Guide to Evidence  Article VIII. Introductory note

Unlike civil cases, where hearsay evidence is admissible upon a finding that one of the recognized exceptions has been satisfied, the admission of hearsay offered by the Commonwealth in a criminal case requires an additional level of analysis under the confrontation clause of the Sixth Amendment to the Constitution of the United States and under Article 12 of the Massachusetts Declaration of Rights. Thus, an out-of-court statement admissible for its truth under the hearsay rule must also satisfy the requirements of the confrontation clause and Article 12 to be admissible in a criminal case.

The United States Supreme Court established the constitutional limitation on the admission of hearsay evidence in criminal cases in Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the Court explained that the Sixth Amendment embodies a criminal defendant’s common-law right to confront witnesses, subject only to those exceptions that existed at the time of the amendment’s framing in 1791. Id. at 54. As a result, the Court held that the confrontation clause bars the admission of “testimonial statements” from a government witness in a criminal case who is not present at trial and subject to cross-examination unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Id. at 53–54. The Supreme Judicial Court has held that the constitutional protection in Article 12 is “coextensive” with the Sixth Amendment right to confrontation. Commonwealth v. Lao, 450 Mass. 215, 223 (2007). But see Subsection (c) below, addressing the defendant’s Article 12 right to meet witnesses “face to face” as applied to child victims of sexual assault. In addition, Massachusetts common law provides additional protection in the area of expert testimony. See Subsection (a)(2) below.

In most cases, the analysis of the admissibility of a relevant out-of-court statement in a criminal case involves four determinations that encompass both hearsay and confrontation clause principles:

1. Whether the out-of-court statement is hearsay
2. Whether the hearsay statement satisfies a recognized exception
3. Whether the hearsay statement is “testimonial”
4. Whether the declarant of a testimonial hearsay statement is unavailable and was previously subject to cross-examination

Commonwealth v. Caruso, 476 Mass. 275, 295 n.15 (2017).

The confrontation clause does not bar the admission of statements offered for reasons other than to prove their truth. Commonwealth v. Santana, 477 Mass. 610, 621–622 (2017). The confrontation clause analysis is required only if the first two criteria for the admission of hearsay are met, i.e., the out-of-court statement is offered to prove its truth, and the statement satisfies a hearsay exception. Commonwealth v. Andrade, 488 Mass. 522, 535 (2021). In that case, the trial judge must proceed to determine whether the statement is testimonial, in which case it is admissible only if the defendant’s right to confront witnesses has been secured by an earlier cross-examination and the witness is currently unavailable. Cross-Reference: Section 803, Hearsay Exceptions; Availability of Declarant Immaterial; Section 804, Hearsay Exceptions; Declarant Unavailable.

(1) Testimonial Versus Nontestimonial; the Primary Purpose Test.

The “primary purpose” test governs whether an out-of-court hearsay statement is testimonial. An out-of-court statement, whether written or oral, is testimonial if it is made “with the primary purpose of creating an out-of-court substitute for trial testimony.” Commonwealth v. Wardsworth, 482 Mass. 454, 464 (2019). The primary purpose analysis replaces earlier distinctions between evidence that was testimonial per se and testimonial in fact. Id. at 464 n.18. The test is objective, focusing not on the declarant’s intent, but on “the primary purpose that a reasonable person would have ascribed to the statement, taking into account all of the surrounding circumstances.” Id. at 464. See Michigan v. Bryant, 562 U.S. 344, 360 (2011). The fact that the declarant of a nontestimonial statement cannot be identified does not violate the confrontation clause. Andrade, 488 Mass. at 537.

(A) Statements.

Statements to Law Enforcement Officers.

The determination whether an out-of-court statement made to a law enforcement officer is testimonial is fact-intensive. The inquiry generally focuses on whether the statement was made as part of an investigation or to assist the response to a medical or public safety emergency. See Wardsworth, 482 Mass. at 464 (declarant’s statements to police investigating alibis of potential suspects, made an hour after shooting, were testimonial). Although a statement does not have to be made during an ongoing emergency to be considered nontestimonial, “when pre-occupied by an ongoing emergency, a victim is unlikely to have the presence of mind to create a substitute for trial testimony.” Commonwealth v. Rand, 487 Mass. 811, 817 (2021). The Supreme Judicial Court has 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, including 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. Commonwealth v. Middlemiss, 465 Mass. 627, 644–634 (2013). See Rand, 487 Mass. at 820–821 (reasonable person in position of assault victim would be concerned about defendant’s possible return rather than creating trial testimony); Commonwealth v. Mulgrave, 472 Mass. 170, 180 (2015) (victim’s text that omitted assailant’s name not likely to be testimonial statement “at-tempting to establish her perpetrator’s identity”); Commonwealth v. Smith, 460 Mass. 385, 394 (2011) (victim’s conduct and demeanor supported finding that her statements to police were made during an ongoing emergency and were not intended to serve “prosecutorial purpose”); Commonwealth v. Beatrice, 460 Mass. 255, 262–263 (2011) (victim’s narration of events as they were occurring indicated presence of ongoing emergency).

The primary purpose of police questioning that begins as nontestimonial may become testimonial based on the receipt of additional information or changed circum-stances, and, once testimonial, it is unlikely to shift back. Rand, 487 Mass. at 818.

Statements to Medical Providers and Lay Witnesses.

Statements made to medical personnel are often for the purpose of obtaining medical care or other emergency aid and thus unlikely to be testimonial. See Commonwealth v. Hart, 493 Mass. 130, 132, 144–146 (2023) (where victim was found by her personal nurse with extreme and near-fatal injuries, victim’s statements that assailants “tried to kill her” and “kept putting a pillow over her face and tried to smother her” were made during ongoing emergency, even after nurse said that help was on the way); Commonwealth v. Brum, 492 Mass. 581, 596 (2023) (victim’s “flustered” statement to girlfriend that “DB stabbed me” was excited utterance and not testimonial because it was made to seek aid for medical emergency and did not demonstrate “intent to create a substitute for trial testimony”). Descriptions of recent events that are admissible as spontaneous utterances do not violate the confrontation clause where the circumstances show no intent to create testimony. See Commonwealth v. McGann, 484 Mass. 312, 315–318 (2020) (victim’s calls to his mother after assaults to convey his concerns about defendant were non-testimonial, as he was hysterical and there was no indication that victim expected his mother to contact police); Commonwealth v. Imbert, 479 Mass. 575, 580 (2018) (statement urging fellow patrons to flee scene of nightclub shooting did not violate confrontation clause). Statements contained in hospital records are not testimonial when the records “demonstrate, on their face, that [the statements] were included for the purpose of medical treatment.” Commonwealth v. Irene, 462 Mass. 600, 618 (2012).

Under the primary purpose test, statements by declarants, such as very young children, who lack understanding of the criminal justice system “will rarely, if ever, implicate the Confrontation Clause.” Ohio v. Clark, 576 U.S. 237, 247–248 (2015).

Joint Venturers’ Statements.

Statements made in furtherance of a joint venture are not usually testimonial. Commonwealth v. Carriere, 470 Mass. 1, 8–9 (2014). See Commonwealth v. Trotto, 487 Mass. 708, 722 (2021) (coventurers’ responses to police questions during routine traffic stop not testimonial because officer was not investigating victim’s death). However, once the joint venture has ended, a codefendant’s out-of-court statement to an officer investigating the crime violates the confrontation clause. See Commonwealth v. Wardsworth, 482 Mass. 454, 464 (2019) (codefendant’s response to police questions about defendant’s whereabouts at time of shooting an hour earlier was testimonial). The mere presence of a police officer who overhears statements between coconspirators does not make the statements testimonial. Commonwealth v. Robertson, 489 Mass. 226, 232 (2022).

(B) Records Admitted Without Live Testimony.

The confrontation clause analysis applies equally to documents, which are subject to exclusion if their contents are “testimonial.” A chemist’s analytic certificate that a substance is a drug or is of a specific weight is testimonial because it is created for the purpose of proving an essential fact at trial. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310–311 (2009). See Commonwealth v. Ramsey, 466 Mass. 489, 492–493 (2013) (error to admit ballistics certificate to establish that weapon could be fired).

Public records are not testimonial if they were created for routine administrative purposes and not to prove a fact or element at trial. Melendez-Diaz, 557 U.S. at 324. Compare Commonwealth v. Fulgiam, 477 Mass. 20, 41–42 (2017) (fingerprint cards created in routine conduct of State police business), Commonwealth v. Zeininger, 459 Mass. 775, 788–789 (2011) (office of alcohol testing certification records reflecting testing performed prospectively in primary aid of administration of regulatory program did not violate confrontation clause), Commonwealth v. Fox, 81 Mass. App. Ct. 244, 246 (2012) (sexual offender registry records not created to prove fact at trial admitted without violation of confrontation clause), and Commonwealth v. Shangkuan, 78 Mass. App. Ct. 827, 833–834, 837 (2011) (admission of G. L. c. 209A return of service, which was created to serve routine administrative functions of court system, did not violate defendant’s confrontation clause rights), with Commonwealth v. Parenteau, 460 Mass. 1, 8–10 (2011) (Registry of Motor Vehicles certificate attesting that notice of license suspension or revocation was sent to defendant, which would have been admissible if created contemporaneously with mailing, was testimonial when created two months after criminal complaint issued).

A death certificate with the means and manner of death redacted generally does not violate a defendant’s confrontation rights. Commonwealth v. Almonte, 465 Mass. 224, 242 (2013). However, in cases of unnatural death or obvious homicide, a statement about the cause of death is testimonial. Commonwealth v. Carr, 464 Mass. 855, 875–876 (2013) (medical examiner who attributed death to “gunshot wound to head” could reasonably anticipate statement would be used at trial). See also Commonwealth v. Trotto, 487 Mass. 708, 729 (2021) (“delayed return of death certificate” that appeared to have been “deliberately created” to prove essential element of charged crime at trial was testimonial). Similarly, a record created for trial to prove the absence of an entry in a registry or database, although otherwise admissible under Section 803(7) or (10), below, is likely to violate the confrontation clause unless accompanied by the testimony of a live witness. See Commonwealth v. Guardado, 491 Mass. 666, 694–695 (Lowy, J., concurring), S.C., 493 Mass. 1 (2023).

The confrontation clause does not apply to computer-generated documents, which are not “statements” and therefore not hearsay. See Commonwealth v. Davis, 487 Mass. 448, 465 (2021) (map containing computer-generated markings and labels was not hearsay).

(2) Expert Testimony.

The confrontation clause prohibits the introduction of testimonial hearsay in support of an expert’s opinion. Smith v. Arizona, 144 S. Ct. 1785, 1791 (2024). This principle gives constitutional status to the Massachusetts common-law rule that allows an expert witness to base an opinion on data collected by others but prohibits the prosecution from eliciting the details of that hearsay data on direct examination. See Commonwealth v. Greineder, 464 Mass. 580, 592–592, cert. denied, 571 U.S. 865 (2013). In addition, Massachusetts common law entitles the defendant to a “meaningful opportunity” to cross-examine an expert about the reliability of the data underlying the opinion. Id. at 595. See Commonwealth v. Tassone, 468 Mass. 391, 399–402 (2014). Cross-Reference: Section 703, Bases of Opinion Testimony by Experts.

An expert who has no personal knowledge of the underlying data or analysis may nevertheless form and express an independent opinion based on an examination of the data if it is the type of data upon which experts in the field customarily rely. Commonwealth v. Reavis, 465 Mass. 875, 882–883 (2013). See Commonwealth v. Leiva, 484 Mass. 766, 790–793 (2020) (substitute medical examiner properly relied on his own examination of autopsy report, photographs, and victim’s clothing in testifying). However, on direct examination, the expert may not testify to the details or contents of underlying hearsay facts or data. See Commonwealth v. Nardi, 452 Mass. 379, 388 (2008) (pathologist who did not perform autopsy could describe photographs, which are not hearsay, but not autopsy findings, which are testimonial hearsay). On cross-examination, the defendant has the option to waive the protection of the confrontation clause and elicit the underlying data. Commonwealth v. Barbosa, 457 Mass. 773, 785 (2010), cert. denied, 563 U.S. 990 (2011).

An expert who is involved in testing as a main analyst, double reader, or supervisor has sufficient personal knowledge to testify about the results. Commonwealth v. Kolenovic, 478 Mass. 189, 205 (2017). See Commonwealth v. Honsch, 493 Mass. 436, 451 (2024) (expert who performed step in ACE-V fingerprint analysis could testify to his own conclusions but not to the second analyst’s independent verification); Commonwealth v. Barry, 481 Mass. 388, 407–408 (2019) (expert who personally reviewed DNA testing results could interpret that data even if he did not physically test samples himself). While an expert may testify about an independent analysis of samples or data, the expert cannot testify about how evidence was collected or handled without personal knowledge of the process. Commonwealth v. Jones, 472 Mass. 707, 715–716 (2015). See Commonwealth v. Holbrook, 482 Mass. 596, 602 (2019) (computer forensic examiner’s testimony that different expert found “nothing of evidentiary value” on hard drive violated confrontation clause).

The confrontation clause does not bar the admission of statements that would otherwise be testimonial, even though the declarant is not available for cross-examination, when the statements are introduced for purposes other than establishing the truth of the matter asserted. 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. See Commonwealth v. Bergstrom, 402 Mass. 534, 541–542 (1988). See also 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).

The right to confrontation may be waived. See Commonwealth v. Fontanez, 482 Mass. 22, 33 (2019) (by choosing to remain out of view during hearing on his motion to suppress victim’s identification, defendant waived his confrontation clause rights when at trial victim was unavailable and Commonwealth offered victim’s prior recorded testimony from motion hearing); 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.”). Defendants must be competent to plead guilty in order to waive their presence at trial. Commonwealth v. L’Abbe, 421 Mass. 262, 268–269 (1995).

Defendants do not waive their right, under the confrontation clause, to exclude testimonial hearsay, or otherwise open the door to its admission, merely by making it relevant to their defense. See Hemphill v. New York, 142 S. Ct. 681, 692 (2022) (by eliciting undisputed evidence that police had recovered ammunition of same caliber as murder weapon from another suspect’s apartment, defendant did not waive his right to exclude other suspect’s guilty plea allocution to possession of different caliber gun, which prosecution contended was necessary to correct a misleading impression, where other suspect was not available for cross-examination).