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Guide to Evidence

Guide to Evidence  Guide to Evidence Index

Adopted Date: 02/01/2024

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A

ABUSE OF DISCRETION 

Appellate court’s review for 

Bowden evidence

Character evidence 

Collateral attacks

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Discharge of jurors 

Evidence of bonding assessment

Evidence of impeachment

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
  • § 608(b), Note. Specific Instances of Conduct

Evidence of insurance

Evidence of likelihood of sexual reoffense

Evidence of prior consistent statements

Evidence of prior possession of firearm

Evidence of sexual behavior or sexual reputation 

Evidence of similar occurrences

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Exclusion as sanction 

Expert witness testimony 

First complaint doctrine 

  • § 413(a), Note. Admissibility of First Complaint 
  • § 413(b), Note. Admissibility of Additional Reports of a Sexual Assault Under an Alternative Evidentiary Basis 

Opening statements 

Peremptory challenges

Scope of cross-examination

Sequestration of witnesses

Statistical summaries of compilations of raw data

Summonses for privileged records

Weapons evidence

ABUSE PREVENTION PROCEEDINGS 

Abuse defined

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Adverse inference from invocation of privilege against self-incrimination

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Application and ex parte hearing

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Applying rules of evidence

  • § 1106. Abuse Prevention and Harassment Prevention Proceedings

Defendant’s right to be heard

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Digital evidence

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Evaluating totality of circumstances

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Evidentiary principles applicable

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Hearsay, authentication, and best evidence

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

In-court identification

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Jurisdiction

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Meaningful opportunity to challenge

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Mutual orders

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

No right to counsel

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Notice hearing

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Procedure

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Renewal hearing

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Standard for abuse prevention order

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Termination and expiration of orders

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

ACCUSED 

See DEFENDANT

ADJUDICATIVE FACTS 

  • § 201. Judicial Notice of Adjudicative Facts 

ADMISSIBILITY 

Additional reports of sexual assault 

  • § 413(b). Admissibility of Additional Reports of a Sexual Assault Under an Alternative Evidentiary Basis 

Authentication or identification as precedent of 

  • § 901. Authenticating or Identifying Evidence 

Blood alcohol/breathalyzer tests and refusal of 

Character evidence 

  • § 404. Character Evidence; Crimes or Other Acts 
  • § 405. Methods of Proving Character 
  • § 608. A Witness’s Character for Truthfulness or Untruthfulness 
  • § 803(21). Reputation Concerning Character 

Character trait 

  • § 404. Character Evidence; Crimes or Other Acts 
  • § 405. Methods of Proving Character 

Collateral source payments

Compromise 

  • § 408. Compromise Offers and Negotiations in Civil Cases 

Computer simulations

Conduct, prior sexual 

  • § 412. Sexual Behavior or Sexual Reputation (Rape-Shield Law) 

Conduct, specific instances 

Confessions

Copies 

  • § 1002. Requirement of Original (Best Evidence Rule) 
  • § 1003. Admissibility of Duplicate 
  • § 1004. Admissibility of Other Evidence of Content 
  • § 1005. Official Records 

Courtroom demonstrations and demonstrative exhibits

  • § 1120(a). Courtroom Demonstrations and Demonstrative Exhibits 

Crimes 

  • § 404(b). Crimes, Wrongs, or Other Acts 

Curative

Depositions and affidavits

Determination of 

  • § 103. Rulings on Evidence, Objections, and Offers of Proof
  • § 104. Preliminary Questions 
  • § 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons 

DNA evidence

Evidence not admissible against other parties or for other purposes

  • § 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes

Evidence of insurance

Experiments

Expert testimony 

  • § 702. Testimony by Expert Witnesses 
  • § 703. Bases of Opinion Testimony by Experts 
  • § 704. Opinion on Ultimate Issue 
  • § 705. Disclosure of Facts or Data Underlying Expert Opinion 
  • § 706. Court-Appointed Experts 
  • § 1117(c). Expert Opinion Testimony

Expressions of sympathy 

  • § 409. Expressions of Sympathy in Civil Cases; Offers to Pay Medical and Similar Expenses 

Extrapolation evidence

Eyewitness identification

  • § 1112. Eyewitness Identification

Firearm/ballistics identification testimony

First complaint 

  • § 413(a). Admissibility of First Complaint 

Habit 

  • § 406. Routine Practice of a Business; Habit of an Individual 

Hearsay 

Irrelevant evidence 

  • § 402. General Admissibility of Relevant Evidence 

Limited admissibility 

  • § 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes 

Medical and hospital bills 

Medical and hospital records 

Medical reports

Mortality tables 

Negotiations 

  • § 408. Compromise Offers and Negotiations in Civil Cases 

Offers to compromise 

  • § 408. Compromise Offers and Negotiations in Civil Cases 

Photographs of victim

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Pleas 

  • § 410. Pleas, Offers of Pleas, and Related Statements 

Prior crimes or other bad acts

Prior statements of witnesses

  • § 613. Prior Statements of Witnesses, Limited Admissibility

Profile evidence

Relevant evidence 

  • § 401. Test for Relevant Evidence 
  • § 402. General Admissibility of Relevant Evidence 
  • § 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons 

Remedial measures 

  • § 407. Subsequent Remedial Measures 

Reports and records in child protective cases

  • § 1115. Evidentiary Issues in Care and Protection, Child Custody, and Termination of Parental Rights Cases

Role of judge 

Similar occurrences, evidence of

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Statutes limiting 

  • § 402. General Admissibility of Relevant Evidence 

Summaries 

  • § 1006. Summaries to Prove Content 

Suppressed statements, for impeachment

Test for 

Ultimate issue testimony 

  • § 704. Opinion on Ultimate Issue 

Writing or object used to refresh memory

ADMISSIONS 

Adoptive 

Binding 

By conduct 

By silence 

Defined, criminal case 

Evidentiary

Guilty plea, as admission in subsequent civil litigation

Inconsistent statements by prosecutor 

Joint venture 

Judicial 

Made on face of settlement documents 

  • § 408, Note. Compromise Offers and Negotiations in Civil Cases 

Nonbinding 

Of liability 

  • § 408, Note. Compromise Offers and Negotiations in Civil Cases
  • § 409(a). Expressions of Sympathy in Civil Cases

Party-opponent 

To sufficient facts

Vicarious

ADVERSE INFERENCE 

Abuse prevention proceedings 

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Child protective cases

Civil commitment hearings for substance use disorders

  • § 1118(c). Refusal to Testify in G. L. c. 123, § 35, Proceedings

Claim of privilege

  • § 525. Comment upon or Inference from Claim of Privilege

Consciousness of guilt or liability 

Failure to call witness 

Harassment prevention proceedings

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Missing witness 

Privilege against self-incrimination 

Psychotherapist-patient privilege 

ADVERSE PARTY 

Calling parent as witness by, in child protective cases

Calling social worker as witness by, in child protective cases

Deposition of

Entitlement to writing used by witness to refresh memory 

  • § 612. Writing or Object Used to Refresh Memory 

Interrogation of 

  • § 611. Mode and Order of Examining Witnesses and Presenting Evidence 

Notice of intent to use treatise to impeach witness 

Permission to use another part of admitted statement or record 

  • § 106(a). Remainder of Writings or Recorded Statements 

Prior consistent statements, introduction of

ADVERSE WITNESS 

Impeachment of

  • § 607. Who May Impeach a Witness 

Leading questions to examine

  • § 611. Mode and Order of Examining Witnesses and Presenting Evidence 

Sexually dangerous person proceedings

AFFIRMATION OR OATH 

  • § 603. Oath or Affirmation to Testify Truthfully 

ANCIENT DOCUMENTS 

APPELLATE REVIEW 

  • § 103. Rulings on Evidence, Objections, and Offers of Proof

APPLICABILITY, EVIDENTIARY SECTIONS 

  • § 1101. Applicability of Evidentiary Sections 

ATTORNEY-CLIENT PRIVILEGE 

Adverse inference from, civil case 

Burden of proving

Corporations and shareholders 

Creation

Crime-fraud exception

Death of client

Defined

Definition of terms used regarding 

Derivative attorney-client privilege

Exceptions 

General rule 

Ineffective assistance of counsel claim

Jointly represented clients

Law firms and clients 

Not self-executing

Waiver 

Who may claim 

Work-product doctrine

AUTHENTICATION AND IDENTIFICATION 

Generally 

  • § 901. Authenticating or Identifying Evidence 

Of ancient documents 

Of computer records

Of copies of birth, marriage and death records

Of digital evidence

Of documents

Of electronic or digital communication 

Of evidence in probation violation hearings

Of handwriting 

Of non-admitted evidence

Of official records

Of out-of-State court record

Of photographs

Of process or system 

Of public records or reports 

Of signature 

  • § 903. Subscribing Witness’s Testimony 

Of telephone conversation 

Of text message

Of video recordings

Of voice 

Of wills

Preliminary determination of fact

Self-authentication 

  • § 902. Evidence That Is Self-Authenticating

Statutory provisions

B

BAPTISMAL CERTIFICATES 

  • § 803(12). Marriage, Baptismal, and Similar Certificates 

BATTERED WOMAN SYNDROME

BEHAVIOR, PAST 

  • § 412. Sexual Behavior or Sexual Reputation (Rape-Shield Law) 

BENEVOLENT STATEMENTS 

  • § 409. Expressions of Sympathy in Civil Cases; Offers to Pay Medical and Similar Expenses 

BEST EVIDENCE RULE (REQUIREMENT OF ORIGINAL) 

Admissibility of other evidence of contents 

  • § 1004. Admissibility of Other Evidence of Content 

Admissions of parties 

  • § 1007. Testimony or Statement of Party to Prove Content 

Applicability of 

Duplicates 

  • § 1003. Admissibility of Duplicates 

Electronic records 

Official records 

Originals, requirement of 

  • § 1002. Requirement of Original (Best Evidence Rule) 

Role of judge and fact finder 

  • § 1008. Functions of Judge and Fact Finder 

Summaries 

  • § 1006. Summaries to Prove Content 

Writings/records defined 

  • § 1001. Definitions That Apply to This Article 

BIAS 

Cross-examination to show 

Extrinsic proof to show 

In jury selection

Of complainant 

Of examiner in sexually dangerous person proceedings

Of judge in questioning witness 

Of juror 

Of spouse testifying against spouse 

Of witness 

BLOOD ALCOHOL/BREATHALYZER TESTS 

Admission of 

Evidence regarding accuracy

Expert testimony 

Failure to take produce breath sample 

Reference to, in opening statement

Refusal as evidence

Reliability of

Retrograde extrapolation

BOUNDARIES, REPUTATION CONCERNING 

  • § 803(20). Reputation Concerning Boundaries or General History 

BOWDEN DEFENSE 

Admissibility of Bowden evidence

Comparison between Bowden and third-party culprit evidence

Inconclusive DNA results

Instructing jury regarding

Third-party culprit evidence

Two-edged sword for defendant

BUSINESS RECORDS 

Admissibility 

Authentication

Child protective cases

 Criminal cases

Electronic records

Establishing foundation for

Firearms licensing records

GPS charts

Jury instruction regarding

Personal knowledge of facts stated in

Police reports admissible as

Weight of evidence

C

CARE AND PROTECTION CASES

See CHILD PROTECTIVE CASES

CERTIFICATES

Attested to by nontestifying experts

Death certificate

From registry of motor vehicles

Of baptism

  • § 803(12). Marriage, Baptismal, and Similar Certificates

Of copy of official/public record

Of drug analysis

Of marriage

Of working firearm

Prima facie evidence

CHAIN OF CUSTODY

CHARACTER EVIDENCE

Admissibility of

  • § 404. Character Evidence; Crimes or Other Acts
  • § 405. Methods of Proving Character
  • § 608. A Witness’s Character for Truthfulness or Untruthfulness
  • § 803(21). Reputation Concerning Character

Essential element

For truthfulness

Generally

Of defendant

Of parent, in child protective cases

  • § 1115(b)(1). Probation Records, Including Criminal Activity Record Information (CARI)

Of victim

  • § 404(a)(2). Exceptions for a Defendant or Victim in a Criminal Case

Of witness

  • § 404(a)(3). Exceptions for a Witness
  • § 607. Who May Impeach a Witness
  • § 608. A Witness’s Character for Truthfulness or Untruthfulness

Other crimes, wrongs, or acts

Profile evidence

Proof of character

  • § 405. Methods of Proving Character

Reputation

  • § 405(a). By Reputation
  • § 412. Sexual Behavior or Sexual Reputation (Rape-Shield Law)

Truthfulness or untruthfulness

CHARACTER TRAIT

Admissibility

Defendant

Essential element

Proof

  • § 405. Methods of Proving Character

Reputation as evidence of

CHILD ABUSE

Department of Children and Families (DCF) reports

Drug and alcohol treatment records

Psychotherapist-patient privilege

Religious privilege

Sexual abuse

  • § 503(d)(7). Child Abuse or Neglect
  • § 803(24). Out-of-Court Statement of Child Describing Sexual Contact in Proceeding to Place Child in Foster Care
  • § 1115(d). Children’s Out-of-Court Statements

Spousal disqualification

Spousal privilege

CHILD PROTECTIVE CASES

Admissibility of evidence

Adoption plans

Adverse inference from party’s failure to appear

  • § 1115(g). Adverse Inference from a Party’s Failure to Appear

Bonding and attachment studies

Children’s out-of-court statements

Judicial findings from prior proceedings

Official/public records and reports

Past parental conduct

Testimony

Written court reports

CIRCUMSTANTIAL EVIDENCE

Of authenticity or identity of item

Of declarant’s guilt

Of declarant’s state of mind

Of identity of person

Of nature of a place or a thing

CIVIL CASES

Claims of privilege

Closing argument

Compromise offers and negotiations

  • § 408. Compromise Offers and Negotiations in Civil Cases

Consciousness of liability

Disclosure of facts/data by expert witness

  • § 705. Disclosure of Facts or Data Underlying Expert Opinion

Expert testimony, basis of

  • § 703. Bases of Opinion Testimony by Experts

Expert witnesses

  • § 701. Opinion Testimony by Lay Witnesses
  • § 702. Testimony by Expert Witnesses
  • § 703. Bases of Opinion Testimony by Experts
  • § 704. Opinion on Ultimate Issue
  • § 705. Disclosure of Facts or Data Underlying Expert Opinion
  • § 706. Court-Appointed Experts

Expressions of sympathy

  • § 409(a) Expressions of Sympathy in Civil Cases

Industry and safety standards

  • § 414 Industry and Safety Standards

Inferences

Judicial admissions

Judicial notice

  • § 201. Judicial Notice of Adjudicative Facts
  • § 202. Judicial Notice of Law

Jury exposure to extraneous material

Motion for mistrial at closing argument

Opening statement

Peremptory challenges of potential jurors

  • § 1116 Peremptory Challenges of Potential Jurors

Presumptions

Prima facie evidence

Privilege against self-incrimination

Scope of cross-examination

Sequestration of witnesses

  • § 615. Sequestration of Witnesses

Spoliation or destruction of evidence

Spousal disqualification

Statements of facts of general interest

Statutory hearsay exceptions

Ultimate issue

  • § 704. Opinion on Ultimate Issue

Unavailability of witness

  • § 804(a). Criteria for Being Unavailable, (3)

Views

CIVIL COMMITMENT HEARINGS FOR ALCOHOL AND SUBSTANCE USE DISORDERS

Admissibility of hearsay

  • § 1118(b). Hearsay in G. L. c. 123, § 35, Proceedings

Expert testimony

  • § 1118(a). Civil Commitment Proceedings Pursuant to G. L. c. 123, § 35, for Individuals with Alcohol and Substance Use Disorders
  • § 1118(b), Note. Hearsay in G. L. c. 123, § 35, Proceedings

Privileges and disqualifications

  • § 1118(b). Hearsay in G. L. c. 123, § 35, Proceedings

Requirements for commitment

  • § 1118(a). Civil Commitment Proceedings Pursuant to G. L. c. 123, § 35, for Individuals with Alcohol and Substance Use Disorders

Respondent’s refusal to testify

  • § 1118(c). Refusal to Testify in G. L. c. 123, § 35, Proceedings 

Rights of respondent

  • § 1118(a). Civil Commitment Proceedings Pursuant to G. L. c. 123, § 35, for Individuals with Alcohol and Substance Use Disorders

Substance use disorder defined

  • § 1118(a), Note. Civil Commitment Proceedings Pursuant to G. L. c. 123, § 35, for Individuals with Alcohol and Substance Use Disorders

CIVIL COMMITMENT HEARINGS FOR MENTAL ILLNESS

Applicability of law of evidence

Appointment of guardian

Expert opinion testimony

Hospital records

Medical bills, records, and reports

Privileges

  • § 1117(e). Psychotherapist-Patient and Social Worker–Client Privileges 

Requirements for commitment

CLOSING ARGUMENT

Arguing consciousness of guilt

Arguing consciousness of liability

Arguing witness should be believed because appeared to testify

Asking jurors for justice for victim

Asking jurors to infer guilt from defendant’s exercise of right

Asking jurors to right corporate wrong

Asking jurors to use common sense, apply common experience

Attacking credibility of witness

Burden of proof

Cautionary instruction to jury

Commenting on child sexual assault victim

Commenting on criminal defendant’s courtroom appearance or conduct

Commenting on criminal defendant’s credibility

Commenting on criminal defendant’s decision not to testify

Commenting on criminal defendant’s exercise of right to remain silence

Commenting on criminal defendant’s lack of remorse

Commenting on criminal defendant’s prearrest silence

Commenting on criminal defendant’s testimony

Commenting on defense counsel

Commenting on tactics and strategy of defense

Commenting witness has no motive to lie

Critical stage of trial

Defending credibility of witness

Demonstrative evidence

Discussing consequences of verdict with jury

Improper argument

Improper vouching

Measures to prevent improper argument

Missing witness, arguments concerning

Misstatements of law

Misstating evidence

Mocking defendant’s defense

Motion for mistrial

Permissible argument

Playing on racial, ethnic, or religious prejudice

Pre–closing argument conference

Reading from or quoting transcript or stipulation

Reference to collateral sources of compensation

Reference to damages

Reference to evidence as uncontradicted or uncontested

Reference to facts not in evidence

Reference to plea agreement

Reference to view

Resort to stereotypes

Responses to improper argument

Retaliatory reply

Shifting burden of proof

Special role of prosecutor

Statements concerning role of jury

Time allowed

Use of chalks

Use of epithets and prejudicial name-calling

Use of evidence for purpose other than for which admitted

Use of props

Use of rhetorical questions

Use of transcripts or recordings of testimony

COLLATERAL ATTACKS

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

COLLATERAL SOURCE RULE

COMMON INTEREST DOCTRINE

COMMUNICATIONS, PRIVILEGED

See PRIVILEGES AND DISQUALIFICATIONS

COMPETENCY OF WITNESS

Court, discretion of

Court personnel

  • § 605. Competency of Judge as Witness

Criminal defendant

Expert

  • § 702. Testimony by Expert Witnesses
  • § 703. Bases of Opinion Testimony by Experts
  • § 704. Opinion on Ultimate Issue
  • § 705. Disclosure of Facts or Data Underlying Expert Opinion

General rule

Judge

  • § 605. Competency of Judge as Witness

Juror

  • § 606. Juror’s Competency as a Witness

Mental capacity

Minor

COMPLETENESS, WRITTEN AND ORAL

  • § 106. Doctrine of Completeness

COMPROMISE

Admissibility

  • § 408 Compromise Offers and Negotiations in Civil Cases

Negotiations

  • § 408. Compromise Offers and Negotiations in Civil Cases
  • § 409(b). Payment of Medical and Similar Expenses

Offers to

  • § 408. Compromise Offers and Negotiations in Civil Cases
  • § 409(b). Payment of Medical and Similar Expenses

COMPUTER AND ELECTRONIC RECORDS

COMPUTER SIMULATIONS

CONDUCT

Habit

  • § 406. Routine Practice of a Business; Habit of an Individual

Of defendant

Of witness

  • § 608. A Witness’s Character for Truthfulness or Untruthfulness

Past behavior

  • § 412. Sexual Behavior or Sexual Reputation (Rape-Shield Law)

Personal knowledge of

  • § 405. Methods of Proving Character

Routine practice as evidence of inadmissible conduct

  • § 406. Routine Practice of a Business; Habit of an Individual

Sexual, prior

  • § 412. Sexual Behavior or Sexual Reputation (Rape-Shield Law)

Specific instances

CONDUCTING THE TRIAL

CONFESSIONS

Admissibility of

Allied mental health or human services professional privilege

  • § 508(d) Mental Health Counselor Exception, (2)

Of joint venturer

Preference for recording certain custodial interrogations

Psychotherapist-patient privilege

Religious privilege

Social worker–client privilege

  • § 507(c). Exceptions, (2)
  • § 1117(e). Psychotherapist-Patient and Social Worker–Client Privileges, (2)(b)

Unrecorded

CONFRONTATION CLAUSE

Address of witness

Admission of party-opponent

Analysis

Applicability of

Availability of declarant

  • § 803, Note. Hearsay Exceptions; Availability of Declarant Immaterial
  • § 804, Note. Hearsay Exceptions; Declarant Unavailable

Certificates

Child witnesses

Dying declarations

Excited utterances of declarant who is not a witness at trial

Expert testimony

Forfeiture of right to confrontation, by wrongdoing 

  • § 804(b)(6), Note. Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability

Massachusetts law versus Federal law

Out-of-court statements

Prior recorded testimony

Privileged communications

Records and reports

Safety concerns of witness

Scope of cross-examination

Sequestration of defendant

  • § 615. Sequestration of Witnesses

Sexual offender registry records

Spousal disqualification

Statements of nontestifying codefendant

State-of-mind evidence

Suppression hearings

Testimonial versus nontestimonial statements

Testimony from witness outside defendant’s presence

Virtual evidentiary hearings

Waiver of right to confrontation

Witness’s feigned memory loss and

Witness’s refusal to answer questions about collateral matters

CONSCIOUSNESS OF GUILT

Arguing during closing argument

Evidence that may be offered to show

Conduct that should not be admitted to show

Facts included in trial testimony but not in pretrial statement

Failure to produce breathalyzer sample after consent

False statements or omissions of defendant

Generally

Jury instruction

Of third-party culprit

Rebuttal evidence

Testimonial nature of evidence

Use of defendant’s prearrest conduct

Use of defendant’s prearrest silence

CONSCIOUSNESS OF INNOCENCE

CONSCIOUSNESS OF LIABILITY

Arguing during closing argument

Evidence that may be offered to show

Generally

Jury instruction

Rebuttal evidence

CONTENTS OF WRITINGS, PROOF

Best evidence rule

  • § 1002. Requirement of Original (Best Evidence Rule)

Copies

Other evidence

  • § 1004. Admissibility of Other Evidence of Content

Summaries

Testimony

  • § 1007. Testimony or Statement of Party to Prove Content

CONVICTION

Admission insufficient in itself to warrant

As evidence of character

Based on immunized testimony

Court record of prior conviction, prima facie effect of

Definition of, for purpose of impeachment

Due process clause

Evidence of

Impeachment of witness by use of

  • § 607. Who May Impeach a Witness
  • § 609. Impeachment by Evidence of Conviction of Crime

Prior convictions of complainant

Prior convictions of defendant

Proof of

Redaction of nature of

Reference to, in closing argument

Restitution after

Role of prosecutor in obtaining

Sufficient evidence for, arguing lack of

Use of in sexually dangerous person proceedings

Wrongful convictions

COPIES, ADMISSIBILITY OF

  • § 803(6)(A), Note. Entry, Writing, or Record Made in Regular Course of Business
  • § 1002. Requirement of Original (Best Evidence Rule)
  • § 1003. Admissibility of Duplicate
  • § 1004. Admissibility of Other Evidence of Content
  • § 1005. Official Records

COURT

Appointment of experts

Calling of witnesses by

Closing arguments

Court-appointed experts

Directing an offer of proof be made

  • § 103(c). Court’s Statement About the Ruling; Directing an Offer of Proof

Discretion

Examining of witness by

Expert testimony, discretion as to

  • § 702. Testimony by Expert Witnesses

Function

  • § 1008. Functions of Judge and Fact Finder

Opening statements

Reopening case, discretion to

Statement about evidence, objection, or ruling

  • § 103(c). Court’s Statement About the Ruling; Directing an Offer of Proof

COURTROOM DEMONSTRATIONS, EXPERIMENTS, AND COMPUTER SIMULATIONS

  • § 1120. Courtroom Demonstrations, Experiments, and Computer Simulations

CREDIBILITY OF WITNESS

Attacking credibility of witness in closing argument

Attorney commenting on, in closing argument

Collateral source payments and

Commenting on defendant’s credibility in closing

Commenting witness has no motive to lie

Complainant/alleged victim

Cross-examination on

Defendant

Defending credibility of witness in closing

Disputes as to

Evidence relevant to

  • § 104(e). Evidence Relevant to Weight and Credibility

Experts

Impeachment of

Improper vouching

Offers to compromise and

  • § 408, Note. Compromise Offers and Negotiations in Civil Cases

On preliminary question of fact

Opinion of other witness

Personal opinion of attorney about

Police officers

Prior inconsistent statements and

Recent contrivance and

Rehabilitation of

Religious beliefs and

  • § 610. Religious Beliefs or Opinions

Trier of fact as judge of

Vicarious admissions and

Victim

  • § 413. First Complaint of Sexual Assault 

Witness cooperation agreements and

  • § 1104. Witness Cooperation Agreements

CRIMES

Conviction of

  • § 404(b). Crimes, Wrongs, or Other Acts
  • § 609. Impeachment by Evidence of Conviction of Crime

Crime-fraud exception

Evidence of other

  • § 404(b). Crimes, Wrongs, or Other Acts
  • § 609. Impeachment by Evidence of Conviction of Crime

Evidence third-party committed

  • § 1105 Third-Party Culprit Evidence

Remoteness in time of evidence from date of

Restitution for

Violation of G. L. c. 209A order punishable as

  • § 1106, Note Abuse Prevention and Harassment Prevention Proceeding

CRIMINAL CASES

Access to third-party records

  • Article V, Intro. (g). Production of Presumptively Privileged Records from Nonparties Prior to Trial in Criminal Cases
  • § 1108. Access to Third-Party Records Prior to Trial in Criminal Cases (Lampron-Dwyer Protocol)

Admissibility of records

Admission of party-opponent

Certificates

Character evidence of accused

  • § 404(a)(2). Exceptions for a Defendant or Victim in a Criminal Case, (A)

Closing arguments (see CLOSING ARGUMENT)

Confrontation clause (see CONFRONTATION CLAUSE)

Consciousness of guilt (see CONSCIOUSNESS OF GUILT)

Consciousness of innocence

Disclosure of facts, data by expert witness

  • § 705. Disclosure of Facts or Data Underlying Expert Opinion

Excited utterance, confrontation of

Exclusion of witnesses

  • § 615. Sequestration of Witnesses

Expert testimony, basis of

  • § 703. Bases of Opinion Testimony by Experts

Expert witnesses

  • § 702. Testimony by Expert Witnesses

Identity of informer

Identity of protected witness

Inadequate police investigation

  • § 1107. Inadequate Police Investigation Evidence

Inferences

Judicial notice of facts

Judicial notice of law

Missing witness

Motion for mistrial at closing argument

Opening statements (see OPENING STATEMENT)

Out-of-court statements

Preliminary facts

Presumptions

Prima facie evidence

Privileges (see PRIVILEGES AND DISQUALIFICATIONS)

Rebuttal evidence

Reopening

Restitution

Right to confront and cross-examine witnesses

Right to trial by jury

Scope of cross-examination

Sexual assault cases (see SEXUAL ASSAULT)

Spoliation or destruction of evidence

Statements against interest

State-of-mind evidence

Stipulations

Substantial risk of a miscarriage of justice

  • § 103(e). Substantial Risk of a Miscarriage of Justice 

Suppressed statement used to impeach

Suppressed statement used to refresh witness’s memory

Third-party culprit

Third-party records

  • § 1108. Access to Third-Party Records Prior to Trial in Criminal Cases (Lampron-Dwyer Protocol)

Ultimate issue opinion

  • § 704. Opinion on Ultimate Issue

Unavailable witness

Views

Work-product doctrine

CRIMINAL RESPONSIBILITY

See LACK OF CRIMINAL RESPONSIBILITY

CROSS-EXAMINATION

Abuse prevention and harassment prevention proceedings

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Bias

By court

Care and protection and termination of parental rights cases

Character witness

Civil commitment hearings for individuals with alcohol and substance use disorders

  • § 1118(a). Civil Commitment Proceedings Pursuant to G. L. c. 123, § 35, Individuals with Alcohol and Substance Use Disorders

Complainant in sexual assault case

  • § 413(a), Note. Admissibility of First Complaint
  • § 413(b), Note. Admissibility of Additional Reports of a Sexual Assault Under an Alternative Evidentiary Basis

Confrontation clause (see CONFRONTATION CLAUSE)

Conviction of crime

  • § 609. Impeachment by Evidence of Conviction of Crime

Defendant

Defendant’s character witness

Defendant’s right to in criminal cases

Exclusion of evidence

Expert witness

Eyewitness

Fairness to Commonwealth

For impeachment purposes

Judicial discretion to limit

Leading questions

Limitation on, of experts

Limits on length of

Meaningful opportunity for

Mode and order of examining witnesses

  • § 611. Mode and Order of Examining Witnesses and Presenting Evidence

Prior statements

  • § 613. Prior Statements of Witnesses, Limited Admissibility
  • § 801(d)(1). A Declarant-Witness’s Prior Statement, (A)

Rape-shield statute

Reasonable and good faith basis for

Recross-examination

Regarding facts or data underlying expert opinion

Regarding object or writing used to refresh memory

Restitution hearing

Scope of

Sexual assault counselor

Sexual behavior or sexual reputation

Sexually dangerous person proceedings

Unavailable declarant

CUMULATIVE EVIDENCE

  • § 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

CURATIVE ADMISSIBILITY

CURATIVE INSTRUCTIONS

Defense inability to present evidence promised in opening statement

Improper statement made in opening or closing

Jury exposed to inadmissible evidence

D

DAMAGES

Admissibility of collateral source payments in determining

Admissibility of evidence of damages sought

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Admissibility of medical report of deceased physician in determining

Admissibility of settlement with another defendant in determining

For breach of doctor-patient confidentiality

Mitigation of

  • § 408, Note. Compromise Offers and Negotiations in Civil Cases

Reference to during closing argument

DECLARANT

Availability

Care and protection case reports

Credibility, attacking or supporting

  • § 806. Attacking and Supporting Credibility of Hearsay Declarant

Defined

Motive of

Multiple out-of-court declarants, statements of in single report or writing

Need for personal knowledge

Statements to law enforcement agent

State of mind of

DEFENDANT

Admissibility of postarrest, post-Miranda silence

Admission/adoption by silence

Admission by conduct

Admission to sufficient facts

Blood alcohol tests and refusal of

Blood sample--DNA match

Bowden defense

Burden of proof and

Challenging evidence of defendant’s cooperation

Challenging sufficiency of an affidavit

Character of

Closing argument

Claim of privilege

Closing argument, commenting on during (see CLOSING ARGUMENT)

Competency of

Consciousness of guilt (see CONSCIOUSNESS OF GUILT)

Consciousness of innocence

Criminal responsibility examination

Cross-examination of

  • § 104(d). Cross-Examining a Defendant in a Criminal Case

Custodial interrogation, preference for recording 

Denial of

Denigration of constitutional rights

Entrapment defense

Ethnic or racial bias of juror against

Eyewitness identification of

Failure to call witness

Impeachment of

Inadequate police investigation evidence

Intent of

  • § 503(d)(3), Note. Patient Raises the Issue of Own Mental or Emotional Condition as an Element of Claim or Defense

Juror bias against

Lack of criminal responsibility

Lost or destroyed evidence and

Martin hearing, presence at

Mental or emotional condition of

  • § 503(d)(3), Note. Patient Raises the Issue of Own Mental or Emotional Condition as an Element of Claim or Defense
  • § 511(a)(3), Note. Compelled Examination

Motive

Opening statement of

Ordered production of information

Photograph of defendant/suspect

Pleas

  • § 410. Pleas, Offers of Pleas, and Related Statements

Prearrest silence

Presumption of sanity

Presumptions, generally

Prior conviction of

Prior crime, wrong, or act, permitted use of

Privilege against self-incrimination

  • § 511. Privilege Against Self-Incrimination

Psychotherapist-patient privilege

  • § 503(d)(3), Note. Patient Raises the Issue of Own Mental or Emotional Condition as an Element of Claim or Defense

Refusal to take test or supply police with real or physical evidence

Religious beliefs or opinions

Restitution by

Right not to testify

Right to confront witnesses (see CONFRONTATION CLAUSE )

Right to fair trial

Right to offer evidence

  • § 404(a)(2). Exceptions for a Defendant or Victim in a Criminal Case

Right to present complete, full defense

Right to present evidence that another may have committed crime

Right to trial by jury

Seeking exculpatory information about Federal informant

Sequestration of

  • § 615. Sequestration of Witnesses

Statements made during competency examination

Statements made during suppression hearings

Statements made to witness

State of mind of

Substantial risk of a miscarriage of justice and

Suppressed statements, use of

Testimony of

Third-party culprit evidence

Unfair prejudice and

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

View, presence at

Voluntariness of statement

Waiver of right to confrontation

Witness cooperation agreements

  • § 1104. Witness Cooperation Agreements

DEFINITIONS

Relating to allied mental health or human services professional privilege

Relating to attorney-client privilege

Relating to contents of writings and records

  • § 1001. Definitions That Apply to This Article

Relating to digital evidence

Relating to domestic violence victims’ counselor privilege

Relating to hearsay

Relating to interpreter-client privilege

Relating to mediation privilege

Relating to medical and hospital services, for hearsay purposes

Relating to medical peer review privilege

Relating to parent-child disqualification

Relating to psychotherapist-patient privilege

Relating to religious privilege

Relating to sexual assault counselor–victim privilege

Relating to sign language interpreter–client privilege

Relating to social worker–client privilege

DELIBERATIONS

Of judge

  • § 527. Judicial Deliberation Privilege

Of jury

Of legislator

Of medical peer review committee

  • § 513(b)(1). Proceedings, Reports, and Records of Medical Peer Review Committee
  • § 513(d). Testimony Before Medical Peer Review Committee

DEPOSITIONS, USE OF AT TRIAL

DESTRUCTION OF EVIDENCE

As evidence of consciousness of guilt

As evidence of consciousness of liability

Burden of proof

Exclusion of other evidence as sanction

Judge’s discretion to impose sanctions

  • § 1102. Spoliation or Destruction of Evidence

Missing evidence in possession of another party

No tort cause of action for

Remedial action in criminal cases

DETERMINATIONS

Admissibility

  • § 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes
  • § 402. General Admissibility of Relevant Evidence

Preliminary

DIGITAL COMMUNICATION

DIGITAL EVIDENCE

Admissibility

Application of law

Audio and video evidence

Authentication

Definitions

Discovery

Electronic filing

E-mailed evidence (see E-MAIL)

Evidence on personal electronic device

Evidence on storage media

Evidence printed on paper

Excluded evidence

Hearsay

Inspection of, on personal electronic device

Presentation

Preservation

Printing of evidence

Self-represented litigants

Stipulations

Text messages (see TEXT MESSAGES)

Use of courtroom recording system

Virtual proceedings

DIRECT EXAMINATION

Admitting prior consistent statement on

Cross-examination not limited to scope of

Denial of

Leading questions

Limiting instructions

  • § 105, Note. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes

Limits on length of

Manner and order of

  • § 611. Mode and Order of Examining Witnesses and Presenting Evidence

Of expert witnesses

On plea agreement

  • § 1104. Witness Cooperation Agreements

Prior consistent statements during

Redirect examination (see REDIRECT EXAMINATION )

Testimony about fear of testifying during

Testimony about prior criminal conviction during

Using treatise to bolster

DISCLOSURE OF FACTS, EXPERT WITNESS

  • § 705. Disclosure of Facts or Data Underlying Expert Opinion

DISCOVERY

Admissibility of depositions and other discovery material at trial

Electronic

Inadvertent disclosure during

Of communications between allied mental health professional and client

Of communications between domestic violence counselor and victim

Of communications between psychotherapist and patient

Of communications between sexual assault counselor and victim

Of communications between social worker and client

Of documentation of basis of expert’s firearm identification opinion

Of identity and location of protected witness

Of investigatory information of law enforcement

Of medical peer review committee proceedings, reports, and records

Of sealed criminal record

Of tax returns

  • § 519. State and Federal Tax Returns

Of third-party records

  • § 1108, Note. Access to Third-Party Records Prior to Trial in Criminal Cases (Lampron-Dwyer Protocol)

Of trade secrets

Postconviction discovery

Pretrial discovery

  • § 1108, Note. Access to Third-Party Records Prior to Trial in Criminal Cases (Lampron-Dwyer Protocol)

Reciprocal discovery process for criminal responsibility examinations

Rising cost of

Using cross-examination for

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Violation of a discovery rule

Work-product doctrine

DIVERSION PROGRAMS, PROTECTIONS REGARDING

Drug treatment programs

  • § 529(c). Statutory Bars on Use of Evidence Related to Examinations to Determine Eligibility for Treatment as a Drug Dependent Person

Pretrial diversion programs

  • § 529(a). Statutory Bars on Use of Evidence Related to Pretrial Diversion Programs

Restorative justice programs

  • § 529(b). Statutory Bars on Use of Evidence from Community-Based Restorative Justice Programs

DNA

Analyses, hearsay statements contained in

Analysts

Blood sample--DNA match

Collection of samples

Distinction between nonexclusion and inconclusive

Expert testimony regarding

Inconclusive results

“Likelihood ratios”

Match

Profiles

Substitute analyst

Testing process

DOCTRINE OF COMPLETENESS

  • § 106. Doctrine of Completeness

DOCUMENTS

Affecting interest in property, records of

  • § 803(14). Records or Documents Affecting an Interest in Property

Affecting interest in property, statements in

  • § 803(15). Statements in Documents Affecting an Interest in Property

Ancient

Attorney-client privilege

Civil commitment proceedings for alcohol and substance use

  • § 1118(a). Civil Commitment Proceedings Pursuant to G. L. c. 123, § 35, for Individuals with Alcohol and Substance Use Disorders

Confidentiality statutes regarding

Department of Children and Families documents

  • § 1115(b)(2)(B). DCF Action Plans, Affidavits, Foster Care Review Reports, Case Review Reports, Family Assessments, Dictation Notes, and G. L. c. 119, § 51B, Investigation Reports

Discovery 

Duplicates

  • § 1003. Admissibility of Duplicates 

Failure to produce

  • § 1004(c), Note. Admissibility of Other Evidence of Content

Foreign public

Held by State agency

Impounding versus sealing

Jury consideration of documents not in evidence

Medical peer review committee documents 

  • § 513. Medical Peer Review Privilege

Public records

Requirement of original (best evidence rule)

  • § 1002 Requirement of Original (Best Evidence Rule)

Settlement documents

  • § 408, Note. Compromise Offers and Negotiations in Civil Cases

Sexually dangerous person proceedings

Summaries of

Tax returns

  • § 519 State and Federal Tax Returns

Third party documents and records

  • § 1108. Access to Third-Party Records Prior to Trial in Criminal Cases (Lampron-Dwyer Protocol)

Used to refresh witness’s memory

Work-product doctrine

Writings and records

DRUG TREATMENT PROGRAMS

  • § 529(c). Statutory Bars on Use of Evidence Related to Examinations to Determine Eligibility for Treatment as a Drug Dependent Person

E

ELECTRONIC AND COMPUTER RECORDS

ELECTRONIC COMMUNICATION

ELECTRONIC DISCOVERY

ELECTRONIC EAVESDROPPING

E-MAIL

Authentication

Copies

Digital Evidence

E-mailed evidence

Hearsay contained in

Lay witness opinion on accounts

ENTRAPMENT DEFENSE

EVIDENCE

Abuse

  • § 413. First Complaint of Sexual Assault

Admissibility (see ADMISSIBILITY )

Ballistics identification

Battered woman syndrome

Best evidence rule (see BEST EVIDENCE RULE )

Blood alcohol tests and refusal of (see BLOOD ALCOHOL/BREATHALYZER TESTS)

Bowden evidence

Character

  • § 404. Character Evidence; Crimes or Other Acts
  • § 405. Methods of Proving Character

Character trait

  • § 404. Character Evidence; Crimes or Other Acts
  • § 405. Methods of Proving Character

Circumstantial (see CIRCUMSTANTIAL EVIDENCE )

Competent

  • § 402. General Admissibility of Relevant Evidence

Computer simulations

Concealment of evidence

Consciousness of guilt

Consciousness of innocence

Consciousness of liability

Courtroom demonstrations and demonstrative exhibits

  • § 1120(a). Courtroom Demonstrations and Demonstrative Exhibits

Credibility of

Cumulative

  • § 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Destruction of (see DESTRUCTION OF EVIDENCE)

Digital (see DIGITAL EVIDENCE)

Discovery (see DISCOVERY )

DNA (see DNA )

Exclusion of (see EXCLUSION OF EVIDENCE)

Experiments

Expert (see EXPERT TESTIMONY; EXPERT WITNESSES; OPINIONS, EXPERT WITNESSES)

Expressions of sympathy as

  • § 409. Expressions of Sympathy in Civil Cases; Offers to Pay Medical and Similar Expenses

Extrapolation

Extrinsic

  • § 608. A Witness’s Character for Truthfulness or Untruthfulness
  • § 610. Religious Beliefs or Opinions
  • § 613. Prior Statements of Witnesses, Limited Admissibility

Fingerprints

Firearm/ballistics identification

First complaint

  • § 413. First Complaint of Sexual Assault

Forced production of real or physical evidence

Forensics (see FORENSIC EVIDENCE)

Guidelines, scope of

  • § 102. Purpose and Construction

Inadequate police investigation

  • § 1107. Inadequate Police Investigation Evidence

Industry and safety standards

  • § 414. Industry and Safety Standards

Material

Medical malpractice actions

“Missing”

Nonverbal conduct

Offered for nonhearsay purpose

Other crimes, wrongs, or acts

Physical evidence, forced production of

Prejudicial

  • § 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Presentation of

  • § 611. Mode and Order of Examining Witnesses and Presenting Evidence

Prior bad act evidence (see PRIOR BAD ACT EVIDENCE)

Probative value (see PROBATIVE VALUE OF EVIDENCE)

Profile evidence

Rebuttal (see REBUTTAL )

Relevant

  • § 103. Rulings on Evidence, Objections, and Offers of Proof§ 104(b). Relevance That Depends on a Fact
  • § 104(e). Evidence Relevant to Weight and Credibility
  • § 401. Test for Relevant Evidence
  • § 402. General Admissibility of Relevant Evidence
  • § 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Retrograde extrapolation to estimate blood alcohol content

Routine practice

  • § 406. Routine Practice of a Business; Habit of an Individual

SAIN evidence/Sexual Assault Evidence Collection Kit

Scope of

Sexual behavior or reputation

  • § 412. Sexual Behavior or Sexual Reputation (Rape-Shield Law)

Similar occurrences

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Spoliation of

  • § 1102. Spoliation or Destruction of Evidence

Suppression of (see SUPPRESSION )

Third-party culprit

Unnecessarily time consuming

  • § 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Weapons evidence (see WEAPONS EVIDENCE)

Weight of (see WEIGHT OF EVIDENCE )

EXAMINATION OF WITNESSES

See CROSS-EXAMINATION ; DIRECT EXAMINATION

EXCEPTIONS, HEARSAY RULE

See HEARSAY EXCEPTIONS

EXCITED UTTERANCE

  • § 803(2). Excited Utterance (Spontaneous Utterance)

EXCLUSION OF EVIDENCE

As sanction

Breach of doctor-patient confidentiality

Collateral attacks

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Confusing and misleading evidence

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Constitutional considerations

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Cumulative evidence

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Digital evidence

Discretion of trial judge

Evidence of insurance

Evidence of lawful conduct

Expert testimony

Exploitation of by counsel

Expressions of opinion, evaluation, or judgment from official records

  • § 1115(b)(2)(B), Note. DCF Action Plans, Affidavits, Foster Care Review Reports, Case Review Reports, Family Assessments, Dictation Notes, and G.L. c. 119, § 51B, Investigation Reports

General rule

  • § 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Medical records

Misleading evidence

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Nonverbal conduct

Offered for impeachment

Opinion on ultimate issue

Personal information of witness

Prior bad acts/convictions

Private conversations with spouse

Reasons for

  • § 402, Note. General Admissibility of Relevant Evidence
  • § 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Remoteness as ground for

Rulings on

  • § 103. Rulings on Evidence, Objections, and Offers of Proof

Sexually dangerous person proceedings

Specific instances of complainant’s sexual conduct

Statements against interest

Statements made during plea negotiations

  • § 410, Note. Pleas, Offers of Pleas, and Related Statements

Subsequent remedial measures

Third-party culprit evidence

Under first complaint doctrine

Unfair prejudice

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Unnecessarily suggestive identifications

Unnecessarily time-consuming evidence

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Voice identification

EXCLUSION OF WITNESSES

  • § 615. Sequestration of Witnesses

EXPERIMENTS

EXPERT TESTIMONY

Admissibility

Automobile damage

Ballistics identification

Based on evidence in record

Based on independently admissible evidence

Based on personal knowledge

Basis of, generally

  • § 703. Bases of Opinion Testimony by Experts

Battered woman syndrome

Behavioral characteristics of sexual abuse victims

Blood alcohol tests

Blood sample--DNA match

Care and protection and termination of parental rights cases

Certitude of

Civil commitment hearings for alcohol and substance use disorders

  • § 1118(a). Civil Commitment Proceedings Pursuant to G. L. c. 123, § 35, for Individuals with Alcohol and Substance Use Disorders
  • § 1118(b), Note. Hearsay in G. L. c. 123, § 35, Proceedings

Civil commitment hearings for mental illness

Computer simulations

Confrontation of

Contradicting determination made by Legislature

Daubert-Lanigan analysis

Development of adolescent brain

Disclosure of facts, data

Discretion of court

  • § 702. Testimony by Expert Witnesses

Effect of intoxicants

Exclusion of, as sanction

Experiments

Expert opinion and lay opinion, same witness

Expert opinion versus lay opinion, admissibility of

Extrapolation to determine weight of drugs

Eyewitness identification

False confessions

Fingerprint identification

Firearm/ballistics identification

Forensics

Foundational requirements for admissibility

Gang affiliation

Gatekeeping role of judge

General acceptance

Hair comparison analysis

Handwriting

Hearing

Hearsay and

Illustrations

Lack of criminal responsibility/competency

On machinery/technology

On memory

On possibility

Profile evidence

Reliability of

Retrograde extrapolation to estimate blood alcohol content

Sex Offender Registry Board classification hearings

Sex offender’s failure to register, mental state

Sexually dangerous person proceedings

Substituted experts

Termination of parental rights and care and protection cases

Tests performed and data collected by others

Ultimate issue

  • § 704. Opinion on Ultimate Issue

EXPERT WITNESSES

Certitude of opinion

Competency

  • § 702. Testimony by Expert Witnesses

Court-appointed

Cross-examination of

Duty to consult

Exclusion of

  • § 615. Sequestration of Witnesses

Failure to consult or present

Failure to seek funds for

Knowledge of sufficient facts or data

Medical malpractice actions

Method used by

Opinions (see OPINIONS, EXPERT WITNESSES )

Opportunity to cross-examine

Personal knowledge of

Qualifications

Reliability of application of principle or method

Reliability of principle or method used

Role of

Substituted experts

Testimony of (see EXPERT TESTIMONY)

EXPRESSIONS OF SYMPATHY

  • § 409. Expressions of Sympathy in Civil Cases; Offers to Pay Medical and Similar Expenses

EXTRANEOUS MATTER

Doctrine of

Juror discharge due to, during empanelment

Juror discharge due to, during trial

  • § 606, Note. Juror’s Competency as a Witness 

Juror exposure to

Lawyer’s contact with juror regarding

Procedure for determining whether jury influenced by

EYEWITNESS IDENTIFICATION

Admissibility of

Common-law principles of fairness

Composite drawings and sketches

Expert testimony concerning

Identification not resulting from police procedures

Inanimate objects

In-court identification

Jury instruction

Lineups

Out-of-court identification

  • § 1112(b). Out-of-Court Identification, Including Showups and Photographic Arrays

Photographic array (see PHOTOGRAPHIC ARRAYS)

Showup (see SHOWUPS)

Single photograph identification

Sources of law regarding

Suppression of

Testimony of third-party observer

Unequivocal positive identification

F

FACTS

Adjudicative

  • § 201. Judicial Notice of Adjudicative Facts

Judicial notice of

  • § 201. Judicial Notice of Adjudicative Facts

Preliminary finding of

Underlying expert opinion

  • § 705. Disclosure of Facts or Data Underlying Expert Opinion 

FAMILY RECORDS

FEDERAL RULES

FINGERPRINT EVIDENCE

Fingerprint identification

Forced production of 

FIREARM, DEFENSE OF LICENSE

FIREARM/BALLISTICS IDENTIFICATION

FIRST AGGRESSOR (SELF-DEFENSE)

  • § 404(a)(2). Exceptions for a Defendant or Victim in a Criminal Case, (B)

FIRST COMPLAINT OF SEXUAL ASSAULT

Admissibility of

Admissibility of additional reports

  • § 413(b). Admissibility of Additional Reports of a Sexual Assault Under an Alternative Evidentiary Basis

Applicability of doctrine

Determining first complaint witness

Identifying

Impeachment of first complaint witness

Limiting jury instruction regarding

Live witness not required

Role of trial judge

SAIN evidence/Sexual Assault Evidence Collection Kit

  • § 413(b), Note. Admissibility of Additional Reports of a Sexual Assault Under an Alternative Evidentiary Basis

Scope of doctrine

Substitution of first complaint witness

FOREIGN OFFICIAL RECORDS, AUTHENTICATION

FORENSIC EVIDENCE

Certitude of expert opinion regarding

Expert testimony

Methods for testing

Reliability of principle or method

FORMER TESTIMONY, HEARSAY EXCEPTION

FOUNDATION, INTRODUCTION OF EVIDENCE

Authenticating or identifying evidence

  • § 901. Authenticating or Identifying Evidence

Breathalyzer test

Business record

Declarations of decedent

Evidence conditionally admitted

Expert opinion testimony in mental health hearings

Prearrest silence

Prior bad act evidence

Prior inconsistent statements

Sexual abuse evidence

  • § 413(b), Note. Admissibility of Additional Reports of a Sexual Assault Under an Alternative Evidentiary Basis

Testimony by expert witnesses

G

GUILTY PLEAS

Of accomplice/joint venturer

Withdrawn

  • § 410. Pleas, Offers of Pleas, and Related Statements

H

HABIT, INADMISSIBLE AS EVIDENCE OF CONDUCT

  • § 406. Routine Practice of a Business; Habit of an Individual

HARASSMENT OF WITNESS

HARASSMENT PREVENTION PROCEEDINGS

Adverse inference from invocation of privilege against self-incrimination

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Application and ex parte hearing

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Applying rules of evidence

  • § 1106. Abuse Prevention and Harassment Prevention Proceedings

Criminal harassment

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Digital evidence

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Evaluating totality of circumstances

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Evidentiary principles applicable

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Hearsay, authentication, and best evidence

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

In-court identification

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Jurisdiction

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Meaningful opportunity to challenge

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

No right to counsel

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Notice hearing

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Procedure

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Renewal hearing

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Standard for harassment prevention order

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Termination and expiration of orders

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Voluminous communications

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

HEARINGS

Abuse prevention proceedings

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Amral hearings

Applicability of evidentiary sections at

  • § 1101. Applicability of Evidentiary Sections

Availability of declarant for

  • § 804. Hearsay Exceptions; Declarant Unavailable

Civil commitment hearings

  • § 1117. Civil Commitment Hearings for Mental Illness 
  • § 1118. Civil Commitment Hearings for Alcohol and Substance Use Disorders

Civil motor vehicle infraction hearings

Daubert-Lanigan hearings

Defendant’s right not to testify at

Harassment prevention hearings

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Juvenile first misdemeanor offense dismissal hearings

Lampron hearings

Martin hearings

On admissibility of evidence of sexual behavior or reputation

On authorization for administration of antipsychotic medication

On Bowden evidence

On closing courtroom to public

On expert testimony

On reliability of out-of-court statements

Precomplaint hearings

Preliminary

Pretrial dangerousness hearing

Probable cause hearings

Probation/revocation hearings

Probation violation hearings (see PROBATION VIOLATION HEARINGS)

Restitution hearings

Sex Offender Registry Board classification hearings

Suppression hearings

Unemployment hearings

  • § 526 Unemployment Hearing Privilege

Virtual evidentiary hearings

Wallace W. hearings

HEARSAY

Admissibility

  • § 802. The Rule Against Hearsay

Availability of declarant (see HEARSAY EXCEPTIONS, AVAILABILITY OF DECLARANT IMMATERIAL; HEARSAY EXCEPTIONS, DECLARANT UNAVAILABLE)

Confrontation clause

Credibility of declarant, attacking or supporting

  • § 806. Attacking and Supporting Credibility of Hearsay Declarant

Defined

Exceptions

  • § 803. Hearsay Exceptions; Availability of Declarant Immaterial
  • § 804. Hearsay Exceptions; Declarant Unavailable

Hearsay within hearsay

Rule

  • § 802. The Rule Against Hearsay

Unavailability of declarant

HEARSAY EXCEPTIONS

Absence of public record

Ancient documents

Availability of declarant (see HEARSAY EXCEPTIONS, AVAILABILITY OF DECLARANT IMMATERIAL; HEARSAY EXCEPTIONS, DECLARANT UNAVAILABLE)

Business records

  • § 803(6)(A). Entry, Writing, or Record Made in Regular Course of Business

Child statement out of court, civil proceeding

  • § 803(24). Out-of-Court Statement of Child Describing Sexual Contact in Proceeding to Place Child in Foster Care
  • § 804(b)(9). Out-of-Court Statement of Child Describing Sexual Contact in Civil Proceeding, Including Termination of Parental Rights
  • § 1115(d). Children’s Out-of-Court Statements

Child statement out of court, criminal proceeding

  • § 804(b)(8). Admissibility in Criminal Proceedings of a Child’s Out-of-Court Statement Describing Sexual Contact

Declarant unavailable (see HEARSAY EXCEPTIONS, DECLARANT UNAVAILABLE)

Digital evidence

Dying declaration

  • § 804(b)(2). Statement Made Under the Belief of Imminent Death

Excited utterance

  • § 803(2). Excited Utterance (Spontaneous Utterance)

Existing mental, emotional or physical condition

  • § 803(3). Then-Existing Mental, Emotional, or Physical Condition

Family records

Forfeiture by wrongdoing

  • § 804(b)(6). Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability

Former testimony

Hospital records

Identification

Judgment of prior conviction

Learned treatises

Marriage and baptism records

  • § 803(12). Marriage, Baptismal, and Similar Certificates

Medical/hospital services

Official/public records

Other judgments

  • § 803(23). Judgment as to Personal, Family, or General History, or Boundaries

Past recollection recorded

Present sense impression

Prior recorded testimony

Records affecting interest in property

  • § 803(14). Records or Documents Affecting an Interest in Property

Records of religious organization

Reputation as to character

Reputation concerning boundaries

  • § 803(20). Reputation Concerning Boundaries or General History

Reputation concerning family history

  • § 803(19). Reputation Concerning Personal or Family History

Spontaneous utterance

  • § 803(2). Excited Utterance (Spontaneous Utterance)

Statements against interest

Statements for medical diagnosis or treatment

  • § 803(4). Statements for Purposes of Medical Diagnosis or Treatment

Statements of facts of general interest

Statements of personal history

Statutory exceptions for deceased persons

Vital statistics

HEARSAY EXCEPTIONS, AVAILABILITY OF DECLARANT IMMATERIAL

Ancient documents, statements in

Baptismal, marriage, and other certificates

  • § 803(12). Marriage, Baptismal, and Similar Certificates

Boundaries, reputation concerning

  • § 803(20). Reputation Concerning Boundaries or General History

Business records

Character, reputation concerning

Documents or records affecting interest in property

  • § 803(14). Records or Documents Affecting an Interest in Property
  • § 803(15). Statements in Documents Affecting an Interest in Property

Excited utterance

  • § 803(2). Excited Utterance (Spontaneous Utterance)

Family records

Medical treatment, statement for purposes of

  • § 803(4). Statements for Purposes of Medical Diagnosis or Treatment

Mental, emotional, or physical condition

  • § 803(3). Then-Existing Mental, Emotional, or Physical Condition

Personal, family, or general history, judgments as to

  • § 803(23). Judgment as to Personal, Family, or General History, or Boundaries

Present sense impression

Public records and reports

Recorded recollection

Religious organization records

Residual exception

Vital statistics records

HEARSAY EXCEPTIONS, DECLARANT UNAVAILABLE

Applicability

Prior recorded testimony

Statement against interest

Statement of party incapable of testifying

  • § 804(b)(6). Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability

Statement of personal history

Statement under belief of impending death

  • § 804(b)(2). Statement Made Under the Belief of Imminent Death

Statutory exceptions in civil cases

HEARSAY RULE

Applicability to child protective cases

  • § 1115(b)(2)(B), Note. DCF Action Plans, Affidavits, Foster Care Review Reports, Case Review Reports, Family Assessments, Dictation Notes, and G.L. c. 119, § 51B, Investigation Reports
  • § 1115(c)(4), Note. Court-Ordered Psychiatric, Psychological, and Court Clinic Evaluation Reports
  • § 1115(d)(1). Statements Not Related to Sexual Abuse

Applicability to sexually dangerous person proceedings

Computer-stored records

Confrontation clause and

Digital evidence

Exceptions to (see HEARSAY EXCEPTIONS; HEARSAY EXCEPTIONS, AVAILABILITY OF DECLARANT IMMATERIAL; HEARSAY EXCEPTIONS, DECLARANT UNAVAILABLE)

Expert testimony

Explained

First complaint doctrine

  • § 413(b), Note. Admissibility of Additional Reports of a Sexual Assault Under an Alternative Evidentiary Basis

Hearsay within hearsay

Hospital records exception

  • § 413(b), Note. Admissibility of Additional Reports of a Sexual Assault Under an Alternative Evidentiary Basis

Residual exception

Statutes and rules providing exceptions to

HEARSAY WITHIN HEARSAY

HOSTILE WITNESS

I

IDENTIFICATION

Admissibility of

Composite drawings and sketches

Double-blind procedure

Expert testimony regarding

Eyewitness

Facts accompanying

Identification not resulting from police procedures

Inanimate objects

In-court identification

Jury instructions

Lineups

Of evidence (see AUTHENTICATION AND IDENTIFICATION )

Out-of-court identification

  • § 1112(b). Out-of-Court Identifications, Including Showups and Photographic Arrays

Photographic array (see PHOTOGRAPHIC ARRAYS)

Showup (see SHOWUPS)

Single photograph identification

Sources of law regarding

Suppression of

Testimony of third-party observer

Unnecessarily suggestive

Voice identification

IMPEACHMENT

Adverse witness

  • § 607. Who May Impeach a Witness

Bias

Character for truthfulness

  • § 608. A Witness’s Character for Truthfulness or Untruthfulness

Character witnesses

Conviction of crime

  • § 609. Impeachment by Evidence of Conviction of Crime

Credibility of plaintiff, using collateral source payments

Credibility of witness, using offer to compromise

  • § 408, Note. Compromise Offers and Negotiations in Civil Cases

Credibility of witness, using witness cooperation agreement

  • § 1104 Witness Cooperation Agreements

Declarant

  • § 806. Attacking and Supporting Credibility of Hearsay Declarant

Defendant, with prearrest/pretrial silence

Defendant, with prior conviction

Defendant, with statement suppressed because of Miranda violation

Defendant, with testimony at suppression hearing

Evidence of character

Evidence of conduct

First complaint witness

Generally

  • § 607. Who May Impeach a Witness

Hearsay declarant

  • § 806. Attacking and Supporting Credibility of Hearsay Declarant

Inconsistent statements

Juvenile adjudications

  • § 609(a)(5). Juvenile Adjudications of Delinquency or Youthful Offender

Omission in statement

Other witness

  • § 607. Who May Impeach a Witness

Party witness

  • § 607. Who May Impeach a Witness

Police officer

Prearrest silence

Prior conviction

  • § 609. Impeachment by Evidence of Conviction of Crime

Prior silence or inaction

Prior statements

Prior writings

  • § 613. Prior Statements of Witnesses, Limited Admissibility

Religious beliefs

  • § 610. Religious Beliefs or Opinions

Specific instances of misconduct

Suppressed statements, use of

Who may impeach witness

  • § 607. Who May Impeach a Witness

Witness cooperation agreements

  • § 1104. Witness Cooperation Agreements

IMPROPER VOUCHING

By attorney, during closing argument

By expert, on credibility of a witness

By prosecutor, of witness testifying under plea agreement

INADEQUATE POLICE INVESTIGATION

Admissibility of evidence

Arguing in closing argument

Comparison between Bowden and third-party culprit evidence

Jury instruction

INCONSISTENT STATEMENTS

Admissibility

As evidence of consciousness of liability

Evidentiary admissions

Impeachment by/credibility of witness

Medical malpractice actions

Prior statements that qualify as inconsistent

Statements of criminal defendant

Statements of hearsay declarant

  • § 806. Attacking and Supporting Credibility of Hearsay Declarant

Statements of prosecutor

INDUSTRY AND SAFETY STANDARDS

  • § 414. Industry and Safety Standards

INFERENCES

Adverse inference (see ADVERSE INFERENCE )

Arguing relevant inferences from evidence in closing argument

Based on another inference

Civil cases, generally

Commonwealth's burden and

Criminal cases, generally

Defined

From claim of privilege

From evidence of consciousness of guilt or liability

  • § 1110. Consciousness of Guilt or Liability

From inadequate police investigation evidence

From party not calling witness

From spoliation

Judge’s instructions to jury regarding

Of expert witness

  • § 703. Bases of Opinion Testimony by Experts

Of juror’s racial or ethnic bias

INFORMANTS, DISCLOSURE OF IDENTITY AND LOCATION OF

  • § 509. Identity of Informer, Surveillance Location, and Protected Witness Privileges

INSTRUCTIONS, JURY

Business records

Cautionary instructions

Consciousness of guilt

Consciousness of liability

Curative instructions (see CURATIVE INSTRUCTIONS)

Examination of witnesses by jurors

Eyewitness identification

First complaint

Inadequate police investigation

Limiting instructions (see LIMITING INSTRUCTIONS)

“Missing evidence”

Missing witness

Objections to

Preference for recording certain custodial interrogations

Refusal Evidence

Reinstructing jurors to resolve inconsistent verdicts

Required instruction after discharge of deliberating juror

State-of-mind evidence

Third-party culprit evidence

INSURANCE, EVIDENCE OF

Admissibility

Collateral source rule

Inadmissibility due to prejudicial effect

Insurance settlements and the work-product doctrine

Insurance subrogation

INTERPRETERS

Appointment of sign language interpreter

Attorney-client privilege

Custodial statements

Generally

Interpreter-client privilege

  • § 522. Interpreter-Client Privilege

Procedural issues

Qualified sign language interpreter defined

Right to assistance of

Sign language interpreter–client privilege

  • § 521. Sign Language Interpreter–Client Privilege

IRRELEVANT EVIDENCE, ADMISSIBILITY OF

  • § 402. General Admissibility of Relevant Evidence

J

JUDICIAL DELIBERATIONS

  • § 527. Judicial Deliberation Privilege

JUDICIAL NOTICE

Of adjudicative facts, generally 

  • § 201. Judicial Notice of Adjudicative Facts

Of adjudicative facts in criminal cases

Of court’s records in related action

Of demographic data

Of evidence/information gained from active participation in related case

Of law

Of personal observations of judge or juror

Opportunity for parties to be heard regarding

Timing of

Versus official notice

JURORS

Affirmation of verdict

  • § 606(b). During an Inquiry into the Validity of a Verdict

Attentiveness

Bribing of

Checking CORI records of prospective jurors

Common sense; common experience

Competence of as witnesses

  • § 606. Juror's Competency as a Witness

Contacting of posttrial, by attorneys

Discharge of during deliberations

Discharge of during empanelment

Discharge of during trial

Discrimination against

Dishonest/incomplete voir dire responses

Emotions, sympathy of

Ethnic or racial bias or prejudice of

Extraneous prejudicial information, exposure to (see EXTRANEOUS MATTER)

Improper appeals to

Inaccurate or incomplete empanelment information

Lack of genuineness of peremptory challenge

Misconduct of

Mistake on verdict form

Obtaining personal information of

Outside influence on

Peremptory challenges of (see PEREMPTORY CHALLENGES)

Permitted testimony

Personal information of

Prima facie showing of discrimination

  • §1116(b)(1). Note. Stage One: Prima Facie Case of Unlawful Discrimination

Sleeping jurors

Sophistication of

Subjective challenges to, such as to juror’s looks or gestures

Testimony of

  • § 606. Juror’s Competency as a Witness

JURY

Attentiveness

Common sense; common experience

Credibility of

Deadlock, removing deliberating juror after report of

Deliberations

Extraneous prejudicial information, exposure to (see EXTRANEOUS MATTER)

Inadmissible evidence and

  • § 103(d). Preventing the Jury or Witnesses from Hearing Inadmissible Evidence

Instructions (see INSTRUCTIONS, JURY )

Jury nullification

Misleading

Polling of

Preliminary questions and

  • § 104(c). Conducting a Hearing So That the Jury Cannot Hear It

Reduction of verdict

JUVENILE ADJUDICATIONS, USE OF IN IMPEACHMENT

  • § 609(a)(5). Juvenile Adjudications of Delinquency or Youthful Offender

L

LACK OF CRIMINAL RESPONSIBILITY

LAMPRON-DWYER PROTOCOL

  • Article V, Intro. (g). Production of Presumptively Privileged Records from Nonparties Prior to Trial in Criminal Cases
  • § 1108. Access to Third-Party Records Prior to Trial in Criminal Cases (Lampron-Dwyer Protocol)

LAY WITNESS, OPINION TESTIMONY

Generally

  • § 701. Opinion Testimony by Lay Witnesses

Identifying person in photograph or videotape

Illustrations, list of

  • § 701. Opinion Testimony by Lay Witnesses

Lay opinion and expert opinion, same witness

  • § 701. Opinion Testimony by Lay Witnesses

Lay opinion versus expert opinion, admissibility of

  • § 701. Opinion Testimony by Lay Witnesses

On alcohol

On cellular phone positioning

On e-mail accounts

On intent

  • § 701. Opinion Testimony by Lay Witnesses

On Internet searches

  • § 701. Opinion Testimony by Lay Witnesses

On machinery

On marijuana

On mental capacity

On operating under the influence

On signs of struggle

On slang terms

On sobriety

On sounds

On ultimate issue

On value of own services

On value of real or personal property

LEADING QUESTIONS

LIABILITY

Admissibility of records and reports as evidence of

Admissions of

  • § 408, Note. Compromise Offers and Negotiations in Civil Cases

Consciousness of

Expressions of sympathy and

  • § 409(a). Expressions of Sympathy in Civil Cases

Fair report privilege as protection from

Immunity from

Insurance

Offers to compromise and

  • § 408. Compromise Offers and Negotiations in Civil Cases

Offers to pay medical expenses and

  • § 409(b). Payment of Medical and Similar Expenses

Statements against interest and

Statements of counsel regarding

LIMITING INSTRUCTIONS

Comment made on claim of privilege

Evidence of compromise or offer to compromise

  • § 408, Note. Compromise Offers and Negotiations in Civil Cases

Evidence of insurance

Evidence of uncharged conduct

First complaint evidence

First aggressor/first to use deadly force evidence

Gang evidence 

Generally

  • § 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes

Minimizing risk of unfair prejudice

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Out-of-court statement offered for nonhearsay purpose

Prior bad act evidence

Statement of nontestifying codefendant

Timing of

  • § 105, Note. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes

Weapons evidence

When required

  • § 105, Note. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes

LINEUPS

M

MARRIAGE CERTIFICATES

  • § 803(12). Marriage, Baptismal, and Similar Certificates

MEDICAL AND HOSPITAL BILLS

Admissibility of

Authentication of

  • § 902(l). Copies of Hospital and Other Records of Itemized Bills and Reports
  • § 902(m). Copies of Bills for Genetic Marker Tests and for Prenatal and Postnatal Care

Payment of

MEDICAL MALPRACTICE ACTIONS

Evidence of medical bills covered by insurance

Expert testimony

Expressions of sympathy in

Psychotherapist-patient privilege

Use of learned treatises, published scientific opinion in

MEDICAL RECORDS AND REPORTS

Admissibility of

  • § 803(4). Statements for Purposes of Medical Diagnosis or Treatment
  • § 803(6)(A), Note. Entry, Writing, or Record Made in Regular Course of Business
  • § 803(6)(B). Hospital Records
  • § 803(6)(C), Medical and Hospital Services
  • § 902(k). Certified Copies of Hospital and Other Records of Treatment and Medical History

As basis of opinion testimony by experts

Civil commitment hearings for mental illness

Petitions for appointment of guardian for incapacitated person

Production of

Reciprocal discovery process for criminal responsibility examinations

Self-authenticating

  • § 902(k). Certified Copies of Hospital and Other Records of Treatment and Medical History
  • § 902(l). Copies of Hospital and Other Records of Itemized Bills and Reports
  • § 902(n). Results of Genetic Marker Tests

Sexually dangerous person proceedings

Statements contained in

Tort actions

Workers’ compensation proceedings

  • § 804(b)(5)(E). Medical Reports of Disabled or Deceased Physicians as Evidence in Workers’ Compensation Proceedings

MEDICAL TREATMENT, STATEMENTS FOR PURPOSES OF

MEMORY

Expert testimony regarding

Feigning lack of

Lack or lapse of

Refreshment of

MENTAL, EMOTIONAL, OR PHYSICAL CONDITION

  • § 803(3). Then-Existing Mental, Emotional, or Physical Condition

MENTAL CAPACITY, COMPETENCY

Competency examinations

Criminal responsibility examinations

Lay opinion as to, when attesting witness to will

Of children, to testify in care and protection and TPR proceedings

Of witnesses

MINORS

Abuse prevention proceedings

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Development of adolescent brain

Juvenile adjudications, impeachment by

  • § 609(a)(5). Juvenile Adjudications of Delinquency or Youthful Offender

Juvenile adjudications in sexually dangerous person proceedings

Harassment prevention proceedings

  • § 1106, Note. Abuse Prevention and Harassment Prevention Proceedings

Parent-child disqualification

Privilege of

Reasonable force in disciplining

Restitution in delinquency case

Testifying against parent

MIRANDA/VOLUNTARINESS

Admission by silence and

Commenting on omissions in defendant’s statement to police after warnings

Custodial interrogation and

Preliminary questions involving

Use of statements suppressed due to violation of

MISSING WITNESS

Argument by counsel

Availability of witness

Criminal cases

Distinction between insufficient evidence and missing witness arguments

Explanation for failure to call

Foundation for instruction on

Friendliness, hostility of witness

Judicial approval for argument

Jury instruction

Noncumulative testimony

MOTIONS

For access to third-party records

  • § 1108. Access to Third-Party Records Prior to Trial in Criminal Cases (Lampron-Dwyer Protocol)

For disclosure of identity of informant

For mistrial at closing argument

For new trial

For personal information of jurors

For required finding of not guilty

For view

In limine

To permit additional evidence

To reduce verdict

To strike

To suppress

N

NEGLIGENCE

Industry and safety standards, violation of admissible to prove

Liability insurance, lack of not admissible to prove

Medical negligence cases

Remedial measures, not admissible to prove

  • § 407. Subsequent Remedial Measures

NOTICE, JUDICIAL

Of adjudicative facts, generally

  • § 201. Judicial Notice of Adjudicative Facts

Of adjudicative facts in criminal cases

Of court’s records in related action

Of demographic data

Of evidence/information gained from active participation in related case

Of law

Of personal observations of judge or juror

Timing of

Versus official notice

O

OATH OR AFFIRMATION

Child witnesses

Foreign oaths

Foster/preadoptive parents at care and protection trials

Interpreters

Witnesses, generally

  • § 603. Oath or Affirmation to Testify Truthfully

OBJECTIONS

Calling or questioning of witnesses by court

Deposition testimony

Digital evidence

Discovery material

Doctrine of completeness

Evidence bearing directly on probable cause

Evidence conditionally admitted

Evidence of private conversations between spouses

Extrapolation evidence to determine weight of drugs

Forfeiture of right to

  • § 804(b)(6), Note. Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability

Generally

  • § 103. Rulings on Evidence, Objections, and Offers of Proof

Grounds for, motion in limine stage

Hearsay

Jury instruction regarding refusal to take a breathalyzer

Peremptory challenges

Preserving claim of error in joint trial

Prior bad act evidence

Prior convictions

Prior inconsistent statement

Privilege against self-incrimination

Qualifications of CASA to render an expert opinion

Qualifications of examiner in sexually dangerous person proceedings

Question by jurors

Records admitted without live testimony

Statement in an opening or closing

Testimony of spouse

Voluntariness of a defendant’s statement

OFFERS OF PROOF

OFFERS TO COMPROMISE

  • § 408. Compromise Offers and Negotiations in Civil Cases

OFFICIAL NOTICE OF FACTS

OFFICIAL PUBLICATIONS

OPENING STATEMENT

Appeals to juror sympathy

Burden of proof

  • § 1113(a)(2). Directed Verdict, Finding of Not Guilty, or Mistrial

Cause of action

  • § 1113(a)(2). Directed Verdict, Finding of Not Guilty, or Mistrial

Claim of recent contrivance

Curative instructions

Directed verdict after

  • § 1113(a)(2). Directed Verdict, Finding of Not Guilty, or Mistrial

Duty of court

Evidence promised in, curative instruction

Inflammatory rhetoric

Length of

Limiting scope of

Mistrial after

  • § 1113(a)(2). Directed Verdict, Finding of Not Guilty, or Mistrial

Objections

Purpose

Reopening

Responses to improper argument

Timing and order of

OPINIONS, EXPERT WITNESSES

About law

Admissibility of

Based on evidence collected or created by absent expert

Based on evidence in record

Based on independently admissible evidence

Based on personal knowledge

Basis of, generally

  • § 703. Bases of Opinion Testimony by Experts

Care and protection cases

Certitude of

Challenging

Civil commitment hearings for mental illness

Expert opinion versus lay opinion, admissibility of

Foundation requirements for

Generally

  • § 702. Testimony by Expert Witnesses

Limitation of

Medical malpractice actions

On battered woman syndrome

On credibility of another witness

On drug weight

On eyewitness identification

On fingerprint evidence

On firearm/ballistics identification

On handwriting

On possibility

On sexually assault evidence

On ultimate issue

On valuation of business interest

On valuation of real estate

Sexually dangerous person proceedings

Termination of parental rights cases

Testimony (see EXPERT TESTIMONY)

Underlying facts and data

  • § 705. Disclosure of Facts or Data Underlying Expert Opinion

ORIGINALS

P

PARENTAL RIGHTS CASES

Admissibility of evidence, general rule

Adoption plans

Adverse inferences from party's failure to appear

  • § 1115(g), Note. Adverse Inference from a Party's Failure to Appear

Bonding and attachment studies

Children’s out-of-court statements

  • § 1115(d). Children’s Out-of-Court Statements

Judicial findings from prior proceedings

Official/public records and reports

Testimony

Written court reports

PARTY WITNESS, IMPEACHMENT OF

  • § 607. Who May Impeach a Witness

PAST RECOLLECTION RECORDED

PENAL INTEREST, STATEMENTS AGAINST

PEREMPTORY CHALLENGES

Allowing

Denying

Evaluating discriminatory purpose

Evaluating explanation for challenge

General principles

Group-neutral explanation for challenge

Objecting to challenge

Prima facie case of unlawful discrimination

  • § 1116(b)(1). Stage One: Prima Facie Case of Unlawful Discrimination

Protected groups

Rebutting presumption of propriety of challenge

Timing of objections

PERSONAL, FAMILY, OR GENERAL HISTORY, JUDGMENTS AS TO

  • § 803(23). Judgment as to Personal, Family, or General History, or Boundaries

PERSONAL KNOWLEDGE

Attorney

Conduct

  • § 405. Methods of Proving Character

Excited utterance

Expert witness

Facts in civil commitment for mental illness proceedings

Facts in sexually dangerous person proceedings

Facts stated in business records

Facts stated in hospital records

Facts stated in police reports

Hearsay declarants

Lack of

  • § 602. Need for Personal Knowledge

Statements in civil commitment proceedings for individuals with alcohol and substance use disorders

  • § 1118(b) Hearsay in G. L. c. 123, § 35, Proceedings

Statements of deceased

Witnesses, generally

  • § 602. Need for Personal Knowledge

PHOTOGRAPHIC ARRAYS

Admissibility of identification from

Array distinguishing defendant by physical characteristic

Cross-examination of witness

Double-blind procedure

Multiple arrays

Unequivocal positive identification

PHOTOGRAPHS

Admissibility of

As demonstrative evidence

As digital evidence

Authentication of

Of automobile damage, relevant to likelihood and degree of personal injury

Of damage, used to determine restitution

Of defendant/suspect

Of victim/autopsy photographs

Time, date, and location information for digital photographs

PLEAS, OFFERS OF PLEAS, AND RELATED STATEMENTS

Admissibility of guilty plea

Plea agreements

  • § 1104. Witness Cooperation Agreements

“Plea negotiations” versus “plea discussions”

  • § 410, Note. Pleas, Offers of Pleas, and Related Statements

Prohibited uses

Reference to plea agreement in closing argument

State versus Federal rule regarding use of

  • § 410, Note. Pleas, Offers of Pleas, and Related Statements

Use of, in criminal proceeding for perjury

Use of guilty plea for impeachment

  • § 609, Note. Impeachment by Evidence of Conviction of Crime
  • § 609(a)(2). Felony Conviction Not Resulting in Committed State Prison Sentence

Use of in criminal proceeding for perjury

POLICE REPORTS

Admissibility as business records

Admissibility at pretrial dangerousness hearings

Admissibility at probation revocation hearings

Admissibility in child protective cases

Admissibility in sexually dangerous person proceedings

Consideration of hearsay contained in, at pretrial dangerousness hearings

Judicial notice of contents on appeal

POLITICAL VOTER DISQUALIFICATION

  • § 516. Political Voter Disqualification

PREJUDICE

Caused by admission of photographs, tape recordings, etc.

Caused by allowing Commonwealth to reopen

Caused by asking defendant to comment on truthfulness of witness

Caused by assertion of privilege against self-incrimination in civil case

Caused by closing court for rape-shield hearing

Caused by court changing earlier ruling

Caused by juror’s dishonest voir dire

Caused by juror’s ethnic or racial bias

Caused by juror’s question

Caused by jury’s exposure to extraneous matter

Caused by jury’s misuse of out-of-court statement

Caused by statement of nontestifying codefendant

Caused by statements made in closing arguments

Caused by statements made in opening statements

Curative admissibility and

DNA analysis and

Exclusion of evidence

First complaint doctrine

  • § 413(a), Note. Admissibility of First Complaint

Foreclosing inquiry into subject that could show

“Inherent prejudice” associated with evidence of other bad acts

Profile evidence

Probative value of evidence versus

Spoliation and

State-of mind evidence

Summaries of evidence

  • § 1006, Note. Summaries to Prove Content

Third-party culprit evidence/information

Unfair prejudice, judge's role

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Weapons evidence

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

PRELIMINARY DETERMINATION, ADMISSIBILITY

PRELIMINARY HEARINGS

PRESENTATION OF EVIDENCE

  • § 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
  • § 611. Mode and Order of Examining Witnesses and Presenting Evidence

PRESENT SENSE IMPRESSION

PRESERVATION OF APPELLATE RIGHTS

  • § 103(b). Preliminary Evidentiary Motions: Effect on Appellate Rights

PRESUMPTION OF SANITY

PRESUMPTIONS

Civil cases

Criminal cases

PRETRIAL DIVERSION PROGRAMS

  • § 529(a). Statutory Bars on Use of Evidence Related to Pretrial Diversion Programs

PRIMA FACIE EVIDENCE

Civil cases

Criminal cases

PRIOR BAD ACT EVIDENCE

Admissibility

Criminal activity

Domestic violence

Drug use

Evidence of lawful conduct excluded as

Exclusion of

Gang affiliation

Grooming evidence

Judicial inquiry/discretion regarding

  • § 705, Note. Disclosure of Facts or Data Underlying Expert Opinion

Limiting instructions

Motion in limine

Objections to

Pattern of misconduct of victim

Permitted/prohibited uses

Prior incarceration

Prior police investigations

Prior sexual offenses

Prior statements about other acts

Racial animus

Rap lyrics

Risk of unfair prejudice from evidence

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Used for purpose other than for which admitted

Used to rebut entrapment defense

Used to show motive

Violent interests or conduct

Weapons evidence

PRIOR CONSISTENT STATEMENTS

Admissible to rebut claim of recent contrivance

Generally inadmissible

Made before motive to fabricate

Made when motive to fabricate no longer exists

PRIOR INCONSISTENT STATEMENTS

Admissibility

Introduction of

Nonbinding admissions

Omission from earlier statement

Prior statements that qualify as inconsistent

Statements made by criminal defendant

Statements made in other proceedings

Substantive use of

Used to attack/support credibility of hearsay declarant

  • § 806. Attacking and Supporting Credibility of Hearsay Declarant

Used to impeach credibility of witness

Used to impeach first complaint witness

Used to impeach one’s own witness

PRIOR RECORDED TESTIMONY

PRIOR SEXUAL CONDUCT

  • § 412. Sexual Behavior or Sexual Reputation (Rape-Shield Law)

PRIVILEGES AND DISQUALIFICATIONS

Allied mental health or human services professional privilege

  • § 508. Allied Mental Health or Human Services Professional Privilege

Applicability of Federal law

Attorney-client privilege (see ATTORNEY-CLIENT PRIVILEGE )

Board of Bar Overseers and bar counsel

Business interest privilege

Comment on or inference from claim of privilege

  • § 525. Comment upon or Inference from Claim of Privilege

Confidentiality statutes

Confidentiality versus privilege

  • Article V, Intro. (d). Confidentiality Versus Privilege
  • Article V, Intro. (f). Examples of Relationships in Which There May Be a Duty to Treat Information as Confidential Even Though There Is No Testimonial Privilege

Deliberative process privilege

  • § 518. Executive or Governmental Privilege

Disclosure of privileged matter

  • § 524. Privileged Matter Disclosed Erroneously or Without Opportunity to Claim Privilege

Disclosure to third party

Doctor-patient privilege

Domestic violence victims’ counselor privilege

Establishing existence of privilege

Executing/exercising

Executive privilege (governmental)

  • § 518. Executive or Governmental Privilege

Fair report privilege

Human services professional privilege

  • § 508. Allied Mental Health or Human Services Professional Privilege

Immunity from liability

Impounding versus sealing privileged material

Informant privilege

  • § 509. Identity of Informer, Surveillance Location, and Protected Witness Privileges

Interpretation of privileges

Interpreter-client privilege

  • § 522. Interpreter-Client Privilege

Investigatory privilege

Judicial deliberation privilege

  • § 527. Judicial Deliberation Privilege

Legislative deliberation privilege

Litigation privilege

Mediation privilege

Medical peer review privilege

  • § 513. Medical Peer Review Privilege

Mental health professional privilege

  • § 508. Allied Mental Health or Human Services Professional Privilege

News sources and nonpublished information

Nonevidentiary privileges

Not self-executing, generally

Parent-child disqualification

Privilege against self-incrimination

Production of presumptively privileged records

  • Article V, Intro. (g). Production of Presumptively Privileged Records from Nonparties Prior to Trial in Criminal Cases

Protected witness privilege

Protections regarding diversion programs

  • § 529. Protections Regarding Diversion Programs

Psychotherapist-patient privilege (see PSYCHOTHERAPIST-PATIENT PRIVILEGE)

Religious privilege

Sexual assault counselor–victim privilege

Sign language interpreter–client privilege

  • § 521. Sign Language Interpreter–Client Privilege

Social worker–client privilege

Spousal disqualification

Spousal privilege

  • § 504(a). Spousal Privilege
  • § 804(b)(6), Note. Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability

Student records

Surveillance location privilege

Tax return preparer privilege

Tax return privilege

  • § 519. State and Federal Tax Returns

Third-party records

  • § 1108. Access to Third-Party Records Prior to Trial in Criminal Cases (Lampron-Dwyer Protocol)

Trade secrets privilege

Unemployment hearing privilege

  • § 526. Unemployment Hearing Privilege

Union member–union privilege

  • § 528. Union Member–Union Privilege

Validity of claim of privilege

Waiver of privilege

PROBATION VIOLATION HEARINGS

Admissibility of SAIN report

Authentication of evidence

Failure to pay restitution

In-court identifications

Right to confront adverse witnesses

Right to present a defense

PROBATIVE VALUE OF EVIDENCE

Circumstantial evidence of nature of place or thing

Conversations between spouses

Evidence in sexually dangerous person proceedings

Evidence of collateral source payments

Evidence of consciousness of guilt

Evidence of declarant’s intent to enter into joint venture

Evidence of employer’s state of mind, in employment discrimination case

  • § 408, Note. Compromise Offers and Negotiations in Civil Cases

Evidence of first aggressor

Evidence of insurance policy

Evidence of remedial measures

Evidence of victim’s state of mind

Expert opinion as to a possibility

Expressions of sympathy

  • § 409(a), Note. Expressions of Sympathy in Civil Cases
  • § 409(b), Note. Payment of Medical and Similar Expenses

Offers to pay medical bills

  • § 409(b), Note. Payment of Medical and Similar Expenses

Police officer’s observations regarding OUI of marijuana

Prior bad acts

Prior consistent statements

Prior inconsistent statements

Propensity evidence

Test for relevant evidence

Third-party culprit evidence

  • § 1105. Third-Party Culprit Evidence

Versus prejudicial effect (see under PREJUDICE)

PROCESS OR SYSTEM, AUTHENTICATION

PRODUCTION OF ORIGINAL

  • § 1002. Requirement of Original (Best Evidence Rule)

PROFFER

  • § 103. Rulings on Evidence, Objections, and Offers of Proof

PROFILE EVIDENCE

PROOF, OFFER OF

  • § 103. Rulings on Evidence, Objections, and Offers of Proof

PROPERTY

  • § 701, Note. Opinion Testimony by Lay Witnesses
  • § 803(14). Records or Documents Affecting an Interest in Property
  • § 803(15). Statements in Documents Affecting an Interest in Property

PROSECUTOR, SPECIAL ROLE OF

PROTECTED GROUPS

PSYCHIATRIC AND PSYCHOLOGICAL EXAMINATIONS AND RECORDS

Care and protection and termination of parental rights cases

  • § 1115(c)(4). Court-Ordered Psychiatric, Psychological, and Court Clinic Evaluation Reports

Civil commitment hearings for mental illness

  • § 1117. Civil Commitment Hearings For Mental Illness

Compelled examination

Competency examinations

Criminal responsibility examination

Examination by mental health counselor

  • § 508(d). Mental Health Counselor Exception, (2)

Examination by social worker

Impounding versus sealing records

Psychotherapist-patient privilege (see PSYCHOTHERAPIST-PATIENT PRIVILEGE)

Sexually dangerous person proceedings

Statements made during competency examination

PSYCHOTHERAPIST-PATIENT PRIVILEGE

Child custody and child protective cases

Civil commitment hearings for mental illness

Definitions

Effect of exercise of privilege

  • § 503(c). Effect of Exercise of Privilege 

Exceptions

Not self-executing 

Presence of third party

Scope of the privilege

Statement of privilege

Statements made during competency examinations

Waiver

PUBLIC RECORDS AND REPORTS

Admissibility of

Authentication of

Child custody and child protective cases

Copies of

Documents from public officer or agency recording deliberative process

Evidence about

Investigatory materials

Massachusetts public records statute

Mortality tables

Proof of specific types of

School records

Scope of work-product doctrine in public records context

Trade secrets and

Q

QUALIFICATIONS, EXPERT WITNESSES

R

RAPE-SHIELD LAW

Definition of victim

Evidence prohibited

Exceptions to admissibility in criminal cases

Motion in limine to obtaining ruling on applicability

Procedure to determine admissibility of evidence

  • § 412(c). Procedure to Determine Admissibility 

Use of prior convictions of sexual offenses of complaining witness

REBUTTAL

Absence of complaint or other incident as

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Curative admissibility doctrine

Introduction of evidence

Of character evidence

Of child’s out-of-court statements to court-appointed investigators

Of claim of impossibility

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Of claim of recent contrivance or bias

Of consciousness of guilt or liability evidence

Of contention of undue delay

  • § 408. Compromise Offers and Negotiations in Civil Cases

Of deceased physician’s report

Of defendant’s allegation of fabrication

  • § 413(b), Note. Admissibility of Additional Reports of a Sexual Assault Under an Alternative Evidentiary Basis

Of defendant’s claims regarding police impropriety

Of defendant’s mental health evidence

Of false testimony

Of hearsay within hearsay

Of implication witness’s testimony was false

Of presumption peremptory challenge is lawful

Of presumptions, generally

Of prima facie evidence

Of reputation evidence

Of written court reports in child protective cases

Summary of evidence used to rebut defendant’s defense

  • § 1006, Note. Summaries to Prove Content

RECORDED RECOLLECTION

RECORDS

Admitted without live testimony

Business (see BUSINESS RECORDS)

Computer

Court

Domestic official

  • § 902(b). Domestic Official Records Not Under Seal

Electronic

Family

Firearms licensing records

Foreign official

Impounding versus sealing

Inspection of

Judicial

Medical and hospital records (see MEDICAL AND HOSPITAL BILLS; MEDICAL RECORDS AND REPORTS )

Medical peer review committee records

  • § 513(b)(1). Proceedings, Reports, and Records of Medical Peer Review Committee

Presumptively privileged records

  • Article V, Intro. (g). Production of Presumptively Privileged Records from Nonparties Prior to Trial in Criminal Cases
  • § 1108(c). Summons and Notice to Record Holder, (2)
  • § 1108(d)(2). Presumptively Privileged Records
  • § 1108(f). Disclosure of Presumptively Privileged Records
  • § 1108(g). Use of Presumptively Privileged Records at Trial

Psychiatric and psychological records

Public records and reports (see PUBLIC RECORDS AND REPORTS)

Records affecting interest in property

  • § 803(14). Records or Documents Affecting an Interest in Property

Records defined

Records in termination of parental rights and care and protection cases

Records of vital statistics

Religious organization records

Sexual assault counseling records

Sexual offender registry records

Third-party records

  • § 1108. Access to Third-Party Records Prior to Trial in Criminal Cases (Lampron-Dwyer Protocol)

Work-product doctrine

REDACTION

Of amounts paid by health insurers

Of defendant’s affidavit in support of disclosure of informant’s identity

Of documents in sexually dangerous person proceedings

Of hospital records 

Of means and manner of death in death certificate

Of medical records for information not germane to treatment

Of nature of defendant's prior offense

Of opinion work product

Of police reports

Of prejudicial information in mittimus and analogous documents

Of presumptively privileged records

  • § 1108(f). Disclosure of Presumptively Privileged Records, (2)
  • § 1108(g). Use of Presumptively Privileged Records at Trial, (3)

Of witness cooperation agreements

  • § 1104. Witness Cooperation Agreements

To protect personal privacy

REDIRECT EXAMINATION

Expert witnesses

Purpose of

Regarding witness cooperation agreements

  • § 1104. Witness Cooperation Agreements

Regarding witness’s conviction raised during cross-examination

Regarding witness’s fear in testifying

Scope of

REFRESHMENT OF MEMORY

Generally

  • § 612. Writing or Object Used to Refresh Memory

Of defendant, with suppressed statements

Of witness, with earlier statement

Past recollection recorded exception versus doctrine of refreshing memory

Use of leading questions on direct examination 

RELEVANT EVIDENCE

Admissibility

  • § 402. General Admissibility of Relevant Evidence

Defined

  • § 401. Test for Relevant Evidence

Evidence relevant to weight and credibility of other evidence

  • § 104(e). Evidence Relevant to Weight and Credibility

Exclusion of

  • § 103(a), Note. Preserving a Claim of Error
  • § 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Test for

  • § 401. Test for Relevant Evidence

RELIGIOUS ORGANIZATION RECORDS

REMEDIAL MEASURES

Prohibited uses of evidence of subsequent measures

When evidence may be admitted

REOPENING CASE

REPUTATION

Boundaries

  • § 803(20). Reputation Concerning Boundaries or General History

Character

  • § 404. Character Evidence; Crimes or Other Acts
  • § 405(a). By Reputation
  • § 412. Sexual Behavior or Sexual Reputation (Rape-Shield Law)
  • § 608. A Witness’s Character for Truthfulness or Untruthfulness

Character trait

Complaining witness

  • § 412. Sexual Behavior or Sexual Reputation (Rape-Shield Law)

Defendant

Family history

  • § 803(19). Reputation Concerning Personal or Family History

Sexual reputation

  • § 412. Sexual Behavior or Sexual Reputation (Rape-Shield Law)

Victim

  • § 404(a)(2). Exceptions for a Defendant or Victim in a Criminal Case

RESTITUTION

Evidentiary rules at hearing

Judicial determination of award

Nature and extent of remedy

No right to trial by jury in connection with

Procedural requirements

Refund of

Restitution to third party

RESTORATIVE JUSTICE PROGRAMS

  • § 529(b). Statutory Bars on Use of Evidence from Community-Based Restorative Justice Programs

ROUTINE PRACTICE

  • § 406. Routine Practice of a Business; Habit of an Individual

RULINGS

Competency of witnesses

Court’s determination regarding laws

Generally

  • § 103. Rulings on Evidence, Objections, and Offers of Proof

Judge’s determination regarding peremptory challenge

Preliminary

Qualifications of expert witnesses

  • § 702. Testimony by Expert Witnesses

Sexually dangerous person proceedings

Timing of requests for

  • § 105, Note. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes

Waiver of privilege or protection

S

SCOPE

See individual topics

SELF-AUTHENTICATION

  • § 902. Evidence That Is Self-Authenticating

SELF-DEFENSE

Burden of production of defendant

Character of victim

Failure to contact police and

Flight not inconsistent with

Identity of first aggressor

State of mind of defendant

State of mind of victim

SELF-INCRIMINATION, PRIVILEDGE AGAINST

Commenting on or drawing adverse inference from invoking

Compelled examinations

Competency examinations

Criminal responsibility examinations

Custodial interrogations

Exceptions

Grand jury witness

Hearings and trials

Martin hearings

Noncriminal proceedings

Privilege of defendant in criminal proceeding

  • § 511(a). Privilege of Defendant in Criminal Proceeding

Privilege of witness

Refusal evidence

Use of suppressed statements

Validity of claim of privilege

SEQUESTRATION OF WITNESSES

  • § 615. Sequestration of Witnesses

SETTLEMENTS

Compromises and offers to compromise

  • § 408, Note. Compromise Offers and Negotiations in Civil Cases

Evidence of settlement with another defendant

Insurance settlements and the work-product doctrine

SEXUAL ASSAULT

Child victims, prosecutors commenting on

Counseling records

Expert testimony on evidence of assault

First complaint (see FIRST COMPLAINT OF SEXUAL ASSAULT )

Impeaching complaining witness with prior conduct

Opinion of expert on whether sexual assault has occurred

Psychological and counseling records of alleged victim

Rape-shield law (see RAPE-SHIELD LAW)

Reputation of complaining witness

  • § 412. Sexual Behavior or Sexual Reputation (Rape-Shield Law)

Right to confrontation with child victim

SAIN evidence/Sexual Assault Evidence Collection Kit

Sexual assault counselor-victim privilege

Sexual orientation of victim

Statement of victim to sexual assault nurse examiner

SEXUAL BEHAVIOR OR REPUTATION

SEXUALLY DANGEROUS PERSON PROCEEDING

Admissible hearsay

Evidence offender chose not to participate in nonconfidential treatment

Evidentiary rulings regarding

Excluded hearsay

Expert testimony

Generally

Hearsay expressly made admissible by statute

Hearsay that may be admissible

Live-witness testimony

Police reports

Public records

Risk assessment tool results

Standard of review

Statutory procedures

Substantial risk of miscarriage of justice

  • § 103(e). Substantial Risk of a Miscarriage of Justice

Testimony of qualified examiner/expert testimony

Unpreserved error

  • § 103(e). Substantial Risk of a Miscarriage of Justice

SEXUAL OFFENDER REGISTRY

Failure to register

Hearings

Records

SHOWUPS

Admissibility of identification from

Fairness/suggestive of

In-court showup

SIMILAR OCCURRENCES, EVIDENCE OF

Admissibility

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

To rebut claim of impossibility

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

To show causation

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

To show foreseeability

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

To show notice

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

SOCIAL-NETWORKING WEB SITES AND SOCIAL MEDIA

SPOLIATION OR DESTRUCTION OF EVIDENCE

As evidence of consciousness of guilt

As evidence of consciousness of liability

Burden of proof

Exclusion of other evidence as sanction

Judge’s discretion to impose sanctions

  • § 1102. Spoliation or Destruction of Evidence

Missing evidence in possession of another party

No tort cause of action for

Remedial action in criminal cases

STATEMENTS

Against interest

By juror

  • § 606(b). During an Inquiry into the Validity of a Verdict 

Child’s out-of-court statement describing sexual contact

  • § 803(24). Out-of-Court Statement of Child Describing Sexual Contact in Proceeding to Place Child in Foster Care
  • § 804(b)(8). Admissibility in Criminal Proceedings of a Child’s Out-of-Court Statement Describing Sexual Contact
  • § 804(b)(9). Out-of-Court Statement of Child Describing Sexual Contact in Civil Proceeding, Including Termination of Parental Rights
  • § 1115(d)(2). Statements Related to Sexual Abuse

Contained in computer records

Defined

Doctrine of completeness

  • § 106. Doctrine of Completeness

Dying declarations

  • § 804(b)(2). Statement Made Under the Belief of Imminent Death

Expressions of sympathy

False

For purpose of medical treatment

Hearsay (see HEARSAY )

In care and protection and termination of parental rights cases

  • § 1115. Evidentiary Issues in Care and Protection, Child Custody, and Termination of Parental Rights Cases

Inconsistent statements by prosecutor at successive trials

Indicating consciousness of guilt

In sexually dangerous person proceedings

Made during competency examinations

Made during criminal responsibility examination

Made during suppression hearings

Made in compromise negotiations

  • § 408. Compromise Offers and Negotiations in Civil Cases

Of defendant

Of identification

Of joint venturer

Of nontestifying codefendant

Of opposing party

Of personal history

Of police officer

Of third party

Of victim

Out-of-court statements

Prior (see PRIOR CONSISTENT STATEMENTS; PRIOR INCONSISTENT STATEMENTS)

Regarding pleas

  • § 410. Pleas, Offers of Pleas, and Related Statements

Regarding state of mind

Suppressed statement used for impeachment

Suppressed statement used to refresh witness’s memory

Testimonial versus nontestimonial

Unrecorded

Vicarious admission

Voluntariness of

STATE OF MIND

Of child, in child custody cases

Of declarant, circumstantial evidence of

Of defendant

Of employer, in employment discrimination case

  • § 408, Note. Compromise Offers and Negotiations in Civil Cases

Of testator

  • § 803(3). Then-Existing Mental, Emotional, or Physical Condition, (B)(iii)

Of victim

Of witness

State-of-mind exception

STATUTORY PRESUMPTIONS

STIPULATIONS

SUBSCRIBING WITNESS

  • § 903. Subscribing Witness’s Testimony

SUMMARIES

Oral summaries of voluminous records

Statistical summaries derived from compilation of raw data

Summaries to prove content

SUPPRESSION

Applicability of evidentiary sections at hearings

Hearings

Motions to suppress

Of defendant’s statement

Of false statement

Of identification

Statements made at suppression hearings

Suppressed statement used for impeachment

Suppressed statement used to refresh witness’s memory

T

TERMINATION OF PARENTAL RIGHTS (TPR) PROCEEDINGS

See PARENTAL RIGHTS CASES

TESTIMONY

Against parent

Against spouse

Before Board of Bar Overseers

Before medical peer review committee

  • § 513(d). Testimony Before Medical Peer Review Committee

Care and protection cases

Expert (see EXPERT TESTIMONY)

False

Former testimony, hearsay exception

Missing witness, expected testimony of

Noncumulative

Of child witnesses

Of defendant

Of first complaint witness

  • § 413. First Complaint of Sexual Assault

Of grand jury witness

Of juror

  • § 606. Juror’s Competency as a Witness

Of lay witness (see LAY WITNESS, OPINION TESTIMONY)

Of police

Of subscribing witness

  • § 903. Subscribing Witness’s Testimony

Of third-party observer

Of victim, at pretrial dangerousness hearing

Of victim, regarding first complaint of sexual assault

Of witness, from outside defendant’s presence

On authenticity of digital evidence

On behavioral characteristics of sexual abuse victims

  • § 704. Opinion on Ultimate Issue

On first to use deadly force

On person’s reputation

On prior criminal conviction

On ultimate issue

  • § 704. Opinion on Ultimate Issue

Opinion

  • § 701. Opinion Testimony by Lay Witnesses
  • § 702. Testimony by Expert Witnesses
  • § 704. Opinion on Ultimate Issue

Preliminary matters

Prior recorded testimony

Recordings of, used in closing argument

Records admitted without

Suborning witness to provide false testimony

Suppressed statement used to refresh memory for

Termination of parental rights (TPR) cases

To prove contents of electronic record

To prove contents of written statement

  • § 1007. Testimony or Statement of Party to Prove Content

Waiver of privilege against self-incrimination by

TEXT MESSAGES

Authentication and identification

Doctrine of verbal completeness

Proof of “verbal acts” or “operative” words

Spontaneous utterance

State-of-mind exception to hearsay rule

Summaries of evidence

Used to prove motive

THIRD-PARTY CULPRIT

Comparison between Bowden and third-party culprit evidence

Evidence of

  • § 1105. Third-Party Culprit Evidence

Evidence of consciousness of guilt of

False testimony of

Federal residual exception and

Instructing on

Rebutting third-party culprit defense

Right to present evidence of

TRANSLATORS AND TRANSLATIONS

Admission of translation

Defendant’s custodial statements

Derivative attorney-client privilege

Interpreters

Qualified sign language interpreters

U

ULTIMATE ISSUE, ADMISSIBILITY OF OPINION TESTIMONY

Generally

  • § 704. Opinion on Ultimate Issue

Improper vouching

Operating under the influence cases

Opinions about law versus facts

Testimony of experts on ultimate issue

UNPRESERVED ERROR

  • § 103(e). Substantial Risk of a Miscarriage of Justice

V

VERDICT

Commenting on or discussing consequences of

Contacting jurors after

Directed verdict, after opening statement

  • § 1113(a)(2). Directed Verdict, Finding of Not Guilty, or Mistrial

Discharge of juror before

Duty of jury to return guilty verdict of highest crime proved

Evidence of consciousness of guilt as basis for

Impartiality of, after juror exposure to bias

Inconsistency between verdicts

Inquiry into validity of

  • § 606(b). During an Inquiry into the Validity of a Verdict 

Jurors affirmation of

  • § 606(b). During an Inquiry into the Validity of a Verdict

Jury nullification

Polling of jury regarding

Reduction of

Reduction of damages after

References to verdicts in other civil cases

Suggesting that jurors may need to explain verdict

Verdict form, mistake on

VICTIM

Appealing to jury for justice for

Character of

Child victim, right to confrontation with

Credibility of

Definition of, for purposes of rape-shield law

Dying declarations of

Evidence defendant is victim of battered woman syndrome

Evidence to contradict impeachment of

  • § 413(b), Note. Admissibility of Additional Reports of a Sexual Assault Under an Alternative Evidentiary Basis

First complaint of sexual assault

  • § 413. First Complaint of Sexual Assault

Juror bias due to race or ethnicity of

Past behavior of

  • § 404. Character Evidence; Crimes or Other Acts
  • § 412. Sexual Behavior or Sexual Reputation (Rape-Shield Law)

Pattern of misconduct of

Photographs of

Privileges

  • § 505. Domestic Violence Victims’ Counselor Privilege
  • § 506. Sexual Assault Counselor–Victim Privilege
  • § 524. Privileged Matter Disclosed Erroneously or Without Opportunity to Claim Privilege

Psychological and counseling records of alleged sexual assault victim

Records of

References to, in closing argument

Restitution

Sexual orientation

Sexual reputation or behavior of

  • § 412. Sexual Behavior or Sexual Reputation (Rape-Shield Law)

Spontaneous utterance by

Statements of (see STATEMENTS )

State of mind

Testimony of, at pretrial dangerousness hearing

Testimony of, regarding first complaint of sexual assault

Testimony regarding behavioral characteristics of sexual abuse victims

  • § 704, Opinion on Ultimate Issue

VIDEO RECORDINGS

Admissibility

Authentication

Presentation of video evidence

Preservation of video evidence

Showing arrest

Showing defendant with firearm that could have been used in crime

Summary of

Testimony of child witness

Testimony on identity of person depicted in video

Testimony on time discrepancy between surveillance footage and GPS data

Victim’s statements in body-worn camera footage

Videotape of witness selecting photograph of defendant

VIEWS

Availability of

Chief purpose of

Conduct during

Defendant’s presence and conduct

Motions for

Payment of cost of

References to, in closing argument

Unauthorized views of sites by jurors

Use of observations made during

VITAL RECORDS, CERTIFIED COPIES

VITAL STATISTICS RECORDS

VOIR DIRE

Evidence of disparate treatment of jurors during

Juror failure to disclose information during

Of child in proceeding to place child in foster care

Of expert witness

Of jurors

Of witness

Regarding authenticity of contested electronic evidence

Regarding Bowden evidence

Regarding defendant’s failure to appear at trial

Regarding excited utterance

Regarding feigning lack of memory

Regarding spousal privilege

Regarding suppressed statement used to refresh witness’s memory

Regarding witness’s intent to assert a privilege

Regarding witness’s mental competency

Waiver of privilege against self-incrimination during

VOUCHING

Closing argument

Expert witness testimony

Improper vouching

Testimony on direct examination

Witness testifying pursuant to plea agreement

W

WEAPONS EVIDENCE

Admissibility, test for

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Admissible to rebut the defendant’s claims

Admissible to show motive or state of mind

Evidence of weapon that could have been used in crime

Evidence of weapon that could not have been used in crime

Limiting instructions

WEBSITE

WEIGHT OF EVIDENCE

Answers to questions by jurors

Business records

Care and protection and termination of parental rights cases

Defects in chain of custody and

Electronic communications and e-mail

Evidence of bias or motive to lie

Evidence of consciousness of guilt

Evidence of consciousness of liability

Evidence relevant to weight and credibility of other evidence

  • § 104(e). Evidence Relevant to Weight and Credibility

Expert testimony

First complaint testimony

Identification evidence

Inflammatory evidence, risk of unfair prejudice from

  • § 403, Note. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Introduction of evidence relevant to

  • § 104(e). Evidence Relevant to Weight and Credibility

Jury’s role

Past sexual conduct and reputation of complainant 

Photographs and digital images

Police reports

Reports in official publications, trade journals, or newspapers

Secondary evidence of contents of writing or record

  • § 1008. Functions of Judge and Fact Finder

Suppression hearings

WITNESS

Adverse witness

  • § 607. Who May Impeach a Witness

Attacking credibility, in closing argument

Availability of 

Bias, impeachment for

  • § 610. Religious Beliefs or Opinions

Calling by court

  • § 614. Calling and Examination of Witnesses by Court or Jurors

Character of

  • § 608. A Witness’s Character for Truthfulness or Untruthfulness

Child protective cases

Child witness

Civil commitment hearings for alcohol and substance use disorders

  • § 1118(a). Civil Commitment Proceedings Pursuant to G. L. c. 123, § 35, for Individuals with Alcohol and Substance Use Disorders

Civil commitment hearings for mental illness

  • § 1117(c). Expert Opinion Testimony
  • § 1117(e). Psychotherapist-Patient and Social Worker–Client Privileges

Competency

Cooperation agreements

  • § 1104. Witness Cooperation Agreements

Court personnel, competency as

  • § 605. Competency of Judge as Witness

Credibility (see CREDIBILITY OF WITNESS )

Cross-examination of

  • § 104. Preliminary Questions
  • § 611. Mode and Order of Examining Witnesses and Presenting Evidence

Defending credibility, in closing argument

Direct examination of

  • § 611. Mode and Order of Examining Witnesses and Presenting Evidence

Examination by court

  • § 614. Calling and Examination of Witnesses by Court or Jurors

Examination by jurors

Exclusion of

  • § 615. Sequestration of Witnesses

Expert witness (see EXPERT TESTIMONY; EXPERT WITNESSES)

Eyewitness

  • § 1112. Eyewitness Identification

Failure to call

Fear of testifying, questions concerning

First complaint witness

  • § 413. First Complaint of Sexual Assault

Grand jury witness

Harassment

Hostile witness

Immunity

Impeachment of (see IMPEACHMENT )

Improper vouching

Incompetency, finding of

Intimidation

Judge as

  • § 527. Judicial Deliberation Privilege
  • § 605. Competency of Judge as Witness

Juror as

  • § 606. Juror’s Competency as a Witness

Lack of personal knowledge of

  • § 602. Need for Personal Knowledge

Lay witness (see LAY WITNESS, OPINION TESTIMONY)

Memory, feigning lack of

Memory, lapse or lack of

Memory, refreshment of

Missing witness (see MISSING WITNESS )

Motive to lie/lack of motive to lie, commenting on

Oath

  • § 603. Oath or Affirmation to Testify Truthfully

Plea agreements with

Police officer, impeachment of

Preventing from hearing inadmissible evidence

  • § 103(d). Preventing the Jury or Witnesses from Hearing Inadmissible Evidence

Prior statements of

Privilege

Production or procurement of

Protected witness

Qualification

Recollection of, refreshed

  • § 612. Writing or Object Used to Refresh Memory

References to, in closing argument

Rehabilitation of

Sequestration of

  • § 615. Sequestration of Witnesses

State of mind

Suborning of, to provide false testimony

Subscribing

  • § 903. Subscribing Witness’s Testimony

Testimony (see TESTIMONY)

Witness cooperation agreements

  • § 1104. Witness Cooperation Agreements

WORK-PRODUCT DOCTRINE

Anticipation of litigation

Burden of proof

Explanation and intention of

Fact versus opinion work product

Relation to attorney-client privilege

Scope of, in public records context

Waiver

Writing or object used to refresh witness’s memory

WRITINGS

Ancient

Contents of (see CONTENTS OF WRITINGS, PROOF)

Defined

  • § 1001. Definitions That Apply to This Article

Disputed

  • § 901. Authenticating or Identifying Evidence

Doctrine of completeness

  • § 106. Doctrine of Completeness

Made in regular course of business

  • § 803(6)(A). Entry, Writing, or Record Made in Regular Course of Business

Used to impeach

  • § 613. Prior Statements of Witnesses, Limited Admissibility

Used to refresh memory

  • § 612. Writing or Object Used to Refresh Memory

Contact

Online

Library locations and phone numbers 
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Email a reference librarian: Email Trial Court Law Libraries at masslawlib@gmail.com

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