| 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. |
| Section 703. Substituted Experts and the Confrontation Clause Note | In Commonwealth v. Gordon, 496 Mass. 554 (2025), the Supreme Judicial Court applied the United States Supreme Court's decision in Smith v. Arizona, 602 U.S. 779 (2024), in circumstances where a State police crime laboratory supervisor, who performed technical and administrative review of another forensic analyst's work, but did not participate in or observe the gas chromatography-mass spectrometry (GC-MS) testing performed by the original analyst, gave an opinion in a criminal case as a substitute expert identifying the controlled substance. Gordon, 496 Mass. at 555-559. The court first held that the notes made by the original analyst, recording the procedures she followed in testing an unidentified substance, were testimonial hearsay because the analyst reasonably would anticipate that her notes and findings would be available for use at trial. Id. at 565-570. The court next announced that the "independent" opinion of a substitute expert violates the confrontation clause "where the substitute expert's opinion is dependent on the truth of a nontestifying analyst's testimonial hearsay." Id. at 574. Applying this rule, the court noted that the raw data GC-MS output itself was not hearsay because it was machine generated, id. at 577-578, but because the substitute expert relied not only on the raw data, but also on the truth of the original analyst's statements regarding the procedures and protocols followed in generating the data, the substitute expert's testimony was not truly independent and violated the confrontation clause, id. at 576, 580-581. Finally, addressing Massachusetts's common law evidentiary rule, see Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531-532 (1986), the court re-examined its line of cases holding that, in criminal cases, a substitute expert may offer an opinion based on the testimonial hearsay of another expert, so long as the other expert's out-of-court statements are not introduced during direct examination of the substitute expert, without violating the defendant's confrontation rights. See Commonwealth v. Greineder, 464 Mass. 584-589, cert. denied, 571 U.S. 865 (2013) (collecting cases). Following Smith, the court held that in criminal cases, the aspect of the evidentiary rule that "permits a substitute expert who is a supervisor of the crime lab to provide an opinion regarding raw data generated by an absent analyst that depends on the truth of the testimonial hearsay of an absent analyst as to the processes and protocols she says she followed to obtain the data, no longer comports with the right of confrontation, and the admission of such expert opinion testimony is an error of constitutional dimension." Gordon, 496 Mass. at 584. The constitutional rule announced in Gordon is a new rule, which "applies prospectively and retroactively to those cases that were active or pending on direct review as of the date of the issuance of Smith." Gordon, 496 Mass. at 587-588. The Gordon decision changes prior practice with respect to expert testimony in criminal cases. A Commonwealth expert in a criminal case may no longer base an opinion on the testimonial hearsay statements of another (unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant), even if the statements would be potentially admissible through an appropriate witness. Such testimony, previously permissible under the common law evidentiary rule, see Department of Youth Servs., 398 Mass. at 531-532, now violates the confrontation clause in criminal cases. A substitute expert may still be permitted to offer an opinion based on machine-generated data produced by another analyst in the same laboratory, so long as the opinion does not depend on the truth of the notes or findings of the absent analyst that the analyst reasonably anticipated would be available for use at trial. See Gordon, 496 Mass. at 578-581. Judges and practitioners are strongly urged to read Gordon in its entirety and consider its application in any particular case. |
| Section 705. Disclosure of Facts or Data Underlying Expert Opinion Note | In criminal cases, a Commonwealth expert may not base an opinion on the testimonial hearsay statements of an out-of-court declarant (unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant), even if the statements would be potentially admissible through an appropriate witness, and even if the testimonial hearsay is not introduced during direct examination of the testifying expert. Commonwealth v. Gordon, 496 Mass. 554, 581-584 (2025). Such testimony, previously permissible under the common law evidentiary rule, see Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531-532 (1986), now violates the confrontation clause in criminal cases. Gordon, 496 Mass. at 584. Cross-Reference: Article VIII, Hearsay, Introductory Note (a)(2); Expert Testimony. |
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