(1) Examining Own Witness. A party who produces a witness may prove that the witness made prior statements inconsistent with his or her present testimony; but before proof of such inconsistent statements is given, the party must lay a foundation by asking the witness if the prior statements were in fact made and by giving the witness an opportunity to explain.
(2) Examining Other Witness. Extrinsic evidence of a prior inconsistent statement by a witness, other than a witness covered under Section 613(a)(1), is admissible whether or not the witness was afforded an opportunity to explain or deny the inconsistency.
(3) Disclosure of Extrinsic Evidence. In examining a witness, other than a witness covered under Section 613(a)(1), concerning a prior statement made by such witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.
(4) Collateral Matter. Extrinsic evidence to impeach a witness on a collateral matter is not admissible as of right, but only in the exercise of sound discretion by the trial judge.
(1) Generally Inadmissible. A prior consistent statement by a witness is generally inadmissible.
(2) Exception. If the court makes a preliminary finding that there is a claim that the witness’s in-court testimony is the result of recent contrivance or a bias, and the prior consistent statement was made before the witness had a motive to fabricate or the occurrence of the event indicating a bias, the evidence may be admitted for the limited purpose of rebutting the claim of recent contrivance or bias.
Subsection (a)(1). This subsection is derived from G. L. c. 233, § 23, and Commonwealth v. Scott, 408 Mass. 811, 824 n.14, 564 N.E.2d 370, 379 n.14 (1990). See Sherman v. Metropolitan Transit Auth., 345 Mass. 777, 778, 189 N.E.2d 526, 527 (1963); Commonwealth v. Anselmo, 33 Mass. App. Ct. 602, 609, 603 N.E.2d 227, 232 (1992). If the witness denies making the prior statement, he or she need not be given the opportunity to explain it. Commonwealth v. Scott, 408 Mass. at 824 n.14, 564 N.E.2d at 379 n.14. See Commonwealth v. Festa, 369 Mass. 419, 425–426, 341 N.E.2d 276, 281 (1976).
Cross-Reference: Section 607, Who May Impeach.
Subsections (a)(2) and (3). These subsections are derived from Hubley v. Lilley, 28 Mass. App. Ct. 468, 472, 473 n.7, 552 N.E.2d 573, 575–576, 576 n.7 (1990). See also Commonwealth v. Parent, 465 Mass. 395, 398–402, 989 N.E.2d 426, 430–433 (2013). Opposing counsel has a right to examine the statement before conducting any further inquiry of the witness to prevent selective quotation of the prior statement by the questioner and to insure that the witness has an opportunity to explain or elaborate on the alleged inconsistencies. Hubley v. Lilley, 28 Mass. App. Ct. at 472, 473 n.7, 552 N.E.2d at 575–576, 576 n.7. This right arises after the examination of the witness under Subsection (a)(1) or (a)(2) and does not permit counsel to make a demand for a document before the jury during opposing counsel’s cross-examination. See Section 103(c), Rulings on Evidence, Objections, and Offers of Proof: Hearing of Jury. Such conduct may warrant the court admitting extrinsic evidence of the prior inconsistent statement. See Section 612(b)(2), Writing or Object Used to Refresh Memory: Before Testifying: Admissibility.
A prior inconsistent statement offered to impeach one’s own witness, Subsection (a)(1), or an opposing party’s witness, Subsection (a)(2), is not admissible for its truth unless (1) there is no objection or (2) it falls within the exception set forth in Section 801(d)(1)(A), Definitions: Statements Which Are Not Hearsay: Prior Statement by Witness: Prior Inconsistent Statement Before a Grand Jury, at a Trial, at a Probable Cause Hearing, or at a Deposition, or another hearsay exception. See Commonwealth v. Jones, 439 Mass. 249, 261–262, 786 N.E.2d 1197, 1208 (2003); Commonwealth v. Keevan, 400 Mass. 557, 562, 511 N.E.2d 534, 538 (1987); Commonwealth v. Balukonis, 357 Mass. 721, 726 n.6, 260 N.E.2d 167, 171 n.6 (1970).
Use of Certain Prior Inconsistent Statements of Defendant in Criminal Case. Trial judges must proceed with caution when the Commonwealth seeks to impeach the defendant with his or her pretrial silence. See Doyle v. Ohio, 426 U.S. 610, 611, 617, 618 (1976) (use of defendant’s postarrest silence violates Federal due process); Commonwealth v. Connolly, 454 Mass. 808, 828, 913 N.E.2d 356, 373 (2009) (same). In Massachusetts, even use of the defendant’s prearrest silence may violate Article 12 of the Declaration of Rights. See Harris v. New York, 401 U.S. 222, 226 (1971); Commonwealth v. Ly, 454 Mass. 223, 228, 908 N.E.2d 1285, 1289 (2009); Commonwealth v. Harris, 364 Mass. 236, 240–241, 303 N.E.2d 115, 118 (1973); Commonwealth v. Sazama, 339 Mass. 154, 157–158, 158 N.E.2d 313, 316 (1959). See also Section 511(a)(2), Privilege Against Self-Incrimination: Privilege of Defendant in Criminal Proceeding: Refusal Evidence. Although a statement obtained in violation of a person’s rights under the Fourth and Fourteenth Amendments to the Constitution of the United States may be used for impeachment purposes, see United States v. Havens, 446 U.S. 620, 627–628 (1980), Article 14 of the Declaration of Rights forbids the use of evidence in the case of electronic eavesdropping in or about a private home. Compare Commonwealth v. Fini, 403 Mass. 567, 573–574, 531 N.E.2d 570, 574 (1988) (excluding statements), with Commonwealth v. Eason, 427 Mass. 595, 600-601, 694 N.E.2d 1264, 1267-1268 (1998) (admitting statements).
Cross-Reference: Section 525(b), Comment upon or Inference from Claim of Privilege: Criminal Case; Section 104(d), Preliminary Questions: Testimony by Accused.
Prior Statements That Qualify as Inconsistent. “It is not necessary that the prior statement contradict in plain terms the testimony of the witness.” Commonwealth v. Simmonds, 386 Mass. 234, 242, 434 N.E.2d 1270, 1276 (1982). “It is enough if the proffered testimony, taken as a whole, either by what it says or by what it omits to say, affords some indication that the fact was different from the testimony of the witness whom it is sought to contradict.” Commonwealth v. Hesketh, 386 Mass. 153, 161, 434 N.E.2d 1238, 1244 (1982). An omission in a prior statement may render that statement inconsistent “when it would have been natural to include the fact in the initial statement.” Commonwealth v. Ortiz, 39 Mass. App. Ct. 70, 72, 653 N.E.2d 1119, 1120 (1995). See also Langan v. Pignowski, 307 Mass. 149, 29 N.E.2d 700 (1940). It follows that a witness who denies making an earlier statement may be impeached with it, while a witness who is unable to remember the earlier statement, but does not deny making it, may have his or her recollection refreshed. See Section 612(a)(1), Writing or Object Used to Refresh Memory: While Testifying: General Rule. However, “a witness who has actually made a statement contradictory to trial testimony cannot escape impeachment simply by saying she does not remember making the statement.” Commonwealth v. Parent, 465 Mass. 395, 401, 989 N.E.2d 426, 432 (2013). Ordinarily, “[t]here is no inconsistency between a present failure of memory on the witness stand and a past existence of memory” (citation and quotation omitted). Commonwealth v. Martin, 417 Mass. 187, 197, 629 N.E.2d 297, 303 (1994). However, if the trial judge makes a preliminary determination (see Section 104(a), Preliminary Questions: Determinations Made by the Court) that the witness’s present failure of memory is fabricated, the witness’s prior detailed statement is admissible for impeachment purposes. See Commonwealth v. Sineiro, 432 Mass. 735, 742–743 & n.7, 740 N.E.2d 602, 608 & n.7 (2000). Cf. Note “Feigning Lack of Memory” to Section 801(d)(1)(A), Definitions: Statements Which Are Not Hearsay: Prior Statement by Witness: Prior Inconsistent Statement Before a Grand Jury, at a Trial, at a Probable Cause Hearing, or at a Deposition (feigning lack of memory may result in the admission of a prior statement, not simply for impeachment purposes, but also for its truth). A witness who gives a detailed account of an incident at trial but who indicated at some earlier point in time only limited or no memory of the details of the incident may be impeached with that earlier failure of memory. Commonwealth v. Granito, 326 Mass. 494, 500, 95 N.E.2d 539, 543 (1950).
If a witness previously remained “silent in circumstances in which he naturally would have been expected to deny some asserted fact . . . the jury may consider the failure to respond in assessing the veracity of the witness in testifying contrary to the fact that was adoptively admitted by his silence.” Commonwealth v. Nickerson, 386 Mass. 54, 57, 434 N.E.2d 992, 994 (1982). In circumstances where it “would not be natural for a witness to provide the police before trial with exculpatory information,” this omission is admissible to impeach the witness at trial only after first establishing “ that the witness knew of the pending charges in sufficient detail to realize that he possessed exculpatory information,  that the witness had reason to make the information available, [and]  that he was familiar with the means of reporting it to the proper authorities . . . .” Commonwealth v. Hart, 455 Mass. 230, 238–239, 914 N.E.2d 904, 911 (2009). See id. at 239–240, 914 N.E.2d at 912 (abolishing requirement that prosecutor needs to “elicit from the witness that she was not asked by the defendant or the defense attorney to refrain from disclosing her exculpatory information to law enforcement authorities”). The Supreme Judicial Court has observed that
“[t]here are some circumstances, though, in which it would not be natural for a witness to provide the police before trial with exculpatory information, such as when the witness does not realize she possesses exculpatory information, when she thinks that her information will not affect the decision to prosecute, or when she does not know how to furnish such information to law enforcement.”
Id. at 238, 914 N.E.2d at 911. The principles applicable to impeachment of a witness by failure to provide exculpatory information apply to tangible evidence as well as oral testimony. Commonwealth v. Issa, 466 Mass. 1, 15–16, 992 N.E.2d 336, 349–350 (2013).
An omission from an earlier statement may qualify as a prior inconsistent statement. Commonwealth v. Perez, 460 Mass. 683, 699, 954 N.E.2d 1, 16 (2011) (absence of journal entry regarding visit from defendant on night of murder qualified as prior inconsistent statement to trial testimony that defendant visited witness in person on night of murder), and cases cited.
Although there is discretion involved in determining whether to admit or exclude evidence offered for impeachment, when the impeaching evidence is directly related to testimony on a central issue in the case, there is no discretion to exclude it. See Commonwealth v. McGowan, 400 Mass. 385, 390–391, 510 N.E.2d 239, 243 (1987). See Section 611(d), Manner and Order of Interrogation and Presentation: Rebuttal Evidence.
Subsection (a)(4). This subsection is derived from Commonwealth v. Farley, 443 Mass. 740, 751, 824 N.E.2d 797, 807 (2005), quoting Commonwealth v. Chase, 372 Mass. 736, 747, 363 N.E.2d 1105, 1113 (1977), citing Commonwealth v. Doherty, 353 Mass. 197, 213–214, 229 N.E.2d 267, 277 (1967), cert. denied, 390 U.S. 982 (1968). See also Commonwealth v. Zezima, 365 Mass. 238, 242 n.5, 310 N.E.2d 590, 593 n.5 (1974), rev’d on other grounds, 387 Mass. 748, 443 N.E.2d 1282 (1982); Leone v. Doran, 363 Mass. 1, 15–16, 292 N.E.2d 19, 30 (1973), modified on other grounds, 363 Mass. 886, 297 N.E.2d 493 (1973); Commonwealth v. Connolly, 308 Mass. 481, 495, 33 N.E.2d 303, 311 (1941). This principle is based on the practical need to keep a case from getting out of control. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 120, 731 N.E.2d 1075, 1087 (2000). The better practice is to exclude such evidence in a criminal case when it bears on a defendant’s character. Commonwealth v. Ferguson, 425 Mass. 349, 355–356 n.6, 680 N.E.2d 1166, 1170 n.6 (1997).
When the extrinsic evidence relates exclusively to a collateral matter, the discretion of the trial judge has been described as “nearly unreversible.” Commonwealth v. Roberts, 433 Mass. 45, 51, 740 N.E.2d 176, 181 (2000), quoting Commonwealth v. Johnson, 41 Mass. App. Ct. 81, 89, 669 N.E.2d 212, 217 (1996).
“Because bias, prejudice, and motive to lie are not considered collateral matters, they may be demonstrated by extrinsic proof as well as on cross-examination. There is no requirement that the opponent cross-examine on the matter as a foundation prior to offering extrinsic evidence.” (Citations omitted.) Commonwealth v. Hall, 50 Mass. App. Ct. 208, 213 n.7, 736 N.E.2d 425, 430 n.7 (2000), quoting P.J. Liacos, Massachusetts Evidence § 6.9, at 299–300 (7th ed. 1999).
Subsection (b). This subsection is derived from Commonwealth v. Novo, 449 Mass. 84, 93, 865 N.E.2d 777, 785 (2007), and Commonwealth v. Kindell, 44 Mass. App. Ct. 200, 202, 689 N.E.2d 845, 847 (1998). “The reason for the rule is that the testimony of a witness in court should not need—and ought not—to be ‘pumped up’ by evidence that the witness said the same thing on some prior occasion.” Commonwealth v. Kindell, 44 Mass. App. Ct. at 202–203, 689 N.E.2d at 847–848. “The trial judge has a range of discretion in determining whether a suggestion of recent contrivance exists in the circumstances.” Commonwealth v. Zukoski, 370 Mass. 23, 27, 345 N.E.2d 690, 693 (1976). However, “the impeachment of a witness by prior inconsistent statements or omissions does not, standing alone, entitle the adverse party to introduce other prior statements made by the witness that are consistent with his trial testimony.” Commonwealth v. Bruce, 61 Mass. App. Ct. 474, 482, 811 N.E.2d 1003, 1009 (2004), citing Commonwealth v. Retkovitz, 222 Mass. 245, 249–250, 110 N.E. 293, 294 (1915). Such statements “should be allowed only with caution, and where the probative value for the proper purpose is clear.” Commonwealth v. Lareau, 37 Mass. App. Ct. 679, 683, 642 N.E.2d 308, 311 (1994), quoting Commonwealth v. Darden, 5 Mass. App. Ct. 522, 528, 364 N.E.2d 1092, 1096 (1977).
The judge may admit a prior consistent statement on direct examination, prior to any impeachment, if it is obvious that a claim of recent contrivance will be made (e.g., when a party makes a statement in his or her opening statement that he or she will attack the credibility of the witness on cross-examination on the basis of recent contrivance). See Commonwealth v. Barbosa, 457 Mass. 773, 797–798, 933 N.E.2d 93, 114–115 (2010) (opponent’s opening statement suggested recent contrivance).
A prior consistent statement that does not meet the requirements of this subsection nonetheless may be admissible on other grounds. See Commonwealth v. Tennison, 440 Mass. 553, 562–564, 800 N.E.2d 285, 294–296 (2003) (verbal completeness). The prior consistent statement may be admissible not only if made before the motive to fabricate arose, but also if made at a time when the motive to fabricate no longer exists. Commonwealth v. Aviles, 461 Mass. 60, 69–70, 958 N.E.2d 37, 46–47 (2011) (prior consistent statement made after victim moved back to grandmother’s house admissible to rebut inference that victim had fabricated accusation of abuse to provide basis for moving out of defendant’s home and back to grandmother’s).
Cross-Reference: Section 413, First Complaint of Sexual Assault; Section 611(a), Manner and Order of Interrogation and Presentation: Control by Court; Note to Section 801(d)(1)(B), Definitions: Statements Which Are Not Hearsay: Prior Statement by Witness; Section 801(d)(1)(C), Definitions: Statements Which Are Not Hearsay: Prior Statement by Witness: Identification; Section 1104, Witness Cooperation Agreements.