Guideline 5:03
The common law rules of evidence, e.g., those regarding hearsay, authentication, and best evidence, do not apply, subject to considerations of fundamental fairness.
Commentary
At the hearing after notice, as at the ex parte hearing in c. 209A proceedings, strict adherence to the common law rules of evidence is not required. Frizado v. Frizado, 420 Mass. 592, 597-598 (1995) (holding that “the rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on”). See also Guideline 3:06 Standard; Burden of Proof; Rules of Evidence. For example, the court can properly receive testimony that would otherwise be hearsay (“The doctor said that I had a concussion.”). Similarly, an answering machine message, voicemail, e-mail, or other electronic transmission containing threats made by the defendant may be admitted without a formal authentication procedure, if the court is satisfied that it is reliable.
The spousal disqualification set forth in G.L. c. 233, § 20 does not extend “to words constituting or accompanying abuse, threats, or assaults of which the other spouse is the victim.” Commonwealth v. Gillis, 358 Mass. 215, 218 (1970). “Even if induced by private conversation, such abusive or threatening words do not have any confidential aspect within the purpose of the protection” and may therefore be admitted. Id.
For a more detailed discussion of evidentiary issues, see Massachusetts Guide to Evidence, § 1106 (Supreme Judicial Court, 2020).
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| Last updated: | October 20, 2025 |
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