The (very) Confusing State of the Law of Evidence in Massachusetts

by Lee Gesmer on November 29, 2008

The (very) Confusing State of the Law of Evidence in Massachusetts

“Parties are invited to cite to the Proposed Rules, whenever appropriate, in briefs and memoranda submitted.
Proposed Massachusetts Rules of Evidence (Supreme Judicial Court, December, 1982)”

“The provisions contained in this Guide may be cited by lawyers, parties, and judges, but are not to be construed as adopted rules of evidence or as changing the existing law of evidence.
Massachusetts Guide to Evidence, Section 1.1  (Supreme Judicial Court, November 2008)”

History does not repeat itself, but it does rhyme
Mark Twain
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On November 24, 2008, the Massachusetts Supreme Judicial Court issued a press release stating that “The Supreme Judicial Court and its Advisory Committee on Massachusetts Evidence Law today announce the release of the Massachusetts Guide to Evidence. The Supreme Judicial Court recommends the use of this Guide.”  The press release quotes Chief Justice Margaret Marshall, who states: “This new Guide will make the law of evidence more accessible and understandable to the bench, bar and the public.

Anyone reading this with some historical perspective has to wonder, and here’s why.

The Federal Rules of Evidence (FRE) were enacted into law in 1975, after ten years of preparation.  This was a very big deal – the rules codified centuries of “common law” of evidence – judge-made law that could vary from court to court. It had taken almost 40 years from the enactment of the Federal Rules of Civil Procedure for these evidence rules to be codified.  The FRE motivated many states (whose evidence laws are independent from the federal rules and from each other) to adopt some version of the FRE, often with modifications, but with enough uniformity that a lawyer going from state A to state B could be confident that the vast majority of the rules would be identical or similar.  Forty-two states have adopted evidence rules based on the federal rules.

Only eight states have failed to do so and, no surprise, Massachusetts is one of them.

But, it hasn’t been for want of effort.

In 1982 the SJC rejected a proposed codification of evidence law (what would come to be referred to as the Massachusetts Proposed Rules of Evidence, or the “Proposed Rules”), stating that the Proposed Rules would require coordination with the Legislature to modify state statutes, that the Proposed Rules departed too much from the FRE, and that adoption would restrict the development of common law rules of evidence (the latter being the whole point, one might argue). (See Handbook of Massachusetts Evidence, Section 1.1).  However, the SJC invited litigants to cite the rules, and for that reason the Proposed Rules have been a factor in Massachusetts evidence law for the last 26 years.

In fact, it became common practice for lawyers and judges to use three bodies of law to support evidentiary arguments – the common law, the Federal Rules, and the Proposed Rules.  And so, in Massachusetts, the law of evidence advanced in a patchwork manner, with trial judges and the appellate courts adopting some  rules from either source, rejecting others, and no one quite sure what body of law would be persuasive in a particular instance. The authors of various evidence treatises were kept busy trying to keep track of these developments, so lawyers didn’t have to untangle this mess.

Of course, nothing is forever, and there’s no reason why the Massachusetts courts should be hindered by efforts that are now ancient history.  And so, it came to pass that in 2006 the SJC established an advisory committee to develop a “Guide” to evidence, leading to the SJC’s endorsement of the Guide to Evidence in November 2008.

While the Guide is not statutory law in Massachusetts (and therefore is not strictly “binding”  on the courts), it appears that everyone involved in its creation and endorsement has decided that it is an accurate statement of the law, at least at this time.  Therefore, it is the “most” persuasive statement of the law on any topic of evidence, at least for the time being.  Of course, not being statutory law, any judge or court can chose to disregard it – in fact, a future SJC could easily rule that a particular provision of the Guide (or even the entire Guide) is no longer useful, and relegate the document to the legal dust bin.

However, at least for the present, the Guide to Evidence should be the first (but not the last) place any lawyer with an evidentiary question should go to get a handle on the law.  Hopeful, the Proposed Rules are now obsolete, and lawyers can ignore them, but I wouldn’t count on it.

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