Mass. R. Evid. 807
[Exception not recognized]
Mass. Guid. Evid. 807
Unlike the Federal Rules of Evidence, Massachusetts does not recognize a "residual" exception to the hearsay rule. The Supreme Judicial Court, however, has recognized "a narrow, constitutionally based exception to the hearsay rule, which applies where otherwise inadmissible hearsay is critical to the defense and bears persuasive guarantees of trustworthiness." Commonwealth v. Drayton, 473 Mass. 23, 25 (2015) ( Drayton I ). See also Commonwealth v. Drayton, 479 Mass. 479 (2018) ( Drayton II ). The court noted that it had previously recognized a criminal defendant's right to admit "otherwise inadmissible hearsay evidence to support the assertion that a third party is the true culprit, provided certain conditions are met," and that it identified "no persuasive reasons for confining [its] recognition of a constitutionally based hearsay exception to the context of third-party culprit evidence." Drayton I, 473 Mass. at 36. Nevertheless, the court emphasized that this narrow hearsay exception should be used only on the rare occasion when "otherwise inadmissible evidence is both truly critical to the defense's case and bears persuasive guarantees of trustworthiness." Id. at 40. See generally Id. at 33-38 (discussing Chambers v. Mississippi, 410 U.S. 284 [1973]). See also Commonwealth v. Dame, 473 Mass. 524, 533 n.17 (2016) (defendant's sister's exculpatory hearsay statements to police were neither "critical to the defense" nor bearing "persuasive guarantees of trustworthiness"). This "constitutionally based hearsay exception is extremely narrow . . . [and] the exception is not, and never was intended to be, a catch-all exception to the hearsay rule." Commonwealth v. Yat Fung Ng, 491 Mass. 247, 261-262 (2023) (defendant's statement to witness about why he shot victim, made after shooting, not critical to his defense, as at all times defendant retained absolute right to testify in his own defense).
Note to Section 1105, Third-Party Culprit Evidence.