hearsay rule in Massachusetts

2018L. c. 233, § 79 [;] ... [2] the information must be germane to the patient's treatment or medical history[;] ... [3] the information must be recorded from the personal knowledge of the entrant or from a compilation of the personal knowledge of those who are under a medical obligation to transmit such information[; and] ... [4] voluntary statements of third persons appearing in the record are not admissible unless they are offered for reasons other than to prove the truth of the matter contained therein or, if offered for their truth, come within another exception to the hearsay rule or the gen

2014See Common *465 wealth v. Caillot, 449 Mass. 712, 721 (2007). “[Ejvidence based on a chain of statements is admissible only if each out-of-court assertion falls within an exception to the hearsay rule.” Commonwealth v. McDonough, 400 Mass. 639 , 643 n.8 (1987), citing Bouchie v. Murray, 376 Mass. 524, 527-531 (1978).

2023Hearsay is "generally inadmissible unless it falls within an exception to the hearsay rule." Commonwealth v. Rice, 441 Mass. 291, 305 (2004).

2015However, “because the evidence is offered for the truth of the matter asserted — that a third party is the true culprit — we have permitted hearsay evidence that does not fall within a hearsay exception only if, in the judge’s discretion, ‘the evidence is otherwise relevant, will not tend to prejudice or confuse the jury, and there are other “substantial connecting links” to the crime.’ ” Silva-Santiago, supra at 801 , quoting Commonwealth v. Rice, 441 Mass. 291, 305 (2004).

2007While a statement may be introduced under this exception to the hearsay rule “only if the existence of the joint criminal venture is shown by some other evidence,” Commonwealth v. Colon-Cruz, supra, the Commonwealth can meet that burden by establishing an “adequate probability of the existence of a common venture, including participation by the given defendant.” Commonwealth v. Bongarzone, 390 Mass. 326, 340 (1983), quoting Commonwealth v. White, supra at 709 n.7.

1985It appears that the complainant’s identification was “instinctual” and not “contrived and calculated.” Commonwealth v. White, 370 Mass. 703, 713 (1976). 3 In sum, although the identification could not qualify under the exception to the hearsay rule set forth in Daye, it was admissible in the judge’s discretion as a spontaneous utterance.

2018"Several factors are relevant to the determination whether a statement is admissible under this exception to the hearsay rule: the degree of excitement displayed by the person making the statements, Commonwealth v. McLaughlin , 364 Mass. 211 , 222 (1973) ; whether the statement is made at the place where the traumatic event occurred or at another place, see Commonwealth v. Zagranski , 408 Mass. 278 , 284-286 (1990) ; the temporal closeness of the statement to the act it explains, see Commonwealth v. Giguere , 420 Mass. 226 , 233-234 (1995) ; and the degree of spontaneity.

2018Evid. § 901(b)(5) (2018). 9 In Commonwealth v. McLaughlin , 364 Mass. 211 , 221-222, 303 N.E.2d 338 (1973), the Supreme Judicial Court expressed the reasoning underlying the excited utterance or spontaneous exclamation exception to the rule against hearsay in terms drawn explicitly from Professor John Wigmore's treatise on the law of evidence: "The exception to the hearsay rule which admits hearsay consisting of spontaneous exclamations 'is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the refle

2018"Several factors are relevant to the determination whether a statement is admissible under this exception to the hearsay rule: the degree of excitement displayed by the person making the statements, Commonwealth v. McLaughlin , 364 Mass. 211 , 222 (1973) ; whether the statement is made at the place where the traumatic event occurred or at another place, see Commonwealth v. Zagranski , 408 Mass. 278 , 284-286 (1990) ; the temporal closeness of the statement to the act it explains, see Commonwealth v. Giguere , 420 Mass. 226 , 233-234 (1995) ; and the degree of spontaneity.

1999See 6 Wigmore, Evidence § 1750 (Chadboum rev. ed. 1976). 3 Several factors are relevant to the determination whether a statement is admissible under this exception to the hearsay rule: the degree of excitement displayed by the person mating the statements, Commonwealth v. McLaughlin, 364 Mass. 211, 222 (1973); whether the statement is made at the place where the traumatic event occurred or at another place, see Commonwealth v. Zagranski, 408 Mass. 278, 284-286 (1990); the temporal closeness of the statement to the act it explains, see Commonwealth v. Giguere, 420 Mass. 226, 233-234 (1995); and

2002Ry., 6 Mass. App. Ct. 553, 556 (1978).

2002Ry., 6 Mass. App. Ct. 553, 556 (1978).

2008Since Commonwealth v. Carr, 373 Mass. 617 (1977), Massachusetts courts have frequently considered the application of this hearsay exception in criminal cases.

2008As such, the statements are not “truly against the declar-ant’s penal interest.” Commonwealth v. Carr, supra. In the context of this case, where the defendant contends that Earle’s statements were admissible on the question whether she, and not the defendant, inflicted the injuries that caused Rachelle’s death, we conclude that the statements lack sufficient probity and therefore do not so far tend to subject Earle to criminal liability as is necessary to be admissible under this exception to the hearsay rule.

2010Under our common law of evidence, we have recognized that a statement may be sufficiently reliable to be admitted in evidence as an exception to the hearsay rule where it is made in reaction to a startling or shocking event if its utterance was “spontaneous to a degree which reasonably negated premeditation or possible fabrication and if it [tends] to qualify, characterize and explain the underlying event.” Commonwealth v. DiMonte, 427 Mass. 233, 236 (1998), quoting Commonwealth v. Crawford, 417 Mass. 358, 362 (1994).

2006“Under the spontaneous exclamation exception to the hearsay rule, ‘a statement is admissible if its utterance was spontaneous to a degree which reasonably negated premeditation or possible fabrication and if it tended to qualify, characterize and explain the underlying event.’ ” Commonwealth v. Crawford, 417 Mass. 358, 362 (1994), quoting Commonwealth v. Brown, 413 Mass. 693, 695-696 (1992).

1994Wigmore, whose plea for the business records exception to the hearsay rule was heeded by various legislatures, See, Wingate v. Emery Air Freight Corp., 385 Mass. 402, 409-410 (Liacos, J. concurring) (1982), obviously based his confidence in the accuracy of business records on their implicit trustworthiness.

1987Thus, unless statements on which the preparer relies fall within some other exception to the hearsay rule, the proponent must show that all persons in the chain of communication, from the observer to the preparer, reported the information as a matter of business duty or business routine.” Wingate v. Emery Air Freight Corp., 385 Mass. 402, 406 (1982).

2008Anthony asserts that this ruling excluding Ferlito’s grand jury testimony denied them the right to “present a defense.” 27 The question is whether the grand jury testimony of a witness who later becomes unavailable may be used against the Commonwealth at trial, an issue we have never resolved. 28 Our rule in both civil and criminal cases is that the prior recorded testimony of a witness at a former trial may be admitted as an exception to the hearsay rule “where the prior testimony was given by a person, now unavailable, in a proceeding addressed to substantially the same issues as in the curr

2001The prior recorded testimony exception to the hearsay rule applies “where the prior testimony was given by a person, now unavailable, in a proceeding addressed to substantially the same issues as in the current proceeding, with reasonable opportunity and similar motivation on the prior occasion for cross-examination of the declarant by the party against whom the testimony is now being offered.” Commonwealth v. Trigones, 397 Mass. 633, 638 (1986), quoting Commonwealth v. Meech, 380 Mass. 490, 494 (1980).

2012Although this argument is correct, see Commonwealth v. Gonsalves, 445 Mass. 1, 14 (2005), cert. denied, 548 U.S. 926 (2006), it is inapplicable where the statements at issue are offered for a nonhearsay purpose, rather than through a hearsay exception.

2009In our recent decision in Commonwealth v. Nardi, 452 Mass. 379, 391-392 (2008), we articulated the analytical framework for considering the admissibility of an out-of-court statement: “In the wake of the United States Supreme Court’s decisions in Crawford v. Washington, 541 U.S. 36 (2004) (Crawford), and Davis v. Washington, 547 U.S. 813 (2006) (Davis), we have held that the admissibility of an out-of-court statement is to be determined by a two-part inquiry. ‘[A] statement must first be evaluated for admissibility under normal evidence rules, i.e., whether it qualifies as a hearsay exception.

2023In reviewing whether an out-of-court statement comes within this exception, courts consider "whether there was an exciting event that would give rise to the exception," and then "whether the declarant displayed a degree of excitement sufficient to conclude that [the] statement was a spontaneous reaction to the exciting event, rather than the product of reflective thought." See Commonwealth v. Santiago, 437 Mass. 620, 624-625 (2002).

2002A statement is admissible under the spontaneous utterance exception to the hearsay rule if “(1) there is an occurrence or event ‘sufficiently startling to render inoperative the normal reflective thought processes of the observer,’ and (2) if the declarant’s statement was ‘a spontaneous reaction to the occurrence or event and not the result of reflective thought.’ ” Commonwealth v. Santiago, 437 Mass. 620, 623 (2002), quoting 2 McCormick, Evidence § 272, at 204 (5th ed. 1999).

1997Commonwealth v. Borodine, 371 Mass. 1, 7-9 (1976).” (Emphasis supplied.) Commonwealth v. Bond, 17 Mass. App. Ct. 396, 398 (1984).

1997Lowe, supra at 104-106 , citing Commonwealth v. Borodine, 371 Mass. 1 (1976), cert, denied, 429 U.S. 1049 (1977).

2017A record falls within the scope of the business records exception to the hearsay rule, set forth in § 78, ‘“if the judge finds that it was (1) made in good faith; (2) made in the regular course of business; (3) made before the action began; and (4) the regular course of business to make the record at or about the time of the transaction or occurrences recorded.” Beal Bank, SSB v. Eurich, 444 Mass. 813, 815 (2005), citing DiMarzi v. American Mut.

2017A record falls within the scope of the business records exception to the hearsay rule, set forth in § 78, "if the judge finds that it was (1) made in good faith; (2) made in the regular course of business; (3) made before the action 23 As discussed infra, both Corbin and Fulgiam vigorously contested the assertion that the ten-print cards associated with them actually contained their fingerprints because the ten-print cards lacked certain identifying information, including both Corbin and Fulgiam's signatures. 33 began; and (4) the regular course of business to make the record at or about the t

2006“Under the spontaneous exclamation exception to the hearsay rule, ‘a statement is admissible if its utterance was spontaneous to a degree which reasonably negated premeditation or possible fabrication and if it tended to qualify, characterize and explain the underlying event.’ ” Commonwealth v. Crawford, 417 Mass. 358, 362 (1994), quoting Commonwealth v. Brown, 413 Mass. 693, 695-696 (1992).

2002All of these statements were admitted by the judge under the rubric of “spontaneous utterance.” Under the “spontaneous utterance” exception to the hearsay rule, a witness’s out-of-court statements are admissible if the “utterance was spontaneous to a degree which reasonably negated premeditation or possible fabrication and if it tended to qualify, characterize and explain the underlying event.” Commonwealth v. Brown, 413 Mass. 693, 695 (1992), quoting from Blake v. Springfield St.

2016Acknowledging that the framers of the United States Constitution intended to “afford the States flexibility in their development of hearsay law,” Crawford v. Washington, 541 U.S. 36, 68 (2004), the defendant nonetheless asserts that under Federal law, statements made during the concealment phase of a criminal enterprise are not admissible because, among other reasons, permitting such statements would improperly expand a narrow exception to the hearsay rule.

2016The defendant had been arrested the prior month. 5 “[T]he question whether an out-of-court statement satisfies an exception to the hearsay rule is one for the judge alone.” Commonwealth v. Bright, 463 Mass. 421, 428 (2012). 6 Generally speaking, the statements of joint venturers are the type of remarks that are deemed nontestimonial under Crawford v. Washington, 541 U.S. 36, 56 (2004).

2019In general, "evidence based on a chain of statements is admissible only if each out-of-court assertion falls within an exception to the hearsay rule." Commonwealth v. Alcantara , 471 Mass. 550 , 558, 31 N.E.3d 561 (2015), quoting Commonwealth v. McDonough , 400 Mass. 639 , 643 n.8, 511 N.E.2d 551 (1987).

2019In general, "evidence based on a chain of statements is admissible only if each out-of-court assertion falls within an exception to the hearsay rule." Commonwealth v. Alcantara , 471 Mass. 550 , 558, 31 N.E.3d 561 (2015), quoting Commonwealth v. McDonough , 400 Mass. 639 , 643 n.8, 511 N.E.2d 551 (1987).

2011Instead, we must determine whether the statement contained in the return of service (to wit, that the defendant was served in hand on a particular day) falls within the official or public records exception to the hearsay rule because it is a “record of a primary fact, made by a public officer in the performance of official duty.” 8 Commonwealth v. Slavski, 245 Mass. 405, 417 (1923).

2011New Jersey’s statute governing protective orders provides that police officers “shall” serve such orders when they are issued by the courts of New Jersey. 9 Taken together, these statutory provisions demonstrate that the return of service is a “record of a primary fact, made by a public officer in the performance of official duty,” Commonwealth v. Slavski, 245 Mass. at 417 , such that it falls within the official or public records exception to the hearsay rule.

2012In order for evidence to fall within the hearsay exception for statements against penal interest, “[1] the declarant’s testimony must be unavailable; [2] the statement must so far tend to subject the declarant to criminal liability ‘that a reasonable man in his position would not have made the statement unless he believed it to be true’; and [3] the statement, if offered to exculpate the accused, must be corroborated by circumstances clearly indicating its trustworthiness.” Commonwealth v. Weichell, 446 Mass. 785, 802-803 (2006), quoting from Commonwealth v. Drew, 397 Mass. 65, 73 (1986).

2008As a hearsay exception, a statement is admissible as a declaration against penal interest if (1) the declarant is unavailable; (2) “the statement. . . so far tend[s] to subject the declarant to criminal liability ‘that a reasonable man in his position would not have made the statement unless he believed it to be true’ ”; and (3) the statement, “if offered to exculpate the accused, [is] corroborated by circumstances clearly indicating its trustworthiness.” Commonwealth v. Lopera, 42 Mass. App. Ct. 133, 135-136 (1997), quoting from Commonwealth v. Drew, 397 Mass. 65, 73 (1986).

2006In its decision, the Appeals Court cited Commonwealth v. Sellon, 380 Mass. 220 , 224 n.6 (1980) (“Where an exception to the hearsay rule allows the admission of a statement by an out-of-court declarant, this statement is subject ‘to impeachment in the appropriate ways,’ quoting 3A J.

1986L. c. 233, § 78 [1984 ed.]; Commonwealth v. Sellon, 380 Mass. 220, 230 [1980]), or as “past recollection recorded” under a well-established exception to the hearsay rule (see Fisher v. Swartz, 333 Mass. 265, 267 [1955]; Bendett v. Bendett, 315 Mass. 59, 64 [1943]).

2001Under that exception to the hearsay rule “a statement is admissible if its utterance was spontaneous to a degree which reasonably negated premeditation or possible fabrication . . . .” Commonwealth v. Fuller, 399 Mass. at 682 .

1994“Under the spontaneous exclamation exception to the hearsay rule, ‘a statement is admissible if its utterance was spontaneous to a degree which reasonably negated premeditation or possible fabrication and if it tended to qualify, characterize and explain the underlying event.’ ” Commonwealth v. Fuller, 399 Mass. 678, 682 (1987), quoting Blake v. Springfield St.

2019See Julian v. Randazzo , 380 Mass. 391 , 394, 403 N.E.2d 931 (1980) (statements contained within reports may be inadmissible as "second level" hearsay). "[E]vidence based on a chain of statements is admissible only if each out-of-court assertion falls within an exception to the hearsay rule" (citation omitted).

2019See Julian v. Randazzo , 380 Mass. 391 , 394, 403 N.E.2d 931 (1980) (statements contained within reports may be inadmissible as "second level" hearsay). "[E]vidence based on a chain of statements is admissible only if each out-of-court assertion falls within an exception to the hearsay rule" (citation omitted).

2023"We 23 grant a trial judge broad discretion in determining whether a hearsay exception applies." Commonwealth v. Ray, 467 Mass. 115, 137-138 (2014), citing Commonwealth v. King, 436 Mass. 252 , 254- 255 (2002).

2018"A statement is admissible under the spontaneous [or excited] utterance exception to the hearsay rule if the proponent shows that the statement was made under the influence of an exciting event, before the declarant had time to contrive or fabricate the statement, and that the statement tended to qualify, characterize and explain the underlying event." Commonwealth v. King , 436 Mass. 252 , 254 (2002).

2010On the assault and battery conviction, the defendant was sentenced to two and one-half years in a house of correction. 5 We noted that, “[i]n cases involving the hearsay rule and its exceptions, ... art. 12 [of the Massachusetts Declaration of Rights] provides no greater protection than the Sixth Amendment [to the United States Constitution].” Commonwealth v. Edwards, 444 Mass. 526, 536 (2005) (Edwards), quoting Commonwealth v. Whelton, 428 Mass. 24, 28 (1998). 6 Elsewhere in Giles v. California, 554 U.S. 353 (2008) (Giles), the Supreme Court declared that forfeiture by wrongdoing applies “onl

2006We note, however, that “[i]n cases involving the hearsay rule and its exceptions, we have stated that art. 12 provides no greater protection than the Sixth Amendment.” Commonwealth v. Whelton, 428 Mass. 24, 28 (1998).

2003Permitting this testimony under the narrow state of mind exception to the hearsay rule is to allow the exception to swallow the rule.’ Id. at 493 .” Commonwealth v. Gil, 393 Mass. 204, 218 (1984), and Commonwealth v. Andrade, 422 Mass. 236, 239 (1996), also hold that threats preceding a crime can be introduced only from a witness who heard or witnessed them.

2001The judge found Christian’s statements pertained to his intent to rob, a critical element of the alleged felony underlying the Commonwealth’s theory of felony-murder. “[A] declaration of intention, offered to prove the declarant’s state of mind, then and later ... is not excluded by the hearsay rule; either it is not hearsay, or it is within an exception to the hearsay rule.” Commonwealth v. Wampler, 369 Mass. 121, 123 (1975), citing Commonwealth v. DelValle, 351 Mass. 489, 491-492 (1966).

2023See Chambers, supra (where excluded testimony "bore persuasive assurances of trustworthiness" and "was critical to [the defendant's] defense," "the hearsay rule may not be applied mechanistically to defeat the ends of justice").

2018Recognizing a constitutionally based hearsay exception "rooted in the United States Supreme Court's decision in Chambers v. Mississippi ," 410 U.S. 284 , 302, 93 S.Ct. 1038 , 35 L.Ed.2d 297 (1973), we held that the deceased witness's affidavit could be admissible at postconviction proceedings, notwithstanding that it did not fall into any traditional category of a hearsay exception.