Mass. R. Evid. 608
Mass. Guid. Evid. 608
Subsection (a). This subsection is derived from Commonwealth v. Dockham, 405 Mass. 618, 631 (1989), and Commonwealth v. Daley, 439 Mass. 558, 563 (2003). Cf. Daley, 439 Mass. at 562-563 (evidence of person's bad character generally inadmissible to prove action in conformity therewith); Section 404, Character Evidence; Crimes or Other Acts.
Unlike under Federal law, character for truthfulness cannot be proven by evidence of personal opinions or isolated acts. See Commonwealth v. Walker, 442 Mass. 185, 197-198 (2004) (declining to adopt original Proposed Mass. R. Evid. 405[a]); Commonwealth v. Benjamin, 430 Mass. 673, 678 n.6 (2000). Reputation evidence must be based on one's reputation in the community or at the person's place of work or business. Walker, 442 Mass. at 198. See G. L. c. 233, § 21A (work or business); Commonwealth v. Dockham, 405 Mass. at 631 (community). A witness's testimony must be based on the witness's knowledge of the person's reputation in the community, not of the opinions of a limited number of people. Commonwealth v. LaPierre, 10 Mass. App. Ct. 871, 871(1980). See Commonwealth v. Phachansiri, 38 Mass. App. Ct. 100, 109(1995); Commonwealth v. Gomes, 11 Mass. App. Ct. 933, 933-934(1981).
The provision regarding testimony of the witness's reputation for having a character for truthfulness or untruthfulness is derived from Commonwealth v. Favorito, 9 Mass. App. Ct. 138, 140(1980). "Evidence irrelevant to the issue at trial or to the witness's reputation for truth and veracity is inadmissible to impeach a witness." Commonwealth v. Cancel, 394 Mass. 567, 572 (1985).
The provision limiting the admissibility of evidence of truthful character until after the witness's character for truthfulness has been attacked is derived from Commonwealth v. Sheline , 391 Mass. 279, 288 (1984), and Commonwealth v. Grammo, 8 Mass. App. Ct. 447, 455(1979). This limitation does not restrict the right of a defendant in a criminal case to offer evidence of the defendant's reputation for a character trait that would suggest that the defendant is not the type of person who would commit the crime charged. See Section 404(a)(2)(A), Character Evidence; Crimes or Other Acts: Character Evidence: Exceptions for a Defendant or Victim in a Criminal Case. Neither "the offering of testimony that contradicts the testimony of a witness" nor "the introduction of prior out-of-court statements of a witness constitute[s] an attack on the witness's character for truthfulness," because "[t]he purpose and only direct effect of the evidence are to show that the witness is not to be believed in [that] instance." Sheline, 391 Mass. at 288-289.
Subsection (b). This subsection is derived from Commonwealth v. LaVelle, 414 Mass. 146, 151 (1993), and Commonwealth v. Bregoli, 431 Mass. 265, 275 (2000). This applies whether or not the witness is a party, Commonwealth v. Binkiewicz, 342 Mass. 740, 755 (1961), and whether the witness is impeached by cross-examination, Commonwealth v. Turner, 371 Mass. 803, 810 (1977), or by the introduction of extrinsic evidence, LaVelle, 414 Mass. at 151. On several occasions, the Supreme Judicial Court has declined to adopt Fed. R. Evid. 608(a) and Proposed Mass. R. Evid. 608(b), which permit inquiry into the details of prior instances of misconduct if probative of the witness's character for veracity. See Commonwealth v. Lopes, 478 Mass. 593, 606 (2018) (police officer's conduct from internal affairs investigation five years earlier was not admissible as specific instance of misconduct); Commonwealth v. Almonte, 465 Mass. 224, 241 (2013).
The Supreme Judicial Court has "chiseled" a narrow exception to the rule that the testimony of a witness may not be impeached with specific acts of prior misconduct, recognizing that in special circumstances the interest of justice would forbid its strict application. LaVelle, 414 Mass. at 151-152. In Commonwealth v. Bohannon, 376 Mass. 90, 94-96 (1978), the special circumstances warranting evidence of the prior accusations were that (1) the witness was the victim in the case on trial; (2) the victim/witness's consent was the central issue at trial; (3) the victim/witness was the only Commonwealth witness on the issue of consent; (4) the victim/witness's testimony was inconsistent and confused; and (5) there was a basis in independent third-party records for concluding that the victim/witness's prior accusation of the same type of crime had been made and was false. Not all of the Bohannon circumstances must be present for the exception to apply. Commonwealth v. Nichols, 37 Mass. App. Ct. 332, 337(1994).
If a police officer's credibility is a critical issue at trial, the judge has the discretion, in the interest of justice, to admit evidence of specific instances of the officer's false statements in prior, unrelated matters. Matter of a Grand Jury Investigation, 485 Mass. 641, 651-652 (2020). In such circumstances,
"a judge, in deciding whether to allow a police officer witness in the interest of justice to be impeached with prior misconduct, may consider the age of the prior misconduct, the strength of the evidence of the misconduct and the simplicity of establishing it, and whether the prior misconduct is probative of how the officer conducts police investigations."
Id. at 652. Compare Commonwealth v. Lopes, 478 Mass. 593, 606 (2018) (police officer's suspension for lying in internal affairs investigation on personal matter was not material to homicide investigation where it took place five years before the homicide, did not result in criminal charge or conviction, and was not related to how officer conducted police investigations), with Matter of a Grand Jury Investigation, 485 Mass. at 643-644 (video footage of arrest was inconsistent with police officers' use-of-force reports, officers who filed reports admitted reports were false, and arresting officer was indicted). Finally, the Supreme Judicial Court's conclusion in Lopes that the trial judge did not abuse his discretion in barring impeachment "does not mean that it would have been an abuse of discretion for the judge to have admitted such evidence." Matter of a Grand Jury Investigation, 485 Mass. at 652 n.12, citing Lopes, 478 Mass. at 606.