Massachusetts evidence practice is organized under the Massachusetts Guide to Evidence / Massachusetts Rules of Evidence. Relevance starts at Mass. R. Evid. 401, 403; hearsay starts at Mass. R. Evid. 801, 802. That is what separates Massachusetts evidence law from a generic national summary. Read Massachusetts Guide to Evidence / Massachusetts Rules of Evidence before the background sections below. Authenticity is a separate fight under Mass. R. Evid. 901, 902. Depositions at trial: Mass. R. Civ. P. 30 and 32 govern civil depositions and permissible trial uses. Mass. R. Crim. P. 14 controls criminal discovery; deposition use at trial is limited and generally requires Mass. R. Evid. 804(b)(1) with unavailability.
Character evidence
Character evidence in Massachusetts is governed by Mass. R. Evid. 404, 405. The default rule is familiar: evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. The same body of law then carves out the classic exceptions — essential-element character, accused-opens-the-door reputation or opinion, and other-acts evidence offered for a non-propensity purpose such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
Other-acts notice, 403 balancing, and limiting instructions do most of the real work. In criminal cases, prosecutors who dump prior misconduct without a specific non-propensity theory invite reversal; defense counsel who open the door to good-character testimony without anticipating rebuttal create the very propensity inference the rules were designed to police.
Massachusetts character-evidence opinions
Commonwealth vs. Vincent Robertson
Commonwealth vs. Vincent Robertson, 408 Mass. 747 (1990)
…a handgun. Robertson claims that this evidence was improper character evidence and, therefore, was inadmissible. Evidence of prior bad acts is not admissible to show that the defendant has a criminal propensity or is of bad character. Commonwealth v. Hoffer, 375 Mass. 369, 372 (1978). However, “[r]elevant evidence is not rendered inadmissible merely because it indicates that th…
On character evidence, Commonwealth vs. Vincent Robertson speaks to the Massachusetts dispute in this passage: "Robertson claims that this evidence was improper character evidence and, therefore, was inadmissible. Evidence of prior bad acts is not admissible to show that the defendant has a criminal propensity or is of bad character. Commonwealth v. Hoffer, 375 Mass. 369, 372 (1978)." The surrounding opinion shows how the court applied that language to the record.
Commonwealth v. Ralph J. Sullivan
Commonwealth v. Ralph J. Sullivan, 436 Mass. 799 (2002)
…(2000) (discussing admissions and adoptive admissions). 5. Character evidence. The defendant next claims it was error to admit Crippa’s testimony that the defendant had said, “I like to rob jewelry stores; that’s what I do.” This statement is not admissible as evidence of the defendant’s propensity to commit crime, see Commonwealth v. Welcome, 348 Mass. 68, 70-71 (1964), but i…
On character evidence, Commonwealth v. Ralph J. Sullivan speaks to the Massachusetts dispute in this passage: "Character evidence. The defendant next claims it was error to admit Crippa’s testimony that the defendant had said, “I like to rob jewelry stores; that’s what I do.” This statement is not admissible as evidence of the defendant’s propensity to commit crime, see Commonwealth v." The surrounding opinion shows how the court applied that language to the record.
Commonwealth vs. Michael A. Rancourt
Commonwealth vs. Michael A. Rancourt, 399 Mass. 269 (1987)
…a) the evidence of the prior act was improperly admitted as character evidence showing the propensity of the defendant to commit criminal acts; and (b) the testimony of the witnesses who described the prior act contained improper identification evidence. a. The propensity theory. The defendant did not object to the testimony of Donna Ceseretti, the first of the two women to tes…
Practitioners open Commonwealth vs. Michael A. Rancourt when Massachusetts character evidence turns on the distinction in this sentence: "a) the evidence of the prior act was improperly admitted as character evidence showing the propensity of the defendant to commit criminal acts; and (b) the testimony of the witnesses who described the prior act contained improper identification evidence. a. The propensity theory." Do not lift it out of the facts the court was deciding.
COMMONWEALTH v. Kyle BRYANT.
COMMONWEALTH v. Kyle BRYANT., 482 Mass. 731 (2019)
…ed the admission of this testimony, arguing that it was bad character evidence and that it was more prejudicial than probative. The judge allowed the admission of the testimony. At trial, the Commonwealth presented evidence from Hampton, Rounds, and Mahoney that showed that the defendant was a drug dealer. The defendant argues that this evidence was admitted improperly because…
On character evidence, COMMONWEALTH v. Kyle BRYANT. speaks to the Massachusetts dispute in this passage: "The judge allowed the admission of the testimony. At trial, the Commonwealth presented evidence from Hampton, Rounds, and Mahoney that showed that the defendant was a drug dealer." The surrounding opinion shows how the court applied that language to the record.
Commonwealth vs. Clyde Howard
Commonwealth vs. Clyde Howard, 469 Mass. 721 (2014)
…he Commonwealth impermissibly focused on prior bad acts and character evidence during trial; (3) statements made by the prosecutor during his closing argument prejudiced the defendant and warrant a new trial; and (4) the jury instructions on mental impairment *723 and the voluntariness of the defendant’s statements were erroneous and warrant reversal of his convictions. Pursuan…
Practitioners open Commonwealth vs. Clyde Howard when Massachusetts character evidence turns on the distinction in this sentence: "he Commonwealth impermissibly focused on prior bad acts and character evidence during trial; (3) statements made by the prosecutor during his closing argument prejudiced the defendant and warrant a new trial; and (4) the jury instructions on mental impairment *723 and the volunta" Do not lift it out of the facts the court was deciding.
COMMONWEALTH v. William MCDONAGH.
COMMONWEALTH v. William MCDONAGH., 480 Mass. 131 (2018)
…anger that the jury would use the evidence as impermissible character evidence. While we recognize that the judge did state, "I don't know how you can argue with that," in response to defense counsel's argument, the judge did not foreclose further discussion of the issue. 9 We recognize that, generally, counsel's "[f]ailure to object to the closing and to ask for a curative ins…
Practitioners open COMMONWEALTH v. William MCDONAGH. when Massachusetts character evidence turns on the distinction in this sentence: "While we recognize that the judge did state, 'I don't know how you can argue with that,' in response to defense counsel's argument, the judge did not foreclose further discussion of the issue." Do not lift it out of the facts the court was deciding.
Commonwealth vs. Caius Veiovis — Lowy, J., dissenting
Commonwealth vs. Caius Veiovis — Lowy, J., dissenting, 477 Mass. 472 (2017)
…danger of unfair prejudice.” Id. at 6. This prohibition on character evidence includes using a defendant’s other, relevant *492conduct to prove his or her “propensity” to commit the charged crime. Id. at 2-3. See Mass. G. Evid. § 404(b). The danger of admitting such character evidence against the defendant is not that it is irrelevant. Rather, the danger is that the jury will…
Massachusetts opinions such as Commonwealth vs. Caius Veiovis — Lowy, J., dissenting are cited where character evidence is disputed. The court stated: "Id. at 6. This prohibition on character evidence includes using a defendant’s other, relevant *492conduct to prove his or her “propensity” to commit the charged crime. Id. at 2-3. See Mass. G. Evid. § 404(b)." That is the language to brief; the rest of the decision supplies the procedural posture.
Hearsay: start with the definition
Most hearsay objections in Massachusetts are won or lost on the definition, not on an exception. Under Mass. R. Evid. 801, 802, hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Non-hearsay purposes — verbal acts, effect on the listener, notice, circumstantial evidence of state of mind, and impeachment — remain available when the proponent can articulate them without asking the jury to believe the declarant.
Layered hearsay (hearsay within hearsay) requires an exception or exclusion for each layer. Machine-generated data and non-assertive conduct sit outside the hearsay definition in FRE-aligned jurisdictions, but they still need authenticity and, often, expert or business-records foundations.
Massachusetts hearsay opinions
Robert A. Bouchie & Another vs. Harriet E. Murray, Administratrix
Robert A. Bouchie & Another vs. Harriet E. Murray, Administratrix, 376 Mass. 524 (1978)
…to diagnosis or treatment and both of them are second-level hearsay which is not rendered admissible by the statutory hospital records exception to the hearsay rule, G.L.c. 233, § 79.[3] General Laws c. 233, § 79, as amended through St. 1974, c. 225, provides in pertinent part: "Records kept by hospitals ... under [G.L.c. 111, § 70] shall be admissible ... as evidence ... so fa…
On hearsay, Robert A. Bouchie & Another vs. Harriet E. Murray, Administratrix speaks to the Massachusetts dispute in this passage: "G.L.c. 233, § 79.[3] General Laws c. 233, § 79, as amended through St. 1974, c. 225, provides in pertinent part: 'Records kept by hospitals ... under [G.L.c. 111, § 70] shall be admissible ... as evidence ..." The surrounding opinion shows how the court applied that language to the record.
Commonwealth vs. Raphael Cancel
Commonwealth vs. Raphael Cancel, 394 Mass. 567 (1985)
…based on the improper admission in evidence of a witness’s hearsay statement. Commonwealth v. Cancel, 18 Mass. App. Ct. 1114 (1984). We allowed the Commonwealth’s application for further appellate review. Citing three errors of law, the defendant argues that his conviction must be reversed. He contends that the first error was made when a witness was allowed to testify, over o…
On hearsay, Commonwealth vs. Raphael Cancel speaks to the Massachusetts dispute in this passage: "Commonwealth v. Cancel, 18 Mass. App. Ct. 1114 (1984). We allowed the Commonwealth’s application for further appellate review. Citing three errors of law, the defendant argues that his conviction must be reversed." The surrounding opinion shows how the court applied that language to the record.
Commonwealth vs. Hipalito DelValle (And a Companion Case)
Commonwealth vs. Hipalito DelValle (And a Companion Case), 351 Mass. 489 (1966)
…antial, and against DelValle entirely so. The broad rule on hearsay evidence interdicts the admission of a statement made out of court which is offered to prove the truth of what it asserted. The theory which underlies exclusion is that with the declarant absent the trier of fact is forced to rely upon the declarant’s memory, truthfulness, perception, and use of language not su…
Massachusetts opinions such as Commonwealth vs. Hipalito DelValle (And a Companion Case) are cited where hearsay is disputed. The court stated: "DelValle entirely so. The broad rule on hearsay evidence interdicts the admission of a statement made out of court which is offered to prove the truth of what it asserted." That is the language to brief; the rest of the decision supplies the procedural posture.
James McHoul, Jr — Spina, J., concurring
James McHoul, Jr — Spina, J., concurring, 445 Mass. 143 (2005)
…t’s opinion that approves the use of so-called “totem pole” hearsay contained in reports made admissible by G. L. c. 123A, § 9. The hearsay in this case essentially involves statements made by McHoul. To the extent that his statements were made directly to persons who prepared reports that are admissible under the statute, those reports were properly admitted. To the extent McH…
James McHoul, Jr — Spina, J., concurring is worth reading on Massachusetts hearsay because the court put the point in its own words: "G. L. c. 123A, § 9. The hearsay in this case essentially involves statements made by McHoul. To the extent that his statements were made directly to persons who prepared reports that are admissible under the statute, those reports were properly admitted." Use that passage as the starting point, then read the facts that precede it.
Commonwealth v. Sean Seabrooks
Commonwealth v. Sean Seabrooks, 425 Mass. 507 (1997)
…the excluded evidence was relevant and admissible to rebut hearsay evidence introduced by the Commonwealth. We agree. We reverse and remand for a new trial. Because there must be a retrial, we comment briefly *508on the defendant’s claim that the judge should have instructed the jurors on voluntary manslaughter and insanity. We summarize the evidence as follows. On the evening…
Commonwealth v. Sean Seabrooks is worth reading on Massachusetts hearsay because the court put the point in its own words: "Commonwealth. We agree. We reverse and remand for a new trial. Because there must be a retrial, we comment briefly *508on the defendant’s claim that the judge should have instructed the jurors on voluntary manslaughter and insanity. We summarize the evidence as follows." Use that passage as the starting point, then read the facts that precede it.
Commonwealth vs. Stephen F. Blaney, Jr. — O'Connor, J., dissenting
Commonwealth vs. Stephen F. Blaney, Jr. — O'Connor, J., dissenting, 387 Mass. 628 (1982)
…63, 370-371 (1975). Such statements are not inadmissible as hearsay because they are not offered to prove the truth of the matters stated. Commonwealth v. Repoza, 382 Mass. 119, 129 (1980). *641This court has also held in numerous cases that a witness may testify to an extrajudicial identification, made by him, to prove the defendant’s guilt. See Commonwealth v. Vitello, 376 Ma…
On hearsay, Commonwealth vs. Stephen F. Blaney, Jr. — O'Connor, J., dissenting speaks to the Massachusetts dispute in this passage: "Such statements are not inadmissible as hearsay because they are not offered to prove the truth of the matters stated. Commonwealth v. Repoza, 382 Mass. 119, 129 (1980)." The surrounding opinion shows how the court applied that language to the record.
Nancy Doyle, Administratrix, vs. Stephen Dong — Liacos, J., dissenting
Nancy Doyle, Administratrix, vs. Stephen Dong — Liacos, J., dissenting, 412 Mass. 682 (1992)
…enting). The hospital record at issue contains second-level hearsay for which no exception to the rule against hearsay exists. It therefore should not have been admitted in evidence. I dissent. General Laws c. 233, § 79 (1990 ed.), provides an exception to the hearsay rule for certain hospital records.1 In *690Bouchie v. Murray, 376 Mass. 524, 531 (1978), the court established…
Practitioners open Nancy Doyle, Administratrix, vs. Stephen Dong — Liacos, J., dissenting when Massachusetts hearsay turns on the distinction in this sentence: "The hospital record at issue contains second-level hearsay for which no exception to the rule against hearsay exists. It therefore should not have been admitted in evidence. I dissent. General Laws c. 233, § 79 (1990 ed." Do not lift it out of the facts the court was deciding.
Party admissions
Statements of an opposing party are among the most important routes around the hearsay bar. Massachusetts treats them under Mass. R. Evid. 801(d)(2). Nothing about the statement need be against interest, contemporaneous, or based on personal knowledge — the theory is adversarial, not reliability-based. A party cannot complain that his own words are unreliable when offered against him.
Scope questions dominate practice: the party's own statement; adopted statements (including silence in circumstances where a reasonable person would deny); statements by authorized speakers; agent or employee statements on matters within the scope of the relationship; and, in criminal conspiracy cases, coconspirator statements during and in furtherance of the conspiracy. A defendant generally cannot introduce his own exculpatory out-of-court statement as a "party admission" against himself — the rule runs one way.
Massachusetts party-admission opinions
Commonwealth vs. Ellen G. Beckett
Commonwealth vs. Ellen G. Beckett, 373 Mass. 329 (1977)
…constitutional right to a speedy trial, (2) evidence of an admission made by her husband outside her presence was improperly admitted against her, and (3) her motion for a directed verdict was improperly denied. We transferred the appeal here on our own motion. There was no error. 1. We consider first the defendant’s contention that the judge erred in denying her motion to dis…
On party admissions, Commonwealth vs. Ellen G. Beckett speaks to the Massachusetts dispute in this passage: "We transferred the appeal here on our own motion. There was no error. 1." The surrounding opinion shows how the court applied that language to the record.
Commonwealth vs. Michael King
Commonwealth vs. Michael King, 387 Mass. 464 (1982)
…uments or the judge’s charge. The defendant argues that the admission of this evidence was reversible error. Evidence of independent past crimes unconnected with the crimes for which the defendant is on trial may net be used to show commission of the crime charged. Commonwealth v. Imbruglia, 377 Mass. 682, 695 (1979). There are, however, many exceptions to this rule of evidence…
On party admissions, Commonwealth vs. Michael King speaks to the Massachusetts dispute in this passage: "The defendant argues that the admission of this evidence was reversible error. Evidence of independent past crimes unconnected with the crimes for which the defendant is on trial may net be used to show commission of the crime charged. Commonwealth v. Imbruglia, 377 Mass." The surrounding opinion shows how the court applied that language to the record.
David Flood vs. Southland Corporation & Another
David Flood vs. Southland Corporation & Another, 416 Mass. 62 (1993)
…of the guilty pleas solely on the ground that they *69were admissions of a party opponent.7 The trial judge rejected the argument that the guilty pleas were admissions of a party opponent. The Appeals Court concluded, however, that Southland’s position and Darcy’s position were sufficiently adverse that the hearsay exception allowing admissions of a party opponent in evidence…
On party admissions, David Flood vs. Southland Corporation & Another speaks to the Massachusetts dispute in this passage: "The trial judge rejected the argument that the guilty pleas were admissions of a party opponent." The surrounding opinion shows how the court applied that language to the record.
Commonwealth vs. Levi Omar Alcantara
Commonwealth vs. Levi Omar Alcantara, 471 Mass. 550 (2015)
…ia, Jesus, and, indeed, the defendant. 3 b. Suppression and admission of the custodial statement. Prior to trial, the defendant filed a motion to suppress the statements he had made at the gasoline station and police station. The motion judge observed that the statement at the gasoline station was not made in response to police questioning and, therefore, was not subject to sup…
Massachusetts opinions such as Commonwealth vs. Levi Omar Alcantara are cited where party admissions is disputed. The court stated: "Jesus, and, indeed, the defendant. 3 b. Suppression and admission of the custodial statement. Prior to trial, the defendant filed a motion to suppress the statements he had made at the gasoline station and police station." That is the language to brief; the rest of the decision supplies the procedural posture.
Commonwealth v. Benjamin Lester, Third
Commonwealth v. Benjamin Lester, Third, 70 Mass. App. Ct. 55 (2007)
…the prosecutor, Sergeant Devine reiterated the defendant’s admission that he had made telephone calls to Reyes. However, in the redirect, the sergeant, in a modification, stated that the defendant had admitted making “[s]ame phone calls,” but not all thirty-four calls. This differs from his prior testimony quoted above wherein the sergeant described the defendant as admitting…
On party admissions, Commonwealth v. Benjamin Lester, Third speaks to the Massachusetts dispute in this passage: "Sergeant Devine reiterated the defendant’s admission that he had made telephone calls to Reyes. However, in the redirect, the sergeant, in a modification, stated that the defendant had admitted making “[s]ame phone calls,” but not all thirty-four calls." The surrounding opinion shows how the court applied that language to the record.
Commonwealth vs. Frankie Herndon
Commonwealth vs. Frankie Herndon, 475 Mass. 324 (2016)
…rth in Commonwealth v. Gomes, 470 Mass. 352 (2015); (2) the admission in evidence, through the testimony of two police officers, of an alleged out-of-court identification of the defendant and his codefendant, Frederick Henderson, by a witness although that witness did not testify concerning that alleged identification; and (3) the naming of the defendant’s sister as a witness,…
On party admissions, Commonwealth vs. Frankie Herndon speaks to the Massachusetts dispute in this passage: "rth in Commonwealth v. Gomes, 470 Mass. 352 (2015); (2) the admission in evidence, through the testimony of two police officers, of an alleged out-of-court identification of the defendant and his codefendant, Frederick Henderson, by a witness although that witness did not testify" The surrounding opinion shows how the court applied that language to the record.
A concrete Massachusetts scenario
Here is one way the Massachusetts pieces fit together. Change any fact and the statute may point somewhere else.
A lawyer in Massachusetts wants to offer a medical record, a party email, and a statement the declarant made while believing death was imminent.
- Clear relevance and unfair prejudice under Mass. R. Evid. 401, 403.
- If the email is the opposing party's, test Mass. R. Evid. 801(d)(2) before the hearsay definition in Mass. R. Evid. 801, 802.
- For the medical record, lay the business-records foundation in Mass. R. Evid. 803(6) and the treatment purpose in Mass. R. Evid. 803(4).
- For the deathbed statement, meet Mass. R. Evid. 804(b)(2), then authenticate every exhibit under Mass. R. Evid. 901, 902.
Massachusetts keeps hearsay, character, and authenticity on different rules inside the Massachusetts Guide to Evidence / Massachusetts Rules of Evidence. Winning one does not win the others.
Business records
The business-records exception under Mass. R. Evid. 803(6) is the everyday path for medical charts, employment files, bank statements, and maintenance logs. The foundation requires a record made at or near the time by — or from information transmitted by — someone with knowledge; kept in the course of a regularly conducted activity; and made as a regular practice. A custodian or other qualified witness (or a qualifying certification where the jurisdiction allows it) lays the foundation. The opponent may still attack lack of trustworthiness when the source or method of preparation indicates unreliability — litigation-driven reports are the classic failure mode.
Do not confuse authenticity with the business-records exception. You still need to show the exhibit is what you claim it is; the hearsay exception then answers why the out-of-court assertions inside it may be considered for their truth.
Massachusetts business-records opinions
Commonwealth vs. Earl T. Fulgiam (And Thirteen Companion Cases) — Lowy, J., concurring
…, joins). I agree that the ten-print card qualifies for the business record exception to the rule against hearsay. However, I write separately because the card in this case involves two levels of hearsay: the ten-print card itself and the information provided by the individual to fill out the card. I believe the court does not precisely address each level. The business records…
Practitioners open Commonwealth vs. Earl T. Fulgiam (And Thirteen Companion Cases) — Lowy, J., concurring when Massachusetts business records turns on the distinction in this sentence: "I agree that the ten-print card qualifies for the business record exception to the rule against hearsay." Do not lift it out of the facts the court was deciding.
Commonwealth vs. Peter L. Parenteau
Commonwealth vs. Peter L. Parenteau, 460 Mass. 1 (2011)
…ent that the registry certificate should be classified as a business record is unavailing. Ordinarily, documents kept in the regular course of business may be admitted at trial notwithstanding their hearsay status. See G. L. c. 233, § 78; Commonwealth v. Trapp, 396 Mass. 202, 208 (1985), S.C., 423 Mass. 356, cert, denied, 519 U.S. 1045 (1996). See also Mass. G. Evid. § 803 (6)…
Practitioners open Commonwealth vs. Peter L. Parenteau when Massachusetts business records turns on the distinction in this sentence: "Ordinarily, documents kept in the regular course of business may be admitted at trial notwithstanding their hearsay status. See G. L. c. 233, § 78; Commonwealth v. Trapp, 396 Mass. 202, 208 (1985), S.C., 423 Mass. 356, cert, denied, 519 U.S. 1045 (1996). See also Mass. G. Evid." Do not lift it out of the facts the court was deciding.
Quinn Brothers, Inc. vs. Stuart Wecker, Trustee, & Another
Quinn Brothers, Inc. vs. Stuart Wecker, Trustee, & Another, 414 Mass. 815 (1993)
…Laws c. 233, § 78 (1990 ed.), governs the admissibility of business records. 3 See Wingate v. Emery Air Freight Corp., 385 Mass. 402, 409-410 (1982) (Liacos, J., concurring). In order to be admissible, the custodian must testify that the “record was made in. good faith in the regular course of. business and before the beginning of the civil . . . proceeding aforesaid and that…
On business records, Quinn Brothers, Inc. vs. Stuart Wecker, Trustee, & Another speaks to the Massachusetts dispute in this passage: "Laws c. 233, § 78 (1990 ed.), governs the admissibility of business records. 3 See Wingate v. Emery Air Freight Corp., 385 Mass. 402, 409-410 (1982) (Liacos, J., concurring). In order to be admissible, the custodian must testify that the “record was made in." The surrounding opinion shows how the court applied that language to the record.
Commonwealth vs. Vernard Cook
Commonwealth vs. Vernard Cook, 364 Mass. 767 (1974)
…locate their custodians. The documents were not offered as business records. Even if we were to assume that they were business records, the judge was not asked to make the preliminary findings required by the statute on such records. G. L. c. 233, § 78, as appearing in St. 1954, c. 442 § 1. See Carey v. New Yorker of Worcester, Inc. 355 Mass. 450, 453 (1969). Compare McCormick…
Massachusetts opinions such as Commonwealth vs. Vernard Cook are cited where business records is disputed. The court stated: "The documents were not offered as business records. Even if we were to assume that they were business records, the judge was not asked to make the preliminary findings required by the statute on such records. G. L. c. 233, § 78, as appearing in St. 1954, c. 442 § 1. See Carey v." That is the language to brief; the rest of the decision supplies the procedural posture.
Commonwealth vs. Gloria Perez
Commonwealth vs. Gloria Perez, 89 Mass. App. Ct. 51 (2016)
…At trial, the prosecutor treated the relevant documents as business records admissible pursuant to G. L. c. 233, § 78, a statutory exception to the hearsay rule. To invoke that statute, the party proffering the document must demonstrate “that (1) the entry, writing, or record was made in good faith; (2) in the regular course of business; (3) before the beginning of the civil o…
Practitioners open Commonwealth vs. Gloria Perez when Massachusetts business records turns on the distinction in this sentence: "At trial, the prosecutor treated the relevant documents as business records admissible pursuant to G. L. c. 233, § 78, a statutory exception to the hearsay rule." Do not lift it out of the facts the court was deciding.
COMMONWEALTH v. JAMES LEHAN.
COMMONWEALTH v. JAMES LEHAN., 100 Mass. App. Ct. 246 (2021)
…talking. Global Positioning System Device. Evidence, Chart, Business record, Hearsay, Expert opinion. Witness, Police officer. Practice, Criminal, Required finding, Hearsay. At the trial of a criminal complaint charging, inter alia, criminal stalking in violation of G. L. c. 265, § 43 (a), evidence showing vandalism of the victim's car by the defendant, an incident in which the…
COMMONWEALTH v. JAMES LEHAN. is worth reading on Massachusetts business records because the court put the point in its own words: "Global Positioning System Device. Evidence, Chart, Business record, Hearsay, Expert opinion. Witness, Police officer. Practice, Criminal, Required finding, Hearsay. At the trial of a criminal complaint charging, inter alia, criminal stalking in violation of G. L. c." Use that passage as the starting point, then read the facts that precede it.
Adoption of Kenneth
Adoption of Kenneth, 31 Mass. App. Ct. 946 (1991)
…allowing in evidence documents (1), (2), and (3) under the business records exception to the hearsay rule. G. L. c. 233, § 78. That argument is without merit because even if the documents were inadmissible as business records, they were admissible under the official records exception to the hearsay rule. Adoption of George, 27 Mass. App. Ct. 265, 271-272 (1989). The mother’s o…
Massachusetts opinions such as Adoption of Kenneth are cited where business records is disputed. The court stated: "G. L. c. 233, § 78. That argument is without merit because even if the documents were inadmissible as business records, they were admissible under the official records exception to the hearsay rule. Adoption of George, 27 Mass. App. Ct. 265, 271-272 (1989)." That is the language to brief; the rest of the decision supplies the procedural posture.
Donald A. Wingate vs. Emery Air Freight Corp.
Donald A. Wingate vs. Emery Air Freight Corp., 385 Mass. 402 (1982)
…imits in the application of G.L.c. 233, § 78, the so-called business records statute.[1] The plaintiff was employed by the J.A. Jones Construction Company (Jones Company) in Somerset, Massachusetts. He testified at trial that he had been injured at the Logan International Airport premises of Emery while accepting a delivery for Jones Company. According to the plaintiff, his inj…
Donald A. Wingate vs. Emery Air Freight Corp. is worth reading on Massachusetts business records because the court put the point in its own words: "G.L.c. 233, § 78, the so-called business records statute.[1] The plaintiff was employed by the J.A. Jones Construction Company (Jones Company) in Somerset, Massachusetts." Use that passage as the starting point, then read the facts that precede it.
Important hearsay exceptions that do not require unavailability
Three present-sense and mental-state exceptions carry most of the remaining traffic in Massachusetts trial practice.
Excited utterance — Mass. R. Evid. 803(2). A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. Timing is elastic; composure defeats the exception even minutes after the event, while visible distress can preserve it for hours.
Present sense impression — Mass. R. Evid. 803(1). A statement describing or explaining an event or condition made while or immediately after the declarant perceived it. Contemporaneity is strict — seconds and minutes, not hours — and excitement is not required.
Then-existing mental, emotional, or physical condition — Mass. R. Evid. 803(3). Statements of then-existing state of mind (including intent and plan) come in; statements of memory or belief offered to prove the fact remembered generally do not. Intent-to-meet-another-person cases remain the hardest applications.
Declarant unavailable
When the declarant is unavailable under Mass. R. Evid. 804(a), Massachusetts opens a second suite of exceptions. Unavailability typically includes privilege, refusal to testify despite court order, lack of memory, death or then-existing infirmity, and absence despite reasonable efforts to procure attendance. The proponent bears the burden of proving unavailability with specific facts — a bare assertion that the witness "could not be found" is not enough.
Former testimony under Mass. R. Evid. 804(b)(1) is the workhorse once unavailability is shown: testimony given as a witness at a trial, hearing, or lawful deposition, offered against a party who had an opportunity and similar motive to develop it by direct, cross, or redirect. Criminal confrontation analysis runs in parallel and is not satisfied merely because a hearsay exception applies.
Dying declarations
Dying declarations under Mass. R. Evid. 804(b)(2) remain a narrow but decisive exception in homicide and, in many jurisdictions, civil cases involving the cause or circumstances of what the declarant believed to be impending death. The foundational showing is the declarant's belief that death was imminent — not that death in fact followed within any particular time — plus a statement concerning the cause or circumstances of what the declarant believed to be the impending death. Courts police coaching and narrative expansions aggressively.
Massachusetts dying-declaration opinions
Commonwealth vs. Columbus T. Cohen, Jr.
Commonwealth vs. Columbus T. Cohen, Jr., 412 Mass. 375 (1992)
…(b) defense counsel’s failure to object to the admission of dying declarations; and (c) the failure of defense counsel to prepare jury instructions and to object to allegedly incorrect jury instructions. When addressing a claim of ineffective assistance of counsel, this court must undertake “a discerning examination and appraisal of the specific circumstances of the given case…
Practitioners open Commonwealth vs. Columbus T. Cohen, Jr. when Massachusetts dying declaration turns on the distinction in this sentence: "(b) defense counsel’s failure to object to the admission of dying declarations; and (c) the failure of defense counsel to prepare jury instructions and to object to allegedly incorrect jury instructions. When addressing a claim of ineffective assistance of counsel, this court mus" Do not lift it out of the facts the court was deciding.
Care and Protection of Laura
Care and Protection of Laura, 414 Mass. 788 (1993)
…In holding that the preconditions to the admissibility of a dying declaration need only be proved by preponderance of the evidence, the court stated, “Every necessary element of the crime must be proved beyond reasonable doubt, but it does not follow that every piece of evidence must be admissible beyond reasonable doubt.” Commonwealth v. Polian, 288 Mass. 494, 498 (1934). See…
Care and Protection of Laura is worth reading on Massachusetts dying declaration because the court put the point in its own words: "Every necessary element of the crime must be proved beyond reasonable doubt, but it does not follow that every piece of evidence must be admissible beyond reasonable doubt.” Commonwealth v. Polian, 288 Mass. 494, 498 (1934)." Use that passage as the starting point, then read the facts that precede it.
Thomas J. Meunier's Case
Thomas J. Meunier's Case, 319 Mass. 421 (1946)
…make competent that which had been previously inadmissible. Dying declarations in a prosecution for unlawfully procuring an abortion, the habits of a deceased person in discharging his financial obligations, the answers to interrogatories of one who had died before the trial, the declarations of a deceased person concerning facts of which he had personal knowledge, private conv…
Massachusetts opinions such as Thomas J. Meunier's Case are cited where dying declaration is disputed. The court stated: "make competent that which had been previously inadmissible. Dying declarations in a prosecution for unlawfully procuring an abortion, the habits of a deceased person in discharging his financial obligations, the answers to interrogatories of one who had died before the trial, the" That is the language to brief; the rest of the decision supplies the procedural posture.
Commonwealth vs. Howard Key, Jr
Commonwealth vs. Howard Key, Jr, 381 Mass. 19 (1980)
…n four grounds Fobbs’ three statements that were designated dying declarations: (1) the trial judge employed an improper standard in his preliminary finding of admissibility; (2) the evidence did not support a finding that Fobbs had abandoned all hope of recovery; (3) the declarations were improperly admitted as evidence of the murder of any one other than the declarant; and (4…
Commonwealth vs. Howard Key, Jr is worth reading on Massachusetts dying declaration because the court put the point in its own words: "n four grounds Fobbs’ three statements that were designated dying declarations: (1) the trial judge employed an improper standard in his preliminary finding of admissibility; (2) the evidence did not support a finding that Fobbs had abandoned all hope of recovery; (3) the declara" Use that passage as the starting point, then read the facts that precede it.
Commonwealth v. Edward P. Simpson Same v. Same
Commonwealth v. Edward P. Simpson Same v. Same, 300 Mass. 45 (1938)
…was waived. 12. A captain of police testified to an alleged dying declaration of Murphy. During the preliminary examination in the absence of the jury, the defendant went at length into what the captain did by way of writing down Murphy’s answers to questions which were put to him. The captain was then asked what was the first question he asked Murphy, and replied, “I haven’t g…
Commonwealth v. Edward P. Simpson Same v. Same is worth reading on Massachusetts dying declaration because the court put the point in its own words: "A captain of police testified to an alleged dying declaration of Murphy. During the preliminary examination in the absence of the jury, the defendant went at length into what the captain did by way of writing down Murphy’s answers to questions which were put to him." Use that passage as the starting point, then read the facts that precede it.
Commonwealth vs. Daniel F. Moran
Commonwealth vs. Daniel F. Moran, 388 Mass. 655 (1983)
…counsel failed to challenge the credibility of a man whose dying declarations were the chief component of the Commonwealth’s case. *662 On the record before us we cannot say that trial counsel’s failure to introduce evidence concerning the chief prosecution witness’s criminal record amounted to a denial of effective assistance of counsel. 3. Review under G. L. c. 278, § 33E. W…
Practitioners open Commonwealth vs. Daniel F. Moran when Massachusetts dying declaration turns on the distinction in this sentence: "Commonwealth’s case. *662 On the record before us we cannot say that trial counsel’s failure to introduce evidence concerning the chief prosecution witness’s criminal record amounted to a denial of effective assistance of counsel. 3. Review under G. L. c. 278, § 33E." Do not lift it out of the facts the court was deciding.
Commonwealth vs. Leo Nolin
Commonwealth vs. Leo Nolin, 373 Mass. 45 (1977)
…mit the introduction of the victim’s hearsay statement as a dying declaration. The judge, who conducted a voir dire on the admissibility of the identification, appears to have given careful attention to the requirement for admissibility that the victim must have believed that he had no hope of recovery. See Commonwealth v. Lacy, 371 Mass. 363, 370 (1976); Commonwealth v. Dunker…
Massachusetts opinions such as Commonwealth vs. Leo Nolin are cited where dying declaration is disputed. The court stated: "The judge, who conducted a voir dire on the admissibility of the identification, appears to have given careful attention to the requirement for admissibility that the victim must have believed that he had no hope of recovery. See Commonwealth v. Lacy, 371 Mass." That is the language to brief; the rest of the decision supplies the procedural posture.
Commonwealth vs. Carroll Wesley Howard
Commonwealth vs. Carroll Wesley Howard, 355 Mass. 526 (1969)
…statements are admissible upon some other ground (e.g. as a dying declaration; cf. Commonwealth v. Sinclair, 195 Mass. 100, 108; cf. also Commonwealth v. Smith, 213 Mass. 563, 565-566). There is, however, one decision somewhat similar to the present case in which this court approved the admission of statements made to a doctor by a victim concerning past indecencies inflicted u…
On dying declaration, Commonwealth vs. Carroll Wesley Howard speaks to the Massachusetts dispute in this passage: "Commonwealth v. Sinclair, 195 Mass. 100, 108; cf. also Commonwealth v. Smith, 213 Mass. 563, 565-566)." The surrounding opinion shows how the court applied that language to the record.
Medical diagnosis or treatment statements
Statements made for medical diagnosis or treatment under Mass. R. Evid. 803(4) cover medical history, past or present symptoms, and their general cause when reasonably pertinent to diagnosis or treatment. The exception is not limited to treating physicians; statements to nurses, EMTs, and consulting clinicians can qualify when the diagnostic purpose is genuine. Fault and identity remain the usual battleground: "I was hit by a car" is often pertinent; "the light was green" usually is not; abuser identity in child-abuse and domestic-violence cases is heavily litigated.
Massachusetts medical-statement opinions
Robert A. Bouchie & Another vs. Harriet E. Murray, Administratrix
Robert A. Bouchie & Another vs. Harriet E. Murray, Administratrix, 376 Mass. 524 (1978)
…y not have been made by the third person for the purpose of medical diagnosis or treatment. Mrs. Bouchie’s statements to Dr. Storey that Bouchie was “enraged and-out of control” and that Bouchie “had the accident instead” *530of a nervous breakdown clearly were not based on her personal observations. Moreover, we cannot imagine any way in which those two statements can be read…
On medical diagnosis hearsay, Robert A. Bouchie & Another vs. Harriet E. Murray, Administratrix speaks to the Massachusetts dispute in this passage: "Mrs. Bouchie’s statements to Dr. Storey that Bouchie was “enraged and-out of control” and that Bouchie “had the accident instead” *530of a nervous breakdown clearly were not based on her personal observations." The surrounding opinion shows how the court applied that language to the record.
Commonwealth v. Marcelo DeOliveira
Commonwealth v. Marcelo DeOliveira, 447 Mass. 56 (2006)
…nts of symptoms and conditions made to them for purposes of medical diagnosis or treatment. See Commonwealth v. Comtois, 399 Mass. 668, 675 (1987).8 That exception, however, does not extend to testimony that goes to a defendant’s guilt. See Commonwealth v. Howard, 355 Mass. 526, 528-530 (1969). Recognizing this limitation, the judge concluded that Patricia’s explicit identifica…
Commonwealth v. Marcelo DeOliveira is worth reading on Massachusetts medical diagnosis hearsay because the court put the point in its own words: "See Commonwealth v. Comtois, 399 Mass. 668, 675 (1987).8 That exception, however, does not extend to testimony that goes to a defendant’s guilt. See Commonwealth v. Howard, 355 Mass. 526, 528-530 (1969)." Use that passage as the starting point, then read the facts that precede it.
William D. Grant & Another vs. Lewis/Boyle, Inc.
William D. Grant & Another vs. Lewis/Boyle, Inc., 408 Mass. 269 (1990)
…he reports of nontestifying physicians concerning William’s medical diagnosis during direct and cross-examination. We agree. In the course of his direct examination plaintiffs’ counsel asked his medical expert, Dr. Ralph Bender, whether he was familiar with the reports of four other physicians who had examined or treated William. Over defense counsel’s objec *273 tions Dr. Bend…
Massachusetts opinions such as William D. Grant & Another vs. Lewis/Boyle, Inc. are cited where medical diagnosis hearsay is disputed. The court stated: "William’s medical diagnosis during direct and cross-examination. We agree. In the course of his direct examination plaintiffs’ counsel asked his medical expert, Dr. Ralph Bender, whether he was familiar with the reports of four other physicians who had examined or treated William." That is the language to brief; the rest of the decision supplies the procedural posture.
Adoption of Iris
Adoption of Iris, 43 Mass. App. Ct. 95 (1997)
…ess whether the use of the word “abuse” would be related to medical diagnosis or treatment for the purposes of § 79. See Commonwealth v. Bohannon, 385 Mass. 733, 750 (1982). We note, however, that “battered child syndrome” has come to be a well recognized medical diagnosis as to which qualified physicians may testify. See Commonwealth v. Day, 409 Mass. 719, 724 (1991); Commonwe…
On medical diagnosis hearsay, Adoption of Iris speaks to the Massachusetts dispute in this passage: "See Commonwealth v. Bohannon, 385 Mass. 733, 750 (1982). We note, however, that “battered child syndrome” has come to be a well recognized medical diagnosis as to which qualified physicians may testify. See Commonwealth v. Day, 409 Mass." The surrounding opinion shows how the court applied that language to the record.
Vincent R. LoCicero vs. the Hartford Insurance Group
Vincent R. LoCicero vs. the Hartford Insurance Group, 25 Mass. App. Ct. 339 (1988)
…ains diagnostic and therapeutic facilities for surgical and medical diagnosis and treatment .... In no event . . . will the word ‘hospital’ include . . . a convalescent hospital.” The Benefits Book proceeds to define a “convalescent hospital” as “an institution . . . which 1. provides . . . 24-hour skilled nursing service . . . and 5. qualifies as an ‘Extended Care Facility’ un…
Vincent R. LoCicero vs. the Hartford Insurance Group is worth reading on Massachusetts medical diagnosis hearsay because the court put the point in its own words: "In no event . . . will the word ‘hospital’ include . . . a convalescent hospital.” The Benefits Book proceeds to define a “convalescent hospital” as “an institution . . . which 1. provides . . . 24-hour skilled nursing service . . . and 5." Use that passage as the starting point, then read the facts that precede it.
Mary Kay Patterson v. Liberty Mutual Insurance Company & another
Mary Kay Patterson v. Liberty Mutual Insurance Company & another, 48 Mass. App. Ct. 586 (2000)
…appellants vigorously arguing that MCS is not a recognized medical diagnosis and fails to meet the standard of evidentiary reliability established by Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994) (adopting the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 [1993]); while Patterson contends that the appellants did not raise the issue below, that…
Practitioners open Mary Kay Patterson v. Liberty Mutual Insurance Company & another when Massachusetts medical diagnosis hearsay turns on the distinction in this sentence: "MCS is not a recognized medical diagnosis and fails to meet the standard of evidentiary reliability established by Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994) (adopting the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S." Do not lift it out of the facts the court was deciding.
Commonwealth vs. Robert E. McNickles
Commonwealth vs. Robert E. McNickles, 22 Mass. App. Ct. 114 (1986)
…A sexual assault.” Q. “Now, —” The Court: “No, Doctor. Your medical diagnosis, not your opinion as to how it occurred.” The Witness: “My medical diagnosis would be recent sexual intercourse; evidence of trauma to the cheek, anterior chest and lower back.” The Court: “All right. You ladies and gentlemen are instructed to disregard the Doctor’s statement that it was a result of s…
Massachusetts opinions such as Commonwealth vs. Robert E. McNickles are cited where medical diagnosis hearsay is disputed. The court stated: "A sexual assault.” Q. “Now, —” The Court: “No, Doctor. Your medical diagnosis, not your opinion as to how it occurred.” The Witness: “My medical diagnosis would be recent sexual intercourse; evidence of trauma to the cheek, anterior chest and lower back.” The Court: “All right." That is the language to brief; the rest of the decision supplies the procedural posture.
Use of depositions at trial
Mass. R. Civ. P. 30 and 32 govern civil depositions and permissible trial uses. Mass. R. Crim. P. 14 controls criminal discovery; deposition use at trial is limited and generally requires Mass. R. Evid. 804(b)(1) with unavailability.
Deposition use is always a two-layer problem: procedural permission to read or play the deposition, plus a hearsay path (often former testimony, party admission, or impeachment). Counsel who satisfy the civil or criminal procedure rule but skip the evidence-rule foundation invite a sustained objection; counsel who have a hearsay exception but failed to preserve the deposition under the procedural rule face the same result. Video designations, counter-designations, and completeness objections should be teed up before the jury is seated.
Massachusetts deposition / former-testimony opinions
Commonwealth vs. Willard E. Bohannon, Jr.
Commonwealth vs. Willard E. Bohannon, Jr., 385 Mass. 733 (1982)
…ndant could have preserved the mother’s testimony by way of deposition and introduced it at trial. 15 See Mass. R. Crim. P. 35, 378 Mass. 906 (1979). *752 Cf. Fed. R. Evid. 804(a)(5). He made no such effort. We conclude that in the circumstances of this case, where the means were available to introduce the evidence in admissible form, the defendant cannot rely on Chambers for i…
On deposition / former testimony, Commonwealth vs. Willard E. Bohannon, Jr. speaks to the Massachusetts dispute in this passage: "See Mass. R. Crim. P. 35, 378 Mass. 906 (1979). *752 Cf. Fed. R. Evid. 804(a)(5). He made no such effort." The surrounding opinion shows how the court applied that language to the record.
Adolf H. Graustein v. Harry F. R. Dolan & others
Adolf H. Graustein v. Harry F. R. Dolan & others, 282 Mass. 579 (1933)
…bim from asserting and demonstrating in this case that his former testimony was mistaken. Upon this bill, which was for an accounting, the defendants could show any proper disposition of the fund not closed to them by the answer. Goldthwait v. Day, 149 Mass. 185. Braman v. Foss, 204 Mass. 404, 411, 412. The instrument under which the bulk of the purchase price was held was sil…
Massachusetts opinions such as Adolf H. Graustein v. Harry F. R. Dolan & others are cited where deposition / former testimony is disputed. The court stated: "Upon this bill, which was for an accounting, the defendants could show any proper disposition of the fund not closed to them by the answer. Goldthwait v. Day, 149 Mass. 185. Braman v. Foss, 204 Mass. 404, 411, 412." That is the language to brief; the rest of the decision supplies the procedural posture.
Commonwealth vs. Anthony J. Canon — Liacos, J., dissenting
Commonwealth vs. Anthony J. Canon — Liacos, J., dissenting, 373 Mass. 494 (1977)
…leton, 460 F.2d 1148, 1152-1153 (2d Cir. 1972) (admitting a deposition at the defendant’s trial did not violate the Sixth Amendment where the defendant had an opportunity to cross-examine the deponent when the deposition was taken and where the deponent was unavailable at trial). The question presently before us is markedly different from that decided in the preceding cases. No…
On deposition / former testimony, Commonwealth vs. Anthony J. Canon — Liacos, J., dissenting speaks to the Massachusetts dispute in this passage: "F.2d 1148, 1152-1153 (2d Cir. 1972) (admitting a deposition at the defendant’s trial did not violate the Sixth Amendment where the defendant had an opportunity to cross-examine the deponent when the deposition was taken and where the deponent was unavailable at trial)." The surrounding opinion shows how the court applied that language to the record.
Federal Deposit Insurance Corporation vs. Frank Csongor
Federal Deposit Insurance Corporation vs. Frank Csongor, 391 Mass. 737 (1984)
…laintiff’s attorney, with portions of the defendant’s sworn deposition testimony attached. In his deposition taken on May 27, 1980, the defendant testified that he had signed a blank note payable to the bank in the summer of 1971. He stated that he had gone to the bank and signed the note to help his brother. In addition, he gave sworn testimony in a deposition taken July 17, 1…
Massachusetts opinions such as Federal Deposit Insurance Corporation vs. Frank Csongor are cited where deposition / former testimony is disputed. The court stated: "In his deposition taken on May 27, 1980, the defendant testified that he had signed a blank note payable to the bank in the summer of 1971. He stated that he had gone to the bank and signed the note to help his brother." That is the language to brief; the rest of the decision supplies the procedural posture.
Philip HASOURIS, Executor, v. Khaled A. SOROUR.
Philip HASOURIS, Executor, v. Khaled A. SOROUR., 92 Mass. App. Ct. 607 (2018)
…ress, in the context of a civil action, whether a witness's deposition testimony can be used at trial under the prior recorded testimony exception to the rule against *608 hearsay where the witness is unavailable due to a valid invocation of the privilege against self-incrimination. We conclude that, as a general proposition, it can. In this case, however, we need not determine…
Practitioners open Philip HASOURIS, Executor, v. Khaled A. SOROUR. when Massachusetts deposition / former testimony turns on the distinction in this sentence: "We conclude that, as a general proposition, it can." Do not lift it out of the facts the court was deciding.
Commonwealth vs. Josener Dorisca
Commonwealth vs. Josener Dorisca, 88 Mass. App. Ct. 776 (2015)
…ed face to face’ ... [in order to] ‘exclude any evidence by deposition, which could be *777 given orally in the presence of the accused.’ ” Commonwealth v. Bergstrom, 402 Mass. 534, 544-545 (1988), quoting from Commonwealth v. Gallo, 275 Mass. 320, 333 (1931), and Commonwealth v. Slavski, 245 Mass. 405, 413 (1923). 1 See Coy v. Iowa, 487 U.S. 1012, 1015-1016 (1988). There are o…
Commonwealth vs. Josener Dorisca is worth reading on Massachusetts deposition / former testimony because the court put the point in its own words: "Commonwealth v. Bergstrom, 402 Mass. 534, 544-545 (1988), quoting from Commonwealth v. Gallo, 275 Mass. 320, 333 (1931), and Commonwealth v. Slavski, 245 Mass. 405, 413 (1923). 1 See Coy v. Iowa, 487 U.S. 1012, 1015-1016 (1988)." Use that passage as the starting point, then read the facts that precede it.
Anne Renaud v. Nancy Hernandez
Anne Renaud v. Nancy Hernandez, 2004 Mass. App. Div. 150 (2004)
…trial judge abused his discretion by refusing to admit the depositions of two witnesses who failed to appear at trial. *1511. The basis for the trial judge’s decision to exclude the depositions. Three percipient witnesses, who had been deposed prior to trial, were summonsed for trial. One, an attorney, appeared and testified consistently with Ms. Hernandez’s having had the gre…
Anne Renaud v. Nancy Hernandez is worth reading on Massachusetts deposition / former testimony because the court put the point in its own words: "The basis for the trial judge’s decision to exclude the depositions. Three percipient witnesses, who had been deposed prior to trial, were summonsed for trial. One, an attorney, appeared and testified consistently with Ms." Use that passage as the starting point, then read the facts that precede it.
Federal Deposit Insurance Corporation v. John H. Kefalas
Federal Deposit Insurance Corporation v. John H. Kefalas, 11 Mass. L. Rptr. 139 (1999)
…t virtually compelled disbelief. Beyond that, Mr. Kefalas’s deposition testimony was repeatedly false on key issues and was designed to conceal for as long as he possibly could the existence of, and role played by, the St. Lucia corporation. Mr. and Mrs. Kefalas’s trial testimony about loans, accounting for loans and purposes for which loan proceeds were used was unsupported by…
On deposition / former testimony, Federal Deposit Insurance Corporation v. John H. Kefalas speaks to the Massachusetts dispute in this passage: "Beyond that, Mr. Kefalas’s deposition testimony was repeatedly false on key issues and was designed to conceal for as long as he possibly could the existence of, and role played by, the St. Lucia corporation. Mr. and Mrs." The surrounding opinion shows how the court applied that language to the record.
Authenticity: why it matters and how to prove it
Authenticity is not a hearsay doctrine and it is not optional. Under Mass. R. Evid. 901, 902, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Self-authenticating categories — certified public records, newspapers, acknowledged documents, trade inscriptions, and (where adopted) certified domestic records of a regularly conducted activity — shorten the path, but most trial exhibits still need a sponsoring witness, distinctive characteristics, chain of custody, or process-or-system evidence.
Massachusetts courts gate expert forensic evidence and electronic communications through Mass. R. Evid. 901, often with Daubert-style reliability hearings in criminal cases. The Guide to Evidence is treated as authoritative in state trials.
Why authenticity gets its own section in every Massachusetts trial notebook:
- It is a condition precedent. An unauthenticated exhibit never reaches the relevance, hearsay, or privilege analysis in a useful way — the jury never properly considers it.
- Digital evidence multiplies the failure modes. Screenshots, social-media posts, text threads, and cloud downloads require hash values, account attribution, metadata, or a percipient witness who saw the content created or received.
- Chain of custody is authenticity by another name. Drugs, firearms, biological samples, and seized devices are excluded when the links from seizure to lab to courtroom are broken, even if a hearsay exception would otherwise apply to a lab report.
- Business-records shortcuts do not replace authentication. A custodian can explain record-keeping practices and still fail if nobody can say the particular PDF or printout is the record of this patient, this account, or this machine.
- Self-authentication is narrow. Counsel who wave a notarization or a letterhead and skip the rest of Rule 901-style analysis often lose when the document's contents are disputed.
Practical authentication checklist for Massachusetts trials: identify the exhibit; choose a 901 method or a 902 category; line up the sponsoring witness or certificate; preserve chain-of-custody testimony for physical and digital items; and separate the authenticity objection from any hearsay objection so the court rules on each.
Massachusetts authenticity opinions
Commonwealth vs. Richard Flebotte
Commonwealth vs. Richard Flebotte, 417 Mass. 348 (1994)
…for identification, but ruled that the photographs must be authenticated before being presented to Dora. The judge would not allow the defendant to attempt to have Dora authenticate them. He ruled that the defendant could have any witness other than the child authenticate the photographs, and then call the child for further questioning after authentication. The defendant did n…
Commonwealth vs. Richard Flebotte is worth reading on Massachusetts authentication because the court put the point in its own words: "Dora. The judge would not allow the defendant to attempt to have Dora authenticate them. He ruled that the defendant could have any witness other than the child authenticate the photographs, and then call the child for further questioning after authentication." Use that passage as the starting point, then read the facts that precede it.
Commonwealth vs. Michael v. LaCorte
Commonwealth vs. Michael v. LaCorte, 373 Mass. 700 (1977)
…record by the Boston police department, was not adequately authenticated as one bearing the *704 prints of the defendant and thus could not furnish a relevant standard against which the expert witness could compare the fingerprint found in White’s apartment. We disagree. The Commonwealth offered the card through the police officer who fingerprinted LaCorte at the time of the a…
Practitioners open Commonwealth vs. Michael v. LaCorte when Massachusetts authentication turns on the distinction in this sentence: "Boston police department, was not adequately authenticated as one bearing the *704 prints of the defendant and thus could not furnish a relevant standard against which the expert witness could compare the fingerprint found in White’s apartment. We disagree." Do not lift it out of the facts the court was deciding.
Commonwealth v. Jason Deramo
Commonwealth v. Jason Deramo, 436 Mass. 40 (2002)
…f registry of motor vehicles (registry) records without the authentication required by G. L. c. 233, § 76, and that, without the erroneously admitted records, there was insufficient evidence to support the conviction. The Appeals Court affirmed the conviction in an unpublished memorandum and order pursuant to its rule 1:28. 50 Mass. App. Ct. 1112 (2001). We granted the defendan…
Commonwealth v. Jason Deramo is worth reading on Massachusetts authentication because the court put the point in its own words: "G. L. c. 233, § 76, and that, without the erroneously admitted records, there was insufficient evidence to support the conviction. The Appeals Court affirmed the conviction in an unpublished memorandum and order pursuant to its rule 1:28. 50 Mass. App. Ct. 1112 (2001)." Use that passage as the starting point, then read the facts that precede it.
COMMONWEALTH v. Urbano MEOLA.
COMMONWEALTH v. Urbano MEOLA., 95 Mass. App. Ct. 303 (2019)
…ned infra , the evidence before the judge was sufficient to authenticate the Facebook message as a digital communication sent to the victim by the defendant. See Mass. G. Evid. § 901(b)(4), (11) (2019). Furthermore, we conclude that because the evidence presented by the Commonwealth was sufficient to permit the judge to conclude beyond a reasonable doubt that the defendant sent…
On authentication, COMMONWEALTH v. Urbano MEOLA. speaks to the Massachusetts dispute in this passage: "Facebook message as a digital communication sent to the victim by the defendant. See Mass. G. Evid. § 901(b)(4), (11) (2019)." The surrounding opinion shows how the court applied that language to the record.
COMMONWEALTH v. Scott E. FIELDING.
COMMONWEALTH v. Scott E. FIELDING., 94 Mass. App. Ct. 718 (2019)
…acebook photo on the ground that the Commonwealth could not authenticate it. The judge tabled a ruling on that motion until he had a chance to review the case law and hear the trial evidence. The defendant also moved -- again -- to preclude the victim from making an in-court identification. The judge announced that he was "going to deny [that] motion at this point based on [his…
Massachusetts opinions such as COMMONWEALTH v. Scott E. FIELDING. are cited where authentication is disputed. The court stated: "Commonwealth could not authenticate it. The judge tabled a ruling on that motion until he had a chance to review the case law and hear the trial evidence. The defendant also moved -- again -- to preclude the victim from making an in-court identification." That is the language to brief; the rest of the decision supplies the procedural posture.
Federal National Mortgage Association v. Davor Saric
Federal National Mortgage Association v. Davor Saric, 2010 Mass. App. Div. 177 (2010)
…mplaint FNMA did not offer any witness testimony, either to authenticate the documentary exhibits, or for any other purpose. Saric objected timely to the introduction of each of FMNA’s exhibits, arguing, first, that the documents were not properly authenticated and, second, that even if the documents themselves were authentic, the substance of those documents was inadmissible h…
Federal National Mortgage Association v. Davor Saric is worth reading on Massachusetts authentication because the court put the point in its own words: "FNMA did not offer any witness testimony, either to authenticate the documentary exhibits, or for any other purpose." Use that passage as the starting point, then read the facts that precede it.
Pipe Plus, Inc. v. C & B Construction Management, Inc., and another
Pipe Plus, Inc. v. C & B Construction Management, Inc., and another, 2006 Mass. App. Div. 96 (2006)
…is that the signature on the document had not been properly authenticated. The Plaintiff’s subsequent attempt to introduce a faxed copy of the credit application allegedly signed by Ross met the same fate.2 The plaintiff rested a short time later without asking the trial judge to reconsider his ruling on the admissibility of the credit application or to otherwise preserve its a…
Pipe Plus, Inc. v. C & B Construction Management, Inc., and another is worth reading on Massachusetts authentication because the court put the point in its own words: "The Plaintiff’s subsequent attempt to introduce a faxed copy of the credit application allegedly signed by Ross met the same fate." Use that passage as the starting point, then read the facts that precede it.
COMMONWEALTH v. Admiral SUTHERLAND.
COMMONWEALTH v. Admiral SUTHERLAND., 93 Mass. App. Ct. 65 (2018)
…e, denied the motion, ruling that the bundles were properly authenticated and admitted at trial; that any flaw or inconsistency in Rodriguez's testimony about the bundles was for *72 the jury to resolve; and that an objection to authenticity would have been futile. In assessing this claim, we must first determine whether counsel's performance fell below that which might be expe…
COMMONWEALTH v. Admiral SUTHERLAND. is worth reading on Massachusetts authentication because the court put the point in its own words: "Rodriguez's testimony about the bundles was for *72 the jury to resolve; and that an objection to authenticity would have been futile." Use that passage as the starting point, then read the facts that precede it.
Practice checklist
- State the relevance theory in one sentence before naming an exception.
- Run the 403 / unfair-prejudice balance explicitly for other-acts and graphic exhibits.
- For character or other-acts evidence, identify the non-propensity purpose and request a limiting instruction on the record.
- Decide whether an out-of-court statement is hearsay for the purpose offered before hunting exceptions.
- Lay business-records foundations with time, knowledge, regular practice, and custodial qualifications — or a qualifying certification.
- Prove unavailability with specific facts before offering former testimony or dying declarations.
- Treat deposition use as procedure-plus-hearsay; designate and counter-designate early.
- Authenticate every exhibit under Mass. R. Evid. 901, 902 (or the self-authentication path) before arguing hearsay.
- Preserve chain of custody for physical and digital evidence with named custodians.
- Search LawDiver for recent Massachusetts appellate evidence opinions before mediation or motions in limine.
Contents
- General standards of admissibility
- Character evidence
- Hearsay: start with the definition
- Party admissions
- Business records
- Important hearsay exceptions that do not require unavailability
- Declarant unavailable
- Dying declarations
- Medical diagnosis or treatment statements
- Use of depositions at trial
- Authenticity: why it matters and how to prove it
- Practice checklist
- Frequently asked questions
General standards of admissibility
Massachusetts starts every evidence dispute with relevance and unfair prejudice. Under Mass. R. Evid. 401, 403, evidence is relevant when it has any tendency to make a fact of consequence more or less probable, and relevant evidence is still excluded when its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time. Preliminary questions of admissibility are for the court; conditional relevance and limited-purpose instructions keep otherwise-usable proof from becoming a Trojan horse for propensity or truth-of-the-matter use.
Practitioners should cite both Mass. R. Evid. and the Massachusetts Guide to Evidence. Massachusetts retains common-law remnants for some impeachment topics despite rule adoption.
Practice tip: articulate the theory of relevance in one sentence before citing the exception. Lawyers who lead with "it's a business record" without explaining what fact the record proves often lose the 403 balance even when the hearsay foundation is clean.
Frequently asked questions
What is the primary evidence source in Massachusetts?
Massachusetts applies the Massachusetts Guide to Evidence / Massachusetts Rules of Evidence. Massachusetts applies Mass. R. Evid. and the Massachusetts Guide to Evidence, which track the FRE with Massachusetts commentary and selected divergences.
How do Massachusetts courts decide relevance and unfair prejudice?
Under Mass. R. Evid. 401, 403, evidence must make a fact of consequence more or less probable, and the court may exclude relevant evidence when unfair prejudice, confusion, or waste of time substantially outweighs its probative value.
Are party admissions hearsay in Massachusetts?
Party-opponent statements under Mass. R. Evid. 801(d)(2) are generally excluded from the hearsay ban (or treated as an exception, depending on local drafting). They may be offered against the party who made or adopted them without showing unavailability.
What foundation is required for business records?
Under Mass. R. Evid. 803(6), show a record made at or near the time from someone with knowledge, kept in the course of a regularly conducted activity, as a regular practice, through a custodian, qualified witness, or allowed certification — subject to trustworthiness attack.
When can I use a deposition at trial in Massachusetts?
Mass. R. Civ. P. 30 and 32 govern civil depositions and permissible trial uses. Mass. R. Crim. P. 14 controls criminal discovery; deposition use at trial is limited and generally requires Mass. R. Evid. 804(b)(1) with unavailability.
Why is authenticity separate from hearsay?
Authenticity asks whether the item is what you claim it is; hearsay asks whether out-of-court assertions inside it may be used for their truth. You can lose on either ground independently. Massachusetts authenticity practice starts with Mass. R. Evid. 901, 902.
Where do dying declarations and medical statements fit?
Dying declarations under Mass. R. Evid. 804(b)(2) require belief in impending death and concern the cause or circumstances of that believed death. Medical statements under Mass. R. Evid. 803(4) require a genuine diagnostic or treatment purpose and reasonable pertinence to care.