Hearsay & The Unavailable Witness In Massachusetts

Witness testimony is key to our system of justice, and civil and criminal trials, are based on the admission of the testimony of live witnesses who can be questioned and cross-examined. In fact, hearsay, defined as an out-of-court statement offered for the truth of the matter asserted in the statement, is seen as far inferior to sworn testimony in court. So, what happens when a witness is not available to testify? And what circumstances determine when a witness is unavailable and what statements get admitted? Under the Federal Rules of Evidence, a witness is unavailable if they 1) can’t testify because of a privilege, such as the attorney-client privilege, 2) they refuse to testify despite a court order to do so (and risk being held in contempt of court), 3) they testify to not remembering the subject matter, 4) they can’t physically be present because of death or illness, or 5) they just don’t show up even though the party who wants to offer the testimony made reasonable efforts to secure their attendance. These rules indicate both a preference for live testimony and the belief that in certain circumstances, “hearsay, if of a specified quality, is preferred over the complete loss of evidence.” Massachusetts, however, has not adopted rules of evidence, instead relying on developing evidentiary rules by common law on a case-by-case basis. In one such case, decided in July 2019, the Supreme Judicial Court, following federal law and an overwhelming majority of other states, recognized a witness’s lack of memory as a means to establish unavailability.

 In that case, a plaintiff was left with a permanent injury to her sciatic nerve following surgery. The plaintiff submitted an affidavit that when a third-year medical student who had assisted in the surgery came to check on her the day after surgery he apologized in response to her complaints of severe leg pain and stated that they had a hard time positioning her leg and that he may have been leaning against her leg during the procedure. However, in a 2017 deposition the medical student testified that he remembered nothing about the surgery or the events thereafter. At trial the judge excluded the hearsay statements of the medical student and the jury returned a verdict for the defendant. In granting a new trial, the SJC noted that “the exceptions to the rule against hearsay are all grounded in a circumstantial probability of trustworthiness, and a necessity for the evidence.” As it pertains to a lack of memory as a grounds for establishing unavailability, the court stated that “concern about whether that lack of memory is legitimate is minimized by the fact that the declarant must testify to a lack of memory, which clearly contemplates his production and subjection to cross-examination and allows a judge, as a preliminary question of fact upon which admissibility depends, the opportunity to credit or discredit the asserted lack of memory.” The court also found that the statements were sufficiently against the student’s pecuniary interest to be trustworthy and, therefore, admissible.

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