Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault

3.8. ASSESS THE BASIS FOR ADMISSIBILITY OF ALL TESTIMONY

Consider all potential types of testimony, bearing in mind critical hearsay exceptions and Crawford v. Washington, 541 U.S. 26 (2004), Davis v. Washington and Hammon v. Indiana, 126 S. Ct. 2266 (2006), as well as Commonwealth v. Gonsalves, 445 Mass. 1 (2005). See further information below in this section.

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  Review the following list of types of potential testimony, and the brief explanations and annotations regarding each type of testimony.
  

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  Even if you are confident you can prove all the elements of the alleged crime with the witnesses you presently have, you must prepare for future complications: you will not know if you are going to need many of these statements until trial has commenced --
  

e.g., the victim becomes unavailable, so you need to enter prior recorded testimony and declarations of physical condition;

e.g., the defendant claims the victim is contriving, so you offer prior consistent statements as corroboration of credibility;

e.g., the victim testifies for the defense, so you offer her grand jury testimony as a prior inconsistent statement for impeachment purposes.

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  See if the police reports and witness statements contain the information you need to determine the availability of all possible types of testimony. If not, see that investigators/officers locate and interview the appropriate witnesses and file supplemental reports.
  

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  Identify the basis for admissibility for all testimony. First, ask “is the evidence offered for purposes other than the truth of the matter?” If so, it is not hearsay testimony.
  

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  Hearsay evidence is nevertheless admissible in some instances, either because the statements were made under circumstances that insure accuracy, or because no better evidence is available. Liacos, Handbook on Massachusetts Evidence, § 8.8, at 464 (7th ed. 1999) (“Liacos”). Review these hearsay exceptions. Keep in mind, however, the principles laid out in Crawford v. Washington, 541 U.S. 26 (2004); Davis v. Washington and Hammon v. Indiana, 126 S. Ct. 2266 (2006); and Commonwealth v. Gonsalves, 445 Mass. 1 (2005), all of which state that testimonial statements are inadmissible unless the declarant is legally unavailable and there was a prior adequate opportunity for cross-examination.
  

Consider:

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  Admissions and Implied Admissions
  
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  Business Records
  
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  Certification of Out-of State Restraining Orders
  
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  Character and Reputation Evidence
  
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  Confessions
  
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  Consciousness of Guilt Evidence
  
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  Declarations by the Victim of Physical Condition
  
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  Declarations as to Mental Condition (“State of Mind”)
  
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  Descriptions of the Victim’s Appearance and Demeanor
  
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  First Complaint
  

(see sample motion, section 6, infra)

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  Hostile Relationship Evidence
  
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  “Intimidating” Evidence (efforts to induce a witness not to testify)
  
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  Learned Treatises
  
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  Medical Records/ Medical Opinion
  
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  Past Recollection Recorded/ Present Recollection Revived
  
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  Present Sense Impression
  
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  Prior Bad Acts by the Defendant
  

(see sample motion, section 6, infra)

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  Prior Bad Acts by the Victim
  

(see sample motion, section 6, infra)

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  Prior Consistent Statements: “Rehabilitation”
  
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  Prior Criminal Convictions
  

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  Prior Inconsistent Statements: “Impeachment”
  

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  Prior Reported Testimony, declarant unavailable
  

(see sample motion, section 6, infra)

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  Public Records
  
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  Res Gestae
  
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  Spontaneous Utterances / Exclamations (a.k.a. “Excited Utterances)
  

(see sample motion, section 6, infra)

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  Voice Identification
  

For a more thorough treatment of evidentiary foundations, Massachusetts case law, and admissibility issues with respect to all of these subjects, consult Liacos’s Handbook on Massachusetts Evidence or the Massachusetts Digest.

3.8.1.Admissions and Implied Admissions

“Traditionally, the extrajudicial statements of a party have been labeled ‘admissions.’ The term, however, is misleading. There is no requirement that an extrajudicial statement of a party be incriminating, inculpatory, or inconsistent with his perceived interests at the time it was made, to be admissible. Any statement of a party is admissible against him when offered by an opponent, if not objectionable on grounds other than hearsay.” Such statements are admissible without regard to whether the party against whom they are offered testifies in his own behalf. Both oral and written statements are admissible. Liacos, § 8.8, at 497.
Look for: statements by the defendant, both oral and written, to officers, jail booking clerks, 911 operators, relatives, neighbors, children, the victim, etc.
Remember: they will be admissible whether or not the defendant testifies; no foundations are required (unlike prior inconsistent statements); and testimony by the defendant in a prior court proceeding is admissible as an admission, whether or not he testifies in a subsequent proceeding.

3.8.2.Business Records

An entry in an account kept in a book or by a card system or by any other system of keeping accounts, or a writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event shall not be inadmissible in any civil or criminal proceeding as evidence of the facts therein stated because it is transcribed or because it is hearsay or self-serving, if the court finds that the entry, writing or record was made in good faith in the regular course of business and before the beginning of the civil or criminal proceeding ... and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.
Mass. Gen. Laws ch. 233, § 78.
The custodian of records or a person familiar with how the records are generated may testify. Four preliminary findings must be made:
a) that the entry was made in good faith;

b) in the regular course of business;

c) before the action was begun; and

d) that it was the usual course of business to make the entry at the time of the event recorded or within a reasonable time thereafter.

Business Records after Crawford v. Washington, 541 U.S. 26 (2004); Davis v. Washington and Hammon v. Indiana, 126 S. Ct. 2266 (2006); and Commonwealth v. Gonsalves, 445 Mass. 1 (2005):
Keep in mind that even if the business record satisfies the above requirements, the record still may be inadmissible on grounds that it violates the defendant’s 6^th Amendment right to confrontation. This applies if: a) the author of the records is NOT available to testify; and b) the statements contained in the record itself are testimonial. If the statements contained within the record are testimonial, then the hearsay statements contained in the record may only be admissible if the declarant is legally unavailable, and there was a prior adequate opportunity to cross-examine the declarant. See Crawford v. Washington, 541 U.S. 26 (2004); Davis v. Washington and Hammon v. Indiana, 126 S. Ct. 2266 (2006); and Commonwealth v. Gonsalves, 445 Mass. 1 (2005).
See Section 3.8.21, infra, for further information on “legal unavailability” and “prior opportunity to cross-examine.”
Here are some examples of the records you should consider: Computer and E-mail Records (see section 3.5.1, above); Employment Records (to show opportunity or identity); E.M.T. Run Sheets; Fax Records; Hospital Records, Invoices, Medical Exams, Tests, or Treatment Records; Operator transcripts (911 calls; Phone Records; Police Logs; School Records (to show opportunity or identity).
Remember, if you seek to offer any of the records listed above in evidence AND the records contain hearsay statements, AND the actual author of the records is not available to testify, then you must look to see if the hearsay statement is “testimonial” as the term is defined in Crawford, Hammon, Davis and Gonsalves.
Here is a summary of the Important Cases on this issue:
Crawford v. Washington, 541 U.S. 26 (2004)

Statements made by a witness while being interrogated by law enforcement are “testimonial” and are not admissible if the witness becomes “unavailable” at the time of trial unless the defendant had a prior opportunity to cross-examine the witness. The previous reliability test established in Ohio v. Roberts to admit out-of-court hearsay statements is no longer sufficient.

Davis v. Washington and Hammon v. Indiana, 126 S. Ct. 2266 (2006)

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Statements are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Commonwealth v. Galicia, 2006 Mass. LEXIS 686 (2006)

Statements made by a victim to a 911 dispatcher are admissible if they were made under circumstances objectively indicating that the primary purpose was to enable police to meet an ongoing emergency. Conversely, statements made by a victim to responding officers when the emergency passed are not admissible.

Commonwealth v. Gonsalves, 445 Mass. 1 (2005)

If the Commonwealth’s witness is legally unavailable, his out-of-court testimonial statements will not be admissible unless there was a prior opportunity for adequate cross-examination by the defendant. Each hearsay statement must be analyzed under both the testimonial per se and the testimonial in fact tests.

Testimonial per se: Includes prior testimony before a grand jury, at a deposition, preliminary hearing, prior trial or in an affidavit, and statements procured through police interrogation.

Police Interrogation: Includes any statement made in response to questioning by law enforcement agents except when the purpose of the questioning is to secure a volatile scene or to address the need for medical care.
Testimonial in fact: The test is whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting a crime.
Commonwealth v. Lampron, 65 Mass. App. Ct. 340 (2005)

Medical records made shortly after a patient’s admission to the hospital that are kept for the purpose of diagnosis and treatment, which include opinion and discretionary statements and which do not contain anything that suggests they were made in anticipation of their use in the investigation or prosecution of a crime, are not “testimonial per se” or “testimonial in fact”, and therefore do not implicate the confrontation clause.
Commonwealth v. Verde, 444 Mass. 279 (2005)

Drug certificates are not testimonial evidence and therefore the confrontation clause is not implicated. The laboratory technician who analyzed the drugs is not required to testify at trial in order for the drug certificate to be admitted into evidence. Drug certificates are akin to a business record and therefore fall within the public records exception to the confrontation clause.

Commonwealth v. Crapps, 64 Mass. App. Ct. 915 (2005)

Certified records of prior conviction and drug certifications are not testimonial and do not implicate the confrontation clause.