Guide to Evidence Statement of the Supreme Judicial Court and Introduction
Trial Court Law Libraries
Table of Contents
Mark Pettit, Jr.
Professor of Law, Boston University School of Law
This 2019 edition of the Massachusetts Guide to Evidence is dedicated to the memory of Professor Mark Pettit, Jr., a cherished member of the Supreme Judicial Court Advisory Committee on the Law of Evidence, and a distinguished teacher, scholar, and administrator at Boston University School of Law.
There are stars whose radiance is visible on earth though they have long been extinct.
There are people whose brilliance continues to light the world even though they are no longer among the living.
Hannah Szenes (Chanah Senesh)
Supreme Judicial Court
The Supreme Judicial Court recommends the use of the Massachusetts Guide to Evidence. Our recommendation of the Massachusetts Guide to Evidence is not to be interpreted as an adoption of a set of rules of evidence, nor a predictive guide to the development of the common law of evidence. The purpose of the Massachusetts Guide to Evidence is to make the law of evidence more accessible and understandable to the bench, bar, and public. We encourage all interested persons to use the Massachusetts Guide to Evidence.
Chief Justice Ralph D. Gants
Justice Barbara A. Lenk
Justice Frank M. Gaziano
Justice David A. Lowy
Justice Kimberly S. Budd
Justice Elspeth B. Cypher
Justice Scott L. Kafker
The Massachusetts Guide to Evidence is prepared annually by the Supreme Judicial Court’s Advisory Committee on Massachusetts Evidence Law. By direction of the Justices of the Supreme Judicial Court, the Guide organizes and states the law of evidence applied in proceedings in the courts of the Commonwealth, as set forth in the Federal and State Constitutions, General Laws, common law, and rules of court. The Committee invites comments and suggestions on the Guide.
The Guide follows the arrangement of the law contained in the Federal Rules of Evidence and thus is comprised of eleven articles. Wherever possible, the Guide expresses the principles of Massachusetts evidence law by using the language that appears in the corresponding Federal rules. Thus, since the law governing testimony by expert witnesses is found in Rule 702 of the Federal Rules of Evidence, the corresponding provision of Massachusetts law is found in Section 702 of the Guide and is based on the language that appears in the Federal rule. In some cases, a principle of Massachusetts law has no counterpart in the Federal rules of evidence. For example, the first complaint doctrine, a special hearsay exception applicable in sexual assault cases, is found in Section 413 of the Guide, but it has no counterpart in the Federal rules. Finally, Article XI of the Guide contains a series of miscellaneous provisions that do not fit within the other ten articles but that are closely related to core evidentiary issues. These include provisions on spoliation or destruction of evidence (Section 1102), witness cooperation agreements (Section 1104), eyewitness identification (Section 1112), and opening statements and closing arguments (Section 1113).
Each section of the Guide, in addition to the statement of the law of Massachusetts current through December 31, 2018, contains an accompanying “Note” that includes supporting authority. Some sections are based on a single statute or decision, while other sections were derived from multiple sources. Certain sections were drafted “nearly verbatim” from a source with minimal changes, for instance, revised punctuation, gender-neutral terms, or minor reorganization, to allow the language to be stated more accurately in the context of the Massachusetts Guide to Evidence.
The Guide is not a set of rules, but rather, as the title suggests, a guide to evidence based on the law as it exists today. The Committee did not attempt, nor is it authorized, to suggest modifications, adopt new rules, or predict future developments in the law. The Committee has recommended to the Supreme Judicial Court that the Guide be published annually to address changes in the law and to make any other revisions as necessary. The Committee’s goal is to reflect the most accurate and clear statement of current law as possible. Ultimately, the law of evidence in Massachusetts is what is contained in the authoritative decisions of the Supreme Judicial Court and of the Appeals Court, and the statutes duly enacted by the Legislature.
Supreme Judicial Court Advisory Committee on Massachusetts Evidence Law
Introduction to the 2019 edition
On behalf of the Supreme Judicial Court’s Advisory Committee on Massachusetts Evidence Law, we want to express our gratitude to the Flaschner Judicial Institute for its support in publishing this 2019 official edition of the Massachusetts Guide to Evidence. As a result of Flaschner’s commitment to the continuing education and professional development of the Massachusetts judiciary, for the eleventh straight year, the Guide will be distributed to every trial and appellate judge in the Commonwealth.
In June 2006, the Justices of the Supreme Judicial Court, at the request of the Massachusetts Bar Association, the Boston Bar Association, and the Massachusetts Academy of Trial Attorneys, appointed the Supreme Judicial Court Advisory Committee on Massachusetts Evidence Law to prepare a guide to the Massachusetts law of evidence. The Justices charged the Committee “to assemble the current law in one easily usable document, along the lines of the Federal Rules of Evidence, rather than to prepare a Restatement or to propose changes in the existing law of evidence.” In November 2008, the Advisory Committee published the first edition of the Massachusetts Guide to Evidence. The Guide presents evidence law as it currently exists, replete with explanatory notes and citations to governing legal authorities. In preparing each annual edition, the Committee has fulfilled its charge to advance the delivery of justice by making the Massachusetts law of evidence more accessible and understandable for the bench, bar, and public.
Special recognition is due to the many persons who have participated in the creation and annual preparation of the Guide, including
- the Massachusetts Bar Association, the Boston Bar Association, and the Massachusetts Academy of Trial Attorneys, for their requests of the Supreme Judicial Court to reconsider the Court’s position on the adoption of rules of evidence, which resulted in the appointment of the Advisory Committee and creation of the Guide;
- the Justices of the Supreme Judicial Court for boldly experimenting with a new committee and form of legal publication approved by the Court;
- the Advisory Committee members, including their law clerks and interns, who have painstakingly analyzed countless Massachusetts decisions, statutes, rules of procedure, and drafts of the Guide;
- the many judges, attorneys, court personnel, and interested persons who have provided feedback and suggestions on how to improve or what to include in the Guide;
- the Flaschner Judicial Institute, its Executive Vice President, Robert J. Brink, Esq., and its copy editor extraordinaire, Michael Huppe, for their work in publishing the Guide and making copies available to each sitting judge of the Commonwealth;
- the Chief Justices of each Department of the Trial Court, the Appeals Court, and the Supreme Judicial Court, for accommodating the time commitment of Committee members to participate on the committee; and
- Kevin Buckley and Meg Hayden, the Web Administrators of the Massachusetts Trial Court, for their work in publishing the Guide on the court’s website.
The value of the Guide in practice is confirmed by the fact that it has been cited as a source of authority by the Appeals Court and by the Supreme Judicial Court in both published and unpublished opinions more than 1,000 times since it was first published in 2008. The Guide is also frequently cited and relied upon by judges throughout the Trial Court. Ultimately, the best evidence of the Guide’s value is the frequency with which it is cited by lawyers and parties in civil, criminal, juvenile, and youthful offender cases as an authoritative expression of Massachusetts evidence law. The extraordinary consensus that exists among the members of the bench and the bar as to the Guide’s authoritativeness is a tribute to the acumen and dedication of the members of the Advisory Committee with whom we serve who labor throughout the year to understand and to concisely integrate into the fabric of the Guide developments in our common law, court rules, constitutional law, and statutes, as well as pertinent decisions of the United States Supreme Court, that sometimes bring about sweeping changes in the law of evidence and in the responsibilities of lawyers and judges.
The 2019 edition of the Guide contains significant revisions and additions. These include substantial revisions to the notes to Section 404(b) regarding admissibility of crimes, wrongs, or other acts; the text to Section 504(c) regarding parent-child disqualification; the text and note to Section 611(b)(1) regarding the scope of cross-examination; the note to Section 613(a)(2) and (3) concerning impeachment evidence; the note to Section 704 regarding improper vouching; and the note to Section 801 regarding the use of deposition evidence at trial. This edition also adds Section 1112(b)(4) and a new note regarding suggestive identification not resulting from police procedures, revises the text and notes to Section 1115 (Evidentiary Issues in Care and Protection, Child Custody, and Termination of Parental Rights Cases), and expands the note to Section 1116(b)(1) regarding peremptory challenges. As in past editions, we have tried to include references to the significant appellate court decisions of the immediately preceding year. The 2019 edition thus includes over fifty references to new appellate court decisions. Finally, to keep the Guide to a manageable length, we have eliminated many long quotations in favor of briefer paraphrases, streamlined some notes, and eliminated redundant citations.
In closing, we hope that you will take the opportunity to write to us with comments, suggestions, and even any criticisms you think are warranted about the material contained in the Massachusetts Guide to Evidence so that we will be better informed about how to improve it and thereby make the law of evidence in Massachusetts more accessible to all.
Hon. Peter W. Agnes, Jr.
Joseph F. Stanton, Esq.
Supreme Judicial Court Advisory Committee on Massachusetts Evidence Law
Honorable Peter W. Agnes, Jr., Appeals Court, Editor-in-Chief
Honorable Mark S. Coven, District Court, Editor
Elizabeth N. Mulvey, Esq., Crowe & Mulvey, LLP, Editor
Joseph F. Stanton, Esq., Appeals Court, Reporter
Honorable Heidi Brieger, Superior Court
Professor R. Michael Cassidy, Boston College Law School
Sean C. Connolly, Esq.
Edmund P. Daley III, Esq.
Benjamin K. Golden, Esq.
Professor Philip K. Hamilton, New England School of Law
Honorable Barbara M. Hyland, Probate and Family Court
Honorable Stephen M. Limon, Juvenile Court
Timothy E. Maguire, Esq., Assistant Legal Counsel, Supreme Judicial Court
Honorable Gregory I. Massing, Appeals Court
Mary E. McBride, Esq., Law Clerk, Appeals Court
Robert S. Murphy III, Esq., Law Clerk, Appeals Court
Professor Mark Pettit, Boston University School of Law
A. W. (Chip) Phinney, Esq., Deputy Legal Counsel, Supreme Judicial Court
Honorable Gloria Y. Tan, Juvenile Court
Hon. R. Marc Kantrowitz (Retired), Editor-in-Chief Emeritus
Hon. David A. Lowy, Supreme Judicial Court, Consulting Member
Over the years, many judges and lawyers, too numerous to identify, have generously contributed their time and talents to help make this Guide useful to the bench and the bar. We encourage judges and lawyers with an interest in the law of evidence to suggest improvements to the Guide. Comments and questions should be directed to the reporter at Joseph.Stanton@jud.state.ma.us.
Currency, usage, and terminology
Currency and usage. The Massachusetts Guide to Evidence has been updated to state the Massachusetts law of evidence as it exists through December 31, 2018. The Supreme Judicial Court Advisory Committee on Massachusetts Evidence Law has made every effort to provide accurate and informative statements of the law in the Massachusetts Guide to Evidence. Counsel and litigants are encouraged to conduct their own research for additional authorities that may be more applicable to the case or issue at hand. Importantly, given the fluidity of evidence law, all users of this Guide should perform their own research and monitor the law for the most recent modifications to and statements of the law. Portions of the Guide change with each new edition, not necessarily because the law itself changes, but because there is a better, clearer way to explain the law. The Guide is not intended to constitute the rendering of legal or other professional advice, and the Guide is not a substitute for the advice of an attorney.
“Not recognized” sections. Where the Advisory Committee has noted that the Federal Rules of Evidence contain a provision on a particular subject and the Committee has not identified any Massachusetts authority that recognizes that subject, or where the Supreme Judicial Court has declined to follow the Federal rule on that subject, the topic is marked “not recognized” to await further development, if any, of the law on that topic.
“Nearly verbatim” sections. The notes to some sections state that the section’s text was derived “nearly verbatim” from a specific statute, court decision, or court rule. This phrase explains that the Advisory Committee made minor modifications to an authority’s original language to allow the language to be stated more accurately in the context of the Massachusetts Guide to Evidence. Such modifications may include revised punctuation, gender-neutral terms, minor reorganization, and the use of numerals instead of spelling numerals.
Comments and suggestions. Please send any comments or suggestions to the Advisory Committee on Massachusetts Evidence Law, c/o Joseph Stanton, Reporter, Appeals Court, Clerk’s Office, John Adams Courthouse, One Pemberton Square, Room 1200, Boston, MA 02108-1705, or by email to Joseph.Stanton@jud.state.ma.us.
Copyright. The Supreme Judicial Court holds the copyright to this original work. The Supreme Judicial Court makes the Massachusetts Guide to Evidence available to the public on the Court’s Web site at https://www.mass.gov/guides/massachusetts-guide-to-evidence. Inquiries as to commercial use may be directed to the Court’s Public Information Office at 617-557-1114.