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. Both parties have the right to introduce evidence.
Commentary
At the hearing after notice, as at the ex parte hearing in c. 258E proceedings, strict adherence to the common law rules of evidence is not required. See 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 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.
For a more detailed discussion of evidentiary issues, see Massachusetts Guide to Evidence, § 1106 (Supreme Judicial Court, 2024 edition).
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| Last updated: | October 20, 2025 |
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