Mass. R. Evid. 1101
Mass. Guid. Evid. 1101
Subsection (a). This subsection summarizes the current practice in Massachusetts courts. "The rules of evidence stand guard to ensure that only relevant, reliable, noninflammatory considerations may shape fact finding. Without these rules, there would be nothing to prevent trials from being resolved on whim, personal affections, or prejudice." Adoption of Sherry, 435 Mass. 331, 338 (2001). In addition to trials, therefore, the law of evidence applies at hearings on motions. See Thorell v. ADAP, Inc., 58 Mass. App. Ct. 334, 340-341 (2003).
Subsection (b). Privileges are covered in Article V, Privileges and Disqualifications.
Subsection (c)(1). See Note to Section 104(a), Preliminary Questions: In General.
Subsection (c)(2). This subsection is derived from Commonwealth v. Gibson, 368 Mass. 518, 522-525 (1975), and Mass. R. Crim. P. 4(c). See Reporters' Notes to Mass. R. Crim. P. 4(c) ("evidence which is not legally competent at trial is sufficient upon which to base an indictment").
Subsection (c)(3). Evidence bearing directly on probable cause, such as what a witness, a police officer, or a probation officer tells a court in connection with a request for an arrest warrant, a probation violation warrant, a warrant of apprehension, a search warrant, a capias, or a summons, or in support of a criminal complaint or as justification for a search and seizure, is not objectionable on grounds of hearsay in a judicial proceeding to determine probable cause. Commonwealth v. Fletcher, 435 Mass. 558, 567 (2002); Commonwealth v. Weiss, 370 Mass. 416, 418 (1976); Commonwealth v. Rosenthal, 52 Mass. App. Ct. 707, 709 n.3 (2001). While the traditional rules of evidence may not apply in these situations, the evidence must still be reliable and trustworthy. See Abbott A. v. Commonwealth, 458 Mass. 24, 34-35 (2010); Brantley v. Hampden Div. of the Probate & Family Ct. Dep't, 457 Mass. 172, 184-185 (2010); Commonwealth v. Wilcox, 446 Mass. 61, 71 (2006).
This subsection identifies the various miscellaneous proceedings to which the rules of evidence are not applicable, including the following:
209A Hearings. See Silvia v. Duarte, 421 Mass. 1007, 1008 (1995); Frizado v. Frizado, 420 Mass. 592, 597-598 (1995).
Administrative Proceedings. See G. L. c. 30A, § 11(2); 452 Code Mass. Regs. § 1.11(5); Costa v. Fall River Hous. Auth., 453 Mass. 614, 627 (2009); Rate Setting Comm'n v. Baystate Med. Ctr., 422 Mass. 744, 752-755 (1996); Goodridge v. Director of Div. of Employment Sec., 375 Mass. 434, 436 n.1 (1978); Winthrop Retirement Bd. v. LaMonica, 98 Mass. App. Ct. 360, 368-369 (2020) (retirement board could consider presentence report, which included factual findings on dismissed charges but was adopted by sentencing judge, as evidence linking criminal activity to public employment). See also Care & Protection of Rebecca, 419 Mass. 67, 83 (1994) (a witness at such a proceeding is not permitted to express an opinion about the credibility of another witness).
Bail Proceedings. See Paquette v. Commonwealth, 440 Mass. 121, 133 (2003) (bail revocation proceedings); Querubin v. Commonwealth, 440 Mass. 108, 118 (2003) (G. L. c. 276, § 57, proceedings); Snow v. Commonwealth, 404 Mass. 1007, 1007 (1989).
Bar Discipline Proceedings. See Matter of Abbott, 437 Mass. 384, 393 (2002).
Civil Commitment Hearings for Alcohol and Substance Use Disorders. See G. L. c. 123, § 35; Matter of G.P., 473 Mass. 112, 128-129 (2015). See also Section 1118, Civil Commitment Hearings for Alcohol and Substance Use Disorders.
Civil Motor Vehicle Infraction Hearings. See G. L. c. 90, § 20 (traffic citation). Under the Uniform Rules on Civil Motor Vehicle Infractions, the formal rules of evidence do not apply. See Commonwealth v. Curtin, 386 Mass. 587, 588 n.3 (1982). The same holds true for cases involving parking tickets under G. L. c. 90, § 20C. See Lemaine v. City of Boston, 27 Mass. App. Ct. 1173, 1175 (1989).
Issuance of Process (Warrant, Capias, Summons). See Commonwealth v. Weiss, 370 Mass. 416, 418 (1976); Commonwealth v. Young, 349 Mass. 175, 179 (1965); Commonwealth v. Lehan, 347 Mass. 197, 206 (1964); Commonwealth v. Rosenthal, 52 Mass. App. Ct. 707, 709 n.3 (2001).
Juvenile First Misdemeanor Offense Dismissal (Wallace W.) Hearings. See Commonwealth v. Nick N., 486 Mass. 696, 706 (2021) (reliable hearsay, as defined in Commonwealth v. Durling, 407 Mass. 108, 117-118 [1990], is admissible in juvenile's first misdemeanor offense dismissal hearings). See also Wallace W. v. Commonwealth, 482 Mass. 789, 800-801 (2019).
Precomplaint Hearings. See G. L. c. 218, § 35A. The formal rules of evidence do not apply at a hearing conducted pursuant to G. L. c. 218, § 35A. Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Ct. Dep't, 439 Mass. 352, 357-358 (2003); Commonwealth v. DiBen-nadetto, 436 Mass. 310, 314-315 (2002) (no right to cross-examine witness).
Pretrial Dangerousness Hearings. See G. L. c. 276, § 58A(4); Abbott A. v. Commonwealth, 458 Mass. 24, 30-33 (2010); Mendonza v. Commonwealth, 423 Mass. 771, 785-786 (1996). By statute, a judge must consider hearsay contained either in a police report or a statement of a victim or witness at a dangerousness hearing. G. L. c. 276, § 58A(4). Hearsay must be reliable to be the basis for a finding of dangerousness; hearsay that is the sole basis for the finding must have substantial indicia of reliability. Vega v. Commonwealth, 490 Mass. 226, 238-239 (2022). Before being able to summons the victim or the victim's family to the hearing, a defendant must make a motion to the court prior to the issuance of the summons. The defendant must demonstrate a good-faith basis that there is a reasonable belief that the testimony of the witness will support a conclusion for conditions of release. G. L. c. 276, § 58A(4).
Pretrial Probation Revocation Hearings Pursuant to G. L. c. 276, § 87. See Commonwealth v. Preston P., 483 Mass. 759, 774 (2020) (due process requires only notice of alleged violation, opportunity to be heard, and judicial finding; evidentiary requirements applicable to probation violation hearings inapplicable).
Prison Disciplinary Hearings. See Murphy v. Superintendent, Mass. Correctional Inst., 396 Mass. 830, 834 (1986).
Probation Violation Hearings. Probationers have a due process right to confront adverse witnesses and to present a defense. These rights are distinct and must be analyzed separately. See Commonwealth v. Costa, 490 Mass. 118, 124 (2022); Commonwealth v. Hartfield, 474 Mass. 474, 479 (2016).
- Right to Confront Adverse Witnesses. Probationers have the right to confront and cross-examine adverse witnesses unless the judge specifically finds good cause for not allowing confrontation. Costa, 490 Mass. at 123; Commonwealth v. Durling, 407 Mass. 108, 118 (1990). The good-cause requirement for dispensing with the right to confront witnesses is satisfied by the introduction of reliable hearsay. Commonwealth v. Negron, 441 Mass. 685, 691 (2004). If hearsay is the only evidence of the violation, it must be substantially reliable. Costa, 490 Mass. at 124; Hartfield, 474 Mass. at 483-484; Commonwealth v. Bukin, 467 Mass. 516, 522 (2014); Commonwealth v. Patton, 458 Mass. 119, 132 (2010); Durling, 407 Mass. at 117-118.
Hearsay that is admissible under standard evidentiary rules is presumptively reliable. Durling, 407 Mass. at 118. If the hearsay would not be admissible under the standard rules, the judge must make an independent examination of the reliability of the evidence. Id. After making this assessment, the judge should explain in writing or on the record why the hearsay is reliable. Hartfield, 474 Mass. at 485; Durling, 407 Mass. at 118. To determine whether hearsay has substantial indicia of reliability, the judge should consider such factors as (1) whether the evidence is based on personal knowledge or direct observation; (2) whether the evidence, if based on direct observation, was recorded close in time to the events in question; (3) the level of factual detail; (4) whether the statements are internally consistent; (5) whether the evidence is corroborated by information from other sources; (6) whether the declarant was disinterested when the statements were made; and (7) whether the statements were made under circumstances that support their veracity. See Costa, 490 Mass. at 124; Hartfield, 474 Mass. at 484. There is no requirement the hearsay satisfy all of the indicia of reliability to be admissible. Costa, 490 Mass. at 126. Compare Commonwealth v. Rainey, 491 Mass. 632, 648 n.24 (2023) (upon balancing of factors, victim's statements in body-worn camera footage found to be substantially reliable), with Commonwealth v. Hamilton, 95 Mass. App. Ct. 782, 788-789 (2019) (hearsay statements containing unexplained conclusions by unnamed persons not substantially reliable to establish probation violation), and Commonwealth v. Grant G., 96 Mass. App. Ct. 721, 726 (2019) (case worker's testimony was not substantially reliable to support probation revocation where it was based on hearsay from other workers, lacked detail about specific incidents, and was not corroborated by any other source).
Formal procedures for authenticating evidence need not be followed in probation violation hearings as long as the evidence is sufficiently reliable. Commonwealth v. Sargent, 98 Mass. App. Ct. 27, 30-32 (2020) (authentication of handwritten letter by person familiar with probationer's handwriting or by comparing to known sample of his handwriting not required where letter bore sufficient indicia of reliability). See also Commonwealth v. Thissell, 457 Mass. 191, 196 (2010) (judge appropriately relied on factually detailed, contemporaneous GPS records regularly used by probation department to find probation violation).
- Right to Present a Defense. Probationers have the presumptive right to call witnesses in their own defense, including adverse witnesses. The Commonwealth may rebut the presumption by showing that the proposed testimony would be unnecessary to a fair adjudication of the alleged violation or would be unduly burdensome to the witness or the court's resources. See Costa, 490 Mass. at 127; Hartfield, 474 Mass. at 481. In determining whether the presumption has been rebutted, the judge must consider the totality of the circumstances, including at least three factors: (1) whether the proposed testimony might be significant in determining whether the probationer violated the conditions of probation; (2) whether, based on a proffer of the witness's expected testimony, the witness would provide noncumulative evidence; and (3) whether, based on an individualized and evidence-based assessment of the witness, there is an unacceptable risk that the witness's physical, psychological, or emotional health would be significantly jeopardized if required to testify (e.g., trauma an alleged sexual assault victim might suffer from being required to testify). See Costa, 490 Mass. at 127-128; Hartfield, 474 Mass. at 481-482. When a judge allows a probationer to call such a witness, the judge may restrict the scope of testimony where a probationer's examination seeks irrelevant or cumulative evidence or is unduly harassing to the witness. See Hartfield, 474 Mass. at 482. The rule of Commonwealth v. Crayton, 470 Mass. 228, 241 (2014), requiring a "good reason" for admitting an in-court identification when there has not been a prior out-of-court identification does not apply to probation revocation hearings. However, the judge must still determine that the identification is substantially reliable. Commonwealth v. Jarrett, 491 Mass. 437, 440-444 (2023).
Restitution Hearings. See Section 1114, Restitution.
Sentencing. See Commonwealth v. Goodwin, 414 Mass. 88, 92 (1993) (a judge may consider many factors, including hearsay). See also G. L. c. 276, § 85; Mass. R. Crim. P. 28(d); Commonwealth v. Stuckich, 450 Mass. 449, 461-462 (2008) (evidence of uncharged conduct is admissible and relevant to the character of the offender, but may not be used to increase the punishment).
Sexual Offender Registry Board Hearings. See G. L. c. 6, § 178L(2); 803 Code Mass. Regs. § 1.19(1).
Small Claims. See generally G. L. c. 218, §§ 21, 22.
Summary Contempt Proceedings. See Mass. R. Crim. P. 43.
Subsection (d). This subsection is derived from United States v. Matlock, 415 U.S. 164, 172-175 (1974), and Commonwealth v. Evelyn, 485 Mass. 691, 706 & n.8 (2020). "At a suppression hearing, the court may rely on hearsay, even though that evidence would not be admissible at trial," unless a specific hearsay exception is established. United States v. Raddatz, 447 U.S. 667, 679 (1980). See Commonwealth v. Rodriguez, 456 Mass. 578, 590 n.12 (2010) ("While [the witness's] statement to the detective would be inadmissible hearsay at trial, it was admissible at a motion to suppress hearing, where out-of-court statements may be introduced if they bear on whether the police had probable cause or reasonable suspicion to justify the subsequent stop or arrest of the defendant."); Commonwealth v. Love, 452 Mass. 498, 507-508 (2008) ("some hearsay is admissible at a hearing on a motion to suppress, whereas at trial it is inadmissible unless a specific exception can be established [citations omitted]"); Commonwealth v. Young, 349 Mass. 175, 179 (1965) (it is proper for judge to consider hearsay evidence when issue before court is probable cause). "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." Evelyn, 485 Mass. at 706, quoting United States v. Stepp, 680 F.3d 651, 669 (6th Cir. 2012). Cross-Reference: Section 104(a), Preliminary Questions: In General.