Guide to Evidence  Article V: Privileges and disqualifications

(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 http://perma.cc/45WM-J4NE.

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).

Except as otherwise provided by constitution, statute, rules promulgated by the Supreme Judicial Court, or the common law, no person has a privilege to

(a) refuse to be a witness,

(b) refuse to disclose any matter,

(c) refuse to produce any object or writing, or

(d) prevent another from being a witness or disclosing any matter or producing any object or writing.

Note

This section, which is taken nearly verbatim from Proposed Mass. R. Evid. 501, reflects Massachusetts practice. Subsections (a), (b), and (c) follow the “long­standing principle that the public . . . has a right to every man’s evidence” (quotations omitted). Matter of Roche, 381 Mass. 624, 633 (1980). See also G. L. c. 233, § 20 (“[a]ny person of sufficient understanding, although a party, may testify in any proceeding, civil or criminal, in court or before a person who has authority to receive evidence”).

“A witness may not decline to respond to a proper question on the ground that his answer might embarrass him (or another). . . . Nor can fear of harm to the witness generally be offered as an excuse for declining testimony. Relief of witnesses on this ground would encourage intimidation of those in possession of information and proclaim a sorry confession of weakness of the rule of law” (citation omitted).

Commonwealth v. Johnson, 365 Mass. 534, 543–544 (1974). Subsection (d) is derived from Commonwealth v. Edwards, 444 Mass. 526, 536 (2005) (“forfeiture by wrongdoing” doctrine adopted).

The Supreme Judicial Court has the power to create privileges under the common law. Babets v. Secretary of Human Servs., 403 Mass. 230, 234 (1988). However, the creation of a new privilege or the expansion of an existing privilege is usually left to the Legislature, which is better equipped to weigh competing social policies or interests. Matter of a Grand Jury Subpoena, 430 Mass. 590, 597–598 (2000).

Address of Witness. A party seeking to elicit information about the home or employment address of a witness must demonstrate that the information is relevant in accordance with Section 402, General Admissibility of Relevant Evidence. However, “the very starting point in exposing falsehood and bringing out the truth through cross-examination must necessarily be to ask the witness who he is and where he lives” (quotations and citation omitted). Smith v. Illinois, 390 U.S. 129, 131 (1968). Nonetheless, such evidence may be excluded if the trial judge makes a preliminary finding that any relevance is outweighed by the risks to the safety of the witness. See Commonwealth v. McGrath, 364 Mass. 243, 250–252 (1973). In a criminal case, the trial judge must weigh the safety concerns of the witness against the defendant’s right to confrontation. See McGrath v. Vinzant, 528 F.2d 681, 685 (1st Cir. 1976). A witness’s general concerns for privacy or personal safety, without more, are not sufficient to overcome the defendant’s right to confrontation under Article 12 of the Massachusetts Declaration of Rights and the Sixth Amendment. See Commonwealth v. Johnson, 365 Mass. 534, 544–547 (1974). See also Commonwealth v. Francis, 432 Mass. 353, 357 (2000) (In a murder case, Supreme Judicial Court relied on McGrath and upheld trial judge’s ruling that “defense counsel could ask Rodriguez whether he was engaged in an occupation other than selling drugs, but not his specific employment or his employment address, and whether he now lived in western Massachusetts or in Connecticut, but not his city of residence or residential address. He also prohibited defense counsel from investigating these matters.”); Commonwealth v. Righini, 64 Mass. App. Ct. 19, 25–26 n.5 (2005) (relying on reasoning of McGrath to explain why criminal defendants are ordinarily not entitled to obtain dates of birth of police witnesses). The existence of valid safety concerns on the part of a witness may be inherent in the nature of the criminal charges. Francis, 432 Mass. at 358 n.3.

(a) Definitions

As used in this section, the following words shall have the following meanings:

(1) A “client” is a person, public officer, or corporation, association, or other entity, either public or private, who is rendered professional legal services by an attorney, or who consults an attorney with a view to obtaining professional legal services.

(2) A “representative of the client” may include the client’s agent or employee.

(3) An “attorney” is a person who is authorized to practice law.

(4) A “representative of the attorney” is one used by the attorney to assist the attorney in providing professional legal services.

(5) A communication is “confidential” if it is not intended to be disclosed to third persons other than those to whom disclosure is made to obtain or provide professional legal services to the client, and those reasonably necessary for the transmission of the communication.

(b) General rule of privilege

A client has a privilege to refuse to disclose and to prevent others from disclosing confidential communications made for the purpose of obtaining or providing professional legal services to the client as follows:

(1) between the client or the client’s representative and the client’s attorney or the attorney’s representative,

(2) between the client’s attorney and the attorney’s representative,

(3) between those involved in a joint defense,

(4) between representatives of the client or between the client and a representative of the client, or

(5) among attorneys and their representatives representing the same client.

(c) Who may claim the privilege

The privilege may be claimed by the client, the client’s guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization whether or not in existence at the time the privilege is claimed. The attorney or the attorney’s representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.

(d) Exceptions

The attorney-client privilege does not apply to the following:

(1) Furtherance of Crime or Fraud. If the services of the attorney were sought or obtained to commit or to plan to commit what the client knew or reasonably should have known was a crime or fraud;

(2) Claimants Through Same Deceased Client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction;

(3) Breach of Duty or Obligation. As to a communication relevant to an issue of breach of duty between an attorney and client;

(4) Document Attested by an Attorney. As to a communication relevant to an issue concerning an attested document to which the attorney is an attesting witness;

(5) Joint Clients. As to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any one of them to an attorney retained or consulted in common, when offered in an action between or among any of the clients; or

(6) Public Officer or Agency. [Privilege not recognized]

Note

Introduction. The Supreme Judicial Court has defined the attorney-client privilege as follows:

“The classic formulation of the attorney-client privilege . . . is found in 8 J. Wigmore, Evidence § 2292 (McNaughton rev. ed. 1961): (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived. The purpose of the privilege is to enable clients to make full disclosure to legal counsel of all relevant facts . . . so that counsel may render fully informed legal advice with the goal of promot[ing] broader public interests in the observance of law and administration of justice.” (Quotations and citations omitted.)

Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 303 (2009).

“The existence of the privilege and the applicability of any exception to the privilege is a question of fact for the judge. The burden of proving that the attorney-client privilege applies to a communication rests on the party asserting the privilege. This burden extends not only to a showing of the existence of the attorney-client relationship but to all other elements involved in the determination of the existence of the privilege, including (1) the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) the communications were made in confidence; and (3) the privilege as to these communications has not been waived.” (Citations omitted.)

Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. (Bermuda), 425 Mass. 419, 421 (1997). This privilege is narrowly construed and not self-executing. See Attorney Gen. v. Facebook, Inc., 487 Mass. 109, 122 (2021); District Attorney for the Plymouth Dist. v. Board of Selectmen of Middleborough, 395 Mass. 629, 633–634 (1985).

Subsection (a)(1). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(a)(1), reflects Massachusetts practice. The term “client” includes more than simply natural persons. See Mass. R. Prof. C. 1.13 (2015). See also Matter of a Grand Jury Investigation, 437 Mass. 340, 351–352 (2002); Bays v. Theran, 418 Mass. 685, 690 (1994).

An attorney-client relationship may be expressly created or implied as a matter of law. Cesso v. Todd, 92 Mass. App. Ct. 131, 135 (2017). An attorney-‌client relationship may be implied “when (1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney’s professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance.” DeVaux v. American Home Assur. Co., 387 Mass. 814, 817–818 (1983), quoting Kurtenback v. TeKippe, 260 N.W.2d 53 (Iowa 1977). See Cesso, 92 Mass. App. Ct. at 135. The attorney-client privilege survives the death of the client. Matter of a John Doe Grand Jury Investigation, 408 Mass. 480, 483 (1990).

Subsection (a)(2). This subsection is derived from Ellingsgard v. Silver, 352 Mass. 34, 40 (1967) (“The attorney-client privilege may extend to communications from the client’s agent or employee to the attorney.”). The Supreme Judicial Court has yet to determine the scope of the privilege when the client is an organization such as a corporation. See Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep’t of Mental Retardation, 424 Mass. 430, 457 n.26 (1997) (attorney-client privilege not automatically extended to all employees of corporation who communicate with corporation’s attorney). Cf. Messing, Rudavsky & Weliky v.President & Fellows of Harvard College, 436 Mass. 347, 357 (2002) (a lawyer is barred from ex parte contact with employees of a corporation, under the rule of professional responsibility prohibiting a lawyer from communicating with a represented party in the absence of that party’s counsel, only as to employees who exercise managerial responsibility with regard to the subject of pending litigation, those alleged to have committed wrongful actions at issue in the litigation, and employees with authority to make decisions about the course of litigation or having management authority sufficient to speak for and bind the corporation).

Subsection (a)(3). This subsection is derived from Barnes v. Harris, 61 Mass. 576, 576–577 (1851).

Subsection (a)(4). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(a)(4), reflects Massachusetts practice. In Foster v. Hall, 29 Mass. 89 (1831), the court explained that the attorney-client privilege applied to communications to members of the legal profession, and also to those who “facilitate the communication between attorney and client, as interpreters, agents, and attorneys’ clerks” (citations omitted). Id. at 94.

Subsection (a)(5). This subsection is derived from Commissioner of Revenue v. Comcast Corp., 453 Mass. 293 (2009), and DaRosa v. City of New Bedford, 471 Mass. 446 (2015). The privilege “only protects communications between the attorney and the client about [underlying] factual information, not the facts themselves.” Attorney Gen. v. Facebook, Inc., 487 Mass. 109, 123 (2021). In general, “information contained within a communication need not itself be confidential for the communication to be deemed privileged; rather the communication must be made in confidence—that is, with the expectation that the communication will not be divulged.” Comcast Corp., 453 Mass. at 305. Thus, “[c]ommunications between an attorney and his client are not privileged, though made privately, if it is understood that the information communicated is to be conveyed to others.” Peters v. Wallach, 366 Mass. 622, 627 (1975). 

The Supreme Judicial Court, however, has recognized a derivative attorney-client privilege that “can shield communications of a third party employed to facilitate communication between the attorney and client and thereby assist the attorney in rendering legal advice to the client.” Comcast Corp., 453 Mass. at 306, citing United States v. Kovel, 296 F.2d 918, 921–922 (2d Cir. 1961). See also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., Inc., 449 Mass. 609, 616 (2007). “The purpose of the derivative attorney-client privilege is to maintain the [attorney-client] privilege for communications between the attorney and the client in circumstances where a third party’s presence would otherwise constitute a waiver of the privilege.” DaRosa, 471 Mass. at 463–464. 

But the derivative attorney-client privilege is “sharply limited in scope.” DaRosa, 471 Mass. at 463. “It attaches only when the third party’s role is to clarify or facilitate communications between attorney and client, as where the third party functions as a translator between the client and the attorney, and is therefore nearly indispensable or serves some specialized purpose in facilitating the attorney-client communications” (quotations, citations, and brackets omitted). Id. “The privilege does not apply simply because ‘an attorney’s ability to represent a client is improved, even substantially, by the assistance’ of an expert.” Id., quoting Comcast Corp., 453 Mass. at 307. 

“In short, the derivative attorney-client privilege protects otherwise privileged communications between an attorney and client despite the presence of a third party where, without the assistance of the third party, what the client says would be ‘Greek’ to the attorney, either because the client is actually speaking in Greek or because the information provided by the client is so technical in nature that it might as well be spoken in Greek if there were not an expert to interpret it for the attorney.” 

DaRosa, 471 Mass. at 463 (concluding that communications at issue failed to meet this test because, even if third party’s analysis were “critical” to attorney’s ability to effectively represent his client, third party was “translating” public record technical data, “not confidential communications from the client”). See also Comcast Corp., 453 Mass. at 309 (concluding that derivative attorney-client privilege did not apply because attorney’s “purpose in consulting [third party] was to obtain advice about Massachusetts tax law, not to assist [attorney] with comprehending his client’s information.”).

Subsection (b). Subsections (b)(1), (2), (4), and (5) are derived from Proposed Mass. R. Evid. 502(b), which was cited with approval in Purcell v. District Attorney for the Suffolk Dist., 424 Mass. 109, 115 (1997) (“The attorney-client privilege applies only when the client’s communication was for the purpose of facilitating the rendition of legal services.”). See McCarthy v. Slade Assocs., Inc., 463 Mass. 181, 191 n.21 (2012) (privilege applies to confidential communications by attorney as well as client). Subsection (b)(3) is derived from Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., Inc., 449 Mass. 609, 614–617 (2007), where the Supreme Judicial Court recognized the “common interest doctrine” and adopted the principle of the Restatement (Third) of the Law Governing Lawyers § 76(1) (2000), which states as follows:

“If two or more clients with a common interest in a litigated or nonlitigated matter are represented by separate lawyers and they agree to exchange information concerning the matter, a communication of any such client that otherwise qualifies as privileged . . . that relates to the matter is privileged as against third persons. Any such client may invoke the privilege, unless it has been waived by the client who made the communication.”

This principle expresses the component of the doctrine known as “joint defense agreements,” “joint defense privilege,” or “joint prosecution privilege.” See also Proposed Mass. R. Evid. 502(b)(3). In Hanover Ins. Co., 449 Mass. at 618, the Supreme Judicial Court explained that the common-interest doctrine depends on communications that are protected by the attorney-client privilege and is simply an exception to the waiver of the privilege. Thus, there is no requirement of a writing. Id. at 618. The court also explained that the legal interests of the parties do not have to be identical in order for the common-interest doctrine to apply. Parties will be deemed to have a common interest when they “share a sufficiently similar interest and attempt to promote that interest by sharing a privileged communication” (quotation and citation omitted). Id. at 619. Finally, the Supreme Judicial Court also noted that Section 76(2) of the Restatement is consistent with Massachusetts law. Id. at 614 n.4. Section 76(2) states that “[u]nless the clients have agreed otherwise, a communication described in Subsection (1) is not privileged as between clients described in Subsection (1) in a subsequent adverse proceeding between them.” Id., quoting Restatement (Third) of the Law Governing Lawyers § 76(2) (2000).

Subsection (c). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(c), reflects Massachusetts practice. See District Attorney for the Norfolk Dist. v. Magraw, 417 Mass. 169, 172–173 (1994). In the case of litigation between a corporation and its shareholders, the corporation may assert the privilege against a shareholder whose interests are opposed to the corporation’s interests, because the privilege belongs to the corporation and not to the individual shareholders. See Chambers v. Gold Medal Bakery, Inc., 464 Mass. 383, 392 (2013); Clair v. Clair, 464 Mass. 205, 218 (2013). A law firm may claim the attorney-client privilege for communications between law firm attorneys and the firm’s in-house counsel against a client who threatens a malpractice claim against the firm if (1) the law firm has designated an attorney or attorneys within the firm to represent the firm as in-house counsel; (2) the in-house counsel has not performed any work on the client matter at issue or a substantially related matter; (3) the time spent by the attorneys in these communications with in-house counsel is not billed to a client; and (4) the communications are made in confidence and kept confidential. RFF Family Partnership LLP v. Burns & Levinson LLP, 465 Mass. 702, 703 (2013).

Subsection (d)(1). This subsection is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(1), which the Supreme Judicial Court described as an adequate definition of the crime-fraud exception to the attorney-client privilege. Purcell v. District Attorney for the Suffolk Dist., 424 Mass. 109, 112 (1997). See also Mass. R. Prof. C. 1.6(b)(3) (2015). “Th[e] exception applies only if the client or prospective client seeks advice or assistance in furtherance of criminal conduct.” Purcell, 424 Mass. at 115. See Matter of a Grand Jury Investigation, 453 Mass. 453, 459 (2009) (“a client’s communications to his lawyer threatening harm are privileged unless the crime-‌fraud exception applies”).

Subsection (d)(2). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(2), reflects Massachusetts practice. See Phillips v. Chase, 201 Mass. 444, 449 (1909).

Subsection (d)(3). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(3), reflects Massachusetts practice. See Mass. R. Prof. C. 1.6(b) (2015); GTE Prods. Corp. v. Stewart, 421 Mass. 22, 32 (1995) (there are limits to the extent to which in-house counsel may disclose client confidences in pursuing a claim of wrongful discharge); Commonwealth v. Brito, 390 Mass. 112, 119 (1983) (“[T]rial counsel’s obligation may continue to preserve confidences whose disclosure is not relevant to the defense of the charge of his ineffectiveness as counsel.”).

Subsection (d)(4). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(4), reflects Massachusetts practice. See Foster v. Hall, 29 Mass. 89, 98–99 (1831).

Subsection (d)(5). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(5), reflects Massachusetts practice. See Beacon Oil Co. v. Perelis, 263 Mass. 288, 293 (1928); Thompson v. Cashman, 181 Mass. 36, 37 (1902).

Subsection (d)(6). In Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444, 450 (2007), the Supreme Judicial Court held that “confidential communications between public officers and employees and governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege.” Thus, the Supreme Judicial Court rejected the proposed limitation on the attorney-client privilege for public employees and governmental entities found in Proposed Mass. R. Evid. 502(d)(6). Id. at 452 n.12. Additionally, the Supreme Judicial Court held that its decision in General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 801–806 (1999), which states that under the Massachusetts public records statute, G. L. c. 66, § 10, documents held by a State agency are not protected from disclosure under the attorney work-‌product doctrine, but rather enjoy the more limited protection of the so-called “deliberative process” exemption found in G. L. c. 4, § 7, Twenty-‌sixth (d), did not limit the applicability of the attorney-client privilege as to written communications between government officials and entities and their counsel.

“With the attorney-client privilege, the principal focus is on encouraging the client to communicate freely with the attorney; with work-product, it is on encouraging careful and thorough preparation by the attorney. As a result, there are differences in the scope of the protection. For example, the privilege extends only to client communications, while work product encompasses much that has its source outside client communications. At the same time, the privilege extends to client-‌attorney communications whenever any sort of legal services are being provided, but the work-product protection is limited to preparations for litigation.”

Suffolk Constr. Co., 449 Mass. at 456, quoting E.S. Epstein, The Attorney-Client Privilege and the Work-‌Product Doctrine 477 (4th ed. 2001).

Work-Product Doctrine. The work-product doctrine is not an evidentiary privilege, but rather a discovery rule that affords qualified protection to lawyer and nonlawyer representatives, “protecting from discovery documents prepared by a party’s representative ‘in anticipation of litigation.’” Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 314 (2009), quoting Mass. R. Civ. P. 26(b)(3).

“The work product doctrine, drawn from the well-known case of Hickman v. Taylor, 329 U.S. 495 (1947), is intended to enhance the vitality of an adversary system of litigation by insulating counsel’s work from intrusions, inferences, or borrowings by other parties as he prepares for the contest.” Ward v. Peabody, 380 Mass. 805, 817 (1980). It is codified in Massachusetts and applicable in both civil and criminal cases. See Mass. R. Civ. P. 26(b)(3); Mass. R. Crim. P. 14(a)(5). The protections afforded by the work-product doctrine can be waived by the attorney. See Adoption of Sherry, 435 Mass. 331, 336 (2001). See also Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. (Bermuda), 425 Mass. 419, 423 (1997) (no waiver when disclosure of work-product is due to inadvertence and adequate steps were taken to maintain the confidentiality of the information).

Anticipation of Litigation. Initially, the burden is on the party asserting the work-product doctrine to demonstrate that the document was prepared in anticipation of litigation. See Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 315 (2009).

In Comcast Corp., the Supreme Judicial Court adopted a rule shielding documents prepared “‘because of’ existing or expected litigation,” even if they were not prepared to assist in litigation. Id. at 316. The court explained that “[t]he ‘because of’ test ‘appropriately focuses on both what should be eligible for the [r]ule’s protection and what should not.’” Id. at 316–317, quoting United States v. Adlman, 134 F.3d 1194, 1203 (2d Cir. 1998). Thus, the Supreme Judicial Court found that “a document is within the scope of the rule if, ‘in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared because of the prospect of litigation.’” Id. at 317, quoting Adlman, 134 F.3d at 1202. Anticipation of litigation need not be the primary motivation for the preparation of a document for it to be considered work product, but a document that would have been prepared regardless of prospective litigation is not protected by the work-product doctrine. See Attorney Gen. v. Facebook, Inc., 487 Mass. 109, 127, 130 (2021). “[A] litigation analysis prepared so that a party can make an informed business decision is afforded the protections of the work-product doctrine”; for example, memos prepared for counsel by the accountant that were not protected by attorney-client privilege fall within the scope of the work-product doctrine. Comcast Corp., 453 Mass. at 318.

Determining Fact Versus Opinion Work Product. “If the work product doctrine applies, the court must determine what type of work product is at issue.” Facebook, Inc., 487 Mass. at 127. Opinion work product, which receives the greatest protection, is “work product that conveys the ‘mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.’” Id., quoting Mass. R. Civ. P. 26(b)(3). A document containing only facts on its face may still qualify as opinion work product if the “focus, selection, or arrangement of the facts . . . reflect[s] the attorney’s thought process in some meaningful way” (quotation omitted). Id. at 128. All nonopinion work product is referred to as fact work product. Id.

Burdens of Proof for Fact Versus Opinion Work Product. Fact work product is discoverable “upon a showing that the party seeking discovery has substantial need of the materials . . . and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Facebook, Inc., 487 Mass. at 128, quoting Mass. R. Civ. P. 26(b)(3). “A substantial need exists where the fact information is relevant and the requesting party cannot reasonably obtain the information or its substantial equivalent elsewhere,” and where special circumstances excuse the party’s failure to obtain the materials sought itself. Id. at 136. “Undue hardship may exist where shielding fact work product would impose extraordinary expense on the requesting party.” Id. at 138–139 (concluding that the attorney general demonstrated undue hardship where she would have to “expend an exorbitant amount of public resources and conduct a multiyear investigation to obtain information that Facebook already ha[d] in its possession”).

Unlike fact work product, opinion work product “is only discoverable, if at all, in rare or extremely unusual circumstances” (quotations omitted). Facebook, Inc., 487 Mass. at 128. The party seeking the materials “must make, at a minimum, a ‘far stronger showing of necessity and unavailability by other means.’” Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 315 (2009), quoting Upjohn Co. v. United States, 449 U.S. 383, 402 (1981). Opinion work product relating to a different case is nonetheless entitled to work-product protection, although it may require a lesser showing to overcome the work-product rule. McCarthy v. Slade Assocs., Inc., 463 Mass. 181, 198 n.37 (2012).

A judge can order production of a document containing both fact and opinion work product if the opinion parts can be redacted or otherwise removed. See Facebook, Inc., 487 Mass. at 128–129 & n.18.

For a discussion of the work-product doctrine in the G. L. c. 176D insurance settlement context, see Sanchez v. Witham, 2003 Mass. App. Div. 48.

Scope of the Work-Product Doctrine in the Public Records Context. In DaRosa v. City of New Bedford, 471 Mass. 446 (2015), the Supreme Judicial Court addressed the work-product doctrine as it applies to public records: 

“[O]pinion work product that was prepared in anticipation of litigation or for trial by or for a party or party representative is protected from discovery to the extent provided under Mass. R. Civ. P. 26(b)(3), even where the opinion work product has been made or received by a State or local government employee. So is fact work product that is prepared in anticipation of litigation or for trial where it is not a reasonably completed study or report, or, if it is reasonably completed, is interwoven with opinions or analysis leading to opinions. Other fact work product that has been made or received by a State or local government employee must be disclosed in discovery, even if it would be protected from discovery under rule 26(b)(3) were it not a public record.” 

DaRosa, 471 Mass. at 462. If any work product is not a “public record” because it falls within the exemption found in G. L. c. 4, § 7, Twenty-sixth (d) (or any another exemption), the work product may not be ordered to be produced in discovery unless the third-party defendants have made the required showing of need to justify disclosure of this work product under  Mass. R. Civ. P. 26(b)(3). Id. at 464. 

Waiver. For issues relating to waiver, see Section 523, Waiver of Privilege.

(a) Definitions

As used in this section, the following words shall have the following meanings:

(1) A “patient” is a person who, during the course of diagnosis or treatment, communicates with a psychotherapist.

(2) A “psychotherapist” is (A) a person licensed to practice medicine who devotes a substantial portion of time to the practice of psychiatry; (B) a person who is licensed as a psychologist by the board of registration of psychologists or a graduate of, or student enrolled in, a doctoral degree program in psychology at a recognized educational institution, who is working under the supervision of a licensed psychologist; or (C) a person who is a registered nurse licensed by the board of registration in nursing whose certificate of registration has been endorsed authorizing the practice of professional nursing in an expanded role as a psychiatric nurse mental health clinical specialist.

(3) “Communications” includes conversations, correspondence, actions, and occurrences relating to diagnosis or treatment before, during, or after institutionalization, regardless of the patient’s awareness of such conversations, correspondence, actions, and occurrences, and any records, memoranda, or notes of the foregoing.

(b) Privilege

Except as hereinafter provided, in any court proceeding and in any proceeding preliminary thereto, and in legislative and administrative proceedings, a patient shall have the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication, wherever made, between said patient and a psychotherapist relative to the diagnosis or treatment of the patient’s mental or emotional condition. This privilege shall also apply to patients engaged with a psychotherapist in marital therapy, family therapy, or consultation in contemplation of such therapy. If a patient is incompetent to exercise or waive such privilege, a guardian shall be appointed to act in the patient's behalf under this section. A previously appointed guardian shall be authorized to so act.

(c) Effect of exercise of privilege 

Upon the exercise of the privilege granted by this section, the judge or presiding officer shall instruct the jury that no adverse inference may be drawn therefrom.

(d) Exceptions

The privilege granted hereunder shall not apply to any of the following communications:

(1) Disclosure to Establish Need for Hospitalization or Imminently Dangerous Activity. A disclosure made by a psychotherapist who, in the course of diagnosis or treatment of the patient, determines that the patient is in need of treatment in a hospital for mental or emotional illness or presents an imminent threat of dangerous activity, and on the basis of such determination discloses such communication either for the purpose of placing or retaining the patient in such hospital, provided, however, that the provisions of this section shall continue in effect after the patient is in said hospital, or placing the patient under arrest or under the supervision of law enforcement authorities;

(2) Court-Ordered Psychiatric Exam. A disclosure made to a psychotherapist in the course of a psychiatric examination ordered by the court, provided that such disclosure was made after the patient was informed that the communication would not be privileged, and provided further that such communications shall be admissible only on issues involving the patient’s mental or emotional condition but not as a confession or admission of guilt;

(3) Patient Raises the Issue of Own Mental or Emotional Condition as an Element of Claim or Defense. A disclosure in any proceeding, except one involving child custody, adoption, or adoption consent, in which the patient introduces the patient’s mental or emotional condition as an element of a claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected;

(4) Party Through Deceased Patient Raises Issue of Decedent’s Mental or Emotional Condition as Element of Claim or Defense. A disclosure in any proceeding after the death of a patient in which the patient’s mental or emotional condition is introduced by any party claiming or defending through, or as a beneficiary of, the patient as an element of the claim or defense, and the judge or pre­siding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected;

(5) Child Custody and Adoption Cases. A disclosure in any case involving child custody, adoption, or the dispensing with the need for consent to adoption in which, upon a hearing in chambers, the judge, exercising discretion, determines that the psychotherapist has evidence bearing significantly on the patient’s ability to provide suitable care or custody, and that it is more important to the welfare of the child that the communication be disclosed than that the relationship between patient and psychotherapist be protected; provided, however, that in such cases of adoption or the dispensing with the need for consent to adoption, a judge shall first determine that the patient has been informed that such communication would not be privileged;

(6) Claim Against Psychotherapist. A disclosure in any proceeding brought by the patient against the psychotherapist, and in any malpractice, criminal, or license revocation proceeding, in which dis­closure is necessary or relevant to the claim or defense of the psychotherapist; or

(7) Child Abuse or Neglect. A report to the Department of Children and Families of reasonable cause to believe that a child under the age of eighteen has suffered serious physical or emotional injury resulting from sexual abuse, pursuant to G. L. c. 119, § 51A.

(8) Exception. In criminal actions, such confidential communications may be subject to discovery and may be admissible as evidence, subject to applicable law.

Note

Subsection (a). This subsection is taken nearly verbatim from G. L. c. 233, § 20B.

Subsection (b). This subsection is taken nearly verbatim from G. L. c. 233, § 20B. The psychotherapist-patient privilege recognizes the critical role of confidentiality in this medical specialty. Usen v. Usen, 359 Mass. 453, 457 (1971). This privilege is not self-executing. Commonwealth v. Oliveira, 438 Mass. 325, 331 (2002). See also Commonwealth v. Pickering, 479 Mass. 589, 596–597 (2018). The Supreme Judicial Court has left open whether privilege applies in group therapy settings.

Scope of the Privilege. “The privilege gives the patient the right to refuse to disclose and to prevent another witness from disclosing any communication between patient and psychotherapist concerning diagnosis or treatment of the patient’s mental condition.” Commonwealth v. Clancy, 402 Mass. 664, 667 (1988). The privilege is case-specific, and a waiver in one proceeding is not a waiver in a subsequent proceeding. Care & Protection of M.C., 479 Mass. 246, 263 (2018).  The privilege does not protect the facts of the hospitalization or treatment, the dates, or the purpose of the hospitalization or treatment, if such purpose does not implicate communications between the witnesses and the psychotherapist. Clancy, 402 Mass. at 667. See Commonwealth v. Kobrin, 395 Mass. 284, 294 (1985) (holding, in context of grand jury investigation into Medicaid fraud, that patient diagnosis is not privileged but portions of records that “reflect patients’ thoughts, feelings, and impressions, or contain the substance of the psychotherapeutic dialogue are protected”).

The privilege is evidentiary and applies only “in any court proceeding and in any proceeding preliminary thereto and in legislative and administrative proceedings.” G. L. c. 233, § 20B. See Commonwealth v. Brandwein, 435 Mass. 623, 628–630 (2002) (psychotherapist not prohibited by G. L. c. 233, § 20B, from informing police of statements made to her in her office by a client who confessed to a robbery and turned over a firearm).

Presence of Third Party. A conversation with a psychotherapist may still be privileged under G. L. c. 233, § 20B, notwithstanding the presence of a required police guard. See Commonwealth v. Waweru, 480 Mass. 173, 185 (2018).

Subsection (c). This subsection is taken verbatim from G. L. c. 233, § 20B.

Subsection (d)(1). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(a). See Walden Behavioral Care v. K.I., 471 Mass. 150, 154 (2015).

Subsection (d)(2). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(b). See Commonwealth v. Lamb, 365 Mass. 265, 270 (1974) (patient’s communications to a psychotherapist in a court-‌ordered evaluation may not be disclosed against the patient’s wishes absent a warning that the communications would not be privileged). See also Commonwealth v. Harris, 468 Mass. 429, 452 (2014) (Lamb warnings given at the beginning of court-ordered competency evaluations should contain a warning that the results of the competency evaluation may be used against the defendant where the defendant offers evidence at trial in support of a defense of lack of criminal responsibility.).

In the absence of a court order, a Lamb-type warning is not required where the examiner is a diagnosing or treating psychotherapist of a patient involuntarily committed to a mental health facility pursuant to G. L. c. 123, § 12(b).  Walden Behavioral Care v. K.I.,  471 Mass. 150, 154 (2015). Contrast Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 524–526 (1986).

Subsection (d)(3). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(c). In Commonwealth v. Dung Van Tran, 463 Mass. 8, 20–21 (2012), the Supreme Judicial Court found that the defendant did not put his mental or emotional condition in issue where “the defense was not that the defendant was incapable of forming the intent necessary to support conviction but, rather, that he lacked the requisite intent to harm another.” Id. at 20. The court held that the “Commonwealth may not introduce against a defendant statements protected by the psychotherapist-‌patient privilege on the ground that the defendant himself placed his mental or emotional condition in issue, unless the defendant has at some point in the proceedings asserted a defense based on his mental or emotional condition, defect, or impairment.” Id. at 21. See Care & Protection of M.C., 479 Mass. 246, 263 (2018) (introduction of psychiatric evidence at care and protection proceeding does not waive privilege, and such evidence is not admissible at criminal trial unless privilege holder puts mental health at issue).

Subsection (d)(4). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(d).

Subsection (d)(5). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(e). Upon a party’s assertion of the psychotherapist-patient privilege, the judge, and not a guardian ad litem, must inspect the psychotherapist’s records in camera to determine whether the records are subject to the privilege. See P.W. v. M.S., 67 Mass. App. Ct. 779, 785–786 (2006). A judge may appoint a discovery master or additional guardian ad litem to assist in the process of reviewing records, but the judge must make the determination whether the privilege applies to the records. See id. at 786 & n.10.

Subsection (d)(6). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(f).

Subsection (d)(7). This subsection is derived from G. L. c. 119, § 51A.

Subsection (d)(8). This subsection is derived from Commonwealth v. Dwyer, 448 Mass. 122, 145–146 (2006) (establishing protocol in criminal cases governing access to and use of material covered by statutory privilege).See Introductory Note to Article V, Privileges and Disqualifications.

(a) Spousal privilege

(1) General rule

A spouse shall not be compelled to testify in the trial of an indictment, complaint, or other criminal proceeding brought against the other spouse.

(2) Who may claim the privilege

Only the witness-spouse may claim the privilege.

(3) Exceptions

This privilege shall not apply in civil proceedings, or in any prosecution for nonsupport, desertion, neglect of parental duty, or child abuse, including incest.

(b) Spousal disqualification

(1) General rule 

In any proceeding, civil or criminal, a witness shall not testify as to private conversations with a spouse occurring during their marriage.

(2) Exceptions

This disqualification shall not apply to

(A) a proceeding arising out of or involving a contract between spouses;

(B) a proceeding to establish paternity or to modify or enforce a support order;

(C) a prosecution for nonsupport, desertion, or neglect of parental duty;

(D) child abuse proceedings, including incest;

(E) any criminal proceeding in which a spouse has been charged with a crime against the other spouse;

(F) a violation of a vacate, restraining, or no-contact order or judgment issued by a Massachusetts court or a similar protection order from another jurisdiction;

(G) a declaration of a deceased spouse if the court finds that it was made in good faith and upon the personal knowledge of the declarant; or

(H) a criminal proceeding in which the private conversation reveals a bias or motive on the part of one spouse testifying against the other spouse.

(c) Parent-child disqualification

(1) Definitions

As used in this subsection, the following words shall have the following meanings:

(A) Minor child. A “minor child” is any person under eighteen years of age.

(B) Parent. A “parent” is the biological or adoptive parent, stepparent, legal guardian, or other person who has the right to act in loco parentis for the minor child referred to in Subsection (c)(1)(A).

(2) Disqualification

A parent shall not testify against the parent’s minor child and a minor child shall not testify against the child’s parent in a proceeding before an inquest, grand jury, trial of an indictment or complaint, or any other criminal, delinquency, or youthful offender proceeding in which the victim in the proceeding is not a family member and does not reside in the family household. In a case in which the victim is a family member and resides in the family household, the parent shall not testify as to any communication with the minor child that was for the purpose of seeking advice regarding the child’s legal rights.

Note

Subsection (a)(1). This subsection is taken nearly verbatim from G. L. c. 233, § 20, Second.

The existence of the privilege depends on whether the spouse who asserts it is then married. The privilege applies even if the spouse was not married at the time of the events that are the subject of the criminal trial, and even if the spouse who asserts the privilege had testified in an earlier proceeding or trial. See Commonwealth v. DiPietro, 373 Mass. 369, 382 (1977). There is no common-law privilege, similar to the spousal privilege, applicable to unmarried cohabitants. Commonwealth v. Diaz, 422 Mass. 269, 274 (1996).

The privilege not to testify against a spouse applies regardless of whether the proposed testimony would be favorable or unfavorable to the other spouse. Commonwealth v. Maillet, 400 Mass. 572, 578 (1987). The privilege is broad and it applies even though a spouse is called to give testimony concerning “persons other than the spouse.” Matter of a Grand Jury Subpoena, 447 Mass. 88, 97 (2006).

The privilege applies to testimony at trial and not to testimony before a grand jury. See Matter of a Grand Jury Subpoena, 447 Mass. at 99 (court finds it unnecessary to “decide whether, or to what extent, the spousal privilege may be invoked in pretrial [or posttrial] proceedings”). But see Commonwealth v. Szerlong, 457 Mass. 858, 864 (2010) (spousal privilege applied at pretrial hearing on motion in limine). The court should conduct a voir dire of the spouse outside the presence of the jury and may inquire whether the spouse will assert the privilege or otherwise refuse to testify. Id. at 864 n.10, citing Commonwealth v. Fisher, 433 Mass. 340, 350 (2001). However, a “spouse cannot be forced to testify regarding [his or] her reasons for doing so.” Id.

Subsection (a)(2). This subsection is derived from Commonwealth v. Spencer, 212 Mass. 438, 451 (1912). See also Commonwealth v. Stokes, 374 Mass. 583, 595 (1978).

A spouse who is willing to do so may testify against the other spouse. Commonwealth v. Saltzman, 258 Mass. 109, 110 (1927). The defendant-spouse has no standing to object to the witness-spouse’s testimony. Stokes, 374 Mass. at 595. When one spouse decides to waive the privilege and testify against the other spouse in a criminal proceeding, the judge should be satisfied, outside the presence of the jury, that the waiver is knowing and voluntary. Id. at 595 n.9.

Subsection (a)(3). This subsection is derived from G. L. c. 233, § 20 Second, and G. L. c. 273, § 7. See Three Juveniles v. Commonwealth, 390 Mass. 357, 361 (1983) (privilege inapplicable in civil proceedings), cert. denied, 465 U.S. 1068 (1984).

Subsection (b)(1). This subsection is derived from G. L. c. 233, § 20 First.

The disqualification, unlike the privilege, bars either spouse from testifying to private conversations with the other, even where both spouses wish the communication to be revealed. Gallagher v. Goldstein, 402 Mass. 457, 459 (1988). “The contents of private conversations are absolutely excluded, but the statute does not bar evidence as to the fact that a conversation took place” (citations omitted). Id. The disqualification survives the death of a spouse, see Dexter v. Booth, 84 Mass. 559, 561 (1861), except in civil cases subject to G. L. c. 233, § 65 (“In any action or other civil judicial proceeding, a declaration of a deceased person shall not be inadmissible in evidence as hearsay or as private conversation between husband and wife, as the case may be, if the court finds that it was made in good faith and upon the personal knowledge of the declarant.”). See Section 504(b)(2)(G), Spousal Privilege and Disqualification; Parent-Child Disqualification: Spousal Disqualification: Exceptions.

Whether a conversation was “private” is a question of preliminary fact for the trial judge. Commonwealth v. Stokes, 374 Mass. 583, 595 (1978). Where children are present, “[i]t is for the trial judge to determine whether the conversation was overheard by the children and whether the children were ‘of sufficient intelligence at the time to pay attention, and to understand what was being said.’” Id., quoting Freeman v. Freeman, 238 Mass. 150, 161 (1921). In the absence of an objection, evidence of private conversations is admissible and may be given its full probative value. Id. at 595 n.8. However, if there is an objection, the conversation is excluded even if neither spouse objects to the conversation being admitted. Gallagher, 402 Mass. at 461; Commonwealth v. Salyer, 84 Mass. App. Ct. 346, 354 (2013). The conversation remains private, and thus inadmissible, even if one of the spouses discloses the conversation to a third party. Commonwealth v. Garcia, 476 Mass. 822, 827 (2017).

The disqualification applies only to conversations, not to other types of communications. For example, written communications are not included. Commonwealth v. Szczuka, 391 Mass. 666, 678 n.14 (1984). A spouse is not barred from testifying that a conversation took place and some action was taken as a result. See Sampson v. Sampson, 223 Mass. 451, 458–459 (1916). The disqualification does not bar a third person who overheard the “private conversation” from testifying to its contents. Commonwealth v. O’Brien, 377 Mass. 772, 774–775 (1979). See also Martin v. Martin, 267 Mass. 157, 159 (1929).

“[W]ords constituting or accompanying abuse, threats, or assaults of which the other spouse is the victim” are not regarded as private conversation for the purpose of the disqualification. Commonwealth v. Gillis, 358 Mass. 215, 218 (1970). See also Commonwealth v. Foxworth, 473 Mass. 149, 159–160 (2015). Complaints and exclamations of pain and suffering are also not private conversations for the purpose of the disqualification. Commonwealth v. Jardine, 143 Mass. 567, 567–568 (1887).

The disqualification depends upon the existence of the marriage at the time of the communication; it does not prohibit testimony by a spouse as to communications made prior to the marriage. Commonwealth v. Azar, 32 Mass. App. Ct. 290, 304 (1992), remanded for new trial on other grounds, 435 Mass. 675(2002). See also Commonwealth v. Barronian, 235 Mass. 364, 366 (1920).

The Supreme Judicial Court has left open whether the disqualification would bar testimony of a spouse when husband and wife are jointly engaged in criminal activity. Commonwealth v. Walker, 438 Mass. 246, 254 n.4 (2002).

The defendant’s constitutional right to confront witnesses may trump the statutory disqualification. “To determine whether the [marital] disqualification should yield to the invoked constitutional rights [in a criminal case the court] look[s] to whether the evidence at issue if admitted might have had a significant impact on the result of the trial” (quotations and citations omitted). Commonwealth v. Perl, 50 Mass. App. Ct. 445, 453 (2000) (upholding exclusion of private conversations which would have been cumulative of other evidence).

The general principle expressed in G. L. c. 233, § 20, is that “any person may testify in any proceeding”; thus, the grounds for disqualification should be read narrowly. Cavanagh v. Cavanagh, 490 Mass. 398, 430 (2022).

Subsection (b)(2)(A). This subsection is derived from  G. L. c. 233, § 20, First. See Cavanagh v. Cavanagh, 490 Mass. 398, 430 (2022) (even where separation agreement was merged into di-vorce judgment, wife would be permitted to testify about conversations with husband regarding agreement’s provisions for child’s education under contract exception).

Subsection (b)(2)(B). This subsection is derived from  G. L. c. 233, § 20, First. Spousal disqualification does not apply in any Chapter 209C action. See G. L. c. 209C, § 16(c). It also does not apply to any action to establish paternity, support, or both under the Massachusetts Uniform Interstate Family Support Act (Chapter 209D), or to enforce a child support or alimony order. See G. L. c. 209D, § 3‑316(h).

Subsection (b)(2)(C). This subsection is derived from  G. L. c. 233, § 20, First.

Subsection (b)(2)(D). This subsection is derived from  G. L. c. 233, § 20, First. See Commonwealth v. Burnham, 451 Mass. 517, 521–522 (2008) (the statutory exception to the applicability of the marital disqualification in child abuse cases applies to both civil and criminal proceedings).

Subsection (b)(2)(E). This subsection is derived from  G. L. c. 233, § 20, First.

Subsection (b)(2)(F). This subsection is derived from  G. L. c. 233, § 20, First.

Subsection (b)(2)(G). This subsection is taken nearly verbatim from G. L. c. 233, § 65.

Subsection (b)(2)(H). This subsection is derived from Commonwealth v. Sugrue, 34 Mass. App. Ct. 172, 175–178 (1993), where the Appeals Court explained that the criminal defendant’s constitutional right to confrontation and to a fair trial outweighed the public policy behind the spousal disqualification.

Subsection (c)(1)(A). This subsection is derived from G. L. c. 4, § 7, Forty-‌eighth.

Subsection (c)(1)(B). This subsection is derived from G. L. c. 233, § 20, Fourth.

Subsection (c)(2). This subsection is derived from G. L. c. 233, § 20, Fourth. The statutory disqualification does not prohibit the child from testifying in a civil case, including but not limited to a divorce or custody case.

The disqualification does not prevent a child from calling a parent to testify for the defense but does prevent the Commonwealth from calling a parent to testify against the child. Commonwealth v. Vigiani, 488 Mass. 34, 39 (2021). A parent called as a witness a child may not refuse to testify “unless a privilege applies, such as the privilege under the Fifth Amendment to the United States Constitution against self-incrimination.” Id. at 40 n.6. The Supreme Judicial Court has declined to recognize a testimonial privilege that parents could exercise to avoid being compelled to testify in criminal proceedings about confidential communications with their children. See Matter of a Grand Jury Subpoena, 430 Mass. 590, 590–591 (2000) (“the Legislature, in the first instance, is the more appropriate body to weigh the relative social policies and address whether and how such a privilege should be created”).

(a) Definitions

The definitions that follow apply to this section unless the context clearly requires otherwise.

(1) Abuse. “Abuse” means causing or attempting to cause physical harm; placing another in fear of imminent physical harm; or causing another to engage in sexual relations unwillingly by force, threat of force, or coercion.

(2) Confidential Communication. A “confidential communication” is information transmitted in confidence by and between a victim and a domestic violence victims’ counselor by a means which does not disclose the information to a person other than a person present for the benefit of the victim, or to those to whom disclosure of such information is reasonably necessary to the counseling and assisting of such victim. The term “information” includes, but is not limited to, reports, records, working papers, or memoranda.

(3) Domestic Violence Victims’ Counselor. A “domestic violence victims’ counselor” is a person who is employed or volunteers in a domestic violence victim’s program; who has undergone a minimum of twenty-five hours of training; who reports to and is under the direct control and supervision of a direct service supervisor of a domestic violence victims’ program; and whose primary purpose is the rendering of advice, counseling, or assistance to victims of abuse.

(4) Domestic Violence Victims’ Program. A “domestic violence victims’ program” is any refuge, shelter, office, safe home, institution or center established for the purpose of offering assistance to victims of abuse through crisis intervention, medical, legal, or support counseling.

(5) Victim. A “victim” is a person who has suffered abuse and who consults a domestic violence victims’ counselor for the purpose of securing advice, counseling, or assistance concerning a mental, physical, or emotional condition caused by such abuse.

(b) Privilege

A domestic violence victims’ counselor shall not disclose confidential communications between the counselor and the victim of domestic violence without the prior written consent of the victim. Such confidential communication shall not be subject to discovery in any civil, legislative, or administrative proceeding without the prior written consent of the victim to whom such confidential communication relates, except as provided in Subsection (c).

(c) Exception 

In criminal actions, such confidential communications may be subject to discovery and may be admissible as evidence, subject to applicable law.

Note

This section is derived from G. L. c. 233, § 20K; Commonwealth v. Dwyer, 448 Mass. 122, 143 n.25 (2006) (characterizing records prepared by domestic violence victims’ counselor as privileged); and Commonwealth v. Tripolone, 425 Mass. 487, 489 (1997) (same). The specific provision in G. L. c. 233, § 20K, for in camera judicial review prior to an order allowing any discovery of material covered by the domestic violence victims’ counselor privilege is different from the procedure recently established by the Supreme Judicial Court in Dwyer, 448 Mass. at 145–146. See Introductory Note to Article V, Privileges and Disqualifications.

(a) Definitions

The definitions that follow apply to this section unless the context clearly requires otherwise.

(1) Rape Crisis Center. A “rape crisis center” is any office, institution, or center offering assistance to victims of sexual assault and the families of such victims through crisis intervention, medical, and legal counseling.

(2) Sexual Assault Counselor. A “sexual assault counselor” is a person who (A) is employed by or is a volunteer in a rape crisis center; (B) has undergone thirty-five hours of training; (C) reports to and is under the direct control and supervision of a licensed social worker, nurse, psychiatrist, psychologist, or psychotherapist; and (D) has the primary purpose of rendering advice, counseling, or assistance to victims of sexual assault.

(3) Victim. A “victim” is a person who has suffered a sexual assault and who consults a sexual assault counselor for the purpose of securing advice, counseling, or assistance concerning a mental, physical, or emotional condition caused by such sexual assault.

(4) Confidential Communication. A “confidential communication” is information transmitted in confidence by and between a victim of sexual assault and a sexual assault counselor by a means which does not disclose the information to a person other than a person present for the benefit of the victim, or to those to whom disclosure of such information is reasonably necessary to the counseling and assisting of such victim. The term includes all information received by the sexual assault counselor which arises out of and in the course of such counseling and assisting, including, but not limited to, reports, records, working papers, or memoranda.

(b) Privilege

A confidential communication as defined in Subsection (a)(4) shall not be disclosed by a sexual assault counselor, is not subject to discovery, and is inadmissible in any criminal or civil proceeding without the prior written consent of the victim to whom the report, record, working paper, or memorandum relates. Nothing in this section shall be construed to limit the defendant’s right of cross-examination of such counselor in a civil or criminal proceeding if such counselor testifies with such written consent.

(c) Exception

In criminal actions, such confidential communications may be subject to discovery and may be admissible as evidence, subject to applicable law.

Note

Subsection (a). This subsection is taken nearly verbatim from G. L. c. 233, § 20J.

Subsection (b). This subsection is taken nearly verbatim from G. L. c. 233, § 20J. See Commonwealth v. Dwyer, 448 Mass. 122, 143 n.25 (2006) (characterizing records prepared by sexual assault victims’ counselor as privileged).

This privilege protects only confidential communications between the victim and the counselor and does not extend to the date, time, or fact of the communication. Commonwealth v. Neumyer, 432 Mass. 23, 29 (2000). The victim’s testimony to the content of a privileged communication under this section does not constitute a waiver of the privilege unless the testimony is given with knowledge of the privilege and an intent to waive it. Id. at 35–36. See Section 523(b), Waiver of Privilege: Conduct Constituting Waiver.

Subsection (c). This subsection is derived from Commonwealth v. Dwyer, 448 Mass. 122, 145–146 (2006) (establishing protocol in criminal cases governing access to and use of material covered by privilege). See Introductory Note to Article V, Privileges and Disqualifications.

(a) Definitions

As used in this section, the following words shall have the following meanings:

(1) Client. A “client” is a person with whom a social worker has established a social worker–client relationship.

(2) Communications. “Communications” includes conversations, correspondence, actions, and occurrences regardless of the client’s awareness of such conversations, correspondence, actions, and occurrences and any records, memoranda, or notes of the foregoing.

(3) [Reserved]

(4) Social Worker. As used in this section, a “social worker” is a social worker licensed pursuant to the provisions of G. L. c. 112, § 132, or a social worker employed in a State, county, or municipal governmental agency.

(b) Privilege 

A client shall have the privilege of refusing to disclose and of preventing a witness from disclosing any communication, wherever made, between said client and a social worker relative to the diagnosis or treatment of the client’s mental or emotional condition. If a client is incompetent to exercise or waive such privilege, a guardian shall be appointed to act in the client’s behalf under this section. A previously appointed guardian shall be authorized to so act.

(c) Exceptions

The privilege in Subsection (b) shall not apply to any of the following communications:

(1) if a social worker, in the course of making a diagnosis or treating the client, determines that the client is in need of treatment in a hospital for mental or emotional illness or presents an imminent threat of dangerous activity, and on the basis of such determination discloses such communication either for the purpose of placing or retaining the client in such hospital; provided, however, that the provisions of this section shall continue in effect after the client is in said hospital, or placing the client under arrest or under the supervision of law enforcement authorities;

(2) if a judge finds that the client, after having been informed that the communications would not be privileged, has made communications to a social worker in the course of a psychiatric examination ordered by the court; provided, however, that such communications shall be admissible only on issues involving the client’s mental or emotional condition and not as a confession or admission of guilt;

(3) in any proceeding, except one involving child custody, adoption, or adoption consent, in which the client introduces the client's mental or emotional condition as an element of a claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between client and social worker be protected;

(4) in any proceeding after the death of a client in which the client’s mental or emotional condition is introduced by any party claiming or defending through or as a beneficiary of the client as an element of the claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between client and social worker be protected;

(5) in the initiation of proceedings under G. L. c. 119, §§ 23(a)(3) and 24, or G. L. c. 210, § 3, or to give testimony in connection therewith;

(6) in any proceeding whereby the social worker has acquired the information while conducting an investigation pursuant to G. L. c. 119, § 51B;

(7) in any other case involving child custody, adoption, or the dispensing with the need for consent to adoption in which, upon a hearing in chambers, the judge, in the exercise of discretion, determines that the social worker has evidence bearing significantly on the client’s ability to provide suitable care or custody, and that it is more important to the welfare of the child that the communication be disclosed than that the relationship between client and social worker be protected; provided, however, that in such case of adoption or the dispensing with the need for consent to adoption, a judge shall determine that the client has been informed that such communication would not be privileged;

(8) in any proceeding brought by the client against the social worker and in any malpractice, criminal, or license revocation proceeding in which disclosure is necessary or relevant to the claim or defense of the social worker; or

(9) in criminal actions, such privileged communications may be subject to discovery and may be admissible as evidence, subject to applicable law.

Note

Subsections (a)(1)–(2). These subsections are taken nearly verbatim from G. L. c. 112, § 135.

Subsection (a)(4). This subsection is taken nearly verbatim from G. L. c. 112, §§ 135A and 135B. See Bernard v. Commonwealth, 424 Mass. 32, 35 (1996) (State police trooper employed as a peer counselor qualified as a social worker for purposes of this section).

Subsection (b). This subsection is taken nearly verbatim from G. L. c. 112, § 135B. See Commonwealth v. Pelosi, 441 Mass. 257, 261 n.6 (2004) (characterizing records prepared by clients’ social worker as privileged; privilege is not self-executing).

Subsections (c)(1)–(8). These subsections are taken nearly verbatim from G. L. c. 112, § 135B.

The social worker–client privilege is set forth in G. L. c. 112, § 135B. General Laws c. 112, § 135A, addresses the general duty of confidentiality of certain social workers. See  Commonwealth v. Pelosi, 441 Mass. 257, 261 n.6 (2004). The privilege is not self-executing. See Commonwealth v. Oliveira, 438 Mass. 325, 331 (2002).

Subsection (c)(9). This subsection is derived from Commonwealth v. Dwyer, 448 Mass. 122, 145–146 (2006) (establishing protocol in criminal cases governing access to and use of material covered by statutory privilege). See Introductory Note to Article V, Privileges and Disqualifications.

(a) Definitions

As used in this section, an “allied mental health and human services professional” is a licensed marriage and family therapist, a licensed rehabilitation counselor, a licensed mental health counselor, or a licensed educational psychologist.

(b) Privilege 

Any communication between an allied mental health or human services professional and a client shall be deemed to be confidential and privileged.

(c) Waiver 

This privilege shall be subject to waiver only in the following circumstances:

(1) where the allied mental health and human services professional is a party defendant to a civil, criminal, or disciplinary action arising from such practice in which case the waiver shall be limited to that action;

(2) where the client is a defendant in a criminal proceeding and the use of the privilege would violate the defendant’s right to compulsory process and right to present testimony and witnesses as part of the defense;

(3) when the communication reveals the contemplation or commission of a crime or a harmful act; and

(4) where a client agrees to the waiver, or in circumstances where more than one person in a family is receiving therapy, where each such family member agrees to the waiver.

(d) Mental health counselor exception 

With respect to a mental health counselor, the privilege does not apply to the following communications: 

(1) if a mental health counselor, in the course of diagnosis or treatment of the client, determines that the client is in need of treatment in a hospital for mental or emotional illness or presents an imminent threat of dangerous activity and, on the basis of the determination, discloses the communication either for the purpose of placing or retaining the client in the hospital, although this section shall continue in effect after the patient is in the hospital or placed under arrest or under the supervision of law enforcement authorities;

(2) if a judge finds that the client, after having been informed that a communication would not be privileged, has made a communication to a mental health counselor in the course of a psychiatric examination ordered by the court, although the communication shall be admissible only on issues involving the patient’s mental or emotional condition and not as a confession or admission of guilt; 

(3) in a proceeding, except one involving child custody, in which the client introduces the client's mental or emotional condition as an element of a claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between client and mental health counselor be protected; 

(4) in a proceeding after the death of a client in which the client’s mental or emotional condition is introduced by any party claiming or defending through or as beneficiary of the patient as an element of the claim or the defense and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between client and mental health counselor be protected; 

(5) in the initiation of proceedings under G. L. c. 119, § 23(a)(3) or § 24, or G. L. c. 210, § 3, to give testimony in connection therewith; 

(6) in a proceeding whereby the mental health counselor has acquired the information while conducting an investigation pursuant to G. L. c. 119, § 51B; 

(7) in a case involving child custody, adoption, or the dispensing with the need for consent to adoption where, upon a hearing in chambers, the court exercises its discretion to determine that the mental health counselor has evidence bearing significantly on the client’s ability to provide suitable care or custody, and it is more important to the welfare of the child that the communication be disclosed than that the relationship between client and mental health counselor be protected, although in the case of adoption or the dispensing with the need for consent to adoption, the court shall determine that the client has been informed that the communication should not be privileged; or 

(8) in a proceeding brought by the client against the mental health counselor and in any malpractice, criminal, or license revocation proceeding in which disclosure is necessary or relevant to the claim or defense of the mental health counselor. 

(e) Exception

In criminal actions, such privileged communications may be subject to discovery and may be admissible as evidence, subject to applicable law.

Note

Subsection (a). This subsection is taken nearly verbatim from G. L. c. 112, § 163. General Laws c. 112, § 165, outlines license eligibility. A licensed educational psychologist must also be certified as a school psychologist by the Massachusetts Department of Education. G. L. c. 112, § 163.

Subsections (b) and (c). These subsections are taken nearly verbatim from G. L. c. 112, § 172. See Commonwealth v. Vega, 449 Mass. 227, 231 (2007) (the statute creates an evidentiary privilege as well as a confidentiality rule).

These subsections do not prohibit a third-party reimburser from inspecting and copying any records relating to diagnosis, treatment, or other services provided to any person for which coverage, benefit, or reimbursement is claimed, so long as access occurs in the ordinary course of business and the policy or certificate under which the claim is made provides that such access is permitted. G. L. c. 112, § 172. Further, this section does not apply to access to such records pursuant to any peer review or utilization review procedures applied and implemented in good faith.  G. L. c. 112, § 172.

Subsection (d). This subsection is taken nearly verbatim from G. L. c. 112, § 172A. General Laws c. 112, § 172A, deals with the evidentiary privilege held by clients of mental health providers in court proceedings, while G. L. c. 112, § 172, deals with the confidentiality requirement adhered to by mental health providers. The confidentiality requirement need not be invoked by the client to be in effect, but it can be waived under certain circumstances covered in  G. L. c. 112, § 172.    

General Laws c. 119, § 23(a)(3), deals with children who are without proper care due to the death or incapacity, unfitness, or unavailability of a parent or guardian. General Laws c. 119, § 24, involves petitions and testimony regarding abuse or neglect of children. General Laws c. 210, § 3, of involves petitions for adoption. General Laws c. 119, § 51B, involves investigations regarding the abuse or neglect of children.    

In the absence of a court order, a warning in accordance with Commonwealth v. Lamb, 365 Mass. 265, 270 (1974), is not required where the examiner is a diagnosing or treating psychotherapist of a patient involuntarily committed to a mental health facility pursuant to G. L. c. 123, § 12(b). Walden Behavioral Care v. K.I., 471 Mass. 150, 154 (2015). Contrast Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 524–526 (1986) (Lamb warning required when department ordered psychiatrist to interview juvenile in its custody).

Cross-Reference: Section 503(d)(2), Psychotherapist-Patient Privilege: Exceptions: Court-Ordered Psychiatric Exam. 

Subsection (e). This subsection is derived from Commonwealth v. Dwyer, 448 Mass. 122, 145–146 (2006) (establishing protocol in criminal cases governing access to and use of material covered by statutory privilege). See Introductory Note to Article V, Privileges and Disqualifications. 

(a) Identity of informer

The identity of persons supplying the government with information concerning the commission of a crime may be privileged in both civil and criminal cases. The existence and validity of the privilege is determined in two stages:

(1) Stage One. The judge must first determine whether the Commonwealth has properly asserted the privilege by showing that disclosure would endanger the informant or otherwise impede law enforcement efforts. If such a finding is made, the judge must determine whether the defendant has offered some evidence that the privilege should be set aside on grounds that it interferes with the defense. 

(2) Stage Two. If the judge finds that the privilege has been properly asserted and that, if recognized, it would interfere with the defense, the judge must undertake a balancing test in order to determine whether disclosure of the informant’s identity and information is sufficiently relevant and helpful to the defense. The judge must consider the crime charged, the possible defenses, the possible significance of the privileged testimony, and other relevant factors in balancing the public interest in the free flow of information and the individual’s interest in preparing a defense. There is no privilege under this subsection when the identity of the informer has been disclosed by the government or by the informer, or the court determines that it is otherwise known.

(b) Surveillance location

The exact location, such as the location of a police observation post, used for surveillance is privileged, except there is no privilege under this subsection when a defendant shows that revealing the exact surveillance location would provide evidence needed to fairly present the defendant’s case to the jury.

(c) Protected witness 

The identity and location of a protected witness and any other matter concerning a protected witness or the Commonwealth’s witness protection program is privileged in both civil and criminal cases, except there is no privilege as to the identity and location of the protected witness under this subsection when

(1) the prosecuting officer agrees to a disclosure after balancing the danger posed to the protected witness, the detriment it may cause to the program, and the benefit it may afford to the public or the person seeking discovery, or

(2) disclosure is at the request of a local, State, or Federal law enforcement officer or is in compliance with a court order in circumstances in which the protected witness is under criminal investigation for, arrested for, or charged with a felony.

(d) Who may claim

These privileges may be claimed by the government.

Note

Subsection (a). This subsection is derived from Commonwealth v. Bonnett, 472 Mass. 827, 846–851 (2015), and Roviaro v. United States, 353 U.S. 53, 59–62 (1957); the last sentence is derived from Commonwealth v. Congdon, 265 Mass. 166, 175 (1928), and Pihl v. Morris, 319 Mass. 577, 579 (1946). See also Commonwealth v. Dias, 451 Mass. 463, 469 (2008) (“part of the balance [between the defendant’s right to present a defense and the public interest in protecting the free flow of information] involves weighing the potential danger to the informant”). 

The showing that must be made by the defendant in Stage One in order to trigger the balancing test as part of Stage Two is “relatively undemanding” because “the details concerning privileged information sought by the defendant ordinarily are not in his or her possession.” Bonnett, 472 Mass. at 847. In determining whether disclosure would be relevant and helpful to the defense, judges must consider whether “knowledge of the informant’s identity can offer substantial aid to the defense even if the informant himself cannot provide testimony sufficiently relevant and reliable to be admitted at trial.” Id. at 849. 

“[T]he government is not required to disclose the identity of an informant who is a mere tipster and not an active participant in the offense charged.” Commonwealth v. Brzezinski, 405 Mass. 401, 408 (1989), quoting United States v. Alonzo, 571 F.2d 1384, 1387 (5th Cir. 1978), cert. denied, 439 U.S. 847 (1978). Accord McCray v. Illinois, 386 U.S. 300, 308–309 (1967). See also Commonwealth v. Barry, 481 Mass. 388, 409–411 (2019) (unsuccessful challenge to assertion of privilege where confidential informant was not percipient witness and merely relayed inadmissible, immaterial “word on the street” information about the crime); Commonwealth v. McKay, 23 Mass. App. Ct. 966, 967 (1987) (trial judge was not required to order disclosure of the identity of two inmates who informed on the defendant, although their statements were disclosed and they were not called as witnesses at trial by the Commonwealth). When the informant “is an active participant in the alleged crime or the only non-government witness, disclosure [of the identity of the informant] usually has been ordered.” Commonwealth v. Lugo, 406 Mass. 565, 572 (1990). But see Commonwealth v. Gandia, 492 Mass. 1004, 1007–1008 (2023) (informant’s identity should not have been disclosed because, while informant was “only nongovernment witness” who may have been able to rebut portion of police officers’ anticipated testimony, informant did not participate in crime and there was “nothing to suggest that the informant in fact would testify in a manner helpful to the defendant”).

The privilege may expire. The public records statute, G. L. c. 66, § 10, provides an independent right of access to records and documents that were covered by the privilege if the reason for the privilege no longer exists. See, e.g., District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511–512 (1995) (discussing Bougas v. Chief of Police of Lexington, 371 Mass. 59, 66 [1976], and WBZ-TV4 v. District Attorney for the Suffolk Dist., 408 Mass. 595, 602–604 [1990]). 

Dual Sovereignty. In general, a defendant who seeks exculpatory information about a Federal informant must follow the prescribed Federal procedure for requesting informant information. Commonwealth v. Ayala, 481 Mass. 46, 56–57 (2018). When the defendant seeks an order to have the Commonwealth obtain informant information from the Federal government, the judge should consider “(i) the potential unfairness to the defendant; (ii) the defendant’s lack of access to evidence; (iii) the burden on the prosecutor of obtaining the evidence; and (iv) the degree of cooperation between State and Federal authorities, both in general and in the particular case.” Commonwealth v. Donahue, 396 Mass. 590, 599 (1986). The judge may not simply rely on the independent sovereignty of the United States as justification for failing to order disclosure of the informant’s identity if disclosure is otherwise appropriate under this subsection. Commonwealth v. Bonnett, 472 Mass. 827, 845 (2015). The remedy for the Commonwealth’s failure to comply with an order of disclosure in such a case is dismissal of the criminal charge. Id.

Challenges to the Sufficiency of an Affidavit. When a defendant challenges the sufficiency of an affidavit in support of a search warrant, the court’s review “begins and ends with the ‘four corners of the affidavit.’” Commonwealth v. O’Day, 440 Mass. 296, 297 (2003), quoting Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995). The defendant has the burden of establishing by a preponderance of the evidence that the affidavit contains false statements. See Commonwealth v. Nine Hundred & Ninety-two Dollars, 383 Mass. 764, 767, 769 (1981). Intentionally or recklessly omitted material may satisfy the defendant’s burden. See Commonwealth v. Long, 454 Mass. 542, 552 (2009). A negligent misrepresentation by the affiant is not a basis for relief. See Commonwealth v. Amral, 407 Mass. 511, 520 (1990); Nine Hundred & Ninety-two Dollars, 383 Mass. at 771–772. If the affidavit contains false statements, the court must simply assess whether it establishes probable cause without reliance on the false statements. See Amral, 407 Mass. at 519. Cf. Nine Hundred & Ninety-two Dollars, 383 Mass. at 768 (leaving open whether suppression of evidence should be ordered under Article 14 of the Massachusetts Declaration of Rights when there has been a deliberately false, though nonmaterial, misstatement by the affiant).

Amral Hearing. In keeping with the “four corners rule,” the court should not take any action simply based on an allegation that the affidavit contains false information. Only if the defendant makes an initial showing that “cast[s] a reasonable doubt on the veracity of material representations made by the affiant concerning a confidential informant” is the court required to act (citations omitted). See Commonwealth v. Youngworth, 55 Mass. App. Ct. 30, 38 (2002), cert. denied, 538 U.S. 1064 (2003). See Commonwealth v. Whitfield, 492 Mass. 61, 72–73 (2023) (defendant failed to carry burden of showing materiality and relevancy of requested information where defendant did not assert “any case-specific facts” that would “cast a reasonable doubt on the informant’s veracity or the facts” in the warrant affidavit). The first step is to conduct an in camera hearing. See Commonwealth v. Ramirez, 416 Mass. 41, 53–54 (1993). The informant may be ordered to appear and submit to questions by the court at this “Amral hearing”; however, the identity of the informant is not revealed. The court has discretion to permit the prosecutor to attend this hearing. Neither the defendant nor defense counsel is permitted to attend. See Amral, 407 Mass. at 525. If the court is satisfied that the informant exists and that the defendant’s allegations of false statements are not substantiated, there is no further inquiry. On the other hand, if the defendant makes “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit,” the court must take the next step (citation omitted). See Youngworth, 55 Mass. App. Ct. at 37–38. In this situation, the defendant is entitled to an evidentiary hearing and to the disclosure of the identity of the informant. The burden of proof at this hearing rests with the defendant to establish that the affiant presented the magistrate with false information purposely or with reckless disregard for its truth. If it is shown that an affidavit in support of a warrant contains false information that was material to the determination of probable cause, suppression of the evidence is required. See Franks v. Delaware, 438 U.S. 154, 155–156 (1978); Amral, 407 Mass. at 519–520.

Entrapment Defense. Where a defendant seeks disclosure of otherwise privileged information to support an entrapment defense, the question is whether the defense has been “appropriately raised . . . by the introduction of some evidence of inducement by a government agent or one acting at his direction.” Commonwealth v. Madigan, 449 Mass. 702, 707 (2007), quoting Commonwealth v. Miller, 361 Mass. 644, 651–652 (1972). “The types of conduct that possess the indicia of inducement include ‘aggressive persuasion, coercive encouragement, lengthy negotiations, pleading or arguing with the defendant, repeated or persistent solicitation, persuasion, importuning, and playing on sympathy or other emotion.’” Id. at 708, quoting Commonwealth v. Tracy, 416 Mass. 528, 5369 (1993). See Commonwealth v. Elias, 463 Mass. 1015, 1016 (2012) (where defendant’s affidavit states facts sufficient to raise an entrapment defense if informant were an individual named in the affidavit, trial court may require the Commonwealth to affirm whether informant is that individual); Commonwealth v. Mello, 453 Mass. 760, 765 (2009) (reversing trial judge’s order that Commonwealth must disclose the identity of an unnamed informant because the defendant’s proffer showed no more than a solicitation; duty to disclose identity of an undercover police officer or unnamed informant does not carry over to a second unnamed informant unless the second informant participated in the first informant’s inducement).

In Camera Hearing. Unless the relevancy and materiality of the information sought is readily apparent, the party seeking access to the information has the burden to provide the trial judge with the basis for ordering the disclosure. Commonwealth v. Swenson, 368 Mass. 268, 276 (1975). When it is not clear from the record whether disclosure of the informant’s identity is required, the court has discretion to hold an in camera hearing to assist in making that determination. Commonwealth v. Dias, 451 Mass. at 472 n.15 (“The nature of the in camera hearing is left to the judge.”). In exceptional circumstances, a motion for the disclosure of the identity of an informant may be based on an ex parte affidavit in order to safeguard the defendant’s privilege against self-incrimination. However, in such a case, before any order of disclosure is made, the Commonwealth must be given a summary or redacted version of the defendant’s affidavit and an opportunity to oppose the defendant’s motion. Commonwealth v. Shaughessy, 455 Mass. 346, 357–‌358 (2009).

Subsection (b). This subsection is derived from Commonwealth v. Lugo, 406 Mass. 565, 570–574 (1990), and Commonwealth v. Rios, 412 Mass. 208, 210–213 (1992). It would be a violation of the defendant’s right to confrontation to preserve the confidentiality of a surveillance site by permitting the trier of fact to hear testimony from a witness outside of a defendant’s presence. Rios, 412 Mass. at 212–213.

Subsection (c). This subsection is derived from St. 2006, c. 48, § 1, inserting G. L. c. 263A, entitled “Witness Protection in Criminal Matters.” As for the right of the defense to have access to a Commonwealth witness, see Commonwealth v. Balliro, 349 Mass. 505, 515–518 (1965).

Subsection (d). This subsection is derived from Commonwealth v. Johnson, 365 Mass. 534, 544 (1974).

(a) Definitions

As used in this section, the following words shall have the following meanings:

(1) A “clergy member” includes a priest, a rabbi, an ordained or licensed minister of any church, or an accredited Christian Science practitioner.

(2) A “communication” is not limited to conversations, and includes other acts by which ideas may be transmitted from one person to another.

(3) “Professional character” refers to the course of discipline prescribed by the rules or practice of the religious body to which the clergy member belongs.

(b) Privilege 

Clergy members shall not disclose confessions made to them in their professional character without the consent of the person making the confession. Nor shall clergy members testify as to any communication made to them by any person seeking religious or spiritual advice or comfort, or as to the advice given thereon in the course of their professional duties or in their professional character, without the consent of such person.

(c) Child abuse 

Clergy members shall report all cases of child abuse, but need not report information solely gained in a confession or similarly confidential communication in other religious faiths. Nothing shall modify or limit the duty of a clergy member to report a reasonable cause that a child is being injured when the clergy member is acting in some other capacity that would otherwise make the clergy member a reporter.

Note

Subsection (a)(1). This subsection is taken nearly verbatim from G. L. c. 233, § 20A. In Commonwealth v. Kebreau, 454 Mass. 287, 301 (2009), the Supreme Judicial Court noted that the privilege is strictly construed and applies only to communications where a penitent “seek[s] religious or spiritual advice or comfort.” In Commonwealth v. Marrero, 436 Mass. 488, 495 (2002), the Supreme Judicial Court declined to include the manager of a “Christian rehabilitation center” for drug addicts and alcoholics, who was not an ordained or licensed minister, within the definition of “clergyman.” The court also noted it was not an appropriate case to consider adopting the more expansive definition of “clergyman” found in Proposed Mass. R. Evid. 505(a)(1). Id.

Subsection (a)(2). This subsection is taken nearly verbatim from Commonwealth v. Zezima, 365 Mass. 238, 241 (1974), rev’d on other grounds, 387 Mass. 748 (1982).

Subsection (a)(3). This subsection is taken nearly verbatim from G. L. c. 233, § 20A. See Commonwealth v. Vital, 83 Mass. App. Ct. 669, 673–674 (2013) (a communication by the defendant to his pastor with a request that it be passed on to a person who was the alleged victim of a sexual assault by the defendant was not covered by the privilege because the defendant’s purpose was not to receive “religious or spiritual advice or comfort,” but instead to circumvent the terms of a restraining order).

Subsection (b). This subsection is derived from G. L. c. 233, § 20A.  It is a preliminary question of fact for the trial judge whether a communication to a clergy member is within the scope of the privilege. Commonwealth v. Zezima, 365 Mass. 238, 242 n.4 (1974), rev’d on other grounds, 387 Mass. 748 (1982). See Commonwealth v. Nutter, 87 Mass. App. Ct. 260, 264–265 (2015) (communication made after pastoral relationship had ended was not privileged).

Subsection (c). This subsection is taken nearly verbatim from G. L. c. 119, § 51A.

(a) Privilege of defendant in criminal proceeding

(1) Custodial interrogation

A person has a right to refuse to answer any questions during a custodial interrogation.

(2) Refusal evidence

(A) No Court Order or Warrant. In the absence of a court order or warrant, evidence of a person’s refusal to provide real or physical evidence, or to cooperate in an investigation ordered by State officials, is not admissible in any criminal proceeding, except to challenge evidence of cooperation elicited by the defendant.

(B) Court Order or Warrant. When State officials have obtained a court order or warrant for physical or real evidence, a person’s refusal to provide the real or physical evidence is admissible in any criminal proceeding.

(3) Compelled examination

A defendant has a right to refuse to answer any questions during a court-ordered examination for criminal responsibility.

(4) At a hearing or trial

A defendant has a right to refuse to testify at any criminal proceeding.

(b) Privilege of a witness 

Every witness has a right, in any proceeding, civil or criminal, to refuse to answer a question unless it is perfectly clear, from a careful consideration of all the circumstances, that the testimony cannot possibly have a tendency to incriminate the witness.

(c) Exceptions

(1) Waiver by defendant’s testimony

A defendant who voluntarily testifies in a criminal case waives the privilege against self-incrimination to the extent that the defendant may be cross-examined on all relevant and material facts regarding that case.

(2) Waiver by witness’s testimony 

A witness who voluntarily testifies regarding an incriminating fact waives the privilege against self-incrimination as to subsequent questions seeking related facts in the same proceeding.

(3) Limitation

A waiver by testimony under Subsection (c)(1) or (c)(2) is limited to the proceeding in which it is given and does not extend to subsequent proceedings.

(4) Required records

A witness may be required to produce required records because the witness is deemed to have waived the privilege against self-incrimination in such records. Required records, as used in this subsection, are those records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established.

(5) Immunity 

In any investigation or proceeding, a witness shall not be excused from testifying or from producing books, papers, or other evidence on the ground that the testimony or evidence required may tend to incriminate the witness or subject the witness to a penalty or forfeiture if the witness has been granted immunity with respect to the transactions, matters, or things concerning which the witness is compelled, after having claimed the privilege against self-incrimination, to testify or produce evidence by a justice of the Supreme Judicial Court, Appeals Court, or Superior Court.

(6) Foregone conclusion

Where a defendant is ordered by the court to produce information, the act of production does not involve testimonial communication and therefore does not violate the defendant’s privilege against self-incrimination if the facts communicated already are known to the government and add little or nothing to the sum total of the government’s information.

(d) Use of suppressed statements 

The voluntary statement of a defendant that has been suppressed because of a Miranda violation may nevertheless, in limited circumstances, be used for impeachment purposes.

Note

Subsection (a). The Fifth Amendment to the Constitution of the United States provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” Similarly, Article 12 of the Declaration of Rights of the Massachusetts Constitution provides that “[n]o subject shall . . . be compelled to accuse, or furnish evidence against himself.” These provisions protect a person from the compelled production of testimonial communications. See Blaisdell v. Commonwealth, 372 Mass. 753, 758–759 (1977). See also Commonwealth v. Brennan, 386 Mass. 772, 776 (1982). When the privilege is applicable, it may be overcome only by an adequate grant of immunity or a valid waiver. Blaisdell, 372 Mass. at 761. Under both Article 12 and the Fifth Amendment, the privilege does not apply to a corporation. Hale v. Henkel, 201 U.S. 43, 74–75 (1906); Matter of a John Doe Grand Jury Investigation, 418 Mass. 549, 552 (1994). Whether the privilege exists, its scope, and whether it has been waived are preliminary questions for the court to decide under Section 104(a), Preliminary Questions: In General.

Subsection (a)(1). This subsection is derived from the Fifth Amendment to the United States Constitution and Miranda v. Arizona, 384 U.S. 436, 444 (1966). The Miranda doctrine, including its accompanying exclusionary rule, has been developed and explained in numerous decisions of the United States Supreme Court and the appellate courts of Massachusetts. See E.B. Cypher, Criminal Practice and Procedure § 7.13 et seq. (4th ed. 2014). “[E]vidence of a criminal defendant’s postarrest, post-Miranda silence cannot be used for the substantive purpose of permitting an inference of guilt.” Commonwealth v. Mahdi, 388 Mass. 679, 694 (1983). See Doyle v. Ohio, 426 U.S. 610, 619 (1976). The limited exceptions where evidence of a defendant’s postarrest, post-Miranda silence may be admissible include to 

“explain[] why a police interview of the defendant abruptly ended [when] the jury would be confused without the explanation; rebut[] the defendant’s suggestion at trial that some impropriety on the part of the police prevented him from completing his statement to them; and rebut[] a claim by the defendant that he had given the police at the time of his arrest the same exculpatory explanation as he was presenting to the jury at trial” (citations omitted). 

Commonwealth v. Letkowski, 469 Mass. 603, 611–612 (2014).

A waiver of the right against self-incrimination during a custodial interrogation is valid even if the warning does not precisely follow the language of the Miranda decision, so long as the warning, considered in its entirety, adequately conveys the substance of Miranda. See Commonwealth v. LaJoie, 95 Mass. App. Ct. 10, 15–17 (2019) (Warning the defendant “you have the right to an attorney” and if you cannot afford an attorney one will be appointed “prior to any questioning” adequately conveyed that the defendant had the right “to the presence” of an attorney during questioning. The court declined to extend the protections of the Massachusetts Declaration of Rights beyond the requirements of the Fifth Amendment.).

Preference for Recording Certain Custodial Interrogations. Where the prosecution presents evidence of an unrecorded confession or statement made during a custodial interrogation, a criminal defendant is entitled, upon request, to a jury instruction advising that the State’s highest court has expressed a preference that a custodial interrogation in a place of detention be recorded “whenever practicable.” Commonwealth v. DiGiambattista, 442 Mass. 423, 447 (2004). In such a case, the jury should be instructed to weigh the evidence of the defendant’s statement “with great caution and care” and be advised that “the absence of a recording permits (but does not compel) them to conclude that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt.” Id. at 447–448. The defendant has the right to refuse to have the interrogation recorded. Commonwealth v. Tavares, 81 Mass. App. Ct. 71, 73 (2011). The Commonwealth also has the right to introduce evidence that the defendant refused to have the interrogation recorded, even in circumstances where the defendant does not challenge the voluntariness of the statement or make an issue of the lack of a recording. Commonwealth v. DaSilva, 471 Mass. 71, 80 (2015). The defendant is entitled to a DiGiambattista instruction even where a recording was not made, was interrupted, or ceased at the defendant’s request. Commonwealth v. Santana, 477 Mass. 610, 623–‌624 (2017). The DiGiambattista instruction may include reference to the defendant’s decision not to have a custodial statement recorded. See Commonwealth v. Rousseau, 465 Mass. 372, 391–393 (2013). The Supreme Judicial Court has, however, stated that “the better practice is not to instruct juries that defendants have a ‘right’ to refuse recording.” Commonwealth v. Alleyne, 474 Mass. 771, 785 (2016). The DiGiambattista rule does not apply when the police station interview of the defendant is noncustodial. See, e.g., Commonwealth v. Issa, 466 Mass. 1, 19–21 (2013).

Regarding situations where an interpreter is used to translate a defendant’s custodial statements, in Commonwealth v. AdonSoto, 475 Mass. 497, 507 (2016), the Supreme Judicial Court stated, citing DiGiambattista, as follows: “We now announce a new protocol . . . . Going forward, and where practicable, we expect that all interviews and interrogations using interpreter services will be recorded.”

Cross-Reference: Section 604, Interpreters.

Subsection (a)(2). This subsection is derived from Commonwealth v. Delaney, 442 Mass. 604, 609–611 (2004), and from Commonwealth v. Jones, 477 Mass. 307, 326–328 (2017). The privilege against self-incrimination, under both Federal and State law, protects only against the compelled production of communications or testimony by the government. See Bellin v. Kelley, 48 Mass. App. Ct. 573, 581 n.13 (2000), and cases cited. It does not prevent the government from forcing a person to produce real or physical evidence, such as fingerprints, photographs, lineups, blood samples, handwriting, and voice exemplars. Commonwealth v. Brennan, 386 Mass. 772, 776–777, 783 (1982) (standard field sobriety tests do not implicate the privilege). The privilege against self-incrimination does not forbid the compelled production of certain statements that are necessarily incidental to the production of real or physical evidence. See Commonwealth v. Burgess, 426 Mass. 206, 220 (1997). On the other hand, testimonial evidence which reveals a person’s knowledge or thoughts concerning some fact is protected. Brennan, 386 Mass. at 778. In some respects, Article 12 provides greater protections than the Fifth Amendment. See Attorney Gen. v. Colleton, 387 Mass. 790, 796 (1982); Commonwealth v. Hughes, 380 Mass. 583, 595 (1980). Compare Braswell v. United States, 487 U.S. 99, 109, 117–118 (1988) (Fifth Amendment privilege not applicable to order requiring custodian of corporate records to produce them even though the records would tend to incriminate the custodian because he is only acting as a representative of the corporation when he responds to the order), with Commonwealth v. Doe, 405 Mass. 676, 678–680 (1989) (describing result in Braswell v. United States as a “fiction” and holding that the privilege under Article 12 is fully applicable to protect custodian of corporate records from duty to produce them in circumstances in which act of production would incriminate the custodian as well as the corporation). 

Refusal Evidence. In Opinion of the Justices, 412 Mass. 1201, 1208 (1992), the Supreme Judicial Court opined that legislation permitting the Commonwealth to offer evidence of a person’s refusal to take a breathalyzer test would violate the privilege against self-incrimination under Article 12 because such evidence reveals the person’s thought processes, i.e., it indicates the person has doubts or concerns about the outcome of the test, and thus constitutes testimonial evidence, the admission of which into evidence would violate the privilege under Article 12 of the Massachusetts Declaration of Rights. Federal law and the law of most other States is to the contrary. See South Dakota v. Neville, 459 U.S. 553, 560–561 (1983). See also Commonwealth v. Conkey, 430 Mass. 139, 142 (1999) (“evidence admitted to show consciousness of guilt is always testimonial because it tends to demonstrate that the defendant knew he was guilty”). If evidence of the defendant’s refusal to take a breathalyzer, or other alcohol-related test, is erroneously introduced at trial, the defendant has the right to a jury instruction pursuant to Commonwealth v. Downs, 53 Mass. App. Ct. 195, 198 (2001), that jurors are not to consider the lack of any alcohol-test evidence during deliberations. Id. It is the defendant’s decision whether a Downs instruction is given; the instruction cannot be given over the defendant’s objection, and the judge should not give the instruction sua sponte, see Commonwealth v. Wolfe, 478 Mass. 142, 149–‌150 (2017), except in rare circumstances, see Commonwealth v. Derosier, 103 Mass. App. Ct. 518, 524 (2023) (where jury asked question about breathalyzer machine shown in booking video).

The reasoning employed by the Supreme Judicial Court in Opinion of the Justices, 412 Mass. at 1208–1211, has been extended to other circumstances in which a person refuses to take a test, or to supply the police with real or physical evidence in the absence of a court order or warrant. See, e.g., Conkey, 430 Mass. at 141–143 (evidence of a defendant’s failure to appear at a police station for fingerprinting); Commonwealth v. Hinckley, 422 Mass. 261, 264–265 (1996) (evidence of a defendant’s refusal to turn over sneakers for comparison with prints at a crime scene is not admissible); Commonwealth v. McGrail, 419 Mass. 774, 779–780 (1995) (evidence of refusal to submit to field sobriety tests is not admissible); Commonwealth v. Zevitas, 418 Mass. 677, 683 (1994) (evidence of refusal to submit to a blood alcohol test under G. L. c. 90, § 24, is not admissible); Commonwealth v. Lydon, 413 Mass. 309, 313–315 (1992) (evidence of a defendant’s refusal to let his hands be swabbed for the presence of gunpowder residue is not admissible). See also Commonwealth v. Buckley, 410 Mass. 209, 214–216 (1991) (a suspect may be compelled to provide a handwriting exemplar); Commonwealth v. Burke, 339 Mass. 521, 534–535 (1959) (defendant may be required to go to the courtroom floor and strike a pose for identification purposes). Contrast Commonwealth v. Delaney, 442 Mass. 604, 607–612 & n.8 (2004) (explaining that although a warrant involves an element of compulsion, it leaves the individual with no choice other than to comply unlike the compulsion that accompanies a police request for information or evidence during the investigative stage; therefore, the Commonwealth may offer evidence of a defendant’s resistance to a warrant or court order without violating Article 12); Commonwealth v. Brown, 83 Mass. App. Ct. 772, 778–779 (2013) (statements by defendant while performing field sobriety tests expressing difficulty with or inability to do the test are admissible).

Where a defendant consents to take a breathalyzer test, “the failure to produce a breath sample is not improper refusal evidence. Rather, in the proper circumstances, the failure to provide a breath sample may be introduced either to show that the defendant is too impaired to take the test or to show consciousness of guilt,” provided that the statutory and regulatory requirements have been met. Commonwealth v. Daigle, 99 Mass. App. Ct. 107, 112 (2021) (insufficient breath sample introduced in error as Commonwealth did not meet foundational requirements for admission, including demonstrating that person administering test was certified and that methodology used was in fact reliable). See Commonwealth v. AdonSoto, 475 Mass. 497, 501–502 (2016).

Evidence of refusal may be admissible where the defendant “opens the door” by introducing evidence of cooperation. Commonwealth v. Jones, 477 Mass. 307, 326–328 (2017); Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 104 (2001) (where defense counsel elicited testimony that defendant was not subjected to field sobriety test, Commonwealth was entitled to elicit testimony that defendant refused); Commonwealth v. Johnson, 46 Mass. App. Ct. 398, 405–406 (1999) (where defendant testified that he “did not disguise his voice” during identification procedure, Commonwealth was entitled to elicit testimony that defendant twice failed to show up for voice identification).

Cross-Reference: Section 525(b)(1), Comment upon or Inference from Claim of Privilege: Criminal Case; Section 613(a)(2), Prior Statements of Witnesses, Limited Admissibility: Prior Inconsistent Statement: Examining Other Witness; Section 613(a)(3), Prior Statements of Witnesses, Limited Admissibility: Prior Inconsistent Statement: Disclosure of Extrinsic Evidence.

Subsection (a)(3). This subsection is derived from the Fifth Amendment to the United States Constitution; Article 12 of the Massachusetts Declaration of Rights; G. L. c. 233, § 23B; and Blaisdell v. Commonwealth, 372 Mass. 753 (1977). At any stage of the proceeding, the trial judge may order a defendant to submit to an examination by one or more qualified physicians or psychologists under G. L. c. 123, § 15(a), on the issue of competency or criminal responsibility.

Competency Examinations. A competency examination does not generally implicate a person’s privilege against self-incrimination because it is intended to determine whether the defendant is able to confer intelligently with counsel and to competently participate in the trial, not the issue of guilt or innocence. See Seng v. Commonwealth, 445 Mass. 536, 545 (2005). If the competency examination ordered by the court under G. L. c. 123, § 15(a), results in an opinion by the qualified physician or psychologist that the defendant is not competent, the court may order an additional examination by an expert selected by the Commonwealth.  G. L. c. 123, § 15(a). “In the circumstances of a competency examination, G. L. c. 233, § 23B, together with the judge-imposed strictures of [Mass. R. Crim. P.] 14(b)(2)(B), protects the defendant’s privilege against self-‌incrimination.” Seng, 445 Mass. at 548.

Use of Statements Made During Competency Examinations in Connection with Criminal Responsibility. Generally, a patient’s communications to a psychotherapist in a court-ordered evaluation under G. L. c. 123, § 15, may not be disclosed against the patient’s wishes absent a warning that the communications would not be privileged. See Commonwealth v. Lamb, 365 Mass. 265, 270 (1974).

Criminal Responsibility Examinations. Defendants who intend at trial to raise their mental condition at the time of the alleged crime, or who intend to introduce expert testimony on their mental condition at any stage of the proceeding, must give written notice to the Commonwealth. Mass. R. Crim. P. 14(b)(2)(A). Where a defendant’s expert witness will rely on statements that the defendant made to the expert as the basis for the expert’s opinion on the defendant’s mental condition, the court, on its own motion or on motion of the Commonwealth, may order the defendant to submit to an examination by a court-appointed examiner in accordance with the terms and conditions set forth in Rule 14(b)(2)(B). This procedure adequately safeguards a defendant’s privilege against self-incrimination. See Mass. R. Crim. P. 14(b)(2)(B); Blaisdell v. Commonwealth, 372 Mass. 753, 766–769 (1977). The results of a competency evaluation may be used against the defendant where the defendant offers evidence at trial in support of a defense of lack of criminal responsibility, thereby waiving the privilege; Lamb warnings given at the beginning of court-ordered competency evaluations should contain a warning to that effect. Commonwealth v. Harris, 468 Mass. 429, 452 (2014).

Rule 14(b)(2)(C) establishes a “reciprocal discovery process” to ensure that both the defendant’s expert and the court-appointed examiner have “equal access to the information they collectively deem necessary to conduct an effective forensic examination and produce a competent report.” Reporters’ Notes to Mass. R. Crim. P. 14(b)(2)(C). See Commonwealth v. Hanright, 465 Mass. 639, 644 (2013) (“It is only fair that the Commonwealth have the opportunity to rebut the defendant’s mental health evidence using the same resources that should be made available to defendant’s medical expert.”). Under the rule, within fourteen days of the court’s designation of the court-appointed examiner, the defendant must make available to the examiner (1) all mental health records concerning the defendant in defense counsel’s possession; (2) all medical records concerning the defendant in defense counsel’s possession; and (3) all raw data from any tests or assessments administered or requested by the defendant’s expert. Mass. R. Crim. P. 14(b)(2)(C)(i). This duty of production extends beyond the initial fourteen-day period. Mass. R. Crim. P. 14(b)(2)(C)(ii). The examiner also may request additional records under seal from “any person or entity” by following the procedure set forth in Rule 14(b)(2)(C)(iii); this same provision provides that if the court allows any part of an examiner’s request, the defendant may make copies of the same records. At the conclusion of the court-ordered examination, the examiner must make available to the defendant all raw data from any tests or assessments administered to the defendant during the examination. Mass. R. Crim. P. 14(b)(2)(C)(iv). “By ensuring that the experts are working from a common, comprehensive set of records and objective, test-generated data, the rule advances the reliability and fairness of the examinations and the ensuing reports, and it promotes efficiency in the examination process.” Reporters’ Notes to Mass. R. Crim. P. 14(b)(2)(C). 

Although Rule 14(b)(2)(C)(i) requires that the defendant produce only those mental health and medical records possessed by defense counsel, the rule “intends as wide a reach as is reasonably possible, covering every such record that the defense collected in the course of considering whether to assert this defense.” Reporters’ Notes to Mass. R. Crim. P. 14(b)(2)(C). Any concern that the defense “overlooked” or “chose not to collect” certain records is counterbalanced by the ability of the court-appointed examiner to request additional records. Id.

Subsection (a)(4). This subsection is derived from the Fifth Amendment to the United States Constitution; Article 12 of the Massachusetts Declaration of Rights; and G. L. c. 233, § 20, Third. Generally, in determining the existence of the privilege, the judge is not permitted to pierce the privilege. See Section 104(a), Preliminary Questions: In General. This privilege is not self-executing. See Commonwealth v. Brennan, 386 Mass. 772, 780 (1982).

Subsection (b). This subsection is derived from the Fifth Amendment to the United States Constitution; Article 12 of the Massachusetts Declaration of Rights; Wansong v. Wansong, 395 Mass. 154, 157–158 (1985) (civil proceeding); and Commonwealth v. Baker, 348 Mass. 60, 62–63 (1964) (criminal proceeding). See also Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) (“The [Fifth] Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.”). The test used to determine whether an answer might incriminate the witness is the same under both Federal and State law. See Malloy v. Hogan, 378 U.S. 1, 11 (1964). See also Commonwealth v. Lucien, 440 Mass. 658, 665 (2004); Commonwealth v. Funches, 379 Mass. 283, 289 (1979). Also, under both Federal and State law, a public employee cannot be discharged or disciplined solely because the employee asserts the privilege against self-incrimination in response to questions by the public employer. Furtado v. Plymouth, 451 Mass. 529, 530 n.2 (2008). In Furtado, the Supreme Judicial Court interpreted the “criminal investigations” exception to G. L. c. 149, § 19B, which forbids the use of lie detector tests in the employment context except in very limited circumstances, as permitting a police chief to require a police officer under departmental investigation to submit to a lie detector test as a condition of his continued employment on grounds that there was an investigation of possible criminal activity, even though the police officer had been granted transactional immunity and could not be prosecuted criminally for that conduct. Id. at 532–538. Unlike other testimonial privileges, the privilege against self-incrimination should be liberally construed in favor of the person claiming it. Commonwealth v. Koonce, 418 Mass. 367, 378 (1994). This privilege is not self-executing. See Commonwealth v. Brennan, 386 Mass. 772, 780 (1982).

Validity of Claim of Privilege. Whenever a witness or the attorney for a witness asserts the privilege against self-incrimination, the judge “has a duty to satisfy himself that invocation of the privilege is proper in the circumstances.” Commonwealth v. Martin, 423 Mass. 496, 503 (1996). The mere assertion of the privilege is not sufficient. The witness or counsel must show “a real risk” that answers to the questions will tend to indicate “involvement in illegal activity,” as opposed to “a mere imaginary, remote or speculative possibility of prosecution.” Id. at 502. The witness is only required to “open the door a crack.” Id. at 504–505, quoting In re Brogna, 589 F.2d 24, 28 n.5 (1st Cir. 1978). See Commonwealth v. Johnson, 486 Mass. 51, 61–62 (2020) (witness may not invoke privilege “out of fear that [she] will be prosecuted for perjury for what [she] is about to say” or where prosecution would be barred by statute of limitations). “A witness also is not entitled to make a blanket assertion of the privilege. The privilege must be asserted with respect to particular questions, and the possible incriminatory potential of each proposed question, or area which the prosecution might wish to explore, must be considered.” Martin, 423 Mass. 496, 502 (1996). If, however, it is apparent that most, if not all, of the questions will expose the witness to self-‌incrimination, and there is no objection, it is not necessary for the witness to assert the privilege as to each and every question. Commonwealth v. Sueiras, 72 Mass. App. Ct. 439, 445–446 (2008).

Martin Hearing. In general, the judge’s verification of the validity of the privilege should be based on information provided in open court.. Commonwealth v. Alicea, 464 Mass. 837, 843 (2013). Only in those rare circumstances where the information is inadequate to allow the judge to make an in-formed determination should the judge conduct an in camera Martin hearing.” Commonwealth v. Jones, 472 Mass. 707, 728 (2015), quoting Pixley v. Commonwealth, 453 Mass. 827, 833 (2009). Neither the defendant nor counsel has a right to be present during a Martin hearing. Commonwealth v. Clemente, 452 Mass. 295, 318 (2008). If the judge rules that there is a valid basis for the witness to assert the privilege, the defendant has no right to call that witness. Pixley, 453 Mass. at 834. At the conclusion of a Martin hearing, the trial judge should seal the transcript or tape of the hearing, which may be reopened “only by an appellate court on appellate review.” Id. at 836–837. 

Grand Jury Witness. If there is a “substantial likelihood” that the witness will be indicted—that is, if the witness is a “target” of the grand jury investigation or likely to become one—the witness must be advised before testifying (1) of the right to refuse to answer any question if a truthful answer would tend to incriminate the witness, and (2) that any statements may be used against the witness in a subsequent legal proceeding. Commonwealth v. Woods, 466 Mass. 707, 720 (2014). See G. L. c. 277, § 14A (witness with counsel has the right to counsel’s presence before the grand jury). See also Supreme Judicial Court Committee on Grand Jury Proceedings: Final Report (June 2018), at http://perma.cc/3CN6-8BZ6.

Noncriminal Proceedings. “A person may not seek to obtain a benefit or to turn the legal process to his advantage while claiming the privilege as a way of escaping from obligations and conditions that are normally incident to the claim he makes.” Mello v. Hingham Mut. Fire Ins. Co., 421 Mass. 333, 338 (1995) (party seeking to recover insurance benefits as a result of a fire loss properly had summary judgment entered against him for refusing to submit to an examination required by his policy on grounds that his answers to questions would tend to incriminate him). See also Department of Revenue v. B.P., 412 Mass. 1015, 1016 (1992) (in paternity case, court may draw adverse inference against party who asserts the privilege and refuses to submit to blood and genetic marker testing); Wansong v. Wansong, 395 Mass. 154, 157–158 (1985) (dismissal of complaint for divorce without prejudice as discovery sanction). Adoption of Cecily, 83 Mass. App. Ct. 719, 727 (2013) (in termination of parental rights case, court may draw adverse inference against parent who invokes privilege, even though criminal charges are pending). In addition, the court has discretion to reject claims by parties that they are entitled to continuances of administrative proceedings or civil trials until after a criminal trial because they will not testify for fear of self-incrimination. See Oznemoc, Inc. v. Alcoholic Beverages Control Comm’n, 412 Mass. 100, 105 (1992); Kaye v. Newhall, 356 Mass. 300, 305–306 (1969). Whenever a court faces a decision about the consequence of a party’s assertion of the privilege in a civil case, “the judge’s task is to balance any prejudice to the other civil litigants which might result . . . against the potential harm to the party claiming the privilege if he is compelled to choose between defending the civil action and protecting himself from criminal prosecution” (citations and quotations omitted). Wansong, 395 Mass. at 157.

The existence of the privilege against self-incrimination does not shield a witness, other than a defendant in a criminal case, from being called before the jury to give testimony. See Kaye, 356 Mass. at 305. The trial judge has discretion to deny a defense request for process to bring an out-of-State witness back for trial based on evidence that there is a factual basis for the witness to assert the privilege against self-‌incrimination and a representation by the witness’s attorney that the witness will invoke the privilege if called to testify. Commonwealth v. Sanders, 451 Mass. 290, 294–295 (2008). The assertion of the privilege by a party or a witness in a civil case may be the subject of comment by counsel, and the jury may be permitted to draw an adverse inference against a party as a result. See Section 525(a), Comment upon or Inference from Claim of Privilege: Civil Case.

Subsection (c)(1). This subsection is derived from Jones v. Commonwealth, 327 Mass. 491, 493 (1951). In such a case, the cross-‌examination is not limited to the scope of direct examination and may include inquiry about any matters that may be made the subject of impeachment. See, e.g., G. L. c. 233, § 21; Commonwealth v. Seymour, 39 Mass. App. Ct. 672, 675 (1996).

Subsection (c)(2). This subsection is derived from Taylor v. Commonwealth, 369 Mass. 183, 189–191 (1975). Though a witness may waive the privilege against self-incrimination as to subsequent questions by voluntarily testifying regarding an “incriminating fact,” if a question put to the witness poses “a real danger of legal detriment,” i.e., the answer might provide another link in the chain of evidence leading to a conviction, the witness may still have a basis for asserting the privilege against self-‌incrimination. See Commonwealth v. Funches, 379 Mass. 283, 290–291 & nn.8–10 (1979). In Commonwealth v. King, 436 Mass. 252, 258 n.6 (2002), the Supreme Judicial Court explained the scope of this doctrine by stating that “[t]he waiver, once made, waives the privilege only with respect to the same proceeding; the witness may once again invoke the privilege in any subsequent proceeding.” See Commonwealth v. Martin,  423 Mass. 496, 500–‌501 (1996) (waiver of privilege before grand jury does not waive privilege at trial); Commonwealth v. Borans, 388 Mass. 453, 457–458 (1983) (same). See also Care & Protection of M.C., 479 Mass. 246, 261 (2018) (waiver of privilege at trial on termination of parental rights does not waive privilege in subsequent criminal trial). A voir dire hearing, held on the day of trial, is the same proceeding as the trial for purposes of the doctrine of waiver by testimony. Luna v. Superior Court, 407 Mass. 747, 750–751, cert. denied, 498 U.S. 939 (1990) (privilege could not be claimed at trial where witness had submitted incriminating affidavit in connection with pretrial motion and testified at pretrial hearing); Commonwealth v. Penta, 32 Mass. App. Ct. 36, 45–46 (1992) (witness who testified at motion to suppress, recanted that testimony in an affidavit, and testified at hearing on motion to reconsider could not invoke the privilege at trial). See also Commonwealth v. Judge, 420 Mass. 433, 445 n.8 (1995) (hearing on motion to suppress is same proceeding as trial for purposes of waiver by testimony).

The trial judge may be required to caution a witness exhibiting “ignorance, confusion, or panic . . . or other peculiar circumstances” in order for a voluntary waiver to be established. Taylor, 369 Mass. at 192. The proper exercise of this judicial discretion “involves making a circumstantially fair and reasonable choice within a range of permitted options.” Lonergan-Gillen v. Gillen, 57 Mass. App. Ct. 746, 748–749 (2003). Ultimately, whether a voluntary waiver has occurred is a question of fact for the trial judge. See King, 436 Mass. at 258–259.

Subsection (c)(3). This subsection is derived from Taylor v. Commonwealth, 369 Mass. 183, 190–191 (1975). See also Commonwealth v. Martin, 423 Mass. 496, 500 (1996) (grand jury proceedings and the defendant’s subsequent indictment are separate proceedings); Commonwealth v. Johnson, 175 Mass. 152, 153 (1900); Commonwealth v. Mandile, 17 Mass. App. Ct. 657, 662 (1984).

Subsection (c)(4). This subsection is derived from Stornanti v. Commonwealth, 389 Mass. 518, 521–522 (1983) (“The required records exception applies when three requirements are met: First, the purposes of the State’s inquiry must be essentially regulatory; second, information is to be obtained by requiring the preservation of records of a kind which the regulated party has customarily kept; and third, the records themselves must have assumed ‘public aspects’ which render them at least analogous to public documents” [quotations and citation omitted].). See also Matter of Kenney, 399 Mass. 431, 438–441 (1987) (court notes that if the records in question are required to be kept by lawyers there is nothing incriminating about the fact that they exist and are in the possession of the lawyer required to produce them).

Subsection (c)(5). This subsection is derived from Article 12 of the Massachusetts Declaration of Rights; G. L. c. 233, § 20C; and Attorney Gen. v. Colleton, 387 Mass. 790, 796–801 (1982), quoting and citing Emery’s Case, 107 Mass. 172, 185 (1871) (Article 12 requires transactional and not merely use or derivative use immunity to overcome the privilege against self-incrimination). See also G. L. c. 233, §§ 20D–‌20I (statutes governing the granting of immunity); Commonwealth v. Austin A., 450 Mass. 665, 669–670 (2008) (grant of immunity in Superior Court applicable to testimony in Juvenile Court). The Federal Constitution only requires use immunity to overcome the privilege against self-‌incrimination. See Kastigar v. United States, 406 U.S. 441 (1972). A conviction cannot be based solely on immunized testimony. There must be some corroborating evidence of at least one element of proof essential to convict the defendant. Commonwealth v. Resende, 476 Mass. 141, 152 (2017). See also G. L. c. 233, § 20I. But see Commonwealth v. Duke, 489 Mass. 649, 665–666 (2022) (declining to extend corroboration requirement for immunized testimony under G. L. c. 233, § 20I, to cooperating witnesses, as special instruction pursuant to Commonwealth v. Thomas, 439 Mass. 362, 372 [2003], adequately protects defendant’s right to due process).

Subsection (c)(6). This subsection is taken nearly verbatim from Commonwealth v. Gelfgatt, 468 Mass. 512, 522–523 (2014), quoting Fisher v. United States, 425 U.S. 391, 410–411 (1976) (“for the exception to apply, the government must establish its knowledge of [1] the existence of the evidence demanded; [2] the possession or control of that evidence by the defendant; and [3] the authenticity of the evidence”). See Commonwealth v. Jones, 481 Mass. 540, 542–543 (2019) (when Commonwealth has warrant to search cell phone and seeks Gelfgatt order compelling defendant to decrypt phone by entering the password, Article 12 of Declaration of Rights requires Commonwealth to prove defendant's knowledge of password beyond a reasonable doubt for “foregone conclusion” exception to apply).

Subsection (d). This subsection is derived from Commonwealth v. Harris, 364 Mass. 236, 241–242 (1973), which permits statements obtained without a valid waiver of Miranda rights to be used for impeachment of a defendant who testifies at trial if the statements are voluntary and trustworthy. See Commonwealth v. Mahnke, 368 Mass. 662, 694–696 (1975) (statement obtained in violation of defendant’s right to counsel admissible for impeachment). See also Commonwealth v. Mulgrave, 472 Mass. 170, 181 (2015) (general subject matter of defendant’s responses during questioning admissible to impeach defendant’s position that he was noncommunicative during booking process and thus unable to comprehend his Miranda rights); Commonwealth v. Rivera, 425 Mass. 633, 637–638 (1997) (defendant’s prior inconsistent statements made at suppression hearing admissible to impeach his testimony at trial). A coerced or involuntary statement may not be used for any purpose, including impeachment. Harris, 364 Mass. at 241. See Commonwealth v. Durand, 457 Mass. 574, 590–591 (2010) (defendant’s statements previously suppressed as involuntary not admissible on prosecution’s redirect of police officer, even where cross-examination arguably opened the door). Evidence obtained in violation of a defendant’s substantive constitutional rights, as opposed to violations of “prophylactic” Miranda rules, is not admissible for any purpose. Commonwealth v. Fini, 403 Mass. 567, 571 (1988) (statement obtained by warrantless electronic eaves-dropping in private home in violation of Article 14 of the Massachusetts Declaration of Rights inadmissible for any purpose). Cf. Commonwealth v. Domaingue, 397 Mass. 693, 702 (1986) (transcript of warrantless recording of defendant’s conversation made in restaurant could be used to refresh defendant’s recollection without disclosing substance of defendant’s statement).

See Section 606(b), Juror’s Competency as a Witness: During an Inquiry into the Validity of a Verdict.

(a) Definitions

(1) As used in this section, “medical peer review committee” is a committee of a State or local professional society of health care providers, including doctors of chiropractic, or of a medical staff of a public hospital or licensed hospital or nursing home or health maintenance organization organized under G. L. c. 176G, provided the medical staff operates pursuant to written bylaws that have been approved by the governing board of the hospital or nursing home or health maintenance organization or a committee of physicians established pursuant to Section 12 of G. L. c. 111C for the purposes set forth in G. L. c. 111, § 203(f), which committee has as its function the evaluation or improvement of the quality of health care rendered by providers of health care services, the determination whether health care services were performed in compliance with the applicable standards of care, the determination whether the cost of health care services were performed in compliance with the applicable standards of care, determination whether the cost of the health care services rendered was considered reasonable by the providers of health services in the area, the determination of whether a health care provider’s actions call into question such health care provider’s fitness to provide health care services, or the evaluation and assistance of health care providers impaired or allegedly impaired by reason of alcohol, drugs, physical disability, mental instability, or otherwise; provided, however, that for purposes of Sections 203 and 204 of G. L. c. 111, a nonprofit corporation, the sole voting member of which is a professional society having as members persons who are licensed to practice medicine, shall be considered a medical peer review committee; provided, further, that its primary purpose is the evaluation and assistance of health care providers impaired or allegedly impaired by reason of alcohol, drugs, physical disability, mental instability, or otherwise.

(2) “Medical peer review committee” also includes a committee of a pharmacy society or association that is authorized to evaluate the quality of pharmacy services or the competence of pharmacists and suggest improvements in pharmacy systems to enhance patient care, or a pharmacy peer review committee established by a person or entity that owns a licensed pharmacy or employs pharmacists that is authorized to evaluate the quality of pharmacy services or the competence of pharmacists and suggest improvements in pharmacy systems to enhance patient care.

(b) Privilege

(1) Proceedings, Reports, and Records of Medical Peer Review Committee. The proceedings, reports, and records of a medical peer review committee shall be confidential and shall be exempt from the disclosure of public records under Section 10 of G. L. c. 66, shall not be subject to subpoena or discovery prior to the initiation of a formal administrative proceeding pursuant to G. L. c. 30A, and shall not be subject to subpoena or discovery, or introduced into evidence, in any judicial or administrative proceeding, except proceedings held by the boards of registration in medicine, social work, or psychology or by the Department of Public Health pursuant to G. L. c. 111C, and no person who was in attendance at a meeting of a medical peer review committee shall be permitted or required to testify in any such judicial or administrative proceeding, except proceedings held by the boards of registration in medicine, social work, or psychology or by the Department of Public Health pursuant to G. L. c. 111C, as to the proceedings of such committee or as to any findings, recommendations, evaluations, opinions, deliberations, or other actions of such committee or any members thereof.

(2) Work Product of Medical Peer Review Committee. Information and records which are necessary to comply with risk management and quality assurance programs established by the board of registration in medicine and which are necessary to the work product of medical peer review committees designated by the patient care assessment coordinator are subject to the protections afforded to materials subject to Subsection (b)(1), except that such information and records may be inspected, maintained, and utilized by the board of registration in medicine, including but not limited to its data repository and disciplinary unit. Such information and records inspected, maintained, or utilized by the board of registration in medicine shall remain confidential, and not subject to subpoena, discovery, or introduction into evidence, consistent with Subsection (b)(1), except that such records may not remain confidential if disclosed in an adjudicatory proceeding of the board of registration in medicine.

(c) Exceptions

There is no restriction on access to or use of the following, as indicated:

(1) Documents, incident reports, or records otherwise available from original sources shall not be immune from subpoena, discovery, or use in any such judicial or administrative proceeding merely because they were presented to such committee in connection with its proceedings.

(2) The proceedings, reports, findings, and records of a medical peer review committee shall not be immune from subpoena, discovery, or use as evidence in any proceeding against a member of such committee who did not act in good faith and in a reasonable belief that based on all of the facts the member’s action or inaction was warranted. However, the identity of any person furnishing information or opinions to the committee shall not be disclosed without the permission of such person.

(3) An investigation or administrative proceeding conducted by the boards of registration in medicine, social work, or psychology or by the Department of Public Health pursuant to G. L. c. 111C.

(d) Testimony before medical peer review committee 

A person who testifies before a medical peer review committee or who is a member of such committee shall not be prevented from testifying as to matters known to such person independent of the committee’s proceedings, provided that, except in a proceeding against a witness in Subsection (c)(2), neither the witness nor members of the committee may be questioned regarding the witness’s testimony before such committee, and further provided that committee members may not be questioned in any proceeding about the identity of any person furnishing information or opinions to the committee, opinions formed by them as a result of such committee proceedings, or about the deliberations of such committee.

(e) Non–peer review records and testimony

Records of treatment maintained pursuant to G. L. c. 111, § 70, or incident reports or records or information which are not necessary to comply with risk management and quality assurance programs established by the board of registration in medicine shall not be deemed to be proceedings, reports, or records of a medical peer review committee; nor shall any person be prevented from testifying as to matters known by such person independent of risk management and quality assurance programs established by the board of registration in medicine.

Note

Introduction. The medical peer review privilege, unlike so many other privileges, is not based on the importance of maintaining the confidentiality between a professional and a client, but rather was established to promote rigorous and candid evaluation of professional performance by a provider’s peers. See Beth Israel Hosp. Ass’n v. Board of Registration in Med., 401 Mass. 172, 182–183 (1987). This is accomplished by requiring hospitals and medical staffs to establish procedures for medical peer review proceedings, see G. L. c. 111, § 203(a), and by legal safeguards against the disclosure of the identity of physicians who participate in peer review and immunity to prevent such physicians from civil liability. See Ayash v. Dana-‌Farber Cancer Inst., 443 Mass. 367, 396, cert. denied, 546 U.S. 927 (2005).

Subsection (a)(1). This subsection is taken nearly verbatim from G. L. c. 111, § 1.

Subsection (a)(2). This subsection is taken nearly verbatim from G. L. c. 111, § 1. A licensed pharmacy is permitted to establish a pharmacy peer review committee:

“A licensed pharmacy may establish a pharmacy peer review committee to evaluate the quality of pharmacy services or the competence of pharmacists and suggest improvements in pharmacy systems to enhance patient care. The committee may review documentation of quality-related activities in a pharmacy, assess system failures and personnel deficiencies, determine facts, and make recommendations or issue decisions in a written report that can be used for contiguous quality improvement purposes. A pharmacy peer review committee shall include the members, employees, and agents of the committee, including assistants, investigators, attorneys, and any other agents that serve the committee in any capacity.”

G. L. c. 111, § 203(g).

Subsection (b). Both Subsection (b)(1), which is taken nearly verbatim from G. L. c. 111, § 204(a), and Subsection (b)(2), which is taken nearly verbatim from G. L. c. 111, § 205(b), “shield information from the general public and other third parties to the same extent, [but] only information protected by § 204(a) [Subsection (b)(1)] is shielded from the board [of registration in medicine] prior to the commencement of a G. L. c. 30A proceeding.” Board of Registration in Med. v. Hallmark Health Corp., 454 Mass. 498, 508 (2009). “Determining whether the medical peer review privilege applies turns on the way in which a document was created and the purpose for which it was used, not on its content. Examining that content in camera will therefore do little to aid a judge . . . .” Carr v. Howard, 426 Mass. 514, 531 (1998). However, the peer review privilege does not prevent discovery into the process by which a given record or report was created in order to determine whether the information sought falls within the privilege. Id.

Subsection (b)(1). This subsection applies to “proceedings, reports and records of a medical peer review committee.” G. L. c. 111, § 204(a). Material qualifies for protection under this subsection if it was created “by, for, or otherwise as a result of a ‘medical peer review committee.’” Board of Registration in Med. v. Hallmark Health Corp., 454 Mass. 498, 509 (2009), quoting Miller v. Milton Hosp. & Med. Ctr., Inc., 54 Mass. App. Ct. 495, 499 (2002). See Carr v. Howard, 426 Mass. 514, 522 n.7 (1998) (asserting privilege of G. L. c. 111, § 204[a], [Subsection (b)(1)] requires evidence that materials sought “were not merely ‘presented to [a] committee in connection with its proceedings,’ . . . but were, instead, themselves, ‘proceedings, reports and records’ of a peer review committee under § 204(a)”).

Subsection (b)(2). This subsection applies to materials that, while not necessarily “proceedings, reports and records” of a peer review committee, are nonetheless “necessary to comply with risk management and quality assurance programs established by the board and which are necessary to the work product of medical peer review committees.” G. L. c. 111, § 205(b). Such materials include “incident reports required to be furnished to the [board] or any information collected or compiled by a physician credentialing verification service operated by a society or organization of medical professionals for the purpose of providing credentialing information to health care entities.” Id. The protections afforded to materials covered by Subsection (b)(2) differ from those afforded by Subsection (b)(1) in that documents protected by Subsection (b)(2) “may be inspected, maintained and utilized by the board of registration in medicine, including but not limited to its data repository and disciplinary unit,” and this subsection does not require that such access be conditioned on the commencement of a formal adjudicatory proceeding. G. L. c. 111, § 205(b).

Subsection (c). This subsection is taken nearly verbatim from G. L. c. 111, § 204(b), and Pardo v. General Hosp. Corp., 446 Mass. 1, 11–12 (2006), where the Supreme Judicial Court observed that

“the privilege can only be invaded on some threshold showing that a member of a medical peer review committee did not act in good faith in connection with his activities as a member of the committee, for example did not provide the medical peer review committee with a full and honest disclosure of all of the relevant circumstances, but sought to mislead the committee in some manner.”

In Pardo, the court held that the privilege was not overcome by the allegation that a member of the committee initiated an action for a discriminatory reason. Id. See also Vranos v. Franklin Med. Ctr., 448 Mass. 425, 447 (2007).

Subsection (d). This subsection is taken nearly verbatim from G. L. c. 111, § 204(c).

Subsection (e). This subsection is taken nearly verbatim from G. L. c. 111, § 205.

(a) Definition 

For the purposes of this section, a “mediator” shall mean a person not a party to a dispute who enters into a written agreement with the parties to assist them in resolving their disputes and has completed at least thirty hours of training in mediation, and who either (1) has four years of professional experience as a mediator, (2) is accountable to a dispute resolution organization which has been in existence for at least three years, or (3) has been appointed to mediate by a judicial or governmental body.

(b) Privilege applicable to mediator work product

All memoranda and other work product prepared by a mediator and a mediator’s case files shall be confidential and not subject to disclosure in any judicial or administrative proceeding involving any of the parties to any mediation to which such materials apply.

(c) Privilege applicable to parties’ communications

Any communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator, or other person shall be a confidential communication and not subject to disclosure in any judicial or administrative proceeding.

(d) Privilege applicable in labor disputes

Any person acting as a mediator in a labor dispute who receives information as a mediator relating to the labor dispute shall not be required to reveal such information received in the course of mediation in any administrative, civil, or arbitration proceeding. This provision does not apply to criminal proceedings.

Note

Subsections (a), (b), and (c). These subsections are derived from G. L. c. 233, § 23C. Although there are no express exceptions to the privilege set forth in Subsections (a), (b), and (c), the Supreme Judicial Court has recognized that the mediation privilege is subject to the doctrine of “at issue” waiver. See Bobick v. United States Fid. & Guar. Co., 439 Mass. 652, 658 n.11 (2003), citing Darius v. City of Boston, 433 Mass. 274, 277–278 (2001), and cases cited. See also Section 523(b)(2), Waiver of Privilege: Conduct Constituting Waiver.

Subsection (d). This subsection is derived from G. L. c. 150, § 10A.

Unless otherwise required by law, information given to governmental authorities in order to secure the enforcement of law is subject to disclosure only within the discretion of the governmental authority.

Note

This section is derived from Worthington v. Scribner, 109 Mass. 487, 488–489 (1872), and Attorney Gen. v. Tufts, 239 Mass. 458, 490–491 (1921). See also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 510–511 (1995).

Although this privilege is described as “absolute,” it is qualified by the duty of the prosecutor to provide discovery to a person charged with a crime. See Mass. R. Crim. P. 14. Moreover, as to certain kinds of information, the privilege is also qualified by the Massachusetts public records law. See G. L. c. 66, § 10. General Laws c. 4, § 7, Twenty-sixth (f), provides that investigatory materials, including information covered by this privilege, are regarded as a public record and thus subject to disclosure even though the material is compiled out of the public view by law enforcement or other investigatory officials, provided that the disclosure of the investigatory materials would not “so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” Rafuse v. Stryker, 61 Mass. App. Ct. 595, 597 (2004), quoting Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). See Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 383 (2002) (describing the process for determining whether material is exempt from disclosure as a public record).

Cross-Reference: Section 509, Identity of Informer, Surveillance Location, and Protected Witness Privileges.

Voters who cast ballots may not be asked and may not disclose their vote in any proceeding unless the court finds fraud or intentional wrongdoing.

Note

This section is derived from McCavitt v. Registrars of Voters, 385 Mass. 833, 848–849 (1982), in which the court held “that the right to a secret ballot is not an individual right which may be waived by a good faith voter.” Id. at 849.

Cross-Reference: Section 511, Privilege Against Self-Incrimination.

[Privilege not recognized]

Note

In Gossman v. Rosenberg, 237 Mass. 122, 124 (1921), the Supreme Judicial Court held that a witness could not claim a privilege as to trade secrets. Cf. Proposed Mass. R. Evid. 507. However, public access to information about trade secrets in a public agency’s possession may be limited. See G. L. c. 4, § 7, Twenty-sixth (g) (excluding from the definition of “public records” any “trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality”). The confidentiality of trade secrets also may be maintained by means of a protective order whereby a court may protect from disclosure during discovery “a trade secret or other confidential research, development, or commercial information.” Mass. R. Civ. P. 26(c)(7). See also Mass. R. Crim. P. 14(a)(5). The court may issue such a protective order on motion by a party or by the person from whom discovery is sought and if good cause is shown. Mass. R. Civ. P. 26(c)(7).

[Privilege not recognized]

Note

Unlike the Federal system, neither the Massachusetts courts nor the Legislature has established a “deliberative process privilege” that prevents a party from obtaining documents from a public officer or agency that record the deliberative process leading up to a decision by the officer or agency. See District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 509–510 (1995). Likewise, there is no “executive privilege” under the Massachusetts Constitution similar to the privilege which exists under the Federal Constitution. Compare Babets v. Secretary of Human Servs., 403 Mass. 230, 231 (1988) (doctrine of separation of powers does not require recognition of “executive privilege”), with United States v. Nixon, 418 U.S. 683, 711 (1974) (recognizing that separation of powers under Federal Constitution implies a qualified privilege for presidential communications in performance of president’s responsibilities).

Access to inter-agency or intra-agency reports, papers, and letters relating to the development of policy is governed by G. L. c. 66, § 10, the public records statute. The records of most government agencies are presumed to be public and subject to disclosure unless they qualify for any of the enumerated exemptions set forth in G. L. c. 4, § 7, Twenty-sixth. Among the material exempt from public disclosure are “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this [exemption] shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.” G. L. c. 4, § 7, Twenty-sixth (d). “The Legislature has . . . chosen to insulate the deliberative process from scrutiny only until it is completed, at which time the documents thereby generated become publicly available.” Babets, 403 Mass. at 237 n.8.

(a) State tax returns

(1) Disclosure by Commissioner of Revenue. The disclosure by the commissioner, or by any deputy, assistant, clerk or assessor, or other employee of the Commonwealth or of any city or town therein, to any person but the taxpayer or the taxpayer’s representative, of any information contained in or set forth by any return or document filed with the commissioner is prohibited.

(2) Production by Taxpayer. Massachusetts State tax returns are privileged, and a taxpayer cannot be compelled to produce them in discovery.

(3) Exceptions. Subsection (a)(1) does not apply in proceedings to determine or collect the tax, or to certain criminal prosecutions.

(b) Federal tax returns

(1) General Rule. Federal tax returns are subject to a qualified privilege. The taxpayer is entitled to a presumption that the returns are privileged and are not subject to discovery.

(2) Exceptions. A taxpayer who is a party to litigation can be compelled to produce Federal tax returns upon a showing of substantial need by the party seeking to compel production.

Note

Subsection (a). This subsection is taken nearly verbatim from G. L. c. 62C, § 21(a). General Laws c. 62C, § 21(b), sets forth twenty-three exceptions, most of which pertain to limited disclosures of tax information to other government agencies or officials.

The commissioner also has authority to disclose tax information to the Secretary of the Treasury of the United States and certain tax officials in other jurisdictions. See G. L. c. 62C, § 22.

A violation of G. L. c. 62C, § 21, may be punishable as a misdemeanor. G. L. c. 62C, § 21(c).

The privilege applicable to State tax returns in the hands of the taxpayer is set forth in Finance Comm’n of Boston v. Commissioner of Revenue, 383 Mass. 63, 67–72 (1981). See also Leave v. Boston Elevated Ry. Co., 306 Mass. 391, 402–403 (1940). Nothing in this subsection prohibits the courts from requiring a party, in appropriate circumstances, to disclose tax documents to another party during the litigation process. See, e.g., Rule 410 of the Supplemental Rules of the Probate and Family Court (requiring certain parties to disclose “federal and state income tax returns and schedules for the past three [3] years and any non-public, limited partnership and privately held corporate returns for any entity in which either party has an interest together with all supporting documentation for tax returns, including but not limited to W2’s, 1099’s, 1098’s, K1, Schedule C and Schedule E”).

Subsection (b). This subsection is derived from Finance Comm’n of Boston v. McGrath, 343 Mass. 754, 766–768 (1962).

The conditional privilege against disclosure of the contents of Federal tax returns does not forbid disclosure of the defendant’s failure to file such a return. A.C. Vaccaro, Inc. v. Vaccaro, 80 Mass. App. Ct. 635, 639–640 (2011).

(a) Definition

For the purposes of this section, a person is engaged in the business of preparing tax returns if the person advertises, or gives publicity to the effect that the person prepares or assists others in the preparation of tax returns, or prepares or assists others in the preparation of tax returns for compensation.

(b) Privilege

No person engaged in the business of preparing tax returns shall disclose any information obtained in the conduct of such business, unless such disclosure is consented to in writing by the taxpayer in a separate document, or is expressly authorized by State or Federal law, or is necessary to the preparation of the return, or is made pursuant to court order.

Note

This section is taken nearly verbatim from G. L. c. 62C, § 74. A violation of this statute may be punishable as a misdemeanor.

(a) Definitions 

For the purpose of this section, the following words shall have the following meanings:

(1) Client. A “client” is a person rendered interpreting services by a qualified interpreter.

(2) Qualified Interpreter. A “qualified interpreter” is a person skilled in sign language or oral interpretation and transliteration, has the ability to communicate accurately with a deaf or hearing-‌impaired person, and is able to translate information to and from such hearing-impaired person.

(3) Confidential Communication. A communication is confidential if a client has a reasonable expectation or intent that it not be disclosed to persons other than those to whom such disclosure is made.

(b) Privilege 

A client has a privilege to prevent a qualified interpreter from disclosing a confidential communication between one or more persons where the communication was facilitated by the interpreter.

Note

Subsection (a). This subsection is derived nearly verbatim from G. L. c. 221, § 92A. The statute’s definition of a “qualified interpreter” states that “[a]n interpreter shall be deemed qualified or intermediary as determined by the Office of Deafness, based upon the recommendations of the Massachusetts Registry of the Deaf, the Massachusetts State Association of the Deaf and other appropriate agencies.” G. L. c. 221, § 92A.

Subsection (b). This subsection is derived nearly verbatim from G. L. c. 221, § 92A. The portion of  G. L. c. 221, § 92A, that establishes the privilege references “a certified sign language interpreter,” but the statute does not specifically define that term. Accordingly, to be consistent with the terms actually defined in  G. L. c. 221, § 92A, this subsection uses the term “qualified interpreter.” There is no case law in Massachusetts which defines the scope of this privilege.

Appointment of Interpreter. The interpreter must be appointed by the court as part of a court proceeding. See G. L. c. 221, § 92A (“In any proceeding in any court in which a deaf or hearing-impaired person is a party or a witness . . . such court . . . shall appoint a qualified interpreter to interpret the proceedings”). See also Mass. R. Crim. P. 41 (“The judge may appoint an interpreter or expert if justice so requires and may determine the reasonable compensation for such services and direct payment therefor.”); Mass. R. Civ. P. 43(f) (“The court may appoint an interpreter of its own selection and may fix his reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court.”).

Cross-Reference: Section 604, Interpreters; “Standards and Procedures of the Office of Court Interpreter Services,” 1143 Mass. Reg. 15 (Nov. 13, 2009), at http://perma.cc/RPE2-85CA.

(a) Definitions 

For the purpose of this section, the following words shall have the following meanings:

(1) Interpreter. An “interpreter” is a person who is readily able to interpret written and spoken language simultaneously and consecutively from English to the language of the non-English speaker or from said language to English.

(2) Non-English Speaker. A “non-English speaker” is a person who uses only or primarily a spoken language other than English and cannot speak or understand, or has difficulty in speaking or understanding, the English language.

(b) Privilege

Disclosures made out of court by communications of a non-English speaker through an interpreter to another person shall be a privileged communication, and the interpreter shall not disclose such communication without permission of the non-English speaker.

(c) Scope

The privilege applies when the non-English speaker had a reasonable expectation or intent that the communication would not be disclosed.

Note

Subsection (a). This subsection is derived from G. L. c. 221C, § 1.

Subsection (b). This subsection is derived nearly verbatim from G. L. c. 221C, § 4(c). See Section 4.06 of the “Standards and Procedures of the Office of Court Interpreter Services,” 1143 Mass. Reg. 15 (Nov. 13, 2009), which is available at http://perma.cc/RPE2-85CA (“Court interpreters shall protect the confidentiality of all privileged and other confidential information.”).

Subsection (c). This subsection is derived nearly verbatim from G. L. c. 221C, § 4(c). There is no case law in Massachusetts that defines the scope of this privilege.

Right to Assistance of an Interpreter. General Laws c. 221C, § 2, states as follows:

“A non-English speaker, throughout a legal proceeding, shall have a right to the assistance of a qualified interpreter who shall be appointed by the judge, unless the judge finds that no qualified interpreter of the non-English speaker’s language is reasonably available, in which event the non-English speaker shall have the right to a certified interpreter, who shall be appointed by the judge.”

See Mass. R. Crim. P. 41 (“The judge may appoint an interpreter or expert if justice so requires and may determine the reasonable compensation for such services and direct payment therefor.”); Mass. R. Civ. P. 43(f) (“The court may appoint an interpreter of its own selection and may fix his reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court.”). See also G. L. c. 221C, § 3 (waiver of right to interpreter).

Procedural Issues. The statute requires the interpreter to swear or affirm to “make true and impartial interpretation using [the interpreter’s] best skill and judgment in accordance with the standards prescribed by law and the ethics of the interpreter profession.” G. L. c. 221C, § 4(a). The statute also states that “[i]n any proceeding, the judge may order all of the testimony of a non-English speaker and its interpretation to be electronically recorded for use in audio or visual verification of the official transcript of the proceedings.” G. L. c. 221C, § 4(b).

Cross-Reference: Section 604, Interpreters; “Standards and Procedures of the Office of Court Interpreter Services,” 1143 Mass. Reg. 15 (Nov. 13, 2009), at http://perma.cc/RPE2-85CA.

(a) Who can waive

A privilege holder or the holder's legally appointed guardian, administrator, executor, or heirs can waive the privilege.

(b) Conduct constituting waiver 

Except as provided in Section 524, Privileged Matter Disclosed Erroneously or Without Opportunity to Claim Privilege, a privilege is waived if the person upon whom this Article confers a privilege against disclosure

(1) voluntarily discloses or consents to disclosure of any significant part of the privileged matter or

(2) introduces privileged communications as an element of a claim or defense.

(c) Conduct not constituting waiver 

A person upon whom this Article confers a privilege against disclosure does not waive the privilege if

(1) the person merely testifies as to events which were a topic of a privileged communication, or

(2) there is an unintentional disclosure of a privileged communication and reasonable precautions were taken to prevent the disclosure.

Note

Subsection (a). This subsection is derived from Phillips v. Chase, 201 Mass. 444, 449 (1909), and District Attorney for the Norfolk Dist. v. Magraw, 417 Mass. 169, 173–174 (1994). See also G. L. c. 233, § 20B; Adoption of Diane, 400 Mass. 196, 201, 202 n.4 (1987). Waiver by one or more, but not all, jointly represented clients does not waive the attorney-client privilege as to the nonwaiving party, even as to documents or other information already disclosed by a waiving party. ZVI Constr. Co., LLC v. Levy, 90 Mass. App. Ct. 412, 424–425 (2016).

Subsection (b)(1). This subsection is derived from Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. (Bermuda), 425 Mass. 419, 423 n.4 (1997), where the Supreme Judicial Court noted that Proposed Mass. R. Evid. 510 was consistent with the views of the court.

Subsection (b)(2). This subsection is derived from the concept of an “at issue” waiver which the Supreme Judicial Court recognized in Darius v. City of Boston, 433 Mass. 274, 284 (2001). An “at issue” waiver is not a blanket waiver of the privilege, but rather “a limited waiver of the privilege with respect to what has been put ‘at issue.’” Id. at 283. See, e.g., Global Investors Agent Corp. v. National Fire Ins. Co. of Hartford, 76 Mass. App. Ct. 812, 818–820 (2010) (determining that a limited at-issue waiver of the plaintiff’s attorney-client privilege occurred because its claim for consequential damages was based in part on the advice it received from its attorney in the underlying action). See also Commonwealth v. Brito, 390 Mass. 112, 119 (1983) (“Once such a charge [of ineffectiveness of counsel] is made, the attorney-‌client privilege may be treated as waived at least in part, but trial counsel’s obligation may continue to preserve confidences whose disclosure is not relevant to the defense of the charge of his ineffectiveness as counsel.”); Doe v. American Guar. & Liab. Co., 91 Mass. App. Ct. 99, 103 (2017) (privilege waived if client’s statement is relevant to action client brought against counsel). In addition, the party seeking to invoke the doctrine of an “at issue” waiver must establish that the privileged information is not available from any other source. Darius, 433 Mass. at 284.

Subsection (c)(1). This subsection is derived from Commonwealth v. Goldman, 395 Mass. 495, 499–500, cert. denied, 474 U.S. 906 (1985). Though a witness does not waive the privilege merely by testifying as to events which were a topic of a privileged communication, a waiver occurs when the witness testifies as to the specific content of an identified privileged communication. Id. In Commonwealth v. Goldman, the Supreme Judicial Court specifically left open the question whether in a criminal case the rule embodied in this subsection would have to yield to the defendant’s constitutional right of confrontation. Id. at 502 n.8. See also Commonwealth v. Pickering, 479 Mass. 589, 597 n.9 (2018) (prior statement to police on same subject matter does not automatically waive privilege); Commonwealth v. Neumyer, 432 Mass. 23, 29 (2000) (waiver of sexual assault counselor privilege); Commonwealth v. Clancy, 402 Mass. 664, 668–‌669 (1988) (waiver of patient-‌psychotherapist privilege).

Subsection (c)(2). This subsection is derived from Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. (Bermuda), 425 Mass. 419, 422–423 (1997). See also Adoption of Sherry, 435 Mass. 331, 336 (2001).

Rule 502 of the Federal Rules of Evidence, Waivers in Federal Proceedings. On September 19, 2008, Rule 502 of the Federal Rules of Evidence was enacted. See Pub. L. No. 110-322, 110th Cong., 2d Sess. The rule is applicable “in all proceedings commenced after the date of enactment . . . and, insofar as is just and practicable, in all proceedings pending” on that date. The rule was developed in response to concerns about the rising cost of discovery, especially electronic discovery, in Federal proceedings in which among the thousands or hundreds of thousands of documents that are produced by a party in response to a discovery request, the producing party may inadvertently include one or a handful of documents that are covered by the attorney-client privilege or the work-product protection. Prior to the adoption of this rule, there was no uniform national standard governing the determination of when such a mistake would lead to a ruling that the privilege or protection had been waived. As a result, a party was forced to examine each and every document produced in discovery in order to avoid the risk of an inadvertent waiver.

Rule 502 of the Federal Rules of Evidence does not alter the law that governs whether a document is subject to the attorney-client privilege or the work-product protection in the first instance. Under Fed. R. Evid. 501, unless State law, the Federal Constitution, or a Federal statute controls, the existence of a privilege in Federal proceedings “shall be governed by the principles of the common law.” However, Fed. R. Evid. 502 does establish a single national standard that protects parties against a determination by a Federal court, a Federal agency, a State court, or a State agency that an inadvertent disclosure of privileged or protected material constitutes a wholesale waiver of the privilege or protection as to other material that has not been disclosed.

Rule 502(a) of the Federal Rules of Evidence addresses when a waiver of either the attorney-client privilege or the work-product protection extends to undisclosed material. It provides that a waiver of the privilege or protection does not extend to undisclosed material unless (1) the waiver is intentional, (2) the disclosed and undisclosed material concern the same subject matter, and (3) both the disclosed and undisclosed material should in fairness be considered together. Rule 502(b) of the Federal Rules of Evidence addresses inadvertent disclosures. It is similar to Section 523(c)(2), Waiver of Privilege: Conduct Not Constituting Waiver, except that the Federal rule requires that to avoid a waiver the holder of the privilege must promptly take reasonable steps to rectify the erroneous disclosure. Fed. R. Evid. 502(b)(3). Rule 502(c) of the Federal Rules of Evidence provides that disclosures made in State court proceedings will not operate as a waiver in Federal proceedings so long as the disclosure is not regarded as a waiver under either Fed. R. Evid. 502(a) or 502(b), or the law of the State where the disclosure occurred. Rule 502(d) of the Federal Rules of Evidence provides that a Federal court order that the privilege or the protection is not waived by a disclosure is binding on both Federal and State courts. Rule 502(e) of the Federal Rules of Evidence provides that an agreement on the effect of the disclosure between the parties in a Federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order. Rule 502(f) of the Federal Rules of Evidence expressly makes the rule applicable to State and Federal proceedings, “even if State law provides the rule of decision.” Rule 502(g) of the Federal Rules of Evidence contains definitions of the terms “attorney-client privilege” and “work-‌product protection.”

A claim of privilege is not defeated by a disclosure erroneously made without an opportunity to claim the privilege.

Note

This section is derived from Commonwealth v. Neumyer, 432 Mass. 23, 35–36 (2000) (no waiver where record holder unaware of probable cause hearing and victim “was hardly in a position to be aware of her rights”). See also Commonwealth v. Dwyer, 448 Mass. 122, 145–146 (2006).

(a) Civil case 

Comment may be made and an adverse inference may be drawn against a party when that party, or in certain circumstances a witness, invokes a privilege.

(b) Criminal case

(1) No comment may be made and no adverse inference may be drawn against a defendant who invokes the privilege against self-‌incrimination or against a defendant for calling a witness who invokes a privilege that belongs to the witness and not to the defendant.

(2) In a case tried to a jury, the assertion of a privilege should be made outside the presence of the jury whenever reasonably possible.

Note

Subsection (a). This subsection is derived from the long-standing rule in Massachusetts that an adverse inference may be drawn against a party who invokes a testimonial privilege in a civil case. Phillips v. Chase, 201 Mass. 444, 450 (1909) (attorney-client privilege). This principle applies equally to cases involving custody or parental access to a child. See Custody of Two Minors, 396 Mass. 610, 616–617 (1986); Care & Protection of Quinn, 54 Mass. App. Ct. 117, 121 (2002); Adoption of Nadia, 42 Mass. App. Ct. 304, 307–308 (1997). Drawing the adverse inference in a civil case does not infringe on the party’s privilege against self-incrimination under either Article 12 of the Declaration of Rights of the Massachusetts Constitution or the Fifth Amendment to the Constitution of the United States. Kaye v. Newhall, 356 Mass. 300, 305–306 (1969) (attorney-client privilege). It makes no difference that criminal matters are pending at the time. Frizado v. Frizado, 420 Mass. 592, 596 (1995) (privilege against self-incrimination).

In Labor Relations Comm’n v. Fall River Educators’ Ass’n, 382 Mass. 465, 471–472 (1981), the Supreme Judicial Court expanded the rule to allow an adverse inference to be drawn against an organizational party as a result of a claim of the privilege against self-‌incrimination by its officers who had specific knowledge of actions taken on behalf of the organization in connection with the underlying claim. In Lentz v. Metropolitan Prop. & Cas. Ins. Co., 437 Mass. 23, 26–32 (2002), the Supreme Judicial Court expanded the principle even further to include circumstances in which the court finds, as a preliminary question of fact, that the witness who invokes the privilege against self-‌incrimination is acting on behalf of or to further the interests of one of the parties. The Supreme Judicial Court also noted that the potential for prejudice can be reduced by limiting the number of questions that may be put to the witness who invokes the privilege, and by a limiting instruction. Id. at 30–31.

Counsel has the right to comment on an opposing party’s failure to testify in a civil case. See Kaye, 356 Mass. at 305; Silveira v. Kegerreis, 12 Mass. App. Ct. 906, 906–907 (1981).

When a nonparty witness is closely aligned with a party in a civil case, and the nonparty witness invokes the privilege against self-incrimination, the jury should be instructed that the witness may invoke the privilege for reasons unrelated to the case on trial, and that they are permitted, but not required, to draw an inference adverse to the party from the witness’s invocation of the privilege against self-incrimination. The jury is permitted to draw an inference adverse to a party from the witness’s invocation of the privilege against self-‌incrimination. Lentz, 437 Mass. at 26–32.

Subsection (b)(1). This subsection is derived from Article 12 of the Declaration of Rights of the Massachusetts Constitution and the Fifth Amendment to the Constitution of the United States, as well as from G. L. c. 233, § 20, Third, and G. L. c. 278, § 23. See Commonwealth v. Goulet, 374 Mass. 404, 412 (1978). See also Commonwealth v. Szerlong, 457 Mass. 858, 869–870 n.13 (2010). In Commonwealth v. Vallejo, 455 Mass. 72, 78–81 (2009), the Supreme Judicial Court adopted the reasoning of Commonwealth v. Russo, 49 Mass. App. Ct. 579 (2000), and held that a defendant’s privilege against self-‌incrimination may be violated by comments made by a codefendant’s counsel on the defendant’s pretrial silence or the defendant’s decision not to testify. For a discussion of the numerous cases dealing with the issue of whether a remark by a judge, a prosecutor, or a co-counsel constitutes improper comment on the defendant’s silence, see M.S. Brodin & M. Avery, Massachusetts Evidence § 5.14.8 (2018 ed.). A defendant may have the right to simply exhibit a person before the jury without questioning the person. See Commonwealth v. Rosario, 444 Mass. 550, 557–559 (2005). When there is a timely request made by the defense, the trial judge must instruct the jury that no adverse inference may be drawn from the fact that the defendant did not testify. See Carter v. Kentucky, 450 U.S. 288, 305 (1981); Commonwealth v. Sneed, 376 Mass. 867, 871–872 (1978). See also Commonwealth v. Rivera, 441 Mass. 358, 371 n.9 (2004) (“We remain of the view that judges should not give the instruction when asked not to do so. We are merely saying that it is not per se reversible error to do so.”).

Subsection (b)(2). This subsection is derived from Commonwealth v. Martin, 372 Mass. 412, 413, 421 n.17 (1977) (privilege against self-incrimination), and Commonwealth v. Labbe, 6 Mass. App. Ct. 73, 79–80 (1978) (spousal privilege). “Where there is some advance warning that a witness might refuse to testify, the trial judge should conduct a voir dire of the witness, outside the presence of the jury, to ascertain whether the witness will assert some privilege or otherwise refuse to answer questions.” Commonwealth v. Fisher, 433 Mass. 340, 350 (2001). If the witness asserts the privilege or refuses to testify before the jury when it was not anticipated, the judge should give a forceful cautionary instruction to the jury. Commonwealth v. Hesketh, 386 Mass. 153, 157–159 (1982).

(a) Statutory bar on the use of information from unemployment hearing

Subject to the exceptions listed in Subsection (b), information secured during an unemployment hearing is absolutely privileged, is not public record, and is not admissible in any action or proceeding.

(b) Exceptions

Such information may be admissible only in the following actions or proceedings:

(1) criminal or civil cases brought pursuant to G. L. c. 151A where the department or Commonwealth is a necessary party,

(2) civil cases relating to the enforcement of child support obligations,

(3) criminal prosecutions for homicide, and

(4) criminal prosecutions for violation of Federal law.

Note

This section is derived from G. L. c. 151A, § 46, and Tuper v. North Adams Ambulance Service, Inc., 428 Mass. 132, 137 (2008) (“Information secured pursuant to [G. L. c. 151A] is confidential, is for the exclusive use and information of the department in the discharge of its duties, is not a public record, and may not be used in any action or proceeding.”). A violation of this statute may be punishable as a misdemeanor.

A judge has an absolute privilege to refuse to disclose the mental impressions and thought processes relied on in reaching a decision, whether harbored internally or memorialized in nonpublic material.

Note

This section is derived from Matter of the Enforcement of a Subpoena, 463 Mass. 162 (2012). In that case, the Supreme Judicial Court quashed so much of a subpoena issued by the Commission on Judicial Conduct to a judge as related to the judge’s internal thought processes and deliberative communications. Id. at 178. The court recognized an absolute judicial deliberation privilege that protects the judge’s “mental impressions and thought processes in reaching a judicial decision, whether harbored internally or memorialized in other nonpublic material.” Id. at 174. The court additionally ruled that “the privilege also protects confidential communications among judges and between judges and court staff made in the course of and related to their deliberative processes in particular cases.” Id. This absolute but narrowly tailored privilege “does not cover a judge’s memory of nondeliberative events in connection with cases in which the judge participated. Nor does the privilege apply to inquiries into whether a judge was subjected to improper ‘extraneous influences’ or ex parte communications during the deliberative process.” Id. at 174–175. The privilege also does not apply “when a judge is a witness to or was personally involved in a circumstance that later becomes the focus of a legal proceeding.” Id. at 175. The privilege applies to inadvertent recording and transcription of a conversation between a judge and a courtroom clerk. Care & Protection of Doretta, 101 Mass. App. Ct. 584, 595 (2022).

[Privilege not recognized]

Note

In Chadwick v. Duxbury Pub. Sch., 475 Mass. 645 (2016), the Supreme Judicial Court declined to read a privilege for communications between union members and their union into the provisions of G. L. c. 150E. In that case, the plaintiff filed a civil suit against the defendant seeking monetary damages after she was dismissed from her teaching position. The court found that Chapter 150E was designed to “protect the right of public employees to organize and to protect unions and their members from intrusion or control by the employer in the collective bargaining context,” and that the Legislature did not intend “to protect the confidentiality of union member–union communications in a private lawsuit brought by the union member against the employer.” Chadwick, 475 Mass. at 650–651. The court also declined to create the privilege judicially, saying that the Legislature is better equipped to create such a privilege. Id. at 655.

(a) Statutory bars on use of evidence related to pretrial diversion programs

(1) Any request for an assessment to determine if a juvenile subject to the jurisdiction of the Juvenile Court or an adult defendant would benefit from a pretrial diversion program as defined by G. L. c. 276A, § 5, or G. L. c. 119, § 54A(c)(3), or a decision by the juvenile or defendant not to enter such a program, or a determination that the juvenile or defendant would not benefit from it, or any statement made by the defendant, the juvenile, or the juvenile’s family during the course of the assessment, shall not be admissible against the juvenile or defendant in any criminal proceedings.

(2) Any consent by a juvenile or defendant to the stay of proceedings pursuant to their participation in a pretrial diversion program, or any act done or statement made in fulfillment of the terms and conditions of such stay of proceedings, shall not be admissible as an admission, implied or otherwise, against the juvenile or defendant should the stay of proceedings be terminated and delinquency or criminal proceedings resumed on the original charge, charges, or complaint.

(3) No statement or other disclosure or records thereof made by a juvenile or defendant during an assessment to determine if they would benefit from a pretrial diversion program or during the stay of proceedings occasioned by participation in such a program shall be disclosed at any time to a prosecutor or other law enforcement officer in connection with the charge or charges pending against said juvenile, defendant, or any codefendant.

(b) Statutory bars on use of evidence from community-based restorative justice programs

(1) Participation in a community-based restorative justice program as defined by G. L. c. 276B, § 1, shall not be used as evidence or as an admission of guilt, delinquency, or civil liability in current or subsequent legal proceedings against any participant.

(2) Any statement made by a juvenile or an adult defendant during an assignment to a community-based restorative justice program shall be confidential and shall not be subject to disclosure in any judicial or administrative proceeding.

(3) No information obtained during an assignment to a community-based restorative justice program shall be used in any stage of a criminal investigation or prosecution or civil or administrative proceeding.

(4) Nothing in this subsection shall preclude any evidence obtained through an independent source or that inevitably would have been discovered by lawful means from being admitted at the proceedings referenced in Subsections (b)(2) and (b)(3).

(c) Statutory bars on use of evidence related to examinations to determine eligibility for treatment as a drug dependent person

(1) A request for an examination to determine whether a defendant charged with a drug offense is a drug dependent person, as defined by G. L. c. 111E, § 1, who would benefit from a drug treatment program; any statement made by the defendant during the examination; and any finding of the examiner are not admissible against the defendant in any court proceedings.

(2) A request for an examination to determine whether any person found guilty of a violation of any law other than a drug offense is a drug dependent person, as defined by G. L. c. 111E, § 1, who would benefit from a drug treatment program; any statement made by the person during the examination; and any finding of the examiner are not admissible against the person in any criminal proceeding.

Note

Subsection (a). The Criminal Justice Reform Act of 2018, see St. 2018, c. 69, §§ 75, 202, extended the diversion programs available to adult defendants in the District and Boston Municipal Courts under G. L. c. 276A to children subject to the jurisdiction of the Juvenile Court and provided for the creation of community-based restorative justice programs for juveniles and adult defendants. This subsection is taken from G. L. c. 276A, § 5, and G. L. c. 119, § 54A(c)(3). 

Subsection (b). This subsection is taken from G. L. c. 276B, § 4.

Subsection (c)(1). This subsection is taken from G. L. c. 111E, § 10.

Subsection (c)(2). This subsection is taken from G. L. c. 111E, § 11.