Section 1101.  Applicability of Evidentiary Sections

(a) Proceedings to Which Applicable. Except as provided in Subsection (c), these sections apply to all actions and proceedings in the courts of the Commonwealth.

(b) Law of Privilege. The sections with respect to privileges apply at all stages of all actions, cases, and proceedings.

(c) Sections Inapplicable. These sections (other than those with respect to privileges) do not apply in the following situations:

(1) Preliminary Determinations of Fact. The determination of questions of fact preliminary to the admissibility of evidence when the issue is to be determined by the court as addressed in Section 104(a), Preliminary Questions: Determinations Made by the Court.

(2) Grand Jury. Proceedings before grand juries.

(3) Miscellaneous Proceedings. Most administrative proceedings; bail proceedings; bar discipline proceedings; civil motor vehicle infraction hearings; issuance of process (warrant, complaint, capias, summons); precomplaint, show cause hearings; pretrial dangerous­ness hearings; prison disciplinary hearings; probation violation hearings; restitution hearings; sentencing; sexual offender registry board hearings; small claims sessions; and summary contempt proceedings.

(d) Motions to Suppress. The law of evidence does not apply with full force at motion to suppress hearings. As to the determination of probable cause or the justification of government action, out-of-court statements are admissible.

NOTE
 

Subsection (a). This subsection summarizes the current practice in Massachusetts courts. “The rules of evidence stand guard to ensure that only relevant, reliable, noninflammatory considerations may shape fact finding. Without these rules, there would be nothing to prevent trials from being resolved on whim, personal affections, or prejudice.” Adoption of Sherry, 435 Mass. 331, 338, 757 N.E.2d 1097, 1103 (2001). In addition to trials, therefore, the law of evidence applies at hearings on motions. See Thorell v. ADAP, Inc., 58 Mass. App. Ct. 334, 340–341, 789 N.E.2d 1086, 1091–1092 (2003).

Subsection (b).
Privileges are covered in Article V, Privileges and Disqualifications .

Subsection (c)(1). See Note to Section 104(a), Preliminary Questions: Determinations Made by the Court .

Subsection (c)(2). This subsection is derived from Commonwealth v. Gibson, 368 Mass. 518, 522–525, 333 N.E.2d 400, 404–405 (1975), and Mass. R. Crim. P. 4(c). See Reporters’ Notes to Mass. R. Crim. P. 4(c) (“evidence which is not legally competent at trial is sufficient upon which to base an indictment”).

Subsection (c)(3). Evidence bearing directly on probable cause, such as what a witness, a police officer, or a probation officer tells a court in connection with a request for an arrest warrant, a probation violation warrant, a warrant of apprehension, a search warrant, a capias, or a summons, or in support of a criminal complaint or as justification for a search and seizure, is not objectionable on grounds of hearsay in a judicial proceeding to determine probable cause. Commonwealth v. Fletcher, 435 Mass. 558, 567, 760 N.E.2d 273, 280–‌281 (2002); Commonwealth v. Weiss, 370 Mass. 416, 418, 348 N.E.2d 787, 789 (1976); Commonwealth v. Rosenthal, 52 Mass. App. Ct. 707, 709 n.3, 755 N.E.2d 817, 819 n.3 (2001). While the traditional rules of evidence may not apply in these situations, the evidence must still be reliable and trustworthy. See Abbott A. v. Commonwealth, 458 Mass. 24, 34–35, 933 N.E.2d 936, 945–‌946 (2010); Brantley v. Hampden Div. of the Probate & Family Ct. Dep’t, 457 Mass. 172, 184–185, 929 N.E.2d 272, 281–282 (2010); Commonwealth v. Wilcox, 446 Mass. 61, 71, 841 N.E.2d 1240, 1250 (2006).

     This subsection identifies the various miscellaneous proceedings to which the rules of evidence are not applicable, including the following:

     209A Hearings. See Silvia v. Duarte, 421 Mass. 1007, 1008, 657 N.E.2d 1262, 1263 (1995); Frizado v. Frizado, 420 Mass. 592, 597–598, 651 N.E.2d 1206, 1210–1211 (1995).

     Administrative Proceedings. See G. L. c. 30A, § 11(2); 452 Code Mass. Regs. § 1.11(5); Rate Setting Comm’n v. Baystate Med. Ctr., 422 Mass. 744, 752–755, 665 N.E.2d 647, 652–‌654 (1996); Goodridge v. Director of Div. of Employment Sec., 375 Mass. 434, 436 n.1, 377 N.E.2d 927, 929 n.1 (1978). See also Care & Protection of Rebecca, 419 Mass. 67, 83, 643 N.E.2d 26, 35 (1994) (a witness at such a proceeding is not permitted to express an opinion about the credibility of another witness).

     Bail Proceedings. See Paquette v. Commonwealth, 440 Mass. 121, 133, 795 N.E.2d 521, 532 (2003) (bail revocation proceedings); Querubin v. Commonwealth, 440 Mass. 108, 118, 795 N.E.2d 534, 543 (2003) (G. L. c. 276, § 57, proceedings); Snow v. Commonwealth, 404 Mass. 1007, 1007, 537 N.E.2d 578, 579 (1989).

     Bar Discipline Proceedings. See Matter of Abbott, 437 Mass. 384, 393, 772 N.E.2d 543, 550 (2002).

     Civil Motor Vehicle Infraction Hearings. See G. L. c. 90, § 20 (traffic citation). Under the Uniform Rules on Civil Motor Vehicle Infractions, the formal rules of evidence do not apply. See Commonwealth v. Curtin, 386 Mass. 587, 588 n.3, 436 N.E.2d 1200, 1201 n.3 (1982). The same holds true for cases involving parking tickets under G. L. c. 90, § 20C. See Lemaine v. City of Boston, 27 Mass. App. Ct. 1173, 1175, 540 N.E.2d 1338, 1339 (1989).

     Issuance of Process (Warrant, Capias, Summons). See Commonwealth v. Weiss, 370 Mass. 416, 418, 348 N.E.2d 787, 789 (1976); Commonwealth v. Young, 349 Mass. 175, 179, 206 N.E.2d 694, 696 (1965); Commonwealth v. Lehan, 347 Mass. 197, 206, 196 N.E.2d 840, 846 (1964); Commonwealth v. Rosenthal, 52 Mass. App. Ct. 707, 709 n.3, 755 N.E.2d 817, 819 n.3 (2001).

     Precomplaint Hearings. See G. L. c. 218, § 35A. The formal rules of evidence do not apply at a hearing conducted pursuant to G. L. c. 218, § 35A. Commonwealth v. Clerk-‌Magistrate of the W. Roxbury Div. of the Dist. Ct. Dep’t, 439 Mass. 352, 357–‌358, 787 N.E.2d 1032, 1037 (2003); Commonwealth v. DiBennadetto, 436 Mass. 310, 314–315, 764 N.E.2d 338, 342 (2002) (no right to cross-‌examine witness).

     Pretrial Dangerousness Hearings. See G. L. c. 276, § 58A(4); Abbott A. v. Commonwealth, 458 Mass. 24, 30–33, 933 N.E.2d 936, 943–944 (2010); Mendonza v. Commonwealth, 423 Mass. 771, 785–786, 673 N.E.2d 22, 31–32 (1996).

     Prison Disciplinary Hearings. See Murphy v. Superintendent, Mass. Correctional Inst., 396 Mass. 830, 834, 489 N.E.2d 661, 663 (1986).

     Probation Violation Hearings. See Commonwealth v. Kelsey, 464 Mass. 315, 319–322, 982 N.E.2d 1134, 1141–1143 (2013); Commonwealth v. Patton, 458 Mass. 119, 132, 934 N.E.2d 236, 248–249 (2010); Commonwealth v. Durling, 407 Mass. 108, 117–118, 551 N.E.2d 1193, 1198 (1990) (hearsay evidence must still bear substantial indicia of reliability and trustworthiness); Commonwealth v. Janovich, 55 Mass. App. Ct. 42, 47 n.6, 769 N.E.2d 286, 291 n.6 (2002). See also Rule 6(a) of the District Court Rules for Probation Violation Proceedings.

     Restitution Hearings. Restitution may be ordered to compensate the victim of a crime for economic losses that are causally related to the offense. Courts should apply the law of evidence flexibly so that all reliable evidence is considered. The “process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.” Commonwealth v. Cassanova, 65 Mass. App. Ct. 750, 755–756, 843 N.E.2d 699, 705 (2006), quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972). The requirements of G. L. c. 233, § 79G, need not be fulfilled in a restitution proceeding for medical bills resulting from criminal conduct. Commonwealth v. Amaral, 78 Mass. App. Ct. 557, 561, 940 N.E.2d 1242, 1245 (2011).

     Sentencing. See Commonwealth v. Goodwin, 414 Mass. 88, 92, 605 N.E.2d 827, 831 (1993) (a judge may consider many factors, including hearsay). See also G. L. c. 276, § 85; Mass. R. Crim. P. 28(d); Commonwealth v. Stuckich, 450 Mass. 449, 461–462, 879 N.E.2d 105, 116 (2008) (evidence of uncharged conduct is admissible and relevant to the character of the offender, but may not be used to increase the punishment).

     Sexual Offender Registry Board Hearings. See G. L. c. 6, § 178L(2); 803 Code Mass. Regs. § 1.19(1).

     Small Claims. See generally G. L. c. 218, §§ 21, 22.

     Summary Contempt Proceedings. See Mass. R. Crim. P. 43.

Subsection (d). This subsection is derived from United States v. Matlock, 415 U.S. 164, 172–175 (1974), and Commonwealth v. Young, 349 Mass. 175, 179, 206 N.E.2d 694, 696 (1965). While out-of-court statements are admissible as to the determination of probable cause or the justification of government action, other evidence that would be incompetent under the rules of evidence is not admissible at suppression hearings or other proceedings in which probable cause is challenged. If a defendant testifies at a motion to suppress hearing and subsequently testifies at trial, his or her testimony from the motion to suppress hearing may be used to impeach his or her credibility at the later trial. Commonwealth v. Rivera, 425 Mass. 633, 637–638, 682 N.E.2d 636, 640–641 (1997).

     Cross-Reference: Section 1112, Eyewitness Identification .

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Section 1102.  Spoliation or Destruction of Evidence

A judge has the discretion to impose sanctions for the spoliation or destruction of evidence, whether negligent or intentional, in the underlying action in which the evidence would have been offered.

NOTE

This section is derived from Keene v. Brigham & Women’s Hosp., Inc., 439 Mass. 223, 235–236, 786 N.E.2d 824, 833–834 (2003), and Commonwealth v. Henderson, 411 Mass. 309, 311–312, 582 N.E.2d 496, 497 (1991). See also Mass. R. Civ. P. 37(b); Kippenhan v. Chaulk Servs., Inc., 428 Mass. 124, 126–‌129, 697 N.E.2d 527, 530–531 (1998); Nally v. Volkswagen of Am., Inc., 405 Mass. 191, 197, 539 N.E.2d 1017, 1021 (1989). There is no tort cause of action for spoliation or destruction of evidence. See Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 547, 773 N.E.2d 420, 424 (2002).

“Sanctions may be appropriate for the spoliation of evidence that occurs even before an action has been commenced, if a litigant or its expert knows or reasonably should know that the evidence might be relevant to a possible action. The threat of a lawsuit must be sufficiently apparent, however, that a reasonable person in the spoliator’s position would realize, at the time of spoliation, the possible importance of the evidence to the resolution of the potential dispute.” (Citations omitted.)

Kippenhan v. Chaulk Servs., Inc., 428 Mass. at 127, 697 N.E.2d at 530. “While a duty to preserve evidence does not arise automatically from a nonparty’s mere knowledge, there are ways that that duty may be imposed on a nonparty.” Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. at 548, 773 N.E.2d at 425. For example, a witness served with a subpoena duces tecum must preserve evidence in his or her control when the subpoena is received, or a third-party witness may enter into an agreement to preserve evidence. Id. at 549, 773 N.E.2d at 425.

Civil Cases. “[S]anctions for spoliation are carefully tailored to remedy the precise unfairness occasioned by that spoliation. A party’s claim of prejudice stemming from spoliation is addressed within the context of the action that was allegedly affected by that spoliation.” Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 551, 773 N.E.2d 420, 426 (2002). “As a general rule, a judge should impose the least severe sanction necessary to remedy the prejudice to the nonspoliating party.” Keene v. Brigham & Women’s Hosp., Inc., 439 Mass. 223, 235, 786 N.E.2d 824, 833–834 (2003).

“[I]n a civil case, where an expert has removed an item of phys­ical evidence and the item has disappeared, or the expert has caused a change in the substance or appearance of such an item in such circumstances that the expert knows or reasonably should know that that item in its original form may be material to litigation, the judge, at the request of a potentially prejudiced litigant, should preclude the expert from testifying as to his or her observations of such items before he or she altered them and as to any opinion based thereon. The rule should be applied without regard for whether the expert’s conduct occurred before or after the expert was retained by a party to the litigation.”

Nally v. Volkswagen of Am., Inc., 405 Mass. 191, 197–198, 539 N.E.2d 1017, 1021 (1989). See also Bolton v. MBTA, 32 Mass. App. Ct. 654, 655–657, 593 N.E.2d 248, 248–250 (1992) (extending rule to cover spoliation of evidence by a party after expert inspection).

“The spectrum of remedies [also] includes allowing the party who has been aggrieved by the spoliation to present evidence about the preaccident condition of the lost evidence and the circumstances surrounding the spoliation, as well as instructing the jury on the inferences that may be drawn from spoliation” (citations omitted). Gath v. M/A-Com, Inc., 440 Mass. 482, 488, 802 N.E.2d 521, 527 (2003). A judge may preclude testimony that is dispositive of the ultimate merits of the case. Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. at 550, 773 N.E.2d at 426. Once the moving party produces evidence sufficient to establish that another party lost or destroyed evidence that the litigant or its expert knew or reasonably should have known might be relevant to a pending or potential case, the burden shifts to the nonmoving party to prove that it was not at fault. Scott v. Garfield, 454 Mass. 790, 799, 912 N.E.2d 1000, 1008 (2009). See also Nally v. Volkswagen of Am., Inc., 405 Mass. at 195, 199, 539 N.E.2d at 1020, 1022 (defendant entitled to summary judgment if excluded testimony prevents plaintiff from making prima facie case). For the extreme sanction of dismissal or entering a default judgment, ordinarily a finding of wilfulness or bad faith is necessary. Keene v. Brigham & Women’s Hosp., Inc., 439 Mass. at 235–236, 786 N.E.2d at 834.

Criminal Cases. In Commonwealth v. DiBenedetto, 427 Mass. 414, 419, 693 N.E.2d 1007, 1011 (1998), the court addressed the appropriate remedial action in criminal cases:

“[W]hen potentially exculpatory evidence is lost or destroyed, a balancing test is employed to determine the appropriateness and extent of remedial action. The courts must weigh the culpability of the Commonwealth, the materiality of the evidence and the potential prejudice to the defendant. To establish prejudice, the defendant must show a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the [material] would have produced evidence favorable to [the defendant’s] cause.” (Quotations and citation omitted.)

See also Mass. R. Crim. P. 14(c); Commonwealth v. Olszewski, 416 Mass. 707, 714, 625 N.E.2d 529, 535 (1993), cert. denied, 513 U.S. 835 (1994); Commonwealth v. Willie, 400 Mass. 427, 432–433, 510 N.E.2d 258, 261–262 (1987). Remedial action in the form of sanctions or a “missing evidence” instruction is not appropriate unless the defendant meets “his initial burden of showing a reasonable possibility that the lost evidence was exculpatory.” Commonwealth v. Kee, 449 Mass. 550, 554, 870 N.E.2d 57, 63 (2007). If remedial action is required, the judge has the discretion to fashion a remedy that will protect the defendant’s rights. See, e.g., Commonwealth v. Kee, 449 Mass. at 557–558, 870 N.E.2d at 65 (missing evidence instruction); Commonwealth v. Harwood, 432 Mass. 290, 303, 733 N.E.2d 547, 557 (2000) (suppression of evidence). Cf. Commonwealth v. Sasville, 35 Mass. App. Ct. 15, 28, 616 N.E.2d 476, 484 (1993) (dismissal appropriate only where the harm is irremediable).

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Section 1103.  Sexually Dangerous Person Proceedings

In proceedings for the commitment or discharge of a person alleged to be a sexually dangerous person (SDP), hearsay evidence is not admissible, except as provided in Subsections (a) and (b) of this section.

(a) Hearsay That Is Admissible. Hearsay consisting of reports or records relating to a person’s criminal conviction, adjudication of juvenile delinquency or as a youthful offender, the person’s psychiatric and psychological records, and a variety of records created or maintained by the courts and other government agencies, as more particularly defined by statute, is admissible in SDP proceedings.

(b) Hearsay That May Be Admissible. In addition to hearsay admissible under Subsection (a), other hearsay may be admissible if it concerns uncharged conduct of the person and is closely related in time and circumstance to a sexual offense for which the person was convicted or adjudicated a juvenile delinquent or youthful offender.

NOTE

Introduction. A person who has been convicted of a sex offense may be confined indefinitely for treatment after the termination of the person’s criminal sentence if the person is found to be a sexually dangerous person in accordance with statutory procedures. See Johnstone, petitioner, 453 Mass. 544, 547, 903 N.E.2d 1074, 1076–1077 (2009) (discussing G. L. c. 123A, §§ 12–14). The current Massachusetts law, G. L. c. 123A, was adopted in 1999, St. 1999, c. 74, §§ 3–8, and is the successor to an earlier statutory scheme for the civil commitment of sexually dangerous persons (St. 1958, c. 646) that was repealed by St. 1990, c. 150, § 304. As a result, the population of the Massachusetts Treatment Center includes persons who are confined under commitment orders made prior to 1990 and subsequent to 1999. Each population has a right to file a petition in the Superior Court each year that requires a redetermination of whether they remain sexually dangerous. See G. L. c. 123A, § 9. The law provides for trial by jury and affords the individual the right to counsel, the right to present evidence, and the right to cross-‌examine adverse witnesses. Unless the Commonwealth proves that the person remains sexually dangerous beyond a reasonable doubt, the person must be released. See Commonwealth v. Nieves, 446 Mass. 583, 587, 593–594, 846 N.E.2d 379, 383, 387–388 (2006) (explaining the statutory procedures governing commitment and discharge under G. L. c. 123A). The criteria for commitment are set forth in the definition of a “sexually dangerous person” found in G. L. c. 123A, § 1. See Commonwealth v. Boucher, 438 Mass. 274, 275–281, 780 N.E.2d 47, 49–‌53 (2002). Expert witness testimony is required in order for a judge or a jury to make the determination that a person is sexually dangerous. See Commonwealth v. Bruno, 432 Mass. 489, 511, 735 N.E.2d 1222, 1238 (2000).

“It is settled that hearsay not otherwise admissible under the rules of evidence is inadmissible at the trial of a sexually dangerous person petition unless specifically made admissible by statute” (citations omitted). Commonwealth v. Markvart, 437 Mass. 331, 335, 771 N.E.2d 778, 782 (2002). Thus, the catch-all provision found in G. L. c. 123A, § 14(c) (“Any other evidence” tending to show that the person is sexually dangerous), is not interpreted to make any and all hearsay evidence admissible in SDP proceedings. McHoul, petitioner, 445 Mass. 143, 147 n.2, 833 N.E.2d 1146, 1151 n.2 (2005). See also id. at 151 n.6, 833 N.E.2d at 1153 n.6 (“For example, there is no hearsay exception that would allow a party to introduce his own prior statements in the various reports and records; if offered by the petitioner, his own statements would not be the admission of a party opponent.”). It is equally settled that documents made admissible by statute in SDP proceedings such as police reports, psychological assessments, notes about treatment, and the like, are not subject to redaction simply because they contain hearsay statements. See id. at 147–148, 151 n.6, 833 N.E.2d at 1151–1152, 1153 n.6.

“When the Legislature identified the specific records and reports that were to be admissible in sexually dangerous person proceedings, it did so with full knowledge that they routinely contain information derived from hearsay sources. Having made such records and reports ‘admissible,’ the Legislature did not intend that the documents be reduced to isolated shreds of partial information that would result from the application of hearsay rules to each individual entry in the documents.”

Id. at 150, 833 N.E.2d at 1153. See also Commonwealth v. Reese, 438 Mass. 519, 527, 781 N.E.2d 1225, 1232 (2003) (G. L. c. 123A, § 14[c], does not supercede the requirements of the learned treatise exception to the hearsay rule).

Miscellaneous Evidentiary Rulings. The Supreme Judicial Court and Appeals Court have addressed several other evidentiary questions that relate to these specialized proceedings. See Johnstone, petitioner, 453 Mass. 544, 550, 903 N.E.2d 1074, 1079 (2009) (although the annual report of the Community Access Board as to a civilly committed person’s sexual dangerousness is admissible in discharge proceedings under G. L. c. 123A, § 9, the Commonwealth cannot proceed to trial unless at least one of the two qualified examiners opines that the petitioner is a sexually dangerous person); Commonwealth v. Connors, 447 Mass. 313, 317–319, 850 N.E.2d 1038, 1041–‌1043 (2006) (although the allegedly sexually dangerous person has a right to refuse to speak to the qualified examiners, he or she may not offer his or her own expert testimony, based on his or her statements made to his or her own experts, while refusing to answer the questions of the qualified examiners); Commonwealth v. Nieves, 446 Mass. at 593–594, 846 N.E.2d at 387–388 (civil commitment of an incompetent person under G. L. c. 123A is not unconstitutional even though no effective treatment is available); Commonwealth v. Callahan, 440 Mass. 436, 439–442, 799 N.E.2d 113, 115–117 (2004) (G. L. c. 123A, § 13[b], which requires that certain material about a person alleged to be a sexually dangerous person be given to the qualified examiners, does not supercede the patient-psychotherapist privilege); Wyatt, petitioner, 428 Mass. 347, 355–359, 701 N.E.2d 337, 343–345 (1998) (questions concerning the relevancy and probative value of evidence offered in proceedings under G. L. c. 123A are within the discretion of the trial judge in accordance with Sections 401–403 of this Guide); Kenney, petitioner, 66 Mass. App. Ct. 709, 714–‌715, 850 N.E.2d 590, 596 (2006) (admissibility of juvenile court records in SDP cases); Commonwealth v. Bradway, 62 Mass. App. Ct. 280, 287, 816 N.E.2d 152, 157–158 (2004) (if reports of qualified examiners are admitted pursuant to G. L. c. 123A, § 14[c], the author of the report must be made available for cross-examination).

Hearsay Evidence Excluded. Police reports and out-of-court statements of witnesses from cases in which the charges have been dismissed or nolle prossed or in which the defendant was found not guilty are not statements of “prior sexual offenses,” as set forth in G. L. c. 123A, § 14(c), and thus are inadmissible as hearsay. See Commonwealth v. Markvart, 437 Mass. at 335–‌336, 771 N.E.2d at 781–782. However, this does not mean that the testimony of witnesses with personal knowledge of the facts in cases that were dismissed or nolle prossed cases would be inadmissible in SDP cases. See id. at 337, 771 N.E.2d at 783.

Subsection (a). This subsection is derived from G. L. c. 123A, §§ 6A, 9, and 14(c). In proceedings for the initial commitment of a person under Section 12 (including the preliminary, probable cause hearing) and the discharge of committed persons under Section 9, the Legislature has removed many of the barriers against the admissibility of hearsay evidence. See G. L. c. 123A, §§ 6A, 9, 14(c). The case law has harmonized these sections so that the general rule is that hearsay admissible in a proceeding under G. L. c. 123A, § 12, is also admissible in a proceeding under Section 9. These statutory provisions permit psychiatrists or psychologists who are qualified examiners, see G. L. c. 123A, § 1, to testify as experts without an independent determination by the court that they are qualified and that their testimony meets standards of reliability under Section 702, Testimony by Experts. See Commonwealth v. Bradway, 62 Mass. App. Ct. 280, 285–289, 816 N.E.2d 152, 156–159 (2004) (admission of testimony and reports of qualified examiners as to a person’s sexual dangerousness does not require the court to assess reliability under the standards established in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 [1993], and Commonwealth v. Lanigan, 419 Mass. 15, 641 N.E.2d 1342 [1994]). Cf. Ready, petitioner, 63 Mass. App. Ct. 171, 172–179, 824 N.E.2d 474, 476–480 (2005) (in a Section 9 proceeding, the trial judge was correct in excluding the results of the Abel Assessment for Sexual Interest test administered by an independent expert witness for the petitioner on grounds that it was not generally accepted by the relevant scientific community and thus not reliable under the Daubert-Lanigan standard).

Hearsay Evidence Expressly Made Admissible by Statute. Under G. L. c. 123A, § 6A, reports by the community access board of evaluations of residents of the Massachusetts Treatment Center are admissible in proceedings for discharge under G. L. c. 123A, § 9. Under G. L. c. 123A, §§ 9 and 14(c), reports prepared by qualified examiners are admissible. The phrase “psychiatric and psychological records” in G. L. c. 123A, § 9, includes the reports prepared by psychiatrists and psychologists who have been retained as expert witnesses by the petitioner in connection with a Section 9 petition for examination and discharge. Santos, petitioner, 461 Mass. 565, 573, 962 N.E.2d 726, 733 (2012). The cognate phrase in G. L. c. 123A, § 14(c), will be interpreted in the same manner. Id. at 573 n.10, 962 N.E.2d at 733 n.10. There also is a broad exemption from the hearsay rule found in G. L. c. 123A, § 14(c), which states that the following records are admissible in proceedings under G. L. c. 123A, § 12, for the initial commitment of an offender as a sexually dangerous person:

“Juvenile and adult court probation records, psychiatric and psychological records and reports of the person named in the petition, including the report of any qualified examiner, as defined in section 1, and filed under this chapter, police reports relating to such person’s prior sexual offenses, incident reports arising out of such person’s incarceration or custody, oral or written statements prepared for and to be offered at the trial by the victims of the person who is the subject of the petition and any other evidence tending to show that such person is or is not a sexually dangerous person shall be admissible at the trial if such written information has been provided to opposing counsel reasonably in advance of trial.”

See also Commonwealth v. Morales, 60 Mass. App. Ct. 728, 730, 805 N.E.2d 1007, 1009 (2004) (“DSS reports and grand jury minutes containing information about victims of sexual offenses committed against them by a defendant convicted of those offenses are directly admissible in evidence at trials on petitions brought under G. L. c. 123A, § 14[a]”). Under G. L. c. 123A, § 9, either side may introduce in evidence the report of a qualified examiner, the petitioner’s “juvenile and adult court and probation records,” the petitioner’s “psychiatric and psychological records,” and the Department of Correction’s updated annual progress report pertaining to the petitioner. Constitutional challenges to the Legislature’s relaxation of the rule against the admissibility of hearsay in SDP cases were considered and rejected by the Supreme Judicial Court in Commonwealth v. Given, 441 Mass. 741, 746–748, 808 N.E.2d 788, 793–795 (2004).

When Hearsay Evidence Is the Basis of Expert Testimony. In Commonwealth v. Markvart, 437 Mass. 331, 336–339, 771 N.E.2d 778, 782–784 (2002), the Supreme Judicial Court applied Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531, 499 N.E.2d 812, 820–821 (1986), see Section 703(c), Bases of Opinion Testimony by Experts, and harmonized the demands of the more general law of evidence and the special statutory exemptions from the hearsay rule found in G. L. c. 123A, §§ 9 and 14(c). The Supreme Judicial Court held that in an SDP proceeding, a qualified examiner could base an expert opinion on police reports and witness statements pertaining to the sex offender even though the information is not in evidence, as long as the information could be admitted if the witnesses were called to testify. Commonwealth v. Markvart, 437 Mass. at 337–338, 771 N.E.2d at 783–784. Because the statutes, G. L. c. 123A, §§ 9 and 14(c), make the reports of these qualified examiners admissible, any independently admissible hearsay contained in such reports that is not admitted during the trial must be redacted from the reports before it is presented to the jury. Id. at 339, 771 N.E.2d at 784. The reason why redaction is required in such cases is not because the qualified examiner’s report contains hearsay within hearsay, but rather because the report is the equivalent of an expert witness’s direct testimony which cannot be used as a vehicle for putting before the jury facts not in evidence. See McHoul, petitioner, 445 Mass. 143, 148 n.4, 833 N.E.2d 1146, 1152 n.4 (2005).

Subsection (b). This subsection is derived from Commonwealth v. Given, 441 Mass. 741, 745, 808 N.E.2d 788, 792–793 (2004). The Supreme Judicial Court explained that in proceedings under G. L. c. 123A, § 9 or § 12, G. L. c. 123A, § 14(c), makes admissible evidence of uncharged conduct when it is closely related in time and circumstance to the underlying sexual offense. Id. Cf. id. at 746 n.6, 808 N.E.2d at 793 n.6 (“We do not consider or decide whether statements in a police report that include information concerning uncharged misconduct completely unrelated in time and circumstance to the underlying sexual offense must be redacted.”).

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Section 1104.  Witness Cooperation Agreements

In a criminal case in which there is a written agreement between the Commonwealth and a witness in which the Commonwealth makes a promise to the witness in relation to the charges or the sentence in exchange for the testimony of the witness at trial, the use and admission of the agreement by the Commonwealth at trial is within the discretion of the trial judge subject to the following guidelines:

(a) On direct examination, the prosecution may properly bring out the fact that the witness has entered into a plea agreement and that the witness generally understands his or her obligations under it.

(b) The agreement itself is admissible. The timing of the admission of the agreement is within the judge’s discretion. The judge may defer admission of the agreement until redirect examination, after the defendant has undertaken to impeach the witness’s credibility by showing that the witness had struck a deal with the prosecution in order to obtain favorable treatment.

(c) References to a witness’s obligation to tell the truth, any certification or acknowledgment by his or her attorney, and any provision that suggest that the Commonwealth has special knowledge as to the veracity of the witness’s testimony should be redacted from the agreement, on request.

(d) Questions by the prosecutor about the duty of the witness to tell the truth and the reading of the agreement are not permitted until redirect examination and after the witness has been cross-‌examined on the matter.

(e) Care must be taken by the Commonwealth not to suggest, by questions or argument, that it has knowledge of the credibility of the witness independent of the evidence.

(f) The trial judge must instruct the jury by focusing their attention on the particular care they should give in evaluating testimony given pursuant to a plea agreement that is contingent on the witness’s telling the truth.

NOTE

Subsections (a) and (b). These subsections are taken nearly verbatim from Commonwealth v. Ciampa, 406 Mass. 257, 264, 547 N.E.2d 314, 319 (1989). See also Commonwealth v. Rivera, 430 Mass. 91, 96, 712 N.E.2d 1127, 1132 (1999).

Subsection (c). This subsection is derived from Commonwealth v. Conkey, 430 Mass. 139, 147, 714 N.E.2d 343, 351 (1999), and Commonwealth v. Ciampa, 406 Mass. 257, 261–262, 547 N.E.2d 314, 318 (1989).

Subsections (d) and (e). These subsections are derived from Commonwealth v. Rivera, 430 Mass. 91, 96–97, 712 N.E.2d 1127, 1132 (1999), and Commonwealth v. Ciampa, 406 Mass. 257, 264–265, 547 N.E.2d 314, 319–‌320 (1989).

Subsection (f). This subsection is derived from Commonwealth v. Ciampa, 406 Mass. 257, 266, 547 N.E.2d 314, 321 (1989), and Commonwealth v. Asmeron, 70 Mass. App. Ct. 667, 675, 875 N.E.2d 870, 876 (2007). See Commonwealth v. Meuse, 423 Mass. 831, 832, 673 N.E.2d 546, 546–547 (1996) (reversible error where prosecutor vouched for witness testifying pursuant to plea agreement and judge failed to give Ciampa-type instruction); Commonwealth v. Daye, 411 Mass. 719, 739–740, 587 N.E.2d 194, 206 (1992) (no special instruction necessary as it did not appear that evidence presented realistic possibility that jury would believe witness’s testimony based on her agreement to tell truth); Commonwealth v. Colon, 408 Mass. 419, 445, 558 N.E.2d 974, 990 (1990) (no special instructions necessary where plea agreement does not condition immunization on truthfulness).

General Application. The above guidelines also apply to nonbinding pretrial “agreements.” See Commonwealth v. Davis, 52 Mass. App. Ct. 75, 78–79 & n.7, 751 N.E.2d 420, 423 & n.7 (2001) (holding that Ciampa’s prophylactic measures are applicable in circumstances in which Commonwealth witness testified that, after he was charged with distribution of marijuana, he agreed to help police arrest others involved in illegal sale of drugs in exchange for nonspecific “consideration” from prosecution). A defendant has the right to bring to the attention of the jury any “quid pro quo” agreement between the prosecution and a testifying witness, whether formal or informal, written or unwritten. See id. at 78 n.7, 751 N.E.2d at 423 n.7; Commonwealth v. O’Neil, 51 Mass. App. Ct. 170, 179, 744 N.E.2d 86, 92 (2001).

In Commonwealth v. Prater, 431 Mass. 86, 98, 725 N.E.2d 233, 244 (2000), the Supreme Judicial Court indicated that the “better practice” is for the trial judge to include in the cautionary instruction a warning that the jury should not consider an accomplice’s guilty plea as evidence against the defendant.

An agreement that obligates a witness to testify to some particular version of the facts in exchange for a charge or sentence concession would be grounds for a motion to preclude the testimony or to strike it. See Commonwealth v. Ciampa, 406 Mass. 257, 261 n.5, 547 N.E.2d 314, 318 n.5 (1989) (“Testimony pursuant to a plea agreement made contingent on obtaining . . . a conviction, as a result of the witness’s testimony, would presumably present too great an inducement to lie, [and] would not meet the test of fundamental fairness.”). See also Commonwealth v. Colon-Cruz, 408 Mass. 533, 553, 562 N.E.2d 797, 811 (1990) (“[W]e do not condone the use of agreements which do not require a witness to tell the truth. Such agreements are antithetical to the fair administration of justice. . . . [F]uture plea agreements [should] be drafted so as to make the obligation to testify truthfully clear to the witness[.]”).

Cross-Reference: Section 611(b)(2), Manner and Order of Interrogation and Presentation: Scope of Cross-Examination: Bias and Prejudice .

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Section 1105.  Third-Party Culprit Evidence

Evidence that a third party committed the crimes charged against the defendant, or had the motive, intent, and opportunity to commit the crimes, is admissible provided that the evidence has substantial probative value. In making this determination, the court must make a preliminary finding (a) that the evidence is relevant, (b) that the evidence will not tend to prejudice or confuse the jury, and (c) that there are other substantial connecting links between the crime charged and a third party or between the crime charged and another crime that could not have been committed by the defendant.

NOTE

This section is derived from Commonwealth v. Silva-Santiago, 453 Mass. 782, 800–801, 906 N.E.2d 299, 313–314 (2009); Commonwealth v. Jewett, 392 Mass. 558, 562, 467 N.E.2d 155, 158 (1984); Commonwealth v. Murphy, 282 Mass. 593, 597–‌598, 185 N.E. 486, 487–488 (1933); and Commonwealth v. Abbott, 130 Mass. 472, 475 (1881). See Commonwealth v. Buckman, 461 Mass. 24, 29–30, 957 N.E.2d 1089, 1096 (2011) (trial judge had discretion to rule in advance of trial that defendant had not made adequate showing that three potential culprits were connected to the crime, and that defendant must provide advance warning to court before offering evidence or argument at trial of third-party culprit).

In Commonwealth v. Rosa, 422 Mass. 18, 22, 661 N.E.2d 56, 60 (1996), the Supreme Judicial Court observed that

“[i]f the defense offers its own theory of the case (beyond merely putting the government to its proof), its evidence must have a rational tendency to prove the issue the defense raises, and the evidence cannot be too remote or speculative. Evidence that another person committed the crime charged also poses a real threat of prejudice, especially the risk of confusing jurors by diverting their attention to wholly collateral matters involving persons not on trial.”

For example, in Commonwealth v. Rosa, the Supreme Judicial Court upheld the trial judge’s exclusion of so-called third-party culprit evidence consisting of the fact that there was another person awaiting trial with a record for crimes of violence and who was held in the same jail as the defendant. Id. at 24–25, 661 N.E.2d at 61. Even though this other person had been mistaken for the defendant by his lawyer and had lived in the same neighborhood as the defendant at the time of the murder, the court upheld the trial judge’s decision to exclude the evidence. The court concluded that “[w]ithout more, these are fairly common similarities that do not require the admission of evidence of similar crimes.” Id. at 23, 661 N.E.2d at 60. The court contrasted Commonwealth v. Keizer, 377 Mass. 264, 267, 385 N.E.2d 1001, 1004 (1979), where it held that the trial judge should have admitted evidence “because there were substantial connecting links between the robbery charged and another robbery in which the defendant could not have participated.” Commonwealth v. Rosa, 422 Mass. at 23, 661 N.E.2d at 60. The court noted that in Keizer,

“[n]ot only did the two crimes share an identical modus operandi with several distinctive features, but the two robberies also had one common perpetrator (each robbery was by a team of three perpetrators). We also found distinctive a specific link between the identification testimony against the defendant and the identity of the perpetrators of the similar crime (only one witness could identify defendant, and same witness also identified common perpetrator of two crimes).”

Id. at 23, 661 N.E.2d at 60, citing Commonwealth v. Keizer, 377 Mass. at 268 n.2, 385 N.E.2d at 1004 n.2.

The mere fact that a third party had the motive, intent, and opportunity to commit the crime, however, does not make evidence about that person and his or her possible culpability admissible. Commonwealth v. O’Brien, 432 Mass. 578, 588–589, 736 N.E.2d 841, 851–852 (2000) (explaining that evidence that the victim had expressed fear of the third party in circumstances in which there were no substantial links between the third party and the crime was not admissible because it amounted to nothing more than the witness’s opinion that the third party committed the crime). Accord Commonwealth v. Buckman, 461 Mass. 24, 29–30, 957 N.E.2d 1089, 1096 (2011); Commonwealth v. Rice, 441 Mass. 291, 305–306, 805 N.E.2d 26, 39–40 (2004); Commonwealth v. DiBenedetto, 427 Mass. 414, 420–421, 693 N.E.2d 1007, 1012 (1998). See also Commonwealth v. Smith, 461 Mass. 438, 446–448, 961 N.E.2d 566, 572–573 (2012) (affirming exclusion of statements suggesting murder victim feared unknown persons because statements failed to establish connection between the unknown persons and the murder).

Constitutional Considerations. “The defendant has a constitutional right to present evidence that another may have committed the crime.” Commonwealth v. Keohane, 444 Mass. 563, 570, 829 N.E.2d 1125, 1131 (2005). State evidence rules which effectively bar the introduction of third-party culprit evidence deprive a defendant of his or her right to present a meaningful defense and violate the due process clause of the Fourteenth Amendment. See Holmes v. South Carolina, 547 U.S. 319 (2006); Chambers v. Mississippi, 410 U.S. 284 (1973). Hearsay evidence is admissible as third-party culprit evidence even though it does not fall within a hearsay exception, but “only if, in the judge’s discretion, the evidence is otherwise relevant, will not tend to prejudice or confuse the jury, and there are other substantial connecting links to the crime.” Commonwealth v. Silva-Santiago, 453 Mass. 782, 801, 906 N.E.2d 299, 314 (2009), and cases cited. See Commonwealth v. Drew, 397 Mass. 65, 72, 489 N.E.2d 1233, 1239 (1986) (noting that in “rare circumstances,” the defendant’s constitutional right to present a defense may require the admission of third-‌party culprit evidence). However, “[a] defendant has no ‘constitutional right to the admission of unreliable hearsay.’” Commonwealth v. Burnham, 451 Mass. 517, 526, 887 N.E.2d 222, 229 (2008), quoting Commonwealth v. Evans, 438 Mass. 142, 156, 778 N.E.2d 885, 898 (2002), cert. denied, 538 U.S. 966 (2003). Accord Commonwealth v. Morgan, 449 Mass. 343, 358, 868 N.E.2d 99, 112 (2007) (explaining that an absent witness’s statement that a third party told her that he had shot the victim was not admissible as a statement against penal interest or as third-party culprit evidence in circumstances in which the third party denied making the statement when interviewed by the police and where there was no corroboration). Hearsay evidence which does not qualify as third-party culprit evidence may nonetheless be admissible for a different but related purpose of establishing the inadequacy of the police investigation. See Commonwealth v. Silva-Santiago, 453 Mass. at 802, 906 N.E.2d at 315 (explaining that based on the reasoning in Commonwealth v. Bowden, 379 Mass. 472, 486, 399 N.E.2d 482, 491 (1980), “information regarding a third-party culprit, whose existence was known to the police but whose potential involvement was never investigated, may be admissible under a Bowden defense even though it may not otherwise be admissible under a third-party culprit defense”). Before such evidence is admitted, the judge should conduct a voir dire to determine whether the third-party culprit evidence was provided to the police and whether its admission would be more prejudicial than probative. Id. at 802–803, 906 N.E.2d at 315–316.

Cross-Reference: Section 1107, Inadequate Police Investigation Evidence.

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Section 1106.  Abuse Prevention Act Proceedings

In all civil proceedings under the Abuse Prevention Act, G. L. c. 209A, the rules of evidence should be applied flexibly by taking into consideration the personal and emotional nature of the issues involved, whether one or both of the parties is self-represented, and the need for fairness to all parties.

NOTE

Introduction. This section is derived from G. L. c. 209A; Frizado v. Frizado, 420 Mass. 592, 597–598, 651 N.E.2d 1206, 1210–1211 (1995); and S.T. v. E.M., 80 Mass. App. Ct. 423, 429–430, 953 N.E.2d 269, 274–275 (2011). Civil proceedings under G. L. c. 209A are commenced by filing a civil complaint. G. L. c. 209A, § 3A. Violations of orders issued under G. L. c. 209A are punishable as crimes. G. L. c. 209A, § 7. The remedies that may be ordered by the court are set forth in G. L. c. 209A, § 3. Initially, a temporary order may be issued, ex parte, if the plaintiff demonstrates a substantial likelihood of immediate danger of abuse. G. L. c. 209A, § 4. When courts are closed, emergency relief is available to any person who demonstrates a substantial likelihood of immediate danger of abuse. G. L. c. 209A, § 5. Whenever a court issues a temporary order, the defendant has a right to be heard no later than ten business days after such order. This hearing constitutes a civil, jury-waived trial. At the temporary hearing and at any subsequent trial or hearing, the Supreme Judicial Court has observed that “the rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on.” Frizado v. Frizado, 420 Mass. at 597–598, 651 N.E.2d at 1211. For additional information, see Guidelines for Judicial Practice, Abuse Prevention Proceedings pdf format of Guidelines: Abuse Prevention Proceedings
, available at http://www.mass.gov/courts/209a/guidelines-2011.pdf.

Evidentiary Principles Applicable in G. L. c. 209A Proceedings. In determining whether and how to apply the law of evidence, the Supreme Judicial Court in Frizado v. Frizado, 420 Mass. 592, 651 N.E.2d 1206 (1995), offered the following guidelines.

“[First, t]he burden is on the complainant to establish facts justifying the issuance and continuance of an abuse prevention order. The court must on request grant a defendant an opportunity to be heard on the question of continuing the temporary order and of granting other relief. That opportunity, however, places no burden on a defendant to testify or to present evidence. The defendant need only appear at the hearing.” (Quotation omitted.)

Frizado v. Frizado, 420 Mass. at 596, 651 N.E.2d at 1210, quoting G. L. c. 209A, § 4.

Second, the plaintiff’s burden of proof is preponderance of the evidence. Frizado v. Frizado, 420 Mass. at 597, 651 N.E.2d at 1210.

Third, an adverse inference can be drawn by the court from the defendant’s failure to testify in a G. L. c. 209A proceeding. The fact that the defendant may refuse to testify on the ground of self-incrimination does not bar the taking of an adverse inference. However, the adverse inference alone is not sufficient to justify the issuance of an abuse prevention order. Frizado v. Frizado, 420 Mass. at 596, 651 N.E.2d at 1210. See also Smith v. Joyce, 421 Mass. 520, 523 n.1, 658 N.E.2d 677, 680 n.1 (1995) (a judge may not issue a restraining order “simply because it seems to be a good idea or because it will not cause the defendant any real inconvenience”). The plaintiff is still permitted to call the defendant as a witness even though the defendant is able to assert the privilege against self-incrimination. S.T. v. E.M., 80 Mass. App. Ct. 423, 429, 953 N.E.2d 269, 274–275 (2011).

Fourth, “[b]ecause a G. L. c. 209A proceeding is a civil, and not a criminal, proceeding, the constitutional right to confront witnesses and to cross-examine them set forth in art. 12 of the Declaration of Rights has no application.” Frizado v. Frizado, 420 Mass. at 596 n.3, 651 N.E.2d at 1210 n.3.

Fifth, “[t]he right of the defendant to be heard includes his right to testify and to present evidence.” Frizado v. Frizado, 420 Mass. at 597, 651 N.E.2d at 1210–1211. It is not sufficient to hear from the defendant’s attorney and to deny the defendant the opportunity to present evidence. C.O. v. M.M., 442 Mass. 648, 657, 815 N.E.2d 582, 590–591 (2004). The plaintiff has a corresponding right to present evidence prior to the judge vacating any part of an abuse prevention order. S.T. v. E.M., 80 Mass. App. Ct. at 429–430, 953 N.E.2d at 275.

Sixth, with respect to cross-examination, “[t]he judge’s discretion in restricting cross-examination may not be unlimited in particular situations.” Frizado v. Frizado, 420 Mass. at 598 n.5, 651 N.E.2d at 1211 n.5. The Supreme Judicial Court cautioned against “the use of cross examination for harassment or discovery purposes. However, each side must be given a meaningful opportunity to challenge the other’s evidence.” Id. See C.O. v. M.M., 442 Mass. at 656–658, 815 N.E.2d at 589–591 (defendant’s due process rights were violated when the court refused to permit him to cross-examine witnesses or to present evidence).

Harassment Prevention Proceedings (G. L. c. 258E). The considerations set forth above regarding the conduct of a G. L. c. 209A proceeding also apply to proceedings conducted pursuant to G. L. c. 258E. See O’Brien v. Borowski, 461 Mass. 415, 961 N.E.2d 547 (2012).

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Section 1107.  Inadequate Police Investigation Evidence

Evidence that certain tests were not conducted, that certain police procedures were not followed, or that certain information known to the police about another suspect was not investigated, in circumstances in which it was reasonable to expect that the police should have conducted such tests, followed such procedures, or investigated such information, is admissible.

NOTE

This section is derived from Commonwealth v. Bowden, 379 Mass. 472, 486, 399 N.E.2d 482, 491 (1980), and cases cited. See Commonwealth v. Silva-‌Santiago, 453 Mass. 782, 801, 906 N.E.2d 299, 314 (2009) (“[T]he inference that may be drawn from an inadequate police investigation is that the evidence at trial may be inadequate or unreliable because the police failed to conduct the scientific tests or to pursue leads that a reasonable police investigation would have conducted or investigated, and these tests or investigation reasonably may have led to significant evidence of the defendant’s guilt or innocence.”); Commonwealth v. Phinney, 446 Mass. 155, 165, 843 N.E.2d 1024, 1033 (2006) (“Defendants have the right to base their defense on the failure of police adequately to investigate a murder in order to raise the issue of reasonable doubt as to the defendant’s guilt . . . .”). See also Commonwealth v. Mattei, 455 Mass. 840, 857–860, 920 N.E.2d 845, 859–862 (2010) (in a prosecution for attempted rape in which the defendant, a convict on work release, sought to demonstrate misidentification based on an inadequate police investigation because the police did not investigate three other Housing Authority employees who were on duty at the time who had criminal histories, it was error to refuse to permit the defense to question the police about their knowledge of the criminal histories of these employees).

The admission of Bowden evidence does not require the trial judge to give a special instruction to the jury. Instead, the judge is simply required not to take the issue of the adequacy of the police investigation away from the jury. See Commonwealth v. Williams, 439 Mass. 678, 687, 790 N.E.2d 662, 669 (2003).

The Bowden defense “is a two-edged sword for the defendant, because it opens the door for the Commonwealth to offer evidence explaining why the police did not follow the line of investigation suggested by the defense” (citations omitted). Commonwealth v. Silva-Santiago, 453 Mass. at 803 n.25, 906 N.E.2d at 315 n.25. “[T]he more wide-ranging the defendant’s attack on the police investigation, the broader the Commonwealth’s response may be.” Commonwealth v. Avila, 454 Mass. 744, 754–755, 912 N.E.2d 1014, 1024 (2009) (“Here, the Bowden claim was an expansive one, calling into question police competence and judgment about both the leads that were not pursued and those that were. In response, the Commonwealth was entitled to elicit testimony about why the investigators chose the particular investigative path they did . . . .”).

Under a Bowden defense, information regarding a third-party culprit whose existence was known to the police but whose potential involvement was never investigated may be admissible to prove that the police knew of the possible suspect and failed to take reasonable steps to investigate the suspect. This information is not hearsay because it is not offered to show the truth of the matter asserted, but simply to show that the information was provided to the police. Therefore, it need not meet the standard set to admit hearsay evidence regarding a third-party culprit, including the substantial connecting links. See Commonwealth v. Reynolds, 429 Mass. 388, 391–392, 708 N.E.2d 658, 662 (1999) (police detective could testify to what confidential informants had told him about suspect’s motive and opportunity to kill the victim, despite the confidential informants’ potential lack of firsthand knowledge). There is a lessened risk of prejudice to the Commonwealth from the admission of evidence of a Bowden defense because the police are able to explain what they did to determine that the suspect was not guilty of the crime. See Id. at 391 n.1, 708 N.E.2d at 662 n.1. In contrast to the third-party culprit defense, where evidence may be admitted regardless of whether the police knew of the suspect, third-party culprit information is admissible under a Bowden defense only if the police had learned of it during the investigation and failed to reasonably act on the information. Commonwealth v. Silva-Santiago, 453 Mass. at 802–803, 906 N.E.2d at 315. The judge would first need to conduct a voir dire hearing to determine whether the third-party culprit information had been furnished to the police, and whether the probative weight of the Bowden evidence exceeded the risk of unfair prejudice to the Commonwealth from diverting the jury’s attention to collateral matters. Id. at 803, 906 N.E.2d at 315.

Cross-Reference: Section 1105, Third-Party Culprit Evidence .

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

(a) Filing and Service of the Motion.

(1) Whenever in a criminal case a party seeks to summons books, papers, documents, or other objects (records) from any nonparty individual or entity prior to trial, the party shall file a motion pursuant to Mass. R. Crim. P. 17(a)(2), stating the name and address of the custodian of the records (record holder) and the name, if any, of the person who is the subject of the records (third-party subject), for example, a complainant, and describing, as precisely as possible, the records sought. The motion shall be accompanied by an affidavit as required by Mass. R. Crim. P. 13(a)(2) and Commonwealth v. Lampron, 441 Mass. 265, 806 N.E.2d 72 (2004) (Lampron).

(2) The moving party shall serve the motion and affidavit on all parties.

(3) The Commonwealth shall forward copies of the motion and affidavit to the record holder and (where applicable) to the third-‌party subject, and notify them of the date and place of the hearing on the motion. The Commonwealth shall also inform the record holder and third-party subject that (i) the Lampron hearing shall proceed even if either of them is absent; (ii) the hearing shall be the third-party subject’s only opportunity to address the court; (iii) any statutory privilege applicable to the records sought shall remain in effect unless and until the third-party subject affirmatively waives any such privilege, and that failure to attend the hearing shall not constitute a waiver of any such privilege; and (iv) if the third-party subject is the victim in the case, he or she has the opportunity to confer with the prosecutor prior to the hearing.

(b) The Lampron Hearing and Findings.

(1) A party moving to summons documents pursuant to Mass. R. Crim. P. 17(a)(2) prior to trial must establish good cause by show­ing (i) that the documents are evidentiary and relevant; (ii) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (iii) that the party cannot properly prepare for trial without such production and inspection in advance of trial, and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (iv) that the application is made in good faith and is not intended as a general fishing expedition.

(2) At the Lampron hearing, the judge shall hear from all parties, the record holder, and the third-party subject, if present. The record holder and third-party subject shall be heard on whether the records sought are relevant or statutorily privileged.

(3) Following the Lampron hearing, and in the absence of having reviewed the records, the judge shall make oral or written findings with respect to the records sought from each record holder indicating (i) that the party seeking the records has or has not satisfied the requirements of Mass. R. Crim. P. 17(a)(2), and (ii) that the records sought are or are not presumptively privileged. A judge’s determination that any records sought are presumptively privileged shall not be appealable as an interlocutory matter and shall carry no weight in any subsequent challenge that a record is in fact not privileged.

(c) Summons and Notice to Record Holder.

(1) If all Mass. R. Crim. P. 17(a)(2) requirements have been met and there has been a finding that the records sought are not presumptively privileged or the third-party subject has waived all applicable statutory privileges, the judge shall order a summons to issue directing the record holder to produce all responsive records to the applicable clerk of the court on the return date stated in the summons. The clerk shall maintain the records in a location separate from the court file, and the records shall be made available for inspection by counsel, as provided in Subsection (d)(1) below. The records shall not be made available for public inspection unless and until any record is filed in connection with a proceeding in the case or introduced in evidence at the trial.

(2) Where a judge has determined that some or all of the requested records are presumptively privileged, the summons shall so inform the record holder and shall order the record holder to produce such records to the clerk of the court in a sealed envelope or box marked “PRIVILEGED,” with the name of the record holder, the case name and docket number, and the return date specified on the summons. The clerk shall maintain the records in a location separate from the court file, clearly designated “presumptively privileged records,” and the records shall not be available for inspection except by counsel as provided in Subsection (d)(2). The records shall not be made available for public inspection unless and until any record is introduced in evidence at trial.

(d) Inspection of Records.

(1) Nonpresumptively Privileged Records. The clerk of court shall permit counsel who obtained the summons to inspect and copy all records that are not presumptively privileged. When the defendant is the moving party, the Commonwealth’s ability to inspect or copy the records is within a judge’s discretion.

(2) Presumptively Privileged Records.

(A) The clerk of court shall permit only defense counsel who obtained the summons to inspect the records, and only on counsel’s signing and filing a protective order in a form approved by the court. The protective order shall provide that any violation of its terms and conditions shall be reported to the Board of Bar Overseers by anyone aware of such violation.

(B) [The Supreme Judicial Court has not reached the issue of whether the procedures governing defense counsel’s review of presumptively privileged records also apply to the Commonwealth.]

(e) Challenge to Privilege Designation.

(1) If, on inspection of the records, defense counsel believes that any record or portion thereof is in fact not privileged, then in lieu of or in addition to a motion to disclose or introduce at trial (see Sub­sections (f) and (g) below), counsel may file a motion to release specified records or portions thereof from the terms of the protective order.

(2) Defense counsel shall provide notice of the motion to all parties. Prior to the hearing, counsel for the Commonwealth shall be permitted to review such records in order to respond to the motion, subject to signing and filing a protective order as provided in Sub­section (d)(2) above.

(3) If a judge determines that any record or portion thereof is not privileged, the record shall be released from the terms of the protective order and may be inspected and copied as provided in Sub­section (d)(1) above.

(f) Disclosure of Presumptively Privileged Records.

(1) If defense counsel who obtained the summons believes that the copying or disclosure of some or all of any presumptively privileged record to other persons (for example, the defendant, an investigator, an expert) is necessary to prepare the case for trial, counsel shall file a motion to modify the protective order to permit copying or disclosure of particular records to specifically named individuals. The motion shall be accompanied by an affidavit explaining with specificity the reason why copying or disclosure is necessary; the motion and the affidavit shall not disclose the content of any presumptively privileged record. Counsel shall provide notice of the motion to all parties.

(2) Following a hearing, and in camera inspection of the records by the judge where necessary, a judge may allow the motion only on making oral or written findings that the copying or disclosure is necessary for the defendant to prepare adequately for trial. The judge shall consider alternatives to full disclosure, including agreed to stipulations or disclosure of redacted portions of the records. Before disclosure is made to any person specifically authorized by the judge, that person shall sign a copy of the court order authorizing disclosure. This court order shall clearly state that a violation of its terms shall be punishable as criminal contempt.

(3) All copies of any documents covered by a protective order shall be returned to the court on resolution of the case, i.e., on a change of plea or at the conclusion of any direct appeal following a trial or dismissal of the case.

(g) Use of Presumptively Privileged Records at Trial.

(1) A defendant seeking to introduce at trial some or all of any presumptively privileged record shall file a motion in limine at or before any final pretrial conference.

(2) Counsel for the Commonwealth shall be permitted to review enough of the presumptively privileged records to be able to respond adequately to the motion in limine, subject to signing and filing a protective order as provided in Subsection (d)(2) above.

(3)
The judge may allow the motion only on making oral or written findings that introduction at trial of a presumptively privileged record is necessary for the moving defendant to obtain a fair trial. Before permitting the introduction in evidence of such records, the judge shall consider alternatives to introduction, including an agreed to stipulation or introduction of redacted portions of the record.

(h) Preservation of Records for Appeal. Records produced in response to a Mass. R. Crim. P. 17(a)(2) summons shall be retained by the clerk of court until the conclusion of any direct appeal following a trial or dismissal of a case.

NOTE

Introduction. In criminal cases, pretrial discovery is limited to information and objects in the possession or control of the parties and is governed principally by Mass. R. Crim. P. 14. When a party seeks access in advance of trial to books, papers, documents, or objects (records, privileged or nonprivileged) that are in the hands of a third party, such requests are governed by Mass. R. Crim. P. 17(a)(2). Commonwealth v. Odgren, 455 Mass. 171, 186–187, 915 N.E.2d 215, 227 (2009) (both prosecutor and defense counsel must follow the procedures contained in Mass. R. Crim. P. 17 and obtain prior judicial approval to obtain access before trial to any records in the hands of a third party, whether privileged or not). See Commonwealth v. Lampron, 441 Mass. 265, 268, 806 N.E.2d 72, 76 (2004). See also Commonwealth v. Hart, 455 Mass. 230, 243, 914 N.E.2d 904, 914–915 (2009) (Mass. R. Crim. P. 17(a)(2) is the exclusive method to obtain records from a third party prior to trial). 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.

     At trial, a defendant seeking records must proceed under Mass. R. Crim. P. 17(a)(2). The Commonwealth may proceed under either Mass. R. Crim. P. 17(a)(2) or G. L. c. 277, § 68. See Commonwealth v. Hart, 455 Mass. at 243, 914 N.E.2d at 914–915 (a subpoena issued under G. L. c. 277, § 68, may only request a third party to produce records to a court on the day of the trial).

Subsection (a). This subsection is derived from Commonwealth v. Lampron, 441 Mass. 265, 268, 806 N.E.2d 72, 76 (2004). See also Commonwealth v. Odgren, 455 Mass. 171, 187, 915 N.E.2d 215, 227 (2009) (Lampron procedures apply to both prosecution and defense).

Subsection (b). This subsection is derived generally from Commonwealth v. Lampron, 441 Mass. 265, 268, 806 N.E.2d 72, 76 (2004), and Commonwealth v. Dwyer, 448 Mass. 122, 148, 859 N.E.2d 400, 420 (2006). “The Commonwealth’s inability to locate either the record holder or the third-party subject shall not delay the Lampron hearing.” Id. at 148 n.2, 859 N.E.2d at 420 n.2.

     In Commonwealth v. Lampron, 441 Mass. 265, 806 N.E.2d 72 (2004), the Supreme Judicial Court followed Federal law as enunciated in United States v. Nixon, 418 U.S. 683, 699–700 (1974), and held that a party moving to summons documents pursuant to Mass. R. Crim. P. 17(a)(2) prior to trial must establish good cause by showing the following:

“(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general ‘fishing expedition.’”

Commonwealth v. Lampron, 441 Mass. at 269, 806 N.E.2d at 76–77. Accord Commonwealth v. Mitchell, 444 Mass. 786, 792, 831 N.E.2d 890, 895 (2005) (summarizing these requirements as “relevance, admissibility, necessity, and specificity”). See Commonwealth v. Rivera, 83 Mass. App. Ct. 581, 588–589, 987 N.E.2d 597, 603–604 (2013) (judge properly denied defendant’s pretrial motion seeking access to complainant’s preabuse mental health records based only on belief that they might yield evidence concerning her credibility).

“Presumptively privileged records are those prepared in circumstances suggesting that some or all of the records sought are likely protected by a statutory privilege, for example, a record prepared by one who holds himself or herself out as a psychotherapist, see G. L. c. 233, § 20B; a social worker, see G. L. c. 112, § 135B; a sexual assault counsellor, see G. L. c. 233, § 20J; or a domestic violence victims’ counsellor, see G. L. c. 233, § 20K.”

Commonwealth v. Dwyer, 448 Mass. at 148, 859 N.E.2d at 420. Because the judge will not have viewed any of the records sought by the defendant, “the judge shall make such determination based on the identity of the record holder or record preparer (if known) and any additional information adduced at the Lampron hearing. The defendant shall have the burden of showing that records are not presumptively privileged.” Id. at 148 n.3, 859 N.E.2d at 421 n.3.

Subsection (c). This subsection is derived generally from Commonwealth v. Lampron, 441 Mass. 265, 806 N.E.2d 72 (2004), and Commonwealth v. Dwyer, 448 Mass. 122, 859 N.E.2d 400 (2006).

“Some records, although not presumptively privileged, may contain information of a personal or confidential nature, such as medical or school records. See, e.g., G. L. c. 71B, § 3 (special education records); G. L. c. 111, §§ 70, 70E (hospital records). The judge may, in his or her discretion, order such records produced subject to an appropriate protective order.” Commonwealth v. Dwyer, 448 Mass. at 149 n.5, 859 N.E.2d at 421 n.5.

Subsection (d). This subsection is derived generally from Commonwealth v. Dwyer, 448 Mass. 122, 149, 859 N.E.2d 400, 421–422 (2006). A judge may order that even nonpresumptively privileged records be subject to an appropriate protective order. Id. at 149 n.5, 859 N.E.2d at 421 n.5 (Appendix).

     “The Commonwealth may inspect or copy any records if prior consent is given by the record holder and third-party subject (where applicable).” Id. at 149 n.7, 859 N.E.2d at 421 n.7. With respect to nonpresumptively privileged records, Subsection (d)(1), a party may have production obligations pursuant to Mass. R. Crim. P. 14 or other pretrial agreements. See Commonwealth v. Mitchell, 444 Mass. 786, 800, 831 N.E.2d 890, 900 (2005).

Subsection (e). This subsection is taken nearly verbatim from Commonwealth v. Dwyer, 448 Mass. 122, 149–150, 859 N.E.2d 400, 422 (2006).

Subsection (f). This subsection is taken nearly verbatim from Commonwealth v. Dwyer, 448 Mass. 122, 150, 859 N.E.2d 400, 422 (2006).

Subsection (g). This subsection is taken nearly verbatim from Commonwealth v. Dwyer, 448 Mass. 122, 150, 859 N.E.2d 400, 422–423 (2006).

Subsection (h). This subsection is taken nearly verbatim from Commonwealth v. Dwyer, 448 Mass. 122, 150, 859 N.E.2d 400, 423 (2006).

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Section 1109.  View

(a) Availability.

(1) Upon motion in civil and criminal cases, the court has discretion to allow the jury, accompanied by the judge, or, in a matter tried without a jury, the judge to take a view of the premises or place in question or any property matter or thing relative to the case.

(2) In a limited class of civil cases, a party has the right, upon request, to a view.

(b) Conduct. Counsel may point out the essential features of the place or thing that is the subject of the view, but no comment or discussion is permitted. No witnesses are heard. Jurors are not permitted to ask questions.

(c) Status. Observations made by the jury or by the judge on a view may be used by the finder of fact in making a decision.

(d) Costs. In a civil case, the expenses of taking a view shall be paid by the party who makes the motion or in accordance with an agreement between or among some or all of the parties, and may be taxed as costs if the party or parties who advanced them prevails. In a criminal case, the expenses of taking a view shall be paid by the Commonwealth.

NOTE

Subsection (a)(1). This subsection is derived from Commonwealth v. Gedzium, 259 Mass. 453, 462, 156 N.E. 890, 893 (1927); Madden v. Boston Elevated Ry. Co., 284 Mass. 490, 493–494, 188 N.E. 234, 236 (1933); Commonwealth v. Gomes, 459 Mass. 194, 201–202, 944 N.E.2d 1007, 1013–1014 (2011); and G. L. c. 234, § 35. In the administrative context, the judge or fact finder also may have the right to conduct a view. See, e.g., G. L. c. 152, § 2 (Authority of the Division of Industrial Accidents to “make all necessary inspections and investigations relating to causes of injuries for which compensation may be claimed . . . .”).

Ordinarily a view is taken after the jury is sworn but before the evidence is taken. However, the court has discretion to take a view after the evidence begins and at any time during the trial. See Yore v. City of Newton, 194 Mass. 250, 253, 80 N.E. 472, 472 (1907) (court permitted jury to take a view after deliberations had begun).

The court may exercise its discretion to deny a motion for a view when visiting a particular location would not fairly represent the way it appeared or the conditions that existed at the time of the events that are the subject of the trial. See Commonwealth v. Cataldo, 423 Mass. 318, 327 n.8, 668 N.E.2d 762, 767 n.8 (1996). However, even though the appearance of premises or a thing has changed, if the premises or thing in its altered condition would be helpful to the jury in understanding the evidence the court has discretion to permit a view. See Commonwealth v. Welansky, 316 Mass. 383, 401–402, 55 N.E.2d 902, 912 (1944) (there was no error in permitting the jury to take a view of a nightclub after a fire had severely damaged it and caused the death of numerous persons who were trapped inside). The court may deny a motion for a view because it will not contribute to the jury’s understanding of the evidence at trial. See Commonwealth v. Cambell, 378 Mass. 680, 704–705, 393 N.E.2d 820, 835, cert. denied, 488 U.S. 847 (1979).

Subsection (a)(2). This subsection is derived from G. L. c. 80, § 9 (betterment assessments); G. L. c. 79, § 22 (eminent domain); and G. L. c. 253, § 7 (mill flowage).

Subsection (b). This subsection is derived from Commonwealth v. Dascalakis, 246 Mass. 12, 29–30, 140 N.E. 470, 477–478 (1923). “Generally, an impropriety occurring on a view may be cured by cautionary instructions.” Commonwealth v. Cresta, 3 Mass. App. Ct. 560, 562, 336 N.E.2d 910, 913 (1975), citing Commonwealth v. Madeiros, 255 Mass. 304, 313, 151 N.E. 297, 299 (1926).

Neither the State nor the Federal Constitution gives the defendant in a criminal case a right to be present at a view. If a view is taken in a criminal case, it is within the judge’s discretion to allow the defendant to be present. Commonwealth v. Morganti, 455 Mass. 388, 402–403, 917 N.E.2d 191, 204 (2009) (“We have held repeatedly that a defendant does not have a right to be present during a jury view under either the Sixth or the Fourteenth Amendment to the United States Constitution or art. 12 of the Massachusetts Declaration of Rights” [citation and quotations omitted].). See also Commonwealth v. Mack, 423 Mass. 288, 291, 667 N.E.2d 867, 869 (1996) (“The judge gave the defendant the option of attending the jury’s view of the crime scene if the defendant was in a police car and some distance away from the jury. After consultation with trial counsel, the defendant decided not to participate in the view.”); Commonwealth v. Gagliardi, 29 Mass. App. Ct. 225, 237, 559 N.E.2d 1234, 1243 (1990) (“[A] defendant should not assume that the judge will permit his attendance and show up without prior permission. A defendant is not entitled of right to confer with his counsel during a view.”).

Subsection (c). This subsection is derived from Commonwealth v. Curry, 368 Mass. 195, 330 N.E.2d 819 (1975), where the Supreme Judicial Court stated that

“[t]he chief purpose (of a view) is to enable the jury to understand better the testimony which has or may be introduced. The function of the jury . . . is simply to observe. Although what is seen on the view may be used by the jury in reaching their verdict, in a strict and narrow sense a view may be thought not to be evidence.” (Citations omitted.)

Id. at 197–198, 330 N.E.2d at 821. See also Berlandi v. Commonwealth, 314 Mass. 424, 451, 50 N.E.2d 210, 226 (1943) (“A view is not technically evidence and subject to all the principles applicable to evidence . . . [but] it inevitably has the effect of evidence” [citations and quotation omitted].); Commonwealth v. Perryman, 55 Mass. App. Ct. 187, 193–194 n.1, 770 N.E.2d 1, 6 n.1 (2002) (a view is analogous to a courtroom demonstration or the use of a chalk; observations made on a view can be used “to illustrate testimony and assist the jury in weighing the evidence they hear” so long as the conditions are similar to the circumstances of the matter to be proved).

Subsection (d). This subsection is derived from G. L. c. 234, § 35.

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Section 1110.  Consciousness of Guilt or Liability

(a) Criminal Cases. In a criminal case, the Commonwealth may offer evidence of a defendant’s conduct that occurred subsequent to the commission of the crime if

(1) the evidence reflects a state of consciousness of guilt;

(2) the evidence supports the inference that the defendant committed the act charged;

(3) the evidence is, with other evidence, together with reasonable inferences, sufficient to prove guilt; and

(4) the inflammatory nature of the conduct does not substantially outweigh its probative value.

Evidence of consciousness of guilt alone is not sufficient to support a verdict or finding of guilt. The judge should instruct the jury accordingly.

(b) Civil Cases. Subject to Sections 407–411, in a civil case, a party may offer evidence of another party’s conduct that occurred subsequent to the commission of the alleged act or acts that give rise to the cause of action if the evidence

(1) reflects a state of consciousness of liability of that party;

(2) supports the inference that the party against whom the evidence is offered is liable; and

(3) is, with other evidence, together with reasonable inferences, sufficient to prove liability.

Evidence of consciousness of liability alone cannot sustain the burden to establish liability. The judge should instruct the jury accordingly.

(c) Rebuttal. The party against whom the evidence is offered has the right to offer evidence explaining the reason or reasons for the conduct to negate any adverse inference.

NOTE

Subsection (a). This subsection is derived from Commonwealth v. Vick, 454 Mass. 418, 423, 910 N.E.2d 339, 347 (2009), and Commonwealth v. Toney, 385 Mass. 575, 584–585 & n.4, 433 N.E.2d 425, 431–432 & n.4 (1982). Where self-defense is an issue and the defendant objects to an instruction on consciousness of guilt, the trial judge should first consider whether to instruct on flight as evidence of consciousness of guilt. If the instruction is given, the judge should focus first on possible innocent reasons for flight, and that the conduct does not necessarily reflect feelings of guilt, but may be consistent with self-defense. Commonwealth v. Morris, 465 Mass. 733, 738–739, 991 N.E.2d 1081, 1084–1085 (2013). The Commonwealth may properly argue consciousness of guilt even if a jury instruction is not requested or not given. Commonwealth v. Franklin, 465 Mass. 895, 915, 992 N.E.2d 319, 335 (2013). Compare Section 1111, Missing Witness.

     Illustrations. The following conduct may be offered as evidence of consciousness of guilt:

–   flight itself, regardless of whether the police were actively searching for the defendant, Commonwealth v. Figueroa, 451 Mass. 566, 579, 887 N.E.2d 1040, 1050 (2008);

–   flight after discovery by the party that he or she was about to be arrested or charged with an offense, Commonwealth v. Jackson, 391 Mass. 749, 758, 464 N.E.2d 946, 952 (1984);

–   flight from a defendant’s “usual environs,” Commonwealth v. Siny Van Tran, 460 Mass. 535, 553, 953 N.E.2d 139, 157 (2011);

–   an intentionally false statement made before or after arrest, Commonwealth v. Lavalley, 410 Mass. 641, 649–650, 574 N.E.2d 1000, 1006 (1991);

–   use of a false name to conceal his or her identity, Commonwealth v. Vick, 454 Mass. 418, 424, 910 N.E.2d 339, 347 (2009); Commonwealth v. Carrion, 407 Mass. 263, 276, 552 N.E.2d 558, 566 (1990);

–   intentional attempts to intimidate, coerce, threaten, or bribe a witness, Commonwealth v. Vick, 454 Mass. at 423, 910 N.E.2d at 347; Commonwealth v. Toney, 385 Mass. 575, 584 n.4, 433 N.E.2d 425, 431 n.4 (1982);

–   alteration of a defendant’s appearance after a crime to conceal physical characteristics, Commonwealth v. Carrion, 407 Mass. at 277, 552 N.E.2d at 567; or

–   an intentional attempt to conceal, destroy, or falsify evidence, Commonwealth v. Stuckich, 450 Mass. 449, 453, 879 N.E.2d 105, 110 (2008).

The following conduct should not be admitted as evidence of conscious­ness of guilt:

–   flight, where the issue is misidentification and there is no dispute that the person who fled the scene committed the offense, Commonwealth v. Pina, 430 Mass. 266, 272–273, 717 N.E.2d 1005, 1011 (1999);

–   evidence that the defendant lied during trial testimony, Commonwealth v. Edgerly, 390 Mass. 103, 110, 453 N.E.2d 1211, 1216 (1983) (disfavoring such evidence; “[c]omment to a jury on the con­sequences of a criminal defendant’s lying in the course of his testimony must be made with care, and customarily should be avoided because it places undue emphasis on only one aspect of the evidence”);

–   a defendant’s failure to appear at trial, except where the Commonwealth can show the defendant had knowledge of the scheduled date, Commonwealth v. Hightower, 400 Mass. 267, 269, 508 N.E.2d 850, 852 (1987); Commonwealth v. Addy, 79 Mass. App. Ct. 835, 841, 950 N.E.2d 883, 889 (2011); cf. Commonwealth v. Muckle, 59 Mass. App. Ct. 631, 639–640, 797 N.E.2d 456, 463–‌464 (2003) (where defendant is defaulted midtrial, judge should conduct voir dire to determine if Commonwealth can show requisite foundation); or

–   the denial or failure to deny guilt during a police interrogation, Commonwealth v. Diaz, 453 Mass. 266, 273–274, 901 N.E.2d 670, 678 (2009); Commonwealth v. Haas, 373 Mass. 545, 558–562, 369 N.E.2d 692, 702–703 (1977).

     In a charge of murder, consciousness of guilt “is rarely relevant to the issue of premeditation,” Commonwealth v. Dagenais, 437 Mass. 832, 843–844, 776 N.E.2d 1010, 1019 (2002), and it should not be used as proof that a homicide was murder rather than manslaughter. See Commonwealth v. Clemente, 452 Mass. 295, 334, 893 N.E.2d 19, 51 (2008); Commonwealth v. Lowe, 391 Mass. 97, 108 n.6, 461 N.E.2d 192, 199 n.6 (1984); Commonwealth v. Niland, 45 Mass. App. Ct. 526, 529, 699 N.E.2d 1236, 1239 (1998).

     Jury Instruction on Evidence of Consciousness of Guilt. If evidence of consciousness of guilt is admitted, the court should instruct the jury (1) that they are not to convict the defendant on the basis of the offered evidence alone, and (2) that they may, but need not, consider such evidence as one of the factors tending to prove the guilt of the defendant. Upon request, the jury must be further instructed (1) that the conduct does not necessarily reflect feelings of guilt, since there are numerous reasons why an innocent person might engage in the conduct alleged, and (2) that even if the conduct demonstrates feelings of guilt, it does not necessarily mean that the defendant is guilty in fact, because guilty feelings are sometimes present in innocent people. See Commonwealth v. Toney, 385 Mass. 575, 584–585, 433 N.E.2d 425, 431–432 (1982); Commonwealth v. Estrada, 25 Mass. App. Ct. 907, 908, 514 N.E.2d 1099, 1100 (1987). See also Commonwealth v. Vick, 454 Mass. 418, 424, 910 N.E.2d 339, 347 (2009).

     Evidence of Consciousness of Innocence. “Consciousness of innocence is a subject properly left to the give and take of argument, without jury instructions.” Commonwealth v. Lam, 420 Mass. 615, 619–620, 650 N.E.2d 796, 799 (1995). In some instances, however, such evidence is not admissible. See Commonwealth v. Martinez, 437 Mass. 84, 88, 769 N.E.2d 273, 278 (2002) (offer to submit to polygraph inadmissible).

     Cross-Reference: Section 410, Inadmissibility of Pleas, Offers of Pleas, and Related Statements; Section 1102, Spoliation or Destruction of Evidence.

Subsection (b). This subsection is derived from Sheehan v. Goriansky, 317 Mass. 10, 16–17, 56 N.E.2d 883, 886 (1944), and City of Boston v. Santosuosso, 307 Mass. 302, 349, 30 N.E.2d 278, 304 (1940). Evidence of conscious­ness of liability alone cannot sustain the burden to establish liability. Olofson v. Kilgallon, 362 Mass. 803, 806, 291 N.E.2d 600, 602–603 (1973); Miles v. Caples, 362 Mass. 107, 114, 284 N.E.2d 231, 236 (1972).

     Illustrations. The following conduct may be offered as evidence of consciousness of liability:

–   providing false or inconsistent statements, McNamara v. Honeyman, 406 Mass. 43, 54 n.10, 546 N.E.2d 139, 146 n.10 (1989);

–   leaving the scene of an accident without identifying himself or herself, Olofson v. Kilgallon, 362 Mass. 803, 806, 291 N.E.2d 600, 602–603 (1973);

–   providing a false name or statement to police, Parsons v. Ryan, 340 Mass. 245, 248, 163 N.E.2d 293, 295 (1960);

–   providing intentionally false testimony, Sheehan v. Goriansky, 317 Mass. 10, 16–17, 56 N.E.2d 883, 886 (1944);

–   transferring property immediately prior to the beginning of litigation, Credit Serv. Corp. v. Barker, 308 Mass. 476, 481, 33 N.E.2d 293, 295 (1941);

–   suborning a witness to provide false testimony, bribing a juror, or suppressing evidence, Bennett v. Susser, 191 Mass. 329, 331, 77 N.E. 884, 885 (1906); or

–   destroying potential evidence, Gath v. M/A-Com, Inc., 440 Mass. 482, 489–491, 802 N.E.2d 521, 528–529 (2003).

Cross-Reference: Section 407, Subsequent Remedial Measures; Section 408, Compromise and Offers to Compromise in Civil Cases; Section 409, Expressions of Sympathy in Civil Cases; Payment of Medical and Similar Expenses; Section 410, Inadmissibility of Pleas, Offers of Pleas, and Related Statements; Section 411, Insurance; Section 1102, Spoliation or Destruction of Evidence.

     Jury Instruction on Evidence of Consciousness of Liability. Upon request, the judge should instruct the jury that they may, but are not required to, draw an inference; that any such inference must be reasonable in light of all the circumstances; that the weight of the evidence is for the jury to decide; that there may be innocent explanations for the conduct; and that the conduct does not necessarily reflect feelings of liability or responsibility. See Commonwealth v. Toney, 385 Mass. 575, 584–585, 433 N.E.2d 425, 432 (1982) (it was for jury to decide which explanation for defendant’s departure from scene was most credible). See also Sheehan v. Goriansky, 317 Mass. 10, 16–17, 56 N.E.2d 883, 886 (1944) (whether evidence of defendant’s conduct indicated consciousness of liability was for jury to decide); Hall v. Shain, 291 Mass. 506, 512, 197 N.E. 437, 440 (1935) (jury to decide whether driver’s failure to contact police after accident was because of consciousness of liability).

Subsection (c). This subsection is derived from Commonwealth v. Chase, 26 Mass. App. Ct. 578, 580–581, 530 N.E.2d 185, 187–188 (1988), and Commonwealth v. Kerrigan, 345 Mass. 508, 513, 188 N.E.2d 484, 487 (1963).

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Section 1111.   Missing Witness

(a) Argument by Counsel. Counsel is not permitted to make a missing-‌witness argument without first obtaining judicial approval; if approval is granted, the court must give a missing witness instruction.

(b) Jury Instruction. The court may instruct the jury that an adverse inference may be drawn from a party’s failure to call a witness when

(1) the witness is shown to be available;

(2) the witness is friendly, or at least not hostile, to the party;

(3) the witness is expected to give noncumulative testimony of dis­tinct importance to the case; and

(4) there is no logical or tactical explanation for the failure to call the witness.

NOTE

Subsection (a). This subsection is derived from Commonwealth v. Pena, 455 Mass. 1, 16–17, 913 N.E.2d 815, 828 (2009); Commonwealth v. Saletino, 449 Mass. 657, 670, 871 N.E.2d 455, 466 (2007); and Commonwealth v. Ortiz, 61 Mass. App. Ct. 468, 471, 811 N.E.2d 518, 521–522 (2004). See Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 640, 751 N.E.2d 848, 861 (2001) (same principles apply in civil cases). The missing witness argument and the missing witness instruction are interrelated. The preferred practice is for counsel and the court to discuss the matter of a missing witness argument before the closing arguments. See Commonwealth v. Williams, 450 Mass. 894, 907, 882 N.E.2d 850, 861 (2008). If the trial judge decides not to give the instruction, counsel is not permitted to make the argument. Commonwealth v. Saletino, 449 Mass. at 670–672, 871 N.E.2d at 466–468.

In Commonwealth v. Saletino, 449 Mass. 657, 871 N.E.2d 455 (2007), the Supreme Judicial Court explained the critical distinction between argument by counsel that the evidence is insufficient, and the missing witness argument:

“A defendant has wide latitude in every case to argue that the Commonwealth has failed to present sufficient evidence and, in this sense, that there is an ‘absence’ of proof or that evidence is ‘missing.’ That is distinctly different from a missing witness argument, however. In the former, the defendant argues that the evidence that has been produced is inadequate; the defendant may even legitimately point out that a specific witness or specific evidence has not been produced; but the defendant does not argue or ask the jury to draw any conclusions as to the substance of the evidence that has not been produced. In the latter, the defendant points an accusatory finger at the Commonwealth for not producing the missing witness and urges the jury to conclude affirmatively that the missing evidence would have been unfavorable to the Commonwealth. That is the essence of the adverse inference.”

Id. at 672, 871 N.E.2d at 467–468. Accord Commonwealth v. Pena, 455 Mass. at 17, 913 N.E.2d at 828.

Subsection (b). This subsection is derived from Commonwealth v. Saletino, 449 Mass. 657, 668, 871 N.E.2d 455, 464 (2007), and Commonwealth v. Anderson, 411 Mass. 279, 280 n.1, 581 N.E.2d 1296, 1297 n.1 (1991). See also Commonwealth v. Franklin, 366 Mass. 284, 292–295, 318 N.E.2d 469, 474–477 (1974). The instruction permits the jury, “if they think reasonable in the circumstances, [to] infer that the person, had he been called, would have given testimony unfavorable to the party.” Id.

Whether to allow argument and give a missing witness instruction is within the discretion of the trial judge, even when the foundation requirements are met. Commonwealth v. Thomas, 429 Mass. 146, 151, 706 N.E.2d 669, 673 (1999). It is a highly fact-specific decision, and it cannot be insisted on as a matter of right. Id. “Because the inference, when it is made, can have a seriously adverse effect on the noncalling party—suggesting, as it does, that the party has willfully attempted to withhold or conceal significant evidence—it should be invited only in clear cases, and with caution.” Commonwealth v. Williams, 450 Mass. 894, 900–901, 882 N.E.2d 850, 856 (2008), quoting Commonwealth v. Schatvet, 23 Mass. App. Ct. 130, 134, 499 N.E.2d 1208, 1211 (1986). If the instruction is given, the court must take care not to negate its effect by instructing the jury not to consider anything beyond the evidence actually introduced at trial. See Commonwealth v. Remedor, 52 Mass. App. Ct. 694, 701, 756 N.E.2d 606, 612 (2001).

Foundation for the Instruction. In Commonwealth v. Broomhead, 67 Mass. App. Ct. 547, 855 N.E.2d 413 (2006), the court stated as follows:

“In order to determine whether there has been a sufficient foundation for a missing witness instruction, we look at (1) whether the case against the defendant is [so strong that,] faced with the evidence, the defendant would be likely to call the missing witness if innocent; (2) whether the evidence to be given by the missing witness is important, central to the case, or just collateral or cumulative; (3) whether the party who fails to call the witness has superior knowledge of the whereabouts of the witness; and (4) whether the party has a ‘plausible reason’ for not producing the witness.”

Id. at 552, 855 N.E.2d at 418, quoting Commonwealth v. Alves, 50 Mass. App. Ct. 796, 802, 741 N.E.2d 473, 480 (2001). Even where the foundational requirements are met, the judge has discretion to decline to give the instruction and refuse to permit the argument if the judge finds that an adverse inference is not warranted. Commonwealth v. Pena, 455 Mass. 1, 17 n.15, 913 N.E. 2d 815, 828 n.15 (2009).

Is the “Missing Witness” Available? Availability is “the likelihood that the party against whom the inference is to be drawn would be able to procure the missing witness’[s] physical presence in court.” Commonwealth v. Happnie, 3 Mass. App. Ct. 193, 197, 326 N.E.2d 25, 29 (1975). Availability does not necessarily require proof of “actual physical whereabouts,” but the court will look at whether the party made reasonable efforts to produce the witness under the circumstances. Commonwealth v. Luna, 46 Mass. App. Ct. 90, 95–96 nn.3 & 6, 703 N.E.2d 740, 743–744 nn.3 & 6 (1998). Compare Commonwealth v. Smith, 49 Mass. App. Ct. 827, 830–831, 733 N.E.2d 159, 162 (2000) (basis to conclude that witnesses lived in area and no showing of impediment to obtaining their testimony), with Commonwealth v. Ortiz, 67 Mass. App. Ct. 349, 350, 853 N.E.2d 1079, 1087 (2006) (defendant not entitled to missing witness instruction where he failed to show that prosecutor had knowledge of witness’s whereabouts).

A missing witness instruction is not warranted where a witness is equally available to both sides. Commonwealth v. Cobb, 397 Mass. 105, 108, 489 N.E.2d 1246, 1248 (1986). For example, in Commonwealth v. Hoilett, 430 Mass. 369, 376, 719 N.E.2d 488, 494 (1999), the court ruled the instruction was not warranted because both sides had the same contact information for a witness who was not aligned with either side. The instruction may properly be given where the missing witness is more friendly to one side than the other, even if the witness was available to the party requesting the instruction. See Commonwealth v. Thomas, 429 Mass. 146, 151–152, 706 N.E.2d 669, 674 (1999). See also Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 641, 751 N.E.2d 848, 862 (2001) (defendant corporation’s vice president not absent where plaintiff could have subpoenaed him to testify).

Is the “Missing Witness” Friendly, or At Least Not Hostile, to the Party? “The jury should ordinarily be instructed not to draw inferences from the neglect of a defendant to call witnesses, unless it appears to be within his power to call others than himself, and unless the evidence against him is so strong that, if innocent, he would be expected to call them.” Commonwealth v. Finnerty, 148 Mass. 162, 167, 19 N.E. 215, 217–218 (1889). See Commonwealth v. Rollins, 441 Mass. 114, 118–119, 803 N.E.2d 1256, 1259–1260 (2004); Commonwealth v. Thomas, 429 Mass. 146, 152, 706 N.E.2d 669, 674 (1999). See also Grady v. Collins Transp. Co., 341 Mass. 502, 509, 170 N.E.2d 725, 729 (1960) (“The plaintiff’s testimony was uncorroborated and was opposed by that of three witnesses, which, if accepted, showed his admitted fault to be the cause of the accident. The names of the plaintiff’s companions had been given to his counsel. There was very substantial likelihood that, notwithstanding the nine year interval, one or more of them lived in Worcester or near by.”).

Would the “Missing Witness” Give Noncumulative Testimony of Importance? A missing witness instruction is warranted where the witness would be expected to give testimony “of distinct importance to the case.” Commonwealth v. Schatvet, 23 Mass. App. Ct. 130, 134, 499 N.E.2d 1208, 1210 (1986). In determining the potential importance of the missing witness’s testimony, the court may consider whether the case against the party is so strong that the party would be likely to call the missing witness to rebut it. Commonwealth v. Broomhead, 67 Mass. App. Ct. 547, 552, 855 N.E.2d 413, 418 (2006). See Commonwealth v. Rollins, 441 Mass. at 119, 803 N.E.2d at 1260 (proper to give missing witness instruction where defendant failed to call “good friend” who was with him at time of his arrest for OUI); Commonwealth v. Caldwell, 36 Mass. App. Ct. 570, 581–582, 634 N.E.2d 124, 131 (1994) (defendant failed to call as alibi witness a cousin who supposedly let him into apartment at time of charged attack). Compare Commonwealth v. Graves, 35 Mass. App. Ct. 76, 81, 616 N.E.2d 817, 822 (1993) (failure to call alibi witness who was “central” to defense), with Commonwealth v. Thomas, 439 Mass. 362, 370, 787 N.E.2d 1047, 1056–1057 (2003) (absent witness’s testimony would have been “merely corroborative”).

Is There an Explanation for Failure to Call a “Missing Witness”? “If the circumstances, considered by ordinary logic and experience, suggest a plausible reason for nonproduction of the witness, the jury should not be advised of the inference.” Commonwealth v. Anderson, 411 Mass. 279, 282–283, 581 N.E.2d 1296, 1298 (1991). Thus, it is not error to refuse the instruction where it appears the witness may have been withheld because of his or her prior criminal record. Commonwealth v. Saletino, 449 Mass. 657, 668–669, 871 N.E.2d 455, 465 (2007). See Commonwealth v. Figueroa, 413 Mass. 193, 197, 595 N.E.2d 779, 782 (1992) (witnesses of limited mental capacity); Commonwealth v. Ortiz, 61 Mass. App. Ct. 468, 472–473, 811 N.E.2d 518, 523 (2004) (defense counsel believed, albeit mistakenly, that witness had been subpoenaed and had failed to appear such that further efforts to compel his presence would be futile); Commonwealth v. Gagliardi, 29 Mass. App. Ct. 225, 244, 559 N.E.2d 1234, 1246 (1990) (witness was reluctant to testify because of fear of intimidation by persons related to defendant). Contrast Brownlie v. Kanzaki Specialty Papers, Inc., 44 Mass. App. Ct. 408, 420, 691 N.E.2d 953, 962 (1998) (affidavit of company official stating only that “compelling business reasons” mandated his return to Japan did not provide judge with plausible explanation for his absence).

Criminal Cases. The judge must inform the jury in a criminal case that they may not draw an adverse inference from the defendant’s failure to call a witness unless and until they find beyond a reasonable doubt that if the witness had been called he or she would have given testimony unfavorable to the defendant. Commonwealth v. Niziolek, 380 Mass. 513, 522, 404 N.E.2d 643, 648 (1980). The inference may also be applied to a situation where evidence is “missing.” See Commonwealth v. Kee, 449 Mass. 550, 558, 870 N.E.2d 57, 65–66 (2007).

Cross-Reference: Section 1102, Spoliation or Destruction of Evidence .

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Section 1112.  Eyewitness Identification

(a) Eyewitness Identification Generally. An identification by an eye­witness is generally admissible unless the identification is unnecessarily suggestive and conducive to irreparable mistaken identification.

(b) Photographic Array.

(1) Suppression of Identification. Identification based on a pretrial photographic procedure is not subject to suppression unless the procedures employed in showing the photographic array were unnecessarily suggestive and conducive to mistaken identification. In making this ruling, the trial judge should consider

(A) whether the police properly informed the party making the identification that (1) the wrongdoer may or may not be in the depicted photographs, (2) it is just as important to clear a person from suspicion as to identify a person as the wrongdoer, (3) the depicted individuals may not appear exactly as they did on the date of the incident because features such as weight and head and facial hair may change, and (4) the investigation will continue regardless of whether an identification is made;

(B) whether the party making the identification was asked to state how certain he or she is of any identification;

(C) whether the array was composed of persons who possess reasonably similar features and characteristics; and

(D) whether the array contained at least five fillers for every photograph of the suspect.

(2) Suggestive Identification. If the trial judge finds that the procedures employed in the showing of the photographic array were so unnecessarily suggestive and conducive to mistaken identity as to deny the defendant due process of law, the Commonwealth may offer evidence of the identification only if it establishes by clear and convincing evidence that the proffered identification has a source independent of the suggestive photographic array.

(3) Admissibility of Photographs. Police photographs used in an out-of-court identification may be admitted if (A) the prosecution demonstrates some need for their introduction, (B) the photographs are offered in a form that does not imply a prior criminal record, and (C) the manner of their introduction does not call attention to their source.

(c) Showup Identification. Showup identifications are generally disfavored. However, for good cause shown, the trial judge may admit evidence of such an identification if the showup was not unnecessarily or impermissibly suggestive. This determination involves an inquiry of whether the Commonwealth has shown that police had good cause to use a one-on-one identification procedure and whether police avoided any special elements of unfairness.

(d) Subsequent and In-Court Identification. If an out-of-court identification has been excluded as unnecessarily suggestive, a subsequent in-court identification may be admissible if the trial judge finds that the in-court identification is based on an independent source unrelated to the unnecessarily suggestive identification.

(e) Testimony of Third-Party Observer. If the eyewitness testifies at trial and is subject to cross-examination, a third party who observed the eyewitness’s out-of-court identification may testify about that identification (1) where the eyewitness cannot identify a defendant at trial but acknowledges having made an out-of-court identification of the defendant, or (2) where the eyewitness denies or fails to remember having made an identification. The third party’s testimony about the out-‌of-‌court identification is admissible as substantive evidence.

(f) Expert Testimony.
Expert testimony on the issue of eyewitness identification is admissible at the discretion of the trial judge.

NOTE

Introduction. The Supreme Judicial Court’s Study Group on Eyewitness Identification, appointed to offer guidance as to how the courts can most effectively deter unnecessarily suggestive identification procedures and minimize the risk of wrongful convictions, anticipates reporting to the Justices during 2013. The Study Group's recommendations pdf format of SJC Study Group on Eyewitness Evidence
and any action taken by the Justices will be available on the court’s Web site at http://www.mass.gov/courts/sjc .

Subsection (a). This subsection is derived from Commonwealth v. Silva-‌Santiago, 453 Mass. 782, 906 N.E.2d 299 (2009). The suggestiveness of an identification is a preliminary question for the trial judge. See Section 104(a), Preliminary Questions: Determinations Made by the Court. The burden of proof lies with the defendant who moves to exclude the identification evidence. Commonwealth v. Martin, 447 Mass. 274, 279, 850 N.E.2d 555, 560 (2006). In order to exclude testimony about an eyewitness identification, the defendant must show by a preponderance of the evidence that the identification is so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant of due process, Commonwealth v. Walker, 460 Mass. 590, 599, 953 N.E.2d 195, 205 (2011), or otherwise violate principles of basic fairness, Commonwealth v. Jones, 423 Mass. 99, 107–108, 666 N.E.2d 994, 999–1000 (1996). Massachusetts does not follow the Federal rule, which permits the admission of eyewitness identification that is the product of suggestiveness if the court finds that the identification is nevertheless reliable. Commonwealth v. Johnson, 420 Mass. 458, 464–465, 650 N.E.2d 1257, 1260–1262 (1995) (explicitly rejecting Federal rule set out in Manson v. Braithwaite, 432 U.S. 98 (1977), and reaffirming strict suppression rule set out in Commonwealth v. Botelho, 396 Mass. 860, 865–869, 343 N.E.2d 876, 879–‌882 (1976)).

     In considering whether identification testimony should be suppressed, the judge must examine the totality of the circumstances attending the confrontation to determine whether it was unnecessarily suggestive. Commonwealth v. Silva-Santiago, 453 Mass. at 795, 906 N.E.2d at 310. Factors to be considered in determining whether an identification is made independent of suggestiveness include (1) the extent of a witness’s opportunity to observe the defendant at the time of the crime; (2) past errors of description in identifying another person, or failing to identify the defendant; (3) the receipt of other suggestions; and (4) the lapse of time between the crime and the identification. Commonwealth v. Williams, 58 Mass. App. Ct. 139, 144 n.4, 788 N.E.2d 580, 585 n.4 (2003). It is important to allow inquiry on cross-examination to examine fully the totality of circumstances surrounding the identification. Commonwealth v. Dickerson, 372 Mass. 783, 789, 386 N.E.2d 1052, 1057 (1977). A recording of the identification procedure is not required as a condition of admissibility. Commonwealth v. Silva-Santiago, 453 Mass. at 799, 906 N.E.2d at 313.

     Where an identification is challenged as unreliable due to distance, lighting, brevity of the observation, or emotional state of the eyewitness, the question is one of the weight of the evidence and not its admissibility. Commonwealth v. Walker, 460 Mass. 590, 606–607, 953 N.E.2d 195, 210 (2011).

     Lineups. The considerations present with photographic arrays also apply to identifications resulting from lineups. Commonwealth v. Walker, 460 Mass. at 601–602, 953 N.E.2d at 206–207. Unlike mugshots, lineups do not indicate prior involvement in the criminal justice system, only that the person is in the lineup because of accusations of criminal conduct. Commonwealth v. Kachoul, 69 Mass. App. Ct. 352, 357, 868 N.E.2d 153, 157 (2007).

     Suspect Known to Witness. If the witness knows “an individual well,” traditional identification procedures such as photographic arrays, showups, and lineups are not required. Commonwealth v. Adams, 458 Mass. 766, 770–‌771, 941 N.E.2d 1127, 1131 (2011).

Subsection (b)(1). This subsection is derived from Commonwealth v. Warren, 403 Mass. 137, 139, 526 N.E.2d 250, 251 (1988). The question is whether the identification might be the product of improper suggestion made by the police. Id. In examining the so-called “systems variables” that may increase the instances of wrongful identification, the Supreme Judicial Court drew substantially on the comprehensive review and analysis of the current state of scientific research on eyewitness identification made in the State of New Jersey. Commonwealth v. Walker, 460 Mass. 590, 601, 603–604, 953 N.E.2d 195, 206, 207–208 (2011), citing Report of Special Master, State v. Henderson, No. A-8-‌08 (N.J. Sup. Ct. June 18, 2010), available at http://www‌.judiciary‌.state‌.nj‌.us/‌pressrel/HENDERSON%20FINAL%20BRIEF%20.PDF%20(00621142)‌.PDF. Citing a dispute in the empirical research, the court declined to express a preference for a sequential display over a simultaneous display. Id. at 602, 953 N.E.2d at 206–207.

Subsection (b)(1)(A). This subsection is derived from Commonwealth v. Walker, 460 Mass. 590, 600, 953 N.E.2d 195, 205–206 (2011), making mandatory the protocol adopted in Commonwealth v. Silva-Santiago, 453 Mass. 782, 797–798, 906 N.E.2d 299, 312 (2009). While the Supreme Judicial Court has not yet required a double-blind procedure where the identification procedure is conducted by a law enforcement officer who does not know the identity of the suspect, it has recognized that such a process is the better practice to eliminate the risk of conscious or unconscious suggestion. Id. at 797, 906 N.E.2d at 311–312.

Subsection (b)(1)(B). This subsection is derived from Commonwealth v. Silva-‌Santiago, 453 Mass. 782, 797–798, 906 N.E.2d 299, 312 (2009).

Subsection (b)(1)(C). This subsection is derived from Commonwealth v. Silva-Santiago, 453 Mass. 782, 795, 906 N.E.2d 299, 310–311 (2009).

Subsection (b)(1)(D). This subsection is derived from Commonwealth v. Walker, 460 Mass. 590, 602–603, 953 N.E.2d 195, 207 (2011). Unless there are exigent circumstances, the police should not show a photographic array that contains fewer than five fillers for every suspect photograph. Id. at 603–‌604, 953 N.E.2d at 207–208.

Subsection (b)(2). This subsection is derived from Commonwealth v. Warren, 403 Mass. 137, 139, 526 N.E.2d 250, 251 (1988).

Subsection (b)(3). This subsection is derived from Commonwealth v. Cruz, 445 Mass. 589, 592, 839 N.E.2d 324, 327–328 (2005).

Subsection (c). This subsection is derived from Commonwealth v. Martin, 447 Mass. 274, 279, 850 N.E.2d 555, 560 (2006). See also Commonwealth v. Amaral, 81 Mass. App. Ct. 143, 148–149, 960 N.E.2d 902, 906–908 (2012). Good cause may be based on (1) the nature of the crime and concerns for public safety, (2) the need for efficient investigation in the aftermath of a crime, and (3) the usefulness of prompt confirmation of the accuracy of information. Commonwealth v. Martinez, 67 Mass. App. Ct. 788, 792, 857 N.E.2d 1096, 1100 (2006). The availability of an alternative identification procedure does not necessarily make an identification unduly suggestive. Id. at 793, 857 N.E.2d at 1100–1101. A delay in time between the crime and the showup is one factor in determining whether the identification is inherently or unnecessarily suggestive, but such a delay does not make it per se inadmissible. Commonwealth v. Levasseur, 32 Mass. App. Ct. 629, 636, 592 N.E.2d 1350, 1355 (1990). The defendant may argue to the jury that as an alternative to a one-on-one showup, it would have been fairer to ask the witness to pick the defendant out of a group of similar individuals. Commonwealth v. Gonzalez, 28 Mass. App. Ct. 906, 908, 545 N.E.2d 1189, 1191 (1989).

Subsection (d). This subsection is derived from Commonwealth v. Johnson, 420 Mass. 458, 463, 650 N.E.2d 1257, 1260 (1995). The prosecution may introduce only an identification that is not the product of the suggestive identification. Such an identification must have an independent source, as demonstrated by clear and convincing evidence. Id. An in-court identification will be suppressed where either the physical presence of the witness in court or the witness’s basis of knowledge for the identification was procured in violation of the Fourth Amendment to the United States Constitution. Commonwealth v. Greenwood, 78 Mass. App. Ct. 611, 621, 941 N.E.2d 667, 678 (2011). An in-court identification will be suppressed even in the absence of constitutional concerns or police action if admitting the identification would violate common-‌law principles of fairness. Commonwealth v. Jones, 423 Mass. 99, 108–109, 666 N.E.2d 994, 999–1000 (1996).

     Jury Instruction. Upon request of the defendant, a judge should provide “specific guidance” to the jury through an approved identification instruction, including the possibility of an honest but mistaken identification. Commonwealth v. Franklin, 465 Mass. 895, 911, 992 N.E.2d 319, 333 (2013).

Subsection (e). This subsection is derived from Commonwealth v. Cong Duc Le, 444 Mass. 431, 441–442, 828 N.E.2d 501, 509–510 (2005). Identification testimony must be accompanied by an accusation relevant to the issue before the court or some form of exclusionary statement.

“[A]n eyewitness’s out-of-court statement identifying a defendant as the person shooting at the eyewitness’s friend is part of the context of the identification, but a statement regarding the number of shots fired, the color of the firearm, and the defendant’s behavior after the shooting goes beyond the context of the identification of the shooter” (citation omitted).

Commonwealth v. Walker, 460 Mass. 590, 608, 953 N.E.2d 195, 211 (2011). The third-party testimony of the declarant is admissible for probative purposes even if that third party was not a percipient observer of the entire identification process, including observing the declarant in the act of identifying the particular person. Commonwealth v. Raedy, 68 Mass. App. Ct. 440, 448–449 (2007). The testimony of the third-party witness who observed the out-of-court identification is governed by Section 801(d)(1)(C), Definitions: Statements Which Are Not Hearsay: Prior Statement by Witness.

Subsection (f). This subsection is derived from Commonwealth v. Bly, 448 Mass. 473, 495, 862 N.E.2d 341, 360 (2007). The judge must conclude the subject of the expert opinion is one on which the jurors need assistance, and that they will not be confused or misled by the testimony. The tests and circumstances on which the opinion rests must provide a basis for determining it is reliable. The testimony must be sufficiently tied to the facts of the case so that it will aid the jury. Commonwealth v. Santoli, 424 Mass. 837, 844, 680 N.E.2d 1116, 1120 (1997).

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