| Adopted Date: | 02/01/2025 |
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- This page, Supplement to the 2025 Guide to Evidence, is offered by
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Guide to Evidence
Guide to Evidence Supplement to the 2025 Guide to Evidence
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Table of Contents
Supplement
| Section | Text |
|---|---|
| Section 404(a)(2)(B). Character Evidence Note | Where a claim of self-defense is asserted, a defendant may introduce evidence of specific acts of violence initiated by the alleged victim “only when one or both of the following issues are in dispute: . . . (1) who started the confrontation; or (2) who escalated the confrontation by using or threatening to use deadly force.” Commonwealth v. Souza, 492 Mass. 615, 617 (2023). But see Commonwealth v. Rateree, 495 Mass. 610, 624 (2025) (declining to extend Adjutant rule to defense of another). Specific acts of violence admissible under the Adjutant rule may include acts that occurred either prior to or after the charged offense. Commonwealth v. Andrade, 496 Mass. 144, 146-148 (2025). The trial judge has discretion to admit evidence not just of the initial violent act, but of the “entire violent incident” where it is necessary to “give the jury a full picture” of the events at issue. Souza, 492 Mass. at 617. The judge retains discretion to exclude Adjutant evidence even if there is a dispute concerning whether the victim was the first to initiate physical conflict or the first to use deadly force. Rateree, 495 Mass. at 621. The specific incidents of violence allegedly initiated by the victim need not be known to the defendant. Adjutant, 443 Mass. at 664–665. A defendant who intends to introduce evidence of the victim’s specific acts of violence to support a claim that the victim was the first aggressor must provide notice to the court and to the Commonwealth of the specific evidence that will be offered and do so sufficiently prior to trial to permit the Commonwealth to investigate and prepare a rebuttal. The prosecution, in turn, must provide notice to the court and to the defendant of whatever rebuttal evidence the Commonwealth intends to offer at trial. Id. at 665–666; Mass. R. Crim. P. 14.3(c). |
| Section 504(c)(2). Parent-Child Disqualification Note | The disqualification does not prevent a child from calling a parent to testify for the defense but does prevent the Commonwealth from calling a parent to testify against the child. Commonwealth v. Vigiani, 488 Mass. 34, 39 (2021). A parent called as a witness by a child may not refuse to testify “unless a privilege applies, such as the privilege under the Fifth Amendment to the United States Constitution against self-incrimination.” Id. at 40 n.6. The Supreme Judicial Court has declined to recognize a testimonial privilege that parents could exercise to avoid being compelled to testify in criminal proceedings about confidential communications with their children. See Matter of a Grand Jury Subpoena, 430 Mass. 590, 590–591 (2000) (“the Legislature, in the first instance, is the more appropriate body to weigh the relative social policies and address whether and how such a privilege should be created”). The disqualification does not prevent a parent from testifying against a child who is no longer under the age of eighteen at the time of testimony. Commonwealth v. Rajiv R., 495 Mass. 646, 650-651 (2025). |
| Section 803(10). Absence of a public record Note | In Commonwealth v. Smith, 496 Mass. 304, 308-313 (2025), the Supreme Judicial Court, citing Section 803(10) with approval, held that an employee of the Department of Criminal Justice Information Services (DCJIS), who was familiar with the process of searching DCJIS's Statewide database of firearm licenses and with the record-keeping practices of the database, was competent to testify that he searched the database using the defendant's name and a date of birth supplied by the district attorney's office and found no record of a valid license. The witness's testimony regarding the contents of the database did not violate the defendant's Federal and State constitutional rights to confront the witnesses against him because the database was created for the administration of Commonwealth's firearm licensing scheme and was therefore not testimonial. Id. at 313-315. The court found that the evidence was insufficient to prove the defendant's lack of a valid firearm license, however, because the Commonwealth failed to prove that the birthday used to search the database was the defendant's birthday. Id. at 316-318. |
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