Boston College Law School Digital Commons @ Boston College Law School Boston College Law School Faculty Papers 1-1-2008 Massachusetts Guide to Evidence Mark S. Brodin Boston College Law School, [email protected] Follow this and additional works at: https://lawdigitalcommons.bc.edu/lsfp Part of the Evidence Commons, and the State and Local Government Law Commons Recommended Citation Mark S. Brodin. "Massachusetts uideG to Evidence." (2008). This Book is brought to you for free and open access by Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law School Faculty Papers by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. MASSACHUSETTS GUIDE TO EVIDENCE 2011 Edition SUPREME JUDICIAL COURT ADVISORY COMMITTEE ON MASSACHUSETTS EVIDENCE LAW SUPREME JUDICIAL COURT The Supreme Judicial Court recommends the use of the Massa- chusetts Guide to Evidence. Our recommendation of the Massachu- setts Guide to Evidence is not to be interpreted as an adoption of a set of rules of evidence, nor a predictive guide to the development of the common law of evidence. The purpose of the Massachusetts Guide to Evidence is to make the law of evidence more accessible and under- standable to the bench, bar, and public. We encourage all interested persons to use the Massachusetts Guide to Evidence. Chief Justice Roderick L. Ireland Justice Francis X. Spina Justice Judith A. Cowin Justice Robert J. Cordy Justice Margot Botsford Justice Ralph D. Gants Justice Fernande R.V. Duffly February 2011 INTRODUCTION In June 2006, the Justices of the Supreme Judicial Court, at the request of the Massachusetts Bar Association, the Boston Bar Associa- tion, and the Massachusetts Academy of Trial Attorneys, created the Supreme Judicial Court Advisory Committee on Massachusetts Evi- dence Law to prepare a Guide to the Massachusetts law of evidence. The Justices charged the Committee with the mandate “to assemble the current law in one easily usable document, along the lines of the Fed- eral Rules of Evidence, rather than to prepare a Restatement or to pro- pose changes in the existing law of evidence.” As Chief Justice Marga- ret H. Marshall stated in her March 2006 address to the Massachusetts Bar Association, “[t]he Advisory Committee will compile a Guide to Massachusetts evidence law as it currently exists, replete with case law and reporters’ notes. The Guide will make our rules of evidence more accessible to bench, bar, and the public. It will improve the under- standing, teaching, and presentation of Massachusetts evidence. It will advance the delivery of justice.” The Massachusetts Guide to Evidence organizes and states the law of evidence applied in proceedings in the courts of the Common- wealth, as set forth in the Federal and State Constitutions, General Laws, common law, and rules of court. The Committee invites com- ments and suggestions on the Guide. The Guide is organized into “Sections” using the format of the Federal Rules of Evidence insofar as the Federal rules comport with Massachusetts law and practice. Some sections are different from the Federal rules. For instance, Article V of the Federal Rules of Evidence, which governs the law of privileges, contains one general section whereas the Massachusetts Guide to Evidence contains twenty-five sections detailing evidentiary privileges and disqualifications recog- nized in Massachusetts. Other sections, such as Section 1102, Spolia- tion or Destruction of Evidence, Section 1103, Sexually Dangerous Person Proceedings, and Section 1104, Witness Cooperation Agree- ments, have no counterpart in the Federal rules. Each section contains a statement of the law of Massachusetts, current through December 31, 2010, and an accompanying “Note” that includes supporting authority. Some sections are based upon a single statute or decision, while other sections were derived from multiple sources. Certain sections were drafted “nearly verbatim” from a source with minimal changes, for instance, revised punctuation, gender- neutral terms, or minor reorganization, to allow the language to be stated more accurately in the context of the Massachusetts Guide to Evidence. For the practitioner’s easy reference, the Committee has in- cluded parallel citations to the North Eastern Reporter. Many sections of the Guide use the language of the Proposed Massachusetts Rules of Evidence (1980) or the Federal Rules of Evi- dence. The Committee concluded that such language is preferred when it represents an accurate statement of current Massachusetts law. The Committee wishes to emphasize two points. First and foremost, in ac- cordance with its mandate from the Supreme Judicial Court, what the Committee has written are not rules, but rather, as the title suggests, a guide to evidence based on the law as it exists today. The Committee did not attempt, nor is it authorized, to suggest modifications, adopt new rules, or predict future developments in the law. Second, the Committee has recommended to the Supreme Judicial Court that the Guide be published annually to address changes in the law and to make any other revisions as necessary. The Committee’s goal is to re- flect the most accurate and clear statement of current law as possible. Ultimately, the law of evidence in Massachusetts is what is contained in the authoritative decisions of the Supreme Judicial Court and of the Appeals Court, and the statutes duly enacted by the Legislature. Supreme Judicial Court Advisory Committee on Massachusetts Evidence Law Supreme Judicial Court Advisory Committee on Massachusetts Evidence Law Executive Committee Honorable R. Marc Kantrowitz, Appeals Court, Editor-in-Chief Honorable Peter W. Agnes, Jr., Superior Court, Editor Honorable David A. Lowy, Superior Court, Editor Joseph F. Stanton, Esq., Appeals Court, Reporter Barbara Berenson, Esq., Supreme Judicial Court Honorable Mark S. Coven, District Court Professor Philip K. Hamilton, New England School of Law Elizabeth N. Mulvey, Esq., Crowe & Mulvey, LLP Lydia Edwards, Esq., Appeals Court Sean M. Toohey, Esq., Appeals Court Education Committee Honorable Edward Donnelly, Probate and Family Court Honorable Mark Coven, District Court Honorable Daniel Swords, Juvenile Court Honorable Raymond Dougan, Boston Municipal Court Honorable Frey Winik, Housing Court Honorable Judith Fabricant, Superior Court Research Assistants Steven Winer, Esq., Ben Snitkoff, Esq., and Sheila F. Lawn, Esq. Student Interns Melaney Hodge, Michelle McCarthy, Marina Sigal, and Gina Plata- Nino Acknowledgments The Executive Committee acknowledges the leadership and enthusias- tic support of Chief Justice Margaret H. Marshall, who prior to her re- tirement in 2010 oversaw the Supreme Judicial Court’s creation of its Advisory Committee on Massachusetts Evidence Law and was instru- mental in the Committee’s publication of the 2008–2009, 2010, and 2011 editions. The Executive Committee also acknowledges the strong support of Justice John M. Greaney, who retired in 2008. The Executive Committee thanks the following persons who partici- pated in the development and publication of the 2010 edition of the Massachusetts Guide to Evidence: Allison Carrinski, Esq., Executive Committee Julie Brennan, Esq., Research Assistant Blair Edwards, David Mawhinny, and Meghan Waters, Student Interns The Executive Committee thanks the following persons who partici- pated in the development and publication of the 2008–2009 edition of the Massachusetts Guide to Evidence: Members of the Supreme Judicial Court Advisory Committee on Massachusetts Evidence Law Professor Michael Avery, Suffolk University Law School Professor Mark Brodin, Boston College Law School Honorable James W. Coffey, Boston Municipal Court Kevin Connelly, Esq. Honorable Patricia G. Curtin, Dedham District Court, Acting Presiding Justice Honorable Michael F. Edgerton, Essex County Juvenile Court Assistant Attorney General Steven L. Hoffman, Business and Labor Protection Bureau Timothy E. Maguire, Esq., Greenberg Traurig, LLP Tracy A. Miner, Esq., Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. Dorian Morello, Esq. Elizabeth N. Mulvey, Esq., Crowe & Mulvey, LLP Martin F. Murphy, Esq., Foley Hoag LLP Honorable Geoffrey G. Packard, Malden District Court Ian Pinta, Esq., Adler, Cohen, Harvey, Wakeman & Guekguezian LLP Katherine A. Robertson, Esq., Bulkley, Richardson & Gelinas Honorable Catherine P. Sabaitis, First Justice, Plymouth County Probate and Family Court External Editors Charles M. Burnim, Professor Emeritus, Suffolk University Law School Dean John Fenton, Suffolk University Law School Professor Philip K. Hamilton, New England School of Law Nelson P. Lovins, Esq., Lovins & Metcalf John R. Pollets, Esq., Law Office of John R. Pollets Christopher Poreda, Esq. Honorable William Young, United States District Court for the District of Massachusetts Assistant Editors Mary Bowe, Appeals Court Tina LaFranchi, Appeals Court Shelley Ruff Robert L. Stetson Cite-Checkers Appeals Court Staff Attorneys Dan Thurler, Katherine Crockford, Ellen Epstein, Jane Hong, Ann Jones, Denise Kenneally, Lynn Muster, Linda Ruggiero, Martha Simmons, Margo Stark, and Emily Tobin Appeals Court Law Clerks Drew Devoogd, Justin Dibiasio, Kursten Doherty, Rebecca Fordon, Rebecca Greber, Max Grinberg, Jamie Hoag, Dana Keenholtz, Margaret Kwoka, Nicole Liguori, Doug Martland, Dorian Morello, Carla Sauvignon, Matt Schrumpf, Steve Sharobem, David Slocum, Adrienne Smith, Tim Landry, and