SUPREME JUDICIAL COURT
The Supreme Judicial Court recommends the use of the Massachusetts Guide to Evidence. Our recommendation of the Massachusetts Guide to Evidence is not to be interpreted as an adoption of a set of rules of evidence, nor a predictive guide to the development of the common law of evidence. The purpose of the Massachusetts Guide to Evidence is to make the law of evidence more accessible and understandable to the bench, bar, and public. We encourage all interested persons to use the Massachusetts Guide to Evidence.
Chief Justice Roderick L. Ireland
Justice Francis X. Spina
Justice Robert J. Cordy
Justice Margot Botsford
Justice Ralph D. Gants
Justice Fernande R.V. Duffly
Justice Barbara A. Lenk
In June 2006, the Justices of the Supreme Judicial Court, at the request of the Massachusetts Bar Association, the Boston Bar Association, and the Massachusetts Academy of Trial Attorneys, created the Supreme Judicial Court Advisory Committee on Massachusetts Evidence Law to prepare a Guide to the Massachusetts law of evidence. The Justices charged the Committee with the mandate “to assemble the current law in one easily usable document, along the lines of the Federal Rules of Evidence, rather than to prepare a Restatement or to propose changes in the existing law of evidence.” As Chief Justice Margaret H. Marshall stated in her March 2006 address to the Massachusetts Bar Association, “[t]he Advisory Committee will compile a Guide to Massachusetts evidence law as it currently exists, replete with case law and reporters’ notes. The Guide will make our rules of evidence more accessible to bench, bar, and the public. It will improve the understanding, teaching, and presentation of Massachusetts evidence. It will advance the delivery of justice.”
The Massachusetts Guide to Evidence organizes and states the law of evidence applied in proceedings in the courts of the Commonwealth, as set forth in the Federal and State Constitutions, General Laws, common law, and rules of court. The Committee invites comments and suggestions on the Guide.
The Guide is organized into “Sections” using the format of the Federal Rules of Evidence insofar as the Federal rules comport with Massachusetts law and practice. Some sections are different from the Federal rules. For instance, Article V of the Federal Rules of Evidence, which governs the law of privileges, contains one general section whereas the Massachusetts Guide to Evidence contains twenty-five sections detailing evidentiary privileges and disqualifications recognized in Massachusetts. Other sections, such as Section 1102, Spoliation or Destruction of Evidence, Section 1103, Sexually Dangerous Person Proceedings, and Section 1104, Witness Cooperation Agreements, have no counterpart in the Federal rules.
Each section contains a statement of the law of Massachusetts, current through December 31, 2013, and an accompanying “Note” that includes supporting authority. Some sections are based upon a single statute or decision, while other sections were derived from multiple sources. Certain sections were drafted “nearly verbatim” from a source with minimal changes, for instance, revised punctuation, gender-neutral terms, or minor reorganization, to allow the language to be stated more accurately in the context of the Massachusetts Guide to Evidence. For the practitioner’s easy reference, the Committee has included parallel citations to the North Eastern Reporter.
Many sections of the Guide use the language of the Proposed Massachusetts Rules of Evidence (1980) or the Federal Rules of Evidence. The Committee concluded that such language is preferred when it represents an accurate statement of current Massachusetts law. The Committee wishes to emphasize two points. First and foremost, in accordance with its mandate from the Supreme Judicial Court, what the Committee has written are not rules, but rather, as the title suggests, a guide to evidence based on the law as it exists today. The Committee did not attempt, nor is it authorized, to suggest modifications, adopt new rules, or predict future developments in the law. Second, the Committee has recommended to the Supreme Judicial Court that the Guide be published annually to address changes in the law and to make any other revisions as necessary. The Committee’s goal is to reflect the most accurate and clear statement of current law as possible. Ultimately, the law of evidence in Massachusetts is what is contained in the authoritative decisions of the Supreme Judicial Court and of the Appeals Court, and the statutes duly enacted by the Legislature.
Supreme Judicial Court Advisory Committee
on Massachusetts Evidence Law
INTRODUCTION TO THE 2014 EDITION
On behalf of the Supreme Judicial Court’s Advisory Committee on Massachusetts Evidence Law, we want to express our gratitude to the Flaschner Judicial Institute for its support in publishing this 2014 official edition of the Massachusetts Guide to Evidence. As a result of Flaschner’s commitment to the continuing education and professional development of the Massachusetts judiciary, for the seventh straight year, the Guide will be distributed to every trial and appellate judge in the Commonwealth.
The purpose of the Guide is “to make the law of evidence more accessible and understandable to the bench, bar, and public.” Statement by the Justices of the Supreme Judicial Court (January 2014). The value of the Guide in practice is confirmed by the fact that it has been cited as a source of authority by the Appeals Court and by the Supreme Judicial Court in both published and unpublished opinions more than 500 times since it was first published in 2008. The Guide is also frequently cited and relied upon by judges throughout the Trial Court. Ultimately, the best evidence of the Guide’s value is the frequency with which it is cited by lawyers and parties in civil, criminal, juvenile, and youthful offender cases as an authoritative expression of Massachusetts evidence law. The extraordinary consensus that exists among the members of the bench and the bar as to the Guide’s authoritativeness is a tribute to the acumen and dedication of the members of the Advisory Committee with whom we serve who labor throughout the year to understand and to concisely integrate into the fabric of the Guide developments in our common law, court rules, constitutional law, and statutes, as well as pertinent decisions of the United States Supreme Court, that sometimes bring about sweeping changes in the law of evidence and in the responsibilities of lawyers and judges.
Among the noteworthy changes in the 2014 edition of the Massachusetts Guide to Evidence are the following: (1) a new Section 103(e) recognizing the Massachusetts practice that favors the use of motions in limine, along with a detailed note derived from Commonwealth v. Spencer, 465 Mass. 32, 987 N.E.2d 205 (2013); (2) an expansion of Section 404(a)(2)(b) to reflect the additional purposes for which character evidence may be offered by the accused in a criminal case and in rebuttal by the prosecution; (3) a synopsis of important new case law concerning the scope of the attorney-client privilege under Section 502; (4) a new section dealing with the use of and relief from stipulations in both civil and criminal cases, along with a detailed note; (5) a clarification of the distinction between lay witness opinion testimony and expert witness opinion testimony in the note to Section 701 derived from Commonwealth v. Canty, 466 Mass. 535, 998 N.E.2d 322 (2013); (6) new cases addressing the evolving jurisprudence under the Sixth Amendment’s confrontation clause; and (7) in Sections 801–804, a reorganization and improved explanation of the law dealing with hearsay and its exceptions, including, in particular, a clarification of the state-of-mind exception.
One of the challenges we expect to take up this year and may address in the 2015 edition is to revise the text sections of the Guide to reflect the changes in corresponding sections of the Federal Rules of Evidence which have been rewritten, the term of art that is used is “restyled,” and became effective on December 1, 2011. The drafters of the restyled Federal rules expressly declared that the meaning of the rules was not changed, but instead that they replaced legalese with plain English and, in some cases, renumbered sections of the rules. This is the view taken by the Federal courts following the adoption of the restyled rules. See, e.g., United States v. Coppola, 671 F.3d 220, 245 n.17 (2d Cir. 2012) (the substance of the restyled Federal Rules of Evidence is the same as the previous version); United States v. Sklena, 692 F.3d 725, 730 (7th Cir. 2012) (no substantive difference between the restyled Federal Rules of Evidence and the previous version); United States v. Jean-Guerrier, 666 F.3d 1087, 1091 n.2 (8th Cir. 2012) (observing that the changes made to the Federal Rules of Evidence as part of the December 2011 restyling project were “intended to be stylistic only”). States which have adopted the Federal rules have begun to follow suit. See, e.g., State v. Navarette, 294 P.3d 435, 442 n.2 (N.M. 2013) (noting that effective June 16, 2012, New Mexico has restyled its rules of evidence to conform to the changes made in the Federal rules); In re: Rescinding and Replacing the Pennsylvania Rules of Evidence, No. 586 (Pa. Jan. 17, 2013) (order rescinding the Pennsylvania Rules of Evidence and replacing it with a restyled version modeled on the restyled Federal rules); Arizona State Hosp./Arizona Community Protection & Treatment Ctr., 297 P.3d 1003, 1009 (Ariz. Ct. App. 2013) (Arizona rules of evidence were made to conform to restyled Federal rules effective January 1, 2012).
In closing, we hope that you will take the opportunity to write to us with comments, suggestions, and even criticisms about the material contained in the Massachusetts Guide to Evidence so that we will be better informed about how to improve it and thereby make the law of evidence in Massachusetts more accessible to all.
Hon. Peter W. Agnes, Jr.
Joseph F. Stanton, Esq.
Supreme Judicial Court Advisory Committee
on Massachusetts Evidence Law
Honorable Peter W. Agnes, Jr., Appeals Court, Editor-in-Chief
Honorable David A. Lowy, Superior Court, Editor
Elizabeth N. Mulvey, Esq., Crowe & Mulvey, LLP, Editor
Joseph F. Stanton, Esq., Appeals Court, Reporter
Honorable Mark S. Coven, District Court
Professor Philip K. Hamilton, New England School of Law
Professor Mark Petit, Boston University School of Law
Pamela Lyons, Esq., Supreme Judicial Court
Tom Maxim, Esq., Appeals Court
Nadia Voronova, Esq., Appeals Court
Monica McEnrue, Esq., and Siri Nilsson, Esq.
Megan Bramhall, Nathaniel Donoghue, Kevin Gerarde, Eileen Morrison, Andrew Silverman
Over the years, many judges and lawyers, too numerous to identify, have generously contributed their time and talents to help make this Guide useful to the bench and the bar. We encourage judges and lawyers with an interest in the law of evidence to suggest improvements to the Guide.
Currency, Usage, and Terminology
Currency and usage. The Massachusetts Guide to Evidence has been updated to state the Massachusetts law of evidence as it exists through December 31, 2013. The Supreme Judicial Court Advisory Committee on Massachusetts Evidence Law has made every effort to provide accurate and informative statements of the law in the Massachusetts Guide to Evidence. Counsel and litigants are encouraged to conduct their own research for additional authorities that may be more applicable to the case or issue at hand. Importantly, given the fluidity of evidence law, all users of this Guide should perform their own research and monitor the law for the most recent modifications to and statements of the law. The Guide is not intended to constitute the rendering of legal or other professional advice, and the Guide is not a substitute for the advice of an attorney.
“Not recognized” sections. Where the Advisory Committee has noted that the Federal Rules of Evidence contain a provision on a particular subject and the Committee has not identified any Massachusetts authority that recognizes that subject, or where the Supreme Judicial Court has declined to follow the Federal rule on that subject, the topic is marked “not recognized” to await further development, if any, of the law on that topic.
“Nearly verbatim” sections. The notes to some sections state that the section’s text was derived “nearly verbatim” from a specific statute, court decision, or court rule. This phrase explains that the Advisory Committee made minor modifications to an authority’s original language to allow the language to be stated more accurately in the context of the Massachusetts Guide to Evidence. Such modifications may include revised punctuation, gender-neutral terms, minor reorganization, and the use of numerals instead of spelling numerals.
Discretion. The term “discretion” appears numerous times in the text and the notes throughout this Guide. Unless the context requires a different meaning, the term discretion in this Guide refers to the definition provided by the Appeals Court in Lonergan-Gillen v. Gillen, 57 Mass. App. Ct. 746, 748–749, 785 N.E.2d 1285, 1288–1289 (2003):
“The proper exercise of judicial discretion involves making a circumstantially fair and reasonable choice within a range of permitted options. Discretion ‘implies the absence of a hard-and-fast rule’ and may, in some settings, encompass taking no action. Long v. George, 296 Mass. 574, 578 (1937), quoting from Paquette v. Fall River, 278 Mass. 172, 174 (1932). Proper exercise of judicial discretion requires more than avoiding ‘arbitrary determination, capricious disposition, or whimsical thinking.’ Davis v. Boston Elev. Ry. Co., 235 Mass. 482, 496 (1920). It imports a willingness, upon proper request, to consider all of the lawfully available judicial options. ‘Where discretion to grant relief exists, a uniform policy of denying relief is error.’ Berryman v. United States, 378 A.2d 1317, 1320 (D.C. 1977). ‘It is one thing to consider [a] right [to exclude evidence] and exercise it either way, but having been given that right, analogous to discretion, it is the duty of the judge to exercise it, and it is error as a matter of law to refuse to exercise it.’ Commonwealth v. Edgerly, 13 Mass. App. Ct. 562, 571 (1982).” (Footnotes omitted.)
Whether the range of choices that are open to the trial judge with discretion are narrow or wide will depend on the terms of the governing constitutional provision, statute, or common-law principle.
Comments and suggestions. Please send any comments or suggestions to the Advisory Committee on Massachusetts Evidence Law, c/o Joseph Stanton, Reporter, Appeals Court, Clerk’s Office, John Adams Courthouse, One Pemberton Square, Room 1200, Boston, MA 02108-1705, or by email to firstname.lastname@example.org.