(a) Admission or Exclusion of Evidence. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is injuriously affected, and:
(1) As to evidence admitted, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) As to evidence excluded, the substance of the evidence was made known to the court by an offer of proof or was apparent from the context within which the questions were asked.
(3) A motion in limine, seeking a pretrial evidentiary ruling, is insufficient to preserve appellate rights unless there is an objection at the time the evidence is offered.
(4) The denial of a motion to suppress evidence on constitutional grounds, however, is reviewable without further objection at trial.
(b) Record of Offer and Ruling. The court may add any other or further statement which clearly shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question-and-answer form.
(c) Hearing of Jury. In jury cases, proceedings shall be conducted so as to prevent inadmissible evidence from being made known to the jury.
(d) Substantial Risk of a Miscarriage of Justice in Criminal Cases. Nothing in this section precludes taking notice of plain errors in criminal cases, although not brought to the attention of the trial judge, if such error constitutes a substantial risk of a miscarriage of justice.
(e) Motions in Limine. Where the issue can reasonably be anticipated, a motion in limine should be filed prior to trial.
Subsection (a). This subsection is derived from G. L. c. 231, § 119, which states as follows:
“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or anything done or omitted by the trial court or by any of the parties is ground for modifying or otherwise disturbing a judgment or order unless the appeals court or the supreme judicial court deems that the error complained of has injuriously affected the substantial rights of the parties. If either court finds that the error complained of affects only one or some of the issues or parties involved it may affirm the judgment as to those issues or parties unaffected and may modify or reverse the judgment as to those affected.”
See also G. L. c. 231, § 132 (stating that no new trial in a civil proceeding may be granted based upon the improper admission or exclusion of evidence unless the error injuriously affected the proponent’s substantial rights). To determine whether a substantial right was injuriously affected by the exclusion of evidence
“the appropriate test is whether the proponent of erroneously excluded, relevant evidence has made a plausible showing that the trier of fact might have reached a different result if the evidence had been before it. Thus the erroneous exclusion of relevant evidence is reversible error unless, on the record, the appellate court can say with substantial confidence that the error would not have made a material difference.”
DeJesus v. Yogel, 404 Mass. 44, 48–49, 533 N.E.2d 1318, 1321–1322 (1989).
Judicial Duty to Give Curative Instruction. In a criminal case, if defense counsel is unable to present certain evidence promised in an opening statement because the court changes an earlier ruling, the danger of prejudice is so great that the judge must give the jury an explanation why the defendant could not keep the promise made in the opening statement. Commonwealth v. Chambers, 465 Mass. 520, 534–535, 989 N.E.2d 483, 494 (2013) (alternatively, the judge may decline to give the curative instruction and instead allow the defendant to present the evidence).
Subsection (a)(1). This subsection is derived from Commonwealth v. Marshall, 434 Mass. 358, 365, 749 N.E.2d 147, 155 (2001), and Commonwealth v. Pickles, 364 Mass. 395, 399, 305 N.E.2d 107, 109 (1973). “[O]bjections to evidence, or to any challenged order or ruling of the trial judge, are not preserved for appeal unless made in a precise and timely fashion, as soon as the claimed error is apparent.” Commonwealth v. Perryman, 55 Mass. App. Ct. 187, 192, 770 N.E.2d 1, 5 (2002). “The purpose of requiring an objection is to afford the trial judge an opportunity to act promptly to remove from the jury’s consideration evidence which has no place in the trial.” Abraham v. Woburn, 383 Mass. 724, 726 n.1, 421 N.E.2d 1206, 1209 n.1 (1981). If a timely objection is not made, the evidence is properly admitted, and the fact finder is entitled to give it such probative effect as it deems appropriate. Id.
In both jury trials and jury-waived trials, counsel have the obligation to make timely objections. See Commonwealth v. Freeman, 352 Mass. 556, 563–564, 227 N.E.2d 3, 8–9 (1967) (jury trials); Commonwealth v. Mazzone, 55 Mass. App. Ct. 345, 348, 770 N.E.2d 547, 550 (2002) (jury-waived trials). Counsel have the same duty to make objections to improper questions by a judge as they do when the questions are asked by opposing counsel. Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 72–73, 823 N.E.2d 404, 406–407 (2005). Generally, counsel should make an objection to a question before the answer is given. See Commonwealth v. Baptiste, 372 Mass. 700, 706, 363 N.E.2d 1303, 1307 (1977). Self-represented litigants are bound by the same rules of procedure as litigants with counsel. Mains v. Commonwealth, 433 Mass. 30, 35–36, 739 N.E.2d 1125, 1130 (2000).
“When objecting, counsel should state the specific ground of the objection unless it is apparent from the context.” Commonwealth v. Marshall, 434 Mass. at 365, 749 N.E.2d at 155, quoting P.J. Liacos, Massachusetts Evidence § 3.8.3, at 85 (7th ed. 1999). See Mass. R. Civ. P. 46; Mass. R. Crim. P. 22. The court may ask the party objecting to the admission or exclusion of evidence to state the precise ground for the objection. See Rule 8 of the Rules of the Superior Court. Further argument or discussion of the grounds is not allowed unless the court requests it. Id. The need for an exception has been abolished by Mass. R. Civ. P. 46 and Mass. R. Crim. P. 22.
A motion to strike is used to eliminate an answer that is objectionable either on substantive grounds or on the ground that it is nonresponsive. Commonwealth v. Pickles, 364 Mass. at 399, 305 N.E.2d at 109–110.
As to the court’s instructions to the jury, an objection is necessary to preserve an issue regarding the giving or failure to give an instruction. See Mass. R. Civ. P. 51(b); Mass. R. Crim. P. 24(b). See also Harlow v. Chin, 405 Mass. 697, 703 n.5, 545 N.E.2d 602, 606 n.5 (1989); Commonwealth v. Barbosa, 399 Mass. 841, 844, 507 N.E.2d 694, 696 (1987). Counsel should renew any prior objection with specificity following the charge. Fein v. Kahan, 36 Mass. App. Ct. 967, 968 n.4, 635 N.E.2d 1, 2 n.4 (1994).
Subsection (a)(2). This subsection is derived from Commonwealth v. Chase, 26 Mass. App. Ct. 578, 581, 530 N.E.2d 185, 188 (1988), and Mass. R. Civ. P. 43(c). “[A]n offer of proof is required to preserve the right to appellate review of the denial of an offer to introduce evidence through the direct examination of a witness.” Commonwealth v. Chase, 26 Mass. App. Ct. at 581, 530 N.E.2d at 188.
The offer of proof should state or summarize the testimony or evidence and show that the proponent would be prejudiced by the exclusion of the offered evidence. Holmgren v. LaLiberte, 4 Mass. App. Ct. 820, 821, 349 N.E.2d 379, 380 (1976). The court may consider only so much of the offer of proof that is responsive to the excluded question or evidence and apparently within the witness’s knowledge. Coral Gables, Inc. v. Beerman, 296 Mass. 267, 268–269, 5 N.E.2d 554, 555 (1936). An offer of proof that fails to satisfy the statutory or common-law requirements for the admissibility of the evidence will lead to the exclusion of the evidence. See Rockport Granite Co. v. Plum Island Beach Co., 248 Mass. 290, 295, 142 N.E. 834, 836 (1924).
An offer of proof is not necessary where the context is clear, see Commonwealth v. Donovan, 17 Mass. App. Ct. 83, 88, 455 N.E.2d 1217, 1220–1221 (1983), or where there is no doubt what the testimony will be, see Commonwealth v. Caldron, 383 Mass. 86, 89 n.2, 417 N.E.2d 958, 960 n.2 (1981); Commonwealth v. Smith, 163 Mass. 411, 429, 40 N.E. 189, 195 (1895).
If the evidence is excluded on cross-examination, an offer of proof generally need not be made, Stevens v. William S. Howe Co., 275 Mass. 398, 402, 176 N.E. 208, 210 (1931), although there is a “relatively rare group of cases where, if the purpose or significance of the question is obscure and the prejudice to the cross-examiner is not clear . . . the record must disclose the cross-examiner’s reason for seeking an answer to an excluded question.” Breault v. Ford Motor Co., 364 Mass. 352, 358, 305 N.E.2d 824, 828 (1973).
Subsection (a)(3). This subsection is taken nearly verbatim from Commonwealth v. Whelton, 428 Mass. 24, 25–26, 696 N.E.2d 540, 543 (1998). See Commonwealth v. Aviles, 461 Mass. 60, 66, 958 N.E.2d 37, 44 (2011) (adequacy of objection must be assessed in context of proceeding as a whole; issue preserved where judge told defense counsel that his rights were saved).
Subsection (a)(4). This subsection is derived from Commonwealth v. Martin, 447 Mass. 274, 279, 850 N.E.2d 555, 560 (2006).
Subsection (b). The first sentence is taken nearly verbatim from Mass. R. Civ. P. 43(c). As to the second sentence, if the court sustains an objection to a question, the court may permit the witness to answer the question in order to satisfy the need for an offer of proof.
Subsection (c). This subsection is derived generally from Mass. R. Civ. P. 43(c), Mass. R. Civ. P. 51(b), and Mass. R. Crim. P. 24(b). See Commonwealth v. Scullin, 44 Mass. App. Ct. 9, 14, 687 N.E.2d 1258, 1262 (1997) (“[I]t is essential that [the court] take steps to ensure that the jury is not exposed to the questionable evidence before the issue of admissibility is finally decided. Failing to follow this course places the opponent of the evidence in a difficult situation, and may create an unfair advantage for the proponent of the testimony, especially in the event the evidence ultimately is excluded.”). See also Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418, 422, 517 N.E.2d 152, 155 (1988).
The court has the discretion to employ any one of several methods to determine preliminary questions while insulating the jury from inadmissible evidence. These methods range from pretrial motions to suppress or motions in limine, to conducting proceedings during trial at sidebar, in chambers, or while the jury is absent from the courtroom. The court also has discretion whether to rule on the admissibility of evidence in advance of the trial by a motion in limine or to wait until the issue arises at trial. See Commonwealth v. Olsen, 452 Mass. 284, 292–293, 892 N.E.2d 739, 745 (2008) (trial judge properly declined to rule in advance on motion in limine to permit defendant to call twenty-two witnesses to testify to the fact that the prosecution’s chief witness had a poor reputation in the community for truth-telling, leaving the issue to be decided as it arose with particular witnesses).
Subsection (d). This subsection is derived from Commonwealth v. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575, 580 (1999); Commonwealth v. Freeman, 352 Mass. 556, 561–564, 227 N.E.2d 3, 7–9 (1967); and Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 72–73, 823 N.E.2d 404, 406–407 (2005). See also G. L. c. 278, § 33E.
As stated above, a timely objection at trial is required to preserve an issue for appellate review. If an objection was not made, the appellate court can consider an issue, but does so under a limited standard of review. For cases other than capital cases on direct appeal, the appellate court will apply the so-called Freeman standard to unpreserved trial errors and analyze whether the error created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. at 13, 712 N.E.2d at 580. The proper standard of review for a noncapital offense is as follows:
“An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not ‘materially influence’ the guilty verdict. In making that determination, we consider the strength of the Commonwealth’s case against the defendant (without consideration of any evidence erroneously admitted), the nature of the error, whether the error is ‘sufficiently significant in the context of the trial to make plausible an inference that the jury’s result might have been otherwise but for the error,’ and whether it can be inferred ‘from the record that counsel’s failure to object was not simply a reasonable tactical decision.’” (Citations and footnotes omitted.)
Id. Under G. L. c. 278, § 33E, in any case in which the defendant was found guilty of murder in the first degree, see Commonwealth v. Francis, 450 Mass. 132, 137 n.5, 876 N.E.2d 862, 868 n.5 (2007), the Supreme Judicial Court has a special duty and plenary authority to review the whole case, on the law and the evidence, and may order a new trial or reduce the verdict even in the absence of an objection. See Commonwealth v. Wright, 411 Mass. 678, 682 n.1, 584 N.E.2d 621, 624 n.1 (1992).
Subsection (e). This subsection is derived from Commonwealth v. Spencer, 465 Mass. 32, 42, 987 N.E.2d 205, 214 (2013).
Purpose. Massachusetts practice encourages the use of motions in limine. Motions in limine are useful to clarify or simplify the issues that need to be addressed prior to trial and to prevent irrelevant, inadmissible, or prejudicial matters from being considered by the trier of fact. See Commonwealth v. Lopez, 383 Mass. 497, 500 n.2, 420 N.E.2d 319, 321 n.2 (1981). Such motions should be “narrowly limited to focus on a discrete issue or item of anticipated evidence,” and “must not be used to choke off a valid defense in a criminal action, or to ‘knock out’ the entirety of the evidence supporting a defense before it can be heard by the jury.” Commonwealth v. O’Malley, 14 Mass. App. Ct. 314, 324–325, 439 N.E.2d 832, 838 (1982). See also Commonwealth v. Hood, 389 Mass. 581, 594, 452 N.E.2d 188, 196 (1983).
Timing. While a motion in limine may be filed during trial in advance of the evidence being offered, Commonwealth v. Spencer, 465 Mass. 32, 42, 987 N.E.2d 205, 214 (2013), there is a preference for filing and ruling on such motions in advance of trial since it may affect counsels’ conduct of the trial. See Commonwealth v. Woodbine, 461 Mass. 720, 735 n.21, 964 N.E.2d 956, 968 n.21 (2012); Commonwealth v. Diaz, 383 Mass. 73, 81, 417 N.E.2d 950, 955 (1981). In some cases, such as where there are challenges to the reliability of expert witness testimony, a pretrial motion in limine is required to preserve the opposing party’s rights. Commonwealth v. Sparks, 433 Mass. 654, 659, 746 N.E.2d 133, 137 (2001). A judge retains the discretion to reserve on a ruling until the evidence is presented at trial.
Illustrations. Cases involving common examples of motions in limine include the following: McLaughlin v. City of Lowell, 84 Mass. App. Ct. 45, 70, 992 N.E.2d 1036, 1055 (2013) (application of collateral estoppel or issue preclusion); Scott v. Garfield, 454 Mass. 790, 802, 912 N.E.2d 1000, 1010 (2009) (issues relating to collateral source rule and amount of medical bills); N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 360, 995 N.E.2d 57, 59 (2013) (admissibility of data compilations pursuant to G. L. c. 233, § 79B); Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 9, 696 N.E.2d 909, 915–916 (1998) (Daubert-type motions relating to admissibility of expert testimony); Croall v. Massachusetts Bay Transp. Auth., 26 Mass. App. Ct. 957, 959, 526 N.E.2d 1320, 1323 (1988) (similar occurrences); McDaniel v. Pickens, 45 Mass. App. Ct. 63, 67, 695 N.E.2d 215, 218 (1998) (evidence of insurance offered to show bias).
A motion in limine may be used to obtain a ruling in advance of trial on whether a statement is subject to the rule against hearsay or whether the probative value of otherwise relevant evidence is substantially outweighed by its prejudicial effect. Commonwealth v. Spencer, 465 Mass. 32, 42, 987 N.E.2d 205, 214 (2013). A motion in limine is also a useful method for obtaining a ruling on the admissibility of evidence of prior bad acts, see Commonwealth v. Leonard, 428 Mass. 782, 705 N.E.2d 247 (1999), as well as on evidence of prior criminal convictions and the application of the rape-shield law. See Commonwealth v. Harris, 443 Mass. 714, 825 N.E.2d 58 (2005). A motion in limine is commonly used to obtain a ruling in advance of trial on the admissibility of evidence under the first complaint doctrine. See, e.g., Commonwealth v. Aviles, 461 Mass. 60, 63–66, 958 N.E.2d 37, 42–44 (2011).