Guide to Evidence

Highlighting recent cases containing developments in Massachusetts evidence law

Guide to Evidence Supplement to the 2017 Massachusetts Guide to Evidence


Trial Court Law Libraries

Last updated September 28, 2017

Applicable Section(s) Case Name & Citation Brief Description
§ 302(a). Inferences, Prima Facie Evidence, and Presumptions in Criminal Cases Commonwealth v. Littles, 477 Mass. 382, 385–388 (2017) Statutes that designate certain evidence as having prima facie effect may be unconstitutional unless there is a “strong, logical connection” between the basic fact and the inferred fact.
§ 402. General Admissibility of Relevant Evidence Commonwealth v. Hampton, 91 Mass. App. Ct. 852, 854–855 (2017) Use of adult pornography “wholly irrelevant” to prove charges of sexual assault on child.  

§404(b). Character Evidence; Crimes, Wrongs, or Other Acts




§ 1116, Peremptory Challenges of Potential Jurors

Commonwealth v. Oberle , 476 Mass. 539, 546 (2017)


Allowing previous domestic violence incident by the defendant against the victim to be admitted in prosecution for subsequent domestic violence to show the nature of the relationship between the two, and to show intent, motive, and absence of mistake or accident.

In addition, “[a]n erroneous denial of a peremptory challenge is a structural error, requiring reversal without a showing of prejudice.” Id. at 545.

§ 511(a)(2). Privilege Against Self-Incrimination Commonwealth v. Jones, 477 Mass. 307, 326–328 (2017) Evidence of a defendant’s refusal to cooperate in an investigation ordered by State officials may be admissible where the defendant “opens the door” by introducing evidence of cooperation.

§ 606(b). Jury Deliberations; Extraneous Matter


Commonwealth v. Blanchard , 476 Mass. 1026 (2017)


In a case in which the jury was inadvertently exposed to the contents of a binder belonging to the judge that contained materials not in evidence at trial, the Supreme Judicial Court ruled that, in a case in which exposure to extraneous matter is revealed before the jury is discharged, a trial judge has should to use remedial measures, including a voir dire of jurors and curative instructions, to proceed with the trial if the judge determines that the remedial measures will protect the defendant’s right to a fair and impartial trial despite the exposure to the extraneous matter.


Art. VIII. Hearsay, Introductory Note .


§613(b). Prior Statements of Witnesses; Prior Consistent Statements

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


Helpful approach to analyzing an offered out-of-court statement for potential evidentiary and confrontation clause issues.

In addition, held that the judge should make preliminary findings on the record that a party has claimed that a witness’s in-court testimony is the result of recent contrivance or bias, and that the prior consistent statement was made before the witness had a motive to fabricate or the occurrence of an event indicating bias.

§ 901. Authentication and IdentificationSection 1112. Eyewitness Identification.


Commonwealth v. Thomas , 476 Mass. 451, 466-468 (2017)


Under some circumstances, due process principles may apply to identification of an inanimate object. “Due process may be denied by admitting in evidence an identification of an inanimate object where, first, the police knew or reasonably should have known that identification of the object effectively identifies the defendant as the perpetrator of the crime and where, second, the police needlessly and strongly suggested to the witness that the object is the object at issue.” Id. at 467-468. The Supreme Judicial Court urged police departments to devise a protocol for identification of inanimate objects, and suggested elements of such a protocol for police departments to consider.


§ 901(a). Authenticating or Identifying Evidence Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 587–588 (2017) An item of evidence must be authenticated even if the item is presented only through testimony and is not itself admitted.

§ 1114(b). Restitution; Procedural Requirements; Hearing


Commonwealth v. Molina , 476 Mass. 388 (2017)


Strict evidentiary rules are not imposed at a restitution hearing in which the Commonwealth seeks restitution from a criminal defendant for the victim of the crime.  The defendant has a presumptive right to call witnesses at the hearing, but the trial judge has the discretionary authority not to require a victim to testify, and to preclude the defendant from calling the victim as a witness, if the judge determines that the interest of insulating the victim from further trauma overcomes the defendant’s presumptive right to call the victim. “In particular, in determining whether the countervailing interests overcome the presumption after considering the totality of the circumstances, the judge conducting a restitution hearing should consider whether, based on an individualized assessment of the proposed witness, there is an unacceptable risk that the witness's physical, psychological, or emotional health would be significantly jeopardized if the witness were required to testify in court at the probation hearing.” Id. at 407-408.  




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