Mass. R. Evid. 611
The court has discretion to admit evidence conditionally upon the representation that its relevancy will be established by evidence offered subsequently.
Mass. Guid. Evid. 611
Subsection (a). This subsection is derived from Commonwealth v. Rooney, 365 Mass. 484, 496 (1974); Goldman v. Ashkins, 266 Mass. 374, 380 (1929); Chandler v. FMC Corp., 35 Mass. App. Ct. 332, 338 (1993); and Albano v. Jordan Marsh Co., 2 Mass. App. Ct. 304, 311 (1974). See Commonwealth v. Edward, 75 Mass. App. Ct. 162, 171 n.12 (2009) (closing courtroom to the public during any portion of a trial implicates defendant's constitutional rights and must be preceded by a hearing and adequate findings of fact). The judge's discretion to impose reasonable limits on the length of the direct and cross-examination of witnesses does not permit the judge to impose arbitrary time limits that prevent a party from presenting its case. Chandler, 35 Mass. App. Ct. at 338. See also Commonwealth v. Conley, 34 Mass. App. Ct. 50, 59-60 & n.4 (1993) (improper for court to systematically screen a party's direct evidence at sidebar before witnesses are permitted to be called).
Evidence may be conditionally admitted (admitted de bene) upon the representation of counsel that additional evidence will be produced providing the foundation for the evidence offered. Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 485 n.4 (2004). See Commonwealth v. Perry, 432 Mass. 214, 234-235 (2000). In the event that the foundation evidence is not subsequently produced, the court has no duty to strike the evidence admitted de bene on its own motion. Commonwealth v. Sheppard, 313 Mass. 590, 595-596 (1943). If the objecting party fails to move to strike the evidence, the court's failure to strike it is not error. Muldoon v. West End Chevrolet, Inc., 338 Mass. 91, 98 (1958). See Commonwealth v. Navarro, 39 Mass. App. Ct. 161, 166 (1995). See Section 104(b), Preliminary Questions: Relevance That Depends on a Fact.
A self-represented litigant is bound by the same rules as those that guide attorneys. International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 847 (1983). However, "[w]hether a party is represented by counsel at a trial or represents himself, the judge's role remains the same. The judge's function at any trial is to be 'the directing and controlling mind at the trial, and not a mere functionary to preserve order and lend ceremonial dignity to the proceedings'" (citations omitted). Commonwealth v. Sapoznik, 28 Mass. App. Ct. 236, 241-242 n.4 (1990), quoting Commonwealth v. Wilson, 381 Mass. 90, 118 (1980). See also Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants, at https://perma.cc/MT78-G6WU.
Subsection (b)(1).
In General. The first sentence of this subsection is derived from Beal v. Nichols, 68 Mass. 262, 264 (1854); Davis v. Hotels Statler Co., 327 Mass. 28, 29-30 (1951); and Commonwealth v. Taylor, 32 Mass. App. Ct. 570, 575 (1992). It reflects the Massachusetts practice of permitting cross-examination on matters beyond the subject matter of the direct examination. See Nuger v. Robinson, 32 Mass. App. Ct. 959, 959-960 (1992). Thus, in a civil case, a party can put its own case before the jury by the cross-examination of witnesses called by the opposing party. See Moody v. Rowell, 34 Mass. 490, 499 (1835).
Criminal Cases. Defendants have the right to confront and cross-examine the witnesses against them under both the Sixth Amendment to the United States Constitution and Article 12 of the Declaration of Rights. Commonwealth v. Garcia, 470 Mass. 24, 35 (2014). See Commonwealth v. Sealy, 467 Mass. 617, 623-625 (2014); Commonwealth v. Farley, 443 Mass. 740, 748 (2005); Commonwealth v. Vardinski, 438 Mass. 444, 449-451 (2003); Commonwealth v. Tanso, 411 Mass. 640, 650 (1992). "[A] suppression hearing constitutes a critical stage of a criminal proceeding, in which the defendant enjoys a right to confrontation." Vazquez Diaz v. Commonwealth, 487 Mass. 336, 347 (2021). But see Id. at 347-349 (discussing use of videoconferencing platform to conduct virtual evidentiary hearing in the unique circumstances of the COVID-19 pandemic). See also Commonwealth v. Bergstrom, 402 Mass. 534, 541-551 (1988) (discussing defendant's right to "face-to-face" confrontation under Article 12).
Fairness to the Commonwealth. The Commonwealth has a common-law right to reasonable cross-examination of witnesses called by the defendant. See Commonwealth v. Gagnon, 408 Mass. 185, 192 (1990). See also Commonwealth v. Lawton, 82 Mass. App. Ct. 528, 537-538 (2012).
Reasonable and Good-Faith Basis for Cross-Examination. The second sentence of this subsection is derived from Commonwealth v. Johnston, 467 Mass. 674, 699 (2014); Commonwealth v. Jenkins, 458 Mass. 791, 795 (2011); and Commonwealth v. Christian, 430 Mass. 552, 561 (2000), overruled on other grounds by Commonwealth v. Paulding, 438 Mass. 1 (2002). For examples of cross-examination without an adequate basis, see Commonwealth v. Cruzado, 480 Mass. 275, 281 (2018) (improper to cross-examine on whether witness was known cocaine dealer when only evidence of drug dealing was an arrest for possession of heroin three years before crime); Commonwealth v. McCoy, 59 Mass. App. Ct. 284, 289 (2003) ("prosecutor should not have been allowed to impugn the defendant's character by insinuating his knowing intimacy with a drug criminal, particularly when that alleged criminality was never established"); and Commonwealth v. Brissett, 55 Mass. App. Ct. 862, 864-865 (2002) (lack of necessary foundation for cross-examination of defendant and defendant's alibi witness about why they had not come forward earlier).
There is no requirement that the cross-examiner be prepared to present admissible evidence to support a question. Commonwealth v. McGann, 484 Mass. 312, 322 (2020); Commonwealth v. White, 367 Mass. 280, 284 (1975) (prosecutor was permitted to cross-examine witness about statements made to him by witness, even though he could not offer substantive evidence of statements without withdrawing from case and becoming a witness himself). However, the trial judge may require counsel to disclose the basis for a question to the judge and may curtail further questioning in the face of a witness's consistent denials. See McGann, 484 Mass. at 323; Commonwealth v. Johnson, 441 Mass. 1, 4-5 (2004). For other cases addressing the problem of cross-examination by innuendo, see Commonwealth v. Knowles, 92 Mass. App. Ct. 617, 620 (2018), and Commonwealth v. Delrio, 22 Mass. App. Ct. 712, 721 (1986).
Impeachment by Prearrest Silence. "[I]mpeachment of a defendant with the fact of his pre-arrest silence should be approached with caution, and, whenever it is undertaken, it should be prefaced by a proper demonstration that it was 'natural' to expect the defendant to speak in the circumstances" "the use of [pretrial silence] for impeachment purposes cannot be justified in the absence of unusual circumstances." Commonwealth v. Nickerson, 386 Mass. 54, 62 & n.6 (1982). See Commonwealth v. Correia, 492 Mass. 220, 235 (2023) (despite defendant's claim of self-defense, improper for prosecutor to ask defendant about failure to contact police after he stabbed victim, where he "had no obvious incentive to speak to police at the time of the incident or thereafter"); Commonwealth v. Gardner, 479 Mass. 764, 772 (2018) (despite the fact that self-defense was asserted four days after the arrest, the prosecutor's reference to the defendant's prearrest silence was improper); Commonwealth v. Sanders, 101 Mass. App. Ct. 503, 513-514 (2022) (improper to argue inference of guilt from defendant's failure to call 911; unclear it would have been "natural" for defendant to make call, and there was "limited opportunity" for call between time of shooting and arrival of police at his home).
Before a witness for the defense may be impeached for not coming forward and disclosing to the police or the prosecutor exculpatory information before the trial, prosecutors are required to lay a foundation by establishing (1) that the witness knew of the pending charges in sufficient detail to realize that the witness possessed exculpatory information, (2) that the witness had reason to make the information available, and (3) that the witness was familiar with the means of reporting it to the proper authorities. See Commonwealth v. Horne, 466 Mass. 440, 447-449 (2013); Commonwealth v. Washington, 459 Mass. 32, 42-43 (2011); Commonwealth v. Hart, 455 Mass. 230, 239-240 (2009).
Credibility of Other Witnesses. "[A] witness cannot be asked to assess the credibility of his testimony or that of other witnesses." Commonwealth v. Dickinson, 394 Mass. 702, 706 (1985). In cases tried to a jury and involving a "duel of credibility," repeated questions asking the defendant to comment on the truthfulness of another witness is prejudicial error. Commonwealth v. Triplett, 398 Mass. 561, 567 (1986). See Commonwealth v. Long, 17 Mass. App. Ct. 707, 708 (1984); Commonwealth v. Ward, 15 Mass. App. Ct. 400, 401 (1983).
Judicial Discretion to Limit Cross-Examination. The third sentence of this subsection is derived from the following cases: Commonwealth v. Mercado, 456 Mass. 198, 202-204 (2010); Commonwealth v. Clifford, 374 Mass. 293, 305 (1978); Commonwealth v. Smith, 329 Mass. 477, 479 (1952); and Guinan v. Famous Players-Lasky Corp., 267 Mass. 501, 523 (1929). See also Commonwealth v. Rooney, 365 Mass. 484, 496 (1974) (trial judge has "power to keep the examination of witnesses within the limits of common decency and fairness," and "duty to exercise that power promptly and firmly when it becomes necessary to do so"); Fialkow v. DeVoe Motors, Inc., 359 Mass. 569, 572 (1971) ("The trial judge, with the benefit of his presence in a vantage position when the alleged improper statement or argument is made, is in the best position to decide what corrective measures, if any, are required and when they should be taken."). Cross-Reference: Section 412, Sexual Behavior or Sexual Reputation (Rape-Shield Law).
The trial judge also has the right to limit cross-examination when necessary to protect the safety of the witness. See Commonwealth v. Francis, 432 Mass. 353, 357-358 (2000). See also Note "Address of Witness" to Section 501, Privileges Recognized Only as Provided. When due to a witness's lack of cooperation or the assertion of the privilege against self-incrimination the defendant is prevented from cross-examining a witness, the judge may be required to strike the direct testimony of that witness. Commonwealth v. Santiago, 30 Mass. App. Ct. 207, 221 (1991).
For cases in which a judge failed to properly exercise discretion, see Commonwealth v. Reynolds, 429 Mass. 388, 391-392 (1999) (conviction reversed because scope of cross-examination of police officers too limited; "[i]t is well settled that a defendant has a right to expose inadequacies of police investigation"); Commonwealth v. Miles, 420 Mass. 67, 72-73 (1995) (judge erred in preventing defendant from cross-examining police officer about other suspects in circumstances where rape victim did not see perpetrator's face); and Commonwealth v. Murphy, 57 Mass. App. Ct. 586, 589 (2003) ("Trials are a search for truth, not socialized stonings. Consequently, witnesses must not be subjected to questions that go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate.").
The defendant's right to confrontation is not denied when, on cross-examination, a witness refuses to answer questions relating exclusively to collateral matters. See Commonwealth v. Dwyer, 10 Mass. App. Ct. 707, 713 (1980). Compare Commonwealth v. Almeida, 452 Mass. 601, 607 (2008) (defendant was not denied his right to confront a key identification witness who was unable to recall numerous details; "[i]t was entirely reasonable for the witness to have no memory of some of the information sought by many of the questions"), and Commonwealth v. Amirault, 404 Mass. 221, 234-235 (1989) (lapse of memory by witness on cross-examination did not deny defendant right to confrontation), with Commonwealth v. Funches, 379 Mass. 283, 292 (1979) (trial judge was required to strike witness's direct testimony when witness asserted privilege against self-incrimination during cross-examination), and Commonwealth v. Johnson, 365 Mass. 534, 543-544 (1974) (defendant denied right to confrontation when judge, concerned for safety of witness, ordered witness to not answer questions on cross-examination).
Section 405(a), Methods of Proving Character: By Reputation; Section 1113(b)(3)(E), Opening Statement and Closing Argument; Applicable to Criminal and Civil Cases: Closing Argument: Improper Argument.
Subsection (b)(2). This subsection is derived from Commonwealth v. Martinez, 384 Mass. 377, 380-381 (1981); Commonwealth v. Michel, 367 Mass. 454, 459 (1975); and Commonwealth v. Russ, 232 Mass. 58, 79 (1919).
"[W]here . . . facts are relevant to a showing of bias or motive to lie, any general evidentiary rule of exclusion must give way to the constitutionally based right of effective cross-examination." Commonwealth v. Joyce, 382 Mass. 222, 231 (1981), citing Davis v. Alaska, 415 U.S. 308, 316-318 (1974), and Chambers v. Mississippi, 410 U.S. 284 (1973). "A judge may not restrict crossexamination of a material witness by foreclosing inquiry into a subject that could show bias or prejudice on the part of the witness." Commonwealth v. Aguiar, 400 Mass. 508, 513 (1987). See Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 186-189 (2013). This right applies with special force whenever there is evidence that the testimony of a witness is given in exchange for some anticipated consideration or reward by the government, see Commonwealth v. Barnes, 399 Mass. 385, 392 (1987); Commonwealth v. O'Neil, 51 Mass. App. Ct. 170, 178-181 (2001), or when it concerns the subject of identification. See Commonwealth v. Vardinski, 438 Mass. 444, 450 (2003).
However, the trial judge has considerable discretion to limit such cross-examination when it becomes redundant or touches on matters of tangential materiality. See Commonwealth v. Dufresne, 489 Mass. 195, 209 (2022); Commonwealth v. Parent, 465 Mass. 395, 405-406 (2013). See also Commonwealth v. Durand, 475 Mass. 657, 662-663 (2016) (court found that judge's ruling prohibiting defendant's cross-examination of expert concerning e-mail message was not abuse of discretion where defendant argued e-mail message was basis of expert's termination from his position with chief medical examiner's office).
Immigration Status. A judge may properly prohibit cross-examination of government witnesses about their citizenship or immigration status as irrelevant to bias where, in response to preliminary questioning, they state they have not discussed their status with government officials prior to testifying. Commonwealth v. Chicas, 481 Mass. 316, 318-322 (2019).
Subsection (c). This subsection is derived from G. L. c. 233, § 22; Carney v. Bereault, 348 Mass. 502, 510 (1965); and Mass. R. Civ. P. 43(b). "[T]he decision whether to allow leading questions should be left for the most part to the wisdom and discretion of the trial judge instead of being restricted by the mechanical operation of inflexible rules" (citations and quotation omitted). Commonwealth v. Flynn, 362 Mass. 455, 467 (1972). See Commonwealth v. Monahan, 349 Mass. 139, 162-163 (1965) (rulings on whether witness is hostile and whether party calling the witness may ask leading questions are within discretion of trial judge). Some judges in Massachusetts require that when the subject of the cross-examination enters material not covered on direct, the attorney should no longer use leading questions.
Although as a general rule leading questions should not be used on direct examination, there are many instances where they are permitted in the discretion of the judge. See, e.g., DiMarzo v. S. & P. Realty Corp., 364 Mass. 510, 512 (1974) (refresh memory); Commonwealth v. Aronson, 330 Mass. 453, 460 (1953) (witness under stress); Gray v. Kelley, 190 Mass. 184, 187 (1906) (elderly witness); Commonwealth v. Lamontagne, 42 Mass. App. Ct. 213, 217-218 (1997) (child witness).
The use of leading questions on direct examination of an adverse party is authorized by statute. G. L. c. 233, § 22 ("A party who calls the adverse party as a witness shall be allowed to cross-examine him. In case the adverse party is a corporation, an officer or agent thereof, so called as a witness, shall be deemed such an adverse party for the purposes of this section."); Mass. R. Civ. P. 43(b) ("A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party."). When a party calls an adverse witness, that party may inquire by means of leading questions. See Mass. R. Civ. P. 43(b). Cf. G. L. c. 233, § 22. However, such examination is limited by G. L. c. 233, § 23, concerning impeachment of one's own witness. See Walter v. Bonito, 367 Mass. 117, 122 (1975). If a party is called as an adverse witness by opposing counsel, the trial judge has discretion to permit leading questions on cross-examination. See Westland Hous. Corp. v. Scott, 312 Mass. 375, 383-384 (1942). See also G. L. c. 119, § 21A (the examination of an investigator "shall be conducted as though it were on cross-examination").
Subsection (d). This subsection is derived from Commonwealth v. Roberts, 433 Mass. 45, 51 (2000), and Commonwealth v. Guidry, 22 Mass. App. Ct. 907, 909 (1986). A party may not present rebuttal evidence that only "supports a party's affirmative case." Drake v. Goodman, 386 Mass. 88, 92 (1982). In other words, a party may not "present one theory of causation in his case-in-chief and, as a matter of right, present a different theory of causation in rebuttal." Id. at 93. This is especially true when a party is aware of the evidence prior to trial and could have presented it as part of the case-in-chief. Id.
Subsection (e). This subsection is derived from Commonwealth v. Maltais, 387 Mass. 79, 92 (1982) (redirect examination), and Commonwealth v. O'Brien, 419 Mass. 470, 476 (1995) (recross-examination). The purpose of redirect examination is to explain or rebut adverse testimony or inferences developed during cross-examination. Commonwealth v. Samia, 492 Mass. 135, 152 (2023). See Commonwealth v. Andrade, 468 Mass. 543, 549-550 (2014) (holding that on redirect examination of an immunized witness who had been impeached on cross-examination about lying to the police and to the grand jury, it was appropriate over objection to permit the prosecutor to ask the witness whether he "told the truth to the jury today about what [the defendant] told [him] about the murder of [the victim]" and explaining that, viewed in context, the prosecutor was not asking the witness to comment on his own credibility, but instead to rebut the implication of the cross-examination that the witness's testimony was false). Cf. Mass. R. Dom. Rel. P. 43(b).
Subsection (f). This subsection is derived from Kerr v. Palmieri, 325 Mass. 554, 557 (1950) ("As a general proposition, the granting of a motion to permit additional evidence to be introduced after the trial has been closed rests in the discretion of the trial judge."). See also Commonwealth v. Moore, 52 Mass. App. Ct. 120, 126-127 (2001) ("We also add that the decision whether to reopen a case is one that cannot be made in an arbitrary or capricious manner. It would be a wise practice in the future for trial judges to place on the record their reasons for exercising their discretion either for or against reopening the case.").
Criminal Cases. The constitutional rights of the defendant in a criminal case limit the discretion of the court to allow the Commonwealth to reopen. It is only within the court's discretion
"to permit reopening when mere inadvertence or some other compelling circumstance . . . justifies a reopening and no substantial prejudice will occur. If the court in the exercise of cautious discretion allows the prosecution to reopen its case before the defendant begins its defense, that reopening does not violate either the rules of criminal procedure or the defendant's right not to be put twice in jeopardy."
Commonwealth v. Cote, 15 Mass. App. Ct. 229, 241 (1983), quoting United States v. Hinderman, 625 F.2d 994, 996 (10th Cir. 1980). See Commonwealth v. Costa, 88 Mass. App. Ct. 750, 753-755 (2015) (trial judge properly permitted Commonwealth to reopen its case and present additional evidence regarding breathalyzer accuracy where defendant had deliberately concealed basis for his objection to results, thus depriving prosecution of opportunity to address factual basis for challenge in first instance). Compare Commonwealth v. Hurley, 455 Mass. 53, 68 (2009) (where police officer had gestured at and nodded to the defendant during his testimony, but had not formally identified the defendant on the record, trial judge did not err in permitting the Commonwealth to reopen its case to offer this minimal identification evidence), with Commonwealth v. Zavala, 52 Mass. App. Ct. 770, 779 (2001) (trial judge committed prejudicial error in allowing the Commonwealth to reopen its case to prove an essential element of the offense, previously neglected, where the burden of proving that element was clearly the Commonwealth's and the omission was identified by the defendant's motion). See also Hurley, 455 Mass. at 68, for a survey of cases.
Subsection (g)(1). This subsection is derived from Fanciullo v. B.G. & S. Theatre Corp., 297 Mass. 44, 51 (1937); Gurman v. Stowe-Woodward, 302 Mass. 442, 448 (1939); and Goddard v. Goucher, 89 Mass. App. Ct. 41, 45 (2016). See Mass. R. Civ. P. 36(b) (effect of admissions). See also Commonwealth v. Buswell, 468 Mass. 92, 104-105 (2014) (where rationale for stipulation changes, court has discretion to relieve a party of the stipulation); Loring v. Mercier, 318 Mass. 599, 601 (1945) (court "may vacate a stipulation made by the parties if it is deemed improvident or not conducive to justice").
In Mitchell v. Walton Lunch Co., 305 Mass. 76, 80 (1939), the court observed that "[n]othing is more common in practice or more useful in dispatching the business of the courts than for counsel to admit undisputed facts." Brocklesby v. City of Newton, 294 Mass. 41, 43 (1936).
A stipulation may affect the standard of review on appeal. See Commonwealth v. Phoenix, 409 Mass. 408, 420 (1991) (stipulation as to the admissibility of scientific evidence). A stipulation may bind a party in subsequent trials. Household Fuel Corp. v. Hamacher, 331 Mass. 653, 656-657 (1954).
Binding Admissions. A binding admission, sometimes referred to as a judicial admission, "is a proposition of fact in the form of acts or declarations during the course of judicial proceedings which conclusively determine an issue." Wood v. Roy Lapidus, Inc., 10 Mass. App. Ct. 761, 765 (1980). It is binding on the party making it. Quinn v. Mar-Lees Seafood, LLC, 69 Mass. App. Ct. 688, 697 (2007). A judicial admission "relieve[s] the other party of the necessity of presenting evidence on that issue" (quotation omitted). General Elec. Co. v. Board of Assessors of Lynn, 393 Mass. 591, 603 n.8 (1984). A judicial admission does not require an agreement between the parties, but may arise whenever "a party causes the judge to understand that certain facts are admitted or that certain issues are waived or abandoned." Dalton v. Post Publ. Co., 328 Mass. 595, 599 (1952). In a civil case, a party or a party's authorized agent, such as a party's lawyer, is authorized to make statements of fact that may be deemed judicial admissions. Turners Falls Ltd. Partnership v. Board of Assessors of Montague, 54 Mass. App. Ct. 732, 737 (2002). A judicial admission may take the form of statements of fact made in pleadings, G. L. c. 231, § 87; a statement made in an opening, see Beaumont v. Segal, 362 Mass. 30, 32 (1972); or a response to a request for admissions under Mass. R. Civ. P. 36(b). See also Quinn, 69 Mass. App. Ct. at 697 (party's testimony as to facts peculiarly within his knowledge is binding). However, the testimony of a party's expert witness is not a judicial admission. Turners Falls Ltd. Partnership, 54 Mass. App. Ct. at 738.
A judge has discretion to relieve a party from the binding effect of a judicial admission that was the consequence of inadvertence and may permit a party to introduce corrective evidence. Id. at 737. See also Mass. R. Civ. P. 36. When a party delays seeking relief until trial has commenced, Rule 36(b) impliedly adopts a stricter standard of preventing "manifest injustice." Reynolds Aluminum Bldg. Prods. Co. v. Leonard, 395 Mass. 255, 260 n.9 (1985). An admission that is not amended or withdrawn cannot be "ignored by the court even if the party against whom it is directed offers more credible evidence" (citations omitted). Houston v. Houston, 64 Mass. App. Ct. 529, 533 (2005).
Nonbinding Admissions. A nonbinding admission, sometimes referred to as an evidentiary admission, is the "conduct of a party while not on the stand used as evidence against him at trial. The conduct may be in the form of an act, a statement, or a failure to act or make a statement." General Elec. Co. v. Board of Assessors of Lynn, 393 Mass. 591, 603 (1984). Evidentiary admissions, unlike judicial admissions, are not binding on a party, and a party may offer evidence that is inconsistent with an evidentiary admission. Id. "Unlike most prior inconsistent statements, an evidentiary admission is admissible for substantive purposes, not merely on the narrow issue of credibility." Id. Thus, the jury or fact finder can find that a fact is true on the basis on an evidentiary admission. Evidentiary admissions include answers to deposition questions, see Mass. R. Civ. P. 32(a)(2), and answers to interrogatories, see G. L. c. 231, § 89.
Cross-Reference: Section 801(d)(2)(C)-(D), Definitions: Statements That Are Not Hearsay: An Opposing Party's Statement.
Subsection (g)(2). This subsection is derived from Commonwealth v. Ortiz, 466 Mass. 475, 476, 481-487 (2013) ("in future cases, it will be incumbent on the Commonwealth to ensure that any stipulation concerning the existence of an element of the crime charged or of any material fact related to the proof of the crime is presented in some manner to the jury as part of the evidence of the case"), and Mass. R. Crim. P. 23, as amended, 471 Mass. 1501 (2015). Rule 23(a) requires that a stipulation to facts constituting an essential element of a charged offense in a criminal case must be in writing; signed by the defendant, defense counsel, and the prosecutor; and read to the jury before the close of the Commonwealth's case. The stipulation may also be introduced into evidence. See Commonwealth v. Kurko, 95 Mass. App. Ct. 719, 721-723 (2019) (reversal required where Commonwealth failed to introduce stipulation of existence of harassment order, that it was in effect at time of violation, and that defendant was served with order). Stipulations to facts that, while material, are not sufficient to prove an essential element of a charged offense are subject to less formal treatment. See Mass. R. Crim. P. 23(b) ("Any other stipulation shall be placed on the record before the close of evidence and may be read or otherwise communicated to the jury or introduced into evidence in the discretion of the court."). This less formal treatment also applies to stipulations to "evidentiary facts, such as those necessary to authenticate a document or to qualify a witness as an expert." Reporters' Notes to Mass. R. Crim. P. 23.