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Guide to Evidence

Guide to Evidence Supplement to the 2021 Massachusetts Guide to Evidence

Adopted Date: 01/01/2021

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Table of Contents

Supplement

Section

Text

Section 104(a), Note For a comprehensive discussion of the difference between preliminary questions of fact upon which admissibility is determined by the judge under Mass. G. Evid. § 104(a) and the judge’s determinations of conditional relevance under Mass. G. Evid. § 104(b), see Commonwealth v. Davis, 487 Mass. 448, 455 n.7 & 459 n.13 (2021), distinguishing between the judge's gatekeeping function of determining validity of theory (reliability) under Mass. G. Evid. § 104(a)  and of determining proper application of theory to facts (relevancy) under Mass. G. Evid. § 104(b). 
Section 104(b), Note “Relevancy conditioned on fact” means that the judge is satisfied that a reasonable jury could find that the event took place or the condition of fact was fulfilled. Commonwealth v. Leonard, 428 Mass. at 785–786. See, e.g., Commonwealth v. Davis, 487 Mass. 448, 455 n.7 (2021) (relevance of a measuring device, such as GPS, is conditioned on whether a jury could find that it was functioning properly);
Section 201(b)(2), Note A judge may take judicial notice of a firmly established theory or methodology that has been determined to be reliable in our courts. Commonwealth v. Davis, 487 Mass. 448, 454–455 (2021).
Section 702, Note “[W]hen proposed expert testimony uses a new theory, or new methodology to apply an accepted theory, the proponent must establish its reliability using a Daubert-Lanigan analysis.” Commonwealth v. Davis, 487 Mass. 448, 455 (2021); Commonwealth v. Patterson, 445 Mass. at 641. The five nonexclusive factors established in Daubert include whether the scientific theory or process (1) has been generally accepted in the relevant scientific community; (2) has been, or can be, subjected to testing; (3) has been subjected to peer review and publication; (4) has an unacceptably high known or potential rate of error; and (5) is governed by recognized standards. Commonwealth v. Davis, 487 Mass. 448, 454 (2021).  
Section 702, Note “The soft sciences are not entitled to less consideration than their hard science counterparts, but the methodologies of each do differ,” and accordingly “application of the Daubert-Lanigan standard to soft sciences requires flexibility with special attention being paid to the criteria of reliability that different disciplines develop.” Commonwealth v. Hinds, 487 Mass. 212, 221–222 (2021) (holding that exclusion of cultural anthropologist who studies white nationalist movements from testifying as expert that victim’s tattoo was affiliated with white supremacist group to support defendant’s defense that victim had racially targeted him amounted to prejudicial error). The trial judge’s role is to determine the reliability of the expert’s methodology and not the persuasiveness of the expert’s conclusion. Id. at 224.
Section 702, Note Global Positioning System (GPS). See Commonwealth v. Davis, 487 Mass. 448, 455–459 (2021).
Section 801(a), Note “Computer-generated records are created solely by the mechanical operation of a computer and do not require human participation.” Commonwealth v. Davis, 487 Mass. 448, 465 (2021).
Section 901(a), Note Although authenticating a surveillance video is typically done by having an eyewitness testify that the video is a fair and accurate representation of what the witness saw on the day in question, or having someone testify about the surveillance procedures and the methods used to store and reproduce the video material, a surveillance video may also be authenticated by circumstantial evidence alone, including its appearance, contents, substance, internal patterns, or other distinctive characteristics. Commonwealth v. Davis, 487 Mass. 448, 466 (2021) (cell phone video of surveillance video sufficiently authenticated by “plentiful circumstantial evidence”); 
Section 1113(a)(1), Note But see Commonwealth v. Davis, 487 Mass. 448, 469 (2021) (unreasonable for Commonwealth to suggest that jury could identify defendant based on a low resolution video depicting individual’s skin color and common hair style but no facial features).
Section 1113(b)(4) & Note (4) Motion For Mistrial At Closing Argument. In a criminal case, a trial judge may defer a defendant's motion for a mistrial during closing argument until after the jury returns a verdict. In a civil case, however, a motion for a mistrial must be decided when made.

Note

Subsection (b)(4). This subsection is derived from Commonwealth v. Brangan, 475 Mass. 143, 148 (2016) and Fitzpatrick v. Wendy's Old Fashioned Hamburgers of N.Y., Inc., 487 Mass. 507, 511–512, 517 (2021). In criminal cases, the trial judge may defer the resolution of a defendant’s motion for a mistrial made during closing argument until after the jury returns a verdict. Commonwealth v. Brangan, 475 Mass. at 148. In civil cases, where a party objects to a closing argument and moves for a mistrial, “a motion for a mistrial must be decided when made, and that, after a jury verdict, the appropriate vehicle to be used in seeking to have a case tried again is through a motion for a new trial.”  Fitzpatrick v. Wendy's Old Fashioned Hamburgers of N.Y., Inc., 487 Mass. at 508. 

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