The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present Sense Impression. [Exception not recognized]
(2) Excited Utterance (Spontaneous Utterance). A spontaneous utterance if (A) there is an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer, and (B) the declarant’s statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought.
(A) Expressions of present physical condition such as pain and physical health.
(B) (i) Statements of a person as to his or her present friendliness, hostility, intent, knowledge, or other mental condition are admissible to prove such mental condition.
(ii) Statements, not too remote in time, which indicate an intention to engage in particular conduct, are admissible to prove that the conduct was, in fact, put in effect. Statements of memory or belief to prove the fact remembered or believed do not fall within this exception.
(iii) Declarations of a testator cannot be received to prove the execution of a will, but may be shown to show the state of mind or feelings of the testator.
(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for the purpose of medical diagnosis or treatment describing medical history, pain, symptoms, condition, or cause, but not as to the identity of the person responsible or legal significance of such symptoms or injury.
(A) A past recorded statement may be admissible if (i) the witness has insufficient memory to testify fully and accurately, (ii) the witness had firsthand knowledge of the facts recorded, (iii) the witness can testify that the statement was truthful when made, and (iv) the witness made or adopted the recording when the events were fresh in the witness’s memory.
(B) The recorded statement itself may be admitted in evidence, although the original of the statement must be produced if procurable.
(A) Entry, Writing, or Record Made in Regular Course of Business. A business record shall not be inadmissible because it is hearsay or self-serving if the court finds that (i) the entry, writing, or record was made in good faith; (ii) it was made in the regular course of business; (iii) it was made before the beginning of the civil or criminal proceeding in which it is offered; and (iv) it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter.
(B) Hospital Records. Records kept by hospitals pursuant to G. L. c. 111, § 70, shall be admissible as evidence so far as such records relate to the treatment and medical history of such cases, but nothing contained therein shall be admissible as evidence which has reference to the question of liability. Records required to be kept by hospitals under the law of any other United States jurisdiction may be admissible.
(a) Itemized Bills, Records, and Reports. As used in this section, “itemized bills, records, and reports” means itemized hospital or medical bills; physician or dentist reports; hospital medical records relating to medical, dental, hospital services, prescriptions, or orthopedic appliances rendered to or prescribed for a person injured; or any report of any examination of said injured person including, but not limited to, hospital medical records.
(b) Physician or Dentist. As used in this section, “physician or dentist” means a physician, dentist, or any person who is licensed to practice as such under the laws of the jurisdiction within which such services were rendered, as well as chiropodists, chiropractors, optometrists, osteopaths, physical therapists, podiatrists, psychologists, and other medical personnel licensed to practice under the laws of the jurisdiction within which such services were rendered.
(c) Hospital. As used in this section, “hospital” means any hospital required to keep records under G. L. c. 111, § 70, or which is in any way licensed or regulated by the laws of any other State, or by the laws and regulations of the United States of America, including hospitals of the Veterans Administration or similar type institutions, whether incorporated or not.
(d) Health Maintenance Organization. As used in this section, “health maintenance organization” shall have the same meaning as defined in G. L. c. 176G, § 1.
(ii) Admissibility of Itemized Bills, Records, and Reports. In any civil or criminal proceeding, itemized bills, records, and reports of an examination of or for services rendered to an injured person are admissible as evidence of the fair and reasonable charge for such services, the necessity of such services or treatments, the diagnosis, prognosis, opinion as to the proximate cause of the condition so diagnosed, or the opinion as to disability or incapacity, if any, proximately resulting from the condition so diagnosed, provided that
(a) the party offering the evidence gives the opposing party written notice of the intention to offer the evidence, along with a copy of the evidence, by mailing it by certified mail, return receipt requested, not less than ten days before the introduction of the evidence;
(b) the party offering the evidence files an affidavit of such notice and the return receipt is filed with the clerk of the court after said receipt has been returned; and
(c) the itemized bill, record, or report is subscribed and sworn to under the penalties of perjury by the physician, dentist, authorized agent of a hospital or health maintenance organization rendering such services, or by the pharmacist or retailer of orthopedic appliances.
(iii) Calling the Physician or Dentist as a Witness. Nothing contained in this subsection limits the right of a party to call the physician or dentist, or any other person, as a witness to testify about the contents of the itemized bill, record, or report in question.
(7) Absence of Entry in Records Kept in Accordance with Provisions of Section 803(6). The absence of an entry in records of regularly conducted activity, or testimony of a witness that he or she has examined records and not found a particular entry or entries, is admissible for purposes of proving the nonoccurrence of the event.
(A) Record of Primary Fact. A record of a primary fact, made by a public officer in the performance of an official duty, is competent evidence as to the existence of that fact.
(B) Prima Facie Evidence. Certain statutes provide that the admission of facts contained in certain public records constitute prima facie evidence of the existence of those facts.
(C) Record of Investigations. Record of investigations and inquiries conducted, either voluntarily or pursuant to requirement of law, by public officers concerning causes and effects involving the exercise of judgment and discretion, expressions of opinion, and making conclusions are not admissible in evidence as public records, unless specifically authorized by statute.
(9) Records of Vital Statistics. The record of the town clerk relative to a birth, marriage, or death shall be prima facie evidence of the facts recorded, but nothing contained in the record of a death which has reference to the question of liability for causing the death shall be admissible in evidence.
(10) Absence of Public Record or Entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Section 902, Self-Authentication, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.
(11) Records of Religious Organizations. [Exception not recognized]
(12) Marriage, Baptismal, and Similar Certificates. [Exception not recognized]
(13) Family Records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.
(14) Records or Documents Affecting an Interest in Property. A registry copy of a document purporting to prove or establish an interest in land is admissible as proof of the content of the original recorded document and its execution and delivery by each person who signed it. However, the grantee or entity claiming present ownership interest of the property must account for the absence of the original document before offering the registry copy.
(15) Statements in Documents Affecting an Interest in Property. Statements of a person’s married or unmarried status, kinship or lack of kinship, or of the date of the person’s birth or death which relate or purport to relate to the title to land and are sworn to before any officer authorized by law to administer oaths may be filed for record and shall be recorded in the registry of deeds for the county where the land or any part thereof lies. Any such statement, if so recorded, or a certified copy of the record thereof, insofar as the facts stated therein bear on the title to land, shall be admissible in evidence in support of such title in any court in the Commonwealth in proceedings relating to such title.
(16) Statements in Ancient Documents. Statements in a document in existence thirty years or more the authenticity of which is established.
(17) Statements of Facts of General Interest. Statements of facts of general interest to persons engaged in an occupation contained in a list, register, periodical, book, or other compilation, issued to the public, shall, in the discretion of the court, if the court finds that the compilation is published for the use of persons engaged in that occupation and commonly is used and relied upon by them, be admissible in civil cases as evidence of the truth of any fact so stated.
(A) Use in Medical Malpractice Actions. Statements of facts or opinions on a subject of science or art contained in a published treatise, periodical, book, or pamphlet shall, insofar as the court shall find that the said statements are relevant and that the writer of such statements is recognized in his or her profession or calling as an expert on the subject, be admissible in actions of contract or tort for malpractice, error, or mistake against physicians, surgeons, dentists, optometrists, hospitals, and sanitaria, as evidence tending to prove said facts or as opinion evidence; provided, however, that the party intending to offer as evidence any such statements shall, not less than thirty days before the trial of the action, give the adverse party or that party’s attorney notice of such intention, stating the name of the writer of the statements; the title of the treatise, periodical, book, or pamphlet in which they are contained; the date of publication of the same; the name of the publisher of the same; and wherever possible or practicable the page or pages of the same on which the said statements appear.
(B) Use in Cross-Examination of Experts. To the extent called to the attention of an expert witness upon cross-examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence, but may not be received as exhibits.
(19) Reputation Concerning Personal or Family History. Reputation within a family as to matters of pedigree, such as birth, marriage, and relationships between and among family members, may be testified to by any member of the family.
(20) Reputation Concerning Boundaries or General History. Evidence of a general or common reputation as to the existence or nonexistence of a boundary or other matter of public or general interest concerning land or real property.
(21) Reputation as to Character. A witness with knowledge may testify to a person’s reputation as to a trait of character, as provided in Sections 404, Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes, 405, Methods of Proving Character, and 608, Impeachment by Evidence of Character and Conduct of Witness.
(22) Judgment of Previous Conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or confinement in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Commonwealth in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown, but does not affect admissibility.
(23) Judgment as to Personal, Family, or General History, or Boundaries. [Exception not recognized]
(A) Admissibility in General. Any out-of-court statements of a child under the age of ten describing any act of sexual contact performed on or with the child, or the circumstances under which it occurred, or identifying the perpetrator offered in an action brought under G. L. c. 119, §§ 23(C) and 24, shall be admissible; provided, however that
(i) the person to whom the statement was made, or who heard the child make the statement, testifies;
(ii) the judge finds that the statement is offered as evidence of a material fact and is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable effort;
(iii) the judge finds pursuant to Section 803(24)(B) that such statement is reliable; and
(iv) the judge’s reasons for relying on the statement appear in the judge’s findings pursuant to Section 803(24)(C).
(B) Reliability of Statement. A judge must assess the reliability of the out-of-court statement by considering the following factors:
(i) the timing of the statement, the circumstances in which it was made, the language used by the child, and the child’s apparent sincerity or motive in making the statement;
(ii) the consistency over time of a child’s statement concerning abuse, expert testimony about a child’s ability to remember and to relate his or her experiences, or other relevant personality traits;
(iii) the child’s capacity to remember and to relate, and the child’s ability to perceive the necessity of telling the truth; and
(iv) whether other admissible evidence corroborates the existence of child abuse.
(C) Findings on the Record. The judge’s reasons for relying on the statement must appear clearly in the specific and detailed findings the judge is required to make in a care and protection case.
(D) Admissibility by Common Law or Statute. An out-of-court statement admissible by common law or by statute shall remain admissible notwithstanding the provisions of this section.
Confrontation Clause. In a criminal case, a hearsay statement offered against the accused must satisfy both the confrontation clause and one of the hearsay exceptions. For a discussion of the relationship between the confrontation clause and the hearsay exceptions stated in Section 803, refer to the Introductory Note to Article VIII.
Subsection (1). To date, the present sense impression exception has not been adopted in Massachusetts. See Commonwealth v. Mandeville, 386 Mass. 393, 398 n.3, 436 N.E.2d 912, 916 n.3 (1982).
Subsection (2). This subsection is taken nearly verbatim from Commonwealth v. Santiago, 437 Mass. 620, 623, 774 N.E.2d 143, 146 (2002). See also Commonwealth v. McLaughlin, 364 Mass. 211, 221–222, 303 N.E.2d 338, 346–347 (1973). “The statement itself may be taken as proof of the exciting event.” Commonwealth v. Nunes, 430 Mass. 1, 4, 712 N.E.2d 88, 91 (1999). See Commonwealth v. King, 436 Mass. 252, 255, 763 N.E.2d 1071, 1075 (2002). The proponent of the evidence is not required to show that the spontaneous utterance qualifies, characterizes, or explains the underlying event as long as the court is satisfied that the statement was the product of a startling event and not the result of conscious reflection. See Commonwealth v. Santiago, 437 Mass. at 624–627, 774 N.E.2d at 147–148.
“[T]he nexus between the statement and the event that produced it is but one of many factors to consider in determining whether the declarant was, in fact, under the sway of the exciting event when she made the statement. . . . It illuminates the second aspect of the test; it is not an independent requirement, in the same respect that the lapse of time between the startling event and the declarant’s statement is not an independent requirement.”
Commonwealth v. Santiago, 437 Mass. at 625–626, 774 N.E.2d at 147.
“[T]here can be no definite and fixed limit of time [between the incident and the statement]. Each case must depend upon its own circumstances.” Commonwealth v. McLaughlin, 364 Mass. at 223, 303 N.E.2d at 347, quoting Rocco v. Boston-Leader, Inc., 340 Mass. 195, 196–197, 163 N.E.2d 157, 158 (1960). See Commonwealth v. Crawford, 417 Mass. 358, 362, 629 N.E.2d 1332, 1334 (1994) (statements need not be strictly contemporaneous with the exciting cause; a child’s statement five hours later correctly admitted). See also Commonwealth v. Grant, 418 Mass. 76, 81, 634 N.E.2d 565, 569 (1994) (same). “But the length of time between the incident and statement is important; the further the statement from the event, the more difficult it becomes to determine whether the statement is the result of reflection, influenced by other factors.” Commonwealth v. DiMonte, 427 Mass. 233, 239, 692 N.E.2d 45, 50 (1998).
A writing may qualify as a spontaneous utterance. See Commonwealth v. DiMonte, 427 Mass. at 238–240, 692 N.E.2d at 49–51. However, “[b]ecause a writing is more suspect as a spontaneous exclamation than is an oral statement, the circumstances of the writing would have to include indicia of reliability even more persuasive than those required for an oral statement before [the court] could conclude that the writing qualified as a spontaneous exclamation.” Id. at 239, 692 N.E.2d at 50.
A bystander’s spontaneous utterance may be admissible. See Commonwealth v. Harbin, 435 Mass. 654, 657–658, 760 N.E.2d 1216, 1219–1220 (2002). “Although witnesses may not testify unless evidence is introduced sufficient to support a finding that they have personal knowledge of the matter about which they are testifying, there is no requirement that the declarant have been a participant in the exciting event” (citation omitted). Id. at 657, 760 N.E.2d at 1220.
A statement made in response to a question may qualify as a spontaneous utterance. See Commonwealth v. Simon, 456 Mass. 280, 296, 923 N.E.2d 58, 72 (2010). But see Commonwealth v. McCoy, 456 Mass. 838, 849, 926 N.E.2d 1143, 1156–1157 (2010) (statement by the victim of a sexual assault to a SANE [sexual assault nurse examiner] at the hospital made in the context of a question-and-answer format did not qualify as an excited utterance because “the requisite level of spontaneity was not present”).
Confrontation in Criminal Cases. “When the Commonwealth in a criminal case seeks to admit the excited utterance of a declarant who is not a witness at trial or has completed his testimony at trial, the judge should conduct a careful voir dire, evidentiary if needed, before admitting the excited utterance in evidence.” Commonwealth v. Hurley, 455 Mass. 53, 68 n.14, 913 N.E.2d 850, 863 n.14 (2009) (statement, if testimonial, would be barred by the confrontation clause).
Subsection (3)(A). This subsection is derived from Murray v. Foster, 343 Mass. 655, 658, 180 N.E.2d 311, 313 (1962). See Weeks v. Boston Elevated Ry. Co., 190 Mass. 563, 564–565, 77 N.E. 654, 654–655 (1906) (witness permitted to testify that decedent remarked that the “carriage never rode so hard before”; “[t]his may well be regarded as an expression and indication of then present pain or weakness”); Simmons v. Yurchak, 28 Mass. App. Ct. 371, 373–375, 375 n.6, 551 N.E.2d 539, 541–542, 542 n.6 (1990) (upholding trial court’s refusal to apply Proposed Mass. R. Evid. 803 while noting that “[i]t is not self-evident that Proposed Mass. R. Evid. 803 propounds a more expansive hearsay exception than the common law ‘expression of pain’”).
Subsection (3)(B). The principle contained in the following three subsections is also known as the “state-of-mind exception.” This exception applies only to statements that assert the declarant’s own state of mind directly (usually by words describing the state of mind). See, e.g., Pardo v. General Hosp. Corp., 446 Mass. 1, 18–19, 841 N.E.2d 692, 705 (2006) (memorandum and letter admissible to show nondiscriminatory state of mind at time employment actions were taken); Commonwealth v. White, 32 Mass. App. Ct. 949, 949, 590 N.E.2d 716, 716 (1992) (in prosecution for sexual abuse of a child, mother’s out-of-court statement that, even if defendant didn’t do it, “I still hope that all sorts of nasty things happen to him” was admissible under state-of-mind exception as an expression of her hostility toward defendant to prove her bias as prosecution witness). But see Commonwealth v. Whitman, 453 Mass. 331, 341–342, 901 N.E.2d 1206, 1215–1216 (2009) (defendant’s statement that he heard voices inadmissible, as it pertained to the past, not the present). For statements that convey the declarant’s state of mind circumstantially or that are probative of another’s state of mind, see the note to Section 801(c) entitled Evidence Admitted for Nonhearsay Purpose.
Evidence of a person’s state of mind, whether hearsay (and offered under this exception) or nonhearsay, is admissible only if the state of mind is relevant and if the probative value of the proffered evidence is not substantially outweighed by the risk of unfair prejudice to the opponent. See Section 403, Grounds for Excluding Relevant Evidence. Statements offered to show state of mind often include assertions of facts that led to that state of mind (e.g., the victim’s out-of-court statements describing the defendant’s threats or assaults offered as evidence of the victim’s determination to end the relationship with the defendant). The out-of-court statement of those facts would ordinarily be inadmissible hearsay, and the trier of fact’s reliance on the truth of those facts would therefore be unfairly prejudicial to the opponent. This danger is especially acute in criminal cases, where confrontation clause rights are also at stake when hearsay is admitted against a defendant. See Introductory Note to Article VIII. Before such evidence is admitted, the trial court must conduct a careful review of the probative value of the evidence and the risk of unfair prejudice under Section 403. See Commonwealth v. Magraw, 426 Mass. 589, 690 N.E.2d 400 (1998) (new trial granted because of erroneous admission of murder victim’s statements to show her fear of defendant). In addition to carrying this enhanced risk of unfair prejudice, evidence of the victim’s state of mind often has limited probative value. A murder victim’s statements of fear of the defendant alone are not relevant to prove motive. Commonwealth v. Qualls, 425 Mass. 163, 169, 680 N.E.2d 61, 65 (1997). When a victim’s state of mind is offered to prove a defendant’s motive, it is usually not relevant unless the state of mind was known to the defendant, and the defendant was likely to respond to it. Id. at 167, 680 N.E.2d at 64. See, e.g., Commonwealth v. Borodine, 371 Mass. 1, 7–9, 353 N.E.2d 649, 653–654 (1976) (victim’s intention to end relationship with defendant). However,
“[a] murder victim’s state of mind becomes a material issue if the defendant opens the door by claiming that the death was a suicide or a result of self-defense, that the victim would voluntarily meet with or go someplace with the defendant, or that the defendant was on friendly terms with the victim.”
Commonwealth v. Magraw, 426 Mass. at 594, 690 N.E.2d at 404.
“Where evidence of the victim’s state of mind is admitted, it may only be used to prove that state of mind, and not to prove the truth of what was stated or that a defendant harbored certain thoughts or acted in a certain way. Therefore, on the defendant’s request, the jury must be given an instruction on the limited use of state of mind evidence.”
Id. at 594–595, 690 N.E.2d at 404, citing Commonwealth v. Costa, 354 Mass. 757, 236 N.E.2d 94 (1968).
Subsection (3)(B)(i). This subsection is taken nearly verbatim from Commonwealth v. Caldron, 383 Mass. 86, 91, 417 N.E.2d 958, 961 (1981). See Commonwealth v. Mendes, 441 Mass. 459, 466, 806 N.E.2d 393, 401 (2004); Commonwealth v. Ferreira, 381 Mass. 306, 310–311, 409 N.E.2d 188, 192–193 (1980); Commonwealth v. Wampler, 369 Mass. 121, 123, 337 N.E.2d 892, 893 (1975).
Subsection (3)(B)(ii). The first sentence of this subsection is taken verbatim from Commonwealth v. Ferreira, 381 Mass. 306, 310, 409 N.E.2d 188, 192 (1980). Accord Commonwealth v. Trefethen, 157 Mass. 180, 183–184, 31 N.E. 961, 962–963 (1892) (murder conviction reversed because trial judge improperly excluded evidence that victim, who was unmarried and pregnant at time of her death, told fortune teller the day before her drowning that she was going to drown herself). See Commonwealth v. Ortiz, 463 Mass. 402, 409–410, 974 N.E.2d 1079, 1085–1086 (2012) (murder victim told family she was going to go meet defendant after dinner); Commonwealth v. Fernandes, 427 Mass. 90, 95, 692 N.E.2d 3, 7 (1998) (“A declarant’s threat to ‘get’ or kill someone is admissible to show that the declarant had a particular state of mind and that he carried out his intent.”); Commonwealth v. Vermette, 43 Mass. App. Ct. 789, 801–802, 686 N.E.2d 1071, 1079 (1997) (proper to admit statement of intention to lie and confess to shooting for purpose of showing that declarant carried out that intent). In a prosecution for murder, a victim’s statement of intent to meet with the defendant, made immediately before the murder, is sometimes admissible. See Commonwealth v. Britt, 465 Mass. 87, 90, 987 N.E.2d 558, 562 (2013) (admission of victim’s statement that he was going to meet defendant to get his money not error, as statement did not necessarily mean that defendant had previously agreed to a meeting, and it was cumulative of other evidence of a preplanned meeting). See also Commonwealth v. Ortiz, 463 Mass. 402, 409–410, 974 N.E.2d 1079, 1085–1086 (2012) (murder victim’s statement to daughter that she was going to pick up defendant at a restaurant admissible, because statement expressed only victim’s “present intent to act,” not defendant’s, and there was other evidence that defendant was with victim at time of murder). In each of the above cases, there was independent evidence of the of the defendant’s presence at the place in question.
The second sentence of this subsection is derived from Commonwealth v. Lowe, 391 Mass. 97, 104–105, 461 N.E.2d 192, 197, cert. denied, 469 U.S. 840 (1984). See Commonwealth v. Pope, 397 Mass. 275, 281, 491 N.E.2d 240, 244 (1986) (“exception applies only to the declarant’s present intent to act, not to past conduct”). See also Commonwealth v. Seabrooks, 425 Mass. 507, 512, 681 N.E.2d 1198, 1202 (1997) (“[a]llowing hearsay statements generally under the state-of-mind exception would entirely eviscerate the hearsay rule and its important purpose of securing the correctness and completeness of testimony through cross-examination”). Accord Shepard v. United States, 290 U.S. 96, 105–106 (1933).
Subsection (3)(B)(iii). This subsection is taken nearly verbatim from Mahan v. Perkins, 274 Mass. 176, 179–180, 174 N.E. 275, 276 (1931). See id. at 180, 174 N.E. at 276–277 (“[Testator’s] declarations showing her intention, plan or purpose should not be received to support the proponent’s contention that the will was signed by her and attested by [the witness].”)
Subsection (4). This subsection is derived from Commonwealth v. Comtois, 399 Mass. 668, 675, 506 N.E.2d 503, 508 (1987), and Commonwealth v. Howard, 355 Mass. 526, 528–529, 246 N.E.2d 419, 420–421 (1969). See Commonwealth v. Arana, 453 Mass. 214, 231, 901 N.E.2d 99, 112 (2009); Commonwealth v. DeOliveira, 447 Mass. 56, 62, 849 N.E.2d 218, 224 (2006). If made for the purpose of receiving medical advice, the statements are admissible under this subsection even if made after the commencement of the action. Barber v. Merriam, 93 Mass. 322, 326 (1865).
While the appellate cases cited in this note related to physicians, nothing in the reasoning of those cases exclude other health care professionals. See Bouchie v. Murray, 376 Mass. 524, 527–528, 381 N.E.2d 1295, 1298 (1978).
Cross-Reference: Section 803(6)(C), Hearsay Exceptions; Availability of Declarant Immaterial: Business and Hospital Records: Medical and Hospital Services.
Subsection (5)(A). This subsection is derived from Commonwealth v. Nolan, 427 Mass. 541, 543, 694 N.E.2d 350, 352 (1998), and Commonwealth v. Bookman, 386 Mass. 657, 663–664, 436 N.E.2d 1228, 1232 (1982). A witness does not have to have a complete lack of memory; all that is required is that the witness cannot testify fully. Commonwealth v. Nolan, 427 Mass. at 544, 694 N.E.2d at 353.
“As to the fourth element of the foundation, where the recording was made by another, it must be shown that the witness adopted the writing ‘when the events were fresh in [the witness’s] mind’” (emphasis omitted). Commonwealth v. Evans, 439 Mass. 184, 189–190, 786 N.E.2d 375, 382–383 (2003), quoting Commonwealth v. Bookman, 386 Mass. at 664, 436 N.E.2d at 1233. See Commonwealth v. Fryar, 414 Mass. 732, 746, 610 N.E.2d 903, 912 (1993), cert. denied, 522 U.S. 1033 (1997). The requirement that the recording be made when the events were fresh in the witness’s memory has been interpreted broadly. See Catania v. Emerson Cleaners, Inc., 362 Mass. 388, 389–390, 286 N.E.2d 341, 342 (1972) (holding that statement given approximately eight months after accident admissible as a past recollection recorded). But see Kirby v. Morales, 50 Mass. App. Ct. 786, 791–792, 741 N.E.2d 855, 860 (2001) (one year insufficient).
Subsection (5)(B). This subsection is derived from Fisher v. Swartz, 333 Mass. 265, 267–271, 130 N.E.2d 575, 577–579 (1955). In Fisher, the court cautioned that it was not
“laying down a hard and fast rule that in every ‘past recollection recorded’ situation the writing used by the witness must always be admitted in evidence, and that it is error to exclude it . . . . It is conceivable that there might be situations where the probative value of the writing as evidence might be outweighed by the risk that its admission might create substantial danger of undue prejudice or of misleading the jury. In such a case the trial judge in the exercise of sound discretion might be justified in excluding the writing.”
Id. at 270, 130 N.E.2d at 579. See Commonwealth v. Bookman, 386 Mass. 657, 664, 436 N.E.2d 1228, 1233 (1982) (error to admit grand jury testimony of the witness as past recollection recorded). The witness may read from the writing during the witness’s testimony, or the writing may be admitted.
The past recollection recorded exception should not be confused with the doctrine of refreshing memory. See Section 612, Writing or Object Used to Refresh Memory. For a discussion of the distinction between the two, see Fisher v. Swartz, 333 Mass. at 267, 130 N.E.2d at 577.
Subsection (6)(A). This subsection is taken nearly verbatim from G. L. c. 233, § 78. See Beal Bank, SSB v. Eurich, 444 Mass. 813, 815, 831 N.E.2d 909, 911 (2005); Commonwealth v. Trapp, 396 Mass. 202, 208, 485 N.E.2d 162, 166 (1985). See, e.g., Commonwealth v. Albino, 81 Mass. App. Ct. 736, 737–738, 967 N.E.2d 645, 647 (2012) (holding notification letters of Sex Offender Registry Board [SORB] sent to police department were admissible as business records of department because, although letters were prepared by SORB, department’s receipt of letters was an integral part of department’s ordinary business of registering and monitoring sex offenders); Johnson v. MBTA, 418 Mass. 783, 786, 641 N.E.2d 1308, 1311 (1994) (results of laboratory test); Commonwealth v. Sellon, 380 Mass. 220, 230 & n.15, 402 N.E.2d 1329, 1337 & n.15 (1980) (In admitting police journal entry fixing the time a telephone call was received, the Supreme Judicial Court noted that “[t]he operations of the instrumentalities of government constitute ‘business’ within the meaning of the statute” [citation omitted].); Commonwealth v. Walker, 379 Mass. 297, 302, 397 N.E.2d 1105, 1108 (1979) (police record of stolen car report). In a criminal proceeding where the judge admits a business record under this exception, the questions of fact serving as a basis for its admissibility must be submitted to the jury. G. L. c. 233, § 78. See Commonwealth v. Reyes, 19 Mass. App. Ct. 1017, 1019, 476 N.E.2d 978, 980 (1985). Cf. G. L. c. 233, § 79J (certification, inspection, and copies of business records).
The trial judge may, as a condition to admissibility of business records, require the party offering the business record into evidence to call a witness who has personal knowledge of the facts stated in the record. G. L. c. 233, § 78. See Burns v. Combined Ins. Co. of Am., 6 Mass. App. Ct. 86, 92, 373 N.E.2d 1189, 1193 (1978). A trial judge must first determine if the writing itself qualifies as a business record, and then determine “whether all or only some of the material and information contained in the document qualifies as being within the scope of the statutory exception.” Wingate v. Emery Air Freight Corp., 385 Mass. 402, 408, 432 N.E.2d 474, 479 (1982) (Liacos, J., concurring). A business record is admissible even when its preparer has relied on the statements of others because the personal knowledge of the entrant or maker affects only the weight of the record, not its admissibility. Id. at 406, 432 N.E.2d at 478. However, “unless statements on which the preparer relies fall within some other exception to the hearsay rule, the proponent must show that all persons in the chain of communication, from the observer to the preparer, reported the information as a matter of business duty or business routine.” Id. See NationsBanc Mtge. Corp. v. Eisenhauer, 49 Mass. App. Ct. 727, 733–735, 733 N.E.2d 557, 562–563 (2000) (where records made by one business were transferred to another, latter business unable to admit the records under business record exception because records were made by former business). But see Commonwealth v. Albino, 81 Mass. App. Ct. 736, 738, 967 N.E.2d 645, 647 (2012) (business record of one business may be admissible as business record of second business where record is integrated into records of second business and relied on by that business), citing Beal Bank SSB v. Eurich, 444 Mass. 813, 815, 831 N.E.2d 909, 911–912 (2005).
“[T]he business records hearsay exception in [G. L. c. 233,] § 78 may not be used to expand the scope of the hearsay exception for hospital medical records.” Commonwealth v. Irene, 462 Mass. 600, 616, 970 N.E.2d 291, 304 (2012). “The admissibility of statements in medical records is limited by the provisions in G. L. c. 233 relating to hospital records, including §§ 79 and 79G.” Id.
Opinions contained in business records are not admissible unless they fall within some other exception to the hearsay rule. See Julian v. Randazzo, 380 Mass. 391, 392–393, 403 N.E.2d 931, 932–933 (1980); Burke v. Memorial Hosp., 29 Mass. App. Ct. 948, 949–950, 558 N.E.2d 1146, 1149 (1990). Cf. Section 803(6)(C), Hearsay Exceptions; Availability of Declarant Immaterial: Business and Hospital Records: Medical and Hospital Services (provides, under certain circumstances, for the admission of opinion contained in medical, dental, and other identified records and reports). Even if a document satisfies the business record exception, the trial judge retains the discretion to consider the reliability of the evidence offered. N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 367 n.10, 995 N.E.2d 57, 63 n.10 (2013). Cross-Reference: Section 803(17), Hearsay Exceptions; Availability of Declarant Immaterial: Statements of Facts of General Interest.
Criminal Cases. A record or report that qualifies as an exception to the hearsay rule under this subsection may nevertheless be inadmissible if it contains testimonial statements in violation of the confrontation clause. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310–311 (2009).
Subsection (6)(B). This subsection is derived from G. L. c. 233, § 79. See Commonwealth v. Sheldon, 423 Mass. 373, 376, 667 N.E.2d 1153, 1155–1156 (1996). A hospital record is admissible at trial if the trial judge finds that (1) it is the type of record contemplated by G. L. c. 233, § 79; (2) the information is germane to the patient’s treatment or medical history; and (3) the information is recorded from the personal knowledge of the entrant or from a compilation of the personal knowledge of those under a medical obligation to transmit such information. Bouchie v. Murray, 376 Mass. 524, 531, 381 N.E.2d 1295, 1300 (1978). Compare Commonwealth v. Sheldon, 423 Mass. at 375–377, 667 N.E.2d at 1155–1156 (blood alcohol tests conducted solely to prove the defendant’s sobriety, in circumstances in which there was no hospital protocol for conducting such a test, do not qualify for admission under G. L. c. 233, § 79), with Commonwealth v. Dyer, 77 Mass. App. Ct. 850, 855–856, 934 N.E.2d 293, 299 (2010) (blood alcohol test results ordered by physician exclusively for the medical evaluation and treatment of the defendant qualify for admission under G. L. c. 233, § 79). The party offering the record into evidence has the burden of proving the statutory requirements, Commonwealth v. Dunne, 394 Mass. 10, 16, 474 N.E.2d 538, 543 (1985), and need not give advance notice of the intent to offer the record in evidence, Commonwealth v. McCready, 50 Mass. App. Ct. 521, 524–525, 739 N.E.2d 270, 273 (2000). Cf. G. L. c. 233, § 79G (ten days’ advance notice required). The trial judge has discretion to exclude portions of an otherwise admissible medical record in accordance with Sections 402, Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible, 403, Grounds for Excluding Relevant Evidence, and 611(a), Manner and Order of Interrogation and Presentation: Control by Court. See Commonwealth v. Francis, 450 Mass. 132, 138–139, 876 N.E.2d 862, 869–870 (2007).
“[V]oluntary statements of third persons appearing in the record are not admissible unless they are offered for reasons other than to prove the truth of the matter contained therein or, if offered for their truth, come within another exception to the hearsay rule . . . .” Bouchie v. Murray, 376 Mass. at 531, 381 N.E.2d at 1300. The Supreme Judicial Court has noted that G. L. c. 233, § 79,
“may be read to permit the admission of a medical history taken from a person with reason to know of the patient’s medical history by virtue of his or her relationship to the patient. Such a history may contain personal knowledge gained from observation or knowledge gained from an intimate relationship. We think that [G. L. c. 233, § 79] should be read to include such statements if made for purposes of medical diagnosis or treatment and if the declarant’s relationship to the patient and the circumstances in which the statements are made guarantees their trustworthiness.”
Id. at 531, 381 N.E.2d at 1299.
“[General Laws c. 233, § 79,] has long been construed to permit the admission of a record that relates directly and primarily to the treatment and medical history of the patient, ‘even though incidentally the facts recorded may have some bearing on the question of liability.’ . . . In application this liberal construction has permitted the admission in evidence of statements in hospital records bearing on criminal culpability that seem to relate at most only incidentally to medical treatment” (citations omitted).
Commonwealth v. Dube, 413 Mass. 570, 573, 601 N.E.2d 467, 468–469 (1992). See Commonwealth v. DiMonte, 427 Mass. 233, 242, 692 N.E.2d 45, 52 (1998).
“[General Laws c. 233, § 79,] relies on a ‘pragmatic test of reliability’ that permits the introduction of records containing even second level hearsay provided the information in the record is of a nature that is relied on by medical professionals in administering health care. . . . While creating an exception to the hearsay rule, the statute does not permit the admission of hospital records that are facially unreliable.”
Commonwealth v. Johnson, 59 Mass. App. Ct. 164, 167, 794 N.E.2d 1214, 1217 (2003), citing Doyle v. Dong, 412 Mass. 682, 687, 591 N.E.2d 1084, 1087 (1992). See generally Petitions of the Dep’t of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 287–288, 503 N.E.2d 1275, 1280–1281 (1987) (privileged material should be redacted).
Illustrations. Notations on Form 2 in the “Sexual Assault Evidence Collection Kit” made by the SANE (sexual assault nurse examiner) based on statements by the complainant about how he or she received his or her injuries are admissible because they assist the SANE in conducting the examination, even though the information is also collected to assist investigators. Commonwealth v. Dargon, 457 Mass. 387, 396, 930 N.E.2d 707, 717 (2010). However, the printed form should not be admitted because it suggests a sexual assault occurred. Id. Notations on hospital intake forms stating that a patient was “assaulted” should be redacted. Commonwealth v. DiMonte, 427 Mass. at 241–242, 692 N.E.2d at 51–52. In DiMonte, several references to the facts of the alleged assault, including “Pt. struck in the face [with] fist” and “reports having a plastic container thrown [at] her which struck her [right] forehead,” were admissible. Id. at 241, 692 N.E.2d at 51. Statements consisting of self-diagnosis should be redacted. Commonwealth v. Hartman, 404 Mass. 306, 316–317, 534 N.E.2d 1170, 1177 (1989). In Commonwealth v. Concepcion, 362 Mass. 653, 654–655, 290 N.E.2d 514, 514–515 (1972), hospital records where (a) under the heading “Nature of Illness” appeared the words “? Assaulted- ? Raped,” (b) under the heading “History and Physical Exam” appeared the words “History of recent rape,” and (c) under the heading “Diagnosis” appeared the notation “? Rape,” the doctor’s opinions were related to the treatment and medical history. Blood tests bearing on the patient’s degree of intoxication are admissible; entries made by observing nurses are also admissible. Commonwealth v. McCready, 50 Mass. App. Ct. at 524, 739 N.E.2d at 272–273. In Commonwealth v. Baldwin, 24 Mass. App. Ct. 200, 202, 509 N.E.2d 4, 6 (1987), a “[d]iagnosis” of “sexual molestation,” a term “synonymous to laymen with indecent assault and battery,” should have been redacted. Cf. Commonwealth v. Patton, 458 Mass. 119, 934 N.E.2d 236 (2010) (SAIN [Sexual Abuse Intervention Network] report may be admissible in probation violation hearings).
Subsection (6)(C). This subsection is derived from G. L. c. 233, § 79G. The text in this subsection places the statutory language in more straightforward language and also incorporates the case law. The practitioner, however, is cautioned to check the precise statutory language.
This statute applies to criminal cases as well as to civil cases, and its scope is much broader than that of G. L. c. 233, § 79. Commonwealth v. Schutte, 52 Mass. App. Ct. 796, 798–800, 756 N.E.2d 48, 51–52 (2001). See generally Grant v. Lewis/Boyle, Inc., 408 Mass. 269, 274, 557 N.E.2d 1136, 1139 (1990) (declining to adopt Proposed Mass. R. Evid. 803 for the purpose of admitting physician’s reports given the “carefully crafted provisions of § 79G”).
Scope. This subsection establishes a broad exception to the hearsay rule which overlaps to some degree with the hospital records exception provided in Section 803(6)(B), Hearsay Exceptions; Availability of Declarant Immaterial: Business and Hospital Records: Hospital Records. See McHoul, petitioner, 445 Mass. 143, 151, 833 N.E.2d 1146, 1154 (2005); Ortiz v. Stein, 31 Mass. App. Ct. 643, 645, 582 N.E.2d 560, 561 (1991). But see Brusard v. O’Toole, 45 Mass. App. Ct. 288, 295, 697 N.E.2d 1000, 1005 (1998) (G. L. c. 233, § 79G, would not allow the admission in evidence of hospital policies and procedures). In some respects, however, this subsection is broader than the exception for hospital records found in Section 803(6)(B) because
“reports admissible under § 79G may include the ‘opinion of such physician . . . as to proximate cause of the condition so diagnosed, . . .’ and ‘the opinion of such physician . . . as to disability or incapacity, if any, proximately resulting from the condition so diagnosed. . . .’ These are not matters usually found in a medical record but do pertain to issues commonly involved in personal injury claims and litigation. Thus, the concerns that require redaction of information not germane to the patient’s treatment in medical records under § 79, see, e.g., Bouchie v. Murray, 376 Mass. 524, 531 (1978), are overridden by express language in § 79G.”
Commonwealth v. Schutte, 52 Mass. App. Ct. at 799–800, 756 N.E.2d at 51–52. Also, since the term “report” is not defined in G. L. c. 233, § 79G, a properly attested letter from a person’s treating physician explaining the patient’s medical condition and its effects based on the physician’s personal observations can be qualified as a report. Id.
The full amount of a medical or hospital bill is admissible as evidence of the reasonable value of the services rendered to the injured person, even where the amount actually paid by a private or public insurer is less than that amount. Law v. Griffith, 457 Mass. 349, 353–354, 930 N.E.2d 126, 130–131 (2010), citing G. L. c. 233, § 79G.
Cross-Reference: G. L. c. 233, § 79H (medical records of deceased physicians); Section 411(b), Insurance: Limited Admissibility; Section 902(k), Self-Authentication: Certified Copies of Hospital and Other Records of Treatment and Medical History.
Requirements for Admissibility. Reports offered under G. L. c. 233, § 79G, as opposed to G. L. c. 233, § 78, are admissible even if prepared in anticipation of litigation. See O’Malley v. Soske, 76 Mass. App. Ct. 495, 498–499, 923 N.E.2d 552, 555–556 (2010); Commonwealth v. Schutte, 52 Mass. App. Ct. at 799 n.3, 756 N.E.2d at 52 n.3. Medical reports which deal with an injured person’s “diagnosis, prognosis, opinion as to the proximate cause of the condition so diagnosed, or the opinion as to disability or incapacity,” see Section 803(6)(C)(ii), must be by a physician, as that term is defined in the subsection, who treated or examined the injured person. See Ortiz v. Stein, 31 Mass. App. Ct. at 645–646, 582 N.E.2d at 561–562. See also Gompers v. Finnell, 35 Mass. App. Ct. 91, 93, 616 N.E.2d 490, 492 (1993) (“Nothing in § 79G authorizes one not a physician or dentist to offer an expert opinion that a patient’s physical symptoms resulted from a particular accident or incident.”). If a record contains such an opinion, however, it may satisfy the plaintiff’s burden of proof on the issue of causation in a medical negligence case. See Bailey v. Cataldo Ambulance Serv., Inc., 64 Mass. App. Ct. 228, 234–236, 832 N.E.2d 12, 17–18 (2005) (explaining that there is no requirement that an expert opinion on causation contain the phrase “to a reasonable degree of medical certainty”).
General Laws c. 233, § 79G, requires that a party who seeks to offer the report of a physician or dentist at trial must serve opposing counsel at least ten days in advance of trial with notice and a copy of the report by the physician or dentist. See Adoption of Seth, 29 Mass. App. Ct. 343, 351–352, 560 N.E.2d 708, 713 (1990). However, the attestation by the physician or dentist does not have to be included with the notice so long as it is present when the evidence is offered at trial. See Grant v. Lewis/Boyle, Inc., 408 Mass. at 274, 557 N.E.2d at 1139; Knight v. Maersk Container Serv. Co., 49 Mass. App. Ct. 254, 256, 728 N.E.2d 968, 969–970 (2000).
Cross-Reference: G. L. c. 233, § 79H; Section 902(k), Self-Authentication: Certified Copies of Hospital and Other Records of Treatment and Medical History.
Subsection (7). This subsection is derived from McNamara v. Honeyman, 406 Mass. 43, 54 n.10, 546 N.E.2d 139, 146 n.10 (1989), and Commonwealth v. Scanlan, 9 Mass. App. Ct. 173, 182, 400 N.E.2d 1265, 1271 (1980). See Johnson v. Wilmington Sales, Inc., 5 Mass. App. Ct. 858, 858, 364 N.E.2d 1291, 1292 (1977). Where testimony is offered, proof of the fact that an entry does not exist does not require the production of the records themselves or the laying of a foundation for the introduction of secondary evidence. Commonwealth v. Scanlan, 9 Mass. App. Ct. at 182, 400 N.E.2d at 1271. See Commonwealth v. Torrealba, 316 Mass. 24, 30, 54 N.E.2d 939, 943 (1944); Johnson v. Wilmington Sales, Inc., 5 Mass. App. Ct. at 858, 364 N.E.2d at 1292.
Subsection (8). This subsection is derived from Commonwealth v. Slavski, 245 Mass. 405, 415, 140 N.E. 465, 468 (1923). Cf. G. L. c. 233, § 76 (admissibility of authenticated government records); Mass. R. Civ. P. 44 (proof of official records); Mass. R. Crim. P. 40 (same). The admission of a record of a primary fact created for routine government administrative functions does not violate the confrontation clause. Commonwealth v. Shangkuan, 78 Mass. App. Ct. 827, 833–834, 943 N.E.2d 466, 472–473 (2011) (officer’s return of service, required by court rule to be completed and filed in court, is nontestimonial because it was not “created solely for use in a pending criminal prosecution,” even though it might later be used for proving notice to a defendant).
Under the common law, a report or record does not become an official record for the purpose of this exception merely because it is filed with a governmental agency. See Commonwealth v. Williams, 63 Mass. App. Ct. 615, 619, 827 N.E.2d 1281, 1285 (2005); Kelly v. O’Neil, 1 Mass. App. Ct. 313, 319, 296 N.E.2d 223, 227 (1973). A hearsay statement recorded in an official record, if made by someone other than the public officer making the record, is not admissible under this exception, although it may be admissible if it falls within another hearsay exception. See Sklar v. Beth Israel Deaconess Med. Ctr., 59 Mass. App. Ct. 550, 556 n.8, 797 N.E.2d 381, 386 n.8 (2003). Evaluative reports, opinions, and conclusions contained in a public report are not admissible at common law. Commonwealth v. Nardi, 452 Mass. 379, 387–395, 893 N.E.2d 1221, 1228–1234 (2008) (ruling that the findings of a medical examiner concerning the nature and extent of the victim’s injuries and his or her ultimate opinion as to the cause of death were not statements of fact excluded by the hearsay rule, but instead were evaluative statements that fell outside the public record exception); Mattoon v. City of Pittsfield, 56 Mass. App. Ct. 124, 135, 775 N.E.2d 770, 779–780 (2002). See Middlesex Supply, Inc. v. Martin & Sons, Inc., 354 Mass. 373, 374–375, 237 N.E.2d 692, 693 (1968); Herson v. New Boston Garden Corp., 40 Mass. App. Ct. 779, 792–793, 667 N.E.2d 907, 917 (1996).
The following statutes provide for the admission of facts contained in public records as prima facie evidence (examples of the records covered are in parentheses): G. L. c. 46, § 19 (birth, marriage, and death records); G. L. c. 79, § 35 (assessed valuation of real property); G. L. c. 90, § 30 (records of the Registry of Motor Vehicles); G. L. c. 111, § 13 (certificate of chemical analyses); G. L. c. 123A, § 14(c) (public records at trial on whether person is sexually dangerous); and G. L. c. 185C, § 21 (report of housing inspector). But see Commonwealth v. Almonte, 465 Mass. 224, 242, 988 N.E.2d 415, 428–429 (2013) (the preferred practice is to redact means and manner of death before admitting death certificate into evidence). Conclusions contained in public records may be made admissible by statute. Shamlian v. Equitable Acc. Co., 226 Mass. 67, 69–70, 115 N.E. 46, 47 (1917).
Mortality Tables. In Harlow v. Chin, 405 Mass. 697, 714, 545 N.E.2d 602, 612 (1989), the Supreme Judicial Court addressed the admissibility of mortality tables:
“Mortality tables, though not conclusive proof of life expectancy, help furnish a basis for the jury’s estimation. The tables themselves are admissible regardless of the poor health or extra-hazardous occupation of the person whose life expectancy is being estimated. When the opposing side believes that the person in question, because of poor health, has a lower life expectancy than that reflected in the mortality tables, the usual remedy is to offer evidence to that effect and argue the point to the jury.” (Citations omitted.)
Criminal Cases. A record or report that qualifies as an exception to the hearsay rule under this subsection may nevertheless be inadmissible if it contains testimonial statements in violation of the confrontation clause. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310–311 (2009). See also Introductory Note to Article VIII.
Subsection (9). This subsection is taken verbatim from G. L. c. 46, § 19. See Commonwealth v. Lykus, 406 Mass. 135, 144, 546 N.E.2d 159, 165 (1989), cert. denied, 519 U.S. 1126 (1997). See also Miles v. Edward Tabor M.D., Inc., 387 Mass. 783, 786, 443 N.E.2d 1302, 1304 (1982). Records from foreign countries are not admissible under G. L. c. 46, § 19, or G. L. c. 207, § 45. Vergnani v. Guidetti, 308 Mass. 450, 457, 32 N.E.2d 272, 276 (1941). Cf. G. L. c. 46, § 19C (“The commissioner of public health shall use the seal of the department of public health for the purpose of authenticating copies of birth, marriage and death records in his department, and copies of such records when certified by him and authenticated by said seal, shall be evidence like the originals.”). General Laws c. 46, § 19, makes the town clerk certificate admissible in evidence, but not with respect to liability. See Wadsworth v. Boston Gas Co., 352 Mass. 86, 93, 223 N.E.2d 807, 812 (1967). See also G. L. c. 207, § 45 (“The record of a marriage made and kept as provided by law by the person by whom the marriage was solemnized, or by the clerk or registrar, or a copy thereof duly certified, shall be prima facie evidence of such marriage.”).
Subsection (10). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 803(10), reflects Massachusetts practice. See Mass. R. Civ. P. 44(b); Mass. R. Crim. P. 40(b); Blair’s Foodland, Inc. v. Shuman’s Foodland, Inc., 311 Mass. 172, 175–176, 40 N.E.2d 303, 306 (1942).
Subsection (11). No cases or statutes were located on this issue. Cf. Section 803(6)(A), Hearsay Exceptions; Availability of Declarant Immaterial: Business and Hospital Records: Entry, Writing, or Record Made in Regular Course of Business.
Cross-Reference: Section 804(b)(7), Hearsay Exceptions; Declarant Unavailable: Hearsay Exceptions: Religious Records.
Subsection (12). No cases or statutes were located on this issue. Cf. Section 804(b)(7), Hearsay Exceptions; Declarant Unavailable: Hearsay Exceptions: Religious Records; Kennedy v. Doyle, 92 Mass. 161, 168 (1865) (baptismal record admissible where maker is deceased).
Subsection (13). This subsection, which is taken verbatim from Proposed Mass. R. Evid. 803(13), reflects Massachusetts practice. See North Brookfield v. Warren, 82 Mass. 171, 174–175 (1860). Cf. Section 803(9), Hearsay Exceptions; Availability of Declarant Immaterial: Records of Vital Statistics; Section 804(b)(5)(A), Hearsay Exceptions; Declarant Unavailable: Hearsay Exceptions: Statutory Exceptions in Civil Cases: Declarations of Decedent.
Subsection (14). This subsection is derived from Scanlan v. Wright, 30 Mass. 523, 527 (1833), and Commonwealth v. Emery, 68 Mass. 80, 81–82 (1854).
Subsection (15). This subsection is taken nearly verbatim from G. L. c. 183, § 5A.
Subsection (16). This subsection is derived from Cunningham v. Davis, 175 Mass. 213, 219, 56 N.E. 2, 4 (1900) (“It is a general rule that deeds appearing to be more than 30 years old, which come from the proper custody, and are otherwise free from just grounds of suspicion, are admissible without any proof of execution.”). See Whitman v. Shaw, 166 Mass. 451, 460–461, 44 N.E. 333, 337 (1896) (ancient plan and field notes); Drury v. Midland R.R. Co., 127 Mass. 571, 581 (1879) (old plans admitted for purposes of establishing location of a creek). Cf. Section 901(b)(8), Requirement of Authentication or Identification: Illustrations: Ancient Documents.
Cross-Reference: Section 403, Grounds for Excluding Relevant Evidence; Section 805, Hearsay within Hearsay.
Subsection (17). This subsection is taken verbatim from G. L. c. 233, § 79B. The word “‘compilation,’ as used in the statute, connotes simple objective facts, and not conclusions or opinions.” Mazzaro v. Paull, 372 Mass. 645, 652, 363 N.E.2d 509, 514 (1977). The trial judge must make “preliminary findings that the proposed exhibit is (1) issued to the public, (2) published for persons engaged in the applicable occupation, and (3) commonly used and relied on by such persons.” Id. See Fall River Sav. Bank v. Callahan, 18 Mass. App. Ct. 76, 83–84, 463 N.E.2d 555, 561 (1984); Torre v. Harris-Seybold Co., 9 Mass. App. Ct. 660, 672–673, 404 N.E.2d 96, 105–106 (1980). The judge has the discretion to consider the reliability of the information as a factor in determining the admissibility of the compilation, even where the statutory requirements are satisfied. See N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 366–367, 995 N.E.2d 57, 63 (2013) (judge did not abuse his discretion in excluding statistical summaries derived from compilation of raw data voluntarily submitted by participating insurance companies where accuracy and reliability of raw data had not been established).
See generally G. L. c. 106, § 2-724 (“Whenever the prevailing price or value of any goods regularly bought and sold in any established commodity market is in issue, reports in official publications or trade journals or in newspapers or periodicals of general circulation published as the reports of such market shall be admissible in evidence. The circumstances of the preparation of such a report may be shown to affect its weight but not its admissibility.”).
Subsection (18)(A). This subsection is taken nearly verbatim from G. L. c. 233, § 79C. See Commonwealth v. Johnson, 59 Mass. App. Ct. 164, 170, 794 N.E.2d 1214, 1219 (2003) (“pill book” purchased from pharmacy purporting to describe effects of prescription drugs not admissible as learned treatise); Simmons v. Yurchak, 28 Mass. App. Ct. 371, 375–377, 551 N.E.2d 539, 542–543 (1990) (instructional videotape not admissible as learned treatise). Statements from a treatise satisfying the requirements of G. L. c. 233, § 79C, may also be used in medical malpractice tribunals. See G. L. c. 231, § 60B.
“When determining the admissibility of a published treatise under G. L. c. 233, § 79C, we interpret the ‘writer of such statements’ to mean the treatise author, not the author of each individual item incorporated into the treatise text.” Brusard v. O’Toole, 429 Mass. 597, 606, 710 N.E.2d 588, 594 (1999). “[T]he ‘writer’ of a statement contained in an authored treatise is the author of the treatise, and the ‘writer’ of a statement contained in a periodical or similarly edited publication is the author of the specific article in which the statement is contained.” Id. The biographical data about the author in the front of the treatise may not be used to establish the expertise of the author, see Reddington v. Clayman, 334 Mass. 244, 247, 134 N.E.2d 920, 922 (1956), but an opponent witness who admits that the author of the treatise is a recognized expert in the field is sufficient, see Thomas v. Ellis, 329 Mass. 93, 98, 100, 106 N.E.2d 687, 690, 691 (1952). “The statutory notice of the intent to introduce a treatise required by G. L. c. 233, § 79C, requires that ‘the date of publication’ of the treatise be specified. The edition of a treatise, if applicable, should be specified, and parties should be permitted to introduce statements from only that edition.” Brusard v. O’Toole, 429 Mass. at 606 n.13, 710 N.E.2d at 594 n.13.
Subsection (18)(B). This subsection is derived from Commonwealth v. Sneed, 413 Mass. 387, 396, 597 N.E.2d 1346, 1351 (1992), in which the Supreme Judicial Court adopted Proposed Mass. R. Evid. 803(18). Treatises are not available to bolster direct examination. Brusard v. O’Toole, 429 Mass. 597, 601 n.5, 710 N.E.2d 588, 591 n.5 (1999). But see Commonwealth v. Sneed, 413 Mass. at 396 n.8, 597 N.E.2d at 1351 n.8 (“We can imagine a situation in which, in fairness, portions of a learned treatise not called to the attention of a witness during cross-examination should be admitted on request of the expert’s proponent in order to explain, limit, or contradict a statement ruled admissible under [Section] 803[(18)].”). This subsection “contemplates that an authored treatise, and not the statements contained therein, must be established as a reliable authority.” Brusard v. O’Toole, 429 Mass. at 602–603, 710 N.E.2d at 592.
“[The] opponent of the expert witness [must] bring to the witness’s attention a specific statement in a treatise that has been established, to the judge’s satisfaction, as a reliable authority. The witness should be given a fair opportunity to assess the statement in context and to comment on it, either during cross-examination or on redirect examination. The judge, of course, will have to determine the relevance and materiality of the statement and should consider carefully any claimed unfairness or confusion that admission of the statement may create.”
Commonwealth v. Sneed, 413 Mass. at 396, 597 N.E.2d at 1351. This is a preliminary question of fact for the judge. See Section 104(a), Preliminary Questions: Determinations Made by the Court.
Subsection (19). This subsection is derived from Butrick v. Tilton, 155 Mass. 461, 466, 29 N.E. 1088, 1089 (1892). See Cadorette v. United States, 988 F.2d 215, 220–222 (1st Cir. 1993). But see Haddock v. Boston & Maine R.R., 85 Mass. 298, 301 (1862).
Subsection (20). This subsection is derived from Enfield v. Woods, 212 Mass. 547, 551–552, 99 N.E. 331, 332 (1912) (admitting reputation evidence regarding existence or nonexistence of public ownership of land). See G. L. c. 139, § 9 (“For the purpose of proving the existence of the nuisance the general reputation of the place shall be admissible as evidence.”). See Commonwealth v. United Food Corp., 374 Mass. 765, 767 n.2, 374 N.E.2d 1331, 1336 n.2 (1978) (G. L. c. 139, § 9, is a statutory exception to hearsay rule).
Subsection (21). This exception deals only with the hearsay aspect of evidence of reputation. For additional restrictions on the use of such evidence, see Sections 404, Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes, 405, Methods of Proving Character, and 608, Impeachment by Evidence of Character and Conduct of Witness, and the accompanying notes.
Subsection (22). This subsection is derived from Flood v. Southland Corp., 416 Mass. 62, 70, 616 N.E.2d 1068, 1074 (1993), in which the Supreme Judicial Court adopted Proposed Mass. R. Evid. 803(22). See Commonwealth v. Powell, 40 Mass. App. Ct. 430, 435–436, 665 N.E.2d 99, 102–103 (1996) (error where trial court instructed jury it could consider prior guilty plea of alleged joint venturer to charge of armed robbery as circumstantial evidence of presence of gun in subsequent trial of other joint venturer on same charge). “[A] plea of guilty is admissible in evidence as an admission in subsequent civil litigation, but is not conclusive.” Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737, 747, 481 N.E.2d 1356, 1363 (1985). Cf. Section 609, Impeachment by Evidence of Conviction of Crime; Section 410, Inadmissibility of Pleas, Offers of Pleas, and Related Statements, and Mass. R. Crim. P. 12(f).
Subsection (23). No cases or statutes were located on this issue.
Subsection (24)(A). Subsections (24)(A) through (A)(ii) are taken nearly verbatim from G. L. c. 233, § 83(a). Subsections (24)(A)(iii) and (iv) are derived from Care & Protection of Rebecca, 419 Mass. 67, 78, 80, 643 N.E.2d 26, 33, 34 (1994). There is no requirement that the child be unavailable. Id. at 76–77, 643 N.E.2d at 32. When a care and protection proceeding is joined with a petition to dispense with consent to adoption, admissibility of a child’s out-of-court statements should comply with the stricter requirements of G. L. c. 233, § 82, not § 83. Adoption of Tina, 45 Mass. App. Ct. 727, 733, 701 N.E.2d 671, 676 (1998).
Subsection (24)(B). This subsection is taken nearly verbatim from Care & Protection of Rebecca, 419 Mass. 67, 79–80, 643 N.E.2d 26, 33 (1994). The judge may question the child through a voir dire. Id. The reliability of statements contained in an investigator’s report can be assessed by cross-examining the investigator. Care & Protection of Leo, 38 Mass. App. Ct. 237, 241–242, 646 N.E.2d 1086, 1090 (1995).
Subsection (24)(C). This subsection is taken nearly verbatim from Care & Protection of Rebecca, 419 Mass. 67, 80, 643 N.E.2d 26, 34 (1994).
Subsection (24)(D). This subsection is taken verbatim from G. L. c. 233, § 83(b).