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In considering the following sections, it is necessary to recognize the distinction between hearsay rules and the requirements of the confrontation clause of the Sixth Amendment to the Constitution of the United States and Article 12 of the Declaration of Rights. The admissibility of an out-of-court statement offered for its truth is determined by a two-step inquiry. First, the statement must be admissible pursuant to the rules of evidence. Second, if offered by the Commonwealth, the statement must satisfy the requirements of the confrontation clause.
In Crawford v. Washington , 541 U.S. 36, 54 (2004), the United States Supreme Court explained that the Sixth Amendment expressed the common-law right of the defendant in a criminal case to confrontation, and that it was subject only to those exceptions that existed at the time of the amendment’s framing in 1791. As a result, the Supreme Court held that “testimonial statements” of a witness for the government in a criminal case who is not present at trial and subject to cross-examination are not admissible unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Id. at 53–54. Accord Commonwealth v. Gonsalves , 445 Mass. 1, 14 (2005), cert. denied, 548 U.S. 926 (2006) (“constitutional provision of the confrontation clause trumps [our own] rules of evidence”). In Commonwealth v. Lao , 450 Mass. 215, 223 (2007), the Supreme Judicial Court held that “the protection provided by art. 12 is coextensive with the guarantees of the Sixth Amendment to the United States Constitution.”
The United States Supreme Court and the Supreme Judicial Court use the primary purpose test to determine whether a statement is testimonial or nontestimonial. See Michigan v. Bryant , 562 U.S. 344 (2011); Davis v. Washington , 547 U.S. 813 (2006); Commonwealth v. Celester , 473 Mass. 553, 562–563 (2016); Commonwealth v. Beatrice , 460 Mass. 255 (2011); Commonwealth v. Smith , 460 Mass. 385 (2011); Commonwealth v. Rodriguez , 90 Mass. App. Ct. 315, 321 (2016). The primary purpose test’s key analysis is whether the statement is procured with the primary purpose of creating an out-of-court substitute for trial testimony. Commonwealth v. Beatrice, 460 Mass. at 260–262 (holding that statements are testimonial when “the primary purpose . . . is to establish or prove past events potentially relevant to later criminal prosecution”). The primary purpose test is objective, and “the relevant inquiry into the parties’ statements and actions is not the subjective or actual purpose of the particular parties, but the purpose that reasonable participants would have had, as ascertained from the parties’ statements and actions and the circumstances in which the encounter occurred.” Michigan v. Bryant, 562 U.S. at 360. See Commonwealth v. Cole , 473 Mass. 317, 329–330 (2015) (computer software used to calculate the statistical probability of a DNA match was not testimonial, as program’s creator would not anticipate that the probability statistics would be used to prosecute this particular defendant). See also Commonwealth v. Smith, 460 Mass. at 394 (“[T]he ‘primary purpose’ inquiry [is] objective. The parties’ subjective motives or intentions are largely irrelevant.”). The United States Supreme Court has noted that under the primary purpose test, “[s]tatements by very young children will rarely, if ever, implicate the Confrontation Clause.” Ohio v. Clark , 135 S. Ct. 2173, 2182 (2015).The following factors are relevant to an analysis under the primary purpose test.
(A) Whether an Emergency Exists. In Davis v. Washington , 547 U.S. 813, 822 (2006), the United States Supreme Court held as follows:
“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”
In Michigan v. Bryant , 562 U.S. 344, 363-366 (2011), the Supreme Court held that “whether an emergency exists and is ongoing is a highly context-dependent inquiry” and explained that “‘a conversation which begins as an interrogation to determine the need for emergency assistance’ can ‘evolve into testimonial statements,’” and “[a] conversation that begins with a prosecutorial purpose may nevertheless devolve into nontestimonial statements if an unexpected emergency arises.”
In Commonwealth v. Beatrice , 460 Mass. 255, 259–260 (2011), and Commonwealth v. Smith , 460 Mass. 385, 392–393 (2011), both decided after Michigan v. Bryant, the Supreme Judicial Court identified a nonexhaustive list of factors relevant to determining whether an ongoing emergency exists at the time a declarant makes statements to a law enforcement agent:
– whether an armed assailant poses a substantial threat to the public at large, the victim, or the responding officers;
– the type of weapon that has been employed;
– the severity of the victim’s injuries;
– the formality of the interrogation;
– the involved parties’ statements and actions; and
– whether the victim’s safety is at substantial imminent risk.
See Commonwealth v. Beatrice, 460 Mass. at 260–262; Commonwealth v. Smith, 460 Mass. at 393–394. See also Commonwealth v. Middlemiss , 465 Mass. 627, 635–636 (2013) (applying Beatrice factors to statements shooting victim made to 911 operator).
In Michigan v. Bryant , 562 U.S. 344, 366 (2011), the Supreme Court additionally explained that “whether an ongoing emergency exists is simply one factor—[although] an important factor—that informs the ultimate inquiry regarding the ‘primary purpose’ of an interrogation.” “[T]here may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony.” Id. at 358.
(B) The Formality of the Statements and the Actions of the Parties Involved. The formality of an interrogation is an important factor for determining whether a statement was procured with a primary purpose of creating an out-of-court substitute for trial testimony. Michigan v. Bryant, 562 U.S. at 367. In Michigan v. Bryant , 562 U.S. 344 (2011), the United States Supreme Court held that questioning that occurred in an exposed, public area, prior to the arrival of emergency medical services (when the declarant had been shot in the abdomen and the armed assailant was still at large), and in a disorganized fashion, was informal and “distinguishable from [a] formal station-house interrogation.” Id. at 366.
The statements of a declarant and the actions of both the declarant and interrogators also provide objective evidence of the interrogation’s primary purpose. Id. at 367. The Supreme Court explained that looking to the content of both the questions and the answers is an important factor in the primary purpose test because both interrogators and declarants may have mixed motives. Id. Police officers’ dual responsibilities as both first responders and criminal investigators may lead them to act with different motives simultaneously or in quick succession. Id. Likewise, during an ongoing emergency, victims may make statements they think will help end the threat to their safety but may not envision these statements being used for prosecution. Id. Alternatively, a severely injured victim may lack the ability to have any purpose at all in answering questions. Id. The inquiry is still objective, however, and it focuses on the understanding and purpose of a reasonable victim in the actual victim’s circumstances, which prominently include the victim’s physical state. Id.
(C) Whether the Statements Were Made to Non–Law Enforcement Personnel. In Ohio v. Clark , 135 S. Ct. 2173 (2015), the United States Supreme Court concluded that statements made to non–law enforcement personnel “are much less likely to be testimonial than statements to law enforcement officers.” Id. at 2181. The Supreme Judicial Court, by comparison, has stated that although “out-of-court statements made in response to questions from people who are not law enforcement agents” are not “per se testimonial,” they are “testimonial in fact” if “a reasonable person in the declarant’s position would anticipate the statement’s being used against the accused in investigating and prosecuting a crime.” Commonwealth v. Gonsalves , 445 Mass. 1, 11-13 (2005), cert. denied, 548 U.S. 926 (2006). See Commonwealth v. Celester , 473 Mass. 553, 563 (2016) (shooting victim’s response to bystander’s question, “Who shot you?” was not testimonial in fact because of gravity of victim’s injuries and immediate threat they posed to him).
“[W]here statements contained in hospital medical records demonstrate, on their face, that they were included for the purpose of medical treatment, that evident purpose renders the statements both nontestimonial as to the author of the record, and as falling within the scope of [G. L. c. 233,] § 79 .” Commonwealth v. Irene , 462 Mass. 600, 618 (2012).
Many cases since Crawford v. Washington , 541 U.S. 36 (2004), have challenged the admissibility of certificates attested to by nontestifying experts. In Melendez-Diaz v. Massachusetts , 557 U.S. 305 (2009), the United States Supreme Court held that the reasoning of Crawford applied to certain certificates of analysis that had been frequently introduced in criminal trials to establish that a substance was a “controlled substance” under G. L. c. 94C . The Supreme Court held that a drug certificate in the form of an affidavit by the analyst was a testimonial statement because it was prepared with the knowledge that it would be used at trial, and thus its admission in evidence over the defendant’s objection violated the confrontation clause of the Sixth Amendment because the technician or scientist who made the findings set forth in the certificate was not made available for questioning by the defense. As a result, the United States Supreme Court reversed the decision of the Appeals Court in Commonwealth v. Melendez-Diaz, 69 Mass. App. Ct. 1114 (2007) (unpublished), and effectively overruled the decision of the Supreme Judicial Court in Commonwealth v. Verde , 444 Mass. 279, 283–285 (2005). Analytical certificates made under oath by chemists or ballisticians that a substance is a drug, is of a specific weight, or both, or that a thing is a working firearm, “are functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination’” (emphasis deleted). Melendez-Diaz v. Massachusetts, 557 U.S. at 310–311, quoting Davis v. Washington , 547 U.S. 813, 830 (2006). See also Commonwealth v. Brown , 75 Mass. App. Ct. 361, 363 (2009) (applying Melendez-Diaz holding to ballistics certificate).
In Melendez-Diaz v. Massachusetts , 557 U.S. 305, 306–309 (2009), the Supreme Court explicitly rejected the idea that an analyst’s testimony was the only way to prove the chemical composition of a substance. In Commonwealth v. MacDonald , 459 Mass. 148 (2011), the Supreme Judicial Court stated as follows:
“Melendez-Diaz stands for the proposition that if a certificate of drug analysis is used, it must be accompanied by the testimony of an analyst so that the defendant’s right to confrontation is preserved. However, nowhere does the decision state that where . . . a prosecutor uses the opinion testimony of an expert to establish the composition of a drug, that testimony requires corroboration. . . . A prosecutor’s decision to proceed without a certificate of drug analysis does not violate the holding in Melendez-Diaz.”
Id. at 155–156.
In Commonwealth v. Zeininger , 459 Mass. 775 (2011), the Supreme Judicial Court held that statements contained in an annual certification and accompanying diagnostic records, attesting to the proper functioning of a breath-testing machine used to test the defendant’s blood alcohol content, were not testimonial, and that the defendant’s confrontation rights were not violated by the admission of the certification and records without the live testimony of the technician who had performed the certification test on the machine. Id. at 788–789. The critical distinction that “ma[de] all the difference” was that the certificate of analysis in Melendez-Diaz resembled “the type of ‘ex parte in-court testimony or its functional equivalent’ at the nucleus of the confrontation clause” because it was particularized and performed in aid of a prosecution seeking to prove the commission of a past act, while the Office of Alcohol Testing certification records were generalized and performed prospectively in primary aid of the administration of a regulatory program. Id., quoting Crawford v. Washington , 541 U.S. 36, 51–52 (2004).
In Bullcoming v. New Mexico , 564 U.S. 647 (2011), the United States Supreme Court decided five to four that a blood alcohol analysis report, which certified that the defendant’s blood alcohol concentration was well above the threshold for aggravated driving while intoxicated under New Mexico law, and which was introduced at trial through the testimony of an analyst who had not performed the certification, was testimonial within the meaning of the confrontation clause. The Supreme Court found that the laboratory report in Bullcoming resembled those in Melendez-Diaz “[i]n all material respects.” Id. at 664.
In Commonwealth v. Parenteau , 460 Mass. 1 (2011), the Commonwealth introduced in evidence a certificate from the Registry of Motor Vehicles attesting that a notice of license suspension or revocation was mailed to the defendant; the Commonwealth did not present any testimony from a witness on behalf of the registry. The Supreme Judicial Court held that the certificate was testimonial in nature and that its admission without testimony from the preparers violated the confrontation clause. Id. at 8–9. The court explained that one “must examine carefully the purpose for which [a document is] created” when “determining the admissibility of a particular business record.” Id. at 10. In Parenteau, the business record was created two months after the criminal complaint was issued and therefore was “plainly” created to establish an element of the statutory offense at trial. Id. at 8. Importantly, the court noted that “[i]f such a record had been created at the time the notice was mailed and preserved by the registry as part of the administration of its regular business affairs, then it would have been admissible at trial.” Id. at 10. See also Commonwealth v. Ellis , 79 Mass. App. Ct. 330 (2011).
The admission of a properly completed and returned G. L. c. 209A return of service absent the testimony of the officer who completed it does not violate a defendant’s confrontation clause rights. Commonwealth v. Shangkuan , 78 Mass. App. Ct. 827, 833–834, 837 (2011) (“[T]he primary purpose for which the return of service in this case was created is to serve the routine administrative functions of the court system, ensuring that the defendant received the fair notice to which he is statutorily and constitutionally entitled . . . , establishing a time and manner of notice for purposes of determining when the order expires or is subject to renewal, and assuring the plaintiff that the target of the order knows of its existence. The return of service here was not created for the purpose of establishing or proving some fact at a potential future criminal trial.”). See also Commonwealth v. Bigley , 85 Mass. App. Ct. 507, 515–516 (2014) (defendant’s Registry of Motor Vehicles record may be admitted without testimony as it is an automatically generated list regularly maintained by registry in the administration of its regular business affairs); Commonwealth v. Fox , 81 Mass. App. Ct. 244, 246 (2012) (sexual offender registry records are admissible as business records without violation of confrontation clause because they are not created to prove fact at trial). In Commonwealth v. Carr , 464 Mass. 855, 876 (2013), the Supreme Judicial Court held that a statement by the medical examiner in the death certificate that the victim’s death was the result of a “gunshot wound of the head with fracture of the skull and perforation of the brain” was testimonial based on the obvious purpose for which it will be used in the case of a homicide and the statutory duties of the medical examiner. Id. at 876.
In the years since Melendez-Diaz v. Massachusetts , 557 U.S. 305 (2009), was decided, the United States Supreme Court and the Supreme Judicial Court have considered to what extent that case alters procedures governing the admissibility of expert testimony. That debate is ongoing.
In Commonwealth v. Barbosa , 457 Mass. 773, 785–787 (2010), the Supreme Judicial Court held that Melendez-Diaz does not “purport to alter the rules governing expert testimony” and does not, therefore, forbid one expert from testifying and offering an opinion on the basis of an examination of tests performed and data collected by others, so long as the witness does not testify to the details of the hearsay on direct-examination. See also Commonwealth v. Phim , 462 Mass. 470, 479 (2012), and Commonwealth v. Greineder , 458 Mass. 207, 235–239 (2010), vacated and remanded in light of Williams v. Illinois , 132 S. Ct. 2221 (2012).
In Bullcoming v. New Mexico , 564 U.S. 647 (2011), the United States Supreme Court held five to four that admission in evidence of a blood alcohol analysis report, which certified that the defendant’s blood alcohol concentration was well above the threshold for aggravated driving while intoxicated under New Mexico law, and which was introduced at trial through the testimony of an analyst who had not performed the certification, violated the confrontation clause. The Supreme Court found that the laboratory report in Bullcoming resembled those in Melendez-Diaz “[i]n all material respects.” Id. at 664.
In Commonwealth v. Munoz , 461 Mass. 126, 132 (2011), vacated and remanded in light of Williams v. Illinois , 132 S. Ct. 2221 (2012), the Supreme Judicial Court opined that Bullcoming did not call Barbosa into question. In Munoz, the court affirmed the distinction between a substitute analyst’s permissible testimony as to independent opinions based on data generated by a nontestifying analyst and a substitute analyst’s impermissible testimony as to the testing analyst’s reports and conclusions.
Several days after the decision in Munoz, the United States Supreme Court held five to four that the testimony of a forensic specialist identifying a match between the defendant’s blood sample and a DNA sample taken from the victim’s vaginal swab was admissible even where the specialist did not work for the outside lab that had produced the DNA sample. Williams v. Illinois , 132 S. Ct. at 2227 (2012). Writing for four Justices, Justice Alito found that the specialist’s testimony regarding the DNA match was not admitted for its truth, but for the limited purpose of explaining the basis for her own independent expert opinion. Id. at 2236. In the opinion of the same four Justices, the underlying DNA report was nontestimonial since it was prepared to catch an unknown rapist who was still at large, not for the primary purpose of accusing a targeted individual. Id. at 2243. In a concurrence, Justice Thomas found no confrontation clause violation because the underlying DNA report lacked “the requisite ‘formality and solemnity’ to be considered ‘testimonial’ for purposes of the confrontation clause.” Id. at 2260 (Thomas, J., concurring). In dissent, Justice Kagan, joined by three other Justices, found the DNA report to be precisely the sort of testimonial evidence barred by the decisions in Melendez-Diaz and Bullcoming. Id. at 2273–2274, 2277 (Kagan, J., dissenting).
In Commonwealth v. Greineder , 464 Mass. 580, 592–602 (2013), on remand from the United States Supreme Court, the Supreme Judicial Court affirmed its earlier ruling. In that case, the testifying DNA analyst was not the analyst who had performed the tests and written the report on which her opinion testimony was based, although she was the forensic laboratory director of the same company. The court reasoned that Massachusetts evidence law, which permits opinion testimony that is based on data that is hearsay, but prohibits the admission of such a hearsay basis on direct examination of the expert, provides the defendant with more protection than the confrontation clause as interpreted by the United States Supreme Court in Williams v. Illinois , 132 S. Ct. 2221 (2012), especially where, as here, the expert was able to be meaningfully cross-examined on the reliability of the testing procedures that produced the data underlying her opinion.
Two years later, in Commonwealth v. Jones , 472 Mass. 707, 713–715 (2015), the Supreme Judicial Court reversed a conviction based on testimony of a DNA expert as to the location on the victim’s body from which the DNA samples had been collected, where the DNA expert’s knowledge of how the DNA samples had been gathered was derived from a form completed by the nurse who had collected the specimens from the victim’s body. The court concluded that this violated two principles of Greineder: one, the expert may not testify to hearsay on direct examination, and two, the expert must have the capacity to be meaningfully cross-examined about the reliability of the underlying data.
Under certain conditions, the confrontation clause of the Federal and State Constitutions does not bar the admission of testimonial statements, introduced for purposes other than establishing the truth of the matter asserted, in criminal cases even though the declarant is not available for cross-examination. Commonwealth v. Hurley , 455 Mass. 53, 65 n.12 (2009). See Commonwealth v. Pelletier , 71 Mass. App. Ct. 67, 69–72 (2008) (wife’s statement was properly admitted for a limited purpose other than its truth even though she did not testify at the defendant’s trial).
Based on differences in the language of the Sixth Amendment (defendant’s right to be “confronted with the witnesses against him”) and Article 12 of the Declaration of Rights (defendant’s right to “meet the witnesses against him face to face”), the State Constitution has been interpreted by the Supreme Judicial Court to provide a criminal defendant more protection than the Sixth Amendment in certain respects. Compare Maryland v. Craig, 497 U.S. 836, 844–850 (1990) (confrontation clause does not guarantee criminal defendants an absolute right to a face-to-face meeting with the witnesses against them at trial; upholding constitutionality of a procedure whereby a young child alleged to have been the victim of a sexual assault testified at trial outside the courtroom but was visible to defendant and jury on a monitor), with Commonwealth v. Amirault , 424 Mass. 618, 631–632 (1997) (Article 12 requires that the jury be allowed to assess the encounter between the witness and the defendant with the witness testifying in the face of the defendant; in certain circumstances, however, the encounter between the defendant and the child witness may take place outside the courtroom and be presented at trial by videotape; see G. L. c. 278, § 16D ). See also Commonwealth v. Bergstrom , 402 Mass. 534, 541–542 (1988). However, when the question involves the relationship between the hearsay rule and its exceptions, on the one hand, and the right to confrontation, on the other hand, “the protection provided by art. 12 is coextensive with the guarantees of the Sixth Amendment to the United States Constitution.” Commonwealth v. DeOliveira , 447 Mass. 56, 57 n.1 (2006), citing Commonwealth v. Whelton , 428 Mass. 24, 28 (1998), and Commonwealth v. Childs , 413 Mass. 252, 260 (1992).
The right to confrontation may be waived. See Commonwealth v. Szerlong , 457 Mass. 858, 860–861 (2010) (doctrine of forfeiture by wrongdoing extinguishes right to confrontation); Commonwealth v. Chubbuck , 384 Mass. 746, 751 (1981) (defendant waived right to be present at trial based on persistent disruptive behavior in the courtroom); Commonwealth v. Flemmi , 360 Mass. 693, 694 (1971) (if defendant is voluntarily absent after trial begins, “the court may proceed without the defendant”). See also Mass. R. Crim. P. 18(a)(1) (“If a defendant is present at the beginning of a trial and thereafter absents himself without cause or without leave of court, the trial may proceed to a conclusion in all respects except the imposition of sentence as though the defendant were still present.”). A defendant must be competent to plead guilty in order to waive his or her presence at trial. Commonwealth v. L’Abbe , 421 Mass. 262, 268–269 (1995).
The following definitions apply under this Article:
“Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
“Declarant” means the person who made the statement.
“Hearsay” means a statement that
the declarant does not make while testifying at the current trial or hearing, and
a party offers in evidence to prove the truth of the matter asserted in the statement.
A statement that meets the following conditions is not hearsay:
The declarant testifies and is subject to cross-examination about a prior statement, and the statement
(A) (i) is inconsistent with the declarant’s testimony; (ii) was made under oath before a grand jury, or at an earlier trial, a probable cause hearing, or a deposition, or in an affidavit made under the penalty of perjury in a G. L. c. 209Aproceeding; (iii) was not coerced; and (iv) is more than a mere confirmation or denial of an allegation by the interrogator;
(B) [for a discussion of prior consistent statements, which are not admissible substantively under Massachusetts law, see Section 613(b), Prior Statements of Witnesses, Limited Admissibility: Prior Consistent Statements]; or
(C) identifies a person as someone the declarant perceived earlier.
The statement is offered against an opposing party and
(A) was made by the party;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject, or who was authorized to make true statements on the party’s behalf concerning the subject matter;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator or joint venturer during the cooperative effort and in furtherance of its goal, if the existence of the conspiracy or joint venture is shown by evidence independent of the statement.
Subsection (a). This subsection is taken from Commonwealth v. Baker , 20 Mass. App. Ct. 926, 928 n.3, (1985), quoting with approval the definition of a “statement” contained in Fed. R. Evid. 801(a) and Proposed Mass. R. Evid. 801(a).
To be hearsay, the statement, whether verbal or nonverbal, must be intended as an assertion. See Bacon v. Charlton , 61 Mass. 581, 586 (1851) (distinguishing between groans and exclamations of pain, which are not hearsay, and anything in the nature of narration or statement). Cf. Commonwealth v. DeJesus , 87 Mass. App. Ct. 198, 201–202 (2015) (checkmarks on photocopies of currency made to indicate a match with bills in defendant’s pocket are hearsay when offered to prove the match).
“[C]onduct can serve as a substitute for words, and to the extent it communicates a message, hearsay considerations apply.” Commonwealth v. Gonzalez , 443 Mass. 799, 803 (2005). “[O]ut-of-court conduct, which by intent or inference expresses an assertion, has been regarded as a statement and therefore hearsay if offered to prove the truth of the matter asserted. See Bartlett v. Emerson , [73 Mass. 174, 175–176] (1856) (act of pointing out boundary marker inadmissible hearsay).” Opinion of the Justices , 412 Mass. 1201, 1209 (1992) (legislation that would permit the Commonwealth to admit evidence of a person’s refusal to take a breathalyzer test violates the privilege against self-incrimination because it reveals the person’s thought process and is thus tantamount to an assertion).
Subsection (b). This subsection is identical to Fed. R. Evid. 801(b). While no Massachusetts case has defined “declarant,” the term has been commonly used in Massachusetts case law to mean a person who makes a statement. See, e.g., Commonwealth v. DeOliveira , 447 Mass. 56, 57–58 (2006); Commonwealth v. Zagranski , 408 Mass. 278, 285 (1990). See also Webster’s Third New International Dictionary 586 (2002), which defines “declarant” as a person “who makes a declaration” and “declaration” as “a statement made or testimony given by a witness.”
Subsection (c). This subsection is derived from Commonwealth v. Cohen , 412 Mass. 375, 393 (1992), quoting McCormick, Evidence § 246, at 729 (3d ed. 1984), and Fed. R. Evid. 801(c). See Commonwealth v. Cordle , 404 Mass. 733, 743 (1989); Commonwealth v. Randall , 50 Mass. App. Ct. 26, 27 (2000). See also Commonwealth v. Silanskas , 433 Mass. 678, 693 (2001) (“Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.”); G.E.B. v. S.R.W. , 422 Mass. 158, 168 (1996), quoting Commonwealth v. Keizer , 377 Mass. 264, 269 n.4 (1979) (“Hearsay is an ‘extrajudicial statement offered to prove the truth of the matter asserted.’”); Commonwealth v. DelValle , 351 Mass. 489, 491 (1966) (“The broad rule on hearsay evidence interdicts the admission of a statement made out of court which is offered to prove the truth of what it asserted.”). If a witness at trial affirms the truth of a statement made out of court, the witness adopts it and it is not hearsay. Commonwealth v. Sanders , 451 Mass. 290, 302 n.8 (2008). Whether the witness has adopted his or her out-of-court statement is a question of fact for the jury and not a preliminary question for the judge. Id. at 302.
“The theory which underlies exclusion is that with the declarant absent the trier of fact is forced to rely upon the declarant’s memory, truthfulness, perception, and use of language not subject to cross-examination.” Commonwealth v. DelValle, 351 Mass. at 491.
Evidence Admitted for Nonhearsay Purpose. “The hearsay rule forbids only the testimonial use of reported statements.” Commonwealth v. Miller , 361 Mass. 644, 659 (1972). Accord Commonwealth v. Fiore , 364 Mass. 819, 824 (1974), quoting Wigmore, Evidence § 1766 (3d ed. 1940) (out-of-court utterances are hearsay only when offered “for a special purpose, namely, as assertions to evidence the truth of the matter asserted”). Thus, when out-of-court statements are offered for a reason other than to prove the truth of the matter asserted or when they have independent legal significance, they are not hearsay. There are many nonhearsay purposes for which out-of-court statements may be offered, such as the following:
– Proof of “Verbal Acts” or “Operative” Words. See Commonwealth v. McLaughlin , 431 Mass. 241, 246, (2000) (“[e]vidence of the terms of that oral agreement was not offered for the truth of the matters asserted, but as proof of an ‘operative’ statement, i.e., existence of a conspiracy”); Charette v. Burke , 300 Mass. 278, 280–281 (1938) (father’s remark to a child before leaving the child to go into the house [“Wait where you are while I go inside to get you a cookie”] was a “verbal act” and not hearsay); Commonwealth v. Perez , 89 Mass. App. Ct. 51, 55–56 (2016) (withdrawal and deposit slips used by defendant accused of theft from customer bank accounts were legally operative verbal acts and not hearsay); Shimer v. Foley, Hoag & Eliot, LLP , 59 Mass. App. Ct. 302, 310 (2003) (evidence of the terms of a contract used to establish lost profits is not hearsay because it is not an assertion).
– To Show Notice or Other Effect on Hearer. See Commonwealth v. Spinucci , 472 Mass. 872, 882–883 (2015) (statements made within defendant’s earshot, indicating codefendant’s possession of a knife, were not hearsay when offered to show defendant’s knowledge that codefendant had a knife); Pardo v. General Hosp. Corp. , 446 Mass. 1, 18–19 (2006) (memorandum admissible to show notice); A.W. Chesterton Co. v. Massachusetts Insurers Insolvency Fund , 445 Mass. 502, 515–516 (2005) (knowledge of insurance reserves not listed in response to question on insurance application regarding potential losses); Commonwealth v. Bregoli , 431 Mass. 265, 273 (2000) (other declarants’ knowledge of facts relating to crime to rebut Commonwealth’s claim that only killer would be aware of facts); Vassallo v. Baxter Healthcare Corp. , 428 Mass. 1, 17 (1998) (other complaints about product admissible as evidence that manufacturer was on notice of defect); Mailhiot v. Liberty Bank & Trust Co. , 24 Mass. App. Ct. 525, 529 n.5 (1987) (instructions given to the plaintiff by bank examiners about how to handle a problem were not assertions and thus not hearsay). Cf. Commonwealth v. Daley , 55 Mass. App. Ct. 88, 94 n.9 (2002) (a passerby’s remark [“Hey, are you all right”], if offered as an assertion that the victim was in distress, would be hearsay, but if offered to explain why the defendant fled, and thus not as an assertion, would not be hearsay), S.C. , 439 Mass. 558 (2003).
– To Show “the State of Police Knowledge.” Out-of-court statements to a police investigator may sometimes be admitted for the nonhearsay purpose of showing “the state of police knowledge,” because “an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct.” Commonwealth v. Cohen , 412 Mass. 375, 393 (1992). See Commonwealth v. Miller , 361 Mass. 644, 659 (1972) (out-of-court statements are admissible when offered to explain why police approached defendant to avoid misimpression that police acted arbitrarily in singling out defendant for investigation). However, “[t]estimony of this kind carries a high probability of misuse, because a witness may relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports[,] even when not necessary to show state of police knowledge.” (quotation omitted). Commonwealth v. Rosario , 430 Mass. 505, 510 (1999) Such evidence, therefore, (1) is permitted only through the testimony of a police officer, who must testify only on the basis of his or her own knowledge; (2) is limited to the facts required to establish the officer’s state of knowledge; (3) is allowed only when the police action or state of police knowledge is relevant to an issue in the case. Id. at 509–510. Cross-Reference: Section 105, Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes.
– As Circumstantial Evidence of Declarant’s State of Mind. Where the declarant asserts his or her own state of mind (usually by words describing the state of mind), the statement is hearsay and is admissible only if it falls within the hearsay exception. See Section 803(3)(B), Hearsay Exceptions; Availability of Declarant Immaterial: Then- Existing Mental, Emotional, or Physical Condition, and the accompanying note. However, when the statement conveys the speaker’s state of mind only circumstantially (usually because the words themselves do not describe the state of mind directly), it is not hearsay. See, e.g., Commonwealth v. Romero , 464 Mass. 648, 652 n.5 (2013) (defendant’s statement that passenger in his vehicle had shown him a gun was admissible to show defendant’s knowledge that gun was in car, as well as being admission of a party-opponent); Commonwealth v. Montanez , 439 Mass. 441, 447–448 (2003) (evidence of victim’s statement to her friend was properly admitted to establish victim’s state of mind [concern for her family’s shame and diminished economic circumstances if abuser were removed from her home], which helped explain her delay in reporting an episode of sexual abuse and thus was not hearsay). Contrast Section 803(3)(B)(ii), Hearsay Exceptions; Availability of Declarant Immaterial: Then-Existing Mental, Emotional, or Physical Condition.
– As Circumstantial Evidence of the Nature of a Place or a Thing. Sometimes out-of-court statements that do not directly describe the nature or character of a place or an object can nevertheless be probative of that nature or character. In such cases, the statements are treated as nonhearsay. See, e.g., Commonwealth v. Massod , 350 Mass. 745, 748 (1996) (statements over telephone not hearsay when used to show that telephone was apparatus used for registering bets on horse races); Commonwealth v. DePina , 75 Mass. App. Ct. 842, 850 (2009) (conversation of police officer on defendant’s cellular telephone was admissible as evidence of nature of the cellular telephone as instrument used in cocaine distribution); Commonwealth v. Washington , 39 Mass. App. Ct. 195, 199–201 (1995) (conversations of police officer with callers to defendant’s beeper not hearsay when used to show that beeper was used for drug transactions). See also Commonwealth v. Purdy , 459 Mass. 442, 452 (2011) (words soliciting sexual act have independent legal significance and are not hearsay); Commonwealth v. Mullane , 445 Mass. 702, 711 (2006) (portion of conversation regarding negotiation for “extras” between police detective and “massage therapist” were not hearsay).
Prior Statements Used to Impeach or Rehabilitate. Ordinarily, the out-of-court statements of a testifying witness are hearsay if they are offered to prove the truth of the statement. Prior inconsistent statements are usually admissible only for the limited purpose of impeaching the credibility of the witness. But see Subsection (d) (1)(A) and the accompanying note. A witness’s prior consistent statements are not admissible substantively under Massachusetts law, but they may be admissible for certain other purposes. See for example Section 413, First Complaint of Sexual Assault, and Section 613(b), Prior Statements of Witnesses, Limited Admissibility: Prior Consistent Statements. Cross-Reference: Section 105, Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes.
Nonverbal Conduct Excluded as Hearsay. See Commonwealth v. Todd , 394 Mass. 791, 797 (1985) (explaining that the destruction of her marriage license could be considered “an extrajudicial, nonverbal assertion of the victim’s intent which, if introduced for the truth of the matter asserted, would be, on its face, objectionable as hearsay”); Bartlett v. Emerson , 73 Mass. 174, 175–176 (1856) (testimony about another person’s act of pointing out a boundary marker was an assertion of a fact and thus inadmissible as hearsay); Commonwealth v. Ramirez , 55 Mass. App. Ct. 224, 227 (2002) (a business card offered to establish a connection between the defendant and a New York address on the card was hearsay because it was used as an assertion of a fact); Commonwealth v. Kirk , 39 Mass. App. Ct. 225, 229–230 (1995) (conduct of a police officer who served a restraining order on the defendant offered to establish the identity of that person as the perpetrator was hearsay because its probative value depended on the truth of an assertion made in the papers by the victim that the defendant was the same person named in the complaint).
When an out-of-court statement is offered for a nonhearsay purpose, after considering the effectiveness of a Section 105 limiting instruction it is necessary to weigh the risk of unfair prejudice that would likely result if the jury misused the statement. See Section 403, Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reason. In criminal cases, that risk can have confrontation clause implications.
Cross-Reference: Section 105, Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes; Section 803(3)(B)(ii), Hearsay Exceptions; Availability of Declarant Immaterial: Then-Existing Mental, Emotional, or Physical Condition.
Subsection (d). This subsection addresses out-of-court statements that are admissible for their truth. Section 613, Prior Statements of Witnesses, Limited Admissibility, addresses prior statements for the limited purposes only of impeachment and rehabilitation.
Subsection (d)(1)(A). Massachusetts generally adheres to the orthodox rule that prior inconsistent statements are admissible only for the limited purpose of impeaching the credibility of a witness’s testimony at trial and are inadmissible hearsay when offered to establish the truth of the matters asserted. See Section 613(a)(1), Prior Statements of Witnesses, Limited Admissibility: Prior Inconsistent Statements: Examining Own Witness, and Section 613(a)(2), Prior Statements of Witnesses, Limited Admissibility: Prior Inconsistent Statements: Examining Other Witness. However, in Commonwealth v. Daye , 393 Mass. 55, 66 (1984), the Supreme Judicial Court adopted the principles of Proposed Mass. R. Evid. 801(d)(1)(A) allowing prior inconsistent statements made before a grand jury to be admitted substantively. The Daye rule has been extended to cover prior inconsistent statements made in other proceedings as well. See Commonwealth v. Sineiro , 432 Mass. 735 (2000) (probable cause hearings); Commonwealth v. Newman , 69 Mass. App. Ct. 495 (2007) (testimony given at an accomplice’s trial). Commonwealth v. Ragland , 72 Mass. App. Ct. 815, 823 n.9 (2008), made it clear in dicta that the same principles would apply to admission of prior inconsistent deposition evidence given under oath. See also Commonwealth v. Belmer , 78 Mass. App. Ct. 62, 64 (2010) (prior inconsistent statement may be admissible for its full probative value where the witness has signed a written affidavit under penalties of perjury in support of an application for a restraining order pursuant to G. L. c. 209A and that witness is subject to cross-examination).
Two general requirements for the substantive use of such statements are (1) that there is an opportunity to cross-examine the declarant and (2) that the prior testimony was in the declarant’s own words and was not coerced. In addition, if the prior inconsistent statement is relied on to establish an essential element of a crime, the Commonwealth must offer at least some additional evidence on that element in order to support a conclusion of guilt beyond a reasonable doubt. Commonwealth v. Daye, 393 Mass. at 73–75. However, the additional evidence need not be sufficient in itself to establish the element. Commonwealth v. Noble , 417 Mass. 341, 345 & n.3 (1994). The corroboration requirement thus concerns the sufficiency of the evidence, not its admissibility. . Commonwealth v. McGhee , 472 Mass. 405, 422–423 (2015); Commonwealth v. Clements , 436 Mass. 190, 193 (2002).
Feigning Lack of Memory. Upon a determination by the judge that a witness is feigning lack of memory, a prior statement may be admitted substantively as inconsistent with the claimed lack of memory, subject to the requirements of this subsection, Section 801(d)(1)(A). Commonwealth v. Neves , 474 Mass. 355, 366–367 (2016); Commonwealth v. Sineiro , 432 Mass. 735, 745 (2000). Before the prior statement may be admitted substantively, the judge must make a preliminary finding of fact under Section 104(a), Preliminary Questions: In General, that the witness is feigning an inability to remember. Commonwealth v. Evans , 439 Mass. 184, 190 (2003); Commonwealth v. Silvester , 89 Mass. App. Ct. 350, 355–356 (2016). If supported by evidence, this finding is conclusive. Commonwealth v. Evans, 439 Mass. at 190. At a party’s request, the judge may conduct a voir dire to make such a finding. Commonwealth v. Sineiro, 432 Mass. at 739. A judge’s finding of witness feigning is often based on a careful examination of the witness’s demeanor and testimony in light of the judge’s experience. See Id. at 740; Commonwealth v. Newman , 69 Mass. App. Ct. 495, 497 (2007). See, e.g., Commonwealth v. Figueroa , 451 Mass. 566, 573–574, 576–577 (2008) (judge concluded that witness was feigning when he was able to recall many specific events of the evening in question but was unable to recall the portion of his grand jury testimony in which he said the defendant admitted to shooting someone, and a transcript failed to refresh his memory); Commonwealth v. Tiexeira , 29 Mass. App. Ct. 200, 204 (1990) (judge observed how the witness’s detailed account of the evening was conspicuously vague regarding the defendant’s encounter with the victim). Regardless of the judge’s conclusion at voir dire, the jury shall not be told of the judge’s preliminary determination that the witness is feigning. Commonwealth v. Sineiro, 432 Mass. at 742 n.6.
Cross-Reference: Section 613, Prior Statements of Witnesses, Limited Admissibility.
Subsection (d)(1)(B). In Commonwealth v. Cruz , 53 Mass. App. Ct. 393, 401 & n.10 (2001), the Appeals Court noted that the Supreme Judicial Court has not adopted Proposed Mass. R. Evid. 801(d)(1)(B) as to the admission of prior consistent statements as substantive evidence, rather than merely for the purpose of rehabilitating the credibility of a witness-declarant who has been impeached on the ground that his or her trial testimony is of recent contrivance. See also Commonwealth v. Thomas , 429 Mass. 146, 161–162 (1999) (prior consistent statement admissible to rebut suggestion of recent contrivance); Commonwealth v. Kater , 409 Mass. 433, 448 (1991) (“prior consistent statements of a witness may be admitted where the opponent has raised a claim or inference of recent contrivance, undue influence, or bias”); Commonwealth v. Zukoski , 370 Mass. 23, 26–27 (1976) (“a witness’s prior consistent statement is admissible where a claim is made that the witness’s in-court statement is of recent contrivance or is the product of particular inducements or bias. . . . Unless admissible on some other ground to prove the truth of the facts asserted, such a prior consistent statement is admissible only to show that the witness’s in-court testimony is not the product of the asserted inducement or bias or is not recently contrived as claimed”).
Cross-Reference: Section 413, First Complaint of Sexual Assault.
Subsection (d)(1)(C). This subsection is derived from Commonwealth v. Cong Duc Le , 444 Mass. 431, 432, 436–437 (2005), where the Supreme Judicial Court “adopt[ed] the modern interpretation of the rule” expressed in Proposed Mass. R. Evid. 801(d)(1)(C), which, like its Federal counterpart, states that “[a] statement is not hearsay . . . if ‘[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . one of identification of a person [made] after perceiving [the person].’” It is not necessary that the declarant make an in-court identification. See Commonwealth v. Machorro , 72 Mass. App. Ct. 377, 379–380 (2008) (police officer allowed to testify to extrajudicial identification of the assailant by two victims who were present at trial and subject to cross-examination even though one victim could not identify the assailant [although she recalled being present at his arrest and was certain that the person arrested was the assailant] and the other victim was not asked to make an identification at trial). The third party’s testimony about the identification may not be admitted until after the Commonwealth has questioned the eyewitness about the identification. Commonwealth v. Herndon , 475 Mass. 324, 335 (2016). This subsection applies to an out-of-court identification based on a witness’s familiarity with the person identified and is not limited to a photographic array, showup, or other identification procedure. Commonwealth v. Adams , 458 Mass. 766, 770–776 (2011). Multiple versions of an extrajudicial identification may be admissible for substantive purposes. Id. at 773.
Under this subsection, whether and to what extent third-party testimony about a witness’s out-of-court identification may be admitted in evidence no longer turns on whether the identifying witness acknowledges or denies the extrajudicial identification at trial. See Commonwealth v. Cong Duc Le, 444 Mass. at 439–440. The third-party testimony will be admitted for substantive purposes, as long as the cross-examination requirement is satisfied. Id. As the court explained, it is for the jury to “determine whose version to believe—the witness who claims not to remember or disavows the prior identification (including that witness’s version of what transpired during the identification procedure), or the observer who testifies that the witness made a particular prior identification.” Id. at 440. The court concluded that
“evidence of the prior identification will be considered along with all the other evidence that bears on the issue of the perpetrator’s identity. The mere fact that the prior identification is disputed in some manner does not make it unhelpful to the jury in evaluating the over-all evidence as to whether the defendant on trial was the one who committed the charged offense.”
Id. See also Commonwealth v. Silvester , 89 Mass. App. Ct. 350, 357 (2016) (admission of videotape of witness selecting photograph of defendant from photo array did not violate defendant’s confrontation rights where witness was available for cross-examination).
Cross-Reference: Section 1112(d), Eyewitness Identification: Testimony of Third-Party Observer.
Facts Accompanying an Identification. In Commonwealth v. Adams , 458 Mass. 766, 772 (2011), the Supreme Judicial Court held as follows:
“Absent context, an act or statement of identification is meaningless. . . . [I]dentification evidence must be accompanied either by some form of accusation relevant to the issue before the court, or some form of exclusionary statement, in order to be relevant to the case. The extent of the statement needed to provide context will vary from case to case . . . . We emphasize that the rule [is] not intended to render a witness’s entire statement admissible but only so much as comprises relevant evidence on the issue of identification.”
This issue should be the subject of a motion in limine. See also Commonwealth v. Walker , 460 Mass. 590, 608–609 (2011). Cross-Reference: Section 1112, Eyewitness Identification.
Subsection (d)(2). This subsection defines admissions by a party-opponent as not hearsay, consistent with recent Supreme Judicial Court decisions, the Federal Rules of Evidence, and the Proposed Massachusetts Rules of Evidence. See Commonwealth v. Mendes , 441 Mass. 459, 467 (2004); Commonwealth v. Allison , 434 Mass. 670, 676 n.5 (2001); Commonwealth v. DiMonte , 427 Mass. 233, 243 (1998), citing Proposed Mass. R. Evid. 801(d)(2); Fed. R. Evid. 801(d)(2); Proposed Mass. R. Evid. 801(d)(2). In some cases, the court has ruled that out-of-court statements by a party-opponent are admissible as an exception to the hearsay rule. See Commonwealth v. DeBrosky , 363 Mass. 718, 724 (1973); Commonwealth v. McKay , 67 Mass. App. Ct. 396, 403 n.13 (2006).
Subsection (d)(2)(A). This subsection is derived from Commonwealth v. Marshall , 434 Mass. 358, 365–366 (2001), quoting P.J. Liacos, Massachusetts Evidence § 8.8.1 (7th ed. 1999). See also Commonwealth v. McCowen , 458 Mass. 461, 485–486 (2010) (defendant’s out-of-court statement offered for its truth is hearsay and not admissible when not offered by the Commonwealth); Care & Protection of Sophie , 449 Mass. 100, 110 n.14 (2007) (no requirement that the statement of a party-opponent be contradictory or against the party-opponent’s interest); Commonwealth v. Bonomi , 335 Mass. 327, 347 (1957) (“An admission in a criminal case is a statement by the accused, direct or implied, of facts pertinent to the issue, which although insufficient in itself to warrant a conviction tends in connection with proof of other facts to establish his guilt”); Hopkins v. Medeiros , 48 Mass. App. Ct. 600, 613 (2000) (“The evidence of [the defendant’s] admission to sufficient facts was admissible as an admission of a party opponent.”); Section 410, Pleas, Offers of Pleas, and Related Statements. Compare Commonwealth v. Nawn , 394 Mass. 1, 4 (1985) (The “longstanding rule [is] that if a defendant is charged with a crime and unequivocally denies it, that denial is not admissible in evidence.”), with Commonwealth v. Lavalley , 410 Mass. 641, 649 (1991) (“It is well-settled that false statements made by a defendant are admissible to show consciousness of guilt.”). In Lavalley, the Supreme Judicial Court stated that the Commonwealth could show that a defendant’s failure to include certain facts in his pretrial statement to the police that the defendant included in his testimony at trial was evidence of his consciousness of guilt and did not amount to an impermissible comment on his denial or failure to deny the offense. Id. at 649–650. See also Commonwealth v. Lewis , 465 Mass. 119, 127 (2013) (when the defendant’s statement is ambiguous but could be construed as consciousness of guilt [“I’ll beat this”], it is admissible, and it is left to the parties to argue what meaning it should be given). However, if an extrajudicial statement of the defendant is an unequivocal denial of an accusation, that statement and the accusation it denies are inadmissible as hearsay. Commonwealth v. Spencer , 465 Mass. 32, 46 (2013).
While a discussion of the constitutional and common-law principles governing the admissibility of confessions is beyond the scope of this Guide, the law is that a statement, admission, or confession by a person is not admissible in a criminal proceeding if it was not made voluntarily. See, e.g., Commonwealth v. Cryer , 426 Mass. 562, 571 (1998); Commonwealth v. Tavares , 385 Mass. 140, 146 (1982); Commonwealth v. Mahnke , 368 Mass. 662, 679–691 (1975).
Under this subsection, deposition answers by an opposing party, Mass. R. Civ. P. 32(a)(2), interrogatory answers by an opposing party, G. L. c. 231, § 89 , and responses to requests for admission of facts, Mass. R. Civ. P. 36(b), are not subject to a hearsay objection. See Federico v. Ford Motor Co. , 67 Mass. App. Ct. 454, 460–461 (2006); Beaupre v. Cliff Smith & Assocs. , 50 Mass. App. Ct. 480, 484 n.8 (2000).
Criminal Cases. The principle that the admission of a party-opponent, without more, is admissible is superseded by the requirements of the confrontation clause:
“[W]here a nontestifying codefendant’s statement expressly implicates the defendant, leaving no doubt that it would prove to be powerfully incriminating, the confrontation clause of the Sixth Amendment to the United States Constitution has been offended, notwithstanding any limiting instruction by the judge that the jury may consider the statement only against the codefendant.”
Commonwealth v. Vallejo , 455 Mass. 72, 83 (2009) (discussing Bruton v. United States , 391 U.S. 123 (1968)). See also Commonwealth v. Vasquez , 462 Mass. 827, 842–844 (2012) (statement made by nontestifying defendant to police admissible where statement did not expressly or “obviously” refer directly to defendant).
Subsection (d)(2)(B). This subsection is taken verbatim from Fed. R. Evid. 801(d)(2)(B) and is consistent with Massachusetts law. See also Proposed Mass. R. Evid. 801(d)(2)(B). “Where a party is confronted with an accusatory statement which, under the circumstances, a reasonable person would challenge, and the party remains silent or responds equivocally, the accusation and the reply may be admissible on the theory that the party’s response amounts to an admission of the truth of the accusation.” Commonwealth v. MacKenzie , 413 Mass. 498, 506 (1992). Accord Commonwealth v. Braley , 449 Mass. 316, 320–321 (2007); Zucco v. Kane , 439 Mass. 503, 507–508 (2003); Commonwealth v. Silanskas , 433 Mass. 678, 694 (2001). This is commonly referred to as an “adoptive admission.”
Admission by Silence. For an admission by silence to be admissible it must be apparent that the party has heard and understood the statement, had an opportunity to respond, and the context was one in which the party would have been expected to respond. Commonwealth v. Olszewski , 416 Mass. 707, 719 (1993), cert. denied, 513 U.S. 835 (1994). See Leone v. Doran , 363 Mass. 1, 16, modified on other grounds, 363 Mass. 886 (1973). “Because silence may mean something other than agreement or acknowledgment of guilt (it may mean inattention or perplexity, for instance), evidence of adoptive admissions by silence must be received and applied with caution.” Commonwealth v. Babbitt , 430 Mass. 700, 705 (2000). See generally Commonwealth v. Nickerson , 386 Mass. 54, 61 n.6 (1982) (cautioning against use of a defendant’s prearrest silence to show consciousness of guilt and indicating such evidence is admissible only in “unusual circumstances”). Accordingly, adoption by silence can be imputed to a defendant only for statements that “clearly would have produced a reply or denial on the part of an innocent person.” Commonwealth v. Brown , 394 Mass. 510, 515 (1985).
“No admission by silence may be inferred, however, if the statement is made after the accused has been placed under arrest[, see Commonwealth v. Kenney , 53 Mass. 235, 238 (1847); Commonwealth v. Morrison , 1 Mass. App. Ct. 632, 634 (1973); Commonwealth v. Cohen , 6 Mass. App. Ct. 653, 657 (1978)], after the police have read him his Miranda rights[, see Commonwealth v. Rembiszewski , 363 Mass. 311, 316 (1973)], or after he has been so significantly deprived of his freedom that he is, in effect, in police custody[, see Commonwealth v. Corridori , 11 Mass. App. Ct. 469, 480 (1981)].”
Commonwealth v. Stevenson , 46 Mass. App. Ct. 506, 510 (1999), quoting Commonwealth v. Ferrara , 31 Mass. App. Ct. 648, 652 (1991).
Admission by Conduct. “An admission may be implied from conduct as well as from words.” Commonwealth v. Bonomi , 335 Mass. 327, 348 (1957). For instance,
“[a]ctions and statements that indicate consciousness of guilt on the part of the defendant are admissible and together with other evidence, may be sufficient to prove guilt. . . . [T]his theory usually has been applied to cases where a defendant runs away . . . or makes intentionally false and misleading statements to police . . . or makes threats against key witnesses for the prosecution . . . .”
Commonwealth v. Montecalvo , 367 Mass. 46, 52 (1975). See also Olofson v. Kilgallon , 362 Mass. 803, 806 (1973), citing Hall v. Shain , 291 Mass. 506, 512–513 (1935). For a thorough discussion of the evidentiary and constitutional issues surrounding the use of a defendant’s prearrest silence or conduct to establish consciousness of guilt, see Commonwealth v. Irwin , 72 Mass. App. Ct. 643, 648–656 (2008). “[A] judge should instruct the jury  that they are not to convict a defendant on the basis of evidence of [conduct] alone, and  that they may, but need not, consider such evidence as one of the factors tending to prove the guilt of the defendant” (citation omitted). Commonwealth v. Toney , 385 Mass. 575, 585 (1982).
Subsection (d)(2)(C). This subsection is derived from Sacks v. Martin Equip. Co. , 333 Mass. 274, 279–280 (1955).
This subsection covers the admissibility of statements by an agent who has been authorized by the principal to speak on his behalf. See Simonoko v. Stop & Shop, Inc. , 376 Mass. 929, 929 (1978) (concluding there was no showing of the manager’s authority to speak for the defendant). Contrast Subsection (d)(2)(D), which deals with statements of agents.
Subsection (d)(2)(D). This subsection is derived from Ruszcyk v. Secretary of Pub. Safety , 401 Mass. 418, 420–423 (1988), in which the Supreme Judicial Court adopted Proposed Mass. R. Evid. 801(d)(2)(D). Under some circumstances, inconsistent statements by a prosecutor at successive trials may be admissible as admissions of a party-opponent. See Commonwealth v. Keo , 467 Mass. 25, 33 n.21 (2014).
To determine whether a statement qualifies as a vicarious admission, the judge first must decide as a preliminary question of fact whether the declarant was authorized to act on the matters about which he or she spoke. See Herson v. New Boston Garden Corp. , 40 Mass. App. Ct. 779, 791 (1996). If the judge finds that the declarant was so authorized, the judge must then decide whether the probative value of the statement was substantially outweighed by its potential for unfair prejudice. Id. In so doing,
“the judge should consider the credibility of the witness; the proponent’s need for the evidence, e.g., whether the declarant is available to testify; and the reliability of the evidence offered, including consideration of whether the statement was made on firsthand knowledge and of any other circumstances bearing on the credibility of the declarant. Ruszcyk v. Secretary of Pub. Safety, [401 Mass.] at 422–423” (footnote and quotation omitted).
Thorell v. ADAP, Inc. , 58 Mass. App. Ct. 334, 339–340 (2003). The out-of-court statements of the agent are hearsay and thus inadmissible for the purpose of proving the existence of the agency; however, the agency may be shown through the agent’s testimony at trial. Campbell v. Olender , 27 Mass. App. Ct. 1197, 1198 (1989).
Subsection (d)(2)(E). This subsection is derived from Commonwealth v. Bongarzone , 390 Mass. 326, 340 (1983), which relied on Proposed Mass. R. Evid. 801(d)(2)(E) and the identical Fed. R. Evid. 801(d)(2)(E). See also Commonwealth v. Carriere , 470 Mass. 1, 10 (2014).
“This exception to the rule against hearsay is premised on a belief that ‘[t]he community of activities and interests which exists among the coventurers during the enterprise tends in some degree to assure that their statements about one another will be minimally reliable.’ Commonwealth v. White , 370 Mass. , 712 [(1976)].”
Commonwealth v. Bongarzone, 390 Mass. at 340.
The judge must be satisfied by a preponderance of admissible evidence other than the extrajudicial statement that a criminal joint venture existed between the declarant and the defendant. Commonwealth v. Silanskas , 433 Mass. 678, 692–693 (2001), citing Commonwealth v. Cruz , 430 Mass. 838, 844 (2000). See also Commonwealth v. McLaughlin , 431 Mass. 241, 246 (2000). The judge is not required to make a preliminary finding that a joint criminal enterprise existed and may admit the evidence “subject to a later motion to strike if the prosecution fails to show that the defendant was part of a joint enterprise.” Commonwealth v. Colon-Cruz , 408 Mass. 533, 543–544 (1990). The judge must also instruct the jury that they can only consider evidence of the hearsay statements if they find, on the basis of all the other evidence, not including the hearsay statements, that a joint venture existed. Commonwealth v. Boyer , 52 Mass. App. Ct. 590, 598 (2001). A statement otherwise inadmissible under the joint venture exception may be admissible for nonhearsay purposes. Commonwealth v. Brown , 474 Mass. 576, 587–588 (2016) (statement may serve as “foundation for later showing, through other admissible evidence,” that defendant’s statements were false).
Statements made after completion of a crime may be admissible if made in an effort to conceal a crime, even if made years after the crime. Commonwealth v. Winquist , 474 Mass. 517, 522–524 (2016). This exception extends to situations where “the joint venturers are acting to conceal the crime that formed the basis of the criminal enterprise[,]” Commonwealth v. Ali , 43 Mass. App. Ct. 549, 561 (1997), quoting Commonwealth v. Angiulo , 415 Mass. 502, 519 (1993), but it “does not apply after the criminal enterprise has ended, as where a joint venturer has been apprehended and imprisoned.” Commonwealth v. Colon-Cruz, 408 Mass. at 543. Thus, a confession or admission of a coconspirator or joint venturer made after the termination of the conspiracy or joint venture is not admissible as a vicarious statement of another member of the conspiracy or joint venture. Commonwealth v. Bongarzone, 390 Mass. at 340 n.11, citing Commonwealth v. White, 370 Mass. at 708–712. Cf. Commonwealth v. Leach , 73 Mass. App. Ct. 758, 766 (2009) (although statements made by codefendants occurred after they were in custody, statements were made shortly after crime and for purpose of concealing crime and thus became admissible against each defendant).
Hearsay is not admissible unless any of the following provides otherwise:
(a) case law,
(b) a statute, or
(c) a rule prescribed by the Supreme Judicial Court.
This section is derived from Commonwealth v. Markvart , 437 Mass. 331, 335 (2002) (“hearsay not otherwise admissible under the rules of evidence is inadmissible at the trial . . . unless specifically made admissible by statute”). There is no “innominate” or catchall exception to the hearsay rule in Massachusetts whereby hearsay may be admitted on an ad hoc basis provided that there are circumstantial guarantees of trustworthiness. See Commonwealth v. Pope , 397 Mass. 275, 281–282 (1986); Commonwealth v. Meech , 380 Mass. 490, 497 (1980); Commonwealth v. White , 370 Mass. 703, 713 (1976). Contrast Fed. R. Evid. 807.
In addition to exceptions established by case law, several Massachusetts statutes and rules provide exceptions to the rule against hearsay, including, but not limited to the following:
G. L. c. 79, § 35 (assessed valuation of real estate);
G. L. c. 111, § 195 (certain lead inspection reports);
G. L. c. 119, § 24 (court investigation reports);
G. L. c. 119, §§ 51A, 51B (Department of Children and Families reports)
G. L. c. 123A, §§ 6A , 9 (sexually dangerous person statute);
G. L. c. 152, §§ 20A, 20B (medical reports);
G. L. c. 175, § 4(7) (report of Commissioner of Insurance);
G. L. c. 185C, § 21 (housing inspection report);
G. L. c. 233, § 65 (declaration of deceased person);
G. L. c. 233, § 65A (answers to interrogatories of deceased party);
G. L. c. 233, § 66 (declarations of testator);
G. L. c. 233, § 69 (records of other courts);
G. L. c. 233, § 70 (judicial notice of law);
G. L. c. 233, § 79B (publicly issued compilations of fact);
G. L. c. 233, § 79C (treatises in malpractice actions);
G. L. c. 233, § 79F (certificate of public way);
G. L. c. 233, § 79G (medical and hospital bills);
G. L. c. 233, § 79H (medical reports of deceased physicians);
G. L. c. 239, § 8A, ¶ 3 (board of health inspection report if certified by inspector who conducted the inspection);
Mass. R. Civ. P. 32(a)(3) (depositions); and
Mass. R. Crim. P. 35(g) (depositions).
If no objection to the hearsay statement is made and it has been admitted, it “may be weighed with the other evidence, and given any evidentiary value which it may possess.” Mahoney v. Harley Private Hosp., Inc. , 279 Mass. 96, 100 (1932). In a criminal case, the admission of such a statement will be reviewed to determine whether its admission created a substantial risk of a miscarriage of justice. See Commonwealth v. Keevan , 400 Mass. 557, 562 (1987).
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
[Exception not recognized]
A spontaneous utterance if (A) there is an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer, and (B) the declarant’s statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought.
Expressions of present physical condition such as pain and physical health.
Statements of a person as to his or her present friendliness, hostility, intent, knowledge, or other mental condition are admissible to prove such mental condition.
Statements, not too remote in time, which indicate an intention to engage in particular conduct, are admissible to prove that the conduct was, in fact, put in effect. Statements of memory or belief to prove the fact remembered or believed do not fall within this exception.
Declarations of a testator cannot be received to prove the execution of a will, but may be shown to show the state of mind or feelings of the testator.
Statements made for the purpose of medical diagnosis or treatment describing medical history, pain, symptoms, condition, or cause, but not as to the identity of the person responsible or legal significance of such symptoms or injury.
A previously recorded statement may be admissible if (i) the witness has insufficient memory to testify fully and accurately, (ii) the witness had firsthand knowledge of the facts recorded, (iii) the witness can testify that the recorded statement was truthful when made, and (iv) the witness made or adopted the recorded statement when the events were fresh in the witness’s memory.
The recorded statement itself may be admitted in evidence, although the original of the statement must be produced if procurable.
A business record shall not be inadmissible because it is hearsay or self-serving if the court finds that (i) the entry, writing, or record was made in good faith; (ii) it was made in the regular course of business; (iii) it was made before the beginning of the civil or criminal proceeding in which it is offered; and (iv) it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter.
Records kept by hospitals pursuant to G. L. c. 111, § 70 , shall be admissible as evidence so far as such records relate to the treatment and medical history of such cases, but nothing contained therein shall be admissible as evidence which has reference to the question of liability. Records required to be kept by hospitals under the law of any other United States jurisdiction may be admissible.
(a) Itemized Bills, Records, and Reports. As used in this section, “itemized bills, records, and reports” means itemized hospital or medical bills; physician or dentist reports; hospital medical records relating to medical, dental, hospital services, prescriptions, or orthopedic appliances rendered to or prescribed for a person injured; or any report of any examination of said injured person including, but not limited to, hospital medical records.
(b) Physician or Dentist. As used in this section, “physician or dentist” means a physician, dentist, or any person who is licensed to practice as such under the laws of the jurisdiction within which such services were rendered, as well as chiropodists, chiropractors, optometrists, osteopaths, physical therapists, podiatrists, psychologists, and other medical personnel licensed to practice under the laws of the jurisdiction within which such services were rendered.
(c) Hospital. As used in this section, “hospital” means any hospital required to keep records under G. L. c. 111, § 70 , or which is in any way licensed or regulated by the laws of any other State, or by the laws and regulations of the United States of America, including hospitals of the Veterans Administration or similar type institutions, whether incorporated or not.
(d) Health Maintenance Organization. As used in this section, “health maintenance organization” shall have the same meaning as defined in G. L. c. 176G, § 1 .
In any civil or criminal proceeding, itemized bills, records, and reports of an examination of or for services rendered to an injured person are admissible as evidence of the fair and reasonable charge for such services, the necessity of such services or treatments, the diagnosis, prognosis, opinion as to the proximate cause of the condition so diagnosed, or the opinion as to disability or incapacity, if any, proximately resulting from the condition so diagnosed, provided that
(a) the party offering the evidence gives the opposing party written notice of the intention to offer the evidence, along with a copy of the evidence, by mailing it by certified mail, return receipt requested, not less than ten days before the introduction of the evidence;
(b) the party offering the evidence files an affidavit of such notice and the return receipt is filed with the clerk of the court after said receipt has been returned; and
(c) the itemized bill, record, or report is subscribed and sworn to under the penalties of perjury by the physician, dentist, authorized agent of a hospital or health maintenance organization rendering such services, or by the pharmacist or retailer of orthopedic appliances.
Nothing contained in this subsection limits the right of a party to call the physician or dentist, or any other person, as a witness to testify about the contents of the itemized bill, record, or report in question.
The absence of an entry in records of regularly conducted activity, or testimony of a witness that he or she has examined records and not found a particular entry or entries, is admissible for purposes of proving the nonoccurrence of the event.
A record of a primary fact, made by a public officer in the performance of an official duty, is competent evidence as to the existence of that fact.
Certain statutes provide that the admission of facts contained in certain public records constitute prima facie evidence of the existence of those facts.
Record of investigations and inquiries conducted, either voluntarily or pursuant to requirement of law, by public officers concerning causes and effects involving the exercise of judgment and discretion, expressions of opinion, and making conclusions are not admissible in evidence as public records, unless specifically authorized by statute.
A town clerk’s record of birth, marriage, or death is prima facie evidence of the facts recorded, but nothing contained in the record of a death that refers to the question of liability for causing the death is admissible in evidence.
Testimony—or a certification under Section 902 —that a diligent search failed to disclose a public record or statement is admissible in evidence if the testimony or certification is offered to prove that
the record or statement does not exist, or
a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.
A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker or a similar item is admissible in evidence.
A registry copy of a document purporting to prove or establish an interest in land is admissible as proof of the content of the original recorded document and its execution and delivery by each person who signed it. However, the grantee or entity claiming present ownership interest of the property must account for the absence of the original document before offering the registry copy.
Statements of a person’s married or unmarried status, kinship or lack of kinship, or of the date of the person’s birth or death which relate or purport to relate to the title to land and are sworn to before any officer authorized by law to administer oaths may be filed for record and shall be recorded in the registry of deeds for the county where the land or any part thereof lies. Any such statement, if so recorded, or a certified copy of the record thereof, insofar as the facts stated therein bear on the title to land, shall be admissible in evidence in support of such title in any court in the Commonwealth in proceedings relating to such title.
A statement in a document that is at least thirty years old and whose authenticity is established is admissible in evidence.
Statements of facts of general interest to persons engaged in an occupation contained in a list, register, periodical, book, or other compilation, issued to the public, shall, in the discretion of the court, if the court finds that the compilation is published for the use of persons engaged in that occupation and commonly is used and relied upon by them, be admissible in civil cases as evidence of the truth of any fact so stated.
Statements of facts or opinions on a subject of science or art contained in a published treatise, periodical, book, or pamphlet shall, insofar as the court shall find that the said statements are relevant and that the writer of such statements is recognized in his or her profession or calling as an expert on the subject, be admissible in actions of contract or tort for malpractice, error, or mistake against physicians, surgeons, dentists, optometrists, hospitals, and sanitaria, as evidence tending to prove said facts or as opinion evidence; provided, however, that the party intending to offer as evidence any such statements shall, not less than thirty days before the trial of the action, give the adverse party or that party’s attorney notice of such intention, stating the name of the writer of the statements; the title of the treatise, periodical, book, or pamphlet in which they are contained; the date of publication of the same; the name of the publisher of the same; and wherever possible or practicable the page or pages of the same on which the said statements appear.
To the extent called to the attention of an expert witness upon cross-examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence, but may not be received as exhibits.
A reputation within a family as to matters of pedigree, such as birth, marriage, and relationships between and among family members, may be testified to by any member of the family.
Evidence of a general or common reputation concerning the existence or nonexistence of a boundary or other matter of public or general interest concerning land or real property is admissible.
A witness with knowledge may testify to a person’s reputation as to a trait of character, as provided in Sections 404, 405, and 608.
Evidence of a final judgment of conviction is admissible if
the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;
the conviction was for a crime punishable by death or by confinement for more than a year;
the evidence is admitted to prove any fact essential to the judgment; and
when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.
The pendency of an appeal may be shown but does not affect admissibility.
Any out-of-court statements of a child under the age of ten describing any act of sexual contact performed on or with the child, or the circumstances under which it occurred, or identifying the perpetrator offered in an action brought under G. L. c.119, §§ 23(C) and 24 , shall be admissible; provided, however that
the person to whom the statement was made, or who heard the child make the statement, testifies;
the judge finds that the statement is offered as evidence of a material fact and is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable effort;
the judge finds pursuant to Subsection (24)(B) that such statement is reliable; and
the judge’s reasons for relying on the statement appear in the judge’s findings pursuant to Subsection (24)(C).
A judge must assess the reliability of the out-of-court statement by considering the following factors:
the timing of the statement, the circumstances in which it was made, the language used by the child, and the child’s apparent sincerity or motive in making the statement;
the consistency over time of a child’s statement concerning abuse, expert testimony about a child’s ability to remember and to relate his or her experiences, or other relevant personality traits;
the child’s capacity to remember and to relate, and the child’s ability to perceive the necessity of telling the truth; and
whether other admissible evidence corroborates the existence of child abuse.
The judge’s reasons for relying on the statement must appear clearly in the specific and detailed findings the judge is required to make in a care and protection case.
An out-of-court statement admissible by common law or by statute shall remain admissible notwithstanding the provisions of this section.
Confrontation Clause. In a criminal case, a hearsay statement offered against the defendant must satisfy both the confrontation clause and one of the hearsay exceptions. For a discussion of the relationship between the confrontation clause and the hearsay exceptions stated in Section 803, refer to the Introductory Note to Article VIII, Hearsay.
Subsection (1). To date, the present sense impression exception has not been adopted in Massachusetts. See Commonwealth v. Mandeville , 386 Mass. 393, 398 n.3 (1982).
Subsection (2). This subsection is taken nearly verbatim from Commonwealth v. Santiago , 437 Mass. 620, 623 (2002). See also Commonwealth v. McLaughlin , 364 Mass. 211, 221–222 (1973). “The statement itself may be taken as proof of the exciting event.” Commonwealth v. Nunes , 430 Mass. 1, 4 (1999). See Commonwealth v. King , 436 Mass. 252, 255 (2002). The proponent of the evidence is not required to show that the spontaneous utterance qualifies, characterizes, or explains the underlying event as long as the court is satisfied that the statement was the product of a startling event and not the result of conscious reflection. See Commonwealth v. Santiago, 437 Mass. at 624–627.
“[T]he nexus between the statement and the event that produced it is but one of many factors to consider in determining whether the declarant was, in fact, under the sway of the exciting event when she made the statement. . . . It illuminates the second aspect of the test; it is not an independent requirement, in the same respect that the lapse of time between the startling event and the declarant’s statement is not an independent requirement.”
Commonwealth v. Santiago, 437 Mass. at 625–626. See Commonwealth v. Gomes , 475 Mass. 775, 788 (2016) (“[t]he circumstances of being the target of a drive-by shooting and actually being shot were certainly enough to permit a reasonable finding” that declarant was “sufficiently startled to render inoperative his normal reflective thought processes”).
“[T]here can be no definite and fixed limit of time [between the incident and the statement]. Each case must depend upon its own circumstances.” Commonwealth v. McLaughlin, 364 Mass. at 223, quoting Rocco v. Boston-Leader, Inc. , 340 Mass. 195, 196–197 (1960). See Commonwealth v. Crawford , 417 Mass. 358, 362 (1994) (statements need not be strictly contemporaneous with the exciting cause; a child’s statement five hours later correctly admitted). See also Commonwealth v. Grant , 418 Mass. 76, 81 (1994) (same). “But the length of time between the incident and statement is important; the further the statement from the event, the more difficult it becomes to determine whether the statement is the result of reflection, influenced by other factors.” Commonwealth v. DiMonte , 427 Mass. 233, 239 (1998).
A writing may qualify as a spontaneous utterance. See Commonwealth v. DiMonte, 427 Mass. at 238–240. See also Commonwealth v. Mulgrave , 472 Mass. 170, 176 (2015) (text message). However, “[b]ecause a writing is more suspect as a spontaneous exclamation than is an oral statement, the circumstances of the writing would have to include indicia of reliability even more persuasive than those required for an oral statement before [the court] could conclude that the writing qualified as a spontaneous exclamation.” Commonwealth v. DiMonte, 427 Mass. at 239. The “heightened indicia of reliability” requirement does not impose an additional test for written statements but is meant “only to ensure that a writing, which generally is a product of reflection, meets the spontaneity requirement.” Commonwealth v. Mulgrave, 472 Mass. at 177. Other than increased scrutiny on the spontaneity element, “the analysis is the same as for an oral statement.” Id.
A bystander’s spontaneous utterance may be admissible. See Commonwealth v. Harbin , 435 Mass. 654, 657–658 (2002). “Although witnesses may not testify unless evidence is introduced sufficient to support a finding that they have personal knowledge of the matter about which they are testifying, there is no requirement that the declarant have been a participant in the exciting event” (citation omitted). Id. at 657. But see Commonwealth v. Alcantara , 471 Mass. 550, 558–559 (2015) (recording of 911 call containing information outside of caller’s personal knowledge was admissible as excited utterance where information was acquired by caller from person who had personal knowledge and whose statement to caller also was excited utterance).
A statement made in response to a question may qualify as a spontaneous utterance. See Commonwealth v. Simon , 456 Mass. 280, 296 (2010); Commonwealth v. Guaman , 90 Mass. App. Ct. 36, 42–43 (2016) (nine-year-old’s call to 911 to report her uncle was driving drunk with his young son in the car, made because of caller’s concern that her cousin was in danger, was admissible as excited utterance even though some statements were made in response to dispatcher’s questions). But see Commonwealth v. McCoy , 456 Mass. 838, 849 (2010) (statement by the victim of a sexual assault to a SANE [sexual assault nurse examiner] at the hospital made in the context of a question-and-answer format did not qualify as an excited utterance because “the requisite level of spontaneity was not present”).
Confrontation in Criminal Cases. “When the Commonwealth in a criminal case seeks to admit the excited utterance of a declarant who is not a witness at trial or has completed his testimony at trial, the judge should conduct a careful voir dire, evidentiary if needed, before admitting the excited utterance in evidence.” Commonwealth v. Hurley , 455 Mass. 53, 68 n.14 (2009) (statement, if testimonial, would be barred by the confrontation clause).
Subsection (3)(A). This subsection is derived from Murray v. Foster , 343 Mass. 655, 658 (1962). See Weeks v. Boston Elevated Ry. Co. , 190 Mass. 563, 564–565 (1906) (witness permitted to testify that decedent remarked that the “carriage never rode so hard before”; “[t]his may well be regarded as an expression and indication of then present pain or weakness”); Simmons v. Yurchak , 28 Mass. App. Ct. 371, 373–375, 375 n.6 (1990) (upholding trial court’s refusal to apply Proposed Mass. R. Evid. 803 while noting that “[i]t is not self-evident that Proposed Mass. R. Evid. 803 propounds a more expansive hearsay exception than the common law ‘expression of pain’”).
Subsection (3)(B). The principle contained in the following three subsections is also known as the “state-of-mind exception.” This exception applies only to statements that assert the declarant’s own state of mind directly (usually by words describing the state of mind). See, e.g., Pardo v. General Hosp. Corp. , 446 Mass. 1, 18–19 (2006) (memorandum and letter admissible to show nondiscriminatory state of mind at time employment actions were taken); Commonwealth v. White , 32 Mass. App. Ct. 949, 949 (1992) (in prosecution for sexual abuse of a child, mother’s out-of-court statement that, even if defendant didn’t do it, “I still hope that all sorts of nasty things happen to him” was admissible under state-of-mind exception as an expression of her hostility toward defendant to prove her bias as prosecution witness). But see Commonwealth v. Whitman , 453 Mass. 331, 341–342 (2009) (defendant’s statement that he heard voices inadmissible, as it pertained to the past, not the present). For statements that convey the declarant’s state of mind circumstantially or that are probative of another’s state of mind, see the Note “Evidence Admitted for Nonhearsay Purpose” to Section 801(c), Definitions: Hearsay.
Evidence of a person’s state of mind, whether hearsay (and offered under this exception) or nonhearsay, is admissible only if the state of mind is relevant and if the probative value of the proffered evidence is not substantially outweighed by the risk of unfair prejudice to the opponent. See Section 403, Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reason. Statements offered to show state of mind often include assertions of facts that led to that state of mind (e.g., the victim’s out-of-court statements describing the defendant’s threats or assaults offered as evidence of the victim’s determination to end the relationship with the defendant). The out-of-court statement of those facts would ordinarily be inadmissible hearsay, and the trier of fact’s reliance on the truth of those facts would therefore be unfairly prejudicial to the opponent. This danger is especially acute in criminal cases, where confrontation clause rights are also at stake when hearsay is admitted against a defendant. See Introductory Note to Article VIII, Hearsay. Before such evidence is admitted, the trial court must conduct a careful review of the probative value of the evidence and the risk of unfair prejudice under Section 403. See Commonwealth v. Magraw , 426 Mass. 589 (1998) (new trial granted because of erroneous admission of murder victim’s statements to show her fear of defendant). In addition to carrying this enhanced risk of unfair prejudice, evidence of the victim’s state of mind often has limited probative value. A murder victim’s statements of fear of the defendant alone are not relevant to prove motive. Commonwealth v. Qualls , 425 Mass. 163, 169 (1997). When a victim’s state of mind is offered to prove a defendant’s motive, it is usually not relevant unless the state of mind was known to the defendant, and the defendant was likely to respond to it. Id. at 167. See Commonwealth v. Watkins , 473 Mass. 222, 238 (2015). See also Commonwealth v. Borodine , 371 Mass. 1, 7–9 (1976) (victim’s intention to end relationship with defendant). However,
“[a] murder victim’s state of mind becomes a material issue if the defendant opens the door by claiming that the death was a suicide or a result of self-defense, that the victim would voluntarily meet with or go someplace with the defendant, or that the defendant was on friendly terms with the victim.”
Commonwealth v. Magraw, 426 Mass. at 594.
“Where evidence of the victim’s state of mind is admitted, it may only be used to prove that state of mind, and not to prove the truth of what was stated or that a defendant harbored certain thoughts or acted in a certain way. Therefore, on the defendant’s request, the jury must be given an instruction on the limited use of state of mind evidence.”
Id. at 594–595, citing Commonwealth v. Costa , 354 Mass. 757 (1968).
Subsection (3)(B)(i). This subsection is taken nearly verbatim from Commonwealth v. Caldron , 383 Mass. 86, 91 (1981). See Commonwealth v. Mendes , 441 Mass. 459, 466 (2004); Commonwealth v. Ferreira , 381 Mass. 306, 310–311 (1980); Commonwealth v. Wampler , 369 Mass. 121, 123 (1975).
Subsection (3)(B)(ii). The first sentence of this subsection is taken verbatim from Commonwealth v. Ferreira , 381 Mass. 306, 310 (1980). Accord Commonwealth v. Trefethen , 157 Mass. 180, 183–184 (1892) (murder conviction reversed because trial judge improperly excluded evidence that victim, who was unmarried and pregnant at time of her death, told fortune teller the day before her drowning that she was going to drown herself). See Commonwealth v. Ortiz , 463 Mass. 402, 409–410 (2012) (murder victim told family she was going to go meet defendant after dinner); Commonwealth v. Fernandes , 427 Mass. 90, 95 (1998) (“A declarant’s threat to ‘get’ or kill someone is admissible to show that the declarant had a particular state of mind and that he carried out his intent.”); Commonwealth v. Vermette , 43 Mass. App. Ct. 789, 801–802 (1997) (proper to admit statement of intention to lie and confess to shooting for purpose of showing that declarant carried out that intent). In a prosecution for murder, a victim’s statement of intent to meet with the defendant, made immediately before the murder, is sometimes admissible. See Commonwealth v. Britt , 465 Mass. 87, 90 (2013) (admission of victim’s statement that he was going to meet defendant to get his money not error, as statement did not necessarily mean that defendant had previously agreed to a meeting, and it was cumulative of other evidence of a preplanned meeting). See also Commonwealth v. Ortiz , 463 Mass. at 409–410 (murder victim’s statement to daughter that she was going to pick up defendant at a restaurant admissible, because statement expressed only victim’s “present intent to act,” not defendant’s, and there was other evidence that defendant was with victim at time of murder). In each of the above cases, there was independent evidence of the defendant’s presence at the place in question.
The second sentence of this subsection is derived from Commonwealth v. Lowe , 391 Mass. 97, 104–105, cert. denied, 469 U.S. 840 (1984). See Commonwealth v. Pope , 397 Mass. 275, 281 (1986) (“exception applies only to the declarant’s present intent to act, not to past conduct”). See also Commonwealth v. Seabrooks , 425 Mass. 507, 512 (1997) (“[a]llowing hearsay statements generally under the state-of-mind exception would entirely eviscerate the hearsay rule and its important purpose of securing the correctness and completeness of testimony through cross-examination”). Accord Shepard v. United States , 290 U.S. 96, 105–106 (1933).
Subsection (3)(B)(iii). This subsection is taken nearly verbatim from Mahan v. Perkins , 274 Mass. 176, 179–180 (1931). See id. at 180 (“[Testator’s] declarations showing her intention, plan or purpose should not be received to support the proponent’s contention that the will was signed by her and attested by [the witness].”)
Subsection (4). This subsection is derived from Commonwealth v. Comtois , 399 Mass. 668, 675 (1987), and Commonwealth v. Howard , 355 Mass. 526, 528–529 (1969). See Commonwealth v. Arana , 453 Mass. 214, 231 (2009); Commonwealth v. DeOliveira , 447 Mass. 56, 62 (2006). If made for the purpose of receiving medical advice, the statements are admissible under this subsection even if made after the commencement of the action. Barber v. Merriam , 93 Mass. 322, 326 (1865).
While the appellate cases cited in this note related to physicians, nothing in the reasoning of those cases exclude other health care professionals. See Bouchie v. Murray , 376 Mass. 524, 527–528 (1978).
Cross-Reference: Section 803(6)(C), Hearsay Exceptions; Availability of Declarant Immaterial: Business and Hospital Records: Medical and Hospital Services .
Subsection (5)(A). This subsection is derived from Commonwealth v. Nolan , 427 Mass. 541, 543 (1998), and Commonwealth v. Bookman , 386 Mass. 657, 663–664 (1982). A witness does not have to have a complete lack of memory; all that is required is that the witness cannot testify fully. Commonwealth v. Nolan, 427 Mass. at 544.
“As to the fourth element of the foundation, where the recording was made by another, it must be shown that the witness adopted the writing ‘when the events were fresh in [the witness’s] mind’” (emphasis omitted). Commonwealth v. Evans , 439 Mass. 184, 189–190 (2003), quoting Commonwealth v. Bookman, 386 Mass. at 664. See Commonwealth v. Fryar , 414 Mass. 732, 746 (1993), cert. denied, 522 U.S. 1033 (1997). The requirement that the recording be made when the events were fresh in the witness’s memory has been interpreted broadly. See Catania v. Emerson Cleaners, Inc. , 362 Mass. 388, 389–390 (1972) (holding that statement given approximately eight months after accident admissible as a past recollection recorded). But see Kirby v. Morales , 50 Mass. App. Ct. 786, 791–792 (2001) (one year insufficient).
Subsection (5)(B). This subsection is derived from Fisher v. Swartz , 333 Mass. 265, 267–271 (1955). In Fisher, the court cautioned that it was not
“laying down a hard and fast rule that in every ‘past recollection recorded’ situation the writing used by the witness must always be admitted in evidence, and that it is error to exclude it . . . . It is conceivable that there might be situations where the probative value of the writing as evidence might be outweighed by the risk that its admission might create substantial danger of undue prejudice or of misleading the jury. In such a case the trial judge in the exercise of sound discretion might be justified in excluding the writing.”
Id. at 270. See Commonwealth v. Bookman , 386 Mass. 657, 664 (1982) (error to admit grand jury testimony of the witness as past recollection recorded). The witness may read from the writing during the witness’s testimony, or the writing may be admitted.
The past recollection recorded exception should not be confused with the doctrine of refreshing memory. See Section 612, Writing or Object Used to Refresh Memory. For a discussion of the distinction between the two, see Fisher v. Swartz, 333 Mass. at 267.
Subsection (6)(A). This subsection is taken nearly verbatim from G. L. c. 233, § 78 . See Beal Bank, SSB v. Eurich , 444 Mass. 813, 815 (2005); Commonwealth v. Trapp , 396 Mass. 202, 208 (1985). See, e.g., Adoption of Paula , 420 Mass. 716 (1995) (in care and protection proceeding, police report containing officer’s firsthand account of conditions in the marital home during execution of search warrant was admissible as business record); Johnson v. MBTA , 418 Mass. 783, 786 (1994) (results of laboratory test); Commonwealth v. Sellon , 380 Mass. 220, 230 & n.15 (1980) (In admitting police journal entry fixing the time a telephone call was received, the Supreme Judicial Court noted that “[t]he operations of the instrumentalities of government constitute ‘business’ within the meaning of the statute” [citation omitted].); Commonwealth v. Walker , 379 Mass. 297, 302 (1979) (police record of stolen car report); Commonwealth v. Albino , 81 Mass. App. Ct. 736, 737–738 (2012) (holding notification letters of Sex Offender Registry Board [SORB] sent to police department were admissible as business records of department because, although letters were prepared by SORB, department’s receipt of letters was an integral part of department’s ordinary business of registering and monitoring sex offenders). In a criminal proceeding where the judge admits a business record under this exception, the questions of fact serving as a basis for its admissibility must be submitted to the jury. G. L. c. 233, § 78 . See Commonwealth v. Reyes , 19 Mass. App. Ct. 1017, 1019 (1985). Cf. G. L. c. 233, § 79J (certification, inspection, and copies of business records).
The trial judge may, as a condition to admissibility of business records, require the party offering the business record into evidence to call a witness who has personal knowledge of the facts stated in the record. G. L. c. 233, § 78 . See Burns v. Combined Ins. Co. of Am. , 6 Mass. App. Ct. 86, 92 (1978). A trial judge must first determine if the writing itself qualifies as a business record, and then determine “whether all or only some of the material and information contained in the document qualifies as being within the scope of the statutory exception.” Wingate v. Emery Air Freight Corp. , 385 Mass. 402, 408 (1982) (Liacos, J., concurring). A business record is admissible even when its preparer has relied on the statements of others because the personal knowledge of the entrant or maker affects only the weight of the record, not its admissibility. Id. at 406. However, “unless statements on which the preparer relies fall within some other exception to the hearsay rule, the proponent must show that all persons in the chain of communication, from the observer to the preparer, reported the information as a matter of business duty or business routine.” Id. See NationsBanc Mtge. Corp. v. Eisenhauer , 49 Mass. App. Ct. 727, 733–735 (2000) (where records made by one business were transferred to another, latter business unable to admit the records under business record exception because records were made by former business). But see Commonwealth v. Albino , 81 Mass. App. Ct. 736, 738 (2012) (business record of one business may be admissible as business record of second business where record is integrated into records of second business and relied on by that business), citing Beal Bank, SSB v. Eurich , 444 Mass. 813, 815 (2005).
“[T]he business records hearsay exception in [G. L. c. 233,] § 78 may not be used to expand the scope of the hearsay exception for hospital medical records.” Commonwealth v. Irene , 462 Mass. 600, 616 (2012). “The admissibility of statements in medical records is limited by the provisions in G. L. c. 233 relating to hospital records, including § § 79 and 79G.” Id.
Opinions contained in business records are not admissible unless they fall within some other exception to the hearsay rule. See Julian v. Randazzo , 380 Mass. 391, 392–393 (1980); Burke v. Memorial Hosp. , 29 Mass. App. Ct. 948, 949–950 (1990). Cf. Section 803(6)(C), Hearsay Exceptions; Availability of Declarant Immaterial: Business and Hospital Records: Medical and Hospital Services (provides, under certain circumstances, for the admission of opinion contained in medical, dental, and other identified records and reports). Even if a document satisfies the business record exception, the trial judge retains the discretion to consider the reliability of the evidence offered. N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co. , 466 Mass. 358, 367 n.10 (2013). Cross-Reference: Section 803(17), Hearsay Exceptions; Availability of Declarant Immaterial: Statements of Facts of General Interest.
Police Reports. Police reports are generally admissible as business records under this subsection. Commonwealth v. Walker , 379 Mass. 297, 302 (1979); Carey v. New Yorker of Worcester, Inc. , 355 Mass. 450, 453 (1969). Thus, the reporting officers’ firsthand observations as recorded in their reports are admissible. Adoption of Paula , 420 Mass. 716, 727 (1995) (responding officers’ description of open beer cans, drinking by underage guests, inadequate sleeping arrangements for the children, broken window, and weapons openly displayed). Such reports are admissible as an exception to the hearsay rule even when the preparer has relied on statements made by others in the regular course of the preparer’s record-keeping duties (such as fellow police officers) because, under G. L. c. 233, § 78 , “‘personal knowledge by the entrant or maker’ is a matter affecting the weight (rather than the admissibility) of the record.” Wingate v. Emery Air Freight Corp. , 385 Mass. 402, 406 (1982), quoting G. L. c. 233, § 78 . However, “second-level” hearsay, such as statements of bystanders or witnesses, should be redacted, as these statements are not made admissible by G. L. c. 233, § 78 . See Commonwealth v. Happnie , 3 Mass. App. Ct. 193, 199 (1975), overruled in part on other grounds by Commonwealth v. Szerlong , 457 Mass. 858, 869 (2010); Kelly v. O’Neil , 1 Mass. App. Ct. 313, 316–317 (1973). Cf. Commonwealth v. Walker, 379 Mass. at 302 (statements made by unidentified caller to police cadet who authored report not offered for their truth). Further, the admittance of police reports as business records applies only to factual observations and does not permit the admission of opinions contained in the report. Julian v. Randazzo , 380 Mass. 391, 393 (1980). Police reports may be considered as evidence at a probation revocation hearing even when the reporting officer does not testify and even when they contain second-level hearsay, so long as they are deemed sufficiently reliable. See Commonwealth v. Durling , 407 Mass. 108, 120–122 (1990) (personal observations of nontestifying officer); Commonwealth v. Foster , 77 Mass. App. Ct. 444, 450 (2010) (witness statement contained in police report). Police reports relating to prior sexual offenses are admissible in Sexually Dangerous Person proceedings pursuant to G. L. c. 123A, § 14(c) , even when they contain hearsay statements. Commonwealth v. Given , 441 Mass. 741, 745–746(2004).
Criminal Cases. A record or report that qualifies as an exception to the hearsay rule under this subsection may nevertheless be inadmissible if it contains testimonial statements in violation of the confrontation clause. See Melendez-Diaz v. Massachusetts , 557 U.S. 305, 310–311 (2009). Additionally, Massachusetts statutory law provides that in criminal cases tried to a jury, “all questions of fact which must be determined by the court as the basis for the admissibility of the evidence involved shall be submitted to the jury.” G. L. c. 233, § 78 . As a result, in criminal cases involving business records, unless the defendant agrees otherwise, the judge not only must make the four preliminary determinations of fact set forth in Subsection (6)(A), but must instruct the jury that they too must find these facts by a preponderance of the evidence before they consider the contents of the business record. See Commonwealth v. Oppenheim , 86 Mass. App. Ct. 359, 367 (2014).
Subsection (6)(B). This subsection is derived from G. L. c. 233, § 79 . See Commonwealth v. Sheldon , 423 Mass. 373, 376 (1996). A hospital record is admissible at trial if the trial judge finds that (1) it is the type of record contemplated by G. L. c. 233, § 79 ; (2) the information is germane to the patient’s treatment or medical history; and (3) the information is recorded from the personal knowledge of the entrant or from a compilation of the personal knowledge of those under a medical obligation to transmit such information. Bouchie v. Murray , 376 Mass. 524, 531 (1978). Compare Commonwealth v. Sheldon, 423 Mass. at 375–377 (blood alcohol tests conducted solely to prove the defendant’s sobriety, in circumstances in which there was no hospital protocol for conducting such a test, do not qualify for admission under G. L. c. 233, § 79 ), with Commonwealth v. Dyer , 77 Mass. App. Ct. 850, 855–856 (2010) (blood alcohol test results ordered by physician exclusively for the medical evaluation and treatment of the defendant qualify for admission under G. L. c. 233, § 79 ). The party offering the record into evidence has the burden of proving the statutory requirements, Commonwealth v. Dunne , 394 Mass. 10, 16 (1985), and need not give advance notice of the intent to offer the record in evidence, Commonwealth v. McCready , 50 Mass. App. Ct. 521, 524– 525 (2000). Cf. G. L. c. 233, § 79G (ten days’ advance notice required). The trial judge has discretion to exclude portions of an otherwise admissible medical record in accordance with Sections 402, General Admissibility of Relevant Evidence ; 403, Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons; and 611(a), Mode and Order of Examining Witnesses and Presenting Evidence: Control by the Court. See Commonwealth v. Francis , 450 Mass. 132, 138–139 (2007).
“[V]oluntary statements of third persons appearing in the record are not admissible unless they are offered for reasons other than to prove the truth of the matter contained therein or, if offered for their truth, come within another exception to the hearsay rule . . . .” Bouchie v. Murray, 376 Mass. at 531. The Supreme Judicial Court has noted that G. L. c. 233, § 79 ,
“may be read to permit the admission of a medical history taken from a person with reason to know of the patient’s medical history by virtue of his or her relationship to the patient. Such a history may contain personal knowledge gained from observation or knowledge gained from an intimate relationship. We think that [G. L. c. 233, § 79 ] should be read to include such statements if made for purposes of medical diagnosis or treatment and if the declarant’s relationship to the patient and the circumstances in which the statements are made guarantees their trustworthiness.”
Id. at 531.
“[General Laws c. 233, § 79 ,] has long been construed to permit the admission of a record that relates directly and primarily to the treatment and medical history of the patient, ‘even though incidentally the facts recorded may have some bearing on the question of liability.’ . . . In application this liberal construction has permitted the admission in evidence of statements in hospital records bearing on criminal culpability that seem to relate at most only incidentally to medical treatment” (citations omitted).
Commonwealth v. Dube , 413 Mass. 570, 573 (1992). See Commonwealth v. DiMonte , 427 Mass. 233, 242 (1998).
“[General Laws c. 233, § 79 ,] relies on a ‘pragmatic test of reliability’ that permits the introduction of records containing even second level hearsay provided the information in the record is of a nature that is relied on by medical professionals in administering health care. . . . While creating an exception to the hearsay rule, the statute does not permit the admission of hospital records that are facially unreliable.”
Commonwealth v. Johnson , 59 Mass. App. Ct. 164, 167 (2003), citing Doyle v. Dong , 412 Mass. 682, 687 (1992). See generally Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption , 399 Mass. 279, 287–288 (1987) (privileged material should be redacted).
Illustrations. Notations on Form 2 in the “Sexual Assault Evidence Collection Kit” made by the SANE (sexual assault nurse examiner) based on statements by the complainant about how he or she received his or her injuries are admissible because they assist the SANE in conducting the examination, even though the information is also collected to assist investigators. Commonwealth v. Dargon , 457 Mass. 387, 396 (2010). However, the printed form should not be admitted because it suggests a sexual assault occurred. Id. Notations on hospital intake forms stating that a patient was “assaulted” should be redacted. Commonwealth v. DiMonte, 427 Mass. at 241–242. In DiMonte, several references to the facts of the alleged assault, including “Pt. struck in the face [with] fist” and “reports having a plastic container thrown [at] her which struck her [right] forehead,” were admissible. Id. at 241. Statements consisting of self-diagnosis should be redacted. Commonwealth v. Hartman , 404 Mass. 306, 316–317 (1989). In Commonwealth v. Concepcion , 362 Mass. 653, 654–655 (1972), hospital records where (a) under the heading “Nature of Illness” appeared the words “? Assaulted- ? Raped,” (b) under the heading “History and Physical Exam” appeared the words “History of recent rape,” and (c) under the heading “Diagnosis” appeared the notation “? Rape,” the doctor’s opinions were related to the treatment and medical history. Blood tests bearing on the patient’s degree of intoxication are admissible; entries made by observing nurses are also admissible. Commonwealth v. McCready , 50 Mass. App. Ct. 521, 524 (2000). In Commonwealth v. Baldwin , 24 Mass. App. Ct. 200, 202 (1987), a “[d]iagnosis” of “sexual molestation,” a term “synonymous to laymen with indecent assault and battery,” should have been redacted. Cf. Commonwealth v. Patton , 458 Mass. 119 (2010) (SAIN [Sexual Abuse Intervention Network] report may be admissible in probation violation hearings).
Subsection (6)(C). This subsection is derived from G. L. c. 233, § 79G . The text in this subsection places the statutory language in more straightforward language and also incorporates the case law. The practitioner, however, is cautioned to check the precise statutory language.
This statute applies to criminal cases as well as to civil cases, and its scope is much broader than that of G. L. c. 233, § 79. Commonwealth v. Schutte , 52 Mass. App. Ct. 796, 798–800 (2001). See generally Grant v. Lewis/Boyle, Inc. , 408 Mass. 269, 274 (1990) (declining to adopt Proposed Mass. R. Evid. 803 for the purpose of admitting physician’s reports given the “carefully crafted provisions of § 79G”).
Scope. This subsection establishes a broad exception to the hearsay rule which overlaps to some degree with the hospital records exception provided in Section 803(6)(B), Hearsay Exceptions; Availability of Declarant Immaterial: Business and Hospital Records: Hospital Records. See McHoul, petitioner , 445 Mass. 143, 151 (2005); Ortiz v. Stein , 31 Mass. App. Ct. 643, 645 (1991). But see Brusard v. O’Toole , 45 Mass. App. Ct. 288, 295 (1998) (G. L. c. 233, § 79G , would not allow the admission in evidence of hospital policies and procedures). In some respects, however, this subsection is broader than the exception for hospital records found in Section 803(6)(B) because
“reports admissible under § 79G may include the ‘opinion of such physician . . . as to proximate cause of the condition so diagnosed, . . .’ and ‘the opinion of such physician . . . as to disability or incapacity, if any, proximately resulting from the condition so diagnosed. . . .’ These are not matters usually found in a medical record but do pertain to issues commonly involved in personal injury claims and litigation. Thus, the concerns that require redaction of information not germane to the patient’s treatment in medical records under § 79, see, e.g., Bouchie v. Murray , 376 Mass. 524, 531 (1978), are overridden by express language in § 79G.”
Commonwealth v. Schutte, 52 Mass. App. Ct. at 799–800. Also, since the term “report” is not defined in G. L. c. 233, § 79G , a properly attested letter from a person’s treating physician explaining the patient’s medical condition and its effects based on the physician’s personal observations can be qualified as a report. Id. Ambulance records are admissible under Section 79G, as the certification requirements for EMTs are similar in nature to the licensure requirements for other medical personnel contained in the statute whose reports are admissible. Commonwealth v. Palacios , 90 Mass. App. Ct. 722, 726 (2016).
The full amount of a medical or hospital bill is admissible as evidence of the reasonable value of the services rendered to the injured person, even where the amount actually paid by a private or public insurer is less than that amount. Law v. Griffith , 457 Mass. 349, 353–354 (2010), citing G. L. c. 233, § 79G .
Cross-Reference: G. L. c. 233, § 79H (medical records of deceased physicians); Section 411, Insurance; Section 902(k), Evidence That is Self-Authenticating: Certified Copies of Hospital and Other Records of Treatment and Medical History.
Requirements for Admissibility. Reports offered under G. L. c. 233, § 79G , as opposed to G. L. c. 233, § 78 , are admissible even if prepared in anticipation of litigation. See O’Malley v. Soske , 76 Mass. App. Ct. 495, 498–499 (2010); Commonwealth v. Schutte , 52 Mass. App. Ct. 796, 799 n.3 (2001). Medical reports which deal with an injured person’s “diagnosis, prognosis, opinion as to the proximate cause of the condition so diagnosed, or the opinion as to disability or incapacity,” see Section 803(6)(C)(ii), must be by a physician, as that term is defined in the subsection, who treated or examined the injured person. See Ortiz v. Stein, 31 Mass. App. Ct. at 645–646. See also Gompers v. Finnell , 35 Mass. App. Ct. 91, 93 (1993) (“Nothing in § 79G authorizes one not a physician or dentist to offer an expert opinion that a patient’s physical symptoms resulted from a particular accident or incident.”). If a record contains such an opinion, however, it may satisfy the plaintiff’s burden of proof on the issue of causation in a medical negligence case. See Bailey v. Cataldo Ambulance Serv., Inc. , 64 Mass. App. Ct. 228, 234–236 (2005) (explaining that there is no requirement that an expert opinion on causation contain the phrase “to a reasonable degree of medical certainty”).
General Laws c. 233, § 79G , requires that a party who seeks to offer the report of a physician or dentist at trial must serve opposing counsel at least ten days in advance of trial with notice and a copy of the report by the physician or dentist. See Adoption of Seth , 29 Mass. App. Ct. 343, 351–352 (1990). However, the attestation by the physician or dentist does not have to be included with the notice so long as it is present when the evidence is offered at trial. See Grant v. Lewis/Boyle, Inc., 408 Mass. at 274; Knight v. Maersk Container Serv. Co. , 49 Mass. App. Ct. 254, 256 (2000).
Cross-Reference: G. L. c. 233, § 79H ; Section 902(k), Evidence That is Self-Authenticating: Certified Copies of Hospital and Other Records of Treatment and Medical History.
Subsection (7). This subsection is derived from McNamara v. Honeyman , 406 Mass. 43, 54 n.10 (1989), and Commonwealth v. Scanlan , 9 Mass. App. Ct. 173, 182 (1980). See Johnson v. Wilmington Sales, Inc. , 5 Mass. App. Ct. 858, 858 (1977). Where testimony is offered, proof of the fact that an entry does not exist does not require the production of the records themselves or the laying of a foundation for the introduction of secondary evidence. Commonwealth v. Scanlan, 9 Mass. App. Ct. at 182. See Commonwealth v. Torrealba , 316 Mass. 24, 30 (1944); Johnson v. Wilmington Sales, Inc., 5 Mass. App. Ct. at 858.
Subsection (8). This subsection is derived from Commonwealth v. Slavski , 245 Mass. 405, 415 (1923). See Custody of Two Minors , 19 Mass. App. Ct. 552, 559 (1985) (noting that it is “sound practice” for judge to give notice to parties if judge intends to use court investigator or guardian ad litem report where neither party offered report into evidence). Cf. G. L. c. 233, § 76 (admissibility of authenticated government records); Mass. R. Civ. P. 44 (proof of official records); Mass. R. Crim. P. 40 (same). The admission of a record of a primary fact created for routine government administrative functions does not violate the confrontation clause. Commonwealth v. Shangkuan , 78 Mass. App. Ct. 827, 833–834 (2011) (officer’s return of service, required by court rule to be completed and filed in court, is nontestimonial because it was not “created solely for use in a pending criminal prosecution,” even though it might later be used for proving notice to a defendant).
Under the common law, a report or record does not become an official record for the purpose of this exception merely because it is filed with a governmental agency. See Commonwealth v. Williams , 63 Mass. App. Ct. 615, 619 (2005); Kelly v. O’Neil , 1 Mass. App. Ct. 313, 319 (1973). A hearsay statement recorded in an official record, if made by someone other than the public officer making the record, is not admissible under this exception, although it may be admissible if it falls within another hearsay exception. See Sklar v. Beth Israel Deaconess Med. Ctr. , 59 Mass. App. Ct. 550, 556 n.8 (2003). Evaluative reports, opinions, and conclusions contained in a public report are not admissible at common law. Commonwealth v. Nardi , 452 Mass. 379, 387–395 (2008) (ruling that the findings of a medical examiner concerning the nature and extent of the victim’s injuries and his or her ultimate opinion as to the cause of death were not statements of fact excluded by the hearsay rule, but instead were evaluative statements that fell outside the public record exception); Mattoon v. City of Pittsfield , 56 Mass. App. Ct. 124, 135 (2002). See Middlesex Supply, Inc. v. Martin & Sons, Inc. , 354 Mass. 373, 374–375 (1968); Herson v. New Boston Garden Corp. , 40 Mass. App. Ct. 779, 792–793 (1996).
The following statutes provide for the admission of facts contained in public records as prima facie evidence (examples of the records covered are in parentheses): G. L. c. 46, § 19 (birth, marriage, and death records); G. L. c. 79, § 35 (assessed valuation of real property); G. L. c. 90, § 30 (records of the Registry of Motor Vehicles); G. L. c. 123A, § 14(c) (public records at trial on whether person is sexually dangerous); and G. L. c. 185C, § 21 (report of housing inspector). But see Commonwealth v. Almonte , 465 Mass. 224, 242 (2013) (the preferred practice is to redact means and manner of death before admitting death certificate into evidence). Conclusions contained in public records may be made admissible by statute. Shamlian v. Equitable Acc. Co. , 226 Mass. 67, 69–70 (1917).
Mortality Tables. In Harlow v. Chin , 405 Mass. 697, 714 (1989), the Supreme Judicial Court addressed the admissibility of mortality tables:
“Mortality tables, though not conclusive proof of life expectancy, help furnish a basis for the jury’s estimation. The tables themselves are admissible regardless of the poor health or extra-hazardous occupation of the person whose life expectancy is being estimated. When the opposing side believes that the person in question, because of poor health, has a lower life expectancy than that reflected in the mortality tables, the usual remedy is to offer evidence to that effect and argue the point to the jury.” (Citations omitted.)
Criminal Cases. A record or report that qualifies as an exception to the hearsay rule under this subsection may nevertheless be inadmissible if it contains testimonial statements in violation of the confrontation clause. See Melendez-Diaz v. Massachusetts , 557 U.S. 305, 310–311 (2009). See also Introductory Note to Article VIII, Hearsay.
Subsection (9). This subsection is taken nearly verbatim from G. L. c. 46, § 19 . See Commonwealth v. Lykus , 406 Mass. 135, 144 (1989), cert. denied, 519 U.S. 1126 (1997). See also Miles v. Edward Tabor M.D., Inc. , 387 Mass. 783, 786 (1982). Records from foreign countries are not admissible under G. L. c. 46, § 19 , or G. L. c. 207, § 45 . Vergnani v. Guidetti , 308 Mass. 450, 457 (1941). Cf. G. L. c. 46, § 19C (“The commissioner of public health shall use the seal of the department of public health for the purpose of authenticating copies of birth, marriage and death records in his department, and copies of such records when certified by him and authenticated by said seal, shall be evidence like the originals.”). General Laws c. 46, § 19 , makes the town clerk certificate admissible in evidence, but not with respect to liability. See Wadsworth v. Boston Gas Co. , 352 Mass. 86, 93 (1967). See also G. L. c. 207, § 45 (“The record of a marriage made and kept as provided by law by the person by whom the marriage was solemnized, or by the clerk or registrar, or a copy thereof duly certified, shall be prima facie evidence of such marriage.”).
Subsection (10). This subsection, which is taken from Proposed Mass. R. Evid. 803(10), reflects Massachusetts practice. See Mass. R. Civ. P. 44(b); Mass. R. Crim. P. 40(b); Blair’s Foodland, Inc. v. Shuman’s Foodland, Inc. , 311 Mass. 172, 175–176 (1942).
Subsection (11). No cases or statutes were located on this issue. Cf. Section 803(6)(A), Hearsay Exceptions; Availability of Declarant Immaterial: Business and Hospital Records: Entry, Writing, or Record Made in Regular Course of Business.
Cross-Reference: Section 804(b)(7), Hearsay Exceptions; Declarant Unavailable: The Exceptions: Religious Records.
Subsection (12). No cases or statutes were located on this issue. Cf. Section 804(b)(7), Hearsay Exceptions; Declarant Unavailable: The Exceptions: Religious Records; Kennedy v. Doyle , 92 Mass. 161, 168 (1865) (baptismal record admissible where maker is deceased).
Subsection (13). This subsection, which is taken from Proposed Mass. R. Evid. 803(13), reflects Massachusetts practice. See North Brookfield v. Warren , 82 Mass. 171, 174–175 (1860). Cf. Section 803(9), Hearsay Exceptions; Availability of Declarant Immaterial: Public Records of Vital Statistics; Section 804(b)(5)(A), Hearsay Exceptions; Declarant Unavailable: The Exceptions: Statutory Exceptions in Civil Cases: Declarations of Decedent.
Subsection (14). This subsection is derived from Scanlan v. Wright , 30 Mass. 523, 527 (1833), and Commonwealth v. Emery , 68 Mass. 80, 81–82 (1854).
Subsection (15). This subsection is taken nearly verbatim from G. L. c. 183, § 5A .
Subsection (16). This subsection is derived from Cunningham v. Davis , 175 Mass. 213 (1900) (“It is a general rule that deeds appearing to be more than 30 years old, which come from the proper custody, and are otherwise free from just grounds of suspicion, are admissible without any proof of execution.”). See Whitman v. Shaw , 166 Mass. 451, 460–461 (1896) (ancient plan and field notes); Drury v. Midland R.R. Co. , 127 Mass. 571, 581 (1879) (old plans admitted for purposes of establishing location of a creek). Cf. Section 901(b)(8), Authenticating or Identifying Evidence: Examples: Evidence About Ancient Documents.
Cross-Reference: Section 403, Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reason; Section 805, Hearsay within Hearsay.
Subsection (17). This subsection is taken verbatim from G. L. c. 233, § 79B . The word “‘compilation,’ as used in the statute, connotes simple objective facts, and not conclusions or opinions.” Mazzaro v. Paull , 372 Mass. 645, 652 (1977). The trial judge must make “preliminary findings that the proposed exhibit is (1) issued to the public, (2) published for persons engaged in the applicable occupation, and (3) commonly used and relied on by such persons.” Id. See Fall River Sav. Bank v. Callahan , 18 Mass. App. Ct. 76, 83–84 (1984); Torre v. Harris-Seybold Co. , 9 Mass. App. Ct. 660, 672–673 (1980). The judge has the discretion to consider the reliability of the information as a factor in determining the admissibility of the compilation, even where the statutory requirements are satisfied. See N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co. , 466 Mass. 358, 366–367 (2013) (judge did not abuse his discretion in excluding statistical summaries derived from compilation of raw data voluntarily submitted by participating insurance companies where accuracy and reliability of raw data had not been established).
See generally G. L. c. 106, § 2-724 (“Whenever the prevailing price or value of any goods regularly bought and sold in any established commodity market is in issue, reports in official publications or trade journals or in newspapers or periodicals of general circulation published as the reports of such market shall be admissible in evidence. The circumstances of the preparation of such a report may be shown to affect its weight but not its admissibility.”).
Subsection (18)(A). This subsection is taken nearly verbatim from G. L. c. 233, § 79C . See Commonwealth v. Johnson , 59 Mass. App. Ct. 164, 170 (2003) (“pill book” purchased from pharmacy purporting to describe effects of prescription drugs not admissible as learned treatise); Simmons v. Yurchak , 28 Mass. App. Ct. 371, 375–377 (1990) (instructional videotape not admissible as learned treatise). Statements from a treatise satisfying the requirements of G. L. c. 233, § 79C, may also be used in medical malpractice tribunals. See G. L. c. 231, § 60B .
“When determining the admissibility of a published treatise under G. L. c. 233, § 79C , we interpret the ‘writer of such statements’ to mean the treatise author, not the author of each individual item incorporated into the treatise text.” Brusard v. O’Toole , 429 Mass. 597, 606 (1999). “[T]he ‘writer’ of a statement contained in an authored treatise is the author of the treatise, and the ‘writer’ of a statement contained in a periodical or similarly edited publication is the author of the specific article in which the statement is contained.” Id. The biographical data about the author in the front of the treatise may not be used to establish the expertise of the author, see Reddington v. Clayman , 334 Mass. 244, 247 (1956), but an opponent witness who admits that the author of the treatise is a recognized expert in the field is sufficient, see Thomas v. Ellis , 329 Mass. 93, 98, 100 (1952). “The statutory notice of the intent to introduce a treatise required by G. L. c. 233, § 79C , requires that ‘the date of publication’ of the treatise be specified. The edition of a treatise, if applicable, should be specified, and parties should be permitted to introduce statements from only that edition.” Brusard v. O’Toole, 429 Mass. at 606 n.13.
Subsection (18)(B). This subsection is derived from Commonwealth v. Sneed , 413 Mass. 387, 396 (1992), in which the Supreme Judicial Court adopted Proposed Mass. R. Evid. 803(18). Treatises are not available to bolster direct examination. Brusard v. O’Toole , 429 Mass. 597, 601 n.5 (1999). But see Commonwealth v. Sneed, 413 Mass. at 396 n.8, 597 N.E.2d at 1351 n.8 (“We can imagine a situation in which, in fairness, portions of a learned treatise not called to the attention of a witness during cross-examination should be admitted on request of the expert’s proponent in order to explain, limit, or contradict a statement ruled admissible under [Section] 803[(18)].”). This subsection “contemplates that an authored treatise, and not the statements contained therein, must be established as a reliable authority.” Brusard v. O’Toole, 429 Mass. at 602–603. The contents of the specific article, Web page, or other material must be shown to have been authored or prepared by a person established to be a “reliable authority” pursuant to one of the means spelled out in Section 803(18)(B). Kace v. Liang , 472 Mass. 630, 644 (2015).
“[The] opponent of the expert witness [must] bring to the witness’s attention a specific statement in a treatise that has been established, to the judge’s satisfaction, as a reliable authority. The witness should be given a fair opportunity to assess the statement in context and to comment on it, either during cross-examination or on redirect examination. The judge, of course, will have to determine the relevance and materiality of the statement and should consider carefully any claimed unfairness or confusion that admission of the statement may create.”
Commonwealth v. Sneed, 413 Mass. at 396,. This is a preliminary question of fact for the judge. See Section 104(a), Preliminary Questions: In General.
Subsection (19). This subsection is derived from Butrick v. Tilton , 155 Mass. 461, 466 (1892). See Cadorette v. United States , 988 F.2d 215, 220–222 (1st Cir. 1993). But see Haddock v. Boston & Maine R.R. , 85 Mass. 298, 301 (1862).
Subsection (20). This subsection is derived from Enfield v. Woods , 212 Mass. 547, 551–552 (1912) (admitting reputation evidence regarding existence or nonexistence of public ownership of land). See G. L. c. 139, § 9 (“For the purpose of proving the existence of the nuisance the general reputation of the place shall be admissible as evidence.”). See Commonwealth v. United Food Corp. , 374 Mass. 765, 767 n.2 (1978) (G. L. c. 139, § 9 , is a statutory exception to hearsay rule).
Subsection (21). This exception deals only with the hearsay aspect of evidence of reputation. For additional restrictions on the use of such evidence, see Sections 404, Character Evidence; Crimes or Other Act; 405, Methods of Proving Character; and 608, A Witness’s Character for Truthfulness or Untruthfulness.
Subsection (22). This subsection is derived from Flood v. Southland Corp. , 416 Mass. 62, 70 (1993), in which the Supreme Judicial Court adopted Proposed Mass. R. Evid. 803(22). See Commonwealth v. Powell , 40 Mass. App. Ct. 430, 435–436 (1996) (error where trial court instructed jury it could consider prior guilty plea of alleged joint venturer to charge of armed robbery as circumstantial evidence of presence of gun in subsequent trial of other joint venturer on same charge). “[A] plea of guilty is admissible in evidence as an admission in subsequent civil litigation, but is not conclusive.” Aetna Cas. & Sur. Co. v. Niziolek , 395 Mass. 737, 747 (1985). Cf. Section 609, Impeachment by Evidence of Conviction of Crime; Section 410, Pleas, Offers of Pleas, and Related Statements; Mass. R. Crim. P. 12(f).
Subsection (23). No cases or statutes were located on this issue.
Subsection (24)(A). Subsections (24)(A) through (A)(ii) are taken nearly verbatim from G. L. c. 233, § 83(a) . Subsections (24)(A)(iii) and (iv) are derived from Care & Protection of Rebecca , 419 Mass. 67, 78, 80 (1994). There is no requirement that the child be unavailable. Id. at 76–77. When a care and protection proceeding is joined with a petition to dispense with consent to adoption, admissibility of a child’s out-of-court statements should comply with the stricter requirements of G. L. c. 233, § 82 , not § 83. Adoption of Tina , 45 Mass. App. Ct. 727, 733 (1998).
Subsection (24)(B). This subsection is taken nearly verbatim from Care & Protection of Rebecca , 419 Mass. 67, 79–80 (1994). The judge may question the child through a voir dire. Id. The reliability of statements contained in an investigator’s report can be assessed by cross-examining the investigator. Care & Protection of Leo , 38 Mass. App. Ct. 237, 241–242 (1995).
Subsection (24)(C). This subsection is taken nearly verbatim from Care & Protection of Rebecca , 419 Mass. 67, 80 (1994).
Subsection (24)(D). This subsection is taken verbatim from G. L. c. 233, § 83(b) .
A declarant is considered to be unavailable as a witness if the declarant
is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
refuses to testify [this criterion not recognized];
testifies to not remembering the subject matter [this criterion not recognized];
cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or
is absent from the trial or hearing and the statement’s proponent has not been able to procure the declarant’s attendance by process or other reasonable means.
But this Subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.
The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one, and
is now offered against a party who had—or, in a civil case, whose predecessor in interest had—an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
In a prosecution for homicide, a statement that a declarant, who believed that the declarant’s death was imminent and who died shortly after making the statement, made about the cause or circumstances of the declarant’s own impending death or that of a co-victim.
A statement that a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else, or to expose the declarant to civil or criminal liability. In a criminal case, the exception does not apply to a statement that tends to expose the declarant to criminal liability and is offered to exculpate the defendant, or is offered by the Commonwealth to inculpate the defendant, unless corroborating circumstances clearly indicate the trustworthiness of the statement.
A statement concerning the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, or relationship by blood, even though the declarant had no way of acquiring personal knowledge of the matter stated.
A statement regarding those matters concerning another person to whom the declarant is related [exception not recognized].
In any action or other civil judicial proceeding, a declaration of a deceased person shall not be inadmissible in evidence as hearsay or as private conversation between husband and wife, as the case may be, if the court finds that it was made in good faith and upon the personal knowledge of the declarant.
If a party to an action who has filed answers to interrogatories under any applicable statute or any rule of the Massachusetts Rules of Civil Procedure dies, so much of such answers as the court finds have been made upon the personal knowledge of the deceased shall not be inadmissible as hearsay or self-serving if offered in evidence in said action by a representative of the deceased party.
If a cause of action brought against an executor or administrator is supported by oral testimony of a promise or statement made by the testator or intestate of the defendant, evidence of statements, written or oral, made by the decedent, memoranda and entries written by the decedent, and evidence of the decedent’s acts and habits of dealing, tending to disprove or to show the improbability of the making of such promise or statement, shall be admissible.
In an action of tort for personal injuries or death, or for consequential damages arising from such personal injuries, the medical report of a deceased physician who attended or examined the plaintiff, including expressions of medical opinion, shall, at the discretion of the trial judge, be admissible in evidence, but nothing therein contained which has reference to the question of liability shall be so admissible. Any opposing party shall have the right to introduce evidence tending to limit, modify, contradict, or rebut such medical report. The word “physician” as used in this section shall not include any person who was not licensed to practice medicine under the laws of the jurisdiction within which such medical attention was given or such examination was made.
In proceedings before the industrial accident board, the medical report of an incapacitated, disabled, or deceased physician who attended or examined the employee, including expressions of medical opinion, shall, at the discretion of the member, be admissible as evidence if the member finds that such medical report was made as the result of such physician’s attendance or examination of the employee.
A statement offered against a party if the court finds (A) that the witness is unavailable; (B) that the party was involved in, or responsible for, procuring the unavailability of the witness; and (C) that the party acted with the intent to procure the witness’s unavailability.
Statements of fact made by a deceased person authorized by the rules or practices of a religious organization to perform a religious act, contained in a certificate that the maker performed such act, and purporting to be issued at the time of the act or within a reasonable time thereafter.
General Laws c. 233, § 81 , was adopted prior to the United States Supreme Court’s decisions in Crawford v. Washington , 541 U.S. 36 (2004), and Davis v. Washington , 547 U.S. 813 (2006), as well as the Supreme Judicial Court’s decisions in Commonwealth v. Gonsalves , 445 Mass. 1 (2005), cert. denied, 548 U.S. 926 (2006), and Commonwealth v. Amirault , 424 Mass. 618 (1997). These decisions call into question the constitutionality of this subsection.
An out-of-court statement of a child under the age of ten describing an act of sexual contact performed on or with the child, the circumstances under which it occurred, or which identifies the perpetrator shall be admissible as substantive evidence in any criminal proceeding; provided, however, that
the statement is offered as evidence of a material fact and is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts,
the person to whom the statement was made or who heard the child make the statement testifies,
the judge finds pursuant to Subsection (b)(8)(B) that the child is unavailable as a witness,
the judge finds pursuant to Subsection (b)(8)(C) that the statement is reliable, and
the statement is corroborated pursuant to Subsection (b)(8)(D).
The proponent of such statement shall demonstrate a diligent and good-faith effort to produce the child and shall bear the burden of showing unavailability. A finding of unavailability shall be supported by specific findings on the record, describing facts with particularity, demonstrating that
the child is unable to be present or to testify because of death or physical or mental illness or infirmity;
by a ruling of the court, the child is exempt on the ground of privilege from testifying concerning the subject matter of such statement;
the child testifies to a lack of memory of the subject matter of such statement;
the child is absent from the hearing and the proponent of such statement has been unable to procure the attendance of the child by process or by other reasonable means;
the court finds, based upon expert testimony from a treating psychiatrist, psychologist, or clinician, that testifying would be likely to cause severe psychological or emotional trauma to the child; or
the child is not competent to testify.
If a finding of unavailability is made, the out-of-court statement shall be admitted if the judge further finds,
after holding a separate hearing, that such statement was made under oath, that it was accurately recorded and preserved, and that there was sufficient opportunity to cross-examine, or
after holding a separate hearing and, where practicable and where not inconsistent with the best interests of the child, meeting with the child, that such statement was made under circumstances inherently demonstrating a special guarantee of reliability.
For the purposes of finding circumstances demonstrating reliability pursuant to this subsection, a judge may consider whether the relator documented the child witness’s statement and shall consider the following factors:
(a) the clarity of the statement, meaning the child’s capacity to observe, remember, and give expression to that which such child has seen, heard, or experienced; provided, however, that a finding under this clause shall be supported by expert testimony from a treating psychiatrist, psychologist, or clinician;
(b) the time, content, and circumstances of the statement; and
(c) the child’s sincerity and ability to appreciate the consequences of such statement.
The out-of-court statement must be corroborated by other independently admitted evidence.
An out-of-court statement admissible by common law or by statute shall remain admissible notwithstanding the provisions of this section.
The out-of-court statements of a child under the age of ten describing any act of sexual contact performed on or with the child, the circumstances under which it occurred, or which identifies the perpetrator shall be admissible as substantive evidence in any civil proceeding, except proceedings brought under G. L. c. 119, §§ 23(C) and 24 ; provided, however, that
such statement is offered as evidence of a material fact and is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts,
the person to whom such statement was made or who heard the child make such statement testifies,
the judge finds pursuant to Subsection (b)(9)(B) that the child is unavailable as a witness,
the judge finds pursuant to Subsection (b)(9)(C) that such statement is reliable, and
such statement is corroborated pursuant to Subsection (b)(9)(D).
the child is unable to be present or to testify because of death or existing physical or mental illness or infirmity;
(b) the time, content, and circumstances of the statement;
(c) the existence of corroborative evidence of the substance of the statement regarding the abuse, including either the act, the circumstances, or the identity of the perpetrator; and
(d) the child’s sincerity and ability to appreciate the consequences of the statement.
An out-of-court statement admissible by common law or by statute shall remain admissible notwithstanding the provisions of this section.
Confrontation Clause. In a criminal case, a hearsay statement offered against the defendant must satisfy both the confrontation clause and one of the hearsay exceptions. For a discussion of the relationship between the confrontation clause and the hearsay exceptions stated in Section 804, refer to the Introductory Note to Article VIII, Hearsay.
Introduction. Section 804 defines hearsay exceptions that are conditioned upon a showing that the declarant is unavailable. Section 804(a) defines the requirement of unavailability that applies to all the hearsay exceptions in Section 804(b). The second paragraph of Section 804(a) is consistent with the doctrine of forfeiture by wrongdoing adopted by the Supreme Judicial Court in Commonwealth v. Edwards , 444 Mass. 526, 540 (2005).
The exceptions that apply when the declarant of the out-of-court statement is unavailable address only the evidentiary rule against hearsay, except in the context of forfeiture by wrongdoing. See Section 804(b)(6), Hearsay Exceptions; Declarant Unavailable: The Exceptions: Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability. In criminal cases, the admissibility at trial of an out-of-court statement against the defendant also requires consideration of the constitutional right to confrontation under the Sixth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights. For a discussion of the relationship between the confrontation clause and the hearsay exceptions stated in Section 804, refer to the Introductory Note to Article VIII, Hearsay.
A defendant invoking the Fifth Amendment privilege against self-incrimination only makes himself or herself unavailable to another party, but the defendant is not unavailable as to himself or herself. See Commonwealth v. Labelle , 67 Mass. App. Ct. 698, 701 (2006). It should not be presumed that an absent witness may invoke his or her privilege against self-incrimination. See Commonwealth v. Lopera , 42 Mass. App. Ct. 133, 137 n.3 (1997). But where the declarant is a codefendant and joint venturer in the crimes charged against the defendant, and the declarant’s out-of-court statements directly implicate the declarant in the criminal enterprise, the unavailability requirement is satisfied because the defendant undoubtedly would invoke the Fifth Amendment privilege. See Commonwealth v. Charles , 428 Mass. 672, 677–679 (1999).
Subsection (a)(1). This subsection is derived from Commonwealth v. Canon , 373 Mass. 494, 499–500 (1977), cert. denied, 435 U.S. 933 (1978) (valid invocation of privilege against self-incrimination rendered witness unavailable). Unavailability is not defined simply in terms of lack of physical presence, but stems from the inability of opposing counsel to cross-examine the witness. Commonwealth v. DiPietro , 373 Mass. 369, 382 (1977). Accord Commonwealth v. Negron , 441 Mass. 685, 688–691 (2004) (valid claim of spousal privilege by defendant’s wife rendered her unavailable). However, a claim of privilege will not be presumed simply because a witness might have a basis for asserting it if the witness had appeared and been called to testify. See Commonwealth v. Charros , 443 Mass. 752, 767–768 (2005).
Subsection (a)(2). The Supreme Judicial Court has not yet adopted Proposed Mass. R. Evid. 804(a)(2), which, like the Federal rule, provides that a witness who persists in refusing to testify concerning the subject matter of his or her statement may be deemed to be unavailable. See Commonwealth v. Fisher , 433 Mass. 340, 355–356 (2001) (explaining that absent the assertion of a privilege against self-incrimination, a witness’s refusal to testify does not render the witness unavailable for purposes of the hearsay exception for prior recorded testimony).
Subsection (a)(3). Massachusetts law does not recognize lack of memory of the subject matter of the testimony as a basis for finding that the witness is unavailable. Commonwealth v. Bray , 19 Mass. App. Ct. 751, 758 (1985). Cf. A.T. Stearns Lumber Co. v. Howlett , 239 Mass. 59, 61 (1921) (declining to extend doctrine of past recollection recorded to permit introduction of prior recorded testimony that witness had no present memory of but recalled was the truth).
Subsection (a)(4). This subsection is derived from Commonwealth v. Bohannon , 385 Mass. 733, 742 (1982) (“death or other legally sufficient reason”), and cases cited. See Commonwealth v. Mustone , 353 Mass. 490, 491–492 (1968) (death of witness). In Ibanez v. Winston , 222 Mass. 129, 130 (1915), the Supreme Judicial Court observed that although the death or insanity of a witness would supply the basis for a finding of unavailability, the mere fact that a witness had returned to Spain, without more, did not demonstrate that he was unavailable. However, in Commonwealth v. Hunt , 38 Mass. App. Ct. 291, 295 (1995), the Appeals Court noted that
“[w]hen a witness is outside of the borders of the United States and declines to honor a request to appear as a witness, the unavailability of that witness has been conceded because a State of the United States has no authority to compel a resident of a foreign country to attend a trial here.”
In Commonwealth v. Housewright , 470 Mass. 665, 671–674 (2015), the Supreme Judicial Court provided a framework to analyze whether a witness is “unavailable because of illness or infirmity” in criminal cases where the Commonwealth is the proponent of the evidence. The Commonwealth must show that there is “an unacceptable risk that the witness’s health would be significantly jeopardized if the witness were required to testify in court” by providing “reliable, up-to-date information sufficient to permit the judge to make an independent finding.” Id. at 671. In assessing the probability that the witness’s appearance will cause an adverse health consequence, the court should consider “the severity of the adverse health consequence, such as whether it would be life-threatening, the importance of the testimony in the context of the case, and the extent to which the live trial testimony would likely differ from the prior recorded testimony,” id. at 672, and whether a continuance of the trial or a deposition of the witness is appropriate, considering both the witness’s health and interest of justice. Id. at 672–673. The Commonwealth must make a good-faith effort to produce the witness at trial and must promptly inform the court and the defendant of the claimed unavailability. See Commonwealth v. Dorisca , 88 Mass. App. Ct. 776, 779–783 (2015) (trial judge erred in basing determination of witness’s unavailability on prosecutor’s statement that witness had recently gone into labor, without making inquiry into Housewright factors).
Subsection (a)(5). This subsection is derived from Commonwealth v. Charles , 428 Mass. 672, 678 (1999) (“We accept as a basis of unavailability the principles expressed in Rule 804[a] of the Federal Rules of Evidence ”). In Commonwealth v. Sena , 441 Mass. 822, 832 (2004), the Supreme Judicial Court noted that
“[b]efore allowing the Commonwealth to introduce prior recorded testimony, the judge must be satisfied that the Commonwealth has made a good faith effort to locate and produce the witness at trial. Whether the Commonwealth carries its burden on the question of sufficient diligence in attempting to obtain the attendance of the desired witness depends upon what is a reasonable effort in light of the peculiar facts of the case.” (Citations and quotation omitted.)
See Commonwealth v. Roberio , 440 Mass. 245, 248 (2003) (where prosecutor established unavailability before trial of witness who is then located out of State during trial, court is not required to suspend trial to obtain presence of witness); Commonwealth v. Charles, 428 Mass. at 678 (evidence that declarant is a fugitive satisfies unavailability requirement); Commonwealth v. Pittman , 60 Mass. App. Ct. 161, 169–170 (2003) (witness who ignored defense counsel’s subpoena and instead attended an out-of-State funeral was unavailable). Contrast Ruml v. Ruml, 50 Mass. App. Ct. 500, 508–509 (2000) (self-imposed exile from Massachusetts does not satisfy unavailability requirement); Commonwealth v. Hunt , 38 Mass. App. Ct. 291, 295–296 (1995) (fact that prospective witness is a foreign national outside United States does not excuse proponent of statement from making diligent effort to locate and secure attendance of witness). “When former testimony is sought to be offered against the accused, the degree of ‘good faith’ and due diligence is greater than that required in other situations.” Commonwealth v. Bohannon , 385 Mass. 733, 745 (1982).
Subsection (b)(1). This subsection is derived from Commonwealth v. Meech , 380 Mass. 490, 494 (1980), and Commonwealth v. DiPietro , 373 Mass. 369, 380–385 (1977). See Mass. R. Civ. P. 32 and Mass. R. Crim. P. 35 (use of depositions in proceedings).
“The prior recorded testimony exception to the hearsay rule applies ‘where the prior testimony was given by a person, now unavailable, in a proceeding addressed to substantially the same issues as in the current proceeding, with reasonable opportunity and similar motivation on the prior occasion for cross-examination of the declarant by the party against whom the testimony is now being offered.’”
Commonwealth v. Fisher , 433 Mass. 340, 355 (2001), quoting Commonwealth v. Trigones , 397 Mass. 633, 638 (1986). The party against whom the testimony is being offered need not actually cross-examine the declarant; only an adequate opportunity to cross-examine the declarant is required. Commonwealth v. Canon , 373 Mass. 494, 499–501 (1977), cert. denied, 435 U.S. 933 (1978). See Commonwealth v. Hurley , 455 Mass. 53, 62–63 (2009) (“A defendant is not entitled under the confrontation clause to a cross-examination that is ‘effective in whatever way, and to whatever extent the defense might wish.’ Rather, what is essential is that the ‘trier of fact [have] a satisfactory basis for evaluating the truth of the prior statement.’” [Citations omitted.]).
The Supreme Judicial Court has applied this hearsay exception when the prior recorded testimony was given at a probable cause hearing, see Commonwealth v. Mustone , 353 Mass. 490, 492–494 (1968), and at a pretrial dangerousness hearing under G. L. c. 276, § 58A . See Commonwealth v. Hurley, 455 Mass. at 63 & n.9 (noting that there is “no general rule that a witness’s prior testimony at a pretrial detention hearing is always admissible at trial if that witness becomes unavailable.”). See also id. at 66–67 (when an excited utterance is admitted at a pretrial hearing as an exception to the hearsay rule in circumstances in which the defendant is not given an opportunity to cross-examine the declarant about the facts described in the excited utterance, the admission of the evidence violates the confrontation clause). Cf. Commonwealth v. Arrington , 455 Mass. 437, 442–445 (2009) (upholding order that excluded from trial the alleged victim’s testimony at a pretrial dangerousness hearing under G. L. c. 276, § 58 , on grounds that due to her medical condition [late stage cancer], defense counsel was deprived of reasonable opportunity for cross-examination).
In Commonwealth v. Clemente , 452 Mass. 295, 313–315 (2008), the Supreme Judicial Court held that this hearsay exception is not generally applicable to prior recorded testimony before the grand jury because the testimony of such witnesses is usually far more limited than at trial and is often presented without an effort to corroborate or discredit it. “If, however, the party seeking the admission of the grand jury testimony can establish that the Commonwealth had an opportunity and similar motive to develop fully a (now unavailable) witness’s testimony at the grand jury, that earlier testimony would be admissible.” Id. at 315.
The declarant’s prior testimony must be able to be “substantially reproduced in all material particulars.” Commonwealth v. Martinez , 384 Mass. 377, 381 (1981). See G. L. c. 233, § 80 (official transcripts); Commonwealth v. DiPietro, 373 Mass. at 392–394 (unofficial transcripts); Commonwealth v. Vaden , 373 Mass. 397, 400 (1977) (tape recordings, whether official or unofficial); Commonwealth v. Janovich , 55 Mass. App. Ct. 42, 45 (2002) (witness present at prior proceeding).
Subsection (b)(2). This subsection is derived from Commonwealth v. Polian , 288 Mass. 494, 497 (1934), and Commonwealth v. Vona , 250 Mass. 509, 511 (1925). See Commonwealth v. Gonzalez , 469 Mass. 410, 419-420 (2014). This common-law exception is not subject to the defendant’s right to confrontation. See Commonwealth v. Nesbitt , 452 Mass. 236, 251 (2008) (“Thus, in the unique instance of dying declarations, we ask only whether the statement is admissible as a common-law dying declaration, and not whether the statement is testimonial.”). The “dying declaration” allows testimony as to the victim’s statements concerning the circumstances of the killing and the identity of the perpetrator. Commonwealth v. Polian, 288 Mass. at 500. It may be in the form of oral testimony, gestures, or a writing made by the victim. See Commonwealth v. Casey , 65 Mass. 417, 422 (1853) (victim who was mortally wounded and unable to speak, but conscious, confirmed identity of perpetrator by squeezing the hand of her treating physician who asked her if it was “Mr. Casey, who worked for her husband”). The Supreme Judicial Court has left open the question whether a defendant’s right to confrontation is applicable to the current, expanded concept of the dying declaration exception. See Commonwealth v. Nesbitt, 452 Mass. at 252 n.17, citing G. L. c. 233, § 64 (addressing admissibility of dying declarations of a female whose death results from an unlawful abortion in violation of G. L. c. 272, § 19 ), and Commonwealth v. Key , 381 Mass. 19, 26 (1980) (expanding the common-law exception by admitting a dying declaration to prove the homicides of other common victims).
The declarant’s belief of impending death may be inferred from the surrounding circumstances, including the character of the injury sustained. See Commonwealth v. Moses , 436 Mass. 598, 602 (2002) (“Jenkins had been shot four times shortly before making the statement. Two bullets had pierced his chest, one of which had lodged in his spine. When police and emergency personnel arrived, he was ‘very frightened,’ grimacing in pain, bleeding, and asking for oxygen. He asked a treating emergency medical technician if he were going to die. She told him that ‘it didn’t look too good’ for him. In the circumstances, it was not error for the judge to find that Jenkins believed at the time he made the statements that death was imminent.”); Commonwealth v. Niemic , 427 Mass. 718, 724 (1998) (“The evidence showed that, when the officer found the victim, he had been stabbed in the heart and was bleeding profusely. There was also testimony that, at the hospital, he was ‘breathing heavily’ and ‘appeared to be having a hard time’ and that the officer questioning him ‘had to work to get his attention to focus.’ It was permissible to infer from this that the victim was aware that he was dying.”).
Before admitting the dying declaration, the trial judge must first determine by a preponderance of the evidence that the requisite elements of a dying declaration are satisfied. Commonwealth v. Green , 420 Mass. 771, 781–782 (1995). If the statement is admitted, the judge must then instruct the jury that they must also find by a preponderance of the evidence that the same elements are satisfied before they may consider the substance of the statement. Id.
The broader statutory exception for declarations of a deceased person set forth in G. L. c. 233, § 65 , applies only in civil cases. Commonwealth v. Dunker , 363 Mass. 792, 794 n.1 (1973).
Subsection (b)(3). This subsection is derived from Commonwealth v. Carr , 373 Mass. 617, 622–624 (1977), and Commonwealth v. Charles , 428 Mass. 672, 679 (1999). See also Williamson v. United States , 512 U.S. 594 (1994). This subsection is applicable only to “statements made by witnesses, not parties to the litigation or their privies or representatives.” Commonwealth v. McLaughlin , 433 Mass. 558, 565 (2001), quoting P.J. Liacos, Massachusetts Evidence § 8.10 (7th ed. 1999). This exception against penal interest is applicable in civil and criminal cases. See Zinck v. Gateway Country Store, Inc. , 72 Mass. App. Ct. 571, 575 (2008). The admission by a party-opponent need not be a statement against the declarant’s penal or proprietary interest. See Section 801(d)(2), Definitions: Statements That Are Not Hearsay: An Opposing Party's Statement.
A declarant’s narrative may include self-inculpatory and self-exculpatory elements.
“[A]pplication of the evidentiary rule concerning declarations against penal interest to a full narrative requires breaking out which parts, if any, of the declaration are actually against the speaker’s penal interest. Further, application of the hearsay exception requires determination whether the declaration has an evidentiary connection and linkage to the matters at hand in the trial.”
Commonwealth v. Marrero , 60 Mass. App. Ct. 225, 229 (2003). When the self-inculpatory aspect of the narrative is very limited, the trial judge has discretion either to exclude it entirely or “to allow it in with some limited ‘necessary surrounding context’ to prevent its significance from being distorted” by opposing counsel. Commonwealth v. Dejarnette , 75 Mass. App. Ct. 88, 99 (2009).
The judge’s role in determining the admissibility of a statement against interest is to determine “whether, in light of the other evidence already adduced or to be adduced, there is some reasonable likelihood that the statement could be true.” Commonwealth v. Drew , 397 Mass. 65, 76 (1986). This means that in accordance with Section 104(b), Preliminary Questions: Relevance That Depends on a Fact, the question whether to believe the declarant’s statement is ultimately for the jury. Id.
A statement may qualify for admission as a declaration against penal interest even though it supplies circumstantial, and not direct, evidence of the declarant’s guilt. See Commonwealth v. Charles , 428 Mass. 672, 679 (1999). In Commonwealth v. Charles, the Supreme Judicial Court also indicated that even though the exception does not explicitly require corroboration when the statement is introduced against the defendant, it would follow the majority rule and require it in such cases. Id. at 679 n.2. See, e.g., Commonwealth v. Pope , 397 Mass. 275, 280 (1986) (reversing defendant’s conviction based on erroneous admission of extrajudicial statement of a deceased witness; “[w]e do not believe that concern for penal consequence would inspire a suicide victim to truthfulness”).
In criminal cases, “[i]n applying the corroboration requirement, judges are obliged to . . . consider as relevant factors the degree of disinterestedness of the witnesses giving corroborating testimony as well as the plausibility of that testimony in the light of the rest of the proof.” Commonwealth v. Carr, 373 Mass. at 624. The Supreme Judicial Court has explained that
“behind the corroboration requirement of [Fed. R. Evid.] 804(b)(3) lurks a suspicion that a reasonable man might sometimes admit to a crime he did not commit. A classic example is an inmate, serving time for multiple offenses, who has nothing to lose by a further conviction, but who can help out a friend by admitting to the friend’s crime.”
Commonwealth v. Drew, 397 Mass. at 74 n.8. The Supreme Judicial Court has stated that
“[o]ther factors the judge may consider are: the timing of the declaration and the relationship between the declarant and the witness, the reliability and character of the declarant, whether the statement was made spontaneously, whether other people heard the out-of-court statement, whether there is any apparent motive for the declarant to misrepresent the matter, and whether and in what circumstances the statement was repeated” (citation omitted).
Id. at 76. However,
“[i]n determining whether the declarant’s statement has been sufficiently corroborated to merit its admission in evidence, the judge should not be stringent. A requirement that the defendant corroborate the declarant’s entire statement, for example, may run afoul of the defendant’s due process rights . . . . If the issue of sufficiency of the defendant’s corroboration is close, the judge should favor admitting the statement. In most such instances, the good sense of the jury will correct any prejudicial impact.” (Citation omitted.)
Id. at 75 n.10. See Commonwealth v. Nutbrown , 81 Mass. App. Ct. 773, 779–780 (2012) (in deciding whether statement is “trustworthy,” trial judge must look only to credibility of declarant, leaving it to jury to determine credibility of witness who testifies to declaration). There is no requirement that when the statement is offered by the defendant, the exculpatory portion must also inculpate the declarant. See Commonwealth v. Keizer , 377 Mass. 264, 270 (1979).
Subsection (b)(4)(A). This subsection is derived from Haddock v. Boston & Maine R.R. , 85 Mass. 298, 300–301 (1862), and Butrick v. Tilton, 155 Mass. 461, 466 (1892). In Haddock v. Boston & Maine R.R., 85 Mass. at 298–299, the court allowed a witness to testify that she came into ownership of the property through her mother and grandmother even though the only basis for her knowledge was what the person she alleged to be her mother said to her. In Butrick v. Tilton , 155 Mass. at 466, also a dispute over title to real property, the court permitted the alleged owner’s granddaughter to testify as to how her grandfather came into ownership of the real estate, and that a cousin who owned the property before her grandfather died without children, based exclusively on what other family members told her and without any personal knowledge. See also Section 803(13), Hearsay Exceptions; Availability of Declarant Immaterial: Family Records; Section 803(19), Hearsay Exceptions; Availability of Declarant Immaterial: Reputation Concerning Personal or Family History.
Subsection (b)(4)(B). Massachusetts has not yet had occasion to consider Fed. R. Evid. 804(b)(4)(B), which extends the principle of Section 804(b)(4)(A) to others to whom the declarant is related by “blood, adoption or marriage,” or to whom the declarant is so “intimately associated with . . . as to be likely to have accurate information concerning the matter declared.”
Subsection (b)(5)(A). This subsection is taken verbatim from G. L. c. 233, § 65 . This hearsay exception applies in “all civil cases.” Harrison v. Loyal Protective Life Ins. Co. , 379 Mass. 212, 219 (1979). It does not apply in criminal proceedings. Commonwealth v. Cyr , 425 Mass. 89, 94 n.9 (1997). Nor is it available to a party attempting to perpetuate the testimony of a person who is expected to die shortly. Anselmo v. Reback , 400 Mass. 865, 868–869 (1987). See G. L. c. 233, §§ 46, 47 ; Mass. R. Civ. P. 27(a) (requirements to perpetuate testimony). The proponent of the evidence has the burden of establishing the foundational requirements of good faith and personal knowledge for the admissibility of the evidence. Kelley v. Jordan Marsh Co. , 278 Mass. 101, 106 (1932). Whether the proponent has met this burden, including proof that the statement was actually made, is a preliminary question of fact for the trial judge under Section 104(a), Preliminary Questions: In General. See Slotofski v. Boston Elevated Ry. Co. , 215 Mass. 318, 321 (1913).
The only ground of unavailability is the death of the declarant. G. L. c. 233, § 65 . In the absence of a finding of good faith, the statement is not admissible. See Barbosa v. Hopper Feeds, Inc. , 404 Mass. 610, 620 (1989) (excluding declaration because it was made after the injury suffered by the plaintiff and at the time when the now-deceased person had an incentive to fabricate). “In general [the declarations] must be derived from the exercise of the declarant’s own senses as distinguished from opinions based upon data observed by him or furnished by others.” Little v. Massachusetts N.E. St. Ry. Co. , 223 Mass. 501, 504 (1916). “The declarations of the deceased may be in writing and need not be reproduced in the exact words used by the declarant” (citations omitted). Bellamy v. Bellamy , 342 Mass. 534, 536 (1961). See id. (oral statements also admissible).
Subsection (b)(5)(B). This subsection is taken verbatim from G. L. c. 233, § 65A . See Thornton v. First Nat’l Stores, Inc. , 340 Mass. 222, 225 (1960). See also Mass. R. Civ. P. 33 (interrogatories to parties).
Subsection (b)(5)(C). This subsection is taken nearly verbatim from G. L. c. 233, § 66 . In Rothwell v. First Nat’l Bank , 286 Mass. 417, 421 (1934), the Supreme Judicial Court explained the difference between Section 65 and Section 66 of G. L. c. 233. “[Section 66] is narrower than the other, in that it relates to the declarations or conduct of one person in one sort of case. But it requires no preliminary finding of good faith or other conditions. These two statutes operate concurrently and independently.” Id. See Greene v. Boston Safe Deposit & Trust Co. , 255 Mass. 519, 524 (1926).
Subsection (b)(5)(D). This subsection is taken verbatim from G. L. c. 233, § 79H .
Subsection (b)(5)(E). This subsection is taken verbatim from G. L. c. 152, § 20B . The statutory exception, however, might not overcome the further objection that it contains hearsay-within-hearsay in the form of statements to the employee’s physician about how an injury occurred. See Fiander’s Case , 293 Mass. 157, 164 (1936).
Subsection (b)(6). This subsection is derived from Commonwealth v. Edwards , 444 Mass. 526, 540 (2005). See Giles v. California , 554 U.S. 353, 373 (2008) (holding that the Sixth Amendment right to confrontation is not forfeited by wrongdoing unless the defendant acted with the intent to render the witness unavailable); Crawford v. Washington , 541 U.S. 36, 62 (2004) (“[T]he rule of forfeiture by wrongdoing [which we accept] extinguishes confrontation claims on essentially equitable grounds.”). The Massachusetts common-law doctrine expressed in this subsection is fully consistent with the Federal doctrine set forth in Fed. R. Evid. 804(b)(6):
“By requiring that the defendant actively assist the witness in becoming unavailable with the intent to make her unavailable, our doctrine of forfeiture by wrongdoing is at least as demanding as Fed. R. Evid. 804(b)(6), which permits a finding of forfeiture where the defendant ‘acquiesced’ in conduct that was intended to, and did, make the witness unavailable to testify.”
Commonwealth v. Szerlong , 457 Mass. 858, 862–863 (2010).
“A defendant’s involvement in procuring a witness’s unavailability need not consist of a criminal act, and may include a defendant’s collusion with a witness to ensure that the witness will not be heard at trial.” Commonwealth v. Edwards, 444 Mass. at 540. In Edwards, the Supreme Judicial Court elaborated on the scope of this exception.
“A finding that a defendant somehow influenced a witness’s decision not to testify is not required to trigger the application of the forfeiture by wrongdoing doctrine where there is collusion in implementing that decision or planning for its implementation. Certainly, a defendant must have contributed to the witness’s unavailability in some significant manner. However, the causal link necessary between a defendant’s actions and a witness’s unavailability may be established where (1) a defendant puts forward to a witness the idea to avoid testifying, either by threats, coercion, persuasion, or pressure; (2) a defendant physically prevents a witness from testifying; or (3) a defendant actively facilitates the carrying out of the witness’s independent intent not to testify. Therefore, in collusion cases (the third category above) a defendant’s joint effort with a witness to secure the latter’s unavailability, regardless of whether the witness already decided ‘on his own’ not to testify, may be sufficient to support a finding of forfeiture by wrongdoing.” (Footnote omitted.)
Id. at 540–541. “[W]here the defendant has had a meaningful impact on the witness’s unavailability, the defendant may have forfeited confrontation and hearsay objections to the witness’s out-of-court statements, even where the witness modified the initial strategy to procure the witness’s silence.” Id. at 541. See also Commonwealth v. Szerlong, 457 Mass. at 865–866 (evidence that defendant married alleged victim of his assault with the intent to enable her to exercise her spousal privilege at trial supported application of the doctrine of forfeiture by wrongdoing and thus the use of his wife’s hearsay statements made before the marriage, even though it may not have been defendant’s sole or primary purpose).
The proponent of the statement must prove that the opposing party procured the witness’s unavailability by a preponderance of the evidence. Commonwealth v. Edwards, 444 Mass. at 542. “[P]rior to a determination of forfeiture, the parties should be given an opportunity to present evidence, including live testimony [and the unavailable witness’s out-of-court statements], at an evidentiary hearing outside the jury’s presence.” Id. at 545. The trial judge should make the findings required by Commonwealth v. Edwards either orally on the record or in writing. Commonwealth v. Szerlong, 457 Mass. at 864 n.9.
Subsection (b)(7). This subsection is derived from Kennedy v. Doyle , 92 Mass. 161, 168 (1865) (where the court admitted a baptismal record showing child’s date of birth as evidence of the person’s age when a contract had been made, in circumstances in which the entry was in the hand of the parish priest who had been the custodian of the book; Supreme Judicial Court observed that “[a]n entry made in the performance of a religious duty is certainly of no less value than one made by a clerk, messenger or notary, an attorney or solicitor or a physician, in the course of his secular occupation.”). Contrast Derinza’s Case , 229 Mass. 435, 443 (1918) (copies of what purported to be a marriage certificate from a town in Italy not admitted in evidence; Supreme Judicial Court observed that there was no “evidence respecting their character, the circumstances under which the records were kept, or the source from which the certificates came. No one testified that they were copies of an official original. There was no authentication of them as genuine by a consular officer of the United States. There was absolutely nothing beyond the bare production of the copies of the certificates. In the absence of a statute making such certificates admissible by themselves, or something to show that they were entitled to a degree of credence, they were not competent.”). See Section 803(6), Hearsay Exceptions; Availability of Declarant Immaterial: Business and Hospital Records.
Subsection (b)(8)(A). Subsections (b)(8)(A) through (b)(8)(A)(iv) are taken nearly verbatim from G. L. c. 233, § 81(a) , and Subsection (b)(8)(A)(v) is derived from Commonwealth v. Colin C. , 419 Mass. 54, 64–66 (1994). See generally Opinion of the Justices , 406 Mass. 1201 (1989) (concluding that bill on related topic would, if enacted, offend the Massachusetts Constitution). The prosecution must give prior notice to the criminal defendant that it will seek to admit hearsay statements under this statute. Commonwealth v. Colin C., 419 Mass. at 64. It must also show a compelling and necessary need to use this procedure by more than a preponderance of evidence. Id. at 64–65.
Subsection (b)(8)(B). This subsection is taken nearly verbatim from G. L. c. 233, § 81(b) . See Section 804(a), Hearsay Exceptions; Declarant Unavailable: Criteria for Being Unavailable. A judge’s reasons for finding a child incompetent to testify should not be the same reasons for doubting the reliability of the child’s out-of-court statements. Commonwealth v. Colin C. , 419 Mass. 54, 65 (1994).
Subsection (b)(8)(C). This subsection is taken nearly verbatim from G. L. c. 233, § 81(c) . The separate hearing regarding the reliability of the out-of-court statement must be on the record, and the judge’s determination of reliability must be supported by specific findings on the record. Commonwealth v. Colin C. , 419 Mass. 54, 65 (1994). See Commonwealth v. Joubert , 38 Mass. App. Ct. 943, 945 (1995). The statement must be substantially reliable to be admissible. Commonwealth v. Joubert, 38 Mass. App. Ct. at 94. See Commonwealth v. Almeida , 433 Mass. 717, 719–720 (2001) (statements of sleeping child were not admissible because they lacked indicia of reliability). The defendant and his or her counsel should be given the opportunity to attend the hearing if it would not cause the child witness severe emotional trauma. Commonwealth v. Colin C., 419 Mass. at 65.
Subsection (b)(8)(D). This subsection is derived from Commonwealth v. Colin C. , 419 Mass. 54, 66 (1994).
Subsection (b)(8)(E). This subsection is taken nearly verbatim from G. L. c. 233, § 81(d) .
Subsection (b)(9)(A). Subsections (b)(9)(A)(i) through (iv) are taken nearly verbatim from G. L. c. 233, § 82 , and Subsection (b)(9)(A)(v) is derived from Adoption of Quentin , 424 Mass. 882, 893 (1997). See Commonwealth v. Colin C. , 419 Mass. 54, 64–66 (1994) (establishing additional procedural requirements for admitting hearsay statements of child under G. L. c. 233, § 81 ). The Department of Children and Families must give prior notice to the parents that it will seek to admit hearsay statements under this statute. Adoption of Quentin, 424 Mass. at 893. It must also show a compelling and necessary need to use this procedure by more than a preponderance of evidence. Id. See also Adoption of Arnold , 50 Mass. App. Ct. 743, 752 (2001); Adoption of Tina , 45 Mass. App. Ct. 727, 733–734 (1998) (recognizing additional procedural requirements). When a care and protection proceeding is joined with a petition to dispense with consent to adoption, admissibility of a child’s hearsay statements should comply with the stricter requirements of G. L. c. 233, § 82 , not § 83. Adoption of Tina, 45 Mass. App. Ct. at 733 n.10. The phrase “child under the age of ten” refers to the age of the child at the time the statement was made, not the child’s age at the time of the proceeding. Adoption of Daisy , 460 Mass. 72, 78 (2011).
Subsection (b)(9)(B). This subsection is taken nearly verbatim from G. L. c. 233, § 82(b) . See Adoption of Sean , 36 Mass. App. Ct. 261, 266 (1994). See also Section 804(a), Hearsay Exceptions; Declarant Unavailable: Criteria for Being Unavailable.
Subsection (b)(9)(C). This subsection is taken nearly verbatim from G. L. c. 233, § 82(c) . Note that it appears that the Legislature inadvertently omitted from G. L. c. 233, § 82 , the following: “finds: (1) after holding a separate hearing, that such . . . .” We have inserted that language in the subsection above. See Adoption of Quentin , 424 Mass. 882, 890 n.5 (1997) (noting omission). A judge must make sufficient findings of reliability to admit the statements. See Adoption of Tina , 45 Mass. App. Ct. 727, 733 (1998); Edward E. v. Department of Social Servs. , 42 Mass. App. Ct. 478, 484–486 (1997). The separate hearing regarding the reliability of the out-of-court statement must be on the record, and the judge’s determination of reliability must be supported by specific findings on the record. Adoption of Quentin, 424 Mass. at 893. See Commonwealth v. Colin C. , 419 Mass. 54, 65 (1994). See also Adoption of Olivette , 79 Mass. App. Ct. 141, 149–150 (2011).
Subsection (b)(9)(D). This subsection is derived from Adoption of Quentin , 424 Mass. 882, 893 (1997). See Commonwealth v. Colin C. , 419 Mass. 54, 66 (1994). See also Adoption of Arnold , 50 Mass. App. Ct. 743, 753 (2001) (examples of corroborating evidence).
Subsection (b)(9)(E). This subsection is taken verbatim from G. L. c. 233, § 82(d) .
Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule in accordance with the common law, a statute, or a rule of court.
This section is derived from Commonwealth v. Gil , 393 Mass. 204, 218 (1984), and Bouchie v. Murray , 376 Mass. 524, 528–530 (1978). See Commonwealth v. McDonough , 400 Mass. 639, 643 n.8 (1987). This type of layered hearsay is commonly referred to as “multiple hearsay,” see Commonwealth v. Gil, 393 Mass. at 218; “totem pole hearsay,” see Commonwealth v. Santiago , 437 Mass. 620, 627 n.4 (2002); or “hearsay within hearsay,” see Fed. R. Evid. 805. The decisions in Bouchie v. Murray, 376 Mass. at 528–530, and Custody of Tracy , 31 Mass. App. Ct. 481, 484–486 (1991), illustrate the principle that under the terms of certain exceptions to the hearsay rule, the statements of multiple out-of-court declarants appearing in a single report or writing may be admissible, provided that each such statement falls within the applicable hearsay exception. See also Commonwealth v. Alcantara , 471 Mass. 550, 558–559 (2015).
Use of “totem pole hearsay” or “multiple hearsay” must conform to the principles of due process. The party against whom such evidence is to be used must have a meaningful opportunity to rebut the adverse evidence. Brantley v. Hampden Div. of the Probate & Family Ct. Dep’t , 457 Mass. 172, 185–186 (2010) (documents “comprised of abbreviated oral summaries of voluminous records made by persons who may have no firsthand experience with the case” were unreliable and judge’s consideration of such documents could run afoul of litigants’ due process rights).
When a hearsay statement has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.
This section is taken from Commonwealth v. Mahar , 430 Mass. 643, 649 (2000), in which the Supreme Judicial Court “accept[ed] the principles of proposed [Mass. R. Evid.] 806.” See Commonwealth v. Gray , 463 Mass. 731, 748 & n.17 (2012) (quoting with approval Mass. G. Evid. § 806 and ruling that grand jury testimony of unavailable witness Jamison, who identified photograph of person other than defendant as perpetrator, was erroneously precluded to impeach witness’s testimony at trial that Jamison had identified defendant). See also Commonwealth v. Pina , 430 Mass. 66, 76 (1999) (“We now adopt the rule in the circumstances of this case.”); Commonwealth v. Sellon , 380 Mass. 220, 224 n.6 (1980).
Unlike the Federal Rules of Evidence, Massachusetts does not recognize a “residual” exception to the hearsay rule. The Supreme Judicial Court, however, has recognized “a narrow, constitutionally based exception to the hearsay rule, which applies where otherwise inadmissible hearsay is critical to the defense and bears persuasive guarantees of trustworthiness.” Commonwealth v. Drayton , 473 Mass. 23, 25 (2015) (the affidavit of a deceased witness). The court noted that it had previously recognized a criminal defendant’s right to admit “otherwise inadmissible hearsay evidence to support the assertion that a third party is the true culprit, provided certain conditions are met,” and that it identified “no persuasive reasons for confining [its] recognition of a constitutionally based hearsay exception to the context of third-party culprit evidence.” Id. at 36. Nevertheless, the court emphasized that
“[i]n the vast majority of cases, the established hearsay exceptions will continue to govern the admissibility of hearsay evidence at most criminal trials, with this constitutional hearsay exception operating only in the rarest of cases, where otherwise inadmissible evidence is both truly critical to the defense’s case and bears persuasive guarantees of trustworthiness.”
Id. at 40. See generally id. at 33–38 (discussing Chambers v. Mississippi , 410 U.S. 284 (1973)). See also Commonwealth v. Dame , 473 Mass. 524, 533 n.17 (2016) (defendant’s sister’s exculpatory hearsay statements to police were neither “critical to the defense” nor bearing “persuasive guarantees of trustworthiness”).
Cross-Reference: Note to Section 1105, Third-Party Culprit Evidence.