804 Hearsay Exceptions Declarant Unavailable

Section 804. Hearsay Exceptions; Declarant Unavailable

(a) Definition of Unavailability. “Unavailability as a witness” includes situations in which the declarant

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarants statement, or

(2) refuses to testify [exception not recognized], or

(3) testifies to a lack of memory [exception not recognized], or

(4) is unable to be present or to testify at the hearing because of death or then-existing physical or mental illness or infirmity, or

(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarants attendance by process or other reasonable means.

A declarant is not unavailable as a witness if the unavailability is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Prior Recorded Testimony. Testimony given as a witness at another trial or hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or in a civil action or proceeding, a predecessor in interest, had an opportunity and a similar motive to develop the testimony by direct, cross-, or redirect examination.

(2) Statement Made Under Belief of Impending Death. In a prosecution for homicide, a statement made by a declarant-victim under the belief of imminent death and who died shortly after making the statement, concerning the cause or circumstances of what the declarant believed to be the declarants own impending death or that of a co-victim.

(3) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarants pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarants position would not have made the statement unless believing it to be true. In a criminal case, the exception does not apply to a statement that is offered to exculpate the defendant or that is offered by the Commonwealth to inculpate the defendant, and that tends to expose the declarant to criminal liability, unless corroborating circumstances clearly indicate the trustworthiness of the statement.

(4) Statement of Personal History.

(A) A statement concerning the declarants own birth, adoption, marriage, divorce, legitimacy, relationship by blood, or ancestry, even if the declarant had no means of acquiring personal knowledge of the matter stated.

(B) A statement regarding foregoing matters concerning another person to whom the declarant is related [exception not recognized].

(5) Statutory Exceptions in Civil Cases.

(A) Declarations of Decedent. In any action or other civil judicial proceeding, a declaration of a deceased person shall not be inadmissible in evidence as hearsay or as private conversation between husband and wife, as the case may be, if the court finds that it was made in good faith and upon the personal knowledge of the declarant.

(B) Deceased Party’s Answers to Interrogatories. If a party to an action who has filed answers to interrogatories under any applicable statute or any rule of the Massachusetts Rules of Civil Procedure dies, so much of such answers as the court finds have been made upon the personal knowledge of the deceased shall not be inadmissible as hearsay or self-serving if offered in evidence in said action by a representative of the deceased party.

(C) Declarations of Decedent in Actions Against an Estate. If a cause of action brought against an executor or administrator is supported by oral testimony of a promise or statement made by the testator or intestate of the defendant, evidence of statements, written or oral, made by the decedent, memoranda and entries written by the decedent, and evidence of the decedents acts and habits of dealing, tending to disprove or to show the improbability of the making of such promise or statement, shall be admissible.

(D) Reports of Deceased Physicians in Tort Actions. In an action of tort for personal injuries or death, or for consequential damages arising from such personal injuries, the medical report of a deceased physician who attended or examined the plaintiff, including expressions of medical opinion, shall, at the discretion of the trial judge, be admissible in evidence, but nothing therein contained which has reference to the question of liability shall be so admissible. Any opposing party shall have the right to introduce evidence tending to limit, modify, contradict, or rebut such medical report. The word physician as used in this section shall not include any person who was not licensed to practice medicine under the laws of the jurisdiction within which such medical attention was given or such examination was made.

(E) Medical Reports of Disabled or Deceased Physicians as Evidence in Workers’ Compensation Proceedings. In proceedings before the industrial accident board, the medical report of an incapacitated, disabled, or deceased physician who attended or examined the employee, including expressions of medical opinion, shall, at the discretion of the member, be admissible as evidence if the member finds that such medical report was made as the result of such physicians attendance or examination of the employee.

(6) Forfeiture by Wrongdoing. A statement offered against a party who forfeits, by virtue of wrongdoing, the right to object to its admission based on findings by the court that (A) the witness is unavailable; (B) the party was involved in, or responsible for, procuring the unavailability of the witness; and (C) the party acted with the intent to procure the witnesss unavailability.

(7) Religious Records. Statements of fact made by a deceased person authorized by the rules or practices of a religious organization to perform a religious act, contained in a certificate that the maker performed such act, and purporting to be issued at the time of the act or within a reasonable time thereafter.

(8) Admissibility in Criminal Proceedings of a Child’s Out-of-‌Court Statement Describing Sexual Contact. General Laws c. 233, § 81, was adopted prior to the United States Supreme Courts decisions in Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), as well as the Supreme Judicial Courts decisions in Commonwealth v. Gonsalves, 445 Mass. 1, 833 N.E.2d 549 (2005), cert. denied, 548 U.S. 926 (2006), and Commonwealth v. Amirault, 424 Mass. 618, 677 N.E.2d 652 (1997). These decisions call into question the constitutionality of this subsection.

(A) Admissibility in General. An out-of-court statement of a child under the age of ten describing an act of sexual contact performed on or with the child, the circumstances under which it occurred, or which identifies the perpetrator shall be admissible as substantive evidence in any criminal proceeding; provided, however, that

(i) the statement is offered as evidence of a material fact and is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts,

(ii) the person to whom the statement was made or who heard the child make the statement testifies,

(iii) the judge finds pursuant to Section 804(b)(8)(B) that the child is unavailable as a witness,

(iv) the judge finds pursuant to Section 804(b)(8)(C) that the statement is reliable, and

(v) the statement is corroborated pursuant to Section 804(b)(8)(D).

(B) Unavailability of Child. The proponent of such statement shall demonstrate a diligent and good-faith effort to produce the child and shall bear the burden of showing unavailability. A finding of unavailability shall be supported by specific findings on the record, describing facts with particularity, demonstrating that

(i) the child is unable to be present or to testify because of death or physical or mental illness or infirmity;

(ii) by a ruling of the court, the child is exempt on the ground of privilege from testifying concerning the subject matter of such statement;

(iii) the child testifies to a lack of memory of the subject matter of such statement;

(iv) the child is absent from the hearing and the proponent of such statement has been unable to procure the attendance of the child by process or by other reasonable means;

(v) the court finds, based upon expert testimony from a treating psychiatrist, psychologist, or clinician, that testifying would be likely to cause severe psychological or emotional trauma to the child; or

(vi) the child is not competent to testify.

(C) Reliability of Statement. If a finding of unavailability is made, the out-of-court statement shall be admitted if the judge further finds,

(i) after holding a separate hearing, that such statement was made under oath, that it was accurately recorded and preserved, and that there was sufficient opportunity to cross-‌examine, or

(ii) after holding a separate hearing and, where practicable and where not inconsistent with the best interests of the child, meeting with the child, that such statement was made under circumstances inherently demonstrating a special guarantee of reliability.

For the purposes of finding circumstances demonstrating reliability pursuant to this subsection, a judge may consider whether the relator documented the child witnesss statement and shall consider the following factors:

(a) the clarity of the statement, meaning the childs capacity to observe, remember, and give expression to that which such child has seen, heard, or experienced; provided, however, that a finding under this clause shall be supported by expert testimony from a treating psychiatrist, psychologist, or clinician;

(b) the time, content, and circumstances of the statement; and

(D) Corroborating Evidence. The out-of-court statement must be corroborated by other independently admitted evidence.

(E) Admissibility by Common Law or Statute. An out-‌of-court statement admissible by common law or by statute shall remain admissible notwithstanding the provisions of this section.

(9) Out-of-Court Statement of Child Describing Sexual Contact in Civil Proceeding, Including Termination of Parental Rights.

(A) Admissibility in General. The out-of-court statements of a child under the age of ten describing any act of sexual contact performed on or with the child, the circumstances under which it occurred, or which identifies the perpetrator shall be admissible as substantive evidence in any civil proceeding, except proceedings brought under G. L. c. 119, 23(C) and 24; provided, however, that

(i) such statement is offered as evidence of a material fact and is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts,

(ii) the person to whom such statement was made or who heard the child make such statement testifies,

(iii) the judge finds pursuant to Section 804(b)(9)(B) that the child is unavailable as a witness,

(iv) the judge finds pursuant to Section 804(b)(9)(C) that such statement is reliable, and

(v) such statement is corroborated pursuant to Section 804(b)(9)(D).

(i) the child is unable to be present or to testify because of death or existing physical or mental illness or infirmity;

(ii) by a ruling of the court, the child is exempt on the ground of privilege from testifying concerning the subject matter of such statement;

(iii) the child testifies to a lack of memory of the subject matter of such statement;

(iv) the child is absent from the hearing and the proponent of such statement has been unable to procure the attendance of the child by process or by other reasonable means;

(vi) the child is not competent to testify.

(C) Reliability of Statement. If a finding of unavailability is made, the out-of-court statement shall be admitted if the judge further finds,

(i) after holding a separate hearing, that such statement was made under oath, that it was accurately recorded and preserved, and that there was sufficient opportunity to cross-‌examine, or

(b) the time, content, and circumstances of the statement;

(c) the existence of corroborative evidence of the substance of the statement regarding the abuse, including either the act, the circumstances, or the identity of the perpetrator; and

(d) the childs sincerity and ability to appreciate the consequences of the statement.

(D) Corroborating Evidence. The out-of-court statement must be corroborated by other independently admitted evidence.

(E) Admissibility by Common Law or Statute. An out-‌of-court statement admissible by common law or by statute shall remain admissible notwithstanding the provisions of this section.

NOTE

Confrontation Clause. In a criminal case, a hearsay statement offered against the accused must satisfy both the confrontation clause and one of the hearsay exceptions. For a discussion of the relationship between the confrontation clause and the hearsay exceptions stated in Section 804, refer to the Introductory Note to Article VIII.

Introduction. Section 804 defines hearsay exceptions that are conditioned upon a showing that the declarant is unavailable. Section 804(a) defines the requirement of unavailability that applies to all the hearsay exceptions in Section 804(b). The second paragraph of Section 804(a) is consistent with the doctrine of forfeiture by wrongdoing adopted by the Supreme Judicial Court in Commonwealth v. Edwards, 444 Mass. 526, 540, 830 N.E.2d 158, 170 (2005).

The exceptions that apply when the declarant of the out-of-court statement is unavailable address only the evidentiary rule against hearsay, except in the context of forfeiture by wrongdoing. See Section 804(b)(6), Hearsay Exceptions; Declarant Unavailable: Hearsay Exceptions: Forfeiture by Wrongdoing. In criminal cases, the admissibility at trial of an out-of-court statement against the defendant also requires consideration of the constitutional right to confrontation under the Sixth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights. For a discussion of the relationship between the confrontation clause and the hearsay exceptions stated in Section 804, refer to the Introductory Note to Article VIII.

A defendant invoking the Fifth Amendment privilege against self-‌incrimination only makes himself or herself unavailable to another party, but the defendant is not unavailable as to himself or herself. See Commonwealth v. Labelle, 67 Mass. App. Ct. 698, 701, 856 N.E.2d 876, 879 (2006). It should not be presumed that an absent witness may invoke his or her privilege against self-‌incrimination. See Commonwealth v. Lopera, 42 Mass. App. Ct. 133, 137 n.3, 674 N.E.2d 1340, 1343 n.3 (1997). But where the declarant is a codefendant and joint venturer in the crimes charged against the defendant, and the declarant’s out-of-court statements directly implicate the declarant in the criminal enterprise, the unavailability requirement is satisfied because the defendant undoubtedly would invoke the Fifth Amendment privilege. See Commonwealth v. Charles, 428 Mass. 672, 677–679, 704 N.E.2d 1137, 1143–‌1144 (1999).

Subsection (a)(1). This subsection is derived from Commonwealth v. Canon, 373 Mass. 494, 499–500, 368 N.E.2d 1181, 1184–1185 (1977), cert. denied, 435 U.S. 933 (1978) (valid invocation of privilege against self-incrimination rendered witness unavailable). Unavailability is not defined simply in terms of lack of physical presence, but stems from the inability of opposing counsel to cross-examine the witness. Commonwealth v. DiPietro, 373 Mass. 369, 382, 367 N.E.2d 811, 819 (1977). Accord Commonwealth v. Negron, 441 Mass. 685, 688–691, 808 N.E.2d 294, 298–299 (2004) (valid claim of spousal privilege by defendant’s wife rendered her unavailable). However, a claim of privilege will not be presumed simply because a witness might have a basis for asserting it if the witness had appeared and been called to testify. See Commonwealth v. Charros, 443 Mass. 752, 767–768, 824 N.E.2d 809, 820–821 (2005).

Subsection (a)(2). The Supreme Judicial Court has not yet adopted Proposed Mass. R. Evid. 804(a)(2), which, like the Federal rule, provides that a witness who persists in refusing to testify concerning the subject matter of his or her statement may be deemed to be unavailable. See Commonwealth v. Fisher, 433 Mass. 340, 355–356, 742 N.E.2d 61, 74 (2001) (explaining that absent the assertion of a privilege against self-incrimination, a witness’s refusal to testify does not render the witness unavailable for purposes of the hearsay exception for prior recorded testimony).

Subsection (a)(3). Massachusetts law does not recognize lack of memory of the subject matter of the testimony as a basis for finding that the witness is unavailable. Commonwealth v. Bray, 19 Mass. App. Ct. 751, 758, 477 N.E.2d 596, 601 (1985). Cf. A.T. Stearns Lumber Co. v. Howlett, 239 Mass. 59, 61, 131 N.E. 217, 218 (1921) (declining to extend doctrine of past recollection recorded to permit introduction of prior recorded testimony that witness had no present memory of but recalled was the truth).

Subsection (a)(4). This subsection is derived from Commonwealth v. Bohannon, 385 Mass. 733, 742, 434 N.E.2d 163, 169 (1982) (“death or other legally sufficient reason”), and cases cited. See Commonwealth v. Mustone, 353 Mass. 490, 491–492, 233 N.E.2d 1, 3 (1968) (death of witness). In Ibanez v. Winston, 222 Mass. 129, 130, 109 N.E. 814, 814 (1915), the Supreme Judicial Court observed that although the death or insanity of a witness would supply the basis for a finding of unavailability, the mere fact that a witness had returned to Spain, without more, did not demonstrate that he was unavailable. However, in Commonwealth v. Hunt, 38 Mass. App. Ct. 291, 295, 647 N.E.2d 433, 436 (1995), the Appeals Court noted that

“[w]hen a witness is outside of the borders of the United States and declines to honor a request to appear as a witness, the unavailability of that witness has been conceded because a State of the United States has no authority to compel a resident of a foreign country to attend a trial here.”

Subsection (a)(5). This subsection is derived from Commonwealth v. Charles, 428 Mass. 672, 678, 704 N.E.2d 1137, 1143 (1999) (“We accept as a basis of unavailability the principles expressed in Rule 804[a][5] of the Federal Rules of Evidence [1985]”). In Commonwealth v. Sena, 441 Mass. 822, 832, 809 N.E.2d 505, 514 (2004), the Supreme Judicial Court noted that

“[b]efore allowing the Commonwealth to introduce prior recorded testimony, the judge must be satisfied that the Commonwealth has made a good faith effort to locate and produce the witness at trial. Whether the Commonwealth carries its burden on the question of sufficient diligence in attempting to obtain the attendance of the desired witness depends upon what is a reasonable effort in light of the peculiar facts of the case.” (Citations and quotation omitted.)

See Commonwealth v. Roberio, 440 Mass. 245, 248, 797 N.E.2d 364, 367 (2003) (where prosecutor established unavailability before trial of witness who is then located out of State during trial, court is not required to suspend trial to obtain presence of witness); Commonwealth v. Charles, 428 Mass. at 678, 704 N.E.2d at 1143 (evidence that declarant is a fugitive satisfies unavailability requirement); Commonwealth v. Pittman, 60 Mass. App. Ct. 161, 169–‌170, 800 N.E.2d 322, 329 (2003) (witness who ignored defense counsel’s subpoena and instead attended an out-of-State funeral was unavailable). Contrast Ruml v. Ruml, 50 Mass. App. Ct. 500, 508–509, 738 N.E.2d 1131, 1139–‌1140 (2000) (self-‌imposed exile from Massachusetts does not satisfy unavailability requirement); Commonwealth v. Hunt, 38 Mass. App. Ct. 291, 295–‌296, 647 N.E.2d 433, 436 (1995) (fact that prospective witness is a foreign national outside United States does not excuse proponent of statement from making diligent effort to locate and secure attendance of witness). “When former testimony is sought to be offered against the accused, the degree of ‘good faith’ and due diligence is greater than that required in other situations.” Commonwealth v. Bohannon, 385 Mass. 733, 745, 434 N.E.2d 163, 170 (1982).

Subsection (b)(1). This subsection is derived from Commonwealth v. Meech, 380 Mass. 490, 494, 403 N.E.2d 1174, 1177–1178 (1980), and Commonwealth v. DiPietro, 373 Mass. 369, 380–385, 367 N.E.2d 811, 818–820 (1977). See Mass. R. Civ. P. 32 and Mass. R. Crim. P. 35 (use of depositions in proceedings).

“The 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. Fisher, 433 Mass. 340, 355, 742 N.E.2d 61, 73 (2001), quoting Commonwealth v. Trigones, 397 Mass. 633, 638, 492 N.E.2d 1146, 1149–‌1150 (1986). The party against whom the testimony is being offered need not actually cross-examine the declarant; only an adequate opportunity to cross-‌examine the declarant is required. Commonwealth v. Canon, 373 Mass. 494, 499–501, 368 N.E.2d 1181, 1184–1185 (1977), cert. denied, 435 U.S. 933 (1978). See Commonwealth v. Hurley, 455 Mass. 53, 62–63, 913 N.E.2d 850, 859 (2009) (“A defendant is not entitled under the confrontation clause to a cross-‌examination that is ‘effective in whatever way, and to whatever extent the defense might wish.’ Rather, what is essential is that the ‘trier of fact [have] a satisfactory basis for evaluating the truth of the prior statement.’” [Citations omitted.]).

The Supreme Judicial Court has applied this hearsay exception when the prior recorded testimony was given at a probable cause hearing, see Commonwealth v. Mustone, 353 Mass. 490, 492–494, 233 N.E.2d 1, 3–4 (1968), and at a pretrial dangerousness hearing under G. L. c. 276, § 58A. See Commonwealth v. Hurley, 455 Mass. at 63 & n.9, 913 N.E.2d at 860 & n.9 (noting that there is “no general rule that a witness’s prior testimony at a pretrial detention hearing is always admissible at trial if that witness becomes unavailable.”). See also id. at 66–67, 913 N.E.2d at 861–862 (when an excited utterance is admitted at a pretrial hearing as an exception to the hearsay rule in circumstances in which the defendant is not given an opportunity to cross-examine the declarant about the facts described in the excited utterance, the admission of the evidence violates the confrontation clause). Cf. Commonwealth v. Arrington, 455 Mass. 437, 442–445, 917 N.E.2d 734, 738–740 (2009) (upholding order that excluded from trial the alleged victim’s testimony at a pretrial dangerousness hearing under G. L. c. 276, § 58, on grounds that due to her medical condition [late stage cancer], defense counsel was deprived of reasonable opportunity for cross-‌examination).

In Commonwealth v. Clemente, 452 Mass. 295, 313–315, 893 N.E.2d 19, 37–38 (2008), the Supreme Judicial Court held that this hearsay exception is not generally applicable to prior recorded testimony before the grand jury because the testimony of such witnesses is usually far more limited than at trial and is often presented without an effort to corroborate or discredit it. “If, however, the party seeking the admission of the grand jury testimony can establish that the Commonwealth had an opportunity and similar motive to develop fully a (now unavailable) witness’s testimony at the grand jury, that earlier testimony would be admissible.” Id. at 315, 893 N.E.2d at 38.

The declarant’s prior testimony must be able to be “substantially reproduced in all material particulars.” Commonwealth v. Martinez, 384 Mass. 377, 381, 425 N.E.2d 300, 303 (1981). See G. L. c. 233, § 80 (official transcripts); Commonwealth v. DiPietro, 373 Mass. at 392–394, 367 N.E.2d at 824–825 (unofficial transcripts); Commonwealth v. Vaden, 373 Mass. 397, 400, 367 N.E.2d 621, 623 (1977) (tape recordings, whether official or unofficial); Commonwealth v. Janovich, 55 Mass. App. Ct. 42, 45, 769 N.E.2d 286, 290 (2002) (witness present at prior proceeding).

Subsection (b)(2). This subsection is derived from Commonwealth v. Polian, 288 Mass. 494, 497, 193 N.E. 68, 69 (1934), and Commonwealth v. Vona, 250 Mass. 509, 511, 146 N.E. 20, 20 (1925). This common-law exception is not subject to the defendant’s right to confrontation. See Commonwealth v. Nesbitt, 452 Mass. 236, 251, 892 N.E.2d 299, 311 (2008) (“Thus, in the unique instance of dying declarations, we ask only whether the statement is admissible as a common-law dying declaration, and not whether the statement is testimonial.”). The “dying declaration” allows testimony as to the victim’s statements concerning the circumstances of the killing and the identity of the perpetrator. Commonwealth v. Polian, 288 Mass. at 500, 193 N.E.2d at 70. It may be in the form of oral testimony, gestures, or a writing made by the victim. See Commonwealth v. Casey, 65 Mass. 417, 422 (1853) (victim who was mortally wounded and unable to speak, but conscious, confirmed identity of perpetrator by squeezing the hand of her treating physician who asked her if it was “Mr. Casey, who worked for her husband”). The Supreme Judicial Court has left open the question whether a defendant’s right to confrontation is applicable to the current, expanded concept of the dying declaration exception. See Commonwealth v. Nesbitt, 452 Mass. at 252 n.17, 892 N.E.2d at 312 n.17, citing G. L. c. 233, § 64 (addressing admissibility of dying declarations of a female whose death results from an unlawful abortion in violation of G. L. c. 272, § 19), and Commonwealth v. Key, 381 Mass. 19, 26, 407 N.E.2d 327, 332–333 (1980) (expanding the common-law exception by admitting a dying declaration to prove the homicides of other common victims).

The declarant’s belief of impending death may be inferred from the surrounding circumstances, including the character of the injury sustained. See Commonwealth v. Moses, 436 Mass. 598, 602, 766 N.E.2d 827, 830 (2002) (“Jenkins had been shot four times shortly before making the statement. Two bullets had pierced his chest, one of which had lodged in his spine. When police and emergency personnel arrived, he was ‘very frightened,’ grimacing in pain, bleeding, and asking for oxygen. He asked a treating emergency medical technician if he were going to die. She told him that ‘it didn’t look too good’ for him. In the circumstances, it was not error for the judge to find that Jenkins believed at the time he made the statements that death was imminent.”); Commonwealth v. Niemic, 427 Mass. 718, 724, 696 N.E.2d 117, 122 (1998) (“The evidence showed that, when the officer found the victim, he had been stabbed in the heart and was bleeding profusely. There was also testimony that, at the hospital, he was ‘breathing heavily’ and ‘appeared to be having a hard time’ and that the officer questioning him ‘had to work to get his attention to focus.’ It was permissible to infer from this that the victim was aware that he was dying.”).

Before admitting the dying declaration, the trial judge must first determine by a preponderance of the evidence that the requisite elements of a dying declaration are satisfied. Commonwealth v. Green, 420 Mass. 771, 781–782, 652 N.E.2d 572, 579 (1995). If the statement is admitted, the judge must then instruct the jury that they must also find by a preponderance of the evidence that the same elements are satisfied before they may consider the substance of the statement. Id.

The broader statutory exception for declarations of a deceased person set forth in G. L. c. 233, § 65, applies only in civil cases. Commonwealth v. Dunker, 363 Mass. 792, 794 n.1, 298 N.E.2d 813, 815 n.1 (1973).

Subsection (b)(3). This subsection is derived from Commonwealth v. Carr, 373 Mass. 617, 622–624, 369 N.E.2d 970, 973–974 (1977), and Commonwealth v. Charles, 428 Mass. 672, 679, 704 N.E.2d 1137, 1144 (1999). See also Williamson v. United States, 512 U.S. 594 (1994). This subsection is applicable only to “statements made by witnesses, not parties to the litigation or their privies or representatives.” Commonwealth v. McLaughlin, 433 Mass. 558, 565, 744 N.E.2d 47, 53 (2001), quoting P.J. Liacos, Massachusetts Evidence § 8.10 (7th ed. 1999). This exception against penal interest is applicable in civil and criminal cases. See Zinck v. Gateway Country Store, Inc., 72 Mass. App. Ct. 571, 575, 893 N.E.2d 364, 368 (2008). The admission by a party-‌opponent need not be a statement against the declarant’s penal or proprietary interest. See Section 801(d)(2), Definitions: Statements Which Are Not Hearsay: Admission by Party-Opponent.

A declarant’s narrative may include self-inculpatory and self-exculpatory elements.

“[A]pplication of the evidentiary rule concerning declarations against penal interest to a full narrative requires breaking out which parts, if any, of the declaration are actually against the speaker’s penal interest. Further, application of the hearsay exception requires determination whether the declaration has an evidentiary connection and linkage to the matters at hand in the trial.”

Commonwealth v. Marrero, 60 Mass. App. Ct. 225, 229, 800 N.E.2d 1048, 1051–‌1052 (2003). When the self-inculpatory aspect of the narrative is very limited, the trial judge has discretion either to exclude it entirely or “to allow it in with some limited ‘necessary surrounding context’ to prevent its significance from being distorted” by opposing counsel. Commonwealth v. Dejarnette, 75 Mass. App. Ct. 88, 99, 911 N.E.2d 1280, 1289 (2009).

The judge’s role in determining the admissibility of a statement against interest is to determine “whether, in light of the other evidence already adduced or to be adduced, there is some reasonable likelihood that the statement could be true.” Commonwealth v. Drew, 397 Mass. 65, 76, 489 N.E.2d 1233, 1241 (1986). This means that in accordance with Section 104(b), Preliminary Questions: Relevancy Conditioned on Fact, the question whether to believe the declarant’s statement is ultimately for the jury. Id.

A statement may qualify for admission as a declaration against penal interest even though it supplies circumstantial, and not direct, evidence of the declarant’s guilt. See Commonwealth v. Charles, 428 Mass. at 679, 704 N.E.2d at 1144. In Commonwealth v. Charles, the Supreme Judicial Court also indicated that even though the exception does not explicitly require corroboration when the statement is introduced against the defendant, it would follow the majority rule and require it in such cases. Id. at 679 n.2, 704 N.E.2d at 1144 n.2. See, e.g., Commonwealth v. Pope, 397 Mass. 275, 280, 491 N.E.2d 240, 243 (1986) (reversing defendant’s conviction based on erroneous admission of extrajudicial statement of a deceased witness; “[w]e do not believe that concern for penal consequence would inspire a suicide victim to truthfulness”).

In criminal cases, “[i]n applying the corroboration requirement, judges are obliged to . . . consider as relevant factors the degree of disinterestedness of the witnesses giving corroborating testimony as well as the plausibility of that testimony in the light of the rest of the proof.” Commonwealth v. Carr, 373 Mass. at 624, 369 N.E.2d at 974. The Supreme Judicial Court has explained that

“behind the corroboration requirement of [Fed. R. Evid.] 804(b)(3) lurks a suspicion that a reasonable man might sometimes admit to a crime he did not commit. A classic example is an inmate, serving time for multiple offenses, who has nothing to lose by a further conviction, but who can help out a friend by admitting to the friend’s crime.”

Commonwealth v. Drew, 397 Mass. at 74 n.8, 489 N.E.2d at 1240 n.8. The Supreme Judicial Court has stated that

“[o]ther factors the judge may consider are: the timing of the declaration and the relationship between the declarant and the witness, the reliability and character of the declarant, whether the statement was made spontaneously, whether other people heard the out-of-court statement, whether there is any apparent motive for the declarant to misrepresent the matter, and whether and in what circumstances the statement was repeated” (citation omitted).

Id. at 76, 489 N.E.2d at 1241. However,

“[i]n determining whether the declarant’s statement has been sufficiently corroborated to merit its admission in evidence, the judge should not be stringent. A requirement that the defendant corroborate the declarant’s entire statement, for example, may run afoul of the defendant’s due process rights . . . . If the issue of sufficiency of the defendant’s corroboration is close, the judge should favor admitting the statement. In most such instances, the good sense of the jury will correct any prejudicial impact.” (Citation omitted.)

Id. at 75 n.10, 489 N.E.2d at 1241 n.10. See Commonwealth v. Nutbrown, 81 Mass. App. Ct. 773, 779–780, 968 N.E.2d 418, 423–424 (2012) (in deciding whether statement is “trustworthy,” trial judge must look only to credibility of declarant, leaving it to jury to determine credibility of witness who testifies to declaration). There is no requirement that when the statement is offered by the defendant, the exculpatory portion must also inculpate the declarant. See Commonwealth v. Keizer, 377 Mass. 264, 270, 385 N.E.2d 1001, 1005 (1979).

Subsection (b)(4)(A). This subsection is derived from Haddock v. Boston & Maine R.R., 85 Mass. 298, 300–301 (1862), and Butrick v. Tilton, 155 Mass. 461, 466, 29 N.E. 1088, 1089–1090 (1892). In Haddock v. Boston & Maine R.R., 85 Mass. at 298–299, the court allowed a witness to testify that she came into ownership of the property through her mother and grandmother even though the only basis for her knowledge was what the person she alleged to be her mother said to her. In Butrick v. Tilton, 155 Mass. at 466, 29 N.E. at 1089–‌1090, also a dispute over title to real property, the court permitted the alleged owner’s granddaughter to testify as to how her grandfather came into ownership of the real estate, and that a cousin who owned the property before her grandfather died without children, based exclusively on what other family members told her and without any personal knowledge. See also Section 803(13), Hearsay Exceptions; Availability of Declarant Immaterial: Family Records; Section 803(19), Hearsay Exceptions; Availability of Declarant Immaterial: Reputation Concerning Personal or Family History.

Subsection (b)(4)(B). Massachusetts has not yet had occasion to consider Fed. R. Evid. 804(b)(4)(B), which extends the principle of Section 804(b)(4)(A) to others to whom the declarant is related by “blood, adoption or marriage,” or to whom the declarant is so “intimately associated with . . . as to be likely to have accurate information concerning the matter declared.”

Subsection (b)(5)(A). This subsection is taken verbatim from G. L. c. 233, § 65. This hearsay exception applies in “all civil cases.” Harrison v. Loyal Protective Life Ins. Co., 379 Mass. 212, 219, 396 N.E.2d 987, 991 (1979). It does not apply in criminal proceedings. Commonwealth v. Cyr, 425 Mass. 89, 94 n.9, 679 N.E.2d 550, 554 n.9 (1997). Nor is it available to a party attempting to perpetuate the testimony of a person who is expected to die shortly. Anselmo v. Reback, 400 Mass. 865, 868–869, 513 N.E.2d 1270, 1272 (1987). See G. L. c. 233, §§ 46, 47; Mass. R. Civ. P. 27(a) (requirements to perpetuate testimony). The proponent of the evidence has the burden of establishing the foundational requirements of good faith and personal knowledge for the admissibility of the evidence. Kelley v. Jordan Marsh Co., 278 Mass. 101, 106, 179 N.E. 299, 302 (1932). Whether the proponent has met this burden, including proof that the statement was actually made, is a preliminary question of fact for the trial judge under Section 104(a), Preliminary Questions: Determinations Made by the Court. See Slotofski v. Boston Elevated Ry. Co., 215 Mass. 318, 321, 102 N.E. 417, 418 (1913).

The only ground of unavailability is the death of the declarant. G. L. c. 233, § 65. In the absence of a finding of good faith, the statement is not admissible. See Barbosa v. Hopper Feeds, Inc., 404 Mass. 610, 620, 537 N.E.2d 99, 105 (1989) (excluding declaration because it was made after the injury suffered by the plaintiff and at the time when the now-deceased person had an incentive to fabricate). “In general [the declarations] must be derived from the exercise of the declarant’s own senses as distinguished from opinions based upon data observed by him or furnished by others.” Little v. Massachusetts N.E. St. Ry. Co., 223 Mass. 501, 504, 112 N.E. 77, 78 (1916). “The declarations of the deceased may be in writing and need not be reproduced in the exact words used by the declarant” (citations omitted). Bellamy v. Bellamy, 342 Mass. 534, 536, 174 N.E.2d 358, 359 (1961). See id. (oral statements also admissible).

Subsection (b)(5)(B). This subsection is taken verbatim from G. L. c. 233, § 65A. See Thornton v. First Nat’l Stores, Inc., 340 Mass. 222, 225, 163 N.E.2d 264, 266 (1960). See also Mass. R. Civ. P. 33 (interrogatories to parties).

Subsection (b)(5)(C). This subsection is taken nearly verbatim from G. L. c. 233, § 66. In Rothwell v. First Nat’l Bank, 286 Mass. 417, 421, 190 N.E. 812, 814 (1934), the Supreme Judicial Court explained the difference between Section 65 and Section 66 of G. L. c. 233. “[Section 66] is narrower than the other, in that it relates to the declarations or conduct of one person in one sort of case. But it requires no preliminary finding of good faith or other conditions. These two statutes operate concurrently and independently.” Id. See Greene v. Boston Safe Deposit & Trust Co., 255 Mass. 519, 524, 152 N.E. 107, 108 (1926).

Subsection (b)(5)(D). This subsection is taken verbatim from G. L. c. 233, § 79H.

Subsection (b)(5)(E). This subsection is taken verbatim from G. L. c. 152, § 20B. The statutory exception, however, might not overcome the further objection that it contains hearsay-within-hearsay in the form of statements to the employee’s physician about how an injury occurred. See Fiander’s Case, 293 Mass. 157, 164, 199 N.E. 309, 312 (1936).

Subsection (b)(6). This subsection is derived from Commonwealth v. Edwards, 444 Mass. 526, 540, 830 N.E.2d 158, 170 (2005). See Giles v. California, 554 U.S. 353, 373 (2008) (holding that the Sixth Amendment right to confrontation is not forfeited by wrongdoing unless the defendant acted with the intent to render the witness unavailable); Crawford v. Washington, 541 U.S. 36, 62 (2004) (“[T]he rule of forfeiture by wrongdoing [which we accept] extinguishes confrontation claims on essentially equitable grounds.”). The Massachusetts common-law doctrine expressed in this subsection is fully consistent with the Federal doctrine set forth in Fed. R. Evid. 804(b)(6):

“By requiring that the defendant actively assist the witness in becoming unavailable with the intent to make her unavailable, our doctrine of forfeiture by wrongdoing is at least as demanding as Fed. R. Evid. 804(b)(6), which permits a finding of forfeiture where the defendant ‘acquiesced’ in conduct that was intended to, and did, make the witness unavailable to testify.”

Commonwealth v. Szerlong, 457 Mass. 858, 862–863, 933 N.E.2d 633, 639–‌640 (2010).

“A defendant’s involvement in procuring a witness’s unavailability need not consist of a criminal act, and may include a defendant’s collusion with a witness to ensure that the witness will not be heard at trial.” Commonwealth v. Edwards, 444 Mass. at 540, 830 N.E.2d at 170. In Edwards, the Supreme Judicial Court elaborated on the scope of this exception.

“A finding that a defendant somehow influenced a witness’s decision not to testify is not required to trigger the application of the forfeiture by wrongdoing doctrine where there is collusion in implementing that decision or planning for its implementation. Certainly, a defendant must have contributed to the witness’s unavailability in some significant manner. However, the causal link necessary between a defendant’s actions and a witness’s unavailability may be established where (1) a defendant puts forward to a witness the idea to avoid testifying, either by threats, coercion, persuasion, or pressure; (2) a defendant physically prevents a witness from testifying; or (3) a defendant actively facilitates the carrying out of the witness’s independent intent not to testify. Therefore, in collusion cases (the third category above) a defendant’s joint effort with a witness to secure the latter’s unavailability, regardless of whether the witness already decided ‘on his own’ not to testify, may be sufficient to support a finding of forfeiture by wrongdoing.” (Footnote omitted.)

Commonwealth v. Edwards, 444 Mass. at 540–541, 830 N.E.2d at 171. “[W]here the defendant has had a meaningful impact on the witness’s unavailability, the defendant may have forfeited confrontation and hearsay objections to the witness’s out-of-court statements, even where the witness modified the initial strategy to procure the witness’s silence.” Id. at 541, 830 N.E.2d at 171. See also Commonwealth v. Szerlong, 457 Mass. at 865–866, 933 N.E.2d at 641–‌642 (evidence that defendant married alleged victim of his assault with the intent to enable her to exercise her spousal privilege at trial supported application of the doctrine of forfeiture by wrongdoing and thus the use of his wife’s hearsay statements made before the marriage, even though it may not have been defendant’s sole or primary purpose).

The proponent of the statement must prove that the opposing party procured the witness’s unavailability by a preponderance of the evidence. Commonwealth v. Edwards, 444 Mass. at 542, 830 N.E.2d at 172. “[P]rior to a determination of forfeiture, the parties should be given an opportunity to present evidence, including live testimony [and the unavailable witness’s out-‌of-‌court statements], at an evidentiary hearing outside the jury’s presence.” Id. at 545, 830 N.E.2d at 174. The trial judge should make the findings required by Commonwealth v. Edwards either orally on the record or in writing. Commonwealth v. Szerlong, 457 Mass. at 864 n.9, 933 N.E.2d at 641 n.9.

Subsection (b)(7). This subsection is derived from Kennedy v. Doyle, 92 Mass. 161, 168 (1865) (where the court admitted a baptismal record showing child’s date of birth as evidence of the person’s age when a contract had been made, in circumstances in which the entry was in the hand of the parish priest who had been the custodian of the book; Supreme Judicial Court observed that “[a]n entry made in the performance of a religious duty is certainly of no less value than one made by a clerk, messenger or notary, an attorney or solicitor or a physician, in the course of his secular occupation.”). Contrast Derinza’s Case, 229 Mass. 435, 443, 118 N.E. 942, 946 (1918) (copies of what purported to be a marriage certificate from a town in Italy not admitted in evidence; Supreme Judicial Court observed that there was no “evidence respecting their character, the circumstances under which the records were kept, or the source from which the certificates came. No one testified that they were copies of an official original. There was no authentication of them as genuine by a consular officer of the United States. There was absolutely nothing beyond the bare production of the copies of the certificates. In the absence of a statute making such certificates admissible by themselves, or something to show that they were entitled to a degree of credence, they were not competent.”). See Section 803(6), Hearsay Exceptions; Availability of Declarant Immaterial: Business and Hospital Records.

Subsection (b)(8)(A). Subsections (b)(8)(A) through (b)(8)(A)(iv) are taken nearly verbatim from G. L. c. 233, § 81(a), and Subsection (b)(8)(A)(v) is derived from Commonwealth v. Colin C., 419 Mass. 54, 64–66, 643 N.E.2d 19, 25–26 (1994). See generally Opinion of the Justices, 406 Mass. 1201, 547 N.E.2d 8 (1989) (concluding that bill on related topic would, if enacted, offend the Massachusetts Constitution). The prosecution must give prior notice to the criminal defendant that it will seek to admit hearsay statements under this statute. Commonwealth v. Colin C., 419 Mass. at 64, 643 N.E.2d at 25. It must also show a compelling and necessary need to use this procedure by more than a preponderance of evidence. Id. at 64–65, 643 N.E.2d at 25.

Subsection (b)(8)(B). This subsection is taken nearly verbatim from G. L. c. 233, § 81(b). See Section 804(a), Hearsay Exceptions; Declarant Unavailable: Definition of Unavailability. A judge’s reasons for finding a child incompetent to testify should not be the same reasons for doubting the reliability of the child’s out-‌of-court statements. Commonwealth v. Colin C., 419 Mass. 54, 65, 643 N.E.2d 19, 25 (1994).

Subsection (b)(8)(C). This subsection is taken nearly verbatim from G. L. c. 233, § 81(c). The separate hearing regarding the reliability of the out-of-court statement must be on the record, and the judge’s determination of reliability must be supported by specific findings on the record. Commonwealth v. Colin C., 419 Mass. 54, 65, 643 N.E.2d 19, 25 (1994). See Commonwealth v. Joubert, 38 Mass. App. Ct. 943, 945, 647 N.E.2d 1238, 1241 (1995). The statement must be substantially reliable to be admissible. Commonwealth v. Joubert, 38 Mass. App. Ct. at 945, 647 N.E.2d at 1241. See Commonwealth v. Almeida, 433 Mass. 717, 719–720, 746 N.E.2d 139, 141 (2001) (statements of sleeping child were not admissible because they lacked indicia of reliability). The defendant and his or her counsel should be given the opportunity to attend the hearing if it would not cause the child witness severe emotional trauma. Commonwealth v. Colin C., 419 Mass. at 65, 643 N.E.2d at 25.

Subsection (b)(8)(D). This subsection is derived from Commonwealth v. Colin C., 419 Mass. 54, 66, 643 N.E.2d 19, 25–26 (1994).

Subsection (b)(8)(E). This subsection is taken nearly verbatim from G. L. c. 233, § 81(d).

Subsection (b)(9)(A). Subsections (b)(9)(A)(i) through (iv) are taken nearly verbatim from G. L. c. 233, § 82, and Subsection (b)(9)(A)(v) is derived from Adoption of Quentin, 424 Mass. 882, 893, 678 N.E.2d 1325, 1332 (1997). See Commonwealth v. Colin C., 419 Mass. 54, 64–66, 643 N.E.2d 19, 25–26 (1994) (establishing additional procedural requirements for admitting hearsay statements of child under G. L. c. 233, § 81). The Department of Children and Families must give prior notice to the parents that it will seek to admit hearsay statements under this statute. Adoption of Quentin, 424 Mass. at 893, 678 N.E.2d at 1332. It must also show a compelling and necessary need to use this procedure by more than a preponderance of evidence. Id. See also Adoption of Arnold, 50 Mass. App. Ct. 743, 752, 741 N.E.2d 456, 463 (2001); Adoption of Tina, 45 Mass. App. Ct. 727, 733–734, 701 N.E.2d 671, 676 (1998) (recognizing additional procedural requirements). When a care and protection proceeding is joined with a petition to dispense with consent to adoption, admissibility of a child’s hearsay statements should comply with the stricter requirements of G. L. c. 233, § 82, not § 83. Adoption of Tina, 45 Mass. App. Ct. at 733 n.10, 701 N.E.2d at 676 n.10. The phrase “child under the age of ten” refers to the age of the child at the time the statement was made, not the child’s age at the time of the proceeding. Adoption of Daisy, 460 Mass. 72, 78, 948 N.E.2d 1239, 1244 (2011).

Subsection (b)(9)(B). This subsection is taken nearly verbatim from G. L. c. 233, § 82(b). See Adoption of Sean, 36 Mass. App. Ct. 261, 266, 630 N.E.2d 604, 607 (1994). See also Section 804(a), Hearsay Exceptions; Declarant Unavailable: Definition of Unavailability.

Subsection (b)(9)(C). This subsection is taken nearly verbatim from G. L. c. 233, § 82(c). Note that it appears that the Legislature inadvertently omitted from G. L. c. 233, § 82, the following: “finds: (1) after holding a separate hearing, that such . . . .” We have inserted that language in the subsection above. See Adoption of Quentin, 424 Mass. 882, 890 n.5, 678 N.E.2d 1325, 1330 n.5 (1997) (noting omission). A judge must make sufficient findings of reliability to admit the statements. See Adoption of Tina, 45 Mass. App. Ct. 727, 733, 701 N.E.2d 671, 676 (1998); Edward E. v. Department of Social Servs., 42 Mass. App. Ct. 478, 484–486, 678 N.E.2d 163, 167–168 (1997). The separate hearing regarding the reliability of the out-of-court statement must be on the record, and the judge’s determination of reliability must be supported by specific findings on the record. Adoption of Quentin, 424 Mass. at 893, 678 N.E.2d at 1332. See Commonwealth v. Colin C., 419 Mass. 54, 65, 643 N.E.2d 19, 25 (1994). See also Adoption of Olivette, 79 Mass. App. Ct. 141, 149–150, 944 N.E.2d 1068, 1075–1076 (2011).

Subsection (b)(9)(D). This subsection is derived from Adoption of Quentin, 424 Mass. 882, 893, 678 N.E.2d 1325, 1332 (1997). See Commonwealth v. Colin C., 419 Mass. 54, 66, 643 N.E.2d 19, 25–26 (1994). See also Adoption of Arnold, 50 Mass. App. Ct. 743, 753, 741 N.E.2d 456, 463–464 (2001) (examples of corroborating evidence).

Subsection (b)(9)(E). This subsection is taken verbatim from G. L. c. 233, § 82(d).

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