SUPREME JUDICIAL COURT

The Supreme Judicial Court recommends the use of the Massachusetts Guide to Evidence. Our recommendation of the Massachusetts Guide to Evidence is not to be interpreted as an adoption of a set of rules of evidence, nor a predictive guide to the development of the common law of evidence. The purpose of the Massachusetts Guide to Evidence is to make the law of evidence more accessible and understandable to the bench, bar, and public. We encourage all interested persons to use the Massachusetts Guide to Evidence.

Chief Justice Roderick L. Ireland

Justice Francis X. Spina

Justice Robert J. Cordy

Justice Margot Botsford

Justice Ralph D. Gants

Justice Fernande R.V. Duffly

Justice Barbara A. Lenk

January 2012

INTRODUCTION

In June 2006, the Justices of the Supreme Judicial Court, at the request of the Massachusetts Bar Association, the Boston Bar Association, and the Massachusetts Academy of Trial Attorneys, created the Supreme Judicial Court Advisory Committee on Massachusetts Evidence Law to prepare a Guide to the Massachusetts law of evidence. The Justices charged the Committee with the mandate “to assemble the current law in one easily usable document, along the lines of the Federal Rules of Evidence, rather than to prepare a Restatement or to propose changes in the existing law of evidence.” As Chief Justice Margaret H. Marshall stated in her March 2006 address to the Massachusetts Bar Association, “[t]he Advisory Committee will compile a Guide to Massachusetts evidence law as it currently exists, replete with case law and reporters’ notes. The Guide will make our rules of evidence more accessible to bench, bar, and the public. It will improve the understanding, teaching, and presentation of Massachusetts evidence. It will advance the delivery of justice.”

The Massachusetts Guide to Evidence organizes and states the law of evidence applied in proceedings in the courts of the Commonwealth, as set forth in the Federal and State Constitutions, General Laws, common law, and rules of court. The Committee invites comments and suggestions on the Guide.

The Guide is organized into “Sections” using the format of the Federal Rules of Evidence insofar as the Federal rules comport with Massachusetts law and practice. Some sections are different from the Federal rules. For instance, Article V of the Federal Rules of Evidence, which governs the law of privileges, contains one general section whereas the Massachusetts Guide to Evidence contains twenty-five sections detailing evidentiary privileges and disqualifications recognized in Massachusetts. Other sections, such as Section 1102, Spoliation or Destruction of Evidence, Section 1103, Sexually Dangerous Person Proceedings, and Section 1104, Witness Cooperation Agreements, have no counterpart in the Federal rules.

Each section contains a statement of the law of Massachusetts, current through December 31, 2011, and an accompanying “Note” that includes supporting authority. Some sections are based upon a single statute or decision, while other sections were derived from multiple sources. Certain sections were drafted “nearly verbatim” from a source with minimal changes, for instance, revised punctuation, gender-neutral terms, or minor reorganization, to allow the language to be stated more accurately in the context of the Massachusetts Guide to Evidence. For the practitioner’s easy reference, the Committee has included parallel citations to the North Eastern Reporter.

Many sections of the Guide use the language of the Proposed Massachusetts Rules of Evidence (1980) or the Federal Rules of Evidence. The Committee concluded that such language is preferred when it represents an accurate statement of current Massachusetts law. The Committee wishes to emphasize two points. First and foremost, in accordance with its mandate from the Supreme Judicial Court, what the Committee has written are not rules, but rather, as the title suggests, a guide to evidence based on the law as it exists today. The Committee did not attempt, nor is it authorized, to suggest modifications, adopt new rules, or predict future developments in the law. Second, the Committee has recommended to the Supreme Judicial Court that the Guide be published annually to address changes in the law and to make any other revisions as necessary. The Committee’s goal is to reflect the most accurate and clear statement of current law as possible. Ultimately, the law of evidence in Massachusetts is what is contained in the authoritative decisions of the Supreme Judicial Court and of the Appeals Court, and the statutes duly enacted by the Legislature.

Supreme Judicial Court Advisory Committee
on Massachusetts Evidence Law

Supreme Judicial Court Advisory Committee
on Massachusetts Evidence Law

Executive Committee

Honorable R. Marc Kantrowitz, Appeals Court, Editor-in-Chief

Honorable Peter W. Agnes, Jr., Superior Court, Editor

Honorable David A. Lowy, Superior Court, Editor

Joseph F. Stanton, Esq., Appeals Court, Reporter

Barbara Berenson, Esq., Supreme Judicial Court

Honorable Mark S. Coven, District Court

Professor Philip K. Hamilton, New England School of Law

Elizabeth N. Mulvey, Esq., Crowe & Mulvey, LLP

Emily Hamrock, Esq., Appeals Court

Lydia Edwards, Esq., Appeals Court

Education Committee

Honorable Edward Donnelly, Probate and Family Court

Honorable Mark Coven, District Court

Honorable Daniel Swords, Juvenile Court

Honorable Raymond Dougan, Boston Municipal Court

Honorable Frey Winik, Housing Court

Honorable Judith Fabricant, Superior Court

Research Assistants

Jasper Groner, Esq., and Siri Nilsson, Esq.

Student Interns

Nathan Band, Ashley Jones-Pierce, Michael D. Kelly, Nadezda Kluystov, Kevin Manganaro, Kathleen R. McCrea, Mimi Paturel, Gina Plata-Nino, Nikolaus S. Schuttauf, and Jamie Wells

Acknowledgments

The Executive Committee acknowledges the leadership and enthusiastic support of Chief Justice Margaret H. Marshall, who prior to her retirement in 2010 oversaw the Supreme Judicial Court’s creation of its Advisory Committee on Massachusetts Evidence Law and was instrumental in the Committee’s publication of the 2008–2009, 2010, and 2011 editions. The Executive Committee also acknowledges the strong support of Justice John M. Greaney, who retired in 2008.

The Executive Committee thanks the following persons who participated in the development and publication of the 2011 edition of the Massachusetts Guide to Evidence:

Sean Toohey, Esq., Executive Committee

Steven Winer, Esq., Ben Snitkoff, Esq., and Sheila F. Lawn, Esq., Research Assistants

Melaney Hodge, Michelle McCarthy, and Marina Sigal, Student Interns

The Executive Committee thanks the following persons who participated in the development and publication of the 2010 edition of the Massachusetts Guide to Evidence:

Allison Carrinski, Esq., Executive Committee

Julie Brennan, Esq., Research Assistant

Blair Edwards, David Mawhinny, and Meghan Waters, Student Interns

The Executive Committee thanks the following persons who participated in the development and publication of the 2008–2009 edition of the Massachusetts Guide to Evidence:

Members of the Supreme Judicial Court Advisory Committee on Massachusetts Evidence Law

Professor Michael Avery, Suffolk University Law School

Professor Mark Brodin, Boston College Law School

Honorable James W. Coffey, Boston Municipal Court

Kevin Connelly, Esq.

Honorable Patricia G. Curtin, Dedham District Court, Acting Presiding
Justice

Honorable Michael F. Edgerton, Essex County Juvenile Court

Assistant Attorney General Steven L. Hoffman, Business and Labor
Protection Bureau

Timothy E. Maguire, Esq., Greenberg Traurig, LLP

Tracy A. Miner, Esq., Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.

Dorian Morello, Esq.

Elizabeth N. Mulvey, Esq., Crowe & Mulvey, LLP

Martin F. Murphy, Esq., Foley Hoag LLP

Honorable Geoffrey G. Packard, Malden District Court

Ian Pinta, Esq., Adler, Cohen, Harvey, Wakeman & Guekguezian LLP

Katherine A. Robertson, Esq., Bulkley, Richardson & Gelinas

Honorable Catherine P. Sabaitis, First Justice, Plymouth County
Probate and Family Court

External Editors

Charles M. Burnim, Professor Emeritus, Suffolk University Law School

Dean John Fenton, Suffolk University Law School

Professor Philip K. Hamilton, New England School of Law

Nelson P. Lovins, Esq., Lovins & Metcalf

John R. Pollets, Esq., Law Office of John R. Pollets

Christopher Poreda, Esq.

Honorable William Young, United States District Court for the District
of Massachusetts

Assistant Editors

Mary Bowe, Appeals Court

Tina LaFranchi, Appeals Court

Shelley Ruff

Robert L. Stetson

Cite-Checkers

Appeals Court Staff Attorneys

Dan Thurler, Katherine Crockford, Ellen Epstein, Jane Hong, Ann Jones, Denise Kenneally, Lynn Muster, Linda Ruggiero, Martha Simmons, Margo Stark, and Emily Tobin

Appeals Court Law Clerks

Drew Devoogd, Justin Dibiasio, Kursten Doherty, Rebecca Fordon, Rebecca Greber, Max Grinberg, Jamie Hoag, Dana Keenholtz, Margaret Kwoka, Nicole Liguori, Doug Martland, Dorian Morello, Carla Sauvignon, Matt Schrumpf, Steve Sharobem, David Slocum, Adrienne Smith, Tim Landry, and Linda Tsang

Additional Law Clerks and Interns

Joyce Chen, Aaron Ferrecchia, Kristen A. Fiore, Carolyn Hunt, Alexis LeBlanc, Kate Liggio, Lizabeth L. Marshall, Ryan Mingo, and Jennifer Seich

Additional Acknowledgments

The Advisory Committee thanks the Massachusetts Bar Association for its resolution, unanimously approved by its House of Delegates, requesting that the Supreme Judicial Court appoint an Advisory Committee on Massachusetts Evidence Law to produce a guide to Massachusetts evidence law.

The Advisory Committee thanks the following people for their assistance in the development and publication of the 2008–2009 edition:

Honorable Phillip Rapoza, Chief Justice, Appeals Court

Honorable Barbara J. Rouse, Chief Justice, Superior Court

Honorable Lynda M. Connolly, Chief Justice, District Court

Maureen McGee, Supreme Judicial Court (through January 2007)

Christine Burak, Supreme Judicial Court

Brian H. Redmond, Supreme Judicial Court

Alexander McNeil, Appeals Court

Daniel Thurler, Appeals Court

Lawrence Ward, Appeals Court

Frank Mockler, Appeals Court

Annie Wood, Administrative Office of the Trial Court

Melissa Nawrocki, Director, Flaschner Judicial Institute

Mo Sook Park, Program Manager, Flaschner Judicial Institute

Brian Harkins, Social Law Library

We also thank Robert J. Brink, Executive Vice President of the Flaschner Judicial Institute, and Michael J. Huppe, copy editor, for their past and continuing assistance with the publication of the 2008–2009, 2010, 2011, and 2012 editions.

The Advisory Committee thanks the following persons and entities who submitted written comments on the drafts of the Massachusetts Guide to Evidence:

Boston Bar Association, including members of the Administration
of Justice, Criminal Law, and Litigation Sections

Massachusetts Academy of Trial Attorneys

Massachusetts Bar Association

Massachusetts Defense Lawyers Association

Office of the District Attorney for Middlesex County

Women’s Bar Association of Massachusetts

Greater Boston Legal Services

Honorable Carol Erskine, First Justice, Juvenile Court, Worcester County Division

Honorable Robert A. Welsh, Jr., First Justice, District Court,
Orleans Division

Honorable John P. Sullivan (retired), Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.

Sugarman & Sugarman, P.C.

Anthony E. Abeln, Esq., Morrison Mahoney LLP (2011 edition)

Raymond P. Ausrotas, Esq., Todd & Weld LLP (2011 edition)

Robert C. Butler, Esq. (2012 edition)

Sean T. Carnathan, Esq., O’Connor, Carnathan & Mack, LLC

Harry P. Carroll, Esq., City of Springfield Law Department

Alan N. Cote, Esq., Office of the Secretary of State

Nelson P. Lovins, Esq., Lovins & Metcalf

William J. McCrevan, Jr., Esq.

Nancy McLean, Esq.

Richard L. Neumeier, Esq., Morrison Mahoney, LLP

Daniel E. Shanahan, Esq., Law Offices of Joseph J. Cariglia, P.C.

David A. Talman, Esq., Phillips, Silver, Talman, Aframe & Sinrich, P.C.

Currency, Usage, and Terminology

Currency and usage. The Massachusetts Guide to Evidence has been updated to state the Massachusetts law of evidence as it exists through December 31, 2011. The Supreme Judicial Court Advisory Committee on Massachusetts Evidence Law has made every effort to provide accurate and informative statements of the law in the Massachusetts Guide to Evidence. Counsel and litigants are encouraged to conduct their own research for additional authorities that may be more applicable to the case or issue at hand. Importantly, given the fluidity of evidence law, all users of this Guide should perform their own research and monitor the law for the most recent modifications to and statements of the law. The Guide is not intended to constitute the rendering of legal or other professional advice, and the Guide is not a substitute for the advice of an attorney.

“Not recognized” sections. Where the Advisory Committee has noted that the Federal Rules of Evidence contain a provision on a particular subject and the Committee has not identified any Massachusetts authority that recognizes that subject, or where the Supreme Judicial Court has declined to follow the Federal rule on that subject, the topic is marked “not recognized” to await further development, if any, of the law on that topic.

“Nearly verbatim” sections. The notes to some sections state that the section’s text was derived “nearly verbatim” from a specific statute, court decision, or court rule. This phrase explains that the Advisory Committee made minor modifications to an authority’s original language to allow the language to be stated more accurately in the context of the Massachusetts Guide to Evidence. Such modifications may include revised punctuation, gender-neutral terms, minor reorganization, and the use of numerals instead of spelling numerals.

Discretion. The term “discretion” appears numerous times in the text and the notes throughout this Guide. Unless the context requires a different meaning, the term discretion in this Guide refers to the definition provided by the Appeals Court in Lonergan-Gillen v. Gillen, 57 Mass. App. Ct. 746, 748–749, 785 N.E.2d 1285, 1288–1289 (2003):

“The proper exercise of judicial discretion involves making a circumstantially fair and reasonable choice within a range of permitted options. Discretion ‘implies the absence of a hard-and-fast rule’ and may, in some settings, encompass taking no action. Long v. George, 296 Mass. 574, 578 (1937), quoting from Paquette v. Fall River, 278 Mass. 172, 174 (1932). Proper exercise of judicial discretion requires more than avoiding ‘arbitrary determination, capricious disposition, or whimsical thinking.’ Davis v. Boston Elev. Ry. Co., 235 Mass. 482, 496 (1920). It imports a willingness, upon proper request, to consider all of the lawfully available judicial options. ‘Where discretion to grant relief exists, a uniform policy of denying relief is error.’ Berryman v. United States, 378 A.2d 1317, 1320 (D.C. 1977). ‘It is one thing to consider [a] right [to exclude evidence] and exercise it either way, but having been given that right, analogous to discretion, it is the duty of the judge to exercise it, and it is error as a matter of law to refuse to exercise it.’ Commonwealth v. Edgerly, 13 Mass. App. Ct. 562, 571 (1982).” (Footnotes omitted.)

Whether the range of choices that are open to the trial judge with discretion are narrow or wide will depend on the terms of the governing constitutional provision, statute, or common-law principle.

Revisions to the 2012 edition. The contents of the 2012 edition of the Massachusetts Guide to Evidence were revised to reflect changes to the Massachusetts law of evidence that occurred between January 1, 2011, and December 31, 2011. The majority of these additions are contained in the notes accompanying the sections. In addition, the Committee added Section 414, Industry and Safety Standards; Section 901(b)(11), Electronic or Digital Communication; Section 1110, Consciousness of Guilt or Liability; and Section 1111, Missing Witness. Finally, after the United States Supreme Court and the Supreme Judicial Court issued several opinions that discuss the confrontation clause and hearsay in criminal cases, the committee revised the Introductory Note to Article VIII, Hearsay, to address these cases.

Comments and suggestions. Please send any comments or suggestions to the Advisory Committee on Massachusetts Evidence Law, c/o Joseph Stanton, Reporter, Appeals Court, Clerk’s Office, John Adams Courthouse, One Pemberton Square, Room 1200, Boston, MA 02108-1705, or by email to joseph.stanton@appct.state.ma.us.