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Univ. of South Carolina School of Law

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Wednesday, July 6, 2011

Be My Guide: The Massachusetts Guide to Evidence

In a recent post about Georgia becoming the 43rd state to create state rules of evidence similar to the Federal Rules of Evidence, I noted that

The Supreme Judicial Court of Massachusetts famously refused to adopt the Proposed Massachusetts Rule of Evidence in 1982 and has shown no signs of wavering in its position. California and Kansas both have codified rules of evidence based upon the Uniform Rules of Evidence, and I don't see them jumping tracks to the Federal Rules of Evidence any time soon.

Moreover, I have written several previous posts about some of the problems caused by Massachusetts' failure to have codified rules of evidence (see, e.g. here). That said, Massachusetts lawyers and judges aren't rudderless in this regard. Rather, as the Honorable Peter W. Agnes, Jr. recently pointed out to me, there is the Massachusetts Guide to Evidence.

The following is an e-mail sent to me by Justice Agnes concerning the Guide:

Some time ago you wrote a post about the state of evidence law in Massachusetts wondering why, among other things, we had not adopted the Federal Rules or otherwise codified our law. I want to bring you up to date. For years I have advocated that our Supreme Judicial Court mount a new effort to adopt rules of evidence. As you know, the first effort was undertaken in 1978 and ended in 1982 when the Court turned down a product prepared by a distinguished committee of lawyers, judges, and academics that was modeled on the federal rules but preserved much of our common law. In 2005, after several unsuccessful attempts to restart the process, I persuaded the three largest bar associations in our state (the Massachusetts Bar Association, the Boston Bar Association and the Massachusetts Academy of Trial Lawyers) to support a resolution I drafted calling on the Court to appoint a Standing Committee to develop a statement of Massachusetts Evidence law modeled on the national Restatements of the Law as a transitional product to demonstrate that a codification was possible. After a period of negotiation, then Chief Justice Margaret Marshall announced that the Court had agreed to appoint a Standing Committee on the Law of Evidence and to charge it with responsibility to produce A Guide to Massachusetts Evidence Law organized like the Federal Rules but containing the current law of Massachusetts. 

The Committee chaired by Justice Marc Kantrowitz of our Appeals Court, worked very hard for several years. One of our guiding principles was to use the words of the Federal Rule whenever we found that Massachusetts law was consistent with the Federal law. We use the detailed notes in many cases to point out areas of difference between Massachusetts law and Federal rule when we decided that the local law and federal law were essentially the same. A good illustration is the law regarding expert witnesses. We published several interim drafts for comment and reached out to evidence teachers at each of the state's law school to serve as readers and advisors. We processed hundreds of comments from the bench and the bar. Eventually, a smaller Executive Committee emerged to complete the drafting. In 2008 the Flaschner Judicial Institute, a non-profit organization dedicated to judicial education, published the first draft of the Massachusetts Guide to Evidence. Today, the Executive Committee (Justice Kantrowitz, me, Judge David Lowy of the Superior Court, Judge Mark Coven of the District Court, Attorney Elizabeth Mulvey of Boston, an experienced and highly regarded civil litigator, Professor Philip Hamilton of the New England School of Law, Attorney Barbara Berenson, Staff Counsel to the Justices of the Supreme Judicial Court, and our reporter, Appeals Court Clerk Joseph Stanton and staff) have published the third version of the Guide (2011 edition) and are at work on the 2012 edition we expect to publish and distribute again in January, 2012. We meet quarterly and exchange ideas and suggestions throughout the year. 

Although the Guide is only guidance and not rules, it was "approved for use" by our Supreme Judicial Court in 2008. It has been distributed by the Flaschner Judicial Institute to every judge at no cost and has been made available for sale at close to cost by several organizations. The text of the Guide is available as a free download from the Supreme Judicial Court's website under a public copyright. 

There has been a remarkable change in practice since the publication of the Guide in 2008. It is carried into court by lawyers every day. It is on every judge's bench. It is used in judicial and legal education programs. At sidebars when trial judges are called to make those quick decisions about admissibility that were not the subject of motions in limine, we now have a device to bring us to a common starting point and which often supplies the answer. The Guide has been cited nearly 200 times by our appellate courts since it first appeared in 2008. And, it is being kept current by an Executive Committee that reads and reviews every evidence-related decision by a Massachusetts appellate court as well as pertinent decisions by the United States Supreme Court and the First Circuit.

It is unclear at this time whether our Supreme Judicial Court will decide to develop a set of rules or retain something like the Guide as an authoritative, but secondary, source of the law. Thus, the Massachusetts Guide to Evidence is not a complete answer to the question "why not rules of evidence in Massachusetts?" but it does represent an important step toward a system of evidence law in Massachusetts that is more accessible and comprehensible than the complex of common law decisions, statutes, and rules that for centuries characterized our law.

-CM

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