Mass. R. Evid. 104
Mass. Guid. Evid. 104
Subsection (a). This subsection is derived from Nally v. Volkswagen of Am., Inc., 405 Mass. 191, 197-198 (1989). See also Gorton v. Hadsell, 63 Mass. 508, 511 (1852) (explaining that Massachusetts follows the orthodox principle under which "it is the province of the judge . . . to decide all questions on the admissibility of evidence. It is also his province to decide any preliminary questions of fact, however intricate, the solution of which may be necessary to enable him to determine the other question of admissibility."). The court may consider, in appropriate circumstances, representations of counsel and summary testimony. When the credibility of witnesses is in dispute on a preliminary question of fact, the court's determination is final. See Commonwealth v. Lyons, 426 Mass. 466, 470 (1998); Davis v. Boston Elevated Ry. Co., 235 Mass. 482, 502 (1920). The general rule in all cases, except as to waiver of Miranda rights and the voluntariness of defendants' statements in criminal cases, is that the judge's findings of preliminary facts on which the admissibility of evidence depends need only be by a fair preponderance of the evidence. See Care & Protection of Laura, 414 Mass. 788, 792 (1993); Commonwealth v. Polian, 288 Mass. 494, 498-499 (1934). As to the waiver of Miranda rights and the issue of voluntariness, the standard under Massachusetts law is proof beyond a reasonable doubt. Commonwealth v. Day, 387 Mass. 915, 920 (1983).
When the preliminary question involves the applicability of a privilege and the substance of the proposed testimony or evidence is not known to the court, it may be necessary to require that the party or witness asserting the privilege make a disclosure in camera of enough of the evidence to enable the court to make a preliminary determination. See Commonwealth v. Collett, 387 Mass. 424, 436 (1982) (in camera review may be appropriate in determining applicability of client-social worker privilege); Notes to Section 511(b), Privilege Against Self-Incrimination: Privilege of a Witness (discussing Commonwealth v. Martin, 423 Mass. 496 [1996]). See also Carr v. Howard, 426 Mass. 514, 531 (1998) (medical peer review privilege). An in camera hearing should not be used unless the court is not able to determine the existence of the privilege from the record. Martin, 423 Mass. at 504-505. See, e.g., Bays v. Theran, 418 Mass. 685, 693 (1994); Bougas v. Chief of Police of Lexington, 371 Mass. 59, 65-66 (1976). Whether a privilege exists on behalf of a minor or incapacitated person is a preliminarily determination made by the court. If a privilege exists, the court appoints a guardian ad litem or guardian to waive or assert the privilege. G. L. c. 233, § 20B. See Adoption of Diane, 400 Mass. 196, 200-202 (1987).
Preliminary questions involving the voluntariness of a defendant's statement, whether there was a valid waiver of the rights required by Miranda v. Arizona, 384 U.S. 436 (1966), or whether an identification was unnecessarily suggestive, should be raised in advance of trial by a motion to suppress. See Mass. R. Crim. P. 13(c)(1), (2). When voluntariness is a live issue and is challenged by a pretrial motion to suppress or an objection at trial, the court shall conduct an evidentiary hearing. See Commonwealth v. Adams, 389 Mass. 265, 269-270 (1983); Commonwealth v. Miller, 68 Mass. App. Ct. 835, 842 (2007); Commonwealth v. Gonzalez, 59 Mass. App. Ct. 622, 624 (2003); Commonwealth v. Florek, 48 Mass. App. Ct. 414, 419 (2000). "At a hearing on a motion to suppress, judges should 'err on the side of considering more, not less, information' and then determine the credibility, reliability, and weight to be applied to that evidence." Commonwealth v. Evelyn, 485 Mass. 691, 706 (2020), quoting United States v. Stepp, 680 F.3d 651, 669 (6th Cir. 2012) ( Daubert requirements are inapplicable in suppression hearing). However, if a pretrial motion to suppress was heard and determined in advance of trial, and the evidence at trial is not materially different, the trial judge has no duty to rehear the motion based on an objection made at trial. See Commonwealth v. Parker, 412 Mass. 353, 356 (1992). Cross-Reference: Section 1101(d), Applicability of Evidentiary Sections: Motions to Suppress.
In some criminal cases, there are certain preliminary facts which, after being found by the judge, must also be submitted to the jury. See Commonwealth v. Bright, 463 Mass. 421, 427-430 (2012). In those situations, the judge must instruct the jury to disregard the evidence if they do not believe that those preliminary facts exist. See, e.g., Commonwealth v. Tavares, 385 Mass. 140, 152 (humane practice rule), cert. denied, 457 U.S. 1137 (1982); Commonwealth v. Key, 381 Mass. 19, 22 (1980) (dying declaration); Commonwealth v. Boyer, 52 Mass. App. Ct. 590, 598 (2001) (statements by joint venturers). See also Commonwealth v. Andre, 484 Mass. 403, 411-413 (2020) (business records). Cross-Reference: Section 1101(c)(3), Applicability of Evidentiary Sections: Where Inapplicable: Certain Other Proceedings.
For a discussion of the difference between preliminary questions of fact upon which admissibility is determined by the judge under Mass. G. Evid. § 104(a) and determinations of conditional relevance under Mass. G. Evid. § 104(b), see Commonwealth v. Davis, 487 Mass. 448, 455 n.7, 459 n.13 (2021) (distinguishing between judge's gatekeeping function of determining reliability of expert testimony under Mass. G. Evid. § 104[a] and judge's role in determining whether jury could properly apply expert testimony to the facts [relevancy] under Mass. G. Evid. § 104[b]), and Commonwealth v. Hinds, 487 Mass. 212, 225-226 (2021) (same).
Subsection (b). This subsection is derived from Commonwealth v. Perry, 432 Mass. 214, 234 (2000); Commonwealth v. Leonard, 428 Mass. 782, 785-786 (1999); Fauci v. Mulready, 337 Mass. 532, 540 (1958); and Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 485 n.4 (2004). "Relevancy conditioned on fact" means that the judge is satisfied that a reasonable jury could find that the event took place or the condition of fact was fulfilled. Leonard, 428 Mass. at 785-786. See, e.g., Commonwealth v. Davis, 487 Mass. 448, 455 n.7 (2021) (relevance of measuring device, such as GPS, is conditioned on whether jury could find that it was functioning properly); Commonwealth v. Gambora, 457 Mass. 715, 730 (2010) (expert shoe-print evidence was relevant because reasonable jury could have found that police seizure of sneaker "from a closet in a bedroom at the defendant's mother's home-a room where the police also found personal papers bearing the defendant's name and photographs of him"-warranted an inference that the sneaker belonged to him, and therefore made it relevant). See also Commonwealth v. Castro, 99 Mass. App. Ct. 502 (2021) (photograph within Instagram message). Contrast Section 104(a) (judge finds facts by preponderance of evidence). Authentication is a preliminary determination of fact, which a judge must make prior to admitting evidence. Commonwealth v. Sargent, 98 Mass. App. Ct. 27, 30 n.4 (2020). In determining whether a party has satisfied Section 104(b), the judge does not weigh credibility or make findings of fact. Rather, the judge "simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact . . . by a preponderance of the evidence" (quotation omitted). Commonwealth v. Meola, 95 Mass. App. Ct. 303, 308 n.13 (2019). Accord Commonwealth v. Teixeira, 486 Mass. 617, 629 (2021) (prior bad act evidence); Commonwealth v. Johnson, 102 Mass. App. Ct. 195, 200-201 (2023) (authentication of digital communication to show defendant was author). Cross-Reference: Section 404(b)(2), Character Evidence; Crimes or Other Acts: Crimes, Wrongs, or Other Acts: Permitted Uses; Section 901(b)(11), Authenticating or Identifying Evidence: Examples: Electronic or Digital Communication.
In the event that the foundation evidence is not subsequently produced, the court has no duty to strike the evidence, admitted de bene, on its own motion. Commonwealth v. Sheppard, 313 Mass. 590, 595-596 (1943); Harris-Lewis, 60 Mass. App. Ct. at 485 n.4. If the objecting party fails to move to strike the evidence, the court's failure to strike it is not error. Muldoon v. West End Chevrolet, Inc., 338 Mass. 91, 98 (1958). See Commonwealth v. Navarro, 39 Mass. App. Ct. 161, 166 (1995). See also Section 611(a), Mode and Order of Examining Witnesses and Presenting Evidence: Control by the Court.
Subsection (c). This subsection is derived from Fed. R. Evid. 104(c) and Proposed Mass. R. Evid. 104(c) and is consistent with Massachusetts law. See Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418, 422-423 (1988).
Subsection (d). This subsection is derived from Fed. R. Evid. 104(d) and Proposed Mass. R. Evid. 104(d) and is consistent with Massachusetts law. See Commonwealth v. Judge, 420 Mass. 433, 444-446 (1995). It is well established that a defendant's testimony in support of a motion to suppress evidence may not be admitted against the defendant at trial on the issue of guilt. See Simmons v. United States, 390 U.S. 377, 394 (1968). Such testimony may, however, be used for purposes of impeachment at trial if the defendant elects to testify. See Judge, 420 Mass. at 446 n.9 (the fact that defendant's testimony at suppression hearing may later be used at trial does not mean the scope of cross-examination of defendant at preliminary hearing should be limited). See also United States v. Smith, 940 F.2d 710, 713 (1st Cir. 1991) (defendant's testimony at a pretrial hearing can be used against the defendant for impeachment purposes at trial); Care & Protection of M.C., 479 Mass. 246, 262 & n.9 (2018) (testimony at care and protection proceeding ordinarily not admissible at future criminal proceeding and can only be used for impeachment purposes if prior testimony "differ[s] significantly").
Subsection (e). This subsection is based on the long-standing principle that, in cases tried to a jury, questions of admissibility are for the court, while the credibility of witnesses and the weight of the evidence are questions for the jury. See Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 13 (1998); Commonwealth v. Festa, 369 Mass. 419, 424-425 (1976); Commonwealth v. Williams, 105 Mass. 62, 67 (1870).