Guide to Evidence Article VI: Witnesses
Trial Court Law Libraries
Section 601. Competency
Every person is competent to be a witness unless a statute or the Massachusetts common law of evidence provides otherwise.
A person is competent to be a witness if he or she has
(1) the general ability or capacity to observe, remember, and give expression to that which he or she has seen, heard, or experienced, and
(2) an understanding sufficient to comprehend the difference between truth and falsehood, the wickedness of the latter, and the obligation and duty to tell the truth, and, in a general way, belief that failure to perform the obligation will result in punishment.
(c) Preliminary Questions
While the competency of a witness is a preliminary question of fact for the judge, questions of witness credibility are to be resolved by the trier of fact.
Subsection (a). This subsection is derived from G. L. c. 233, § 20 . See Commonwealth v. Monzon , 51 Mass. App. Ct. 245, 248–249 (2001). A person otherwise competent to be a witness may still be disqualified from testifying. See, e.g., G. L. c. 233, § 20 (with certain exceptions, “neither husband nor wife shall testify as to private conversations with the other”; “neither husband nor wife shall be compelled to testify in the trial of an indictment, complaint or other criminal proceeding against the other”; “defendant in the trial of an indictment, complaint or other criminal proceeding shall, at his own request . . . be allowed to testify”; and “an unemancipated, minor child, living with a parent, shall not testify before a grand jury, trial of an indictment, complaint or other criminal proceeding, against said parent”). See also Section 504, Spousal Privilege and Disqualification; Parent-Child Disqualification; Section 511, Privilege Against Self-Incrimination. Cf. Mass. R. Civ. P. 43(a)(witness testimony, and assessment of the competency of a witness, must be done orally in open court); Hayden v. Hayden, 15 Mass. App. Ct. 915, 916 (1983) (“The probate judge acted well within his sound discretion in declining to have a conference in camera with the son of the parties, then twelve years old . . . .”).
Subsection (b). This subsection is taken nearly verbatim from Commonwealth v. Allen , 40 Mass. App. Ct. 458, 461 (1996). This test applies to all potential witnesses. Commonwealth v. Brusgulis , 398 Mass. 325, 329 (1986). Neither the inability of a witness to remember specific details of events nor inconsistencies in the testimony render the witness incompetent to testify, so long as the witness demonstrates “the general ability to observe, remember and recount.” Commonwealth v. Trowbridge , 419 Mass. 750, 755 (1995); Commonwealth v. Thibeault , 77 Mass. App. Ct. 419, 424–428 (2010) (six year old permitted to testify about incidents that occurred when she was five despite inconsistencies in her ability to observe, remember, and recount facts and her initial difficulty with concept of a promise in connection with duty to tell the truth). See Commonwealth v. Gamache , 35 Mass. App. Ct. 805, 806–809 (1994) (five year old permitted to testify about incidents that allegedly took place when the child was twenty-one and thirty-three months old despite inconsistencies and her inability to recall every detail in her testimony). “The tendency, moreover, except in quite clear cases of incompetency, is to let the witness testify and have the triers make any proper discount for the quality of her understanding” (quotations omitted). Commonwealth v. Whitehead , 379 Mass. 640, 656 (1980). See, e.g., Commonwealth v. Brusgulis, 398 Mass. at 329 (child); Commonwealth v. Sires , 370 Mass. 541, 546 (1976) (alcoholic); Commonwealth v. Aitahmedlamara , 63 Mass. App. Ct. 76, 78 (2005) (developmentally disabled); Commonwealth v. Hiotes , 58 Mass. App. Ct. 255, 256 (2003) (mental illness).
Subsection (c). The initial segment of this subsection is derived from Demoulas v. Demoulas , 428 Mass. 555, 562–563 (1998); the remainder of the subsection is derived from Commonwealth v. Jackson , 428 Mass. 455, 466 (1998). The question of the competency of a potential witness is within the discretion of the trial judge, who has “wide discretion . . . to tailor the competency inquiry to the particular circumstances and intellect of the witness.” Commonwealth v. Brusgulis , 398 Mass. 325, 329–330 (1986). When competency is challenged, a judge usually conducts a voir dire examination of the potential witness, but may require a physician or other expert to examine the potential witness’s mental condition where appropriate. Demoulas v. Demoulas, 428 Mass. at 563. See G. L. c. 123, § 19 ; G. L. c. 233, § 23E . Cf. Mass. R. Civ. P. 43(a) (witness testimony, and assessment of the competency of a witness, must be done orally in open court). “Although competency must of course be determined before a witness testifies, the judge may reconsider his decision, either sua sponte or on motion, if he entertains doubts about the correctness of the earlier ruling.” Commonwealth v. Brusgulis, 398 Mass. at 331.
Competency of Criminal Defendant. A defendant in a criminal case is competent so long as the defendant has a “sufficient present ability to consult with his [or her] lawyer with a reasonable degree of rational understanding and . . . a rational as well as factual understanding of the proceedings.” Commonwealth v. Hung Tan Vo , 427 Mass. 464, 468–469 (1998), quoting Commonwealth v. Vailes , 360 Mass. 522, 524 (1971), quoting Dusky v. United States , 362 U.S. 402, 402 (1960). The trial judge has a duty to act sua sponte whenever there is “a substantial question of possible doubt” as to the defendant’s competency to stand trial. See Commonwealth v. Hill , 375 Mass. 50, 62 (1978).
It is not necessary to suspend all pretrial proceedings because a defendant is not competent. See Abbott A. v. Commonwealth , 458 Mass. 24, 33 (2010) (concluding it is not a per se violation of due process for the Commonwealth to proceed against incompetent person at bail hearing or dangerousness hearing). Contra Commonwealth v. Torres , 441 Mass. 499, 505–507 (2004) (stating due process may be violated if defense counsel is unable to communicate at all with client during bail hearing or hearing on rendition).
Section 602. Need for personal knowledge
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This section does not apply to a witness’s expert opinion testimony under Section 703.
This section is taken from Fed. R. Evid. 602 and Proposed Mass. R. Evid. 602 and is consistent with Massachusetts law. See Commonwealth v. Cintron , 435 Mass. 509, 521 (2001); Malchanoff v. Truehart , 354 Mass. 118, 121–122 (1968); Commonwealth v. Wolcott , 28 Mass. App. Ct. 200, 207 (1990).
The personal-knowledge requirement also applies to hearsay declarants. See, e.g., Commonwealth v. Drapaniotis , 89 Mass. App. Ct. 267, 274–276 (2016) (reversing conviction of firearm offense, based on insufficiency of evidence, where sole evidence on element of gun’s operability was gun owner’s testimony of hearsay statement by salesman, admitted without objection but not supported by any indication of salesman’s personal knowledge).
Cross-Reference: Section 104(b), Preliminary Questions: Relevance That Depends on a Fact; Section 601, Competency; Section 703, Bases of Opinion Testimony by Experts. Cf. Section 402, General Admissibility of Relevant Evidence; Section 403, Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons; Section 701, Opinion Testimony by Lay Witnesses.
Section 603. Oath or affirmation to testify truthfully
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.
This section is taken from Fed. R. Evid. 603 and Proposed Mass. R. Evid. 603 and is consistent with Massachusetts law. See G. L. c. 233, §§ 15-19 . See also Mass. R. Civ. P. 43(d) (“Whenever under these rules an oath is required to be taken, a solemn affirmation under the penalties of perjury may be accepted in lieu thereof.”). “Although taking [the traditional] oath is the customary method for signifying one’s recognition that consequences attend purposeful falsehood, it is not the only method for doing so. The law requires some affirmative representation that the witness recognizes his or her obligation to tell the truth. See G. L. c. 233, §§ 17–19 .” Adoption of Fran , 54 Mass. App. Ct. 455, 467 (2002). A judge is not permitted to waive an oath or affirmation. Commonwealth v. Stewart , 454 Mass. 527, 531 (2009).
“A child witness does not have to understand fully the obligation of an oath, but must show a general awareness of the duty to be truthful and the difference between a lie and the truth.” Commonwealth v. Ike I. , 53 Mass. App. Ct. 907, 909 (2002). “With children, recognition of that obligation [to tell the truth] sometimes is more effectively obtained through careful questioning of the child than through recitation of what to the child may be a meaningless oath or affirmation.” Adoption of Fran, 54 Mass. App. Ct. at 467 n.17. A judge’s exchanges with a child and his or her discretionary conclusion that the child understands the difference between the truth and lying and the importance of testifying truthfully “effectively serve[s] the underlying purpose of the oath, and no more [can] be reasonably required of an infant deemed competent to testify, but manifestly lacking in theological understanding.” Commonwealth v. McCaffrey , 36 Mass. App. Ct. 583, 590 (1994).
Section 604. Interpreters
An interpreter must be qualified and must give an oath or affirmation to make a true translation.
This section is derived from Fed. R. Evid. 604 and Proposed Mass. R. Evid. 604 and is consistent with Massachusetts law. See Commonwealth v. Festa , 369 Mass. 419, 429–430 (1976) (establishing guidelines for when witnesses testify through an interpreter). See G. L. c. 221C, § 2 (a non-English speaker has the right to an interpreter throughout the proceedings, whether criminal or civil); Mass. R. Civ. P. 43(f); Mass. R. Crim. P. 41. The trial judge has discretion to appoint an interpreter. Commonwealth v. Esteves , 46 Mass. App. Ct. 339, 345, reversed and remanded on other grounds, 429 Mass. 636 (1999). “[W]hen a witness testifies in a foreign language, the English translation is the only evidence, not the testimony in the original language.” Id. All spoken-language court interpreters and court interpreters who provide services to the Trial Court for deaf and hard-of-hearing persons are governed by the “Standards and Procedures of the Office of Court Interpreter Services,” 1143 Mass. Reg. 15 (Nov. 13, 2009), which include a Code of Professional Conduct that includes the subjects of conflict of interest, confidentiality, and interpreting protocols. See http://perma.cc/RPE2-85CA. Where a party seeks to admit a translation of a recorded statement made in a foreign language, the English-language transcript must be provided to opposing counsel sufficiently in advance to allow the parties to determine whether an agreement can be reached about its accuracy. If the parties are unable to agree on the accuracy of a single translation, each side may offer its own transcript through the testimony of a qualified translator. The foreign-language recording may not be admitted unless accompanied by an English translation. Commonwealth v. Portillo , 462 Mass. 324, 328–329 (2012).
Cross-Reference: Note “Preference for Recording Certain Custodial Interrogations” to Section 511(a)(1), Privilege Against Self-Incrimination: Privilege of Defendant in Criminal Proceeding: Custodial Interrogation; Section 521, Sign Language Interpreter Client Privilege; Section 522, Interpreter-Client Privilege ; “Standards and Procedures of the Office of Court Interpreter Services,” 1143 Mass. Reg. 15 (Nov. 13, 2009), available at http://perma.cc/RPE2-85CA.
Section 605. Competency of judge as witness
The presiding judge may not testify as a witness at the trial.
This section states the first sentence of Fed. R. Evid. 605 and Proposed Mass. R. Evid. 605. While there are no Massachusetts statutes or cases on point, the proposition appears so clear as to be beyond question. See generally Supreme Judicial Court Rule 3:09, Canon 3(E) (judicial disqualification); Glenn v. Aiken , 409 Mass. 699, 703 (1991) (“calling a judge as a witness to opine on what ruling he might have made on a particular hypothesis” is disfavored). Cf. Guardianship of Pollard , 54 Mass. App. Ct. 318, 322–323 (2002) (judge who served as guardian ad litem prior to becoming judge not disqualified from testifying in guardianship proceeding before a different judge and from being cross-examined on her guardian ad litem report).
Section 606. Juror’s competency as a witness
(a) At the Trial
A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.
(b) During an Inquiry into the Validity of a Verdict or Indictment
(1) Prohibited Testimony or Other Evidence
During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations, the effect of anything on that juror’s or another juror’s vote, or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
A juror may testify about whether
(A) extraneous prejudicial information was improperly brought to the jury’s attention or
(B) an outside influence was improperly brought to bear on any juror.
Subsection (a). This subsection, which is taken verbatim from Fed. R. Evid. 606(a) and is nearly identical to Proposed Mass. R. Evid. 606(a), reflects Massachusetts practice.
Subsection (b). This subsection is taken from Proposed Mass. R. Evid. 606(b) and is derived from Commonwealth v. Tavares , 385 Mass. 140, 153–157, cert. denied, 457 U.S. 1137 (1982), and Commonwealth v. Fidler , 377 Mass. 192, 196–198 (1979). In Commonwealth v. Tavares, 385 Mass. at 155 n.25, the court stated that Proposed Mass. R. Evid. 606(b) “is the federal rule, and is in accord with the current Massachusetts rule admitting evidence of extraneous information and excluding evidence of mental processes” (quotation and citations omitted). See also Commonwealth v. Walker , 379 Mass. 297, 304 (1979); Woodward v. Leavitt , 107 Mass. 453, 466–467 (1871); Commonwealth v. Hanlon , 44 Mass. App. Ct. 810, 816 (1998).
The Doctrine of “Extraneous Matter.” In Commonwealth v. Fidler, 377 Mass. at 200, the court held that “if specific facts not mentioned at trial concerning one of the parties or the matter in litigation were brought to the attention of the deliberating jury by a juror . . . such misconduct may be proved by juror testimony.” The court cautioned, however, that “evidence concerning the subjective mental processes of jurors” is not admissible to impeach their verdict. Id. at 198. The challenge for courts is to make the distinction between “overt factors and matters resting in a juror’s consciousness.” Id. See Commonwealth v. Heang , 458 Mass. 827, 858 (2011) (pressure from other jurors during deliberation was not extraneous influence). In Commonwealth v. Guisti , 434 Mass. 245 (2001), the court offered further guidance by defining the concept of an “extraneous matter.” “An extraneous matter is one that involves information not part of the evidence at trial and raises a serious question of possible prejudice” (citations and quotation omitted). Id. at 251. Some illustrations of this concept include “(1) unauthorized views of sites by jurors; (2) improper communications to the jurors by third persons; or (3) improper consideration of documents not in evidence” (citations omitted). Commonwealth v. Fidler, 377 Mass. at 197. See Fitzpatrick v. Allen , 410 Mass. 791 (1991) (home medical reference book brought into jury room); Markee v. Biasetti , 410 Mass. 785 (1991) (jurors took unauthorized view and made measurements at accident scene). See also Commonwealth v. Blanchard, 476 Mass. 1026, 1026–1027 (2017) (judge’s binder containing information not in evidence at trial, inadvertently brought to jury room during deliberations, constitutes extraneous materials). But see Commonwealth v. Miller , 475 Mass. 212 (2016) (gun magazine not prejudicial).
Extraneous Matter Prior to Discharge. In Commonwealth v. Blanchard, 476 Mass. 1026 (2017), the Supreme Judicial Court ruled that, in a case in which exposure to extraneous matter is revealed before the jury is discharged, as opposed to after a verdict is announced and the jury excused,
“the judge should ask the juror whether he or she read, saw, heard, or otherwise became aware of the extraneous materials during the jury’s deliberations. The judge should then inquire into the effect of the exposure on the particular juror, with the focus of the question or questions being whether the juror can deliberate without being influenced by the materials. In asking about the effect of the extraneous materials on the individual juror, the judge should caution the juror not to speculate about the effect on any other juror or on the jury as a whole.
. . . [A] prefatory instruction by the judge to each juror about the need to avoid telling the judge anything about the substance of the jury’s deliberations may be useful.”
Id. at 1027–1028.
Contacting Jurors Post-Discharge. A lawyer’s ability to contact jurors after the verdict is regulated by Mass. R. Prof. C. 3.5 (2015) and Commonwealth v. Moore , 474 Mass. 541 (2016). In Moore, the Supreme Judicial Court modified the prohibition against attorney-originated communications established by Commonwealth v. Fidler. Id. at 548. The court discussed the revisions to Mass. R. Prof. C. 3.5, effective July 1, 2015, noting that the prohibition against inquiring into the substance of jury deliberations remained intact. Attorneys may initiate contact with jurors, but only after giving opposing counsel five business days’ notice. The notice must include "a description of the proposed manner of contact and the substance of any proposed inquiry to the jurors, and, where applicable, a copy of any letter or other form of written communication the attorney intends to send." Commonwealth v. Moore, 474 Mass. at 551–552. If a communication with a juror leads the lawyer to suspect that there was an extraneous influence on the jury, the lawyer may obtain an affidavit from the juror without prior court approval, but the affidavit "must focus on extraneous influences, and not the substance of the jury’s deliberations or the individual or collective thought processes of the juror or the jury as a whole." Id.
Procedure for Determining Whether Jury Was Influenced by an "Extraneous Matter." A party alleging that a jury was exposed to a significant extraneous influence “bears the burden of demonstrating that the jury were in fact exposed to the extraneous matter. To meet this burden he may rely on juror testimony.” Commonwealth v. Fidler , 377 Mass. 192, 201 (1979).
Further inquiry by the court is not required where “there has been no showing that specific facts not mentioned at trial concerning one of the parties or the matter in litigation were brought to the attention of the deliberating jury” (emphasis and quotations omitted). Commonwealth v. Drumgold , 423 Mass. 230, 261 (1996). See Commonwealth v. McQuade , 46 Mass. App. Ct. 827, 833 (1999). “The question whether the party seeking an inquiry has made such a showing is properly addressed to the discretion of the trial judge.” Commonwealth v. Dixon , 395 Mass. 149, 152 (1985). There is always a danger that when questioned about the existence of an extraneous matter a juror will respond
"with an answer that inappropriately reveals aspects of the deliberations. Giving cautionary instructions to each juror at the outset of the inquiry and, if necessary, again during the inquiry will reduce the likelihood of answers that stray into revelation of the jury’s thought process. The jurors can be instructed to respond about any information that was not mentioned during the trial (appropriate), but not to describe how the jurors used that information or the effect of that information on the thinking of any one or more jurors (inappropriate). Once any juror has established that extraneous information was mentioned, by whom, and whether anyone said anything else about the extraneous information (not what they thought about it or did with it), the inquiry of that juror is complete. As soon as the judge determines that the defendant has satisfied his burden of establishing the existence of an extraneous influence, the questioning of all jurors should cease."
Commonwealth v. Kincaid , 444 Mass. 381, 391–392 (2005).
A defendant seeking a new trial bears the burden of showing that the jury was exposed to extraneous material, at which point the burden shifts to the Commonwealth to prove beyond a reasonable doubt that the defendant was not prejudiced by the exposure. Commonwealth v. Fidler, 377 Mass. at 201. See Commonwealth v. Miller , 475 Mass. 212, 221–222 (2016) (Where the extraneous matter was "not attached to any crucial issue" in the case, and there was substantial evidence of the defendant’s guilt, the trial judge properly refused to grant a new trial even though a juror had brought a gun magazine to the jury room.). The same burden-shifting approach applies in a civil case, except that the party opposing the new trial need only show that there is "no reasonable likelihood of prejudice" from the extraneous material. Fitzpatrick v. Allen , 410 Mass. 791, 796 (1991); Markee v. Biasetti , 410 Mass. 785, 788–789 (1991).
Ethnic or Racial Bias. When the defendant files an affidavit from one or more jurors stating that another juror made a statement “that reasonably demonstrates racial or ethnic bias” and the jury’s credibility is at issue, the judge must first determine whether the defendant has proved by a preponderance of the evidence that the juror made the biased statement. Commonwealth v. McCowen , 458 Mass. 461, 494 (2010). Second, if the answer to the first question is “yes,” the judge must determine whether the defendant has proved by a preponderance of the evidence
“that the juror who made the statements was actually biased because of the race or ethnicity of a defendant, victim, defense attorney, or witness. A juror is actually biased where her racial or ethnic prejudice, had it been revealed or detected at voir dire, would have required as a matter of law that the juror be excused from the panel for cause.” (Citations omitted.)
Id. at 495.
“In some instances, the statement made by the juror may establish so strong an inference of a juror’s actual bias that proof of the statement alone may suffice. Generally, though, the judge must determine the precise content and context of the statement to determine whether it reflects the juror’s actual racial or ethnic bias, or whether it was said in jest or otherwise bore a meaning that would fail to establish racial bias. Because actual juror bias affects the essential fairness of the trial, a defendant who has established a juror’s actual bias is entitled to a new trial without needing to show that the juror’s bias affected the jury’s verdict.” (Citations omitted.)
Id. at 496. Third, even if the defendant fails to prove that the juror was actually biased, if the answer to the first question is “yes,” the judge must determine “whether the statements so infected the deliberative process with racially or ethnically charged language or stereotypes that it prejudiced the defendant’s right to have his guilt decided by an impartial jury on the evidence admitted at trial” (citations omitted). Id. at 496–497. Even though racial or ethnic bias is not an extraneous matter, see Commonwealth v. Laguer , 410 Mass. 89, 97 (1991), this third question is subject to the same analysis used to evaluate extraneous influences on the jury. If the defendant meets his or her burden of establishing that the statement was made, “the burden then shifts to the Commonwealth to show beyond a reasonable doubt that the defendant was not prejudiced by the jury’s exposure to these statements.” Commonwealth v. McCowen, 458 Mass. at 497. In making this determination, the judge must not receive any evidence concerning the effect of the statement on the thought processes of the jurors, but instead must focus on its “probable effect” on a “hypothetical average jury.” Id.
Discharge of a Juror During Empanelment. Even prior to trial, a potential juror who may not be impartial due to the effect of an extraneous matter such as bias or prejudice may be excused by the court. See G. L. c. 234, § 28 ; G. L. c. 234A, § 39; Mass. R. Crim. P. 20(b)(2). If the jury has not been sworn, the judge has discretion to excuse a juror without a hearing or a showing of extreme hardship based on information that the juror may not be indifferent. See Commonwealth v. Gambora , 457 Mass. 715, 731–732 (2010) (juror dismissed based on report by court officer that she was observed in the hallway during a break speaking to persons who then joined a group which included members of the defendant’s family); Commonwealth v. Duddie Ford Inc. , 409 Mass. 387, 392 (1991). “It is generally within the judge’s discretion . . . to determine when there exists a substantial risk that extraneous issues would influence the jury such that an individual voir dire of potential jurors is warranted.” Commonwealth v. Holloway , 44 Mass. App. Ct. 469, 472 (1998).
Discharge of a Juror During Trial. In Commonwealth v. Jackson, 376 Mass. 790 (1978), the Supreme Judicial Court addressed the procedure for evaluating the effect of possibly prejudicial material on members of the jury and the proper judicial response:
“When material disseminated during trial is reliably brought to the judge’s attention, he should determine whether the material goes beyond the record and raises a serious question of possible prejudice. A number of factors may be involved in making that determination, including the likelihood that the material reached one or more jurors. If the judge finds that the material raises a serious question of possible prejudice, a voir dire examination of the jurors should be conducted.The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on collectively, but if any juror indicates that he or she has seen or heard the material, there must be individual questioning of that juror, outside of the presence of any other juror, to determine the extent of the juror’s exposure to the material and its effects on the juror’s ability to render an impartial verdict.”
Id. at 800–801. The trial judge must determine the nature of the extraneous matter before exercising discretion as to whether to discharge a juror. See id. (individualized questioning of juror appropriate given concerns of exposure to prejudicial media publicity during trial). See, e.g., Commonwealth v. Alicea, 464 Mass. 837, 848–849 (2013) (judge has “considerable discretion” to ensure that jurors remain impartial and indifferent; when jurors reported to court officer that one juror had made up his mind, judge was warranted in giving jury forceful instruction and appointing foreperson early to ensure compliance with instructions, rather than conducting voir dire); Commonwealth v. Stewart, 450 Mass. 25, 39 (2007) (trial judge acted properly in asking jury collectively whether anyone had seen anything while coming into or exiting courtroom based on court officer’s report that door to lockup had been left open while defendant was inside cell); Commonwealth v. John, 442 Mass. 329, 339–340 (2004) (no error in declining to discharge juror who expressed personal fear due to nature of case); Commonwealth v. Maldonado, 429 Mass. 502, 506–507 (1999) (judge did not abuse her discretion in removing one juror who expressed fear for her personal safety as a result of evidence of defendant’s association with a gang). See also Commonwealth v. Francis, 432 Mass. 353, 369–370 (2000). Cf. Commonwealth v. Fredette , 56 Mass. App. Ct. 253, 259 (2002) (judge erred in accepting a juror’s note about a matter of extraneous influence without making inquiry of the juror).
Sleeping Jurors. A judge must intervene promptly whenever he or she observes or receives a reliable report that a juror is asleep; Commonwealth v. Villalobos, 478 Mass. 1007, 1008 (2017). By contrast, “[w]here a judge has only tentative information that a juror may be sleeping, it is sufficient to note the report and monitor the situation.” Commonwealth v. Alleyne , 474 Mass. 771, 778 (2016). See Commonwealth v. Vaughn , 471 Mass. 398, 413 (2015) (“report of a sleeping juror was not sufficiently reliable to warrant further action”). If a judge makes a “preliminary conclusion that information about a juror’s inattention is reliable, the judge must take further steps to determine the appropriate intervention.” Commonwealth v. McGhee, 470 Mass. 638, 644 (2015). Although a judge has “substantial discretion in this area,” “[t]ypically, the next step is to conduct a voir dire of the potentially inattentive juror, in an attempt to investigate whether that juror ‘remains capable of fulfilling his or her obligation to render a verdict based on all of the evidence.’” Id., quoting Commonwealth v. Dancy , 75 Mass. App. Ct. 175, 181 (2009). The judge has discretion as to the nature of the intervention and is not required to conduct a voir dire in every complaint regarding jury attentiveness. Commonwealth v. Beneche, 458 Mass. 61, 78 (2010). Compare Commonwealth v. Ray, 467 Mass. 115, 134 (2014) (no error in declining to discharge juror observed sleeping at various points in the trial after judge conducted voir dire of juror and satisfied herself that juror could fairly participate in deliberations), with Commonwealth v. McGhee, 470 Mass. at 642–646 (failure of trial judge to conduct further inquiry concerning report of sleeping juror necessitated new trial).
Discharge of a Deliberating Juror. The problems associated with the effect of an extraneous matter on the jury also may arise before the jury returns a verdict. General Laws c. 234, § 26B , provides that if, at any time after a case has been submitted to the jury and before the jury have agreed on a verdict, a juror “dies, or becomes ill, or is unable to perform his duty for any other good cause shown to the court,” the judge may discharge the juror, substitute an alternate selected by lot, and permit the jury to renew their deliberations. See Mass. R. Crim. P. 20(d)(3). “[G]ood cause includes only reasons personal to a juror, that is, reasons unrelated to the issues of the case, the juror’s views on the case, or his relationship with his fellow jurors” (quotations omitted). Commonwealth v. Francis , 432 Mass. 353, 358 (2000). The judge must conduct a hearing before a juror is discharged. See Commonwealth v. Holley, 478 Mass. 508, 529–531 (2017) (judge did not err in dismissing juror who became ill during deliberations where “the judge telephoned the juror in the presence of counsel, questioned her, invited counsel to suggest further questions, and made specific findings of good cause”; no error in judge rejecting “defense counsel’s request that he ask the juror about her ability to deliberate, as that question came close to touching upon the content of the deliberations”); Commonwealth v. McCowen , 458 Mass. 461, 488–489 (2010) (after jury reported it was deadlocked, judge was warranted in removing deliberating juror based on a finding that a “palpable conflict” existed due to the arrest of the father of the juror’s son, who was being prosecuted by the same district attorney’s office that was prosecuting the case on trial). Great care must be taken in such cases that a dissenting juror is not allowed to avoid the responsibility of jury service. See, e.g., Commonwealth v. Garcia , 84 Mass. App. Ct. 760, 770 (2014) (judge improperly dismissed deliberating juror without first determining a valid reason, personal to the juror and unrelated to juror’s views about the case or relations with other jurors); Commonwealth v. Rodriguez , 63 Mass. App. Ct. 660, 675–676 (2005) (holding that discharge of deliberating juror was error).
Required Instruction After Discharge of Deliberating Juror. After dismissing a deliberating juror, the judge “must instruct the jury to disregard all prior deliberations and begin its deliberations again” (quotation omitted). Commonwealth v. Connor, 392 Mass. 838, 844 n.2 (1984). See Commonwealth v. Holley, 478 Mass. 508, 530–531 (2017) (holding it was sufficient to instruct jury to begin their deliberations “anew with a new jury of twelve people” and “not to simply pick up where [they] left off” where juror’s illness was “clearly a personal problem”); Commonwealth v. Zimmerman, 441 Mass. 146, 151 (2004) (“A judge is not required in every case to adhere to the precise language we used in [Connor].”).
Section 607. Who may impeach a witness
Any party, including the party that called the witness, may attack the witness’s credibility. However, the party who calls a witness may not impeach that witness by evidence of bad character, including reputation for untruthfulness or prior convictions.
This section is derived from G. L. c. 233, § 23 , and Walter v. Bonito , 367 Mass. 117, 121–123 (1975). In Walter, the Supreme Judicial Court recognized that Labrie v. Midwood , 273 Mass. 578, 581–582 (1931), held that G. L. c. 233, § 22(party’s right to call and cross-examine adverse witness) does not override G. L. c. 233, § 23 . See also Mass. R. Civ. P. 43(b). It is not a violation of this principle to permit a witness to testify about a prior criminal conviction in direct examination. Commonwealth v. Daley , 439 Mass. 558, 563 (2003). The reason for permitting a party to bring out the criminal record of his or her own witness is not impeachment, but rather “to avoid having the jury draw the inference that the party calling the witness had misled or deceived the jury as to the background of the witness.” Commonwealth v. Blodgett , 377 Mass. 494, 502 (1979). See Commonwealth v. DePina, 476 Mass. 614, 631 (2017) (eliciting testimony on direct examination that witness was not honest with police due to fear of cooperating was not vouching, but was proper in anticipation of impeachment on cross-examination).
“[A] party cannot rely on this statutory right [G. L. c. 233, § 23 ] to call a witness whom he knows beforehand will offer no testimony relevant to an issue at trial solely for the purpose of impeaching that witness with prior inconsistent statements that would otherwise be inadmissible.” Commonwealth v. McAfee , 430 Mass. 483, 489–490 (1999).
When impeaching one’s own witness through a prior inconsistent statement, the proponent must bring the statement to the attention of the witness with sufficient circumstances to alert the witness to the particular occasion the prior statement was made and allow the witness an opportunity to explain the statement. See Section 613, Prior Statements of Witnesses, Limited Admissibility.
Subsequent to impeachment, questions concerning a witness’s fear in testifying are not per se improper on redirect examination. Commonwealth v. Mitchell , 89 Mass. App. Ct. 13, 27–28 (2016), citing Commonwealth v. Auguste , 418 Mass. 643, 647 (1994).
This Guide includes specific sections dealing with impeachment by evidence of character (Sections 608 and 609), impeachment by prior inconsistent statements (Section 613), impeachment by reference to bias or prejudice (Section 611[b]), and evidence of religious beliefs (Section 610). Other methods of impeachment—e.g., improper motive, impairment of testimonial faculties, and contradiction—remain available and fall within the scope of Sections 102, Purpose and Construction; 410, Pleas, Offers of Pleas, and Related Statements ; 403, Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons; and 611, Mode and Order of Examining Witnesses and Presenting Evidence
Section 608. A witness’s character for truthfulness or untruthfulness
(a) Reputation Evidence
A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
(b) Specific Instances of Conduct
In general, specific instances of misconduct showing the witness to be untruthful are not admissible for the purpose of attacking or supporting the witness’s credibility.
Subsection (a). This subsection is derived from Commonwealth v. Dockham , 405 Mass. 618, 631 (1989), and Commonwealth v. Daley , 439 Mass. 558, 563 (2003). Cf. Commonwealth v. Daley, 439 Mass. at 562–563 (evidence of person’s bad character generally inadmissible to prove action in conformity therewith); Section 404, Character Evidence; Crimes or Other Acts.
Unlike under Federal law, character for truthfulness cannot be proven by evidence of personal opinions or isolated acts. See Commonwealth v. Walker , 442 Mass. 185, 197–198 (2004) (declining to adopt original Proposed Mass. R. Evid. 405[a]); Commonwealth v. Benjamin , 430 Mass. 673, 678 n.6 (2000). Reputation evidence must be based on one’s reputation in the community or at the person’s place of work or business. Commonwealth v. Walker, 442 Mass. at 198. See G. L. c. 233, § 21A (work or business); Commonwealth v. Dockham, 405 Mass. at 631 (community). A witness’s testimony must be based on the witness’s knowledge of the person’s reputation in the community, not of the opinions of a limited number of people. Commonwealth v. LaPierre , 10 Mass. App. Ct. 871, 871 (1980). See Commonwealth v. Phachansiri , 38 Mass. App. Ct. 100, 109 (1995); Commonwealth v. Gomes , 11 Mass. App. Ct. 933, 933–934 (1981).
The provision regarding testimony of the witness’s reputation for having a character for truthfulness or untruthfulness is derived from Commonwealth v. Favorito , 9 Mass. App. Ct. 138, 140 (1980). “Evidence irrelevant to the issue at trial or to the witness’s reputation for truth and veracity is inadmissible to impeach a witness.” Commonwealth v. Cancel , 394 Mass. 567, 572 (1985).
The provision limiting the admissibility of evidence of truthful character to after the witness’s character for truthfulness has been attacked is derived from Commonwealth v. Sheline , 391 Mass. 279, 288 (1984), and Commonwealth v. Grammo , 8 Mass. App. Ct. 447, 455 (1979). This limitation does not restrict the right of a defendant in a criminal case to offer evidence of his or her reputation for a character trait that would suggest he or she is not the type of person who would commit the crime charged. See Section 404(a)(2)(A), Character Evidence; Crimes or Other Acts: Character Evidence: Exceptions for a Defendant or Victim in a Criminal Case. Neither “the offering of testimony that contradicts the testimony of a witness” nor “the introduction of prior out-of-court statements of a witness constitute[s] an attack on the witness’s character for truthfulness,” because “[t]he purpose and only direct effect of the evidence are to show that the witness is not to be believed in [that] instance.” Commonwealth v. Sheline, 391 Mass. at 288–289.
Subsection (b). This subsection is derived from Commonwealth v. LaVelle , 414 Mass. 146, 151 (1993), and Commonwealth v. Bregoli , 431 Mass. 265, 275 (2000). This applies whether or not the witness is a party, Commonwealth v. Binkiewicz , 342 Mass. 740, 755 (1961), and whether the witness is impeached by cross-examination, Commonwealth v. Turner , 371 Mass. 803, 810 (1977), or by the introduction of extrinsic evidence, Commonwealth v. LaVelle, 414 Mass. at 151. On several occasions, the Supreme Judicial Court has declined to adopt Fed. R. Evid. 608(a) and Proposed Mass. R. Evid. 608(b), which permit inquiry into the details of prior instances of misconduct if probative of the witness’s character for veracity. See Commonwealth v. Almonte , 465 Mass. 224, 241 (2013).
The Supreme Judicial Court has “chiseled” a narrow exception to the rule that the testimony of a witness may not be impeached with specific acts of prior misconduct, recognizing that in special circumstances (to date, only rape and sexual assault cases) the interest of justice would forbid its strict application. Commonwealth v. LaVelle, 414 Mass. at 151–152. In Commonwealth v. Bohannon , 376 Mass. 90, 94–96 (1978), the special circumstances warranting evidence of the prior accusations were that (1) the witness was the victim in the case on trial; (2) the victim/witness’s consent was the central issue at trial; (3) the victim/witness was the only Commonwealth witness on the issue of consent; (4) the victim/witness’s testimony was inconsistent and confused; and (5) there was a basis in independent third-party records for concluding that the victim/witness’s prior accusation of the same type of crime had been made and was false. Not all of the Bohannon circumstances must be present for the exception to apply. Commonwealth v. Nichols , 37 Mass. App. Ct. 332, 337 (1994).
Section 609. Impeachment by evidence of conviction of crime
A party may seek to impeach the credibility of a witness by means of the court record of the witness’s conviction or a certified copy, but may not make reference to the sentence that was imposed, subject to Section 403 and the following requirements:
(1) Misdemeanor. A misdemeanor conviction cannot be used after five years from the date on which sentence was imposed, unless the witness has subsequently been convicted of a crime within five years of the time he or she testifies.
(2) Felony Conviction Not Resulting in Committed State Prison Sentence. A felony conviction where no sentence was imposed, a sentence was imposed and suspended, a fine was imposed, or a sentence to a jail or house of correction was imposed cannot be used after ten years from the date of conviction (where no sentence was imposed) or from the date of sentencing, unless the witness has subsequently been convicted of a crime within ten years of the time he or she testifies. For the purpose of this paragraph, a plea of guilty or a finding or verdict of guilty shall constitute a conviction within the meaning of this section.
(3) Felony with State Prison Sentence Imposed. A felony conviction where a sentence to a State prison was imposed cannot be used after ten years from the date of expiration of the minimum term of imprisonment, unless the witness has subsequently been convicted of a crime within ten years of the time he or she testifies.
(4) Traffic Violation. A traffic violation conviction where only a fine was imposed cannot be used unless the witness has been convicted of another crime or crimes within five years of the time he or she testifies.
(5) Juvenile Adjudications of Delinquency or Youthful Offender. Adjudications of delinquency or youthful offender may be used in subsequent delinquency or criminal proceedings in the same manner and to the same extent as prior criminal convictions.
(b) Effect of Being a Fugitive
For the purpose of this section, any period during which the defendant was a fugitive from justice shall be excluded in determining time limitations under the provisions of this section.
Definition of Conviction. For the purpose of impeachment, a conviction “means a judgment that conclusively establishes guilt after a finding, verdict, or plea of guilty.” Forcier v. Hopkins , 329 Mass. 668, 670 (1953), and cases cited. Thus, a case that is continued without a finding, with or without an admission, is not a conviction and may not be used for impeachment under this section. See Wilson v. Honeywell, Inc. , 409 Mass. 803, 808–809 (1991). See also Commonwealth v. Pon , 469 Mass. 296, 298 (2014); Commonwealth v. Norwell , 423 Mass. 725, 726 (1996); Commonwealth v. Jackson , 45 Mass. App. Ct. 666, 670 (1998).
Misdemeanors/Probation. A misdemeanor conviction for which a defendant was placed on probation cannot be used for impeachment, because straight probation does not constitute a “sentence” for purposes of the statute. Commonwealth v. Stewart , 422 Mass. 385, 387 (1996).
Probation Violation. The proper use of probation violations is as follows:
“Although convictions within the time frames established by G. L. c. 233, § 21 . . . , may be used to impeach a witness’s character for truthfulness, probation violations may not be so used. Nevertheless, probation violations may be used ‘to show bias on the part of the witness who might want to give false testimony to curry favor with the prosecution with respect to his case.’ Commonwealth v. DiMuro , 28 Mass. App. Ct. 223, 228 (1990).” (Citation omitted.)
Commonwealth v. Roberts , 423 Mass. 17, 20–21 (1996).
Suspended Sentence. A suspended sentence constitutes a sentence. Forcier v. Hopkins , 329 Mass. 668, 670–671 (1953).
Fine. A fine constitutes a sentence. Commonwealth v. Ortiz , 47 Mass. App. Ct. 777, 781 (1999).
Scope. “[C]onvictions relevant to credibility are not limited to crimes involving dishonesty or false statements.” Commonwealth v. Smith , 450 Mass. 395, 407 (2008).
Discretion. The judge must exercise discretion before deciding whether to admit prior convictions for impeachment. Commonwealth v. Ruiz , 400 Mass. 214, 215 (1987). The factors that are relevant to the exercise of discretion include “whether the prior conviction is substantially similar to the crime charged, whether the prior conviction involves a crime implicating truthfulness, whether there were other prior convictions that the Commonwealth could have used to impeach the defendant, and whether the judge conducted the required balancing test.” Commonwealth v. Little , 453 Mass. 766, 773 (2009). The balancing test is the one set forth in Section 403, Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reason. See, e.g., Commonwealth v. Roucoulet , 22 Mass. App. Ct. 603, 608 (1986) (reversing conviction in drug case based on improper admission of prior criminal convictions for drug offenses). A judge is not required to exercise discretion in the absence of an objection or motion in limine. Commonwealth v. Bly , 444 Mass. 640, 653 (2005). The discretion to exclude prior convictions applies equally to the testimony of parties and other witnesses. Commonwealth v. Manning , 47 Mass. App. Ct. 923, 923 (1999). “The defendant may challenge the judge’s ruling even if he never testifies.” Commonwealth v. Little, 453 Mass. at 773. But see Section 103(b), Rulings on Evidence, Objections, and Offers of Proof: Preliminary Evidentiary Motions: Effect on Appellate Rights. “Generally, in order for the prejudicial effect to outweigh the probative value of prior conviction evidence, the ‘prior conviction must be substantially similar to the charged offense’” (emphasis omitted). Commonwealth v. Leftwich , 430 Mass. 865, 869 (2000), quoting Commonwealth v. Drumgold , 423 Mass. 230, 250 (1996). However, “[a]lthough similarity of an offense weighs in favor of exclusion, there is no per se rule of exclusion of prior conviction of a similar crime for which the defendant is on trial.” Commonwealth v. Bly, 444 Mass. at 654. A trial judge has discretion to permit impeachment of a sexual assault complaining witness by prior convictions of sexual offenses (which would otherwise be inadmissible under the rape-shield statute, G. L c. 233, § 21B ), but in exercising that discretion, the judge must consider the purposes of the rape-shield statute. Commonwealth v. Harris , 443 Mass. 714, 726–728 (2005). See Section 412, Sexual Behavior or Sexual Reputation (Rape-Shield Law).
Proof of Conviction. The conviction must be proven by production of a court record or a certified copy. Commonwealth v. Puleio , 394 Mass. 101, 104 (1985). But see Commonwealth v. Hamilton , 459 Mass. 422, 439 (2011) (proof of prior conviction for purpose other than to impeach truthfulness of witness does not require court record or certified copy). An attorney must have a reasonable evidentiary basis for any question concerning a prior criminal conviction. See Commonwealth v. Johnson , 441 Mass. 1, 5 n.4 (2004). It is presumed that the defendant was represented by counsel in the underlying conviction, and the Commonwealth does not have to prove representation unless the defendant makes a showing that the conviction was obtained without counsel or a waiver of counsel. Commonwealth v. Saunders , 435 Mass. 691, 695–696 (2002).
Evidence of Conviction. When a record of a witness’s criminal conviction is introduced for impeachment purposes, the conviction must be left unexplained; but when “cross-examination goes beyond simply establishing that the witness is the person named in the record of conviction, the proponent of the witness may, in the judge’s discretion, properly inquire on redirect examination about those collateral matters raised during the cross-examination.” Commonwealth v. McGeoghean , 412 Mass. 839, 843 (1992). See Commonwealth v. Kalhauser , 52 Mass. App. Ct. 339, 343–345 (2001). Any reference to the length of the sentenced imposed should be excluded. Commonwealth v. Eugene , 438 Mass. 343, 352–353 (2003).
A witness may testify about his or her prior convictions for criminal conduct on direct examination in order to blunt the anticipated use of such evidence on cross-examination. Commonwealth v. Daley , 439 Mass. 558, 563 (2003). See Commonwealth v. Blodgett , 377 Mass. 494, 502 (1979). Despite an earlier in limine order excluding evidence of a prior conviction, a witness who testifies untruthfully opens the door to admission of previously excluded evidence to rebut the false testimony. Commonwealth v. Roderick , 429 Mass. 271, 273–275 (1999). Evidence of a stale prior conviction, although inadmissible under G. L. c. 233, § 21 , may still be admissible for probative nonimpeachment purposes. Commonwealth v. Jacobs , 6 Mass. App. Ct. 867, 868 (1978). See Commonwealth v. Lavoie , 47 Mass. App. Ct. 1, 4 n.7 (1999).
Redaction. A prior conviction should either be introduced with a description of its nature or excluded entirely, as “[m]asking the nature of the prior offense . . . is more likely to affect the defendant unfairly than receipt in evidence of the unvarnished conviction.” Commonwealth v. Ioannides, 41 Mass. App. Ct. 904, 905–906 (1996). However, the judge has discretion to redact the nature of the prior offense and restrict impeachment to the fact of a conviction of “a felony” if redaction is requested by the defendant. Commonwealth v. Kalhauser , 52 Mass. App. Ct. 339, 342 (2001). Any extraneous entries included in the record of criminal conviction should not be shown to the jury, and if, in the judge’s opinion, masking the extraneous material risks inducing the jury to speculate about the missing portions of the record, the judge should refuse to mark the records as exhibits. Commonwealth v. Ford , 397 Mass. 298, 300 (1986).
Pardons, Sealing of Record, Expungement, Commutation of Sentence, Appeal Pending. A criminal record that has been sealed is not subject to mandatory discovery and is not available for impeachment. Wing v. Commissioner of Probation , 473 Mass. 368, 370–371 (2015). It appears that pardons and expunged records are likewise unavailable. See Commonwealth v. Childs , 23 Mass. App. Ct. 33, 35 (1986), aff’d, 400 Mass. 1006 (1987). Conversely, it appears that the commutation of a sentence may be used. Rittenberg v. Smith , 214 Mass. 343, 347 (1913) (“The commutation of the sentence did not do away with the conviction. Only a full pardon could do that.”). It also appears that the pendency of an appeal does not prevent the use of a conviction for impeachment purposes. The fact that a defendant’s prior conviction was vacated after the trial in which it was used to impeach him did not affect its status as a “final judgment” for purposes of G. L. c. 233, § 21 . Commonwealth v. DiGiambattista , 59 Mass. App. Ct. 190, 199 (2003), judgment rev’d on other grounds, 442 Mass. 423 (2004). See Fed. R. Evid. 609(e); Proposed Mass. R. Evid. 609(f). The term conviction means “a judgment that conclusively establishes guilt after a finding, verdict, or plea of guilty. . . . In a criminal case the sentence is the judgment.” Forcier v. Hopkins , 329 Mass. 668, 670–671 (1953). “The sentence [,] until reversed in some way provided by the law, stands as the final judgment binding upon everybody.” Commonwealth v. Dascalakis , 246 Mass. 12, 20 (1923).
Section 610. Religious beliefs or opinions
Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.
This section is derived from Commonwealth v. Dahl , 430 Mass. 813, 822–823 (2000) (citing with approval Proposed Mass. R. Evid. 610), and G. L. c. 233, § 19 (“evidence of [a person’s] disbelief in the existence of God may not be received to affect his credibility as a witness”). Though not admissible as to credibility, evidence that relates to a person’s religious beliefs is not per se inadmissible. See Commonwealth v. Kartell , 58 Mass. App. Ct. 428, 436–437 (2003) (evidence of defendant’s religious beliefs admissible for relevant purpose of showing defendant was jealous of victim); Commonwealth v. Murphy , 48 Mass. App. Ct. 143, 145 (1999) (to establish that a child witness is competent to testify, “a question whether the child believes in God and a question whether the child recognizes the witness’s oath as a promise to God are within tolerable limits to test whether the witness’s oath meant anything to the child witness”).
Section 611. Mode and order of examining witnesses and presenting evidence
(a) Control by the Court
The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to
(1) make those procedures effective for determining the truth,
(2) avoid wasting time, and
(3) protect witnesses from harassment or undue embarrassment.
The court has discretion to admit evidence conditionally upon the representation that its relevancy will be established by evidence offered subsequently.
(b) Scope of Cross-Examination
(1) In General. A witness is subject to reasonable cross-examination on any matter relevant to any issue in the case, including credibility and matters not elicited during direct examination. The trial judge may restrict the scope of cross-examination in the exercise of judicial discretion.
(2) Bias and Prejudice. Reasonable cross-examination to show bias and prejudice is a matter of right which cannot be unreasonably restricted.
(c) Leading Questions
Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions
(1) on cross-examination and
(2) when a party calls a hostile witness, an adverse party, or an officer or agent of an adverse corporate party, or an investigator appointed under G. L. c. 119, § 21A .
(d) Rebuttal Evidence
The trial judge generally has discretion to permit the introduction of rebuttal evidence in civil and criminal cases. In certain limited circumstances, a party may introduce rebuttal evidence as a matter of right. There is no right to present rebuttal evidence that only supports a party’s affirmative case.
(e) Scope of Subsequent Examination
The scope of redirect and recross-examination is within the discretion of the trial judge.
The court has discretion to allow a party to reopen its case.
(1) Form and Effect. A stipulation is a voluntary agreement between opposing parties concerning some relevant fact, claim, or defense and may include agreements in both civil and criminal cases to simplify the issues for trial. A stipulation as to a matter of law is not binding on the court. A judge may require a stipulation be reduced to writing. A party is bound by its stipulation in the absence of consideration unless relief is granted by the court. In order to avoid a failure of justice, a court may at any time relieve a party from its stipulation.
(2) Essential Element. A stipulation as to a fact constituting an essential element of a crime or a fact material to the proof of the crime must be presented in some manner to the jury as part of the evidence of the case.
Subsection (a). This subsection is derived from Commonwealth v. Rooney , 365 Mass. 484, 496 (1974); Goldman v. Ashkins , 266 Mass. 374, 380 (1929); Chandler v. FMC Corp. , 35 Mass. App. Ct. 332, 338 (1993); and Albano v. Jordan Marsh Co. , 2 Mass. App. Ct. 304, 311 (1974). See Commonwealth v. Edward , 75 Mass. App. Ct. 162, 171 n.12 (2009) (closing courtroom to the public during any portion of a trial implicates defendant’s constitutional rights and must be preceded by a hearing and adequate findings of fact). The judge’s discretion to impose reasonable limits on the length of the direct and cross-examination of witnesses does not permit the judge to impose arbitrary time limits that prevent a party from presenting its case. Chandler v. FMC Corp., 35 Mass. App. Ct. at 338. See also Commonwealth v. Conley , 34 Mass. App. Ct. 50, 59–60 & n.4 (1993) (improper for court to systematically screen a party’s direct evidence at sidebar before witnesses are permitted to be called).
Evidence may be conditionally admitted (admitted de bene) upon the representation of counsel that additional evidence will be produced providing the foundation for the evidence offered. Harris-Lewis v. Mudge , 60 Mass. App. Ct. 480, 485 n.4 (2004). See Commonwealth v. Perry , 432 Mass. 214, 234–235 (2000). In the event that the foundation evidence is not subsequently produced, the court has no duty to strike the evidence admitted de bene on its own motion. Commonwealth v. Sheppard , 313 Mass. 590, 595–596 (1943). If the objecting party fails to move to strike the evidence, the court’s failure to strike it is not error. Muldoon v. West End Chevrolet, Inc. , 338 Mass. 91, 98 (1958). See Commonwealth v. Navarro , 39 Mass. App. Ct. 161, 166 (1995). See Section 104(b), Preliminary Questions: Relevance That Depends on a Fact.
A self-represented litigant is bound by the same rules as those that guide attorneys. International Fid. Ins. Co. v. Wilson , 387 Mass. 841, 847 (1983). However, “[w]hether a party is represented by counsel at a trial or represents himself, the judge’s role remains the same. The judge’s function at any trial is to be ‘the directing and controlling mind at the trial, and not a mere functionary to preserve order and lend ceremonial dignity to the proceedings’” (citations omitted). Commonwealth v. Sapoznik , 28 Mass. App. Ct. 236, 241–242 n.4 (1990), quoting Commonwealth v. Wilson , 381 Mass. 90, 118 (1980). See also Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants, The Commonwealth of Massachusetts Administrative Office of the Trial Court (2006).
Reasonable Basis for Cross-Examination. Cross-examination must have a reasonable and good-faith basis. See Commonwealth v. Johnson , 441 Mass. 1, 5 n.4 (2004). See also Commonwealth v. Cadet , 473 Mass. 173, 186 (2015) (in cross-examination of defendant, prosecutor’s description of victim “gurgling” blood improper without supporting evidence). Attorneys are not permitted to ask questions in bad faith or without any foundation. See Commonwealth v. Jenkins , 458 Mass. 791, 795 (2011) (attorney had good-faith basis for questions, even where source was not called to testify). The Supreme Judicial Court has applied the limitation set forth in Section 1113(b)(3)(C) (inappropriate to make arguments based on “racial, ethnic, or gender stereotypes”) to the form of questions put to witnesses at trial. Commonwealth v. Cadet, 473 Mass. at 186.
Cross-Reference: Section 405(a), Methods of Proving Character: By Reputation.
Civil Cases. This subsection as it applies to civil cases is derived from Beal v. Nichols , 68 Mass. 262, 264 (1854), and Davis v. Hotels Statler Co. , 327 Mass. 28, 29–30 (1951). This subsection reflects the Massachusetts practice of permitting cross-examination on matters beyond the subject matter of the direct examination. See Nuger v. Robinson , 32 Mass. App. Ct. 959, 959–960 (1992). Thus, a party can put its own case before the jury by the cross-examination of witnesses called by the opposing party. See Moody v. Rowell , 34 Mass. 490, 499 (1835).
Criminal Cases. “There are few subjects, perhaps, upon which [the Supreme] Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal” (citation omitted). Commonwealth v. Tanso , 411 Mass. 640, 650 (1992). See also Commonwealth v. Farley , 443 Mass. 740, 748 (2005); Commonwealth v. Vardinski , 438 Mass. 444, 449–451 (2003). In determining what is reasonable, the trial judge has discretion. “[T]he scope of cross- examination, including to what extent the accuracy, veracity, and credibility of a witness may be tested, rests largely in the sound discretion of the judge, not subject to revision unless prejudice is shown to a party by reason of too narrow restriction or too great breadth of inquiry” (citations and quotations omitted). Commonwealth v. Gagnon , 408 Mass. 185, 192 (1990). Unreasonable restrictions on the defendant’s right to cross-examination in a criminal case require a new trial unless the error is shown to be harmless beyond a reasonable doubt. See Commonwealth v. Miles, 420 Mass. 67, 71–73 (1995). See also Commonwealth v. Reynolds , 429 Mass. 388, 391–392 (1999) (conviction reversed because scope of cross-examination of police officers too limited; “[i]t is well settled that a defendant has a right to expose inadequacies of police investigation”), and cases cited. The trial judge also has the right to limit cross- examination when necessary to protect the safety of the witness. See Commonwealth v. Francis , 432 Mass. 353, 357–358 (2000). See also Note “Address of Witness” to Section 501, Privileges Recognized Only as Provided. The Appeals Court has observed as follows:
“Where there is no opportunity to cross-examine a witness, because, for example, he is uncooperative, fails to appear, or invokes his privilege against self-incrimination, the striking of any direct testimony by that witness may be constitutionally required. Generally, a witness’s inability to answer questions on cross-examination due to lapse of memory, however, does not require striking his direct testimony.” (Citations omitted.)
Commonwealth v. Santiago , 30 Mass. App. Ct. 207, 221 (1991). The defendant’s right to confrontation is not denied when, on cross-examination, a witness refuses to answer questions relating exclusively to collateral matters. See Commonwealth v. Dwyer , 10 Mass. App. Ct. 707, 713 (1980). Compare Commonwealth v. Almeida , 452 Mass. 601, 607 (2008) (defendant was not denied his right to confront a key identification witness who was unable to recall numerous details; “[i]t was entirely reasonable for the witness to have no memory of some of the information sought by many of the questions”), and Commonwealth v. Amirault , 404 Mass. 221, 234–235 (1989) (lapse of memory by witness on cross-examination did not deny defendant right to confrontation), with Commonwealth v. Funches , 379 Mass. 283, 292 (1979) (trial judge was required to strike witness’s direct testimony when witness asserted privilege against self- incrimination during cross-examination), and Commonwealth v. Johnson , 365 Mass. 534, 543–544 (1974) (defendant denied right to confrontation when judge, concerned for safety of witness, ordered witness to not answer questions on cross-examination).
Fairness to the Commonwealth. The Commonwealth has a common-law right to reasonable cross-examination of witnesses called by the defendant. See Commonwealth v. Gagnon , 408 Mass. 185, 192 (1990). See also Commonwealth v. Lawton , 82 Mass. App. Ct. 528, 537–538 (2012).
Subsection (b)(2). This subsection is derived from Commonwealth v. Martinez , 384 Mass. 377, 380–381 (1981); Commonwealth v. Michel , 367 Mass. 454, 459 (1975); and Commonwealth v. Russ , 232 Mass. 58, 79 (1919).
“[W]here . . . facts are relevant to a showing of bias or motive to lie, any general evidentiary rule of exclusion must give way to the constitutionally based right of effective cross-examination.” Commonwealth v. Joyce , 382 Mass. 222, 231 (1981), citing Davis v. Alaska , 415 U.S. 308, 316–318 (1974), and Chambers v. Mississippi , 410 U.S. 284 (1973). “A judge may not restrict cross-examination of a material witness by foreclosing inquiry into a subject that could show bias or prejudice on the part of the witness.” Commonwealth v. Aguiar , 400 Mass. 508, 513 (1987). See Commonwealth v. Kindell , 84 Mass. App. Ct. 183, 186–189 (2013). This right applies with special force whenever there is evidence that the testimony of a witness is given in exchange for some anticipated consideration or reward by the government, see Commonwealth v. Barnes , 399 Mass. 385, 392 (1987); Commonwealth v. O’Neil , 51 Mass. App. Ct. 170, 178–181 (2001), or when it concerns the subject of identification. See Commonwealth v. Vardinski , 438 Mass. 444, 450 (2003).
However, the trial judge has considerable discretion to limit such cross- examination when it becomes redundant or touches on matters of tangential materiality. See Commonwealth v. Parent, 465 Mass. 395, 405–406 (2013); Commonwealth v. Jordan , 439 Mass. 47, 55 (2003); Commonwealth v. Noj , 76 Mass. App. Ct. 194, 198–199 (2010). See also Commonwealth v. Durand , 475 Mass. 657, 662–663 (2016) (court found that judge’s ruling prohibiting defendant’s cross-examination of expert concerning e-mail message was not abuse of discretion where defendant argued e-mail message was basis of expert’s termination from his position with chief medical examiner’s office).
Subsection (c). This subsection is derived from G. L. c. 233, § 22 ; Carney v. Bereault , 348 Mass. 502, 510 (1965); and Mass. R. Civ. P. 43(b). “[T]he decision whether to allow leading questions should be left for the most part to the wisdom and discretion of the trial judge instead of being restricted by the mechanical operation of inflexible rules” (citations and quotation omitted). Commonwealth v. Flynn , 362 Mass. 455, 467 (1972). See Commonwealth v. Monahan , 349 Mass. 139, 162–163 (1965) (rulings on whether witness is hostile and whether cross-examination of the witness by his or her proponent are permitted are within discretion of trial judge). Some judges in Massachusetts require that when the subject of the cross- examination enters material not covered on direct, the attorney should no longer use leading questions.
Although as a general rule leading questions should not be used on direct examination, there are many instances where they are permitted in the discretion of the judge. See, e.g., DiMarzo v. S. & P. Realty Corp. , 364 Mass. 510, 512 (1974) (refresh memory); Commonwealth v. Aronson , 330 Mass. 453, 460 (1953) (witness under stress); Gray v. Kelley , 190 Mass. 184, 187 (1906) (elderly witness); Commonwealth v. Lamontagne , 42 Mass. App. Ct. 213, 217–218 (1997) (child witness).
The use of leading questions on direct examination of an adverse party is authorized by statute. G. L. c. 233, § 22 (“A party who calls the adverse party as a witness shall be allowed to cross-examine him. In case the adverse party is a corporation, an officer or agent thereof, so called as a witness, shall be deemed such an adverse party for the purposes of this section.”); Mass. R. Civ. P. 43(b) (“A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party.”). When a party calls an adverse witness, that party may inquire by means of leading questions.See Mass. R. Civ. P. 43(b). Cf. G. L. c. 233, § 22 . However, such examination is limited by G. L. c. 233, § 23 , concerning impeachment of one’s own witness. See Walter v. Bonito , 367 Mass. 117, 122 (1975). If a party is called as an adverse witness by opposing counsel, the trial judge may, in his or her discretion, permit leading questions on cross-examination. See Westland Hous. Corp. v. Scott , 312 Mass. 375, 383– 384 (1942). See also G. L. c. 119, § 21A (the examination of an investigator “shall be conducted as though it were on cross-examination”).
Subsection (d). This subsection is derived from Commonwealth v. Roberts , 433 Mass. 45, 51 (2000), and Commonwealth v. Guidry , 22 Mass. App. Ct. 907, 909 (1986). A party may not present rebuttal evidence that only “supports a party’s affirmative case.” Drake v. Goodman , 386 Mass. 88, 92 (1982). In other words, a party may not “present one theory of causation in his case-in-chief and, as a matter of right, present a different theory of causation in rebuttal.” Id. at 93. This is especially true when a party is aware of the evidence prior to trial and could have presented it as part of the case-in-chief. Id.
Subsection (e). This subsection is derived from Commonwealth v. Maltais , 387 Mass. 79, 92 (1982) (redirect examination), and Commonwealth v. O’Brien , 419 Mass. 470, 476 (1995) (recross- examination). See Commonwealth v. Andrade , 468 Mass. 543, 549–550 (2014) (holding that on redirect examination of an immunized witness who had been impeached on cross-examination about lying to the police and to the grand jury, it was appropriate over objection to permit the prosecutor to ask the witness whether he “told the truth to the jury today about what [the defendant] told [him] about the murder of [the victim]” and explaining that, viewed in context, the prosecutor was not asking the witness to comment on his own credibility, but instead to rebut the implication of the cross-examination that the witness’s testimony was false). Cf. Mass. R. Dom. Rel. P. 43(b).
Subsection (f). This subsection is derived from Kerr v. Palmieri , 325 Mass. 554, 557 (1950) (“As a general proposition, the granting of a motion to permit additional evidence to be introduced after the trial has been closed rests in the discretion of the trial judge.”). See also Commonwealth v. Moore , 52 Mass. App. Ct. 120, 126–127 (2001) (“We also add that the decision whether to reopen a case is one that cannot be made in an arbitrary or capricious manner. It would be a wise practice in the future for trial judges to place on the record their reasons for exercising their discretion either for or against reopening the case.”).
Criminal Cases. The constitutional rights of the defendant in a criminal case limit the discretion of the court to allow the Commonwealth to reopen. It is only within the court’s discretion
“to permit reopening when mere inadvertence or some other compelling circumstance...justifies a reopening and no substantial prejudice will occur. If the court in the exercise of cautious discretion allows the prosecution to reopen its case before the defendant begins its defense, that reopening does not violate either the rules of criminal procedure or the defendant’s right not to be put twice in jeopardy.”
Commonwealth v. Cote , 15 Mass. App. Ct. 229, 241 (1983), quoting United States v. Hinderman , 625 F.2d 994, 996 (10th Cir. 1980). See Commonwealth v. Costa , 88 Mass. App. Ct. 750, 753–755 (2015) (trial judge properly permitted Commonwealth to reopen its case and present additional evidence regarding breathalyzer accuracy where defendant had deliberately concealed basis for his objection to results, thus depriving prosecution of opportunity to address factual basis for challenge in first instance). Compare Commonwealth v. Hurley , 455 Mass. 53, 68 (2009) (where police officer had gestured at and nodded to the defendant during his testimony, but had not formally identified the defendant on the record, trial judge did not err in permitting the Commonwealth to reopen its case to offer this minimal identification evidence), with Commonwealth v. Zavala , 52 Mass. App. Ct. 770, 779 (2001) (trial judge committed prejudicial error in allowing the Commonwealth to reopen its case to prove an essential element of the offense, previously neglected, where the burden of proving that element was clearly the Commonwealth’s and the omission was identified by the defendant’s motion). See also Commonwealth v. Hurley, 455 Mass. at 68, for a survey of cases.
Subsection (g)(1). This subsection is derived from Fanciullo v. B.G. & S. Theatre Corp. , 297 Mass. 44, 51 (1937); Gurman v. Stowe-Woodward , 302 Mass. 442, 448 (1939); and Goddard v. Goucher , 89 Mass. App. Ct. 41, 45 (2016). See Mass. R. Civ. P. 36(b) (effect of admissions). See also Commonwealth v. Buswell , 468 Mass. 92, 104–105 (2014) (where rationale for stipulation changes, court has discretion to relieve a party of the stipulation); Loring v. Mercier , 318 Mass. 599, 601 (1945) (court “may vacate a stipulation made by the parties if it is deemed improvident or not conducive to justice”).
In Mitchell v. Walton Lunch Co. , 305 Mass. 76, 80 (1939), the court observed that “[n]othing is more common in practice or more useful in dispatching the business of the courts than for counsel to admit undisputed facts.” Brocklesby v. City of Newton , 294 Mass. 41, 43 (1936).
A stipulation may affect the standard of review on appeal. See Commonwealth v. Phoenix , 409 Mass. 408, 420 (1991) (stipulation as to the admissibility of scientific evidence). A stipulation may bind a party in subsequent trials. Household Fuel Corp. v. Hamacher , 331 Mass. 653, 656–657 (1954).
Binding Admissions. A binding admission, sometimes referred to as a judicial admission, “is a proposition of fact in the form of acts or declarations during the course of judicial proceedings which conclusively determine an issue.” Wood v. Roy Lapidus, Inc. , 10 Mass. App. Ct. 761, 765 (1980). It is binding on the party making it. Quinn v. Mar-Lees Seafood, LLC , 69 Mass. App. Ct. 688, 697 (2007). A judicial admission “relieve[s] the other party of the necessity of presenting evidence on that issue” (quotation omitted). General Elec. Co. v. Board of Assessors of Lynn , 393 Mass. 591, 603 n.8 (1984). A judicial admission does not require an agreement between the parties, but may arise whenever “a party causes the judge to understand that certain facts are admitted or that certain issues are waived or abandoned.” Dalton v. Post Publ. Co. , 328 Mass. 595, 599 (1952). In a civil case, a party or a party’s authorized agent, such as a party’s lawyer, is authorized to make statements of fact that may be deemed judicial admissions. Turners Falls Ltd. Partnership v. Board of Assessors of Montague , 54 Mass. App. Ct. 732, 737 (2002). A judicial admission may take the form of statements of fact made in pleadings, G. L. c. 231, § 87 ; a statement made in an opening, see Beaumont v. Segal , 362 Mass. 30, 32 (1972); or a response to a request for admissions under Mass. R. Civ. P. 36(b). See also Quinn v. Mar-Lees Seafood, LLC, 69 Mass. App. Ct. at 697 (party’s testimony as to facts peculiarly within his knowledge is binding). However, the testimony of a party’s expert witness is not a judicial admission. Turners Falls Ltd. Partnership v. Board of Assessors of Montague, 54 Mass. App. Ct. at 738.
A judge has discretion to relieve a party from the binding effect of a judicial admission that was the consequence of inadvertence and may permit a party to introduce corrective evidence. Id. at 737. See also Mass. R. Civ. P. 36. When a party delays seeking relief until trial has commenced, Rule 36(b) impliedly adopts a stricter standard of preventing “manifest injustice.” Reynolds Aluminum Bldg. Prods. Co. v. Leonard , 395 Mass. 255, 260 n.9 (1985). An admission that is not amended or withdrawn cannot be “ignored by the court even if the party against whom it is directed offers more credible evidence” (citations omitted). Houston v. Houston , 64 Mass. App. Ct. 529, 533 (2005).
Nonbinding Admissions. A nonbinding admission, sometimes referred to as an evidentiary admission, is the “conduct of a party while not on the stand used as evidence against him at trial. The conduct may be in the form of an act, a statement, or a failure to act or make a statement.” General Elec. Co. v. Board of Assessors of Lynn , 393 Mass. 591, 603 (1984). Evidentiary admissions, unlike judicial admissions, are not binding on a party, and a party may offer evidence that is inconsistent with an evidentiary admission. Id. “Unlike most prior inconsistent statements, an evidentiary admission is admissible for substantive purposes, not merely on the narrow issue of credibility.” Id. Thus, the jury or fact finder can find that a fact is true on the basis on an evidentiary admission. Evidentiary admissions include answers to deposition questions, see Mass. R. Civ. P. 32(a)(2), and answers to interrogatories, see G. L. c. 231, § 89 .
Subsection (g)(2). This subsection is derived from Commonwealth v. Ortiz , 466 Mass. 475, 481–487 (2013).
Section 612. Writing or object used to refresh memory
(a) While Testifying
(1) General Rule
When a testifying witness’s memory is exhausted as to a matter about which he or she once had knowledge, the witness’s memory may be refreshed, in the presence of the jury, with any writing or other object that permits the witness to further testify from his or her own memory. The writing or object should not be read from or shown to the jury.
(2) Production and Use
(A) When a testifying witness uses a writing or object to refresh his or her memory, an adverse party is entitled to the production of the writing or object after it is shown to the witness and before cross-examination, even if it contains information subject to work-product protection.
(B) A party entitled to the production of a writing or object under this section is entitled to examine the writing or so much of it as relates to the case on trial, may cross-examine about it, and may introduce it in evidence to show that it could not or did not aid the witness in any legitimate way.
(b) Before Testifying
If, before testifying, a witness uses a writing or object to refresh his or her memory for the purpose of testifying, an adverse party has no absolute right to the production and inspection of the writing or object. The trial judge, however, in his or her discretion, may, at the request of the adverse party, order production of the writing or object at the trial, hearing, or deposition in which the witness is testifying if it is practicable and the interests of justice so require.
Where the adverse party at trial calls for a writing or other object from his or her opponent that was used to refresh the witness’s memory prior to trial, does so in front of the jury, and receives and examines it, the writing or other object may be offered in evidence by the producing party when necessary to prevent the impression of evasion or concealment, even though it would have been incompetent if it had not been called for and examined.
(3) Suppressed Statement
If, before testifying in a criminal case, a witness uses a suppressed statement to refresh his or her memory for the purpose of testifying, the judge must conduct a voir dire to establish that the witness has a present recollection of the event to which he or she is testifying.
Subsection (a)(1). This subsection is derived from Commonwealth v. O’Brien , 419 Mass. 470, 478–479 (1995) (citing with approval Proposed Mass. R. Evid. 612), and Bendett v. Bendett , 315 Mass. 59, 63 (1943). A witness may use a writing or other object to refresh a failing memory. Commonwealth v. O’Brien, 419 Mass. at 478. The witness’s testimony, however, must be the product of present recollection. See Commonwealth v. Hoffer , 375 Mass. 369, 376 (1978). This subsection should not be confused with the doctrine of past recollection recorded.
Subsection (a)(2)(A). This subsection is derived from Commonwealth v. O’Brien , 419 Mass. 470, 478–480 (1995). “[W]hen materials protected by the work product doctrine are used by the examiner to refresh a witness’s recollection on the stand, the protection afforded by the work product doctrine is waived and the opponent’s attorney is entitled to inspect the writing.” Id. at 478. The Supreme Judicial Court observed in dicta that
“[t]he few State courts that have addressed the issue of the conflict between the rule and protected documents used while the witness is on the stand have reached conclusions similar to the Federal courts, i.e., that use of protected material to refresh a witness’s recollection on the stand constitutes waiver of that protection.”
Id. at 479.
Subsection (a)(2)(B). This subsection is taken nearly verbatim from Bendett v. Bendett , 315 Mass. 59, 62–63 (1943) (allowing adverse party to show that writing or object did not or could not have refreshed the memory of the witness).
Subsection (b)(1). This subsection is derived from Leonard v. Taylor , 315 Mass. 580, 583–584 (1944), citing Goldman v. United States , 316 U.S. 129, 132 (1942). This rule has been the subject of considerable criticism. See Commonwealth v. O’Brien , 419 Mass. 470, 479 n.5 (1995) (“Presently, the more controversial issue, and the one on which courts are still somewhat unclear, is whether an adverse party has a right under [Fed. R. Evid.] 612 to inspect protected and privileged documents used by the witness to refresh her recollection prior to testifying.”); Commonwealth v. Marsh , 354 Mass. 713, 721–722 (1968) (“It is an artificial distinction to allow inspection of notes used on the stand to refresh recollection and to decline it where the witness inspects his notes just before being called to the stand.”).
Subsection (b)(2). This subsection is derived from Leonard v. Taylor , 315 Mass. 580, 581–584 (1944). The purpose of this rule is to protect the opposing party from the impression of evasion and concealment from a “bold and dramatic demand” by the adverse party—not to make otherwise inadmissible evidence admissible—and should therefore be used sparingly. See id. at 582–583.
Cross-Reference: Section 106(b), Doctrine of Completeness: Curative Admissibility.
Subsection (b)(3). This subsection is derived from Commonwealth v. Woodbine , 461 Mass. 720, 731 (2012), where the court stated as follows:
“We do not decide today that it is impermissible for a witness to testify concerning an event after his memory has been refreshed by his review, before taking the stand, of material that is suppressed due to violations of a defendant’s rights under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. However, before such a witness is permitted to testify, the judge must ensure that the Commonwealth has met its burden of establishing that the witness will testify not from a memory of the suppressed statement, which by definition is not to be placed in evidence, but from an independent memory of the separate event. This requires that the judge conduct a voir dire through which the basis for the witness’s assertion that he or she has a present recollection of the separate event may be thoroughly examined.”
Section 613. Prior statements of witnesses, limited admissibility
(a) Prior Inconsistent Statements
(1) Examining Own Witness. A party who produces a witness may prove that the witness made prior statements inconsistent with his or her present testimony; but before proof of such inconsistent statements is given, the party must lay a foundation by asking the witness if the prior statements were in fact made and by giving the witness an opportunity to explain.
(2) Examining Other Witness. Extrinsic evidence of a prior inconsistent statement by a witness, other than a witness covered under Subsection (a)(1), is admissible whether or not the witness was afforded an opportunity to explain or deny the inconsistency.
(3) Disclosure of Extrinsic Evidence. In examining a witness, other than a witness covered under Subsection (a)(1), concerning a prior statement made by such witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.
(4) Collateral Matter. Extrinsic evidence to impeach a witness on a collateral matter is not admissible as of right, but only in the exercise of sound discretion by the trial judge.
(b) Prior Consistent Statements
(1) Generally Inadmissible. A prior consistent statement by a witness is generally inadmissible.
(2) Exception. If the court makes a preliminary finding that there is a claim that the witness’s in-court testimony is the result of recent contrivance or a bias, and the prior consistent statement was made before the witness had a motive to fabricate or the occurrence of the event indicating a bias, the evidence may be admitted for the limited purpose of rebutting the claim of recent contrivance or bias.
Subsection (a)(1). This subsection is derived from G. L. c. 233, § 23 , and Commonwealth v. Scott , 408 Mass. 811, 824 n.14 (1990). See Sherman v. Metropolitan Transit Auth. , 345 Mass. 777, 778 (1963); Commonwealth v. Anselmo , 33 Mass. App. Ct. 602, 609 (1992). If the witness denies making the prior statement, he or she need not be given the opportunity to explain it. Commonwealth v. Scott, 408 Mass. at 824 n.14. See Commonwealth v. Festa , 369 Mass. 419, 425–426 (1976).
Cross-Reference: Section 607, Who May Impeach a Witness.
Subsections (a)(2) and (3). These subsections are derived from Hubley v. Lilley , 28 Mass. App. Ct. 468, 472, 473 n.7 (1990). See also Commonwealth v. Parent , 465 Mass. 395, 398–402 (2013). Opposing counsel has a right to examine the statement before conducting any further inquiry of the witness to prevent selective quotation of the prior statement by the questioner and to insure that the witness has an opportunity to explain or elaborate on the alleged inconsistencies. Hubley v. Lilley, 28 Mass. App. Ct. at 472, 473 n.7. This right arises after the examination of the witness under Subsection (a)(1) or (a)(2) and does not permit counsel to make a demand for a document before the jury during opposing counsel’s cross-examination. See Section 103(d), Rulings on Evidence, Objections, and Offers of Proof: Preventing the Jury or Witnesses from Hearing Inadmissible Evidence. Such conduct may warrant the court admitting extrinsic evidence of the prior inconsistent statement. See Section 612(b)(2), Writing or Object Used to Refresh Memory: Before Testifying: Admissibility.
A prior inconsistent statement offered to impeach one’s own witness, Subsection (a)(1), or an opposing party’s witness, Subsection (a)(2), is not admissible for its truth unless (1) there is no objection or (2) it falls within the exception set forth in Section 801(d)(1)(A), Definitions: Statements That Are Not Hearsay: A Declarant-Witness’s Prior Statement, or another hearsay exception. See Commonwealth v. Jones , 439 Mass. 249, 261–262 (2003); Commonwealth v. Keevan , 400 Mass. 557, 562 (1987); Commonwealth v. Balukonis , 357 Mass. 721, 726 n.6 (1970).
Use of Certain Prior Inconsistent Statements of Defendant in Criminal Case. Trial judges must proceed with caution when the Commonwealth seeks to impeach the defendant with his or her pretrial silence. See Doyle v. Ohio , 426 U.S. 610, 611, 617, 618 (1976) (use of defendant’s postarrest silence violates Federal due process); Commonwealth v. Connolly , 454 Mass. 808, 828 (2009) (same). In Massachusetts, even use of the defendant’s prearrest silence may violate Article 12 of the Declaration of Rights. See Harris v. New York , 401 U.S. 222, 226 (1971); Commonwealth v. Ly , 454 Mass. 223, 228 (2009); Commonwealth v. Harris , 364 Mass. 236, 240–241 (1973); Commonwealth v. Sazama , 339 Mass. 154, 157–158 (1959). See also Section 511(a)(2), Privilege Against Self-Incrimination: Privilege of Defendant in Criminal Proceeding: Refusal Evidence. Although a statement obtained in violation of a person’s rights under the Fourth and Fourteenth Amendments to the Constitution of the United States may be used for impeachment purposes, see United States v. Havens, 446 U.S. 620, 627–628 (1980), Article 14 of the Declaration of Rights forbids the use of evidence in the case of electronic eavesdropping in or about a private home. Compare Commonwealth v. Fini , 403 Mass. 567, 573–574 (1988) (excluding statements), with Commonwealth v. Eason , 427 Mass. 595, 600-601 (1998) (admitting statements).
Prior Statements That Qualify as Inconsistent. “It is not necessary that the prior statement contradict in plain terms the testimony of the witness.” Commonwealth v. Simmonds , 386 Mass. 234, 242 (1982). “It is enough if the proffered testimony, taken as a whole, either by what it says or by what it omits to say, affords some indication that the fact was different from the testimony of the witness whom it is sought to contradict.” Commonwealth v. Hesketh , 386 Mass. 153, 161 (1982). An omission in a prior statement may render that statement inconsistent “when it would have been natural to include the fact in the initial statement.” Commonwealth v. Ortiz , 39 Mass. App. Ct. 70, 72 (1995). See also Langan v. Pignowski , 307 Mass. 149 (1940). It follows that a witness who denies making an earlier statement may be impeached with it, while a witness who is unable to remember the earlier statement, but does not deny making it, may have his or her recollection refreshed. See Section 612(a)(1), Writing or Object Used to Refresh Memory: While Testifying: General Rule. However, “a witness who has actually made a statement contradictory to trial testimony cannot escape impeachment simply by saying she does not remember making the statement.” Commonwealth v. Parent , 465 Mass. 395, 401 (2013). Ordinarily, “[t]here is no inconsistency between a present failure of memory on the witness stand and a past existence of memory” (citation and quotation omitted). Commonwealth v. Martin , 417 Mass. 187, 197 (1994). However, if the trial judge makes a preliminary determination (see Section104[a], Preliminary Questions: In General) that the witness’s present failure of memory is fabricated, the witness’s prior detailed statement is admissible for impeachment purposes. See Commonwealth v. Sineiro , 432 Mass. 735, 742–743 & n.7 (2000). Cf. Note “Feigning Lack of Memory” to Section 801(d)(1)(A), Definitions: Statements That Are Not Hearsay: A Declarant-Witness’s Prior Statement (feigning lack of memory may result in the admission of a prior statement, not simply for impeachment purposes, but also for its truth). A witness who gives a detailed account of an incident at trial but who indicated at some earlier point in time only limited or no memory of the details of the incident may be impeached with that earlier failure of memory. Commonwealth v. Granito , 326 Mass. 494, 500 (1950).
If a witness previously remained “silent in circumstances in which he naturally would have been expected to deny some asserted fact . . . the jury may consider the failure to respond in assessing the veracity of the witness in testifying contrary to the fact that was adoptively admitted by his silence.” Commonwealth v. Nickerson , 386 Mass. 54, 57 (1982). In circumstances where it “would not be natural for a witness to provide the police before trial with exculpatory information,” this omission is admissible to impeach the witness at trial only after first establishing “ that the witness knew of the pending charges in sufficient detail to realize that he possessed exculpatory information,  that the witness had reason to make the information available, [and]  that he was familiar with the means of reporting it to the proper authorities . . . .” Commonwealth v. Hart , 455 Mass. 230, 238–239 (2009). See id. at 239–240 (abolishing requirement that prosecutor needs to “elicit from the witness that she was not asked by the defendant or the defense attorney to refrain from disclosing her exculpatory information to law enforcement authorities”). The Supreme Judicial Court has observed that
“[t]here are some circumstances, though, in which it would not be natural for a witness to provide the police before trial with exculpatory information, such as when the witness does not realize she possesses exculpatory information, when she thinks that her information will not affect the decision to prosecute, or when she does not know how to furnish such information to law enforcement.”
Id. at 238. The principles applicable to impeachment of a witness by failure to provide exculpatory information apply to tangible evidence as well as oral testimony. Commonwealth v. Issa , 466 Mass. 1, 15– 16 (2013).
An omission from an earlier statement may qualify as a prior inconsistent statement. Commonwealth v. Perez , 460 Mass. 683, 699 (2011) (absence of journal entry regarding visit from defendant on night of murder qualified as prior inconsistent statement to trial testimony that defendant visited witness in person on night of murder), and cases cited.
Although there is discretion involved in determining whether to admit or exclude evidence offered for impeachment, when the impeaching evidence is directly related to testimony on a central issue in the case, there is no discretion to exclude it. See Commonwealth v. McGowan , 400 Mass. 385, 390–391 (1987). See Section 611(d), Mode and Order of Examining Witnesses and Presenting Evidence: Rebuttal Evidence.
Subsection (a)(4). This subsection is derived from Commonwealth v. Farley , 443 Mass. 740, 751 (2005), quoting Commonwealth v. Chase , 372 Mass. 736, 747 (1977), citing Commonwealth v. Doherty , 353 Mass. 197, 213–214 (1967), cert. denied, 390 U.S. 982 (1968). See also Commonwealth v. Zezima , 365 Mass. 238, 242 n.5 (1974), rev’d on other grounds, 387 Mass. 748 (1982); Leone v. Doran , 363 Mass. 1, 15–16 (1973), modified on other grounds, 363 Mass. 886 (1973); Commonwealth v. Connolly , 308 Mass. 481, 495 (1941). This principle is based on the practical need to keep a case from getting out of control. See Abramian v. President & Fellows of Harvard College , 432 Mass. 107, 120 (2000). The better practice is to exclude such evidence in a criminal case when it bears on a defendant’s character. Commonwealth v. Ferguson , 425 Mass. 349, 355–356 n.6 (1997).
When the extrinsic evidence relates exclusively to a collateral matter, the discretion of the trial judge has been described as “nearly unreversible.” Commonwealth v. Roberts , 433 Mass. 45, 51 (2000), quoting Commonwealth v. Johnson , 41 Mass. App. Ct. 81, 89 (1996).
“Because bias, prejudice, and motive to lie are not considered collateral matters, they may be demonstrated by extrinsic proof as well as on cross-examination. There is no requirement that the opponent cross-examine on the matter as a foundation prior to offering extrinsic evidence.” (Citations omitted.) Commonwealth v. Hall , 50 Mass. App. Ct. 208, 213 n.7 (2000), quoting P.J. Liacos, Massachusetts Evidence § 6.9, at 299–300 (7th ed. 1999).
Subsection (b). This subsection is derived from Commonwealth v. Novo , 449 Mass. 84, 93 (2007), and Commonwealth v. Kindell , 44 Mass. App. Ct. 200, 202 (1998). “The reason for the rule is that the testimony of a witness in court should not need—and ought not—to be ‘pumped up’ by evidence that the witness said the same thing on some prior occasion.” Commonwealth v. Kindell, 44 Mass. App. Ct. at 202–203. “The trial judge has a range of discretion in determining whether a suggestion of recent contrivance exists in the circumstances.” Commonwealth v. Zukoski , 370 Mass. 23, 27 (1976). The judge should make preliminary findings on the record that a party has claimed that a witness’s in-court testimony is the result of recent contrivance or bias, and that the prior consistent statement was made before the witness had a motive to fabricate or before the occurrence of an event indicating bias. See Commonwealth v. Caruso, 476 Mass. 275, 284 & n.5 (2017). However, “the impeachment of a witness by prior inconsistent statements or omissions does not, standing alone, entitle the adverse party to introduce other prior statements made by the witness that are consistent with his trial testimony.” Commonwealth v. Bruce , 61 Mass. App. Ct. 474, 482 (2004), citing Commonwealth v. Retkovitz , 222 Mass. 245, 249–250 (1915). See also Commonwealth v. Hatzigiannis , 88 Mass. App. Ct. 395, 399–400 (2015) (rehabilitation by prior consistent statement improper where theory of impeachment was mistaken perception or there was no suggestion of recent fabrication). Such statements “should be allowed only with caution, and where the probative value for the proper purpose is clear.” Commonwealth v. Lareau , 37 Mass. App. Ct. 679, 683 (1994), quoting Commonwealth v. Darden , 5 Mass. App. Ct. 522, 528 (1977).
Although the admission of cumulative accounts of prior consistent statements may create a danger of improper bolstering, multiple prior consistent statements are admissible if each statement is relevant to rebut various claims of recent contrivance. Commonwealth v. Lessieur , 472 Mass. 317, 325–326 (2015). The judge may admit a prior consistent statement on direct examination, prior to any impeachment, if it is obvious that a claim of recent contrivance will be made (e.g., when a party makes a statement in his or her opening statement that he or she will attack the credibility of the witness on cross-examination on the basis of recent contrivance). See Commonwealth v. Barbosa , 457 Mass. 773, 797–798 (2010) (opponent’s opening statement suggested recent contrivance).
A prior consistent statement that does not meet the requirements of this subsection nonetheless may be admissible on other grounds. See Commonwealth v. Tennison , 440 Mass. 553, 562–564 (2003) (verbal completeness). The prior consistent statement may be admissible not only if made before the motive to fabricate arose, but also if made at a time when the motive to fabricate no longer exists. Commonwealth v. Aviles , 461 Mass. 60, 69–70 (2011) (prior consistent statement made after victim moved back to grandmother’s house admissible to rebut inference that victim had fabricated accusation of abuse to provide basis for moving out of defendant’s home and back to grandmother’s).
Cross-Reference: Section 413, First Complaint of Sexual Assault ; Section 611(a), Mode and Order of Examining Witnesses and Presenting Evidence: Control by the Court; Note to Section 801(d)(1)(B), Definitions: Statements That Are Not Hearsay: A Declarant-Witness’s Prior Statement; Section 801(d)(1)(C), Definitions: Statements That Are Not Hearsay: A Declarant-Witness’s Prior Statement; Section 1104, Witness Cooperation Agreements.
Section 614. Calling and examination of witnesses by court or jurors
When necessary in the interest of justice, the court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.
(b) Examining by Court
The court may examine a witness to clarify an issue, to prevent perjury, or to develop trustworthy testimony, provided that the judge remains impartial.
A party may object to the court’s calling or examining a witness, but the objection should be made outside the presence of the jury.
(d) Examining by Jurors
The court, in its discretion, may allow questions posed by the jury, subject to the following procedures:
(1) The judge should instruct the jury that they will be given the opportunity to pose questions to witnesses.
(2) Jurors’ questions need not be limited to important matters, but may also seek clarification of a witness’s testimony.
(3) The judge should emphasize to jurors that, although they are not expected to understand the technical rules of evidence, their questions must comply with those rules, and so the judge may have to alter or to refuse a particular question.
(4) The judge should emphasize that, if a particular question is altered or refused, the juror who poses the question must not be offended or hold that against either party.
(5) The judge should tell the jurors that they should not give the answers to their own questions or questions by other jurors a disproportionate weight.
(6) These instructions should be given before the testimony begins and repeated during the final charge to the jury before they begin deliberations.
(7) All questions should be submitted in writing to the judge, with the juror’s identification number included on each question.
(8) On submission of questions, counsel should have an opportunity, outside the hearing of the jury, to examine the questions with the judge, make any suggestions, or register objections.
(9) Counsel should be given an opportunity to reexamine a witness after juror interrogation with respect to the subject matter of the juror questions.
Subsection (a). This subsection is derived from Quincy Trust Co. v. Taylor , 317 Mass. 195, 198 (1944). See also Henry T. Lummus, The Trial Judge 19–21 (Chicago, The Foundation Press 1937).
Subsection (b). This subsection is derived from Commonwealth v. Lucien , 440 Mass. 658, 664 (2004), and Commonwealth v. Fitzgerald , 380 Mass. 840, 846–847 (1980). See Commonwealth v. Festa , 369 Mass. 419, 422 (1976) (“There is no doubt that a judge can properly question a witness, albeit some of the answers may tend to reinforce the Commonwealth’s case, so long as the examination is not partisan in nature, biased, or a display of belief in the defendant’s guilt.”); Commonwealth v. Fiore , 364 Mass. 819, 826–827 (1974) (“The judge has a right, and it is perhaps sometimes a duty, to intervene on occasion in the examination of a witness. . . . Here a discrepancy appeared between the proffered testimony and earlier testimony of the same witnesses. A likely possibility existed that each witness would perjure himself or admit to perjury in his prior statement. As this became evident to the judge, he indulged in no transgression when for the benefit of the witness and to aid in developing the most trustworthy evidence he took a hand in indicating to the witness the extent of the inconsistencies. In this case the questioning by the judge was not clearly biased or coercive.” [Citations omitted.]). Accord Adoption of Seth , 29 Mass. App. Ct. 343, 351 (1990). See also Commonwealth v. Hanscomb , 367 Mass. 726, 732 (1975) (Hennessey, J., concurring) (“The judge need not be mute; he is more than a referee. Justice may require that he ask questions at times. However, the primary principle in jury trials is that he must use this power with restraint.”). Compare Commonwealth v. Watkins , 63 Mass. App. Ct. 69, 74 (2005) (trial judge’s questions were appropriate because they helped to clarify the testimony), with Commonwealth v. Hassey , 40 Mass. App. Ct. 806, 810–811 (1996) (judge’s cross-examination of defense witnesses “too partisan” and lacked appropriate foundation).
Subsection (c). This subsection is derived from Commonwealth v. Fitzgerald , 380 Mass. 840, 846 (1980). Despite “the natural reluctance of trial counsel to object to questions or comments coming from a judge, sometimes trial counsel’s duty to protect his client’s rights requires him to object, preferably at the bench out of the jury’s hearing.” Id. Where a party fails to object at trial to questions by the judge, any error by the trial judge is reviewed for a substantial risk of a miscarriage of justice. Commonwealth v. Gomes , 54 Mass. App. Ct. 1, 5 (2002).
Subsection (d). This subsection is taken nearly verbatim from Commonwealth v. Britto , 433 Mass. 596, 613–614 (2001). See also Commonwealth v. Urena , 417 Mass. 692, 701–703 (1994). In addition to the procedures outlined in Subsection (d), the judge should instruct the jury “not to let themselves become aligned with any party, and that their questions should not be directed at helping or responding to any party”; the judge should also instruct the jurors “not to discuss the questions among themselves but, rather each juror must decide independently any questions he or she may have for a witness.” Commonwealth v. Britto, 433 Mass. at 613–614. Upon counsels’ review of the submitted questions, “[t]he judge should rule on any objections at [that] time, including any objection that the question touches on a matter that counsel purposefully avoided as a matter of litigation strategy, and that, if asked, will cause particular prejudice to the party.” Id. at 614. Finally, the scope of the reexamination of the witness after juror interrogation “should ordinarily be limited to the subject matter raised by the juror question and the witness’s answer. The purpose of reexamination is two fold. First, it cures the admission of any prejudicial questions or answers; and second, it prevents the jury from becoming adversary in its interrogation.” (Citation omitted.) Id. at 614.
Section 615. Sequestration of witnesses
At a party’s request, the court may order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But the court may not exclude any parties in a civil proceeding, nor the defendant in a criminal proceeding.
This section is derived from Zambarano v. Massachusetts Turnpike Authority , 350 Mass. 485, 487 (1966), and Mass. R. Crim. P. 21 (“Upon his own motion or the motion of either party, the judge may, prior to or during the examination of a witness, order any witness or witnesses other than the defendant to be excluded from the courtroom.”). See Commonwealth v. Therrien , 359 Mass. 500, 508 (1971) (court may except from general sequestration order a witness deemed “essential to the management of the case”).
“Sequestration of witnesses lies in the discretion of the trial judge.” Zambarano v. Massachusetts Turnpike Auth., 350 Mass. at 487. See Commonwealth v. Herndon , 475 Mass. 324, 336 (2016) (trial judge properly found that defendant’s sister’s Facebook posts were sufficiently relevant to justify naming her as potential witness subject to sequestration order, and that adding her to witness list was not pretext to exclude her from courtroom); Commonwealth v. Perez , 405 Mass. 339, 343 (1989) (court has discretion to exempt police officer in charge of investigation from a sequestration order). Upon a violation of a sequestration order, a trial judge has discretion in taking remedial action. See, e.g., Commonwealth v. Neves , 474 Mass. 355, 367–368 (2016) (no abuse of discretion in denying motion to strike testimony of witness who had violated sequestration order where defense counsel stated he was “satisfied” with judge’s “instructional remedy” to jury); Custody of a Minor (No. 2) , 392 Mass. 719, 726 (1984) (trial judge may exclude testimony of person who violates sequestration order); Commonwealth v. Navarro , 2 Mass. App. Ct. 214, 223 (1974) (“but even in a case where a violation of sequestration order is wilful a trial judge might for good reason prefer to invoke contempt proceedings rather than declare a mistrial”).
The second sentence of this section is derived from the Sixth and Fourteenth Amendments to the United States Constitution, and Article 12 of the Declaration of Rights of the Massachusetts Constitution. See also Commonwealth v. Nwachukwu , 65 Mass. App. Ct. 112, 117–120 (2005). Civil litigants also have a right to be present during the trial. See White v. White , 40 Mass. App. Ct. 132, 141–142 (1996).