Mass. R. Evid. 1118

As amended through October 3, 2024

Section 1118 - Civil Commitment Hearings for Alcohol and Substance Use Disorders

(a)Civil Commitment Proceedings Pursuant to G. L. c. 123, § 35, for Individuals with Alcohol and Substance Use Disorders. In order to involuntarily commit a person with an alcohol or substance use disorder, the court must find by clear and convincing evidence, based on a hearing which shall include expert testimony and may include other evidence, that

(1) the respondent is an individual with an alcohol or substance use disorder, and

(2) there is a likelihood of serious harm to the respondent, the petitioner, or any other person as a result of the respondent's alcohol or substance use disorder.

The respondent shall have the right to cross-examine witnesses, present independent expert evidence, call witnesses, and submit documents or other evidence.

(b)Hearsay in G. L. c. 123, § 35, Proceedings. The rules of evidence do not apply in proceedings to commit individuals with alcohol and substance use disorders, except that privileges and statutory disqualifications do apply.

(1) Hearsay evidence is admissible but may only be relied upon if the judge finds it to be substantially reliable.

(2) Hearsay may be found to be substantially reliable by weighing some or all of the following factors. These factors are nonexclusive, and there is no requirement that hearsay satisfy each of the criteria to be considered substantially reliable.

(A) The level of factual detail, rather than generalized and conclusory assertions.

(B) Whether the statement is based on personal knowledge and direct observation.

(C) Whether the statement is corroborated by other evidence.

(D) Whether the statement was provided under circumstances that support the veracity of the source.

(E) Whether the statement was provided by a disinterested witness.

(c)Refusal to Testify in G. L. c. 123, § 35, Proceedings. No adverse inference may be drawn from a respondent's refusal to testify or to speak with the examining clinician. The respondent's refusal to testify or speak with the examining clinician does not prohibit the clinician from offering an opinion despite such refusal and reporting such refusal to the court.

Mass. Guid. Evid. 1118

Subsection (a). This subsection is derived from G. L. c. 123, § 35; Rule 6(a) of the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Use Disorders (2016); and Matter of G.P., 473 Mass. 112, 118-120 (2015).

Significant Statutory Amendment. An amendment to G. L. c. 123, § 35, effective on April 24, 2016, eliminated a requirement for "competent medical testimony" and replaced it with a requirement for "expert testimony." Although the decision in Matter of G.P., 473 Mass. at 118-120, discussed the former "competent medical testimony" language, the decision remains relevant regarding the "clear and convincing" standard.

Definitions. A person has a "substance use disorder" for the purpose of the statute if that person chronically or habitually consumes or ingests a substance to the extent that (1) such use substantially injures their health or substantially interferes with their social or economic functioning, or (2) that person has lost the power of self-control over the use of such controlled substances. G. L. c. 123, § 35.

Cross-Reference: Note to Section 1117(a)(2), Civil Commitment Hearings for Mental Illness: Mental Health Commitment Hearings (quoting definition of "likelihood of serious harm" from G. L. c. 123, § 1).

Subsection (b). This subsection is taken nearly verbatim from Rule 7(a) of the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcoholic and Substance Abuse (2015), as approved of in Matter of G.P., 473 Mass. 112, 122 (2015) ("The flexible nature of due process permits accommodation of these circumstances by not requiring strict adherence to the rules so long as there is fairness in the proceeding."). Because expert testimony is required by statute in G. L. c. 123, § 35, proceedings, it is essential that rules regarding the waiver of privilege be strictly adhered to when the court-appointed clinician interviews the respondent. See Commonwealth v. Lamb, 365 Mass. 265, 270 (1974); Section 1117(d)(3), Civil Commitment Hearings for Mental Illness: Basis for Expert Opinion (facts or data not in evidence).

Subsection (b)(1). This subsection is taken nearly verbatim from Rule 7(a) the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcoholic and Substance Abuse (2015), as approved of in Matter of G.P., 473 Mass. 112, 122 (2015).

Subsection (b)(2). This subsection is derived from factors for weighing the reliability of hearsay in probation revocation hearings. Matter of G.P., 473 Mass. 112, 121-122 (2015); Commonwealth v. Patton, 458 Mass. 119, 132-133 (2010), citing Commonwealth v. Durling, 407 Mass. 108, 114-118 (1990), and Commonwealth v. Delaney, 36 Mass. App. Ct. 930, 932 (1994). In Matter of G.P., 473 Mass. 112 (2015), the Supreme Judicial Court discussed the requirement that hearsay be "substantially reliable" by relating it to the admissibility of such hearsay in probation revocation proceedings. Matter of G.P., 473 Mass. at 121-122, citing Patton, 458 Mass. at 132-133, and Durling, 407 Mass. at 114-118. The same factors apply for weighing whether to rely on hearsay evidence in support of commitment under G. L. c. 123, § 35. Matter of G.P., 473 Mass. at 122; Matter of J.W., 2016 Mass. App. Div. 74, 77. In Section 35 hearings the core goal, consistent with due process, is for the evidence to "provid[e] an accurate and reliable determination" of the underlying question of fact. Matter of G.P., 473 Mass. at 121-122; Durling, 407 Mass. at 116. Hearsay is presumptively reliable if it is admissible under standard evidentiary rules. Patton, 458 Mass. at 132; Durling, 407 Mass. at 118.

Cross-Reference: Section 801, Definitions; Section 803, Hearsay Exceptions; Availability of Declarant Immaterial; Section 804, Hearsay Exceptions; Declarant Unavailable.

Subsection (c). This subsection is derived from Rule 7(b) of the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Use Disorders (2016) and G. L. c. 123, § 35.