The
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
In June 2006, the
Justices of the
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
Each section contains a statement
of the law of
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
Supreme
Judicial Court Advisory Committee
on
Supreme
Judicial Court Advisory Committee
on
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,
Elizabeth N. Mulvey,
Esq., Crowe & Mulvey, LLP
Emily
Hamrock, 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,
Honorable
Frey Winik,
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
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
Professor
Michael Avery,
Professor
Mark Brodin,
Honorable
James W. Coffey,
Kevin
Connelly, Esq.
Honorable
Patricia G. Curtin, Dedham District Court, Acting Presiding
Justice
Honorable
Michael F. Edgerton,
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,
External
Editors
Charles
M. Burnim, Professor Emeritus,
Dean
John Fenton,
Professor
Philip K. Hamilton,
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
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
Frank Mockler, Appeals Court
Annie
Wood, Administrative Office of the Trial Court
Melissa Nawrocki, Director, Flaschner
Judicial Institute
Mo
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
Office
of the District Attorney for
Women’s
Bar Association of Massachusetts
Greater
Honorable Carol Erskine, First
Justice,
Honorable Robert A. Welsh, Jr., First
Justice, District Court,
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
“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
“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
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
Comments
and suggestions. Please send any comments or suggestions to the Advisory
Committee on Massachusetts Evidence Law, c/o Joseph Stanton, Reporter,