MASSACHUSETTS GUIDE TO EVIDENCE

Transcription

1 MASSACHUSETTS GUIDE TO EVIDENCE 2015 Edition SUPREME JUDICIAL COURT ADVISORY COMMITTEE ON MASSACHUSETTS EVIDENCE LAW

2 This edition of the Massachusetts Guide to Evidence is dedicated to the memory of HONORABLE JOHN E. FENTON, JR. ( ) an evidence teacher for the ages whose song inspired thousands of lawyers, legislators and judges. I shot an arrow into the air, It fell to earth, I knew not where; For, so swiftly it flew, the sight Could not follow it in its flight. I breathed a song into the air, It fell to earth, I knew not where; For who has sight so keen and strong, That it can follow the flight of song? Long, long afterward, in an oak I found the arrow, still unbroke; And the song, from beginning to end, I found again in the heart of a friend. Henry Wadsworth Longfellow

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5 SUPREME JUDICIAL COURT The Supreme Judicial Court recommends the use of the Massachusetts Guide to Evidence. Our recommendation of the Massachusetts 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 understandable to the bench, bar, and public. We encourage all interested persons to use the Massachusetts Guide to Evidence. Chief Justice Ralph D. Gants Justice Francis X. Spina Justice Robert J. Cordy Justice Margot Botsford Justice Fernande R.V. Duffly Justice Barbara A. Lenk Justice Geraldine S. Hines January 2015 i

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7 FOREWORD TO THE OFFICIAL PRINT EDITION The Flaschner Judicial Institute is once again pleased to publish the Official Print Edition of the Massachusetts Guide to Evidence. For the seventh consecutive year, the Flaschner Institute has been a proud partner of the Supreme Judicial Court s Advisory Committee on Massachusetts Evidence Law. As it has since the inaugural Guide, the Institute has lent assistance in the editing, proofreading, and design of each annual edition. This year s edition reflects the Advisory Committee s efforts in revising the titles and language of the guidelines themselves to reflect the changes in the corresponding sections of the Federal Rules of Evidence that have been restyled in an effort to present them in plain English for clarity and readability. As it does every year, the new Official Print Edition also includes substantive changes to the content of the guidelines. The most notable additions are new sections on opening statements and closing arguments, restitution, and evidentiary issues in care and protection and termination of parental rights cases, as well as a substantial revision of the section on eyewitness identifications that includes developments from two decisions released in January There are also significant changes to the section on excluding relevant evidence for prejudice and other reasons, the section on character evidence, and the section on bases of expert opinion testimony, and new subsections on exclusion as a sanction and an exception to the privilege against self-incrimination, among other substantive changes. Finally, the notes following each section in the Guide have been updated and expanded to reflect hundreds of court decisions, including dozens of important new decisions released in These and other changes are designed to keep those who use the Guide current with the always-evolving law of evidence. In addition to its new and amended sections and updated notes throughout, this Official Print Edition has comprehensive user aides, including a user-friendly index and an updated table of authorities that includes every case, statute, rule, and publication cited and discussed in the Guide a feature unique to this print version of the 2015 Guide, the most extensive revision of the Guide to date. As the publisher of the Official Print Edition, the Flaschner Judicial Institute is pleased to distribute copies of the Guide to every judge in Massachusetts. The Institute also makes this exclusive Official Print Edition available to the bar-at-large, at minimum cost, so the trial bar may be literally on the same page with the judiciary. The Flaschner Institute commends the Supreme Judicial Court and its Advisory Committee on Massachusetts Evidence Law for not only their foresight and efforts to compile the original Guide to the law of evidence in Massachusetts, but also for their commitment to keeping the work current with annual editions. iii

8 Robert J. Brink, Esq. Executive Vice President Flaschner Judicial Institute iv

9 PREFACE The Massachusetts Guide to Evidence is prepared annually by the Supreme Judicial Court s Advisory Committee on Massachusetts Evidence Law. By direction of the Justices of the Supreme Judicial Court, the Guide organizes and states the law of evidence applied in proceedings in the courts of the Commonwealth, as set forth in the Federal and State Constitutions, General Laws, common law, and rules of court. The Committee invites comments and suggestions on the Guide. The Guide follows the arrangement of the law contained in the Federal Rules of Evidence and thus is comprised of eleven articles. Wherever possible, the Guide expresses the principles of Massachusetts evidence law by using the language that appears in the corresponding Federal rules. Thus, since the law governing testimony by expert witnesses is found in Rule 702 of the Federal Rules of Evidence, the corresponding provision of Massachusetts law is found in Section 702 of the Guide and is based on the language that appears in the Federal rule. In some cases, a principle of Massachusetts law has no counterpart in the Federal rules of evidence. For example, the first complaint doctrine, a special hearsay exception applicable in sexual assault cases, is found in Section 413 of the Guide, but it has no counterpart in the Federal rules. Finally, Article XI of the Guide contains a series of miscellaneous provisions that do not fit within the other ten articles but that are closely related to core evidentiary issues. These include provisions on spoliation or destruction of evidence (Section 1102), witness cooperation agreements (Section 1104), eyewitness identification (Section 1112), and opening statements and closing arguments (Section 1113). Each section of the Guide, in addition to the statement of the law of Massachusetts current through December 31, 2014, contains an accompanying Note that includes supporting authority. In one instance, eyewitness identification, the Guide includes developments from two decisions released in January Some sections are based on 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 included parallel citations to the North Eastern Reporter. The Guide is not a set of 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. 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 reflect 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 v

10 INTRODUCTION TO THE 2015 EDITION On behalf of the Supreme Judicial Court s Advisory Committee on Massachusetts Evidence Law, we want to express our gratitude to the Flaschner Judicial Institute for its support in publishing this 2015 official edition of the Massachusetts Guide to Evidence. As a result of Flaschner s commitment to the continuing education and professional development of the Massachusetts judiciary, for the seventh straight year, the Guide will be distributed to every trial and appellate judge in the Commonwealth. The purpose of the Guide is to make the law of evidence more accessible and understandable to the bench, bar, and public. Statement by the Justices of the Supreme Judicial Court (January 2014). The value of the Guide in practice is confirmed by the fact that it has been cited as a source of authority by the Appeals Court and by the Supreme Judicial Court in both published and unpublished opinions more than 500 times since it was first published in The Guide is also frequently cited and relied upon by judges throughout the Trial Court. Ultimately, the best evidence of the Guide s value is the frequency with which it is cited by lawyers and parties in civil, criminal, juvenile, and youthful offender cases as an authoritative expression of Massachusetts evidence law. The extraordinary consensus that exists among the members of the bench and the bar as to the Guide s authoritativeness is a tribute to the acumen and dedication of the members of the Advisory Committee with whom we serve who labor throughout the year to understand and to concisely integrate into the fabric of the Guide developments in our common law, court rules, constitutional law, and statutes, as well as pertinent decisions of the United States Supreme Court, that sometimes bring about sweeping changes in the law of evidence and in the responsibilities of lawyers and judges. One of the challenges we took up this year was to revise the text sections of the Guide to reflect the changes in corresponding sections of the Federal Rules of Evidence that have been rewritten, the term of art that is used is restyled, and became effective on December 1, The drafters of the restyled Federal rules expressly declared that the meaning of the rules was not changed, but instead that they replaced legalese with plain English and, in some cases, renumbered sections of the rules. This is the view taken by the Federal courts following the adoption of the restyled rules. See, e.g., United States v. Coppola, 671 F.3d 220, 245 n.17 (2d Cir. 2012) (the substance of the restyled Federal Rules of Evidence is the same as the previous version); United States v. Sklena, 692 F.3d 725, 730 (7th Cir. 2012) (no substantive difference between the restyled Federal Rules of Evidence and the previous version); United States v. Jean-Guerrier, 666 F.3d 1087, 1091 n.2 (8th Cir. 2012) (observing that the changes made to the Federal Rules of Evidence as part of the December 2011 restyling project were intended to be stylistic only ). States that have adopted the Federal rules have begun to follow suit. See, e.g., State v. Navarette, 294 P.3d 435, 442 n.2 (N.M. 2013) (noting that effective June 16, 2012, New Mexico has restyled its rules of evidence to conform to the changes made in the Federal rules); In re: Rescinding and Replacing the Pennsylvania Rules of Evidence, No. 586 (Pa. Jan. 17, 2013) (order rescinding the Pennsylvania Rules of Evidence and replacing it with a restyled version modeled on the restyled Federal rules); Arizona State Hosp./Arizona Community Protection & Treatment Ctr., 297 P.3d 1003, 1009 (Ariz. Ct. App. 2013) (Arizona rules of evidence were made to conform to restyled Federal rules effective January 1, 2012). vi

11 This 2015 edition of the Guide contains the changes we made to conform it to the restyled Federal rules. The chart that follows this introduction identifies each of the sections of this Guide where there has been a change in lettering or numbering that is affected by restyling. We also agree that it will be beneficial to the bench, the bar, and the public to continue the process of restyling the remaining sections of the Guide and plan to do so in a future edition. We wish to emphasize that none of these stylistic changes are intended to reflect any substantive change in the law of evidence in Massachusetts. That is the responsibility of the Supreme Judicial Court and the Legislature, each acting within its sphere of authority. All restyled sections should be interpreted in accordance with existing law. In addition to the restyling changes, the 2015 edition of the Guide contains many other significant revisions and additions. These include substantial revisions made to Section 1112 (Eyewitness Identification) and three entirely new sections: Section 1113 (Opening Statement and Closing Argument; Applicable to Criminal and Civil Cases), Section 1114 (Restitution), and Section 1115 (Evidentiary Issues in Care and Protection and Termination of Parental Rights Cases). In closing, we hope that you will take the opportunity to write to us with comments, suggestions, and even criticisms about the material contained in the Massachusetts Guide to Evidence so that we will be better informed about how to improve it and thereby make the law of evidence in Massachusetts more accessible to all. Hon. Peter W. Agnes, Jr. Editor-in-Chief Joseph F. Stanton, Esq. Reporter vii

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13 RESTYLING OF THE 2015 EDITION Below are changes in lettering and numbering of the sections of the Massachusetts Guide to Evidence affected by restyling to date. Note that restyling has not resulted in the renumbering of any entire section of the Guide. All the changes are in the lettering and numbering of subsections within a section. Pre-restyled 103(a)(1) 103(a)(3) and (a)(4) 103(b) 103(c) 103(d) 103(e) 104(b)(1) and (b)(2) 104(c) Restyled 103(a)(1)(A) and (1)(B) 103(b) 103(c) 103(d) 103(e) 103(f) 104(b) 104(c)(1) and (c)(2) (a) and (b) (a), (b), (c), and (d) 404(a) (first sentence) 404(a)(1) 404(a)(2)(A) 404(b) Pre-restyled 404(a)(1) 404(a)(2)(A) 404(a)(2)(C) 404(b)(1) and (b)(2) Restyled (a) and (b) (a) and (b) 411(a) and (b) (a) 412(c) 412(a)(1) and (a)(2) 412(c)(1) and (c)(2) ix

14 606(b) 608(a)(1) and (a)(2) 611(c) 702 (part of first sentence) 702(a) 702(b) 702(c) 801(c) 606(b)(1) and (b)(2) 608(a) 611(c)(1) and (c)(2) 702(a) 702(b) 702(c) 702(d) 801(c)(1) and (c)(2) (a), (b), and (c) 803(10) 803(22) 804(b)(1) 803(10)(A) and (10)(B) 803(22)(A), (22)(B), (22)(C), and (22)(D) 804(b)(1)(A) and (1)(B) x

15 Executive Committee Supreme Judicial Court Advisory Committee on Massachusetts Evidence Law Honorable Peter W. Agnes, Jr., Appeals Court, Editor-in-Chief Honorable David A. Lowy, Superior Court, Editor Elizabeth N. Mulvey, Esq., Crowe & Mulvey, LLP, Editor Joseph F. Stanton, Esq., Appeals Court, Reporter Honorable Mark S. Coven, District Court Professor Philip K. Hamilton, New England School of Law Honorable Barbara M. Hyland, Probate and Family Court Honorable Stephen M. Limon, Juvenile Court Professor Mark Pettit, Boston University School of Law Pamela Lyons, Esq., Administrative Attorney, Supreme Judicial Court Jessica L. Frattaroli, Esq., Law Clerk, Appeals Court Tom Maxim, Esq., Law Clerk, Appeals Court (through August 2014) Ben Golden, Esq. Research Assistant Siri Nilsson, Esq. Student Interns Eduardo Colon-Baco, Megan Bramhall, Megan Coneeny, Sara J. Conway, Catharine Harmon, Alessandra Perna, Hillary Schwartz, Spencer O Dwyer, John Carl Zwisler, and Andrew R. Silverman Acknowledgments Over the years, many judges and lawyers, too numerous to identify, have generously contributed their time and talents to help make this Guide useful to the bench and the bar. We encourage judges and lawyers with an interest in the law of evidence to suggest improvements to the Guide. Comments and questions should be directed to the reporter at Joseph.Stanton@appct.state.ma.us. xi

16 Currency, Usage, and Terminology Currency and usage. The Massachusetts Guide to Evidence has been updated to state the Massachusetts law of evidence as it exists through December 31, The Supreme Judicial Court Advisory Committee on Massachusetts Evidence Law has made every effort to provide accurate and informative statements of the law in the Massachusetts Guide to Evidence. Counsel and litigants are encouraged to conduct their own research for additional authorities that may be more applicable to the case or issue at hand. Importantly, given the fluidity of evidence law, all users of this Guide should perform their own research and monitor the law for the most recent modifications to and statements of the law. The Guide is not intended to constitute the rendering of legal or other professional advice, and the Guide is not a substitute for the advice of an attorney. Not recognized sections. Where the Advisory Committee has noted that the Federal Rules of Evidence contain a provision on a particular subject and the Committee has not identified any Massachusetts authority that recognizes that subject, or where the Supreme Judicial Court has declined to follow the Federal rule on that subject, the topic is marked not recognized to await further development, if any, of the law on that topic. Nearly verbatim sections. The notes to some sections state that the section s text was derived nearly verbatim from a specific statute, court decision, or court rule. This phrase explains that the Advisory Committee made minor modifications to an authority s original language to allow the language to be stated more accurately in the context of the Massachusetts Guide to Evidence. Such modifications may include revised punctuation, gender-neutral terms, minor reorganization, and the use of numerals instead of spelling numerals. Comments and suggestions. Please send any comments or suggestions to the Advisory Committee on Massachusetts Evidence Law, c/o Joseph Stanton, Reporter, Appeals Court, Clerk s Office, John Adams Courthouse, One Pemberton Square, Room 1200, Boston, MA , or by to Joseph.Stanton@appct.state.ma.us. xii

17 CONTENTS ARTICLE I. GENERAL PROVISIONS Title Purpose and Construction Rulings on Evidence, Objections, and Offers of Proof...4 (a) Preserving a Claim of Error...4 (b) Preliminary Evidentiary Motions: Effect on Appellate Rights 4 (c) Court s Statement About the Ruling; Directing an Offer of Proof...4 (d) Preventing the Jury or Witnesses from Hearing Inadmissible Evidence...4 (e) Substantial Risk of a Miscarriage of Justice in Criminal Cases...4 (f) Motions in Limine...4 (g) Exclusion as Sanction Preliminary Questions...9 (a) In General...9 (b) Relevance That Depends on a Fact...9 (c) Conducting a Hearing So That the Jury Cannot Hear It...9 (d) Cross-Examining a Defendant in a Criminal Case...9 (e) Evidence Relevant to Weight and Credibility Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes Doctrine of Completeness...13 (a) Remainder of Writings or Recorded Statements...13 (b) Curative Admissibility...13 ARTICLE II. JUDICIAL NOTICE Judicial Notice of Adjudicative Facts...14 (a) Scope...14 (b) Kinds of Facts That May Be Judicially Noticed...14 (c) When Taken...14 (d) Opportunity to Be Heard...14 xiii

18 (e) Instructing the Jury Judicial Notice of Law...17 (a) Mandatory...17 (b) Permissive...17 (c) Not Permitted...17 ARTICLE III. INFERENCES, PRIMA FACIE EVIDENCE, AND PRESUMPTIONS Civil Cases...19 (a) Scope...19 (b) Inferences...19 (c) Prima Facie Evidence...19 (d) Presumptions Criminal Cases...21 (a) Scope...21 (b) Inferences...21 (c) Prima Facie Evidence...21 (d) Presumptions...21 ARTICLE IV. RELEVANCY AND ITS LIMITS Test for Relevant Evidence General Admissibility of Relevant Evidence Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons Character Evidence; Crimes or Other Acts...29 (a) Character Evidence...29 (1) Prohibited Uses...29 (2) Exceptions for a Defendant or Victim in a Criminal Case...29 (3) Exceptions for a Witness...29 (b) Crimes, Wrongs, or Other Acts...29 (1) Prohibited Uses...29 (2) Permitted Uses Methods of Proving Character...33 xiv

19 (a) By Reputation...33 (b) By Specific Instances of Conduct...33 (c) By Violent Character of the Victim Routine Practice of a Business; Habit of an Individual...35 (a) Routine Practice of a Business...35 (b) Individual Habit Subsequent Remedial Measures...37 (a) Prohibited Uses...37 (b) Exceptions Compromise Offers and Negotiations in Civil Cases...38 (a) Prohibited Uses...38 (b) Exceptions Expressions of Sympathy in Civil Cases; Offers to Pay Medical and Similar Expenses...40 (a) Expressions of Sympathy in Civil Cases...40 (b) Payment of Medical and Similar Expenses...40 (c) Medical Malpractice Claims Pleas, Offers of Pleas, and Related Statements...41 (a) Prohibited Uses...41 (b) Exception Insurance Sexual Behavior or Sexual Reputation (Rape-Shield Law)...44 (a) Prohibited Uses...44 (b) Exceptions...44 (c) Procedure to Determine Admissibility...44 (1) Motion...44 (2) Hearing...44 (d) Definition of Victim First Complaint of Sexual Assault...47 (a) Admissibility of First Complaint...47 (b) Admissibility of Additional Reports of a Sexual Assault Under an Alternative Evidentiary Basis Industry and Safety Standards...52 xv

20 ARTICLE V. PRIVILEGES AND DISQUALIFICATIONS...53 Introductory Note...53 (a) General Duty to Give Evidence...53 (b) Interpretation of Privileges...53 (c) Most Privileges Are Not Self-Executing...53 (d) Confidentiality Versus Privilege...53 (e) Impounding Versus Sealing...54 (f) Examples of Relationships in Which There May Be a Duty to Treat Information as Confidential Even Though There Is No Testimonial Privilege...54 (1) Patient Medical Information...54 (2) Student Records...54 (3) Special Needs Student Records...55 (4) News Sources and Nonpublished Information...55 (5) Certain Documents, Records, and Reports...55 (6) Applicability of Federal Law...55 (g) Production of Presumptively Privileged Records from Nonparties Prior to Trial in Criminal Cases...56 (h) Nonevidentiary Privileges...56 (1) Immunity from Liability (Litigation Privilege)...56 (2) Legislative Deliberation Privilege...56 (3) Fair Report Privilege...57 (4) Communications with Board of Bar Overseers and Bar Counsel...57 (5) Legitimate Business Interest Privileges Recognized Only as Provided Attorney-Client Privilege...60 (a) Definitions...60 (b) General Rule of Privilege...60 (c) Who May Claim the Privilege...60 (d) Exceptions...60 (1) Furtherance of Crime or Fraud...60 (2) Claimants Through Same Deceased Client...61 (3) Breach of Duty or Obligation...61 (4) Document Attested by an Attorney...61 (5) Joint Clients...61 xvi

21 (6) Public Officer or Agency Psychotherapist-Patient Privilege...66 (a) Definitions...66 (b) Privilege...66 (c) Effect of Exercise of Privilege...66 (d) Exceptions...66 (1) Disclosure to Establish Need for Hospitalization or Imminently Dangerous Activity...66 (2) Court-Ordered Psychiatric Exam...67 (3) Patient Raises the Issue of Own Mental or Emotional Condition as an Element of Claim or Defense...67 (4) Party Through Deceased Patient Raises Issue of Decedent s Mental or Emotional Condition as Element of Claim or Defense...67 (5) Child Custody and Adoption Cases...67 (6) Claim Against Psychotherapist...67 (7) Child Abuse or Neglect...67 (8) Exception Spousal Privilege and Disqualification; Parent-Child Disqualification...70 (a) Spousal Privilege...70 (1) General Rule...70 (2) Who May Claim the Privilege...70 (3) Exceptions...70 (b) Spousal Disqualification...70 (1) General Rule...70 (2) Exceptions...70 (c) Parent-Child Disqualification...70 (1) Definitions...70 (2) Disqualification Domestic Violence Victims Counselor Privilege...74 (a) Definitions...74 (1) Abuse...74 (2) Confidential Communication...74 (3) Domestic Violence Victims Counselor...74 xvii

22 (4) Domestic Violence Victims Program...74 (5) Victim...74 (b) Privilege...74 (c) Exception Sexual Assault Counselor Victim Privilege...76 (a) Definitions...76 (1) Rape Crisis Center...76 (2) Sexual Assault Counselor...76 (3) Victim...76 (4) Confidential Communication...76 (b) Privilege...76 (c) Exception Social Worker Client Privilege...78 (a) Definitions...78 (1) Client...78 (2) Communications...78 (3) [Reserved]...78 (4) Social Worker...78 (b) Privilege...78 (c) Exceptions Allied Mental Health or Human Services Professional Privilege...81 (a) Definitions...81 (b) Privilege...81 (c) Waiver...81 (d) Mental Health Counselor Exception...81 (e) Exception Identity of Informer, Surveillance Location, and Protected Witness Privileges...84 (a) Identity of Informer...84 (b) Surveillance Location...84 (c) Protected Witness...84 (d) Who May Claim Religious Privilege...87 (a) Definitions...87 xviii

23 (b) Privilege...87 (c) Child Abuse Privilege Against Self-Incrimination...89 (a) Privilege of Defendant in Criminal Proceeding...89 (1) Custodial Interrogation...89 (2) Refusal Evidence...89 (3) Compelled Examination...89 (4) At a Hearing or Trial...89 (b) Privilege of a Witness...89 (c) Exceptions...89 (1) Waiver by Defendant s Testimony...89 (2) Waiver by Witness s Testimony...89 (3) Limitation...89 (4) Required Records...89 (5) Immunity...90 (6) Foregone Conclusion Jury Deliberations Medical Peer Review Privilege...97 (a) Definitions...97 (b) Privilege...97 (c) (1) Proceedings, Reports, and Records of Medical Peer Review Committee...97 (2) Work Product of Medical Peer Review Committee...98 Exceptions...98 (d) Testimony Before Medical Peer Review Committee...98 (e) Non Peer Review Records and Testimony Mediation Privilege (a) Definition (b) Privilege Applicable to Mediator Work Product (c) Privilege Applicable to Parties Communications (d) Privilege Applicable in Labor Disputes Investigatory Privilege Political Voter Disqualification Trade Secrets xix

24 518. Executive or Governmental Privilege State and Federal Tax Returns (a) State Tax Returns (1) Disclosure by Commissioner of Revenue (2) Production by Taxpayer (3) Exceptions (b) Federal Tax Returns (1) General Rule (2) Exceptions Tax Return Preparer (a) Definition (b) Privilege Sign Language Interpreter Client Privilege (a) Definitions (1) Client (2) Qualified Interpreter (3) Confidential Communication (b) Privilege Interpreter-Client Privilege (a) Definitions (1) Interpreter (2) Non-English Speaker (b) Privilege (c) Scope Waiver of Privilege (a) Who Can Waive (b) Conduct Constituting Waiver (c) Conduct Not Constituting Waiver Privileged Matter Disclosed Erroneously or Without Opportunity to Claim Privilege Comment upon or Inference from Claim of Privilege (a) Civil Case (b) Criminal Case Unemployment Hearing Privilege xx

25 (a) Statutory Bar on the Use of Information from Unemployment Hearing (b) Exceptions Judicial Deliberation Privilege ARTICLE VI. WITNESSES Competency (a) Generally (b) Rulings (c) Preliminary Questions Need for Personal Knowledge Oath or Affirmation to Testify Truthfully Interpreters Competency of Judge as Witness Juror s Competency as a Witness (a) At the Trial (b) During an Inquiry into the Validity of a Verdict or Indictment (1) Prohibited Testimony or Other Evidence (2) Exceptions Who May Impeach a Witness A Witness s Character for Truthfulness or Untruthfulness (a) Reputation Evidence (b) Specific Instances of Conduct Impeachment by Evidence of Conviction of Crime (a) Generally (1) Misdemeanor (2) Felony Conviction Not Resulting in Committed State Prison Sentence (3) Felony with State Prison Sentence Imposed (4) Traffic Violation (5) Juvenile Adjudications of Delinquency or Youthful Offender (b) Effect of Being a Fugitive xxi

26 610. Religious Beliefs or Opinions Mode and Order of Examining Witnesses and Presenting Evidence (a) Control by the Court (b) Scope of Cross-Examination (1) In General (2) Bias and Prejudice (c) Leading Questions (d) Rebuttal Evidence (e) Scope of Subsequent Examination (f) Reopening (g) Stipulations (1) Form and Effect (2) Essential Element Writing or Object Used to Refresh Memory (a) While Testifying (1) General Rule (2) Production and Use (b) Before Testifying (1) Production (2) Admissibility (3) Suppressed Statement Prior Statements of Witnesses, Limited Admissibility (a) Prior Inconsistent Statements (1) Examining Own Witness (2) Examining Other Witness (3) Disclosure of Extrinsic Evidence (4) Collateral Matter (b) Prior Consistent Statements (1) Generally Inadmissible (2) Exception Calling and Examination of Witnesses by Court or Jurors (a) Calling (b) Examining by Court (c) Objections xxii

27 (d) Examining by Jurors Sequestration of Witnesses ARTICLE VII. OPINION AND EXPERT EVIDENCE Opinion Testimony by Lay Witnesses Testimony by Expert Witnesses Bases of Opinion Testimony by Experts Opinion on Ultimate Issue Disclosure of Facts or Data Underlying Expert Opinion Court-Appointed Experts (a) Appointment (b) Compensation (c) Disclosure of Appointment (d) Parties Choice of Their Own Experts ARTICLE VIII. HEARSAY Introductory Note (a) Confrontation Clause and Hearsay in Criminal Cases (1) Testimonial Versus Nontestimonial; the Primary Purpose Test (2) Records Admitted Without Live Testimony (3) Expert Testimony (b) Confrontation Clause Inapplicable (c) Massachusetts Law Versus Federal Law (d) Waiver of Right to Confrontation Definitions (a) Statement (b) Declarant (c) Hearsay (d) Statements That Are Not Hearsay (1) A Declarant-Witness s Prior Statement (2) An Opposing Party s Statement The Rule Against Hearsay xxiii