Guide to Evidence
Article VIII. Hearsay

Guide to Evidence  Section 802. The rule against hearsay

Adopted Date: 02/01/2025

Table of Contents

Section 802

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.

Note

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:

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).

Downloads

Contact

Help Us Improve Mass.gov  with your feedback

Please do not include personal or contact information.
Feedback