ARTICLE VIII.  HEARSAY

INTRODUCTORY NOTE

(a) Confrontation Clause and Hearsay in Criminal Cases. In considering the following sections, it is necessary to recognize the distinction between hear­say rules and the requirements of the confrontation clause of the Sixth Amend­ment to the Constitution of the United States and Article 12 of the Dec­laration of Rights. The admissibility of an out-of-court statement offered for its truth is determined by a two-step inquiry. First, the statement must be admissible pur­suant to the rules of evidence. Second, if offered by the Commonwealth, the statement must satisfy the requirements of the confrontation clause.

In Crawford v. Washington, 541 U.S. 36, 54 (2004), the United States Supreme Court explained that the Sixth Amendment expressed the common-‌law right of the defendant in a criminal case to confrontation, and that it was subject only to those exceptions that existed at the time of the amendment’s framing in 1791. As a result, the Supreme Court held that “testimonial statements” of a witness for the government in a criminal case who is not present at trial and subject to cross-examination are not admissible unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Id. at 53–54. Accord Commonwealth v. Gonsalves, 445 Mass. 1, 14, 833 N.E.2d 549, 559 (2005), cert. denied, 548 U.S. 926 (2006) (“constitutional provision of the confrontation clause trumps [our own] rules of evidence”). In Commonwealth v. Lao, 450 Mass. 215, 223, 877 N.E.2d 557, 563 (2007), the Supreme Judicial Court held that “the protection provided by art. 12 is co­extensive with the guarantees of the Sixth Amendment to the United States Constitution.”

(1) Testimonial Versus Nontestimonial; the Primary Purpose Test. The United States Supreme Court and the Supreme Judicial Court use the primary purpose test to determine whether a statement is testimonial or nontestimonial. See Michigan v. Bryant, 131 S. Ct. 1143 (2011); Davis v. Washington, 547 U.S. 813 (2006); Commonwealth v. Beatrice, 460 Mass. 255, 951 N.E.2d 26 (2011); Commonwealth v. Smith, 460 Mass. 385, 951 N.E.2d 674 (2011). The primary purpose test’s key analysis is whether the statement is procured with the primary purpose of creating an out-of-court substitute for trial testimony. Commonwealth v. Beatrice, 460 Mass. at 260–262, 951 N.E.2d at 32–34 (holding that statements are testimonial when “the primary purpose . . . is to establish or prove past events potentially relevant to later crim­inal prosecution”). The primary purpose test is objective, and “the relevant inquiry into the parties’ statements and actions is not the subjective or actual purpose of the particular parties, but the purpose that reasonable participants would have had, as ascertained from the parties’ statements and actions and the circumstances in which the encounter occurred.” Michigan v. Bryant, 131 S. Ct. at 1156. See also Commonwealth v. Smith, 460 Mass. at 394, 951 N.E.2d at 683 (“[T]he ‘primary purpose’ inquiry [is] objective. The parties’ sub­jective motives or intentions are largely irrelevant.”). The following factors are relevant to an analysis under the primary purpose test.

(A) Whether an Emergency Exists. In Davis v. Washington, 547 U.S. 813, 822 (2006), the United States Supreme Court held as follows:

“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”

In Michigan v. Bryant, 131 S. Ct. 1143, 1158–1160 (2011), the Supreme Court held that “whether an emergency exists and is ongoing is a highly context-‌dependent inquiry” and explained that “‘a conversation which begins as an interrogation to determine the need for emergency assistance’ can ‘evolve into testimonial statements,’” and “[a] conversation that begins with a prosecutorial purpose may nevertheless devolve into nontestimonial statements if an unexpected emergency arises.”

In Commonwealth v. Beatrice, 460 Mass. 255, 259–260, 951 N.E.2d 26, 32 (2011), and Commonwealth v. Smith, 460 Mass. 385, 392–393, 951 N.E.2d 674, 682 (2011), both decided after Michigan v. Bryant, the Supreme Judicial Court identified a nonexhaustive list of factors relevant to determining whether an ongoing emergency exists at the time a declarant makes statements to a law enforcement agent:

–   whether an armed assailant poses a substantial threat to the public at large, the victim, or the responding officers;

–   the type of weapon that has been employed;

–   the severity of the victim’s injuries;

–   the formality of the interrogation;

–   the involved parties’ statements and actions; and

–   whether the victim’s safety is at substantial imminent risk.

See Commonwealth v. Beatrice, 460 Mass. at 260–262, 951 N.E.2d at 32–34; Commonwealth v. Smith, 460 Mass. at 393–394, 951 N.E.2d at 682–683.

In Michigan v. Bryant, 131 S. Ct. 1143, 1160 (2011), the Supreme Court ad­ditionally explained that “whether an ongoing emergency exists is simply one factor—[although] an important factor—that informs the ultimate inquiry regarding the ‘primary purpose’ of an interrogation.” “[T]here may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony.” Id. at 1155.

(B) The Formality of the Statements and the Actions of the Parties Involved. The formality of an interrogation is an important factor for determining whether a statement was procured with a primary purpose of creating an out-of-court substitute for trial testimony. Michigan v. Bryant, 131 S. Ct. at 1160. In Michigan v. Bryant, 131 S. Ct. 1143 (2011), the United States Supreme Court held that questioning that occurred in an exposed, public area, prior to the arrival of emergency medical services (when the declarant had been shot in the abdomen and the armed assailant was still at large), and in a disorganized fashion, was informal and “distinguishable from [a] formal station-‌house interrogation.” Id. at 1160.

The statements of a declarant and the actions of both the declarant and interrogators also provide objective evidence of the interrogation’s primary purpose. Id. at 1160–1161. The Supreme Court explained that looking to the con­tent of both the questions and the answers is an important factor in the primary purpose test because both interrogators and declarants may have mixed motives. Id. at 1161. Police officers’ dual responsibilities as both first responders and criminal investigators may lead them to act with different motives simultaneously or in quick succession. Id. Likewise, during an ongoing emergency, victims may make statements they think will help end the threat to their safety but may not envision these statements being used for prosecution. Id. Alternatively, a severely injured victim may lack the ability to have any purpose at all in answering questions. Id. The inquiry is still objective, however, and it fo­cus­es on the understanding and purpose of a reasonable victim in the actual victim’s circumstances, which prominently include the victim’s physical state. Id.

(C) Whether the Statements Were Made to Non–Law Enforcement Personnel. The United States Supreme Court has expressly reserved the question “whether and when statements made to someone other than law enforcement personnel are ‘testimonial.’” Michigan v. Bryant, 131 S. Ct. at 1155 n.3. Cf. Commonwealth v. Gonsalves, 445 Mass. 1, 12–13, 833 N.E.2d 549, 558–559 (2005).

(2) Certificates. Many cases since Crawford v. Washington, 541 U.S. 36 (2004), have challenged the admissibility of certificates attested to by nontestifying experts. In Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the United States Supreme Court held that the reasoning of Crawford applied to certain certificates of analysis frequently introduced in criminal trials to establish a substance is a “controlled substance” under G. L. c. 94C. The Supreme Court held that a drug certificate in the form of an affidavit by the analyst was a testimonial statement because it was prepared with the knowledge that it would be used at trial, and thus its admission in evidence over the defendant’s objection violated the confrontation clause of the Sixth Amendment because the technician or scientist who made the findings set forth in the certificate was not made available for questioning by the defense. As a result, the United States Supreme Court reversed the decision of the Appeals Court in Commonwealth v. Melendez-Diaz, 69 Mass. App. Ct. 1114, 870 N.E.2d 676 (2007) (unpublished), and effectively overruled the decision of the Supreme Judicial Court in Commonwealth v. Verde, 444 Mass. 279, 283–285, 827 N.E.2d 701, 705–706 (2005). Analytical certificates made under oath by chemists or ballisticians that a substance is a drug, is of a specific weight, or both, or that a thing is a working firearm, “are functionally identical to live, in-‌court testimony, doing ‘precisely what a witness does on direct examination’” (emphasis deleted). Melendez-Diaz v. Massachusetts, 129 S. Ct. at 2532, quoting Davis v. Washington, 547 U.S. 813, 830 (2006). See also Commonwealth v. Brown, 75 Mass. App. Ct. 361, 363, 914 N.E.2d 332, 333–334 (2009) (applying Melendez-Diaz holding to ballistics certificate).

In Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2530–2531 (2009), the Supreme Court explicitly rejected the idea that an analyst’s testimony was the only way to prove the chemical composition of a substance. In Commonwealth v. MacDonald, 459 Mass. 148, 945 N.E.2d 260 (2011), the Supreme Judicial Court stated as follows:

“Melendez-Diaz stands for the proposition that if a certificate of drug analysis is used, it must be accompanied by the testimony of an analyst so that the defendant’s right to confrontation is preserved. However, nowhere does the decision state that where . . . a prosecutor uses the opinion testimony of an expert to establish the composition of a drug, that testimony requires corroboration. . . . A prosecutor’s decision to proceed without a certificate of drug analysis does not violate the holding in Melendez-Diaz.”

Id. at 155–156, 945 N.E.2d at 266.

In Commonwealth v. Zeininger, 459 Mass. 775, 947 N.E.2d 1060 (2011), the Supreme Judicial Court held that statements contained in an annual certification and accompanying diagnostic records, attesting to the proper functioning of a breath-testing machine used to test the defendant’s blood alcohol content, were not testimonial, and that the defendant’s confrontation rights were not violated by the admission of the certification and records without the live testimony of the technician who had performed the certification test on the machine. Id. at 788–789, 947 N.E.2d at 1069–1070. The critical distinction that “ma[de] all the difference” was that the certificate of analysis in Melendez-Diaz resembled “the type of ‘ex parte in-court testimony or its functional equivalent’ at the nucleus of the confrontation clause” because it was particularized and performed in aid of a prosecution seeking to prove the commission of a past act, while the Office of Alcohol Testing certification records were generalized and performed prospectively in primary aid of the administration of a regulatory program. Id., quoting Crawford v. Washington, 541 U.S. 36, 51–52 (2004).

In Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), the United States Supreme Court decided five to four that a blood alcohol analysis report, which certified that the defendant’s blood alcohol concentration was well above the threshold for aggravated driving while intoxicated under New Mexico law, and which was introduced at trial through the testimony of an analyst who had not performed the certification, was testimonial within the meaning of the confron­tation clause. The Supreme Court found that the laboratory report in Bullcoming resembled those in Melendez-Diaz “[i]n all material respects”:

“[A]s in Melendez–Diaz, a law-enforcement officer provided seized evidence to a state laboratory required by law to assist in police investigations. Like the analysts in Melendez–Diaz, [the] analyst [in Bullcoming] tested the evidence and prepared a certificate concerning the result of his analysis. Like the Melendez–Diaz certificates, [the analyst]’s certificate is ‘formalized’ in a signed document.” (Citation omitted.)

Id. at 2717.

Justice Sotomayor’s concurring opinion may anticipate future disagreement over the extent to which the law of hearsay informs the determination of whether a statement is testimonial. In her concurrence, Justice Sotomayor emphasized what she referred to as the limited reach of the court’s opinion. She noted, for example, that “[i]t would be a different case if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results.” Id. at 2722 (Sotomayor, J., concurring). She also noted that “this is not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence,” and that “this is not a case in which the State introduced only machine-‌generated results, such as a printout from a gas chromatograph.” Id. at 2722 (Sotomayor, J., concurring). See Commonwealth v. Munoz, 461 Mass. 126, 132 (2011) (citing Justice Sotomayor’s concurrence in upholding admissibility of substitute analyst’s independent opinion that relied on data generated by prior analyst). On December 6, 2011, the United States Supreme Court heard oral arguments in Williams v. Illinois (10-8505). The ques­tion presented was whether a State rule of evidence allowing an expert witness to testify about the results of DNA testing performed by nontestifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the confrontation clause.

In Commonwealth v. Parenteau, 460 Mass. 1, 948 N.E.2d 883 (2011), the Commonwealth introduced in evidence a certificate from the Registry of Motor Vehicles attesting that a notice of license suspension or revocation was mailed to the defendant; the Commonwealth did not present any testimony from a witness on behalf of the registry. The Supreme Judicial Court held that the certificate was testimonial in nature and that its admission without testimony from the preparers violated the confrontation clause. Id. at 8–9, 948 N.E.2d at 890. The court explained that one “must examine carefully the purpose for which [a document is] created” when “determining the admissibility of a particular business record.” Id. at 10, 948 N.E.2d at 891. In Parenteau, the business record was created two months after the criminal complaint was issued and therefore was “plainly” created to establish an element of the statutory offense at trial. Id. at 8, 948 N.E.2d at 890. Importantly, the court noted that “[i]f such a record had been created at the time the notice was mailed and preserved by the registry as part of the administration of its regular business affairs, then it would have been admissible at trial.” Id. at 10, 948 N.E.2d at 891. See also Commonwealth v. Ellis, 79 Mass. App. Ct. 330, 945 N.E.2d 983 (2011).

The admission of a properly completed and returned G. L. c. 209A return of service absent the testimony of the officer who completed it does not violate a defendant’s confrontation clause rights. Commonwealth v. Shangkuan, 78 Mass. App. Ct. 827, 833–834, 837, 943 N.E.2d 466, 472–473, 475 (2011) (“[T]he primary purpose for which the return of service in this case was created is to serve the routine administrative functions of the court system, ensuring that the defendant received the fair notice to which he is statutorily and constitutionally entitled . . . , establishing a time and manner of notice for purposes of determining when the order expires or is subject to renewal, and assuring the plaintiff that the target of the order knows of its existence. The return of service here was not created for the purpose of establishing or proving some fact at a potential future criminal trial.”).

(3) Expert Testimony. In Commonwealth v. Barbosa, 457 Mass. 773, 785–‌787, 933 N.E.2d 93, 106–108 (2010), the Supreme Judicial Court confirmed that Melendez-Diaz, 129 S. Ct. 2527 (2009), does not “purport to alter the rules governing expert testimony” and does not, therefore, forbid one expert from testifying and offer­ing an opinion on the basis of an examination of tests performed and data col­lected by others, so long as the witness does not testify to the details of the hear­say on direct-examination. The court noted that experts have been able to rely on “facts or data not in evidence if the facts or data are independently ad­mis­si­ble and are a permissible basis for an expert to consider in formulating an opin­ion” since Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 532, 499 N.E.2d 812, 821 (1986), but that where the Commonwealth calls an expert witness,

“direct examination is limited to the expert’s opinion and mat­ters of which the expert had personal knowledge, such as her training and experience, and the protocols generally accepted in her field of expertise. Only the defendant can open the door on cross-‌examination to testimony regarding the basis for the expert’s opinion, which may invite the expert witness to testify to facts or data that may be admissible in evidence but have not yet been admitted in evidence, and that may be testimonial in nature. A defendant, however, cannot reason­ably claim that his right to confront the witnesses against him is violated by the admission of evidence that he elicits on cross-‌‌‌examination.”

Id. In Commonwealth v. Munoz, 461 Mass. 126, 132 (2011), the Supreme Judicial Court stated that Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), did not call Barbosa into question. In Munoz, the court affirmed the distinction between a substitute analyst’s permissible testimony as to independent opinions based on data generated by a nontestifying analyst and a substitute analyst’s impermissible testimony as to the testing analyst’s reports and conclusions. The court noted that a substitute analyst who offers an independent opinion may be subject to meaningful cross-examination “on the data on which that analyst purports to have relied reasonably, the basis on which he or she concluded that such data were adequate and appropriate to the task, and the basis for concluding that the data had been prepared in conformity with relevant accepted professional standards . . . .” Id. at 135. See also Commonwealth v. Greineder, 458 Mass. 207, 237, 936 N.E.2d 372, 395 (2010); Commonwealth v. Durand, 457 Mass. 574, 584, 931 N.E.2d 950, 960 (2010); Commonwealth v. Banville, 457 Mass. 530, 541, 931 N.E.2d 457, 466–‌467 (2010).

(b) Confrontation Clause Inapplicable. Under certain conditions, the confrontation clause of the Federal and State Constitutions does not bar the admission of testimonial statements, introduced for purposes other than establishing the truth of the matter asserted, in criminal cases even though the de­clarant is not available for cross-examination. Commonwealth v. Hurley, 455 Mass. 53, 65 n.12, 913 N.E.2d 850, 861 n.12 (2009). See Commonwealth v. Pelletier, 71 Mass. App. Ct. 67, 69–72, 879 N.E.2d 125, 128–130 (2008) (wife’s statement was properly admitted for a limited purpose other than its truth even though she did not testify at the defendant’s trial).

(c) Massachusetts Law Versus Federal Law. Based on differences in the language of the Sixth Amendment (defendant’s right to be “confronted with the witnesses against him”) and Article 12 of the Declaration of Rights (defendant’s right to “meet the witnesses against him face to face”), the State Constitution has been interpreted by the Supreme Judicial Court to provide a criminal defendant more protection than the Sixth Amendment in certain respects. Com­pare Maryland v. Craig, 497 U.S. 836, 844–850 (1990) (confrontation clause does not guarantee criminal defendants an absolute right to a face-‌to-‌face meeting with the witnesses against them at trial; upholding constitutionality of a procedure whereby a young child alleged to have been the victim of a sexual assault testified at trial outside the courtroom but was visible to defendant and jury on a monitor), with Commonwealth v. Amirault, 424 Mass. 618, 631–‌632, 677 N.E.2d 652, 662 (1997) (Article 12 requires that the jury be allowed to assess the encounter between the witness and the accused with the witness testifying in the face of the accused; in certain circumstances, however, the encounter between the defendant and the child witness may take place outside the courtroom and be presented at trial by videotape; see G. L. c. 278, § 16D). See also Commonwealth v. Bergstrom, 402 Mass. 534, 541–542, 524 N.E.2d 366, 371–‌372 (1988). However, when the question involves the relationship be­tween the hearsay rule and its exceptions, on the one hand, and the right to confrontation, on the other hand, “the protection provided by art. 12 is co­extensive with the guarantees of the Sixth Amendment to the United States Con­stitution.” Commonwealth v. De­Oliveira, 447 Mass. 56, 57 n.1, 849 N.E.2d 218, 221 n.1 (2006), citing Commonwealth v. Whelton, 428 Mass. 24, 28, 696 N.E.2d 540, 545 (1998), and Commonwealth v. Childs, 413 Mass. 252, 260, 596 N.E.2d 351, 356 (1992).

(d) Waiver of Right to Confrontation. The right to confrontation may be waived. See Commonwealth v. Szerlong, 457 Mass. 858, 860–861, 933 N.E.2d 633, 637–‌639 (2010) (doctrine of forfeiture by wrongdoing extinguishes right to confrontation); Commonwealth v. Chubbuck, 384 Mass. 746, 751, 429 N.E.2d 1002, 1005 (1981) (defendant waived right to be present at trial based on per­sistent disruptive behavior in the courtroom); Commonwealth v. Flemmi, 360 Mass. 693, 694, 277 N.E.2d 523, 524 (1971) (if defendant is voluntarily absent after trial begins, “the court may proceed without the defendant”). See also Mass. R. Crim. P. 18(a)(1) (“If a defendant is present at the beginning of a trial and thereafter absents himself without cause or without leave of court, the trial may proceed to a conclusion in all respects except the imposition of sentence as though the defendant were still present.”). A defendant must be competent to plead guilty in order to waive his or her presence at trial. Commonwealth v. L’Abbe, 421 Mass. 262, 268–269, 656 N.E.2d 1242, 1245–1246 (1995).