Appeals Court (October 14, 2010)

An abuse prevention order's supporting affidavit may be admitted as substantive evidence of a prior inconsistent statement.

A mother obtained a restrained order against the defendant (her husband) on behalf of her son. The mother's supporting affidavit and sworn testimony indicated that, while she was arguing with the defendant, he punched her son in the face, causing him to fall, bleed and become dazed. Police and EMT personnel arrived, saw the teen bleeding from his lip, and took him to the hospital where he received ten stitches.

At trial, the mother denied that the defendant punched the victim, instead stating that the defendant's elbow accidentally struck him. Despite the defense's objection, the prosecutor questioned the victim about her 209A testimony and admitted in evidence the supporting affidavit. The defendant was convicted of assault and battery, and he appealed claiming that the judge improperly admitted the 209A affidavit as substantive evidence at trial. The defendant argued that the evidence was insufficient and based on inadmissible hearsay.

The Daye Rule
In Commonwealth v. Daye, 393 Mass. 55 (1984), the SJC adopted Proposed Mass. R. Evid. 801(d)(1)(A), permitting the admission of a sworn prior inconsistent statement in grand jury testimony for its probative value when the declarant is subject to cross-examination at trial. The Daye rule has since been expanded to apply to probable cause hearing testimony and to testimony in a prior trial.

In this case, the Court determined "that the Daye rule may appropriately be expanded to apply to c. 209A affidavits that result in the issuance of an abuse protection order." The Court reasoned that 209A affidavits are reliable because they are written under the pains and penalties of perjury, and they are part of a complaint that must be brought in court before a judge.

The Court then applied the two Daye criteria for the admission of a sworn prior inconsistent statement as substantive evidence: 1) the declarant must be subject to cross-examination by the defense, and 2) the prior statement must have been in the declarant's own words. Finding that the Daye criteria were satisfied, the Court then found that the 209A affidavit was sufficiently corroborated by evidence of the victim's ten stitches and the medical records. The Court affirmed the conviction for assault and battery.