Massachusetts Evidence

Front 1

Habit Evidence

Back 1

Massachusetts only allows Habit Evidence in two situations:
1. Business routine; or
2. Action against decedent's estate (After a plaintiff introduces evidence of a promise or statement made by the decedent, the estate may rebut with evidence of the decedent's "habits of dealing" if they tend to disprove the plaintiff's evidence)

Front 2

Settlement of Disputed Civil Claims

Back 2

Federal: Statements of fact made during settlement discussions are not admissible except that statements of fact during settlement discussions in civil litigation with government agency are admissible in a later criminal case.

Massachusetts has NOT adopted the "Government Agency Exception". ALL statements of fact in settlement discussions of disputed civil claims are inadmissible.

Front 3

Expressions of Sympathy to Accident Victim or Victim's Family

Back 3

Massachusetts excludes expressions of sympathy to accident victim or victim's family if offered in civil action as implied admission of liability

Front 4

Character Evidence for Defendant

Back 4

In Massachusetts, a defendant may prove his good character for the relevant trait ONLY BY REPUTATION EVIDENCE (not by opinion, as in federal)

Prosecution may rebut only by reputation evidence

Front 5

Character Evidence Regarding Victim in Self-Defense Case

Back 5

In a criminal case in which the defendant asserts self-defense and the issue is "who was the first aggressor?" the court has DISCRETION to admit the victim's SPECIFIC ACTS in which the victim appears to have been the first aggressor. But Massachusetts DOES NOT allow evidence of victim's reputation for violence (or opinion) to help prove victim struck first.
--Exception: Federal and Massachusetts permit defendant to offer evidence of his own knowledge of the victim's bad character for violence (victim's reputation or bad acts) for purpose of showing that defendant had a reasonable apprehension of violence.

Prosecution may rebut with evidence of the victim's REPUTATION to suggest that the victim had a peaceful character and therefore likely not the aggressor.

Massachusetts has left open the question whether prosecution can rebut with evidence of defendant's bad character for violence.

Front 6

Sexual Misconduct to Show Propensity for Sexual Assaults or Child Molestation

Back 6

Permitted by Federal Rules, but not permitted in Massachusetts unless it meets the MIMIC (motive, intent, mistake (absence of), identity, common plan) standard.

But prior sexual act directed at same person who is victim in the current case shows motive (passion toward that person)

Front 7

Dead Man Statutes

Back 7

Massachusetts has no Dead Man Act.

Interested witness may testify freely against estate concerning transactions or communications with decedent

Front 8

Opinion Testimony by Lay Witness

Back 8

Lay Witness may not give direct opinion on person's sanity (as in FRE). May only describe observations of the person's speech or conduct.

Exception: attesting witness to Will may give direct opinion of testator's sanity at time of execution of the will

Front 9

Expert Witness: Basis of Opinion: Facts not in Evidence

Back 9

Federal Rule: if of a type reasonably relied upon by experts in the particular field

Massachusetts: Expert may rely upon facts not in the trial record if such facts would be independently admissible in evidence if the person who provided them to the expert (either orally or in writing) were to testify in court.

Front 10

Learned Treatise in Aid of Expert Testimony

Back 10

Federal:
--On DIRECT examination of party's own expert: relevant portions of treatise/periodical may be read into evidence as SUBSTANTIVE evidence if established as reliable authority

--On CROSS-examination of opponent's expert: may be read into evidence to IMPEACH/CONTRADICT opponent's expert. Comes in as SUBSTANTIVE evidence.

But learned treatise may not be introduced as exhibit.

Massachusetts: Can use learned treatise as substantive evidence ONLY on cross-examination (read into evidence but not submitted as exhibit)

Exception: Medical Malpractice Actions

Front 11

Medical Malpractice Exception to using treatise other than on Cross-Examination

Back 11

In a civil action alleging medical malpractice, a learned treatise may be read into the record as SUBSTANTIVE evidence if the author is "recognized in his profession as an expert on the subject" AND the proponent gives 30 days' pretrial notice of intent to use treatise for this purpose. In these circumstances, the treatise can be used without the need for live expert testimony

Front 12

Cross-Examination

Back 12

In Massachusetts, cross-examination is NOT limited to the scope of direct examination. You may question the witness on anything relevant to the case.

Front 13

Impeachment of Own Witness

Back 13

Massachusetts follows the Federal Rule (may impeach your own witness)

Except: that a party may NOT impeach its own witness with evidence of witness's bad reputation for truthfulness or prior convictions

Front 14

Impeachment by Prior Inconsistent Statements

Back 14

Massachusetts follows Federal Rule (may impeach after they've left the witness stand but must give opportunity to return to stand later to explain or deny)
--But if witness is the opposing party NEVER need to give them an opportunity to explain or deny

Except: When a party is impeaching her OWN witness, must do it while they're still on the stand.

Front 15

Impeachment by Reputation or Opinion about Witness's Truthfulness

Back 15

Character witness can only testify about target witness's REPUTATION for truthfulness (NOT OPINION)

Cannot impeach OWN witness by means of reputation for truthfulness.

Front 16

Impeachment by Felony Conviction

Back 16

Cannot impeach own witness with prior conviction

If felony resulted in prison sentence: cannot be used after 10 years from date of expiration of minimum term, unless witness was subsequently convicted of another crime within 10 years of time witness testifies

If conviction did not result in imposition of state prison term (suspended sentence, fine, confinement in jail or house of correction): cannot be used 10 years from date of conviction, unless witness was subsequently convicted of another crime within 10 years of testifying.

Front 17

Impeachment by Misdemeanor Conviction

Back 17

Cannot be used to impeach own witness

Any misdemeanor conviction (doesn't need proof of false statement).

Cannot be used after 5 years from date sentences was imposed (minimum term irrelevant), unless witness was subsequently convicted of another crime within 5 years of the time witness testifies.

Front 18

Overarching Consideration regarding Court's Determination of Admissibility of Convictions for Impeachment

Back 18

Court must make discretionary determination that probative value on credibility outweighs prejudice.

As to criminal defendants who testify in their own defense, most important prejudice factor court must consider is similarity to crime currently charged (because prior acts not permitted as evidence)

Front 19

Impeachment by Bad Acts (w/o conviction) that reflect adversely on truthfulness

Back 19

Massachusetts does NOT permit these. Impeachment by prior acts MUST have resulted in conviction (impeachment by conviction)

But be careful because bad acts may be used for another purpose like proving bias.

Front 20

Rehabilitating a Witness

Back 20

Prior consistent statement can be used to rebut a charge of recent fabrication or improper influence IF the statement was made BEFORE the motive to fabricate

Court must make preliminary finding that witness's in-court statement was the result of bias

Federal: admissible to rehabilitate AND as substantive evidence

Massachusetts: admissible only to rehabilitate and NOT as substantive evidence

Front 21

Physician-Patient Privilege

Back 21

Federal Court: No Federal privilege. Only used for actions based on diversity (using state law)

Massachusetts: No privilege.
--Only exists for pyschotherapy/social workers (not for physical conditions)

Front 22

Psychotherapy/Social Worker Privilege

Back 22

Survives death. Right to waive belongs to the estate and estate must honor wishes of deceased.

Front 23

Spousal Immunity

Back 23

Same as federal rule except there is NO spousal immunity in grand jury proceedings.

But if case goes to trial after grand jury indictment, witness-spouse may refuse to testify against defendant spouse at trial

Front 24

Confidential Communications between Spouses

Back 24

In Massachusetts, in any case (civil or criminal), both spouses are DISQUALIFIED (no waiver permitted, even if both spouses consent) from testifying about any PRIVATE, ORAL CONVERSATION (does not cover written communications) between spouses that occurred during the marriage.

But: after the death of a spouse, the surviving spouse may testify about anything said by other spouse prior to death (but watch for hearsay rules).

Front 25

Exceptions to Husband-Wife Privileges (FRE and Massachusetts)

Back 25

No privilege to communications or acts in furtherance of jointly-perpetrated future crime or fraud

No privilege for communications or acts destructive of family unit (spousal or child abuse)

Front 26

Testimony that Defendant Refused Chemical Test or Field Sobriety Test or, in a Paternity Suit, that Defendant Refused to Submit Genetic/Blood Testing

Back 26

May NOT be admitted against him

Front 27

Prohibition Against Children Testifying Against Parent in Certain Cases

Back 27

In CRIMINAL cases only, an unemancipated minor child is prohibited from testifying against his natural or adoptive parent WITH WHOM THE CHILD RESIDES.

EXCEPT: when the victim of the crime also lives in the household and is a member of the parent's family.

Front 28

Tax Privilege Rules

Back 28

Individual state income tax returns are privileged.

Federal tax returns must be disclosed when substantial need.

Front 29

Domestic Violence/Sexual Assault Counselor-Victim Privilege

Back 29

Counselor may not disclose confidential communications except in actions for discovery of communications that may exculpate the accused.

Front 30

Statement Against Interest Exception to Hearsay Rule

Back 30

Federal: In criminal cases, when a statement against penal interest is offered to EXCULPATE the defendant (offered by defendant), it must be supported by circumstances showing trustworthiness of the statement

Massachusetts: In criminal case, supporting circumstances showing showing trustworthiness are required REGARDLESS of which party offers statement.

Front 31

Admissions by Opponent (nonhearsay) in Personal Injury Case

Back 31

If admission in writing and signed by party it is INADMISSIBLE unless party against whom it is being offered is provided a copy of the statement upon written request

Front 32

Admissions by Co-Conspirators and Joint Venturers

Back 32

In order to admit these, there must be sufficient nonhearsay evidence to establish adequate probability that declarant and defendant were engaged in the criminal enterprise

This foundation must be established as a preliminary matter before the hearsay statement can be admitted.

Front 33

Psychologist or Rape Counselors Records

Back 33

Defendant must show that records are evidentiary and relevant.

Then defendant can inspect the records and file a motion in limine to have the documents admitted at trial, which judge has discretion to allow if required to ensure a fair trial

Front 34

Statement Against Interest

Back 34

Declarant must be unavailable.

Statement against his:
1. pecuniary (financial);
2. proprietary (damage to property); or
3. Penal Interest

Front 35

Dying Declarations

Back 35

Only permitted in homicide cases

Front 36

Hearsay Exception for Statements Made by Decedents in Civil Actions

Back 36

In ANY civil proceeding, any statement of a deceased person is ADMISSIBLE FOR ITS TRUTH if the statement:
1. was made in good faith; and
2. based on decedent's personal knowledge

"Good faith" interpreted liberally. Would even been "good faith" if made about substance of pending litigation)

Front 37

Present Sense Impression Hearsay Exception

Back 37

Massachusetts has NOT adopted this hearsay exception

Front 38

Public Records Hearsay Exception

Back 38

Records of a public office or agency setting forth:
1. The activities of the office or agency (payroll records, etc.); or
2. Matters observed pursuant to a duty imposed by law

Federal also permits findings of fact or opinion resulting from an investigation authorized by law (OSHA report)

Front 39

Sworn Medical Report of a Medical Examination of an Injured Person (Hearsay Exception)

Back 39

In addition to routine hospital records and physicians' office records, both of which qualify under the business records exception, a physician's written report, or hospital report, describing a medical examination of an injured person is admissible to prove a DIAGNOSIS, PROGNOSIS, OR OPINION AS TO PROXIMATE CAUSE OF THE CONDITION OR OPINION AS TO DISABILITY OR INCAPACITIY, IF ANY, PROXIMATELY RESULTING FROM THE CONDITION SO DIAGNOSED, provided the report is signed and sworn to by the physician or hospital

Front 40

Statement by Child Victim of Sexual Acts (Hearsay Exception)

Back 40

In a criminal case, the statement of a child under the age of 10, describing a sexual act performed upon or with the child or identifying the perpetrator of such sexual act is admissible if (all 4 must be met):
1. The child is unavailable for any reason
2. The statement has adequate reliability
3. The statement is corroborated by other admissible evidence, and
4. The person who heard the child make the statement testifies at trial

Note: even if requirements are met this may raise a Confrontation Clause issue if the statement was testimonial in nature (statement to police during interrogation) and defendant had no opportunity to cross-examine

Front 41

Hearsay Exception for Hospital Records

Back 41

Admissible at discretion of trail court if they are:
1. Subscribed and sworn to under penalty of perjury by attending physician or dentist
2. Certified to be true and complete by the person with custody
3. Relate to the treatment and medical history

--Nothing regarding liability is admissible

In action for tort or contract: itemized bill for medical services is admissible but must include only the date and place of treatment without reference to injury itself
--written notice and copy must be given to opposing party not less than 10 days before trial

Front 42

First Complaint of Sexual Assault (Hearsay Exception)

Back 42

First out-of-court complaint made by complainant after a sexual assault is admissible to corroborate complainant's testimony but not as substantive evidence.