Massachusetts Guide to Evidence

Massachusetts is one of the few states that has not adopted some version of the Federal Rules of Evidence. The rules of evidence in Massachusetts are not codified, meaning that evidentiary issues are governed by common law. In 1982, the Supreme Judicial Court (“SJC”) rejected a proposed codification of Massachusetts evidence law, yet encouraged lawyers to cite to the “proposed rules.” Lawyers had to understand case law in order to know the evidentiary rules that apply in Massachusetts, as well as be familiar with the federal rules of evidence and the “proposed rules.”

This, however, has changed in recent years. In 2006, the SJC established an advisory committee to develop The Massachusetts Guide to Evidence (“the Guide”) at the request of the Massachusetts Bar Association, the Boston Bar Association, and the Massachusetts Academy of Trial Attorneys. In 2008, the SJC appointed the Executive Committee of the Advisory Committee on Massachusetts Evidence Law, and it endorsed the Guide. Massachusetts Appeals Court Judge Peter Agnes chairs the Executive Committee and is the editor-in-chief of the Guide. Thus far, there have been seven annual editions of the Guide. The most recent edition was released in April 2015 and is available here to download, search, print, and save. This edition was dedicated to The Honorable John E. Fenton, Jr., who passed away in 2014 and was one of the key players behind the “proposed rules.”

Although the Guide is not statutory law in Massachusetts, the SJC explicitly recommends its use by judges, lawyers, and the public. The 2015 edition of the Guide states that “[t]he purpose of the Massachusetts Guide to Evidence is to make the law of evidence more accessible and understandable to the bench, bar, and public. We encourage all interested persons to use the Massachusetts Guide to Evidence.” Interestingly, the Massachusetts Appeals Court and the SJC have cited to the Guide over 500 times since it was published in 2008.

The Guide is a very helpful resource. It assembles existing Massachusetts evidence law in one document that is organized like the Federal Rules of Evidence and contains useful explanatory notes. Another feature of the Guide is that it tries to use “plain English” rather than “legalese,” making it easier to read and to understand. The explanatory notes are particularly helpful as well. The 2015 edition was updated with recent cases from 2014 through January 2015. The 2015 edition “contains three new sections: Section 1113, Opening Statements and Closing Arguments; Section 1114, Restitution; and Section 1115, Evidentiary Issues in Care and Protection and Termination of Parental Rights Cases. Also, Section 1112, Eyewitness Identification, was substantially revised to account for significant decisions issued by the Supreme Judicial Court. Finally, the advisory committee ‘restyled’ pertinent sections of the 2015 edition so they conform to the 2011 amendments to the Federal Rules of Evidence.”

In short, the Guide is a superb resource explaining the law of evidence in Massachusetts. Even if the Guide is not binding statutory authority, the fact that the appellate courts regularly rely upon and cite to it as a source of authority supports its continued value in the Massachusetts legal community.


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