Mass. R. Evid. 1114
Mass. Guid. Evid. 1114
Subsection (a). This subsection is derived from Commonwealth v. Henry, 475 Mass. 117 (2016); Commonwealth v. Denehy, 466 Mass. 723 (2014); Commonwealth v. McIntyre, 436 Mass. 829 (2002); Commonwealth v. Malick, 86 Mass. App. Ct. 174(2014); and Commonwealth v. Avram A., 83 Mass. App. Ct. 208(2013). See also G. L. c. 258B, § 1 (defining restitution as "money or services which a court orders a defendant to pay or render to a victim as part of the disposition"). Restitution is an "entirely judicially determined penalty" that is separate and distinct from "punishments such as imprisonment and fines that are accompanied by statutory prescriptions." Denehy, 466 Mass. at 737. There is no right to trial by jury in connection with an order for restitution. Commonwealth v. Nawn, 394 Mass. 1, 8-9 (1985).
In Commonwealth v. McIntyre, the court explained that to establish a nexus between the defendant's criminal conduct and the victim's loss, the Commonwealth must prove that the "loss . . . is causally connected to the offense and bears a significant relationship to the offense.... [W]e look to the underlying facts of the charged offense, not the name of the crime [of which the defendant was convicted or] to which the defendant entered a plea." McIntyre, 436 Mass. at 835. The court's power to award restitution in criminal cases is "unquestionable" and derives from a judge's power to order conditions of probation under G. L. c. 276, §§ 87 and 87A, and G. L. c. 279, § 1. Denehy, 466 Mass. at 737. In Denehy, the Supreme Judicial Court rejected the argument that the constitutional principle that requires that certain factual determinations relating to sentencing must be found by a jury beyond a reasonable doubt does not apply to an award of restitution. Id. at 737-738. Restitution may not be ordered to reward anyone or to create an incentive for the dismissal of criminal charges. Commonwealth v. Rotonda, 434 Mass. 211, 221 (2001). Cf. G. L. c. 276, § 55 (accord and satisfaction). Restitution may be ordered as a condition of probation in the case of a conviction or a continuance without a finding. Rotonda, 434 Mass. at 221-222. An order of restitution is distinct from an order that the defendant pay the costs of the prosecution. See G. L. c. 280, § 6 (all such payments go to the Commonwealth not the victim). It is not necessary that the victim of a crime file a claim with an insurer to be eligible for restitution. Commonwealth v. Williams, 57 Mass. App. Ct. 917(2003) (rescript).
The nexus between the defendant's criminal conduct and the economic loss suffered by the victim does not require proof of every element of each crime with which the defendant is charged. Instead, the Commonwealth must establish "a significant causal relationship" between the facts admitted by the defendant or that form the basis of the conviction and the economic losses suffered by the victim. See Denehy , 466 Mass. at 723 (There was a sufficient nexus between the defendant's conviction for assault by means of a dangerous weapon and disorderly conduct and damage to the eyeglasses of the police officer attacked by the defendant even though the defendant was found not guilty of the charge of assault and battery on a police officer.); McIntyre, 436 Mass. at 835 (sufficient causal relationship between damage to victim's automobile and defendant's conviction for stabbing the victim because, after stabbing, defendant returned to scene and set his dog on victim; eventually, as victim retreated to his car to avoid ongoing assault, defendant kicked victim's car door and fender); Commonwealth v. Palmer P., 61 Mass. App. Ct. 230, 232(2004) (Although the juvenile was found not delinquent of larceny, the facts related to the delinquency finding on the charge of breaking and entering during the daytime with intent to commit a felony was sufficient to support an order for restitution to the victim in the amount of $1,000 for the loss of his personal property.). But see Commonwealth v. Casanova, 65 Mass. App. Ct. 750, 750(2006) (The evidence was not sufficient to establish a causal relationship between the victim's injuries as a result of being struck in the face and stomach by the defendant and the victim's decision one month later to withdraw from college, which caused him to incur a loss of $8,046 in tuition he had paid, although the court indicated that medical expenses, court-related travel expenses, property loss and damage, lost pay, and lost vacation days required to be used to attend court might be compensable as restitution.).
The Commonwealth must prove that the defendant's criminal conduct is the cause in fact of the victim's economic loss, and that such loss was a reasonably foreseeable consequence of the defendant's conduct. Negligent acts of the victim or a third party that occur after the defendant's criminal conduct do not necessarily break the causal connection between the defendant's criminal conduct and the victim's economic loss underlying an order of restitution. Commonwealth v. Buckley, 90 Mass. App. Ct. 177, 184(2016) (due to miscommunication, victim was not notified for several months that police had recovered his vehicle and in interim had purchased replacement vehicle; negligence by third party did not break causal connection). Further, a judge has the power to order restitution to a third party. See Commonwealth v. McGann, 484 Mass. 312, 327-328 (2020) (judge properly exercised discretion to order defendant to pay restitution to victim's mother where mother paid for victim's medically related care incurred as direct result of defendant's actions).
In Commonwealth v. Avram A., 83 Mass. App. Ct. 208(2013), an order to pay restitution in the amount of $1,063.78 against a twelve-year-old juvenile who had admitted to sufficient facts for a delinquency finding was upheld, along with an order extending the juvenile's probation as a sanction for nonpayment of the restitution. The public policy of the Commonwealth favors the award of restitution to victims of crime "to the greatest extent possible." G. L. c. 258B, § 3. "There is no question that restitution is an appropriate consideration in a criminal sentencing." Commonwealth v. Nawn, 394 Mass. 1, 6 (1985), citing Novelty Bias Binding Co. v. Shevrin, 342 Mass. 714, 717 (1961). See also G. L. c. 276, § 92A (providing that upon conviction of any one of enumerated offenses, defendant is required to pay restitution "for any financial loss sustained by the victim of his crime, his dependents or an insurer").
Subsection (b). This subsection is derived from Commonwealth v. Denehy, 466 Mass. 723 (2014); Commonwealth v. Nawn, 394 Mass. 1, 6-8 (1985); and Commonwealth v. Casanova, 65 Mass. App. Ct. 750, 755-756(2006). See Commonwealth v. Avram A., 83 Mass. App. Ct. 208(2013) (in case involving two incidents of tagging, upholding restitution order based in part on estimates of cost of repairs made by examining photographs of damage); Commonwealth v. Williams, 57 Mass. App. Ct. 917(2003) (rescript) (repair cost estimates by various vendors for damage to glass in building and vehicle rather than actual costs for repairs was sufficient to support award of restitution). The victim has the right to assistance from the prosecutor in documenting and obtaining restitution. See G. L. c. 258B, § 3(e). The prosecutor may offer testimony from the victim and expert witness testimony.
There is no right to a trial by jury in connection with an order for restitution. Nawn, 394 Mass. at 8-9.
Strict evidentiary rules are not imposed at a restitution hearing. Commonwealth v. Molina, 476 Mass. 388, 407 (2017). The defendant has a presumptive right to call witnesses, but the trial judge has the discretionary authority not to require a victim to testify, and to preclude the defendant from calling the victim as a witness, if the judge determines that the interest of insulating the victim from further trauma overcomes the defendant's presumptive right to call the victim.
"In particular, in determining whether the countervailing interests overcome the presumption after considering the totality of the circumstances, the judge conducting a restitution hearing should consider whether, based on an individualized assessment of the proposed witness, there is an unacceptable risk that the witness's physical, psychological, or emotional health would be significantly jeopardized if the witness were required to testify in court at the probation hearing."
Id. at 407-408.
Subsection (c). This subsection is derived from Commonwealth v. Henry, 475 Mass. 117 (2016). The Commonwealth bears the burden of proving that the victim's actual economic loss is causally connected to defendant's crime by a preponderance of the evidence. Id. at 121. The length of probation supervision imposed at the time of the sentence should not be based on the financial ability of the defendant but on the amount that will serve the dual goals of rehabilitation and protection of the public. Id. at 125. If the only basis for imposing probation is to collect restitution, the period of probation may be only for a brief period of time, thirty or sixty days. Id. at 125 n.8. Factors to be considered in determining the defendant's ability to pay are the financial resources of the defendant, including income and net assets, and defendant's financial obligations such as food, shelter, and clothing for the defendant and any dependents. Id. at 126. A payment order made as a condition of probation may not "cause a defendant a substantial financial hardship." Id. at 127. Restitution as a condition of probation is established at the monthly amount the defendant is able to pay multiplied by the number of months of probation, but no more than the actual economic loss. Id. at 125. Where the victim is a retailer, economic loss is based on the wholesale, not retail, price, unless the Commonwealth proves the items "would have been sold were they not stolen." Id. at 129.
Probation can be revoked or extended only upon a finding that the failure to pay the restitution amount was willful and that there was an ability to pay. Id. at 121. There can be no finding of a willful failure to pay where payment would cause substantial financial hardship to the defendant or any dependents. Commonwealth v. Bruno-O'Leary, 94 Mass. App. Ct. 44, 48(2018). The probationer bears the burden of proof with respect to inability to pay as a defense in probation violation proceedings. Id. at 49.
Refund if Conviction Is Invalidated. Where a conviction has been invalidated and it is determined that the case will not or cannot be retried, due process requires a refund of restitution payments (as well as certain other payments) made by the defendant. Commonwealth v. Martinez, 480 Mass. 777, 785 (2018), citing Nelson v. Colorado, 137 S. Ct. 1249, 1258 (2017). Because the only restitution ordered in Martinez was paid to a police department and refunded to the defendant, the Supreme Judicial Court expressly postponed deciding whether Nelson requires the Commonwealth to refund restitution paid by the defendant to a private victim.