Section 1109. View
(a) Availability.
(1) Upon motion in civil and criminal cases, the court has discretion to allow the jury, accompanied by the judge, or, in a matter tried without a jury, the judge to take a view of the premises or place in question or any property matter or thing relative to the case.
(2) In a limited class of civil cases, a party has the right, upon request, to a view.
(b) Conduct. Counsel may point out the essential features of the place or thing that is the subject of the view, but no comment or discussion is permitted. No witnesses are heard. Jurors are not permitted to ask questions.
(c) Status. Observations made by the jury or by the judge on a view may be used by the finder of fact in making a decision.
(d) Costs. In a civil case, the expenses of taking a view shall be paid by the party who makes the motion or in accordance with an agreement between or among some or all of the parties, and may be taxed as costs if the party or parties who advanced them prevails. In a criminal case, the expenses of taking a view shall be paid by the Commonwealth.
NOTE
Subsection (a)(1). This subsection is derived from Commonwealth v. Gedzium, 259 Mass. 453, 462, 156 N.E. 890, 893 (1927); Madden v. Boston Elevated Ry. Co., 284 Mass. 490, 493494, 188 N.E. 234, 236 (1933); Commonwealth v. Gomes, 459 Mass. 194, 201202, 944 N.E.2d 1007, 10131014 (2011); and G. L. c. 234, 35. In the administrative context, the judge or fact finder also may have the right to conduct a view. See, e.g., G. L. c. 152, 2 (Authority of the Division of Industrial Accidents to make all necessary inspections and investigations relating to causes of injuries for which compensation may be claimed . . . .).
Ordinarily a view is taken after the jury is sworn but before the evidence is taken. However, the court has discretion to take a view after the evidence begins and at any time during the trial. See Yore v. City of Newton, 194 Mass. 250, 253, 80 N.E. 472, 472 (1907) (court permitted jury to take a view after deliberations had begun).
The court may exercise its discretion to deny a motion for a view when visiting a particular location would not fairly represent the way it appeared or the conditions that existed at the time of the events that are the subject of the trial. See Commonwealth v. Cataldo, 423 Mass. 318, 327 n.8, 668 N.E.2d 762, 767 n.8 (1996). However, even though the appearance of premises or a thing has changed, if the premises or thing in its altered condition would be helpful to the jury in understanding the evidence the court has discretion to permit a view. See Commonwealth v. Welansky, 316 Mass. 383, 401402, 55 N.E.2d 902, 912 (1944) (there was no error in permitting the jury to take a view of a nightclub after a fire had severely damaged it and caused the death of numerous persons who were trapped inside). The court may deny a motion for a view because it will not contribute to the jurys understanding of the evidence at trial. See Commonwealth v. Cambell, 378 Mass. 680, 704705, 393 N.E.2d 820, 835, cert. denied, 488 U.S. 847 (1979).
Subsection (a)(2). This subsection is derived from G. L. c. 80, 9 (betterment assessments); G. L. c. 79, 22 (eminent domain); and G. L. c. 253, 7 (mill flowage).
Subsection (b). This subsection is derived from Commonwealth v. Dascalakis, 246 Mass. 12, 2930, 140 N.E. 470, 477478 (1923). Generally, an impropriety occurring on a view may be cured by cautionary instructions. Commonwealth v. Cresta, 3 Mass. App. Ct. 560, 562, 336 N.E.2d 910, 913 (1975), citing Commonwealth v. Madeiros, 255 Mass. 304, 313, 151 N.E. 297, 299 (1926).
Neither the State nor the Federal Constitution gives the defendant in a criminal case a right to be present at a view. If a view is taken in a criminal case, it is within the judges discretion to allow the defendant to be present. Commonwealth v. Morganti, 455 Mass. 388, 402403, 917 N.E.2d 191, 204 (2009) (We have held repeatedly that a defendant does not have a right to be present during a jury view under either the Sixth or the Fourteenth Amendment to the United States Constitution or art. 12 of the Massachusetts Declaration of Rights [citation and quotations omitted].). See also Commonwealth v. Mack, 423 Mass. 288, 291, 667 N.E.2d 867, 869 (1996) (The judge gave the defendant the option of attending the jurys view of the crime scene if the defendant was in a police car and some distance away from the jury. After consultation with trial counsel, the defendant decided not to participate in the view.); Commonwealth v. Gagliardi, 29 Mass. App. Ct. 225, 237, 559 N.E.2d 1234, 1243 (1990) ([A] defendant should not assume that the judge will permit his attendance and show up without prior permission. A defendant is not entitled of right to confer with his counsel during a view.).
Subsection (c). This subsection is derived from Commonwealth v. Curry, 368 Mass. 195, 330 N.E.2d 819 (1975), where the Supreme Judicial Court stated that
[t]he chief purpose (of a view) is to enable the jury to understand better the testimony which has or may be introduced. The function of the jury . . . is simply to observe. Although what is seen on the view may be used by the jury in reaching their verdict, in a strict and narrow sense a view may be thought not to be evidence. (Citations omitted.)
Id. at 197198, 330 N.E.2d at 821. See also Berlandi v. Commonwealth, 314 Mass. 424, 451, 50 N.E.2d 210, 226 (1943) (A view is not technically evidence and subject to all the principles applicable to evidence . . . [but] it inevitably has the effect of evidence [citations and quotation omitted].); Commonwealth v. Perryman, 55 Mass. App. Ct. 187, 193194 n.1, 770 N.E.2d 1, 6 n.1 (2002) (a view is analogous to a courtroom demonstration or the use of a chalk; observations made on a view can be used to illustrate testimony and assist the jury in weighing the evidence they hear so long as the conditions are similar to the circumstances of the matter to be proved).
Subsection (d). This subsection is derived from G. L. c. 234, 35.
