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Guide to Evidence

Guide to Evidence Supplement to the 2019 Massachusetts Guide to Evidence

Adopted Date: 03/22/2019

Highlighting recent cases containing developments in Massachusetts evidence law

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Table of Contents

Supplement

Applicable Section(s)

Case Name & Citation

Brief Description

§ 511(a)(1).  Privilege Against Self-Incrimination: Privilege of Defendant in Criminal Proceeding, Custodial Interrogation.

Commonwealth v. Lajoie, 95 Mass. App. Ct. 10, 14–15 (2019).

The court found Miranda warning formulation that "you have the right to an attorney" and that if you cannot afford an attorney, one will be appointed "prior to questioning" adequately conveyed the "equivalent" of a Miranda warning, emphasizing that "courts should focus on the totality of the warnings conveyed, rather than their precise form." Id. at 14-15.

§ 511(c)(6). Privilege Against Self-Incrimination: Exceptions, Foregone Conclusion.

Commonwealth v. Jones, 481 Mass. 540, 542–543 (2019).

"When the Commonwealth seeks an order pursuant to our decision in Gelfgatt . . . compelling a defendant to decrypt an electronic device by entering a password, art. 12 requires the Commonwealth to prove that the defendant knows the password beyond a reasonable doubt for the foregone conclusion exception to apply."  Id. at 542-543.  

“[A] judge acting on a renewed Gelfgatt motion may consider additional information without first finding that it was not known or not reasonably available to the Commonwealth at the time the earlier Gelfgatt motion was filed.” Id. at 543.

§ 611(a)(3). Mode and Order of Examining Witnesses and Presenting Evidence: Control by the Court. 

§ 611(b)(2). Mode and Order of Examining Witnesses and Presenting Evidence: Scope of Cross-Examination, Bias and Prejudice.
 

Commonwealth v. Chicas, 481 Mass. 316, 318–322 (2019).

In general, “[t]here is no reason to believe that the fact that the witnesses may not have been legal residents of the United States was evidence of their ability to be truthful. In reality, a witness’s status as an undocumented immigrant, for a variety of reasons, would make the witness less likely to cooperate with the government.” Id. at 321–322.

Whether a party may ask questions about a witness’s citizenship status on cross-examination to explore bias “depends on a showing that the witness was testifying in order to curry favor with the Commonwealth.” Id. at 321.

"[A]fter the witnesses testified that they had not talked about their citizenship status with the Commonwealth, their status became irrelevant as to motive to lie."  Id. at 321.

A judge may also limit cross-examination on the subject of citizenship status to prevent embarrassment and harassment of the witness. Id., citing Mass. G. Evid. § 611(a)(3) (2018). 

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