaws that have been approved by the governing board of the hospital or nursing home or health maintenance organization or a committee of physicians established pursuant to Section 12 of G. L. c. 111C for the purposes set forth in G. L. c. 111, § 203(f), which committee has as its function the evaluation or improvement of the quality of health care rendered by providers of health care services, the determination whether health care services were performed in compliance with the applicable standards of care, the determination whether the cost of health care services were performed in compliance with the applicable standards of care, determination whether the cost of the health care services rendered was considered reasonable by the providers of health services in the area, the determination of whether a health care provider’s actions call into question such health care provider’s fitness to provide health care services, or the evaluation and assistance of health care providers impaired or allegedly impaired by reason of alcohol, drugs, physical disability, mental instability, or otherwise; provided, however, that for purposes of Sections 203 and 204 of G. L. c. 111, a nonprofit corporation, the sole voting member of which is a professional society having as members persons who are licensed to practice medicine, shall be considered a medical peer review committee; provided, further, that its primary purpose is the evaluation and assistance of health care providers impaired or allegedly impaired by reason of alcohol, drugs, physical disability, mental instability, or otherwise.

(2) “Medical peer review committee” also includes a committee of a pharmacy society or association that is authorized to evaluate the quality of pharmacy services or the competence of pharmacists and suggest improvements in pharmacy systems to enhance patient care, or a pharmacy peer review committee established by a person or entity that owns a licensed pharmacy or employs pharmacists that is authorized to evaluate the quality of pharmacy services or the competence of pharmacists and suggest improvements in pharmacy systems to enhance patient care.

(b) Privilege.

(1) Proceedings, Reports, and Records of Medical Peer Review Committee. The proceedings, reports, and records of a medical peer review committee shall be confidential and shall be exempt from the disclosure of public records under Section 10 of G. L. c. 66, shall not be subject to subpoena or discovery prior to the initiation of a formal administrative proceeding pursuant to G. L. c. 30A, and shall not be subject to subpoena or discovery, or introduced into evidence, in any judicial or administrative proceeding, except proceedings held by the boards of registration in medicine, social work, or psychology or by the Department of Public Health pursuant to G. L. c. 111C, and no person who was in attendance at a meeting of a medical peer review committee shall be permitted or required to testify in any such judicial or administrative proceeding, except proceedings held by the boards of registration in medicine, social work, or psychology or by the Department of Public Health pursuant to G. L. c. 111C, as to the proceedings of such committee or as to any findings, recommendations, evaluations, opinions, deliberations, or other actions of such committee or any members thereof.

(2) Work Product of Medical Peer Review Committee. Information and records which are necessary to comply with risk management and quality assurance programs established by the board of registration in medicine and which are necessary to the work product of medical peer review committees designated by the patient care assessment coordinator are subject to the protections afforded to materials subject to Subsection (b)(1), except that such information and records may be inspected, maintained, and utilized by the board of registration in medicine, including but not limited to its data repository and disciplinary unit. Such information and records inspected, maintained, or utilized by the board of registration in medicine shall remain confidential, and not subject to subpoena, discovery, or introduction into evidence, consistent with Subsection (b)(1), except that such records may not remain confidential if disclosed in an adjudicatory proceeding of the board of registration in medicine.

(c) Exceptions. There is no restriction on access to or use of the following, as indicated:

(1) Documents, incident reports, or records otherwise available from original sources shall not be immune from subpoena, discovery, or use in any such judicial or administrative proceeding merely because they were presented to such committee in connection with its proceedings.

(2) The proceedings, reports, findings, and records of a medical peer review committee shall not be immune from subpoena, discovery, or use as evidence in any proceeding against a member of such committee who did not act in good faith and in a reasonable belief that based on all of the facts the action or inaction on his or her part was warranted. However, the identity of any person furnishing information or opinions to the committee shall not be disclosed without the permission of such person.

(3) An investigation or administrative proceeding conducted by the boards of registration in medicine, social work, or psychology or by the Department of Public Health pursuant to G. L. c. 111C.

(d) Testimony Before Medical Peer Review Committee. A person who testifies before a medical peer review committee or who is a member of such committee shall not be prevented from testifying as to matters known to such person independent of the committee’s proceedings, provided that, except in a proceeding against a witness in Subsection (c)(2), neither the witness nor members of the committee may be questioned regarding the witness’s testimony before such committee, and further provided that committee members may not be questioned in any proceeding about the identity of any person furnishing information or opinions to the committee, opinions formed by them as a result of such committee proceedings, or about the deliberations of such committee.

(e) Non–Peer Review Records and Testimony. Records of treatment maintained pursuant to G. L. c. 111, § 70, or incident reports or records or information which are not necessary to comply with risk management and quality assurance programs established by the board of registration in medicine shall not be deemed to be proceedings, reports, or records of a medical peer review committee; nor shall any person be prevented from testifying as to matters known by such person independent of risk management and quality assurance programs established by the board of registration in medicine.

NOTE

Introduction. The medical peer review privilege, unlike so many other privileges, is not based on the importance of maintaining the confidentiality between a professional and a client, but rather was established to promote rigorous and candid evaluation of professional performance by a provider’s peers. See Beth Israel Hosp. Ass’n v. Board of Registration in Med., 401 Mass. 172, 182–183, 515 N.E.2d 574, 579–580 (1987). This is accomplished by requiring hospitals and medical staffs to establish procedures for medical peer review proceedings, see G. L. c. 111, § 203(a), and by legal safeguards against the disclosure of the identity of physicians who participate in peer review and immunity to prevent such physicians from civil liability. See Ayash v. Dana-‌Farber Cancer Inst., 443 Mass. 367, 396, 822 N.E.2d 667, 691, cert. denied, 546 U.S. 927 (2005).

Subsection (a)(1). This subsection is taken nearly verbatim from G. L. c. 111, § 1.

Subsection (a)(2). This subsection is taken nearly verbatim from G. L. c. 111, § 1. A licensed pharmacy is permitted to establish a pharmacy peer review committee:

“A licensed pharmacy may establish a pharmacy peer review committee to evaluate the quality of pharmacy services or the competence of pharmacists and suggest improvements in pharmacy systems to enhance patient care. The committee may review documentation of quality-related activities in a pharmacy, assess system failures and personnel deficiencies, determine facts, and make recommendations or issue decisions in a written report that can be used for contiguous quality improvement purposes. A pharmacy peer review committee shall include the members, employees, and agents of the committee, including assistants, investigators, attorneys, and any other agents that serve the committee in any capacity.”

G. L. c. 111, § 203(g).

Subsection (b). Both Subsection (b)(1), which is taken nearly verbatim from G. L. c. 111, § 204(a), and Subsection (b)(2), which is taken nearly verbatim from G. L. c. 111, § 205(b), “shield information from the general public and other third parties to the same extent, [but] only information protected by § 204(a) [Subsection (b)(1)] is shielded from the board [of registration in medicine] prior to the commencement of a G. L. c. 30A proceeding.” Board of Registration in Med. v. Hallmark Health Corp., 454 Mass. 498, 508, 910 N.E.2d 898, 906 (2009). “Determining whether the medical peer review privilege applies turns on the way in which a document was created and the purpose for which it was used, not on its content. Examining that content in camera will therefore do little to aid a judge . . . .” Carr v. Howard, 426 Mass. 514, 531, 689 N.E.2d 1304, 1314 (1998). However, the peer review privilege does not prevent discovery into the process by which a given record or report was created in order to determine whether the information sought falls within the privilege. Id.

Subsection (b)(1). This subsection applies to “proceedings, reports and records of a medical peer review committee.” G. L. c. 111, § 204(a). Material qualifies for protection under this subsection if it was created “by, for, or otherwise as a result of a ‘medical peer review committee.’” Board of Registration in Med. v. Hallmark Health Corp., 454 Mass. 498, 509, 910 N.E.2d 898, 907 (2009), quoting Miller v. Milton Hosp. & Med. Ctr., Inc., 54 Mass. App. Ct. 495, 499, 766 N.E.2d 107, 111 (2002). See Carr v. Howard, 426 Mass. 514, 522 n.7, 689 N.E.2d 1304, 1309 n.7 (1998) (asserting privilege of G. L. c. 111, § 204(a), [Subsection (b)(1)] requires evidence that materials sought “were not merely ‘presented to [a] committee in connection with its proceedings,’ . . . but were, instead, themselves, ‘proceedings, reports and records’ of a peer review committee under § 204(a)”).

Subsection (b)(2). This subsection applies to materials that, while not necessarily “proceedings, reports and records” of a peer review committee, are nonetheless “necessary to comply with risk management and quality assurance programs established by the board and which are necessary to the work product of medical peer review committees.” G. L. c. 111, § 205(b). Such materials include “incident reports required to be furnished to the [board] or any information collected or compiled by a physician credentialing verification service operated by a society or organization of medical professionals for the purpose of providing credentialing information to health care entities.” Id. The protections afforded to materials covered by Subsection (b)(2) differ from those afforded by Subsection (b)(1) in that documents protected by Subsection (b)(2) “may be inspected, maintained and utilized by the board of registration in medicine, including but not limited to its data repository and disciplinary unit,” and this subsection does not require that such access be conditioned on the commencement of a formal adjudicatory proceeding. G. L. c. 111, § 205(b).

Subsection (c). This subsection is taken nearly verbatim from G. L. c. 111, § 204(b), and Pardo v. General Hosp. Corp., 446 Mass. 1, 11–12, 841 N.E.2d 692, 700–701 (2006), where the Supreme Judicial Court observed that

“the privilege can only be invaded on some threshold showing that a member of a medical peer review committee did not act in good faith in connection with his activities as a member of the committee, for example did not provide the medical peer review committee with a full and honest disclosure of all of the relevant circumstances, but sought to mislead the committee in some manner.”

In Pardo, the court held that the privilege was not overcome by the allegation that a member of the committee initiated an action for a discriminatory reason. Id. See also Vranos v. Franklin Med. Ctr., 448 Mass. 425, 447, 862 N.E.2d 11, 21 (2007).

Subsection (d). This subsection is taken nearly verbatim from G. L. c. 111, § 204(c).

Subsection (e). This subsection is taken nearly verbatim from G. L. c. 111, § 205.

Back to Top

Section 514.    Mediation Privilege

(a) Definition. For the purposes of this section, a “mediator” shall mean a person not a party to a dispute who enters into a written agreement with the parties to assist them in resolving their disputes and has completed at least thirty hours of training in mediation, and who either (1) has four years of professional experience as a mediator, (2) is accountable to a dispute resolution organization which has been in existence for at least three years, or (3) has been appointed to mediate by a judicial or governmental body.

(b) Privilege Applicable to Mediator Work Product. All memoranda and other work product prepared by a mediator and a mediator’s case files shall be confidential and not subject to disclosure in any judicial or administrative proceeding involving any of the parties to any mediation to which such materials apply.

(c) Privilege Applicable to Parties’ Communications. Any communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator, or other person shall be a confidential communication and not subject to disclosure in any judicial or administrative proceeding.

(d) Privilege Applicable in Labor Disputes. Any person acting as a mediator in a labor dispute who receives information as a mediator relating to the labor dispute shall not be required to reveal such information received by him or her in the course of mediation in any administrative, civil, or arbitration proceeding. This provision does not apply to criminal proceedings.

NOTE

Subsections (a), (b), and (c). These subsections are derived from G. L. c. 233, § 23C. Although there are no express exceptions to the privilege set forth in Subsections (a), (b), and (c), the Supreme Judicial Court has recognized that the mediation privilege is subject to the doctrine of “at issue” waiver. See Bobick v. United States Fid. & Guar. Co., 439 Mass. 652, 658 n.11, 790 N.E.2d 653, 658 n.11 (2003), citing Darius v. City of Boston, 433 Mass. 274, 277–278, 741 N.E.2d 52, 54–55 (2001), and cases cited. See also Section 523(b)(2), Waiver of Privilege: Conduct Constituting Waiver.

Subsection (d). This subsection is derived from G. L. c. 150, § 10A.

Back to Top

Section 515. Investigatory Privilege

Unless otherwise required by law, information given to governmental authorities in order to secure the enforcement of law is subject to disclosure only within the discretion of the governmental authority.

NOTE

This section is derived from Worthington v. Scribner, 109 Mass. 487, 488–489 (1872), and Attorney Gen. v. Tufts, 239 Mass. 458, 490–491, 132 N.E. 322, 327 (1921). See also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 510–511, 646 N.E.2d 127, 129 (1995).

Although this privilege is described as “absolute,” it is qualified by the duty of the prosecutor to provide discovery to a person charged with a crime. See Mass. R. Crim. P. 14. Moreover, as to certain kinds of information, the privilege is also qualified by the Massachusetts public records law. See G. L. c. 66, § 10. General Laws c. 4, § 7, Twenty-sixth (f), provides that investigatory materials, including information covered by this privilege, are regarded as a public record and thus subject to disclosure even though the material is compiled out of the public view by law enforcement or other investigatory officials, provided that the disclosure of the investigatory materials would not “so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” Rafuse v. Stryker, 61 Mass. App. Ct. 595, 597, 813 N.E.2d 558, 561 (2004), quoting Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62, 354 N.E.2d 872, 876 (1976). See Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 383, 764 N.E.2d 847, 852–853 (2002) (describing the process for determining whether material is exempt from disclosure as a public record).

Cross-Reference: Section 509, Identity of Informer, Surveillance Location, and Protected Witness Privileges .

Back to Top

Section 516. Political Voter Disqualification

A voter who casts a ballot may not be asked and may not disclose his or her vote in any proceeding unless the court finds fraud or intentional wrongdoing.

NOTE

This section is derived from McCavitt v. Registrars of Voters, 385 Mass. 833, 848–849, 434 N.E.2d 620, 630–631 (1982), in which the court held “that the right to a secret ballot is not an individual right which may be waived by a good faith voter.” Id. at 849, 434 N.E.2d at 631.

Cross-Reference: Section 511, Privilege Against Self-Incrimination.

Back to Top

Section 517.    Trade Secrets

[Privilege not recognized]

NOTE

In Gossman v. Rosenberg, 237 Mass. 122, 124, 129 N.E. 424, 425–426 (1921), the Supreme Judicial Court held that a witness could not claim a privilege as to trade secrets. Cf. Proposed Mass. R. Evid. 507. However, public access to information about trade secrets in a public agency’s possession may be limited. See G. L. c. 4, § 7, Twenty-sixth (g) (excluding from the definition of “public records” any “trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality”). The confidentiality of trade secrets also may be maintained by means of a protective order whereby a court may protect from disclosure during discovery “a trade secret or other confidential research, development, or commercial information.” Mass. R. Civ. P. 26(c)(7). See also Mass. R. Crim. P. 14(a)(5). The court may issue such a protective order on motion by a party or by the person from whom discovery is sought and if good cause is shown. Mass. R. Civ. P. 26(c)(7).

Back to Top

Section 518. Executive or Governmental Privilege

[Privilege not recognized]

NOTE

Unlike the Federal system, neither the Massachusetts courts nor the Legislature has established a “deliberative process privilege” that prevents a party from obtaining documents from a public officer or agency that record the deliberative process leading up to a decision by the officer or agency. See District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 509–510, 646 N.E.2d 127, 128–129 (1995). Likewise, there is no “executive privilege” under the Massachusetts Constitution similar to the privilege which exists under the Federal Constitution. Compare Babets v. Secretary of Human Servs., 403 Mass. 230, 231, 526 N.E.2d 1261, 1262 (1988) (doctrine of separation of powers does not require recognition of “executive privilege”), with United States v. Nixon, 418 U.S. 683, 711 (1974) (recognizing that separation of powers under Federal Constitution implies a qualified privilege for presidential communications in performance of president’s responsibilities).

Access to inter-agency or intra-agency reports, papers, and letters relating to the development of policy is governed by G. L. c. 66, § 10, the public records statute. This law creates a presumption that all records are public, G. L. c. 66, § 10(c), and places on the custodian of the record the burden of establishing that a record is exempt from disclosure because it falls within one of a series of specifically enumerated exemptions set forth in G. L. c. 4, § 7, Twenty-sixth. Id. Under G. L. c. 4, § 7, Twenty-sixth (d), the following material is exempt from public disclosure: “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.” Id. “The Legislature has . . . chosen to insulate the deliberative process from scrutiny only until it is completed, at which time the documents thereby generated become publicly available.” Babets v. Secretary of Human Servs., 403 Mass. at 237 n.8, 526 N.E.2d at 1265 n.8.

Back to Top

Section 519. State and Federal Tax Returns

(a) State Tax Returns.

(1) Disclosure by Commissioner of Revenue. The disclosure by the commissioner, or by any deputy, assistant, clerk or assessor, or other employee of the Commonwealth or of any city or town therein, to any person but the taxpayer or the taxpayer’s representative, of any information contained in or set forth by any return or document filed with the commissioner is prohibited.

(2) Production by Taxpayer. Massachusetts State tax returns are privileged, and a taxpayer cannot be compelled to produce them in discovery.

(3) Exceptions. Subsection (a)(1) does not apply in proceedings to determine or collect the tax, or to certain criminal prosecutions.

(b) Federal Tax Returns.

(1) General Rule. Federal tax returns are subject to a qualified privilege. The taxpayer is entitled to a presumption that the returns are privileged and are not subject to discovery.

(2) Exceptions. A taxpayer who is a party to litigation can be compelled to produce Federal tax returns upon a showing of substantial need by the party seeking to compel production.

NOTE

Subsection (a). This subsection is taken nearly verbatim from G. L. c. 62C, § 21(a). General Laws c. 62C, § 21(b), sets forth twenty-three exceptions, most of which pertain to limited disclosures of tax information to other government agencies or officials.

The commissioner also has authority to disclose tax information to the Secretary of the Treasury of the United States and certain tax officials in other jurisdictions. See G. L. c. 62C, § 22.

A violation of G. L. c. 62C, § 21, may be punishable as a misdemeanor. G. L. c. 62C, § 21(c).

The privilege applicable to State tax returns in the hands of the taxpayer is set forth in Finance Comm’n of Boston v. Commissioner of Revenue, 383 Mass. 63, 67–72, 417 N.E.2d 945, 948–950 (1981). See also Leave v. Boston Elevated Ry. Co., 306 Mass. 391, 402–403, 28 N.E.2d 483, 489 (1940).

Subsection (b). This subsection is derived from Finance Comm’n of Boston v. McGrath, 343 Mass. 754, 766–768, 180 N.E.2d 808, 816–817 (1962).

The conditional privilege against disclosure of the contents of Federal tax returns does not forbid disclosure of the defendant’s failure to file such a return. A.C. Vaccaro, Inc. v. Vaccaro, 80 Mass. App. Ct. 635, 639–640, 955 N.E.2d 299, 303–304 (2011).

Back to Top

Section 520.    Tax Return Preparer

(a) Definition. For the purposes of this section, a person is engaged in the business of preparing tax returns if the person advertises, or gives publicity to the effect that the person prepares or assists others in the preparation of tax returns, or if he or she prepares or assists others in the preparation of tax returns for compensation.

(b) Privilege. No person engaged in the business of preparing tax returns shall disclose any information obtained in the conduct of such business, unless such disclosure is consented to in writing by the taxpayer in a separate document, or is expressly authorized by State or Federal law, or is necessary to the preparation of the return, or is made pursuant to court order.

NOTE

This section is taken nearly verbatim from G. L. c. 62C, § 74. A violation of this statute may be punishable as a misdemeanor.

Back to Top

Section 521. Sign Language Interpreter–Client Privilege

(a) Definitions. For the purpose of this section, the following words shall have the following meanings:

(1) Client. A “client” is a person rendered interpreting services by a qualified interpreter.

(2) Qualified Interpreter. A “qualified interpreter” is a person skilled in sign language or oral interpretation and transliteration, has the ability to communicate accurately with a deaf or hearing-‌impaired person, and is able to translate information to and from such hearing-impaired person.

(3) Confidential Communication. A communication is confidential if a client has a reasonable expectation or intent that it not be disclosed to persons other than those to whom such disclosure is made.

(b) Privilege. A client has a privilege to prevent a qualified interpreter from disclosing a confidential communication between one or more persons where the communication was facilitated by the interpreter.

NOTE

Subsection (a). This subsection is derived nearly verbatim from G. L. c. 221, § 92A. The statute’s definition of a “qualified interpreter” states that “[a]n interpreter shall be deemed qualified or intermediary as determined by the Office of Deafness, based upon the recommendations of the Massachusetts Registry of the Deaf, the Massachusetts State Association of the Deaf and other appropriate agencies.” G. L. c. 221, § 92A.

Subsection (b). This subsection is derived nearly verbatim from G. L. c. 221, § 92A. The portion of G. L. c. 221, § 92A, that establishes the privilege references “a certified sign language interpreter,” but the statute does not specifically define that term. Accordingly, to be consistent with the terms actually defined in G. L. c. 221, § 92A, this subsection uses the term “qualified interpreter.” There is no case law in Massachusetts which defines the scope of this privilege.

Appointment of Interpreter. The interpreter must be appointed by the court as part of a court proceeding. See G. L. c. 221, § 92A (“In any proceeding in any court in which a deaf or hearing-impaired person is a party or a witness . . . such court . . . shall appoint a qualified interpreter to interpret the proceedings”). See also Mass. R. Crim. P. 41 (“The judge may appoint an interpreter or expert if justice so requires and may determine the reasonable compensation for such services and direct payment therefor.”); Mass. R. Civ. P. 43(f) (“The court may appoint an interpreter of its own selection and may fix his reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court.”).

Cross-Reference: Section 604, Interpreters ; “Standards and Procedures of the Office of Court Interpreter Services,” 1143 Mass. Reg. 15 (Nov. 13, 2009), available at: http://www.mass.gov/courts/ocis-standards-procedures.pdf pdf format of Standards and Procedures for Court Interpreter Services
.

Back to Top

Section 522.    Interpreter-Client Privilege

(a) Definitions. For the purpose of this section, the following words shall have the following meanings:

(1) Interpreter. An “interpreter” is a person who is readily able to interpret written and spoken language simultaneously and consecutively from English to the language of the non-English speaker or from said language to English.

(2) Non-English Speaker. A “non-English speaker” is a person who cannot speak or understand, or has difficulty in speaking or understanding, the English language, because he or she uses only or primarily a spoken language other than English.

(b) Privilege. Disclosures made out of court by communications of a non-English speaker through an interpreter to another person shall be a privileged communication, and the interpreter shall not disclose such communication without permission of the non-English speaker.

(c) Scope. The privilege applies when the non-English speaker had a reasonable expectation or intent that the communication would not be disclosed.

NOTE

Subsection (a). This subsection is derived nearly verbatim from G. L. c. 221C, § 1.

Subsection (b). This subsection is derived nearly verbatim from G. L. c. 221C, § 4(c). See Section 4.06 of the “Standards and Procedures of the Office of Court Interpreter Services,” 1143 Mass. Reg. 15 (Nov. 13, 2009), which is available at http://www.mass.gov/‌courts/‌ocis-standards-‌procedures.‌pdf (“Court interpreters shall protect the confidentiality of all privileged and other confidential information.”).

Subsection (c). This subsection is derived nearly verbatim from G. L. c. 221C, § 4(c). There is no case law in Massachusetts that defines the scope of this privilege.

Right to Assistance of an Interpreter. General Laws c. 221C, § 2, states as follows:

“A non-English speaker, throughout a legal proceeding, shall have a right to the assistance of a qualified interpreter who shall be appointed by the judge, unless the judge finds that no qualified interpreter of the non-English speaker’s language is reasonably available, in which event the non-English speaker shall have the right to a certified interpreter, who shall be appointed by the judge.”

See Mass. R. Crim. P. 41 (“The judge may appoint an interpreter or expert if justice so requires and may determine the reasonable compensation for such services and direct payment therefor.”); Mass. R. Civ. P. 43(f) (“The court may appoint an interpreter of its own selection and may fix his reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court.”). See also G. L. c. 221C, § 3 (waiver of right to interpreter).

Procedural Issues. The statute requires the interpreter to swear or affirm to “make true and impartial interpretation using [the interpreter’s] best skill and judgment in accordance with the standards prescribed by law and the ethics of the interpreter profession.” G. L. c. 221C, § 4(a). The statute also states that “[i]n any proceeding, the judge may order all of the testimony of a non-English speaker and its interpretation to be electronically recorded for use in audio or visual verification of the official transcript of the proceedings.” G. L. c. 221C, § 4(b).

Cross-Reference: Section 604, Interpreters ; “Standards and Procedures of the Office of Court Interpreter Services,” 1143 Mass. Reg. 15 (Nov. 13, 2009), available at http://www.mass.gov/‌courts/‌ocis-‌standards-‌procedures.‌pdf.

Back to Top

Section 523.    Waiver of Privilege

(a) Who Can Waive. A privilege holder or his or her legally appointed guardian, administrator, executor, or heirs can waive the privilege.

(b) Conduct Constituting Waiver. Except as provided in Section 524, Privileged Matter Disclosed Erroneously or Without Opportunity to Claim Privilege, a privilege is waived if the person upon whom this Article confers a privilege against disclosure

(1) voluntarily discloses or consents to disclosure of any significant part of the privileged matter or

(2) introduces privileged communications as an element of a claim or defense.

(c) Conduct Not Constituting Waiver. A person upon whom this Article confers a privilege against disclosure does not waive the privilege i

(1) the person merely testifies as to events which were a topic of a privileged communication, or

(2) there is an unintentional disclosure of a privileged communication and reasonable precautions were taken to prevent the disclosure.

NOTE

Subsection (a). This subsection is derived from Phillips v. Chase, 201 Mass. 444, 449, 87 N.E. 755, 757–758 (1909), and District Attorney for the Norfolk Dist. v. Magraw, 417 Mass. 169, 173–174, 628 N.E.2d 24, 26–27 (1994).

Subsection (b)(1). This subsection is derived from Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. (Bermuda), 425 Mass. 419, 423 n.4, 681 N.E.2d 838, 841 n.4 (1997), where the Supreme Judicial Court noted that Proposed Mass. R. Evid. 510 was consistent with the views of the court.

Subsection (b)(2). This subsection is derived from the concept of an “at issue” waiver which the Supreme Judicial Court recognized in Darius v. City of Boston, 433 Mass. 274, 284, 741 N.E.2d 52, 59 (2001). An “at issue” waiver is not a blanket waiver of the privilege, but rather “a limited waiver of the privilege with respect to what has been put ‘at issue.’” Id. at 283, 741 N.E.2d at 58. See, e.g., Global Investors Agent Corp. v. National Fire Ins. Co. of Hartford, 76 Mass. App. Ct. 812, 818–820, 927 N.E.2d 480, 488–490 (2010) (determining that a limited at-issue waiver of the plaintiff’s attorney-client privilege occurred because its claim for consequential damages was based in part on the advice it received from its attorney in the underlying action). Accord Commonwealth v. Brito, 390 Mass. 112, 119, 453 N.E.2d 1217, 1221 (1983) (“Once such a charge [of ineffectiveness of counsel] is made, the attorney-‌client privilege may be treated as waived at least in part, but trial counsel’s obligation may continue to preserve confidences whose disclosure is not relevant to the defense of the charge of his ineffectiveness as counsel.”). In addition, the party seeking to invoke the doctrine of an “at issue” waiver must establish that the privileged information is not available from any other source. Darius v. City of Boston, 433 Mass. at 284, 741 N.E.2d at 59.

Subsection (c)(1). This subsection is derived from Commonwealth v. Goldman, 395 Mass. 495, 499–500, 480 N.E.2d 1023, 1027, cert. denied, 474 U.S. 906 (1985). Though a witness does not waive the privilege merely by testifying as to events which were a topic of a privileged communication, a waiver occurs when the witness testifies as to the specific content of an identified privileged communication. Id. In Commonwealth v. Goldman, the Supreme Judicial Court specifically left open the question whether in a criminal case the rule embodied in this subsection would have to yield to the defendant’s constitutional right of confrontation. Id. at 502 n.8, 480 N.E.2d at 1028 n.8. See also Commonwealth v. Neumyer, 432 Mass. 23, 29, 731 N.E.2d 1053, 1058 (2000) (waiver of sexual assault counselor privilege); Commonwealth v. Clancy, 402 Mass. 664, 668–‌669, 524 N.E.2d 395, 397–398 (1988) (waiver of patient-‌psychotherapist privilege).

Subsection (c)(2). This subsection is derived from Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. (Bermuda), 425 Mass. 419, 422–423, 681 N.E.2d 838, 841–842 (1997). See also Adoption of Sherry, 435 Mass. 331, 336, 757 N.E.2d 1097, 1102 (2001).

Rule 502 of the Federal Rules of Evidence, Waivers in Federal Proceedings. On September 19, 2008, Rule 502 of the Federal Rules of Evidence was enacted. See Pub. L. 110-322, 110th Cong., 2nd Sess. The rule is applicable “in all proceedings commenced after the date of enactment . . . and, insofar as is just and practicable, in all proceedings pending” on that date. The rule was developed in response to concerns about the rising cost of discovery, especially electronic discovery, in Federal proceedings in which among the thousands or hundreds of thousands of documents that are produced by a party in response to a discovery request, the producing party may inadvertently include one or a handful of documents that are covered by the attorney-client privilege or the work-product protection. Prior to the adoption of this rule, there was no uniform national standard governing the determination of when such a mistake would lead to a ruling that the privilege or protection had been waived. As a result, a party was forced to examine each and every document produced in discovery in order to avoid the risk of an inadvertent waiver.

Rule 502 of the Federal Rules of Evidence does not alter the law that governs whether a document is subject to the attorney-client privilege or the work-product protection in the first instance. Under Fed. R. Evid. 501, unless State law, the Federal Constitution, or a Federal statute controls, the existence of a privilege in federal proceedings “shall be governed by the principles of the common law.” However, Fed. R. Evid. 502 does establish a single national standard that protects parties against a determination by a Federal court, a Federal agency, a State court, or a State agency that an inadvertent disclosure of privileged or protected material constitutes a wholesale waiver of the privilege or protection as to other material that has not been disclosed.

Rule 502(a) of the Federal Rules of Evidence addresses when a waiver of either the attorney-client privilege or the work-product protection extends to undisclosed material. It provides that a waiver of the privilege or protection does not extend to undisclosed material unless (1) the waiver is intentional, (2) the disclosed and undisclosed material concern the same subject matter, and (3) both the disclosed and undisclosed material should in fairness be considered together. Rule 502(b) of the Federal Rules of Evidence addresses inadvertent disclosures. It is similar to Section 523(c)(2), Waiver of Privilege: Conduct Not Constituting Waiver, except that the Federal rule requires that to avoid a waiver the holder of the privilege must promptly take reasonable steps to rectify the erroneous disclosure. Fed. R. Evid. 502(b)(3). Rule 502(c) of the Federal Rules of Evidence provides that disclosures made in State court proceedings will not operate as a waiver in Federal proceedings so long as the disclosure is not regarded as a waiver under either Fed. R. Evid. 502(a) or 502(b), or the law of the State where the disclosure occurred. Rule 502(d) of the Federal Rules of Evidence provides that a Federal court order that the privilege or the protection is not waived by a disclosure is binding on both Federal and State courts. Rule 502(e) of the Federal Rules of Evidence provides that an agreement on the effect of the disclosure between the parties in a Federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order. Rule 502(f) of the Federal Rules of Evidence expressly makes the rule applicable to State and Federal proceedings, “even if State law provides the rule of decision.” Rule 502(g) of the Federal Rules of Evidence contains definitions of the terms “attorney-client privilege” and “work-‌product protection.”

Back to Top

Section 524. Privileged Matter Disclosed Erroneously or Without Opportunity to Claim Privilege

A claim of privilege is not defeated by a disclosure erroneously made without an opportunity to claim the privilege.

NOTE

This section is derived from Commonwealth v. Neumyer, 432 Mass. 23, 35–36, 731 N.E.2d 1053, 1062 (2000) (no waiver where record holder unaware of probable cause hearing and victim “was hardly in a position to be aware of her rights”). See also Commonwealth v. Dwyer, 448 Mass. 122, 145–146, 859 N.E.2d 400, 418–419 (2006).

Back to Top

Section 525. Comment upon or Inference from Claim of Privilege

(a) Civil Case. Comment may be made and an adverse inference may be drawn against a party when that party, or in certain circumstances a witness, invokes a privilege.

(b) Criminal Case.

(1) No comment may be made and no adverse inference may be drawn against a defendant who invokes the privilege against self-‌incrimination or against a defendant for calling a witness who invokes a privilege that belongs to the witness and not to the defendant.

(2) In a case tried to a jury, the assertion of a privilege should be made outside the presence of the jury whenever reasonably possible.

NOTE

Subsection (a). This subsection is derived from the long-standing rule in Massachusetts that an adverse inference may be drawn against a party who invokes a testimonial privilege in a civil case. Phillips v. Chase, 201 Mass. 444, 450, 87 N.E. 755, 758 (1909) (attorney-client privilege). Drawing the adverse inference in a civil case does not infringe on the party’s privilege against self-‌incrimination under either Article 12 of the Declaration of Rights of the Massachusetts Constitution or the Fifth Amendment to the Constitution of the United States. Kaye v. Newhall, 356 Mass. 300, 305–306, 249 N.E.2d 583, 586 (1969) (attorney-client privilege). It makes no difference that criminal matters are pending at the time. Frizado v. Frizado, 420 Mass. 592, 596, 651 N.E.2d 1206, 1210 (1995) (privilege against self-incrimination).

In Labor Relations Comm’n v. Fall River Educators’ Ass’n, 382 Mass. 465, 471–472, 416 N.E.2d 1340, 1344–1345 (1981), the Supreme Judicial Court expanded the rule to allow an adverse inference to be drawn against an organizational party as a result of a claim of the privilege against self-‌incrimination by its officers who had specific knowledge of actions taken on behalf of the organization in connection with the underlying claim. In Lentz v. Metropolitan Prop. & Cas. Ins. Co., 437 Mass. 23, 26–32, 768 N.E.2d 538, 541–‌545 (2002), the Supreme Judicial Court expanded the principle even further to include circumstances in which the court finds, as a preliminary question of fact, that the witness who invokes the privilege against self-‌incrimination is acting on behalf of or to further the interests of one of the parties. The Supreme Judicial Court also noted that the potential for prejudice can be reduced by limiting the number of questions that may be put to the witness who invokes the privilege, and by a limiting instruction. Id. at 30–31, 768 N.E.2d at 544.

Counsel has the right to comment on an opposing party’s failure to testify in a civil case. See Kaye v. Newhall, 356 Mass. at 305, 249 N.E.2d at 586; Silveira v. Kegerreis, 12 Mass. App. Ct. 906, 906–907, 422 N.E.2d 789, 789 (1981).

When a nonparty witness is closely aligned with a party in a civil case, and the nonparty witness invokes the privilege against self-incrimination, the jury should be instructed that the witness may invoke the privilege for reasons unrelated to the case on trial, and that they are permitted, but not required, to draw an inference adverse to the party from the witness’s invocation of the privilege against self-incrimination. The jury is permitted to draw an inference adverse to a party from the witness’s invocation of the privilege against self-‌incrimination. Lentz v. Metropolitan Prop. & Cas. Ins. Co., 437 Mass. at 26–32, 768 N.E.2d at 541–545.

Subsection (b)(1). This subsection is derived from Article 12 of the Declaration of Rights of the Massachusetts Constitution and the Fifth Amendment to the Constitution of the United States, as well as from G. L. c. 233, § 20, Third, and G. L. c. 278, § 23. See Commonwealth v. Goulet, 374 Mass. 404, 412, 372 N.E.2d 1288, 1294 (1978). See also Commonwealth v. Szerlong, 457 Mass. 858, 869–870 n.13, 933 N.E.2d 633, 644 n.13 (2010). In Commonwealth v. Vallejo, 455 Mass. 72, 78–81, 914 N.E.2d 22, 28–30 (2009), the Supreme Judicial Court adopted the reasoning of Commonwealth v. Russo, 49 Mass. App. Ct. 579, 731 N.E.2d 108 (2000), and held that a defendant’s privilege against self-‌incrimination may be violated by comments made by a codefendant’s counsel on the defendant’s pretrial silence or the defendant’s decision not to testify. For a discussion of the numerous cases dealing with the issue of whether a remark by a judge, a prosecutor, or a co-counsel constitutes improper comment on the defendant’s silence, see M.S. Brodin & M. Avery, Massachusetts Evidence § 5.14.8 (8th ed. 2007). A defendant may have the right to simply exhibit a person before the jury without questioning the person. See Commonwealth v. Rosario, 444 Mass. 550, 557–559, 829 N.E.2d 1135, 1141 (2005). When there is a timely request made by the defense, the trial judge must instruct the jury that no adverse inference may be drawn from the fact that the defendant did not testify. See Carter v. Kentucky, 450 U.S. 288, 305 (1981); Commonwealth v. Sneed, 376 Mass. 867, 871–872, 383 N.E.2d 843, 845–846 (1978). See also Commonwealth v. Rivera, 441 Mass. 358, 371 n.9, 805 N.E.2d 942, 953 n.9 (2004) (“We remain of the view that judges should not give the instruction when asked not to do so. We are merely saying that it is not per se reversible error to do so.”).

Subsection (b)(2). This subsection is derived from Commonwealth v. Martin, 372 Mass. 412, 413, 421 n.17, 362 N.E.2d 507, 508, 512 n.17 (1977) (privilege against self-incrimination), and Commonwealth v. Labbe, 6 Mass. App. Ct. 73, 79–80, 373 N.E.2d 227, 232 (1978) (spousal privilege). “Where there is some advance warning that a witness might refuse to testify, the trial judge should conduct a voir dire of the witness, outside the presence of the jury, to ascertain whether the witness will assert some privilege or otherwise refuse to answer questions.” Commonwealth v. Fisher, 433 Mass. 340, 350, 742 N.E.2d 61, 70 (2001). If the witness asserts the privilege or refuses to testify before the jury when it was not anticipated, the judge should give a forceful cautionary instruction to the jury. Commonwealth v. Hesketh, 386 Mass. 153, 157–159, 434 N.E.2d 1238, 1241–1243 (1982).

Back to Top

Section 526. Unemployment Hearing Privilege

(a) Statutory Bar on the Use of Information from Unemployment Hearing. Subject to the exceptions listed in Subsection (b), information secured during an unemployment hearing is absolutely privileged, is not public record, and is not admissible in any action or proceeding.

(b) Exceptions. Such information may be admissible only in the following actions or proceedings:

(1) criminal or civil cases brought pursuant to G. L. c. 151A where the department or Commonwealth is a necessary party,

(2) civil cases relating to the enforcement of child support obligations,

(3) criminal prosecutions for homicide, and

(4) criminal prosecutions for violation of Federal law.

NOTE

This section is derived from G. L. c. 151A, § 46, and Tuper v. North Adams Ambulance Service, Inc., 428 Mass. 132, 137, 697 N.E.2d 983, 986 (2008) (“Information secured pursuant to [G. L. c. 151A] is confidential, is for the exclusive use and information of the department in the discharge of its duties, is not a public record, and may not be used in any action or proceeding.”). A violation of this statute may be punishable as a misdemeanor.

Back to Top

Section 527. Judicial Deliberation Privilege

A judge has an absolute privilege to refuse to disclose the mental impressions and thought processes relied on in reaching a decision, whether harbored internally or memorialized in nonpublic material.

NOTE

This section is derived from Matter of the Enforcement of a Subpoena, 463 Mass. 162, 972 N.E.2d 1022 (2012). In that case, the Supreme Judicial Court quashed so much of a subpoena issued by the Commission on Judicial Conduct to a judge as related to the judge’s internal thought processes and deliberative communications. Id. at 178, 972 N.E.2d at 1036. The court recognized an absolute judicial deliberation privilege that protects the judge’s “mental impressions and thought processes in reaching a judicial decision, whether harbored internally or memorialized in other nonpublic material.” Id. at 174, 972 N.E.2d at 1033. The court additionally ruled that “the privilege also protects confidential communications among judges and between judges and court staff made in the course of and related to their deliberative processes in particular cases.” Id. This absolute but narrowly tailored privilege “does not cover a judge’s memory of nondeliberative events in connection with cases in which the judge participated. Nor does the privilege apply to inquiries into whether a judge was subjected to improper ‘extraneous influences’ or ex parte communications during the deliberative process.” Id. at 174–175, 972 N.E.2d at 1033. The privilege also does not apply “when a judge is a witness to or was personally involved in a circumstance that later becomes the focus of a legal proceeding.” Id. at 175, 972 N.E.2d at 1033.

Back to Top