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The rules of evidence shall not apply in proceedings under G.L, c. 123, § 35, except that privileges and statutory disqualifications shall apply. Hearsay evidence shall be admissible, but may be relied upon only if the judge finds that it is substantially reliable.
The judge shall not draw any adverse inference from a respondent's refusal to testify or to speak during the examination ordered pursuant to Rule 5 or at any other time during the proceedings. This shall not prohibit the clinician from offering an opinion despite such refusal and reporting such refusal to the court.
The court shall base its findings on credible and competent evidence, including medical testimony and such other evidence as maybe admitted.
(2016) After the promulgation of the original Uniform Rules, the Supreme Judicial Court approved the inapplicability of the rules of evidence in Rule 7(a) in In re G.P., 473 Mass. 112, 120-22 (2015).
(2015) Rule 7(a) permits the admission of hearsay in section 35 proceedings. The Supreme Judicial Court has consistently permitted the admission of hearsay in appropriate proceedings "even where deprivation of liberty is at stake as is the case here." Mendonza v. Commonwealth, 423 Mass. 771, 785 (1996) (dangerousness hearing under G.L. c. 276, § 58A); accord Commonwealth v. Bukin, 467 Mass. 516, 519-20 (2014) (hearsay is admissible in probation violation proceedings); Querubin v. Commonwealth, 440 Mass. 108, 118 (2003) (decision whether to admit a defendant to bail). Pretrial commitment on the basis of dangerousness or unlikelihood to appear at trial. is viewed as sufficiently analogous to section 35 proceedings to provide the appropriate basis, consistent with due process requirements, for the provisions in Rule 7(a) regarding the admissibility and use, of hearsay evidence. Although most evidentiary rules are relaxed for section 35 proceedings, all privileges and statutory disqualifiers apply. Accordingly, for example, strict compliance with rules regarding the waiver of privileges from the clinician-patient relationship, particularly those set forth in Commonwealth v. Lamb, 365 Mass. 265, 270 (1974), is necessary. Despite the relaxed evidentiary rules, the judge may rely only upon evidence, whether hearsay or otherwise, that is substantially reliable. Substantially reliable hearsay has been held to be a proper basis for other detention decisions, such as detention for dangerousness, Abbott A. v. Commonwealth, 458 Mass. 24, 34-36 (2010), and revocation of probation, Bukin, 467 Mass. at 522.
Although there is no constitutional prohibition on drawing an adverse inference from a civil respondent's invocation of a right against self-incrimination or other refusal to talk, Soe v. Sex Offender Registry Bd., 466 Mass. 381, 388-89 & n.8 (2013), the probative value of such refusal in the context of a respondent alleged to be an alcoholic or substance abuser is minimal. Cf. Commonwealth v. Gagnon, 408 Mass. 185, 197-98 (1990) (invocation of privilege against self-incrimination before the jury by a witness in a criminal case would invite uninformed speculation). Rule 7(b), therefore, bars drawing such an inference. These rules, however, are not intended to interfere with a qualified clinician's exercise of the clinician's medical judgment. Accordingly, the clinician may offer an opinion despite a respondent's refusal to speak and may report that refusal to the court, so as to provide the judge with an understanding of the basis of the clinician's opinion. Although the judge may not independently draw an adverse inference from the respondent's failure to cooperate, a clinician's opinion should not be rejected or discounted because the clinician considered the respondent's failure to cooperate, assuming that such consideration was medically sound.
Rule 7(c) recognizes that, since St. 2011, c. 142, § 18 amended G.L. c. 123, § 35, ¶ 4, a judge must hear medical testimony but may base a decision on other testimony and evidence. In light of the legislative provisions for examination by a psychologist, St. 1989, c. 352, or by a social worker, St. 2014, c. 165, § 155, the meaning of "medical testimony" extends beyond expert testimony by a medical doctor. Cf. Ortiz v. Examworks, Inc., 470 Mass. 784, 788 (2015) (usual and accepted meaning of "physician" extends beyond medical doctors to all "who engage in the healing arts"). It may include 7 the opinion of a qualified psychologist or social worker, or even lay testimony about medical matters by persons with personal knowledge of such matters. See Commonwealth v. Gaudette, 441 Mass. 762, 771 (2004) (lay person may testify about the extent of a family member's injuries and length of recovery); Moore v. Fleet Refrigeration & Air Conditioning Co., 28 Mass. App. Ct. 971, 972 (1990) (error to categorically exclude a social worker's testimony on psychological matters on the ground that she was not a medical doctor).