Mass. R. Evid. 402

As amended through August 3, 2023
Section 402 - General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provides otherwise:

(a) the United States Constitution,
(b) the Massachusetts Constitution,
(c) a statute, or
(d) other provisions of the Massachusetts common law of evidence.

Irrelevant evidence is not admissible.

Mass. Guid. Evid. 402

This Guide was last amended effective 1/1/2023.

This section is derived from Commonwealth v. DelValle, 443 Mass. 782, 793 (2005), and Commonwealth v. Owen, 57 Mass. App. Ct. 538, 547(2003). Unless relevant, evidence will not be admitted because it does not make a fact in dispute more or less probable than it would be without the evidence. See Commonwealth v. Seabrooks, 425 Mass. 507, 512 n.7 (1997). But the converse is not true, which is to say that not all relevant evidence will be admitted. See Commonwealth v. Vitello , 376 Mass. 426, 440 (1978) ("all relevant evidence is admissible unless barred by an exclusionary rule"); Poirier v. Plymouth, 374 Mass. 206, 210 (1978) (same). See also Tocci v. Tocci , 490 Mass. 1, 10 (2022) (in bifurcated trial, not abuse of discretion for judge in second trial to decline to provide jury with factual findings made by judge who decided first trial where some findings were not relevant and some, though relevant, might confuse or prejudice jury).

Relevant evidence may be excluded for any number of reasons. See, e.g., G. L. c. 233, § 20 (evidence of a private conversation between spouses is inadmissible); Commonwealth v. Kater, 432 Mass. 404, 416-417 (2000) (hypnotically aided testimony is not admissible); Commonwealth v. Harris, 371 Mass. 462, 467-468 (1976) (constitutional mandate forbids admission of a coerced confession regardless of its relevance); Commonwealth v. Kartell, 58 Mass. App. Ct. 428, 432(2003) (relevant evidence excluded on grounds it was too remote). "Alleged defects in the chain of custody usually go to the weight of the evidence and not its admissibility." Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 230 (1992); Section 403, Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons (relevant evidence may be excluded if its probative value is substantially outweighed by the risk of unfair prejudice, confusion, etc.). There may be circumstances where portions of documentary evidence should be excluded or redacted to protect personal privacy. See Matter of the Enforcement of a Subpoena, 436 Mass. 784, 794 (2002).

Although pleadings are inadmissible under G. L. c. 231, § 87, the admissibility of any document attached to a pleading is governed by the ordinary rules of evidence. Care & Protection of Doretta, 101 Mass. App. Ct. 584, 591(2022).

For illustrations of the rule barring the admission of irrelevant evidence, see Commonwealth v. Mason, 485 Mass. 520, 534-535 (2020) (decision of defendant or witness to consult attorney not probative of guilt or anything else defendant or witness may have done); Commonwealth v. Santana, 101 Mass. App. Ct. 690, 694(2022) (defendant's immigration status not relevant to question of whether he committed crime); and Commonwealth v. Hampton, 91 Mass. App. Ct. 852, 854-855(2017) (use of adult pornography "wholly irrelevant" to prove charges of sexual assault on child).

Note "Address of Witness" to Section 501, Privileges Recognized Only as Provided.