Guide to Evidence  Article V. Introductory note

(a) General duty to give evidence 

A privilege is an exception to the general duty of a witness to offer evidence. Commonwealth v. Corsetti, 387 Mass. 1, 5 (1982). 

(b) Interpretation of privileges

“Testimonial privileges are exceptions to the general duty imposed on all people to testify, and therefore must be strictly construed” (quotations and citations omitted). Commonwealth v. Oliveira, 438 Mass. 325, 330 (2002). See also Matter of a Grand Jury Subpoena, 430 Mass. 590, 593–594, 597–599 (2000);  Commonwealth v. Corsetti, 387 Mass. 1, 5 (1982). In criminal cases, even statutory privileges may be pierced when necessary to preserve a defendant’s constitutional rights. See Commonwealth v. Dwyer, 448 Mass. 122, 144 (2006). 

(c) Most privileges are not self-executing 

Most privileges require “some action by the patient or client . . . to ‘exercise’ the privilege.”  Commonwealth v. Oliveira, 438 Mass. 325, 331 (2002) (psychotherapist-patient privilege). See Commonwealth v. Pelosi, 441 Mass. 257, 261 (2004) (social worker–client privilege); District Attorney for the Plymouth Dist. v. Board of Selectmen of Middleborough, 395 Mass. 629, 633–634 (1985) (attorney-client privilege); Commonwealth v. Brennan, 386 Mass. 772, 780 (1982) (privilege against self-incrimination). The Legislature can create a privilege that is automatic and that does not require any action on the part of the holder of the privilege. See Oliveira, 438 Mass. at 331 n.7 (“the sexual assault counsellor-victim privilege created by G. L. c. 233, § 20J . . . does not suggest that the victim need do anything to ‘exercise’ the privilege contained therein, or to ‘refuse’ to disclose the communications, or to ‘prevent’ the counsellor from disclosing the communications.”). See also Borman v. Borman, 378 Mass. 775, 787 (1979) (Code of Professional Responsibility applicable to lawyers is self-executing). In the case of a privilege that is not self-executing, it may be appropriate for the proponent of the privilege to temporarily assert the privilege pending notice to the party which holds the privilege. See Oliveira, 438 Mass. at 332 n.8. 

(d) Confidentiality versus privilege 

There is a distinction between a duty of confidentiality and an evidentiary privilege. See Commonwealth v. Vega, 449 Mass. 227, 229 n.7 (2007), citing Commonwealth v. Brandwein, 435 Mass. 623, 628 n.7 (2002). A duty of confidentiality obligates one, such as a professional, to keep certain information, often about a client or patient, confidential. It also may impose an obligation on a State agency. See G. L. c. 66A, §§ 1, 2. See also G. L. c. 233, § 20M (confidential communication between human trafficking victim and victim's caseworker). 

“A provider’s obligation to keep matters confidential may stem from a statute imposing such an obligation (oftentimes with a host of exceptions to that obligation), or may arise as a matter of professional ethics.”  Commonwealth v. Oliveira, 438 Mass. 325, 335 (2002). When a duty of confidentiality is set forth in a statute, there may or may not be an accompanying evidentiary privilege. See Vega, 449 Mass. at 233–234 (holding that G. L. c. 112, § 172, imposes a duty of confidentiality and creates an evidentiary privilege). Sometimes, the duty of confidentiality and the corresponding evidentiary privilege are set forth in separate statutes. See, e.g., G. L. c. 112, §§ 135A and 135B (social workers), and G. L. c. 112, § 129A, and G. L. c. 233, § 20B (psychologists and psychotherapists). In other cases, the duty of confidentiality and a privilege exist in the same statute. See Vega, 449 Mass. at 232, citing G. L. c. 233, § 20J (sexual assault counselors) and G. L. c. 233, § 20K (domestic violence counselors). 

In some circumstances, when a provider breaches a duty of confidentiality, the absence of an accompanying evidentiary privilege may permit a party in litigation to gain access to the information or to offer it in evidence. See Brandwein, 435 Mass. at 628–629 (access to information improperly disclosed by a nurse in violation of her professional duty of confidentiality was not otherwise covered by an evidentiary privilege); Commonwealth v. Senior, 433 Mass. 453, 457 n.5 (2001) (noting the distinction between the confidentiality of medical and hospital records under G. L. c. 111, § 70, and the absence of a physician-patient privilege). 

(e) Impounding versus sealing

In Pixley v. Commonwealth, 453 Mass. 827 (2009), the Supreme Judicial Court addressed the difference between impounding and sealing: 

“The terms ‘impounded’ and ‘sealed’ are closely related and often used interchangeably, but are meaningfully different. Under the Uniform Rules o[n] Impoundment Procedure 1708 (LexisNexis 2008), which governs impoundment in civil proceedings and guides practice in criminal matters as well, ‘impoundment’ means ‘the act of keeping some or all of the papers, documents, or exhibits, or portions thereof, in a case separate and unavailable for public inspection.’ Rule 1 of the Uniform Rules o[n] Impoundment Procedure. Consequently, an order of impoundment prevents the public, but not the parties, from gaining access to impounded material, unless otherwise ordered by the court. A document is normally ordered ‘sealed’ when it is intended that only the court have access to the document, unless the court specifically orders limited disclosure. Therefore, we directed in Commonwealth v. Martin, [423 Mass. 496, 505 (1996),] that the record of the in camera hearing ‘should be kept, under seal.’ Similarly, we ordered that privileged psychological or counseling records of an alleged victim of a sexual assault be ‘retained in court under seal,’ but permitted defense counsel to have access pursuant to a strict protective order. Commonwealth v. Dwyer, 448 Mass. 122, 146 (2006).” 

Pixley, 453 Mass. at 836 n.12. Martin hearings are discussed in the Note to Section 511(b), Privilege Against Self-Incrimination: Privilege of a Witness. The Lampron-Dwyer protocol is summarized in Section 1108, Access to Third-Party Records Prior to Trial in Criminal Cases (Lampron-Dwyer Protocol). 

(f) Examples of relationships in which there may be a duty to treat information as confidential even though there is no testimonial privilege

Examples include the following: 

(1) Patient Medical Information.

There is no doctor-patient privilege recognized under Massachusetts law. Bratt v. International Business Machs. Corp., 392 Mass. 508, 522–523 n.22 (1984). See also  Commonwealth v. Senior, 433 Mass. 453, 456–457 (2001); Tower v. Hirschhorn, 397 Mass. 581, 588 (1986). However, physicians have a duty not to make out-of-court disclosures of medical information about the patient without the patient’s consent, Alberts v. Devine, 395 Mass. 59, 67–68, cert. denied sub nom., Carroll v. Alberts, 474 U.S. 1013 (1985), unless disclosure is necessary to meet a serious danger to the patient or others. Id. A breach of doctor-patient confidentiality does not require exclusion of the evidence, Senior, 433 Mass. at 457 n.5, citing Schwartz v. Goldstein, 400 Mass. 152, 153 (1987), but may subject the offending doctor to an action for damages. Alberts, 395 Mass. at 65–69. 

(2) Student Records.

“There is no privilege which would prevent the introduction of relevant school records in evidence at a trial.” Commonwealth v. Beauchemin, 410 Mass. 181, 185 (1991). However, the Legislature has recognized that privacy interests are at stake. School records pertaining to specific individuals are not subject to disclosure under our public records law if disclosure “may constitute an unwarranted invasion of personal privacy.” G. L. c. 4, § 7, Twenty-sixth (c). See also G. L. c. 66, § 10. Access to student records is also restricted under regulations promulgated by the State board of education pursuant to G. L. c. 71, § 34D. See Commonwealth v. Buccella, 434 Mass. 473, 477 (2001) (third persons may access “student records” only with written consent from student or student’s parents unless an exception promulgated by regulation applies). 

(3) Special Needs Student Records.

Records of the clinical history and evaluations of students with special needs created or maintained in accordance with G. L. c. 71B “shall be confidential.” G. L. c. 71B, § 3. 

(4) News Sources and Nonpublished Information.

Before ordering a reporter to divulge a source and the information gathered, a judge must “consider the effect of compelled disclosure on values underlying the First Amendment and art. 16.” Petition for Promulgation of Rules Regarding the Protection of Confidential News Sources & Other Unpublished Info., 395 Mass. 164, 171 (1985). Accordingly, a judge must balance the public interest in the use of every person’s evidence against the public interest in protecting the free flow of information. Matter of a John Doe Grand Jury Investigation, 410 Mass. 596, 599 (1991). See also Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 403 n.33 (2005). 

(5) Certain Documents, Records, and Reports.

A nonexhaustive list of confidentiality statutes includes the following: 

• G. L. c. 4, § 6, Twenty-sixth (documents and records); 
• G. L. c. 6, § 167 et seq. (Criminal Offender Record Information [C.O.R.I.]); 
• G. L. c. 41, § 97D (reports of rape and sexual assault); 
• G. L. c. 66A, §§ 1, 2 (personal data held by Commonwealth agencies); 
• G. L. c. 111, §§ 70, 70E (hospital records); 
• G. L. c. 111, §70F (HIV test results); 
• G. L. c. 111, § 70G (genetic testing); 
• G. L. c. 111B, § 11 (alcohol treatment); 
• G. L. c. 111E, § 18 (drug treatment); 
• G. L. c. 112, § 129A (psychologist-patient communications); 
• G. L. c. 119, § 51E (Department of Children and Families records); 
• G. L. c. 119, §§ 60–60A (juvenile records); 
• G. L. c. 123, §§ 36–36A (Department of Mental Health records); 
• G. L. c. 123B, § 17 (Department of Developmental Services records); 
• G. L. c. 127, § 29 (Department of Correction records); 
• G. L. c. 127, § 130 (parole board); and 
• G. L. c. 148, § 32 (fire insurance). 

There are also numerous regulations (Code Mass. Regs.) which contain confidentiality requirements. 

(6) Applicability of Federal Law.

The Constitution of the United States or an act of Congress may govern the applicability of a privilege in Massachusetts State courts. See, e.g., 23 U.S.C. § 409 (protecting from disclosure in discovery or at trial and in Federal or State court proceedings information “compiled or collected” in connection with certain Federal highway safety programs); Pierce County v. Guillen, 537 U.S. 129, 146–148 (2003) (23 U.S.C. § 409 is a valid exercise of congressional power under the commerce clause and is binding on the States). Accord Boyd v. National R.R. Passenger Corp., 62 Mass. App. Ct. 783, 795–797 (2005). Access to records also may be restricted by Federal law. See, e.g., Commonwealth v. Nathaniel N., 54 Mass. App. Ct. 200, 206 (2002); Health Insurance Portability and Accountability Act (of 1996) (HIPAA), Pub. L. No. 104-191 (codified as amended at 42 U.S.C. § 1320d et seq.). 

(g) Production of presumptively privileged records from nonparties prior to trial in criminal cases

Whenever a party in a criminal case seeks production of any records (privileged or nonprivileged) from nonparties prior to trial, Mass. R. Crim. P. 17(a)(2) must be satisfied. Commonwealth v. Lampron, 441 Mass. 265, 268 (2004). See also Commonwealth v. Odgren, 455 Mass. 171, 187 (2009). When Mass. R. Crim. P. 17(a)(2) has been satisfied and a nonparty has produced records to the court, the protocol set forth in Commonwealth v. Dwyer, 448 Mass. 122, 139–147 (2006), governs review or disclosure of presumptively privileged records by defense counsel. To reference the forms promulgated by the Supreme Judicial Court, see the record online.

Cross-Reference: Section 1108, Access to Third-Party Records Prior to Trial in Criminal Cases (Lampron-Dwyer Protocol). 

(h) Nonevidentiary privileges

There are certain so-called privileges which concern nonevidentiary areas. Basically, they are defenses to suit and include the following: 

(1) Litigation Privilege (Absolute Immunity from Civil Liability).

(A) Communications During Litigation.

Parties, witnesses, and attorneys enjoy absolute immunity from civil liability for written or oral communications during and as a part of a judicial or quasi-judicial proceeding—even for fraudulent misrepresentations and communications uttered maliciously or in bad faith. See Bassichis v. Flores, 490 Mass. 143, 150 (2022); Correllas v. Viveiros, 410 Mass. 314, 319–321 (1991); Sriberg v. Raymond, 370 Mass. 105, 108 (1976). Accord Hoar v. Wood, 44 Mass. 193, 196–198 (1841); Patriot Group, LLC v. Edmands, 96 Mass. App. Ct. 478, 484–485 (2019). See also Visnick v. Caulfield, 73 Mass. App. Ct. 809, 812–813 (2009) (proceedings before Equal Employment Opportunity Commission “sufficiently judicial in nature” for privilege to apply). The litigation privilege allows parties, counsel, and witnesses “to speak freely while asserting their legal rights or participating in judicial proceedings.” Haverhill Stem LLC v. Jennings, 99 Mass. App. Ct. 626, 636 (2021). The privilege “promotes zealous advocacy by allowing attorneys ‘complete freedom of expression and candor in communications in their efforts to secure justice for their clients.’” Bassichis, 490 Mass. at 151, quoting Sriberg, 370 Mass. at 109. With respect to witnesses, the privilege is based on the view that “it is more important that witnesses be free from the fear of civil liability for what they say than that a person who has been defamed by their testimony have a remedy.” Aborn v. Lipson, 357 Mass. 71, 72 (1970).

(B) Communications Before Litigation.

The litigation privilege applies in certain circumstances to communications made preliminary to a judicial proceeding. See Bassichis, 490 Mass. at 150. The communication must “relat[e] to a proceeding which is contemplated in good faith and which is under serious consideration.” Sriberg, 370 Mass. at 109. When out-of-court statements are at issue, a “fact-specific” analysis is necessary to determine whether the statements sufficiently relate to litigation. Compare Haverhill Stem LLC, 99 Mass. App. Ct. at 636 (privilege not applicable to threats to use litigation to secure monetary relief because no monetary relief was available in contemplated Land Court action), and Harmon Law Offices, P.C. v. Attorney Gen., 83 Mass. App. Ct. 830, 838 (2013) (privilege not applicable to documents sought by attorney general because law firm failed to establish that documents related to judicial proceedings contemplated or instituted by firm), with Correllas, 410 Mass. at 320–321 (privilege applied to statements made to police or prosecutors in context of proposed judicial proceeding), and Visnick, 73 Mass. App. Ct. at 812 (privilege applied to employee’s statements in letter to former employer explaining that employee resigned because of sexual harassment and intended to pursue matter with Equal Employment Opportunity Commission and Massachusetts Commission Against Discrimination). The privilege extends to statements made by attorneys in conferences and other communications preliminary to litigation but “would not appear to encompass” counselling and assisting clients in business matters generally. Kurker v. Hill, 44 Mass. App. Ct. 184, 192 (1998). 

(C) Conduct Related to Litigation.

At least with respect to claims against attorneys, once a judicial proceeding has commenced, the privilege extends beyond an attorney’s communications and includes the attorney’s actions during the course of, and related to, the proceeding. See Bassichis, 490 Mass. at 156–159. By contrast, the privilege does not extend to attorneys’ conduct in counselling and advising clients in business matters generally. See Id. at 150; Patriot Group, LLC, 96 Mass. App. Ct. at 484. See also Mack v. Wells Fargo Bank, N.A., 88 Mass. App. Ct. 664, 670 (2015) (privilege does not bar claims under Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., where attorney acts as a debt collector); Harmon Law Offices, P.C., 83 Mass. App. Ct. at 837 n.9 (law firm may be liable under G. L. c. 93A for conduct beyond traditional representation). Trial judges retain the inherent authority to sanction attorneys for making false representations to the court or for other misconduct, and attorneys may also be subject to disciplinary proceedings for violating the rules of professional conduct. Bassichis, 490 Mass. at 159–160.

With respect to claims against parties other than attorneys, the privilege protects speech and does not extend to conduct in furtherance of litigation, such as filing a lawsuit. Gillette Co. v. Provost, 91 Mass. App. Ct. 133, 140–143 (2017). In this context, determining whether the privilege applies may require a nuanced analysis of whether the claims are based on statements or conduct. Id. at 140–142. “‘[T]he privilege does not attach . . . where it is not the statements themselves that are said to be actionable,’ such as where the statements are being used as evidence of the defendants’ misconduct.” Haverhill Stem LLC, 99 Mass. App. Ct. at 636–637, quoting Gillette Co., 91 Mass. App. Ct. at 141 (parties’ threats to use litigation to obtain monetary relief and cause financial ruin not protected by privilege because threats “fairly can be viewed as part of the conduct of extortion”).

(2) Legislative Deliberation Privilege.

Conduct or speech by a member of the Legislature in the course of exercising the member’s duties as a legislator is absolutely privileged and cannot be the basis of any criminal or civil prosecution. See Article 21 of the Massachusetts Declaration of Rights (“[t]he freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever”). This provision also establishes a privilege applicable to “the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office.” Coffin v. Coffin, 4 Mass. 1, 27 (1808). Because a municipality’s exercise of the power of eminent domain is a “quintessentially legislative” action, the privilege covers communications between city councilors regarding whether and why a property should be taken. Abuzahra v. City of Cambridge, 101 Mass. App. Ct. 267, 274–275 (2022).

(3) Fair Report Privilege.

The fair report privilege is a common-law rule that protects from liability the republisher of a newsworthy account of one person’s defamation of another so long as it is fair and accurate. See Howell v. Enterprise Publ. Co., LLC, 455 Mass. 641, 650–651 (2010), and cases cited. Whether a report was fair and accurate is a matter of law to be determined by a judge, unless there is a basis for divergent views. Butcher v. University of Mass., 483 Mass. 742, 757 (2019).

“The privilege recognizes that (1) the public has a right to know of official government actions that affect the public interest, (2) the only practical way many citizens can learn of these actions is through a report by the news media, and (3) the only way news outlets would be willing to make such a report is if they are free from liability, provided that their report was fair and accurate.” 

ELM Med. Lab, Inc. v. RKO Gen., Inc., 403 Mass. 779, 782 (1989). Newspapers are on “solid ground” when they report on “formal (as opposed to informal) governmental (as opposed to private) proceedings and actions.” Howell, 455 Mass. at 655–656. In such cases, “the privilege extends to reports of official actions based on information provided by non-official third-party sources.” Id. at 658.

The privilege does not automatically apply to all information included in a police blotter. However, “once police undertake an official response to a complaint, both that response and the allegations that gave rise to it fall within the fair report privilege.” Butcher, 483 Mass. at 755. Further, a police request to local journalists for assistance in identifying an unknown person is an official act protected by the fair report privilege. Id. at 756. The privilege extends to a summary republication that is not a verbatim reproduction of the original source, so long as the summary does not “transform” or “enhance” the “defamatory ‘sting’” of the statements. Id. at 757–758.

“The privilege is not absolute” and “may ‘be vitiated by misconduct on the newspapers’ part, but that misconduct must amount to more than negligent, or even knowing, republication of an inaccurate official statement” (internal citation omitted). Howell, 455 Mass. at 651 n.8. If the source is unofficial or anonymous, “a report based on that source runs a risk that the underlying official action will not be accurately and fairly described by the source, and therefore will not be protected by the privilege, or that the information provided will go beyond the bounds of the official action and into un-privileged territory” (footnote omitted). Id. at 659.  

(4) Communications with Board of Bar Overseers and Bar Counsel.

In Bar Counsel v. Farber, 464 Mass. 784, 787 (2013), the Supreme Judicial Court interpreted S.J.C. Rule 4:01, § 9, to provide a complainant with “absolute immunity from any civil liability with respect to his complaint and its allegations and . . . with respect to testimony that the complainant may provide in the course of a proceeding before a hearing committee of the board.” Id. at 787. The court further explained that the rule does not extend this immunity to statements made or testimony provided by the complainant “to a person or entity outside a bar discipline proceeding.” Id. This is true even when the communication to someone outside a bar disciplinary proceeding is identical to the protected communication. Id. at 793. 

(5) Legitimate Business Interest.

There is a conditional privilege to publish defamatory matter if the publication is reasonably necessary to the protection or furtherance of a legitimate business interest. Bratt v. International Business Machs. Corp., 392 Mass. 508, 512–513 (1984). The business interest privilege applies to protect communications between two parties with a common interest in the subject matter of the communication. Downey v. Chutehall Constr. Co., 86 Mass. App. Ct. 660, 666 (2014).