Mass. R. Evid. 801
The following definitions apply under this Article:
Mass. Guid. Evid. 801
Subsection (a). This subsection is taken from Commonwealth v. Baker, 20 Mass. App. Ct. 926, 928 n.3 (1985), quoting with approval the definition of a "statement" contained in Fed. R. Evid. 801(a) and Proposed Mass. R. Evid. 801(a).
To be hearsay, the statement, whether verbal or nonverbal, must be intended as an assertion. See Bacon v. Charlton, 61 Mass. 581, 586 (1851) (distinguishing between groans and exclamations of pain, which are not hearsay, and anything in the nature of narration or statement). Cf. Commonwealth v. DeJesus, 87 Mass. App. Ct. 198, 201-202(2015) (checkmarks on photocopies of currency made to indicate a match with bills in defendant's pocket are hearsay when offered to prove the match).
"[C]onduct can serve as a substitute for words, and to the extent it communicates a message, hearsay considerations apply." Commonwealth v. Gonzalez, 443 Mass. 799, 803 (2005). "[O]ut-of-court conduct, which by intent or inference expresses an assertion, has been regarded as a statement and therefore hearsay if offered to prove the truth of the matter asserted. See Bartlett v. Emerson, [73 Mass. 174, 175-176] (1856) (act of pointing out boundary marker inadmissible hearsay)." Opinion of the Justices, 412 Mass. 1201, 1209 (1992) (legislation that would permit the Commonwealth to admit evidence of a person's refusal to take a breathalyzer test violates the privilege against self-incrimination because it reveals the person's thought process and is thus tantamount to an assertion).
Computer Records. For hearsay purposes, whether a computer record contains a statement depends on if the record is "computer-generated," "computer-stored," or a hybrid of both. Commonwealth v. Thissell, 457 Mass. 191, 197 n.13 (2010). "Computer-generated records are created solely by the mechanical operation of a computer and do not require human participation." Commonwealth v. Davis, 487 Mass. 448, 465 (2021). See Commonwealth v. Royal, 89 Mass. App. Ct. 168, 171-172(2016) (examples include "automated teller machine receipts, log-in records from Internet service providers, and telephone records"). "Because computer-generated records, by definition, do not contain a statement from a person, they do not necessarily implicate hearsay concerns." Thissell, 457 Mass. at 197 n.13 (reliability of generative process that created record addressed by rules of authentication). See, e.g., Davis, 487 Mass. at 465 (map depicting GPS location information); Commonwealth v. Woollam, 478 Mass. 493, 498 (2017) (cellular telephone call logs); Commonwealth v. Ubeda, 99 Mass. App. Ct. 587, 594(2021) (cell phone extraction reports generated by Cellebrite device admissible, but potential hearsay contained therein must be analyzed separately); Commonwealth v. Perez, 89 Mass. App. Ct. 51, 56(2016) (automatically generated bank withdrawal records). Conversely, computer-stored records are electronic records generated by humans that are maintained on a computer system. Thissell, 457 Mass. at 197 n.13. See Royal, 89 Mass. App. Ct. at 171-172 (examples include "electronic mail messages, online posts, and word processing files"). Computer-stored records generally implicate the hearsay rule because these records contain human statements and assertions that have been reduced to electronic form and are merely stored on a computer system. Thissell, 457 Mass. at 197 n.13. See, e.g., Royal, 89 Mass. App. Ct. at 171-172 (Registry of Motor Vehicle records requiring human action to create and retrieve the records). Hybrid records are comprised of both computer-stored records (containing human statements) and computer-generated data. Thissell, 457 Mass. at 197 n.13 (hybrid records may implicate both hearsay and authentication issues). See Commonwealth v. Brea, 488 Mass. 150, 162-163 (2021) (error to admit testimony about U.S. Customs computer record of defendant's airline travel transmitted directly from airline without human intervention where proponent did not satisfy burden of showing how information was originally entered into airline's system).
Subsection (b). This subsection is identical to Fed. R. Evid. 801(b). While no Massachusetts case has defined "declarant," the term has been commonly used in Massachusetts case law to mean a person who makes a statement. See, e.g., Commonwealth v. DeOliveira, 447 Mass. 56, 57-58 (2006); Commonwealth v. Zagranski, 408 Mass. 278, 285 (1990). See also Webster's Third New International Dictionary 586 (2002), which defines "declarant" as a person "who makes a declaration" and "declaration" as "a statement made or testimony given by a witness."
Subsection (c). This subsection is derived from Commonwealth v. Cohen, 412 Mass. 375, 393 (1992), quoting McCormick, Evidence § 246, at 729 (3d ed. 1984), and Fed. R. Evid. 801(c). See Commonwealth v. Cordle, 404 Mass. 733, 743 (1989); Commonwealth v. Randall, 50 Mass. App. Ct. 26, 27(2000). See also Commonwealth v. Silanskas, 433 Mass. 678, 693 (2001) ("Hearsay is an out-of-court statement offered to prove the truth of the matter asserted."); G.E.B. v. S.R.W., 422 Mass. 158, 168 (1996), quoting Commonwealth v. Keizer, 377 Mass. 264, 269 n.4 (1979) ("Hearsay is an 'extrajudicial statement offered to prove the truth of the matter asserted.'"); Commonwealth v. DelValle, 351 Mass. 489, 491 (1966) ("The broad rule on hearsay evidence interdicts the admission of a statement made out of court which is offered to prove the truth of what it asserted."). If a witness at trial affirms the truth of a statement made out of court, the witness adopts it and it is not hearsay. Commonwealth v. Sanders, 451 Mass. 290, 302 n.8 (2008). Whether the witness has adopted an out-of-court statement is a question of fact for the jury and not a preliminary question for the judge. Id. at 302. See Commonwealth v. Bradshaw, 94 Mass. App. Ct. 477, 481(2018) (live-witness testimony based on direct experience not hearsay).
"The theory which underlies exclusion is that with the declarant absent the trier of fact is forced to rely upon the declarant's memory, truthfulness, perception, and use of language not subject to cross-examination." DelValle, 351 Mass. at 491.
Evidence Admitted for Nonhearsay Purpose. "The hearsay rule forbids only the testimonial use of reported statements." Commonwealth v. Miller, 361 Mass. 644, 659 (1972). Accord Commonwealth v. Fiore, 364 Mass. 819, 824 (1974), quoting Wigmore, Evidence § 1766 (3d ed. 1940) (out-of-court utterances are hearsay only when offered "for a special purpose, namely, as assertions to evidence the truth of the matter asserted"). Thus, when out-of-court statements are offered for a reason other than to prove the truth of the matter asserted or when they have independent legal significance, they are not hearsay. There are many nonhearsay purposes for which out-of-court statements may be offered, such as the following:
- Proof of "Verbal Acts" or "Operative" Words. See American Family Life Assur. Co. of Columbus v. Parker, 488 Mass. 801, 811 n.11 (2022) (deceased ex-husband's directive to pay insurance premiums admissible to prove contract); Commonwealth v. Alvarez, 480 Mass. 1017, 1019 (2018) (statement in a text message asking to buy drugs is composed of the words of a crime and does not constitute hearsay); Commonwealth v. McLaughlin, 431 Mass. 241, 246 (2000) ("[e]vidence of the terms of that oral agreement was not offered for the truth of the matters asserted, but as proof of an 'operative' statement, i.e., existence of a conspiracy"); Zaleskas v. Brigham & Women's Hosp., 97 Mass. App. Ct. 55, 66(2020) (patient's statements to medical provider to stop X-ray not hearsay because of independent legal significance to show withdrawal of consent); Commonwealth v. Perez, 89 Mass. App. Ct. 51, 55-56(2016) (withdrawal and deposit slips used by defendant accused of theft from customer bank accounts were legally operative verbal acts and not hearsay); Shimer v. Foley, Hoag & Eliot, LLP, 59 Mass. App. Ct. 302, 310(2003) (evidence of the terms of a contract used to establish lost profits is not hearsay because it is not an assertion).
- To Show Notice or Other Effect on Hearer. See Commonwealth v. Santana, 477 Mass. 610, 621-622 (2017) (interrogating police officer's statement that he had information that defendant had been inside apartment where murder was committed admissible to "contextualize" defendant's "arguably exculpatory" statement that he had been just outside apartment, thus avoiding improper suggestion that defendant had gratuitously placed himself at murder scene); Commonwealth v. Spinucci, 472 Mass. 872, 882-883 (2015) (statements made within defendant's earshot, indicating codefendant's possession of a knife, were not hearsay when offered to show defendant's knowledge that codefendant had a knife); Pardo v. General Hosp. Corp., 446 Mass. 1, 18-19 (2006) (memorandum admissible to show notice); A.W. Chesterton Co. v. Massachusetts Insurers Insolvency Fund, 445 Mass. 502, 515-516 (2005) (knowledge of insurance reserves not listed in response to question on insurance application regarding potential losses); Commonwealth v. Bregoli, 431 Mass. 265, 273 (2000) (other declarants' knowledge of facts relating to crime to rebut Commonwealth's claim that only killer would be aware of facts); Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 17 (1998) (other complaints about product admissible as evidence that manufacturer was on notice of defect); Zaleskas, 97 Mass. App. Ct. at 65 (patient's statements made to medical provider to "stop" examination not hearsay when offered to show notice of withdrawal of consent); Mailhiot v. Liberty Bank & Trust Co., 24 Mass. App. Ct. 525, 529 n.5 (1987) (instructions given to the plaintiff by bank examiners about how to handle a problem were not assertions and thus not hearsay). Cf. Commonwealth v. Daley, 55 Mass. App. Ct. 88, 94 n.9 (2002) (a passerby's remark ["Hey, are you all right?"], if offered as an assertion that the victim was in distress, would be hearsay, but if offered to explain why the defendant fled, and thus not as an assertion, would not be hearsay), S.C., 439 Mass. 558 (2003).
- To Show "the State of Police Knowledge." Out-of-court statements to a police investigator may sometimes be admitted for the nonhearsay purpose of showing "the state of police knowledge," because "an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct." Commonwealth v. Cohen, 412 Mass. 375, 393 (1992). See Commonwealth v. Miller, 361 Mass. 644, 659 (1972) (out-of-court statements are admissible when offered to explain why police approached defendant to avoid misimpression that police acted arbitrarily in singling out defendant for investigation). However, "[t]estimony of this kind carries a high probability of misuse, because a witness may relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports[,] even when not necessary to show state of police knowledge" (quotation omitted). Commonwealth v. Rosario, 430 Mass. 505, 510 (1999). Such evidence, therefore, (1) is permitted only through the testimony of a police officer, who must testify only on the basis of personal knowledge; (2) is limited to the facts required to establish the officer's state of knowledge; (3) is allowed only when the police action or state of police knowledge is relevant to an issue in the case. Commonwealth v. Sullivan, 478 Mass. 369, 376 (2017).
- As Circumstantial Evidence of Declarant's State of Mind. A statement asserting the declarant's own state of mind (usually by words describing the state of mind) is hearsay and is admissible only if it falls within the hearsay exception. See Section 803(3)(B), Hearsay Exceptions; Availability of Declarant Immaterial: Then-Existing Mental, Emotional, or Physical Condition, and the accompanying note. However, when the statement conveys the speaker's state of mind only circumstantially (usually because the words themselves do not describe the state of mind directly), it is not hearsay. See, e.g., Commonwealth v. Cruzado, 480 Mass. 275, 280 (2018) (testimony that victim had concluded that defendant had stolen his cell phone properly admitted to show ill will between defendant and victim); Commonwealth v. Romero, 464 Mass. 648, 652 n.5 (2013) (defendant's statement that passenger in his vehicle had shown him a gun was admissible to show defendant's knowledge that gun was in car, as well as being admission of a party-opponent); Commonwealth v. Montanez, 439 Mass. 441, 447-448 (2003) (evidence of victim's statement to her friend was properly admitted to establish victim's state of mind [concern for her family's shame and diminished economic circumstances if abuser were removed from her home], which helped explain her delay in reporting an episode of sexual abuse and thus was not hearsay). Contrast Section 803(3)(B)(ii), Hearsay Exceptions; Availability of Declarant Immaterial: Then-Existing Mental, Emotional, or Physical Condition.
- As Circumstantial Evidence of the Nature of a Place or a Thing. Sometimes out-of-court statements that do not directly describe the nature or character of a place or an object can nevertheless be probative of that nature or character. In such cases, the statements are treated as nonhearsay. See, e.g., Commonwealth v. Massod, 350 Mass. 745, 748 (1996) (statements over telephone not hearsay when used to show that telephone was apparatus used for registering bets on horse races); Commonwealth v. DePina, 75 Mass. App. Ct. 842, 850(2009) (conversation of police officer on defendant's cellular telephone was admissible as evidence of nature of the cellular telephone as instrument used in cocaine distribution); Commonwealth v. Washington, 39 Mass. App. Ct. 195, 199-201(1995) (conversations of police officer with callers to defendant's beeper not hearsay when used to show that beeper was used for drug transactions). See also Commonwealth v. Purdy, 459 Mass. 442, 452 (2011) (words soliciting sexual act have independent legal significance and are not hearsay); Commonwealth v. Mullane, 445 Mass. 702, 711 (2006) (portion of conversation regarding negotiation for "extras" between police detective and "massage therapist" were not hearsay).
Prior Statements Used to Impeach or Rehabilitate. Ordinarily, the out-of-court statements of a testifying witness are hearsay if they are offered to prove the truth of the statement. Prior inconsistent statements are usually admissible only for the limited purpose of impeaching the credibility of the witness. But see Subsection (d)(1)(A) and the accompanying note. A witness's prior consistent statements are not admissible substantively under Massachusetts law, but they may be admissible for certain other purposes. See for example Section 413, First Complaint of Sexual Assault, and Section 613(b), Prior Statements of Witnesses, Limited Admissibility: Prior Consistent Statements.
Nonverbal Conduct Excluded as Hearsay. See Commonwealth v. Todd, 394 Mass. 791, 797 (1985) (explaining that the destruction of her marriage license could be considered "an extrajudicial, nonverbal assertion of the victim's intent which, if introduced for the truth of the matter asserted, would be, on its face, objectionable as hearsay"); Bartlett v. Emerson, 73 Mass. 174, 175- 176 (1856) (testimony about another person's act of pointing out a boundary marker was an assertion of a fact and thus inadmissible as hearsay); Commonwealth v. Yang, 98 Mass. App. Ct. 446, 449-451(2020) (photograph of defendant with third party's inscription containing his nickname when offered to show that defendant "held himself out" by nickname was inadmissible hearsay); Commonwealth v. Ramirez, 55 Mass. App. Ct. 224, 227(2002) (a business card offered to establish a connection between the defendant and a New York address on the card was hearsay because it was used as an assertion of a fact); Commonwealth v. Kirk, 39 Mass. App. Ct. 225, 229-230(1995) (conduct of a police officer who served a restraining order on the defendant offered to establish the identity of that person as the perpetrator was hearsay because its probative value depended on the truth of an assertion made in the papers by the victim that the defendant was the same person named in the complaint).
When an out-of-court statement is offered for a nonhearsay purpose, after considering the effectiveness of a Section 105 limiting instruction it is necessary to weigh the risk of unfair prejudice that would likely result if the jury misused the statement. See Section 403, Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reason. In criminal cases, that risk can have confrontation clause implications.
Subsection (d). This subsection addresses out-of-court statements that are admissible for their truth. Section 613, Prior Statements of Witnesses, Limited Admissibility, addresses prior statements for the limited purposes only of impeachment and rehabilitation.
Subsection (d)(1)(A). Massachusetts generally adheres to the orthodox rule that prior inconsistent statements are admissible only for the limited purpose of impeaching the credibility of a witness's testimony at trial and are inadmissible hearsay when offered to establish the truth of the matters asserted. See Section 613(a)(1), Prior Statements of Witnesses, Limited Admissibility: Prior Inconsistent Statements: Examining Own Witness, and Section 613(a)(2), Prior Statements of Witnesses, Limited Admissibility: Prior Inconsistent Statements: Examining Other Witness. However, in Commonwealth v. Daye, 393 Mass. 55, 66 (1984), the Supreme Judicial Court adopted the principles of Proposed Mass. R. Evid. 801(d)(1)(A) allowing prior inconsistent statements made before a grand jury to be admitted substantively. The Daye rule has been extended to cover prior inconsistent statements made in other proceedings as well. See Commonwealth v. Sineiro, 432 Mass. 735 (2000) (probable cause hearings); Commonwealth v. Newman, 69 Mass. App. Ct. 495(2007) (testimony given at an accomplice's trial). Commonwealth v. Ragland, 72 Mass. App. Ct. 815, 823 n.9 (2008), made it clear in dicta that the same principles would apply to admission of prior inconsistent deposition evidence given under oath. See also Commonwealth v. Belmer, 78 Mass. App. Ct. 62, 64(2010) (prior inconsistent statement may be admissible for its full probative value where the witness has signed a written affidavit under penalties of perjury in support of an application for a restraining order pursuant to G. L. c. 209A and that witness is subject to cross-examination).
Two general requirements for the substantive use of a testifying witness's prior inconsistent statements are (1) that there is an opportunity to cross-examine the witness at trial and (2) that the prior statement was in the witness's own words and was not coerced. Commonwealth v. Pierre, 486 Mass. 418, 426-429 (2020); Daye, 393 Mass. at 73-74. The opportunity to cross-examine the witness at trial must be meaningful, which requires that the witness retain at least some recollection of the underlying events, although the case law is "scant" concerning "just how detailed" the witness's recollection must be. Pierre, 486 Mass. at 428-429. In addition, if the prior inconsistent statement is relied on to establish an essential element of a crime, the Commonwealth must offer at least some additional evidence on that element in order to support a conclusion of guilt beyond a reasonable doubt. Daye, 393 Mass. at 74-75. However, the additional evidence need not be sufficient in itself to establish the element. Commonwealth v. Noble, 417 Mass. 341, 345 & n.3 (1994). The corroboration requirement thus concerns the sufficiency of the evidence, not its admissibility. Commonwealth v. McGhee, 472 Mass. 405, 422-423 (2015); Commonwealth v. Clements, 436 Mass. 190, 193 (2002). The prior testimony should be introduced by having it read directly into the record, either by a single reader or by two persons reading responsively, making clear which portions are questions and which are answers. Commonwealth v. Andrade, 481 Mass. 139, 144 (2018). The transcript itself should not be admitted. Commonwealth v. Henderson, 486 Mass. 296, 309-310 (2020).
Feigning Lack of Memory. Prior inconsistent statements of a witness who is on the stand and therefore available for cross-examination may be admitted substantively if the witness falsely claims a lack of memory. Sineiro, 432 Mass. at 741-743 ("there is good reason for a judge to find the existence of inconsistency when the judge concludes that testimony asserting an inability to remember is false"). Before admitting such statements, the judge must make preliminary findings of fact that (1) the witness is in fact feigning lack of memory, (2) the statement was not coerced, and (3) the statement was in the witness's own words and is more than a mere confirmation or denial of an allegation by the interrogator. See Commonwealth v. DePina, 476 Mass. 614, 620-621 (2017). At a party's request, the judge may conduct a voir dire to make these findings. Sineiro, 432 Mass. at 739. A trial judge's findings are "entitled to substantial deference and are 'conclusive as long as . . . supported by the evidence.'" DePina, 476 Mass. at 621, quoting Commonwealth v. Maldonado, 466 Mass. 742, 756, cert. denied, 572 U.S. 1125 (2014), quoting Sineiro, 432 Mass. at 742 n.6. "[W]here grand jury testimony relates to an essential element of the offense, the Commonwealth must offer corroborative evidence, in addition to that testimony, in order to sustain a conviction." Id. at 621 n.5 (corroboration requirement "goes to the sufficiency of the evidence rather than to its admissibility"). A judge's finding of witness feigning is often based on a careful examination of the witness's demeanor and testimony in light of the judge's experience. See Sineiro, 432 Mass. at 740; Commonwealth v. Newman, 69 Mass. App. Ct. 495, 497(2007). See, e.g., Commonwealth v. Figueroa, 451 Mass. 566, 573-574, 576-577 (2008) (judge concluded that witness was feigning when he was able to recall many specific events of the evening in question but was unable to recall the portion of his grand jury testimony in which he said the defendant admitted to shooting someone, and a transcript failed to refresh his memory); Commonwealth v. Tiexeira, 29 Mass. App. Ct. 200, 204(1990) (judge observed how the witness's detailed account of the evening was conspicuously vague regarding the defendant's encounter with the victim). Where a judge finds the witness is feigning a lack of memory, portions of the witness's grand jury testimony may be admitted substantively. Commonwealth v. Trotto, 487 Mass. 708, 724 (2021). Regardless of the judge's conclusion at voir dire, the jury shall not be told of the judge's preliminary determination that the witness is feigning. Sineiro, 432 Mass. at 742 n.6.
"Where a witness testifies at trial and is cross-examined, any limitation on the effectiveness or substance of that cross-examination stemming from feigned memory loss generally does not implicate the confrontation clause." DePina, 476 Mass. at 622. See also Commonwealth v. Stewart, 454 Mass. 527, 533 (2009) (genuine total loss of memory preventing cross-examination may preclude admission of grand jury testimony).
Subsection (d)(1)(B). In Commonwealth v. Cruz, 53 Mass. App. Ct. 393, 401 & n.10 (2001), the Appeals Court noted that the Supreme Judicial Court has not adopted Proposed Mass. R. Evid. 801(d)(1)(B) as to the admission of prior consistent statements as substantive evidence, rather than merely for the purpose of rehabilitating the credibility of a witness-declarant whose trial testimony has been impeached on the ground of recent contrivance. See also Commonwealth v. Thomas, 429 Mass. 146, 161-162 (1999) (prior consistent statement admissible to rebut suggestion of recent contrivance); Commonwealth v. Kater, 409 Mass. 433, 448 (1991) ("prior consistent statements of a witness may be admitted where the opponent has raised a claim or inference of recent contrivance, undue influence, or bias"); Commonwealth v. Zukoski, 370 Mass. 23, 26-27 (1976) ("[A] witness's prior consistent statement is admissible where a claim is made that the witness's in-court statement is of recent contrivance or is the product of particular inducements or bias.... Unless admissible on some other ground to prove the truth of the facts asserted, such a prior consistent statement is admissible only to show that the witness's in-court testimony is not the product of the asserted inducement or bias or is not recently contrived as claimed.").
Subsection (d)(1)(C). This subsection is derived from Commonwealth v. Cong Duc Le, 444 Mass. 431, 432, 436-437 (2005), where the Supreme Judicial Court "adopt[ed] the modern interpretation of the rule" expressed in Proposed Mass. R. Evid. 801(d)(1)(C), which, like its Federal counterpart, states that "[a] statement is not hearsay . . . if '[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . one of identification of a person [made] after perceiving [the person].'" Visual perception of the person is not necessary if the declarant became aware of the person through the other senses. See Commonwealth v. Harrison, 100 Mass. App. Ct. 376, 388-389(2021) (no error to admit victim's prior identification of defendant, even though victim did not see defendant behind him, where victim had seen defendant earlier, they were alone in an isolated area, victim heard defendant talking on phone behind him, and defendant fled after victim was shot). It is not necessary that the declarant make an in-court identification. See Commonwealth v. Machorro, 72 Mass. App. Ct. 377, 379-380(2008) (police officer allowed to testify to extrajudicial identification of the assailant by two victims who were present at trial and subject to cross-examination even though one victim could not identify the assailant [although she recalled being present at his arrest and was certain that the person arrested was the assailant] and the other victim was not asked to make an identification at trial). The third party's testimony about the identification may not be admitted until after the Commonwealth has questioned the eyewitness about the identification. Commonwealth v. Herndon, 475 Mass. 324, 335 (2016). This subsection applies to an out-of-court identification based on a witness's familiarity with the person identified and is not limited to a photographic array, showup, or other identification procedure. Commonwealth v. Adams, 458 Mass. 766, 770-776 (2011). Multiple versions of an extrajudicial identification may be admissible for substantive purposes. Id. at 773.
Under this subsection, whether and to what extent third-party testimony about a witness's out-of-court identification may be admitted in evidence no longer turns on whether the identifying witness acknowledges or denies the extrajudicial identification at trial. See Cong Duc Le, 444 Mass. at 439-440. The third-party testimony will be admitted for substantive purposes as long as the cross-examination requirement is satisfied. Id. As the court explained, it is for the jury to "determine whose version to believe-the witness who claims not to remember or disavows the prior identification (including that witness's version of what transpired during the identification procedure), or the observer who testifies that the witness made a particular prior identification." Id. at 440. The requirement that the witness having made an identification be subject to cross-examination may be satisfied where the witness was examined by defense counsel under oath at an earlier proceeding even if not available at trial. Commonwealth v. Fontanez, 482 Mass. 22, 28-30 (2019) (identification from photographic array admissible where witness subsequently died after testifying at motion to suppress hearing but prior to trial). Prior identification evidence, even if disputed, may be considered in light of all the other evidence relevant to the perpetrator's identity. Cong Duc Le, 444 Mass. at 440. See also Commonwealth v. Silvester, 89 Mass. App. Ct. 350, 357(2016) (admission of videotape of witness selecting photograph of defendant from photo array did not violate defendant's confrontation rights where witness was available for cross-examination).
Facts Accompanying an Identification. Identification evidence has no meaning absent context, and the extent of the statement needed to provide context varies from case to case. Commonwealth v. Adams, 458 Mass. 766, 772 (2011). Thus, the contents of a witness's statement are admissible under this rule only so far as they are relevant to the issue of identification. Id. This issue should be the subject of a motion in limine. Id. See also Commonwealth v. Walker, 460 Mass. 590, 608-609 (2011).
Subsection (d)(2). This subsection defines admissions by a party-opponent as not hearsay, consistent with recent Supreme Judicial Court decisions, the Federal Rules of Evidence, and the Proposed Massachusetts Rules of Evidence. See Commonwealth v. Mendes, 441 Mass. 459, 467 (2004); Commonwealth v. Allison, 434 Mass. 670, 676 n.5 (2001); Commonwealth v. DiMonte, 427 Mass. 233, 243 (1998), citing Proposed Mass. R. Evid. 801(d)(2); Fed. R. Evid. 801(d)(2); Proposed Mass. R. Evid. 801(d)(2). In some cases, the court has ruled that out-of-court statements by a party-opponent are admissible as an exception to the hearsay rule. See Commonwealth v. DeBrosky, 363 Mass. 718, 724 (1973); Commonwealth v. McKay, 67 Mass. App. Ct. 396, 403 n.13 (2006).
Subsection (d)(2)(A). This subsection is derived from Commonwealth v. Marshall, 434 Mass. 358, 365-366 (2001), quoting P.J. Liacos, Massachusetts Evidence § 8.8.1 (7th ed. 1999). See also Commonwealth v. McCowen, 458 Mass. 461, 485-486 (2010) (defendant's out-of-court statement offered for its truth is hearsay and not admissible when not offered by the Commonwealth); Care & Protection of Sophie, 449 Mass. 100, 110 n.14 (2007) (no requirement that the statement of a party-opponent be contradictory or against the party-opponent's interest); Commonwealth v. Bonomi, 335 Mass. 327, 347 (1957) ("An admission in a criminal case is a statement by the accused, direct or implied, of facts pertinent to the issue, which although insufficient in itself to warrant a conviction tends in connection with proof of other facts to establish his guilt."); Hopkins v. Medeiros, 48 Mass. App. Ct. 600, 613(2000) ("The evidence of [the defendant's] admission to sufficient facts was admissible as an admission of a party opponent."); Section 410, Pleas, Offers of Pleas, and Related Statements.
A defendant's unequivocal denial of committing a charged crime is not admissible in evidence. Commonwealth v. Nawn, 394 Mass. 1, 4 (1985). Both the denial and the accusation it denies are inadmissible as hearsay. Commonwealth v. Spencer, 465 Mass. 32, 46 (2013). The rule barring evidence of a defendant's denial applies only to denials of accusations of criminal activity and not to other denials. See Commonwealth v. Cruzado , 480 Mass. 275, 277-278 (2018) (investigators' questions about whether defendant recognized a photograph of murder victim and defendant's denials properly admitted because questions did not accuse defendant of criminal activity). This rule does not prohibit evidence of a defendant's false factual statements or omissions to show consciousness of guilt. Commonwealth v. Collazo, 481 Mass. 498, 500-501 (2019) (no error to admit defendant's self-serving and demonstrably false statements to police where statements were neither responses to accusation of crime nor unequivocal denials); Commonwealth v. Lavalley, 410 Mass. 641, 649-650 (1991) (impeachment of defendant's trial testimony by showing difference from his pretrial statement to police was evidence of consciousness of guilt and did not amount to impermissible comment on his denial or failure to deny the offense). See also Commonwealth v. Lewis, 465 Mass. 119, 127 (2013) (defendant's ambiguous statement that could be construed as consciousness of guilt ["I'll beat this"] is admissible and subject to parties' arguments about proper interpretation); Commonwealth v. Hoime, 100 Mass. App. Ct. 266, 277-279(2021) (police sergeant's repetition of victim's rape allegation and defendant's equivocal responses admissible to show consciousness of guilt).
While a discussion of the constitutional and common-law principles governing the admissibility of confessions is beyond the scope of this Guide, the law is that a statement, admission, or confession by a person is not admissible in a criminal proceeding if it was not made voluntarily. See, e.g., Commonwealth v. Cryer, 426 Mass. 562, 571 (1998); Commonwealth v. Tavares, 385 Mass. 140, 146 (1982); Commonwealth v. Mahnke, 368 Mass. 662, 679-691 (1975).
Discovery Material. Under this subsection, deposition answers by an opposing party, Mass. R. Civ. P. 32(a)(2), interrogatory answers by an opposing party, G. L. c. 231, § 89, and responses to requests for admission of facts, Mass. R. Civ. P. 36(b), are not subject to a hearsay objection and thus may be used by the opponent for any permissible purpose. See Federico v. Ford Motor Co., 67 Mass. App. Ct. 454, 460-461(2006); Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 484 n.8 (2000).
Criminal Cases. The principle that the admission of a party-opponent, without more, is admissible is superseded by the requirements of the confrontation clause:
"[W]here a nontestifying codefendant's statement expressly implicates the defendant, leaving no doubt that it would prove to be powerfully incriminating, the confrontation clause of the Sixth Amendment to the United States Constitution has been offended, notwithstanding any limiting instruction by the judge that the jury may consider the statement only against the codefendant."
Commonwealth v. Vallejo, 455 Mass. 72, 83 (2009) (discussing Bruton v. United States, 391 U.S. 123 [1968]). See also Commonwealth v. Resende, 476 Mass. 141, 150 (2017) ("Where a nontestifying codefendant's statement does not inculpate a defendant directly, but does inculpate the defendant when combined with other evidence, a limiting instruction [that the statement may not be used as evidence against the defendant] may be sufficient to cure the prejudice."); Commonwealth v. Vasquez, 462 Mass. 827, 842-844 (2012) (statement made by nontestifying defendant to police admissible where statement did not expressly or "obviously" refer directly to defendant).
Subsection (d)(2)(B). This subsection is taken verbatim from Fed. R. Evid. 801(d)(2)(B) and is consistent with Massachusetts law. See also Proposed Mass. R. Evid. 801(d)(2)(B). "Where a party is confronted with an accusatory statement which, under the circumstances, a reasonable person would challenge, and the party remains silent or responds equivocally, the accusation and the reply may be admissible on the theory that the party's response amounts to an admission of the truth of the accusation." Commonwealth v. MacKenzie, 413 Mass. 498, 506 (1992). See also Commonwealth v. Andrade, 488 Mass. 522, 536-537 (2021) (not error to admit testimony that friend said to defendant after shooting, "I can't believe you did that. Why did you do that?" where they were seated next to each other in front of car and defendant remained silent). This is commonly referred to as an "adoptive admission."
Admission by Silence. For an admission by silence to be admissible it must be apparent that the party has heard and understood the statement, had an opportunity to respond, and the context was one in which the party would have been expected to respond. Commonwealth v. Olszewski, 416 Mass. 707, 719 (1993), cert. denied, 513 U.S. 835 (1994). See Commonwealth v. Ferreira, 481 Mass. 641, 658-659 (2019) (In murder prosecution, it was error, albeit harmless, to allow the victim's sister to testify, in effect, that during a phone conversation with the defendant after discovery of the victim's body, the sister accused the defendant of the murder and threatened to kill him, after which the defendant hung up the phone. Silence in those circumstances could not support a reasonable inference of adoption, because the sister's angry threat to stalk and kill the defendant would more likely have prompted in a reasonable person a termination of the call rather than a denial.); Leone v. Doran, 363 Mass. 1, 16, modified on other grounds, 363 Mass. 886 (1973). "Because silence may mean something other than agreement or acknowledgment of guilt (it may mean inattention or perplexity, for instance), evidence of adoptive admissions by silence must be received and applied with caution." Commonwealth v. Babbitt, 430 Mass. 700, 705 (2000). See generally Commonwealth v. Nickerson, 386 Mass. 54, 61 n.6 (1982) (cautioning against use of a defendant's prearrest silence to show consciousness of guilt and indicating such evidence is admissible only in "unusual circumstances"). Accordingly, adoption by silence can be imputed to a defendant only for statements that "clearly would have produced a reply or denial on the part of an innocent person." Commonwealth v. Brown, 394 Mass. 510, 515 (1985).
"No admission by silence may be inferred, however, if the statement is made after the accused has been placed under arrest[, see Commonwealth v. Kenney, 53 Mass. 235, 238 (1847); Commonwealth v. Morrison, 1 Mass. App. Ct. 632, 634(1973); Commonwealth v. Cohen, 6 Mass. App. Ct. 653, 657(1978)], after the police have read him his Miranda rights[, see Commonwealth v. Rembiszewski, 363 Mass. 311, 316 (1973)], or after he has been so significantly deprived of his freedom that he is, in effect, in police custody[, see Commonwealth v. Corridori, 11 Mass. App. Ct. 469, 480(1981)] ."
Commonwealth v. Stevenson, 46 Mass. App. Ct. 506, 510(1999), quoting Commonwealth v. Ferrara, 31 Mass. App. Ct. 648, 652(1991).
Admission by Conduct. "An admission may be implied from conduct as well as from words." Commonwealth v. Bonomi, 335 Mass. 327, 348 (1957). For instance,
"[a]ctions and statements that indicate consciousness of guilt on the part of the defendant are admissible and together with other evidence, may be sufficient to prove guilt.... [T]his theory usually has been applied to cases where a defendant runs away . . . or makes intentionally false and misleading statements to police . . . or makes threats against key witnesses for the prosecution ...."
Commonwealth v. Montecalvo, 367 Mass. 46, 52 (1975). See also Olofson v. Kilgallon, 362 Mass. 803, 806 (1973), citing Hall v. Shain, 291 Mass. 506, 512-513 (1935). For a thorough discussion of the evidentiary and constitutional issues surrounding the use of a defendant's prearrest silence or conduct to establish consciousness of guilt, see Commonwealth v. Irwin, 72 Mass. App. Ct. 643, 648-656(2008). "[A] judge should instruct the jury [1] that they are not to convict a defendant on the basis of evidence of [conduct] alone, and [2] that they may, but need not, consider such evidence as one of the factors tending to prove the guilt of the defendant" (citation omitted). Commonwealth v. Toney, 385 Mass. 575, 585 (1982).
Subsection (d)(2)(C). This subsection is derived from Sacks v. Martin Equip. Co., 333 Mass. 274, 279-280 (1955).
This subsection covers the admissibility of statements by an agent who has been authorized by the principal to speak on his behalf. See Simonoko v. Stop & Shop, Inc., 376 Mass. 929, 929 (1978) (concluding there was no showing of the manager's authority to speak for the defendant). Contrast Subsection (d)(2)(D), which deals with statements of agents.
Subsection (d)(2)(D). This subsection is derived from Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418, 420-423 (1988), in which the Supreme Judicial Court adopted Proposed Mass. R. Evid. 801(d)(2)(D). Under some circumstances, inconsistent statements by a prosecutor at successive trials may be admissible as admissions of a party-opponent. See Commonwealth v. Keo, 467 Mass. 25, 33 n.21 (2014).
To determine whether a statement qualifies as a vicarious admission, the judge first must decide as a preliminary question of fact whether the declarant was authorized to act on the matters that were the subject of the statement. See Herson v. New Boston Garden Corp., 40 Mass. App. Ct. 779, 791(1996). If the judge finds that the declarant was so authorized, the judge must then decide whether the probative value of the statement was substantially outweighed by its potential for unfair prejudice. Id. In so doing,
"the judge should consider the credibility of the witness; the proponent's need for the evidence, e.g., whether the declarant is available to testify; and the reliability of the evidence offered, including consideration of whether the statement was made on firsthand knowledge and of any other circumstances bearing on the credibility of the declarant. Ruszcyk v. Secretary of Pub. Safety, [401 Mass.] at 422-423" (footnote and quotation omitted).
Thorell v. ADAP, Inc., 58 Mass. App. Ct. 334, 339-340(2003). The out-of-court statements of the agent are hearsay and thus inadmissible for the purpose of proving the existence of the agency; however, the agency may be shown through the agent's testimony at trial. Campbell v. Olender, 27 Mass. App. Ct. 1197, 1198(1989).
Subsection (d)(2)(E). This subsection is derived from Commonwealth v. Bongarzone, 390 Mass. 326, 340 (1983). See also Commonwealth v. Wilkerson, 486 Mass. 159, 174-175 (2020); Commonwealth v. Rakes, 478 Mass. 22, 38-43 (2017). Contrast Commonwealth v. Wardsworth, 482 Mass. 454, 462 (2019) (judge erred in admitting statements not made during and in furtherance of joint venture). This exception is based on the belief that the shared acts and interests of coventurers engaging in a criminal enterprise tend to some degree to assure that statements made between them will be at least minimally reliable. Bongarzone, 390 Mass. at 340.
"[A] statement made by a coconspirator or joint venturer may be admitted for its truth against the other coconspirators or joint venturers." Commonwealth v. Mattier, 474 Mass. 261, 276-277 (2016). Before admitting such evidence, a judge "must find, by a preponderance of the evidence, the existence of a joint venture independent of the statement being offered." Commonwealth v. Holley, 478 Mass. 508, 534-535 (2017). See Commonwealth v. Lopez, 485 Mass. 471, 476 (2020) (evidence that defendant participated in chasing victim, struck him multiple times, and fled after victim fell to ground sufficient to establish existence of joint venture for purpose of admitting codefendant's statements). While out-of-court statements made in furtherance of a joint venture are generally not testimonial, the judge must, upon proper objection, determine that the statement does not violate the confrontation clause. Commonwealth v. Robertson, 489 Mass. 226, 231-232 (2022).
The judge's preliminary determination of admissibility "permits the statement to be placed in front of the jury, but does not suffice for the jury to consider it as bearing on the defendant's guilt." Rakes, 478 Mass. at 37. Instead, before they consider the statement for such purpose, "the jury must make their own independent determination, again based on a preponderance of the evidence other than the statement itself, that a joint venture existed and that the statement was made in furtherance thereof" (quotation omitted). Holley, 478 Mass. at 534. "Alternatively, the statement may be admitted provisionally, subject to a motion to strike should the evidence presented . . . fail to establish the existence of a joint venture." Rakes, 478 Mass. at 37 n.11. A statement otherwise inadmissible under the joint venture exception may be admissible for nonhearsay purposes. Commonwealth v. Brown, 474 Mass. 576, 587-588 (2016) (statement may serve as "foundation for later showing, through other admissible evidence," that defendant's statements were false).
Statements probative of a declarant's intent to enter into a joint venture are admissible under the joint venture exception even if the joint venture has not yet begun. Commonwealth v. Wilkerson, 486 Mass. 159, 175-176 (2020) (recruitment statements predating formation of joint venture admissible if made in furtherance of joint venture formed thereafter); Rakes, 478 Mass. at 39. Statements made after completion of a crime may be admissible if made in an effort to conceal a crime, even if made years after the crime. Commonwealth v. Winquist, 474 Mass. 517, 522-524 (2016). This exception extends to situations where "the joint venturers are acting to conceal the crime that formed the basis of the criminal enterprise," Commonwealth v. Ali, 43 Mass. App. Ct. 549, 561(1997), quoting Commonwealth v. Angiulo, 415 Mass. 502, 519 (1993), but it "does not apply after the criminal enterprise has ended, as where a joint venturer has been apprehended and imprisoned." Commonwealth v. Colon-Cruz, 408 Mass. 533, 543 (1990). See Commonwealth v. Trotto, 487 Mass. 708, 720-722 (2021) (statements made by coventurers to police officer during traffic stop were admissible under joint venture exception even though defendant was not present). Cf. Rakes, 478 Mass. at 41-42 (statement made by incarcerated coventurer approximately fifteen years after commission of the crime deemed admissible because it demonstrated that joint venturers "remained actively engaged in an effort to conceal their . . . crimes"). Thus, a confession or admission of a coconspirator or joint venturer made after the termination of the conspiracy or joint venture is not admissible as a vicarious statement of another member of the conspiracy or joint venture. Commonwealth v. Bongarzone, 390 Mass. 326, 340 n.11 (1983), citing Commonwealth v. White, 370 Mass. 703, 708-712 (1976). See Commonwealth v. Carter, 488 Mass. 191, 208-210 (2021) (attempts to conceal murder made by joint venturers while each was separately incarcerated for unrelated crimes admissible as part of original conspiracy). Cf. Commonwealth v. Leach, 73 Mass. App. Ct. 758, 766(2009) (although statements made by codefendants occurred after they were in custody, statements were made shortly after crime and for purpose of concealing crime and thus became admissible against each defendant).
A sex-trafficking victim's statements may be admissible against the trafficker as statements of a coventurer. See Commonwealth v. Lowery, 487 Mass. 851, 865 (2021), quoting Commonwealth v. Stewart, 454 Mass. 527, 535 (2009) ("Given Jane's shared interest with the defendant in furthering the commercial sexual enterprise, and notwithstanding her status as a victim of sex trafficking, the jury could have found that Jane's statements were reliable as those of a coventurer and 'equivalent to a statement by the defendant.'").
Use of Depositions at Trial. In addition to substantive evidentiary issues, which are resolved in the same manner as if the deponent were testifying in court, the use of depositions at trial sometimes raises hearsay issues. The deposition of an adverse party or an authorized agent of a party is not hearsay under Section 801(d)(2). See Mass. R. Civ. P. 32(a)(2). Rule 30A(m) of the Massachusetts Rules of Civil Procedure creates a hearsay exception for certain audiovisual depositions of treating physicians and expert witnesses taken by the party offering the witness. Objections to the deposition testimony taken under this rule are waived if not brought to the court's attention twenty-one days before trial. Rothkopf v. Williams, 55 Mass. App. Ct. 294, 298-299(2002). The audiovisual recording of a deposition offered at trial becomes part of the record, but should not be admitted as an exhibit. McSweeney v. Build Safe Corp., 417 Mass. 610, 612 (1994). See Mass. R. Civ. P. 30A(k)(4).
Any party may introduce the deposition testimony of a witness who is unavailable at trial. Mass. R. Civ. P. 32(a)(4). In addition to the grounds for unavailability enumerated in Rule 32(a)(4), a witness who holds a valid Fifth Amendment privilege is deemed unavailable. Hasouris v. Sorour, 92 Mass. App. Ct. 607, 614-615(2018).The proponent of the use of the deposition must demonstrate the witness's unavailability (unavailability cannot be presumed; the trial judge must make a particularized inquiry). The party against whom the deposition testimony is offered must have had the opportunity to cross-examine the witness prior to trial. Frizzell v. Wes Pine Millwork, Inc., 4 Mass. App. Ct. 710, 712(1976). A deposition from an unrelated action is not admissible against a party who was not present or represented at the earlier deposition. Martin v. Roy, 54 Mass. App. Ct. 642, 647(2002); Kirby v. Morales, 50 Mass. App. Ct. 786, 790(2001). "If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts." Mass. R. Civ. P. 32(a)(4). Cf. Section 106, Doctrine of Completeness.
Section 105, Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes. Section 105, Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes. Section 105, Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes; Section 803(3)(B)(ii), Hearsay Exceptions; Availability of Declarant Immaterial: Then-Existing Mental, Emotional, or Physical Condition. Introductory Note (a) to Article VIII, Hearsay. Section 413, First Complaint of Sexual Assault. Section 1112(b)(3), Eyewitness Identification: Out-of-Court Identifications, including Showups and Photographic Arrays: Third-Party Testimony Regarding Out-of-Court Identifications. Section 1112, Eyewitness Identification. Section 804(b)(1), Hearsay Exceptions; Declarant Unavailable: The Exceptions: Prior Recorded Testimony.