Mass. R. Evid. 103
Mass. Guid. Evid. 103
Subsection (a). This subsection is derived from G. L. c. 231, § 119, which states as follows:
"No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or anything done or omitted by the trial court or by any of the parties is ground for modifying or otherwise disturbing a judgment or order unless the appeals court or the supreme judicial court deems that the error complained of has injuriously affected the substantial rights of the parties. If either court finds that the error complained of affects only one or some of the issues or parties involved it may affirm the judgment as to those issues or parties unaffected and may modify or reverse the judgment as to those affected."
See also G. L. c. 231, § 132 (stating that no new trial in a civil proceeding may be granted based upon the improper admission or exclusion of evidence unless the error injuriously affected the proponent's substantial rights). To determine whether a substantial right was injuriously affected by the exclusion of evidence
"the appropriate test is whether the proponent of erroneously excluded, relevant evidence has made a plausible showing that the trier of fact might have reached a different result if the evidence had been before it. Thus the erroneous exclusion of relevant evidence is reversible error unless, on the record, the appellate court can say with substantial confidence that the error would not have made a material difference."
DeJesus v. Yogel, 404 Mass. 44, 48-49 (1989).
Judicial Duty to Give Curative Instruction. In a criminal case, if defense counsel is unable to present certain evidence promised in an opening statement because the court changes an earlier ruling, the danger of prejudice is so great that the judge must give the jury an explanation why the defendant could not keep the promise made in the opening statement. Commonwealth v. Chambers, 465 Mass. 520, 534-535 (2013) (alternatively, the judge may decline to give the curative instruction and instead allow the defendant to present the evidence).
Subsection (a)(1). This subsection is derived from Commonwealth v. Marshall, 434 Mass. 358, 365 (2001), and Commonwealth v. Pickles, 364 Mass. 395, 399 (1973). "[O]bjections to evidence, or to any challenged order or ruling of the trial judge, are not preserved for appeal unless made in a precise and timely fashion, as soon as the claimed error is apparent." Commonwealth v. Perryman, 55 Mass. App. Ct. 187, 192(2002). But see Commonwealth v. DePina, 476 Mass. 614, 624 n.9 (2017) (In a joint trial, one defendant's objection, which put the judge on notice of the basis of the objection, "served the purpose of the requirement of a contemporaneous objection[,]" thus preserving the appellate rights of both defendants.). "The purpose of requiring an objection is to afford the trial judge an opportunity to act promptly to remove from the jury's consideration evidence which has no place in the trial." Abraham v. Woburn, 383 Mass. 724, 726 n.1 (1981). If a timely objection is not made, the evidence is properly admitted, and the fact finder is entitled to give it such probative effect as it deems appropriate. See Commonwealth v. Steed, 95 Mass. App. Ct. 463, 469(2019); Commonwealth v. Proia, 92 Mass. App. Ct. 824, 827-828(2018). But any ob-jected-to statement at trial "is only worth what it is worth." Commonwealth v. Drapaniotis, 89 Mass. App. Ct. 267, 274-276(2016).
In both jury trials and jury-waived trials, counsel have the obligation to make timely objections. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967) (jury trials); Commonwealth v. Mazzone, 55 Mass. App. Ct. 345, 348(2002) (jury-waived trials). Counsel have the same duty to make objections to improper questions by a judge as they do when the questions are asked by opposing counsel. Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 72-73(2005). Generally, counsel should make an objection to a question before the answer is given. See Commonwealth v. Baptiste, 372 Mass. 700, 706 (1977). Self-represented litigants are bound by the same rules of procedure as litigants with counsel. Mains v. Commonwealth, 433 Mass. 30, 35-36 (2000). Although the failure to make a timely and adequate objection may waive the right to argue the issue on appeal, the judge may exclude inadmissible evidence without an objection. Commonwealth v. Haley, 363 Mass. 513, 517-518 (1973).
"When objecting, counsel should state the specific ground of the objection unless it is apparent from the context." Marshall, 434 Mass. at 365, quoting P.J. Liacos, Massachusetts Evidence § 3.8.3, at 85 (7th ed. 1999). See Mass. R. Civ. P. 46; Mass. R. Crim. P. 22. The court may ask the party objecting to the admission or exclusion of evidence to state the precise ground for the objection. See Rule 8 of the Rules of the Superior Court. Further argument or discussion of the grounds is not allowed unless the court requests it. Id. The need for an exception has been abolished by Mass. R. Civ. P. 46 and Mass. R. Crim. P. 22.
A motion to strike is used to eliminate an answer that is objectionable either on substantive grounds or on the ground that it is nonresponsive. Pickles, 364 Mass. at 399. When testimony is subject to an objection that is sustained, but not followed by a motion to strike, the issue is not preserved. When an answer is nonresponsive and objectionable, a subsequent objection or a motion to strike is necessary to preserve the issue. Commonwealth v. Womack, 457 Mass. 268, 272-273 (2010); Commonwealth v. Rosado, 59 Mass. App. Ct. 913, 914(2003).
As to the court's instructions to the jury, an objection is necessary to preserve an issue regarding the giving or failure to give an instruction. See Mass. R. Civ. P. 51(b); Mass. R. Crim. P. 24(b). See also Harlow v. Chin, 405 Mass. 697, 703 n.5 (1989); Commonwealth v. Barbosa, 399 Mass. 841, 844 (1987). Counsel should renew any prior objection with specificity following the charge. Fein v. Kahan, 36 Mass. App. Ct. 967, 968 n.4 (1994).
Subsection (a)(2). This subsection is derived from Commonwealth v. Chase, 26 Mass. App. Ct. 578, 581(1988), and Mass. R. Civ. P. 43(c). "Ordinarily, an offer of proof is required to preserve the right to appellate review of the denial of an offer to introduce evidence through the direct examination of a witness." Chase, 26 Mass. App. Ct. at 581. See Motsis v. Ming's Supermkt., Inc., 96 Mass. App. Ct. 371, 381(2019) (issue waived where counsel failed to make offer of proof and expected testimony not clear from context).
The offer of proof should state or summarize the testimony or evidence and show that the proponent would be prejudiced by the exclusion of the offered evidence. Holmgren v. LaLiberte, 4 Mass. App. Ct. 820, 821(1976). The court may consider only so much of the offer of proof that is responsive to the excluded question or evidence and apparently within the witness's knowledge. Coral Gables, Inc. v. Beerman, 296 Mass. 267, 268-269 (1936). An offer of proof that fails to satisfy the statutory or common-law requirements for the admissibility of the evidence will lead to the exclusion of the evidence. See Rockport Granite Co. v. Plum Island Beach Co., 248 Mass. 290, 295 (1924).
An offer of proof is not necessary where the context is clear, see Commonwealth v. Donovan, 17 Mass. App. Ct. 83, 88(1983), or where there is no doubt what the testimony will be, see Commonwealth v. Caldron, 383 Mass. 86, 89 n.2 (1981); Commonwealth v. Smith, 163 Mass. 411, 429 (1895).
If the evidence is excluded on cross-examination, an offer of proof generally need not be made, Stevens v. William S. Howe Co., 275 Mass. 398, 402 (1931), although there is a "relatively rare group of cases where, if the purpose or significance of the question is obscure and the prejudice to the cross-examiner is not clear . . . the record must disclose the cross-examiner's reason for seeking an answer to an excluded question." Breault v. Ford Motor Co., 364 Mass. 352, 358 (1973).
Subsection (b). This subsection is derived from Commonwealth v. Grady, 474 Mass. 715 (2016), in which the Supreme Judicial Court held that,
"[g]oing forward, we dispense with any distinction, at the motion in limine stage, between objections based on constitutional grounds and objections based on other grounds. We will no longer require a defendant to object to the admission of evidence at trial where he or she has already sought to preclude the very same evidence at the motion in limine stage, and the motion was heard and denied."
Id. at 719. See also Commonwealth v. Almele, 474 Mass. 1017 (2016) (decided the same day as Grady ). However, to be safe, the Supreme Judicial Court has recommended that the "better practice" is for a party "to object at trial even if he or she has already raised an objection prior to trial." Almele, 474 Mass. at 1018. See Commonwealth v. Santana, 477 Mass. 610, 620 n.7 (2017) (motion in limine objecting to "tooth mark" evidence based on lack of expert testimony to explain significance does not preserve hearsay objection to investigator's statement that he was told someone may have bitten the duct tape). The court also indicated that judges should no longer engage in the practice of "preserving" or "saving" a party's rights when ruling on a motion in limine because this practice may lull the party into not "voicing a necessary objection at trial." Almele, 474 Mass. at 1019; Grady, 474 Mass. at 721.
Subsection (c). The first sentence is derived from Mass. R. Civ. P. 43(c). As to the second sentence, if the court sustains an objection to a question, the court may permit the witness to answer the question in order to satisfy the need for an offer of proof.
Subsection (d). This subsection is derived generally from Mass. R. Civ. P. 43(c), Mass. R. Civ. P. 51(b), and Mass. R. Crim. P. 24(b). See Commonwealth v. Scullin, 44 Mass. App. Ct. 9, 14(1997) ("[I]t is essential that [the court] take steps to ensure that the jury is not exposed to the questionable evidence before the issue of admissibility is finally decided. Failing to follow this course places the opponent of the evidence in a difficult situation, and may create an unfair advantage for the proponent of the testimony, especially in the event the evidence ultimately is excluded."). See also Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418, 422 (1988). CrossReference: Section 611(a), Mode and Order of Examining Witnesses and Presenting Evidence: Control by the Court.
The court has the discretion to employ any one of several methods to determine preliminary questions while insulating the jury from inadmissible evidence. These methods range from pretrial motions to suppress or motions in limine, to conducting proceedings during trial at sidebar, in chambers, or while the jury is absent from the courtroom. The court also has discretion whether to rule on the admissibility of evidence in advance of the trial by a motion in limine or to wait until the issue arises at trial. See Commonwealth v. Olsen, 452 Mass. 284, 292-293 (2008) (trial judge properly declined to rule in advance on motion in limine to permit defendant to call twenty-two witnesses to testify to the fact that the prosecution's chief witness had a poor reputation in the community for truth-telling, leaving the issue to be decided as it arose with particular witnesses). When a jury has been exposed to inadmissible evidence, the judge should promptly give a curative instruction and ensure the jury does not again hear the inadmissible evidence. Commonwealth v. Paige , 488 Mass. 677, 684 (2021).
Subsection (e). This subsection is derived from R.B., petitioner, 479 Mass. 712, 717 (2018); Commonwealth v. Alphas, 430 Mass. 8, 13 (1999); Commonwealth v. Freeman, 352 Mass. 556, 561-564 (1967); and Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 72-73(2005). See also G. L. c. 278, § 33E.
As stated above, a timely objection at trial is required to preserve an issue for appellate review. If an objection was not made, the appellate court can consider an issue but does so under a limited standard of review. For cases other than capital cases on direct appeal, the appellate court will apply the so-called Freeman standard to unpreserved trial errors and analyze whether the error created a substantial risk of a miscarriage of justice. Alphas, 430 Mass. at 13. The proper standard of review for a noncapital offense is as follows:
"An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not 'materially influence[]' the guilty verdict. In making that determination, we consider the strength of the Commonwealth's case against the defendant (without consideration of any evidence erroneously admitted), the nature of the error, whether the error is 'sufficiently significant in the context of the trial to make plausible an inference that the jury's result might have been otherwise but for the error,' and whether it can be inferred 'from the record that counsel's failure to object was not simply a reasonable tactical decision.'" (Citations and footnotes omitted.)
Id. However, the application of the more stringent standard of review based on counsel's failure to object does not, standing alone, create a substantial risk of a miscarriage of justice. Commonwealth v. Vargas, 475 Mass. 338, 358 n.28 (2016). Under G. L. c. 278, § 33E, in any case in which the defendant was found guilty of murder in the first degree, see Commonwealth v. Francis, 450 Mass. 132, 137 n.5 (2007), the Supreme Judicial Court has a special duty and plenary authority to review the whole case, on the law and the evidence, and may order a new trial or reduce the verdict even in the absence of an objection. See Commonwealth v. Wright, 411 Mass. 678, 682 n.1 (1992). A trial judge may reduce a jury verdict to any lesser included offense "to ensure that the result in every criminal case is consonant with justice." Commonwealth v. Chhim, 447 Mass. 370, 381 (2006); G. L. c. 278, § 11; Mass. R. Crim. P. 25(b)(2). This power, which is designed to rectify a disproportionate verdict, or ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judge's own error, or the interaction of several causes, should be used sparingly. Commonwealth v. Keough, 385 Mass. 314, 316-321 (1982). A judge considering a motion to reduce a verdict may rely on essentially the same considerations as does the Supreme Judicial Court when deciding whether to reduce a verdict to a lesser degree of guilt pursuant to G. L. c. 278, § 33E. Commonwealth v. Pagan, 471 Mass. 537, 543 (2015).
Subsection (f). This subsection is derived from Commonwealth v. Spencer, 465 Mass. 32, 42 (2013).
Purpose. Massachusetts practice encourages the use of motions in limine. Motions in limine are useful to clarify or simplify the issues that need to be addressed prior to trial and to prevent irrelevant, inadmissible, or prejudicial matters from being considered by the trier of fact. See Commonwealth v. Lopez, 383 Mass. 497, 500 n.2 (1981). Such motions should be "narrowly limited to focus on a discrete issue or item of anticipated evidence," and "must not be used to choke off a valid defense in a criminal action, or to 'knock out' the entirety of the evidence supporting a defense before it can be heard by the jury." Commonwealth v. O'Malley, 14 Mass. App. Ct. 314, 324-325(1982). See also Commonwealth v. Hood, 389 Mass. 581, 594 (1983); J.D.H. v. P.A.H., 71 Mass. App. Ct. 285, 290(2008) (court may rely on evidence excluded in motion in limine where moving party later introduces the evidence where it is favorable to nonmoving party). A judge has discretion to reconsider an earlier or previous ruling on a motion in limine. Commonwealth v. Dabney, 478 Mass. 839, 852 (2018).
Timing. While a motion in limine may be filed during trial in advance of the evidence being offered, Spencer, 465 Mass. at 42, there is a preference for filing and ruling on such motions in advance of trial since it may affect counsels' conduct of the trial. See Commonwealth v. Woodbine, 461 Mass. 720, 735 n.21 (2012); Commonwealth v. Diaz, 383 Mass. 73, 81 (1981). In some cases, such as where there are challenges to the reliability of expert witness testimony, a pretrial motion in limine is required to preserve the opposing party's rights. Commonwealth v. Sparks, 433 Mass. 654, 659 (2001). A judge retains the discretion to reserve on a ruling until the evidence is presented at trial.
Illustrations. Cases involving common examples of motions in limine include the following: McLaughlin v. City of Lowell, 84 Mass. App. Ct. 45, 70(2013) (application of collateral estoppel or issue preclusion); Scott v. Garfield, 454 Mass. 790, 802 (2009) (issues relating to collateral source rule and amount of medical bills); N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 360 (2013) (admissibility of data compilations pursuant to G. L. c. 233, § 79B); Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 9 (1998) ( Daubert -type motions relating to admissibility of expert testimony); Croall v. Massachusetts Bay Transp. Auth., 26 Mass. App. Ct. 957, 959(1988) (similar occurrences); and McDaniel v. Pickens, 45 Mass. App. Ct. 63, 67(1998) (evidence of insurance offered to show bias).
A motion in limine may be used to obtain a ruling in advance of trial on whether a statement is subject to the rule against hearsay or whether the probative value of otherwise relevant evidence is substantially outweighed by its prejudicial effect. Spencer, 465 Mass. at 42. A motion in limine is also a useful method for obtaining a ruling on the admissibility of evidence of prior bad acts, see Commonwealth v. Leonard, 428 Mass. 782 (1999), as well as on evidence of prior criminal convictions and the application of the rape-shield law. See Commonwealth v. Harris, 443 Mass. 714 (2005). A motion in limine is commonly used to obtain a ruling in advance of trial on the admissibility of evidence under the first complaint doctrine. See, e.g., Commonwealth v. Aviles, 461 Mass. 60, 63-66 (2011).
Subsection (g). The trial court's ruling on the exclusion of evidence as a sanction is reviewable for an abuse of discretion. Commonwealth v. Sanford, 460 Mass. 441, 445 (2010). Sanctions are to be appropriately tailored to cure prejudice relating to a party's noncompliance with its discovery obligations and to ensure a fair trial. Commonwealth v. Carney, 458 Mass. 418, 427-428 (2010). Factors to be considered include the prevention of surprise, the effectiveness of sanctions short of exclusion of evidence, the presence or absence of bad faith, the prejudice to the nonoffending party, and the materiality of the evidence. Commonwealth v. Reynolds, 429 Mass. 388, 398 (1999). But see Commonwealth v. Giontzis, 47 Mass. App. Ct. 450, 462-463(1999) (not prejudicial error to allow Commonwealth's undisclosed rebuttal witness to testify even though there was evidence of surprise and bad faith).
Generally, the judge should impose the least severe sanction necessary to remedy the prejudice to the innocent party; dismissal with prejudice is a remedy of last resort. Commonwealth v. Edwards, 491 Mass. 1, 9 (2022); Keene v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 235 (2003). See Wiedmann v. Bradford Group, Inc., 444 Mass. 698, 704-705 (2005) (oral testimony may be excluded as sanction for destruction of supporting documents). Exclusion of evidence as a sanction need not be based on an intentional act, but there must be some fault attributable to the sanctioned party. Kippenhan v. Chaulk Servs., Inc., 428 Mass. 124, 127 (1998).
While a trial judge may exclude expert testimony for failure to comply with discovery, the judge must consider other options, including a sua sponte continuance of the trial or an order for a deposition of the late-identified expert. Morgan v. Jozus, 67 Mass. App. Ct. 17, 24(2006). A pretrial motion to compel is not a prerequisite for relief for the innocent party. Mohamed v. Fast Forward, Inc., 41 Mass. App. Ct. 643, 648(1996).
Section 1102, Spoliation or Destruction of Evidence; Mass. R. Crim. P. 14(c); Mass. R. Civ. P. 37.