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Guide to Evidence

Guide to Evidence Supplement to the 2018 Massachusetts Guide to Evidence

Adopted Date: 04/11/2018

Highlighting recent cases containing developments in Massachusetts evidence law


Trial Court Law Libraries

Table of Contents


Applicable Section(s)

Case Name & Citation

Brief Description

§ 201(c). Judicial Notice; When Taken

Commonwealth v. Hilaire, 92 Mass. App. Ct. 784 (2018)

"The identity of the person who committed,  or is suspected of committing, a crime is not a matter amenable to judicial notice." Id. at 789.

"[J]udges should use great caution before conducting independent research into factual matters, particularly on the Internet." Id. at 789 n.7, citing ABA Comm. on Ethics and Prof'l Responsibility, Independent Factual Research by Judges Via the Internet, Formal Op. 478 (2017).

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

Commonwealth v. Proia, 92 Mass. App. Ct. 824 (2018)

Prior search targeting defendant's boyfriend, which found drugs in defendant's home while she was present, admissible to show defendant's knowledge and constructive possession of drugs found during subsequent search of her home. Id. at 828-830.

§ 511(c)(6). Privilege Against Self-Incrimination; Foregone Conclusion Exception

In the Matter of a Grand Jury Investigation, 92 Mass. App. Ct. 531 (2017)

No error in compelling petitioner to enter PIN code to unlock iPhone because “the Commonwealth already knew that the iPhone contained files that were relevant to its investigation based, in part, on information provided by the petitioner,” and “the Commonwealth knew that a PIN code was necessary to access the iPhone, that the petitioner possessed and controlled the iPhone, and that the petitioner knows the PIN code and is able to enter it.” Id. at 534-535

§ 611(b)(2). Mode and Order of Examining Witnesses and Presenting Evidence; Scope of Cross-Examination

Commonwealth v. Knowles, 92 Mass. App. Ct. 617 (2018)

Prosecutor cannot impeach a lay witness through the introduction of statements made to third parties if the witness denies having made the statement and the third party is not available to testify.

Id. at 623-624.

§ 804(b)(1). Hearsay Exceptions; Declarant Unavailable; Prior Recorded Testimony

Hasouris v. Sorour, 92 Mass. App. Ct. 607 (2018)

In a civil trial, a valid invocation of the privilege against self-incrimination makes a witness unavailable for purposes of admitting testimony, in this case a deposition, under Mass. G. Evid. § 804(b)(1). Id. at 611-612.

Regardless of whether the privilege against self-incrimination was properly invoked to render party unavailable under Mass. G. Evid. § 804(b)(1), deposition testimony of absent party who did not attend proceeding despite being subpoenaed was independently admissible pursuant to Mass. R. Civ. P. 32(a)(3)(D). Id. at 614-615.