SUPREME JUDICIAL COURT
INTRODUCTION
CONTENTS
ARTICLE I. GENERAL PROVISIONS
Section 101. Title
Section 102. Purpose and Construction
Section 103. Rulings on Evidence, Objections, and Offers of Proof
(a) Admission or Exclusion of Evidence
(b) Record of Offer and Ruling
(c) Hearing of Jury
(d) Substantial Risk of a Miscarriage of Justice in Criminal Cases
Section 104. Preliminary Questions
(a) Determinations Made by the Court
(b) Relevancy Conditioned on Fact
(c) Hearing of Jury
(d) Testimony by Accused
(e) Weight and Credibility
Section 105. Limited Admissibility
Section 106. Doctrine of Completeness
(a) Remainder of Writings or Recorded Statements
(b) Curative Admissibility
ARTICLE II. JUDICIAL NOTICE
Section 201. Judicial Notice of Adjudicative Facts
(a) Scope
(b) Kinds of Facts
(c) When Taken
(d) Opportunity to Be Heard
(e) Instructing Jury
Section 202. Judicial Notice of Law
(a) Mandatory
(b) Permissive
(c) Not Permitted
ARTICLE III. INFERENCES, PRIMA FACIE EVIDENCE, AND PRESUMPTIONS
Section 301. Civil Cases
(a) Scope
(b) Inferences
(c) Prima Facie Evidence
(d) Presumptions
Section 302. Criminal Cases
(a) Scope
(b) Inferences
(c) Prima Facie Evidence
(d) Presumptions
ARTICLE IV. RELEVANCY AND ITS LIMITS
Section 401. Relevant Evidence
Section 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
Section 403. Grounds for Excluding Relevant Evidence
Section 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
(a) Character Evidence Generally
(1) Character of the Accused
(2) Character of the Victim
(3) Character of the Witness
(b) Other Crimes, Wrongs, or Acts
Section 405. Methods of Proving Character
(a) Reputation
(b) Specific Instances of Conduct
(c) Violent Character of the Victim
Section 406. Routine Practice of Business; Individual Habit
(a) Routine Practice of Business
(b) Individual Habit
Section 407. Subsequent Remedial Measures
(a) Exclusion of Evidence of Subsequent Remedial Measures
(b) Limited Admissibility
Section 408. Compromise and Offers to Compromise in Civil Cases
Section 409. Expressions of Sympathy in Civil Cases; Payment of Medical and Similar Expenses
(a) Expressions of Sympathy in Civil Cases
(b) Payment of Medical and Similar Expenses
Section 410. Inadmissibility of Pleas, Offers of Pleas, and Related Statements
Section 411. Insurance
(a) Exclusion of Evidence of Insurance
(b) Limited Admissibility
Section 412. Past Sexual Conduct and Alleged Sexual Reputation (Rape-Shield Law)
(a) Rape Shield
(b) Exceptions
(c) Procedure to Determine Admissibility
Section 413. First Complaint of Sexual Assault
(a) Admissibility of First Complaint
(b) Admissibility of Additional Reports of a Sexual Assault Under an Alternative Evidentiary Basis
ARTICLE V. PRIVILEGES AND DISQUALIFICATIONS
Inroductory Note
(a) General Duty to Give Evidence
(b) Interpretation of Privileges
(c) Most Privileges Are Not Self-Executing
(d) Confidentiality Versus Privilege
(e) Impounding Versus Sealing
(f) Examples of Relationships in Which There May Be a Duty to Treat Information as Confidential Even Though There Is No Testimonial Privilege
(1) Patient Medical Information
(2) Student Records
(3) Special Needs Student Records
(4) News Sources and Nonpublished Information
(5) Certain Documents, Records, and Reports
(6) Applicability of Federal Law
(g) Production of Presumptively Privileged Records from Nonparties Prior to Trial in Criminal Cases
(h) Nonevidentiary Privileges
(1) Immunity from Liability (Litigation Privilege)
(2) Legislative Deliberation Privilege
(2) Fair Report Privilege
Section 501. Privileges Recognized Only as Provided
Section 502. Attorney-Client Privilege
(a) Definitions
(b) General Rule of Privilege
(c) Who May Claim the Privilege
(d) Exceptions
(1) Furtherance of Crime or Fraud
(2) Claimants Through Same Deceased Client
(3) Breach of Duty or Obligation
(4) Document Attested by an Attorney
(5) Joint Clients
(6) Public Officer or Agency
Section 503. Psychotherapist-Patient Privilege
(a) Definitions
(b) Privilege
(c) Effect of Exercise of Privilege
(d) Exceptions
(1) Disclosure to Establish Need for Hospitalization or Imminently Dangerous Activity
(2) Court-Ordered Psychiatric Exam
(3) Patient Raises the Issue of Own Mental or Emotional Condition as an Element of Claim or Defense
(4) Party Through Deceased Patient Raises Issue of Decedent’s Mental or Emotional Condition as Element of Claim or Defense
(5) Child Custody and Adoption Cases
(6) Claim Against Psychotherapist
(7) Child Abuse or Neglect
(8) Exception
Section 504. Spousal Privilege and Disqualification; Parent-Child Disqualification
(a) Spousal Privilege
(1) General Rule
(2) Who May Claim the Privilege
(3) Exceptions
(b) Spousal Disqualification
(1) General Rule
(2) Exceptions
(c) Parent-Child Disqualification
(1) Definitions
(2) Disqualification
Section 505. Domestic Violence Victims’ Counselor Privilege
(a) Definitions
(1) Abuse
(2) Confidential Communication
(3) Domestic Violence Victims’ Counselor
(4) Domestic Violence Victims’ Program
(5) Victim
(b) Privilege
(c) Exception
Section 506. Sexual Assault Counselor–Victim Privilege
(a) Definitions
(1) Rape Crisis Center
(2) Sexual Assault Counselor
(3) Victim
(4) Confidential Communication
(b) Privilege
(c) Exception
Section 507. Social Worker–Client Privilege
(a) Definitions
(1) Client
(2) Communications
(3) Reasonable Precautions
(4) Social Worker
(b) Privilege
(c) Exceptions
Section 508. Allied Mental Health or Human Services Professional Privilege
(a) Definitions
(b) Privilege
(c) Waiver
(d) Exception
Section 509. Identity of Informer, Surveillance Location, and Protected Witness Privileges
(a) Identity of Informer
(b) Surveillance Location
(c) Protected Witness
(d) Who May Claim
Section 510. Religious Privilege
(a) Definitions
(b) Privilege
(c) Child Abuse
Section 511. Privilege Against Self-Incrimination
(a) Privilege of Defendant in Criminal Proceeding
(1) Custodial Interrogation
(2) Refusal Evidence
(3) Compelled Examination
(4) At a Hearing or Trial
(b) Privilege of a Witness
(c) Exceptions
(1) Waiver by Defendant’s Testimony
(2) Waiver by Witness’s Testimony
(3) Limitation
(4) Required Records
(5) Immunity
Section 512. Jury Deliberations
Section 513. Medical Peer Review Privilege
(a) Definitions
(b) Privilege
(1) Proceedings, Reports, and Records of Medical Peer Review Committee
(2) Work Product of Medical Peer Review Committee
(c) Exceptions
(d) Testimony Before Medical Peer Review Committee
(e) Non–Peer Review Records and Testimony
Section 514. Mediation Privilege
(a) Definition
(b) Privilege Applicable to Mediator Work Product
(c) Privilege Applicable to Parties’ Communications
(d) Privilege Applicable in Labor Disputes
Section 515. Investigatory Privilege
Section 516. Political Voter Disqualification
Section 517. Trade Secrets
Section 518. Executive or Governmental Privilege
Section 519. State and Federal Tax Returns
(a) State Tax Returns
(1) Disclosure by Commissioner of Revenue
(2) Production by Taxpayer
(3) Exceptions
(b) Federal Tax Returns
(1) General Rule
(2) Exceptions
Section 520. Tax Return Preparer
(a) Definition
(b) Privilege
Section 521. Sign Language Interpreter–Client Privilege
(a) Definitions
(1) Client
(2) Qualified Interpreter
(3) Confidential Communication
(b) Privilege
Section 522. Interpreter-Client Privilege
(a) Definitions
(1) Interpreter
(2) Non-English Speaker
(b) Privilege
(c) Scope
Section 523. Waiver of Privilege
(a) Who Can Waive
(b) Conduct Constituting Waiver
(c) Conduct Not Constituting Waiver
Section 524. Privileged Matter Disclosed Erroneously or Without Opportunity to Claim Privilege
Section 525. Comment upon or Inference from Claim of Privilege
(a) Civil Case
(b) Criminal Case
Section 526. Unemployment Hearing Privilege
(a) Statutory Bar on the Use of Information from Unemployment Hearing
(b) Exceptions
ARTICLE VI. WITNESSES
Section 601. Competency
(a) Generally
(b) Rulings
(c) Preliminary Questions
Section 602. Lack of Personal Knowledge
Section 603. Oath or Affirmation
Section 604. Interpreters
Section 605. Competency of Judge as Witness
Section 606. Competency of Juror as Witness
(a) At the Trial
Section 607. Who May Impeach
Section 608. Impeachment by Evidence of Character and Conduct of Witness
(a) Reputation Evidence of Character
(b) Specific Instances of Conduct
Section 609. Impeachment by Evidence of Conviction of Crime
(a) Generally
(1) Misdemeanor
(2) Felony Conviction Not Resulting in Committed State Prison Sentence
(3) Felony with State Prison Sentence Imposed
(4) Traffic Violation
(5) Juvenile Adjudications of Delinquency or Youthful Offender
(b) Effect of Being a Fugitive
Section 610. Religious Beliefs or Opinions
Section 611. Manner and Order of Interrogation and Presentation
(a) Control by Court
(b) Scope of Cross-Examination
(1) In General
(2) Bias and Prejudice
(c) Leading Questions
(d) Rebuttal Evidence
(e) Scope of Subsequent Examination
(f) Reopening
Section 612. Writing or Object Used to Refresh Memory
(a) While Testifying
(1) General Rule
(2) Production and Use
(b) Before Testifying
(1) Production
(2) Admissibility
Section 613. Prior Statements of Witnesses, Limited Admissibility
(a) Prior Inconsistent Statements
(1) Examining Own Witness
(2) Examining Other Witness
(3) Disclosure of Extrinsic Evidence
(4) Collateral Matter
(b) Prior Consistent Statements
(1) Generally Inadmissible
(2) Exception
Section 614. Calling and Interrogation of Witnesses by Court or Jurors
(a) Calling by Court
(b) Interrogation by Court
(c) Objections
(d) Interrogation by Jurors
Section 615. Sequestration of Witnesses
ARTICLE VII. OPINION AND EXPERT EVIDENCE
Section 701. Opinion Testimony by Lay Witnesses
Section 702. Testimony by Experts
Section 703. Bases of Opinion Testimony by Experts
Section 704. Opinion on Ultimate Issue
Section 705. Disclosure of Facts or Data Underlying Expert Opinion
Section 706. Court Appointed Experts
(a) Appointment
(b) Compensation
(c) Disclosure of Appointment
(d) Parties’ Experts of Own Selection
ARTICLE VIII. HEARSAY
Introductory Note
(a) Confrontation Clause and Hearsay in Criminal Cases
(1) Testimonial Versus Nontestimonial
(2) Certificates of Analysis
(3) Expert Testimony
(b) Confrontation Clause Inapplicable
(c) Massachusetts Law Versus Federal Law
(d) Waiver of Right to Confrontation
Section 801. Definitions
(a) Statement
(b) Declarant
(c) Hearsay
(d) Statements Which Are Not Hearsay
(1) Prior Statement by Witness
(2) Admission by Party-Opponent
Section 802. Hearsay Rule
Section 803. Hearsay Exceptions; Availability of Declarant Immaterial
(1) Present Sense Impression
(2) Excited Utterance (Spontaneous Utterance)
(3) Then-Existing Mental, Emotional, or Physical Condition
(4) Statements for Purposes of Medical Diagnosis or Treatment
(5) Past Recollection Recorded
(6) Business and Hospital Records
(A) Entry, Writing, or Record Made in Regular Course of Business
(B) Hospital Records
(C) Medical and Hospital Services
(7) Absence of Entry in Records Kept in Accordance with Provisions of Section 803(6)
(8) Official/Public Records and Reports
(A) Record of Primary Fact
(B) Prima Facie Evidence
(C) Record of Investigations
(9) Records of Vital Statistics
(10) Absence of Public Record or Entry
(11) Records of Religious Organizations
(12) Marriage, Baptismal, and Similar Certificates
(13) Family Records
(14) Records or Documents Affecting an Interest in Property
(15) Statements in Documents Affecting an Interest in Property
(16) Statements in Ancient Documents
(17) Statements of Facts of General Interest
(18) Learned Treatises
(A) Use in Medical Malpractice Actions
(B) Use in Cross-Examination of Experts
(19) Reputation Concerning Personal or Family History
(20) Reputation Concerning Boundaries or General History
(21) Reputation as to Character
(22) Judgment of Previous Conviction
(23) Judgment as to Personal, Family, or General History, or Boundaries
(24) Out-of-Court Statement of Child Describing Sexual Contact in Proceeding to Place Child in Foster Care
(A) Admissibility in General
(B) Reliability of Statement
(C) Findings on the Record
(D) Admissibility by Common Law or Statute
Section 804. Hearsay Exceptions; Declarant Unavailable
(a) Definition of Unavailability
(b) Hearsay Exceptions
(1) Prior Recorded Testimony
(2) Statement Made Under Belief of Impending Death
(3) Statement Against Interest
(4) Statement of Personal History
(5) Statutory Exceptions in Civil Cases.
(6) Forfeiture by Wrongdoing
(7) Religious Records
(8) Admissibility in Criminal Proceedings of a Child’s Out-of-Court Statement Describing Sexual Contact
(9) Out-of-Court Statement of Child Describing Sexual Contact in Civil Proceeding, Including Termination of Parental Rights
Section 805. Hearsay Within Hearsay
Section 806. Attacking and Supporting Credibility of Hearsay Declarant
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
Section 901. Requirement of Authentication or Identification
(a) General Provision
(b) Illustrations
(1) Testimony of Witness with Knowledge
(2) Nonexpert Opinion on Handwriting
(3) Comparison by Trier or Expert Witness
(4) Distinctive Characteristics and the Like
(5) Voice Identification
(6) Telephone Conversations
(7) Public Records or Reports
(8) Ancient Documents
(9) Process or System
(10) Methods Provided by Statute or Rule
Section 902. Self-Authentication
(a) Court Records Under Seal
(b) Domestic Official Records Not Under Seal
(c) Foreign Official Records
(d) Certified Copies of Public Records
(e) Official Publications
(f) Certain Newspapers
(g) Trade Inscriptions
(h) Acknowledged Documents
(i) Commercial Paper and Related Documents
(j) Presumptions Created by Law
(k) Certified Copies of Hospital and Other Records of Treatment and Medical History
(l) Copies of Hospital and Other Records of Itemized Bills and Reports
(m) Copies of Bills for Genetic Marker Tests and for Prenatal and Postnatal Care
(n) Results of Genetic Marker Tests
Section 903. Subscribing Witness Testimony Not Necessary
ARTICLE X. CONTENTS OF WRITINGS AND RECORDS
Section 1001. Definitions
(a) Writings and Records
(b) Original
(c) Duplicate
Section 1002. Requirement of Original (Best Evidence Rule)
Section 1003. Admissibility of Duplicates
Section 1004. Admissibility of Other Evidence of Contents
(a) Originals Lost or Destroyed
(b) Original Not Obtainable
(c) Original in Possession of Opponent
(d) Collateral Matters
Section 1005. Official Records
(a) Authentication
(1) Domestic
(2) Foreign
(b) Lack of Record
(c) Other Proof
Section 1006. Summaries
Section 1007. Testimony or Written Admission of Party
Section 1008. Functions of Judge and Fact Finder
ARTICLE XI. MISCELLANEOUS SECTIONS
Section 1101. Applicability of Evidentiary Sections
(a) Proceedings to Which Applicable
(b) Law of Privilege
(c) Sections Inapplicable
(1) Preliminary Determinations of Fact
(2) Grand Jury
(3) Miscellaneous Proceedings
(d) Motions to Suppress
Section 1102. Spoliation or Destruction of Evidence
Section 1103. Sexually Dangerous Person Proceedings
(a) Hearsay That Is Admissible
(b) Hearsay That May Be Admissible
Section 1104. Witness Cooperation Agreements
Section 1105. Third-Party Culprit Evidence
Section 1106. Abuse Prevention Act Proceedings
Section 1107. Inadequate Police Investigation Evidence
Section 1108. Access to Third-Party Records Prior to Trial in Criminal Cases (Lampron-Dwyer Protocol)
(1) Nonpresumptively Privileged Records
(2) Presumptively Privileged Records
Section 1109. View
INDEX