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Massachusetts Civil Procedure Rule 43: Evidence

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(a) Form and Admissibility. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules. All evidence shall be admitted which is admissible under the statutes of this Commonwealth or under the rules of evidence applied in this Commonwealth. The competency of a witness to testify shall be determined in like manner.

(b) Scope of Examination and Cross-Examination. A party may interrogate any unwilling or hostile witness by leading questions. A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, except by evidence of bad character, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of his examination in chief. Any other witness may be cross-examined without regard to the scope of his testimony on direct, subject only to the trial judge's sound discretion.

(c) Record of Excluded Evidence. In an action tried by a jury, if an objection to a question propounded to a witness is sustained by the court, the examining attorney may make a specific offer of what he expects to prove by the answer of the witness. The court may require the offer to be made out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. In actions tried without a jury the same procedure may be followed, except that the court upon request shall take and report the evidence in full, unless it clearly appears that the evidence is not admissible on any ground or that the witness is privileged.

(d) Affirmation in Lieu of Oath. Whenever under these rules an oath is required to be taken, a solemn affirmation under the penalties of perjury may be accepted in lieu thereof.

(e) Evidence on Motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

(f) Interpreters. The court may appoint an interpreter of its own selection and may fix his reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court.

(g) Examination of Witnesses. Unless otherwise permitted by the court, the examination and cross-examination of any witness shall be conducted by one attorney only for each party. The attorney shall stand while so examining or cross-examining unless the court otherwise permits.

Effective July 1, 1974.

Reporter's Notes (1996) As result of the merger of the District Court rules into the Mass.R.Civ.P., Rule 43(c) has been made applicable to District Court proceedings.

(1973) Except for the deletion of material which is inapplicable to state practice, Rule 43(a) tracks its federal counterpart. Rule 43(a) does not affect Massachusetts law since it incorporates existing law on the admissibility of evidence and the competency of witnesses.

Rule 43(b) follows Federal Rule 43(b). It does not alter Massachusetts practice, which (1) allows interrogation of a hostile witness by leading questions, Commonwealth v. Monahan, 349 Mass. 139 (1965); Commonwealth v. Coshnear, 289 Mass. 516 (1935); (2) allows an adverse party to be called and cross-examined, G.L. c. 233, § 22; (3) allows a corporate officer or agent to be examined as an adverse party, G.L. c. 233, § 22; (4) permits the adverse party's impeachment, except as to character, G.L. c. 233, § 23; Labrie v. Midwood, 273 Mass. 578, 581-582 (1931); and (5) normally permits the adverse party-witness to be "cross-examined" by his own attorney only upon the subject matter of the direct examination. Phillips v. Vorenberg, 259 Mass. 46, 73 (1927). The final sentence of Rule 43(b) makes it clear that any other witness may be cross-examined without regard to the scope of his testimony on direct, Moody v. Rowell, 34 Mass. (17 Pick.) 490, 498 (1835), subject only to the trial judge's sound discretion, Commonwealth v. Granito, 326 Mass. 494 (1950).

Rule 43(c) is similar to prior Massachusetts practice. If an objection to the admission of evidence is sustained, the proponent of the evidence should make an offer of proof, to preserve the record. See Petition of Mackintosh, 268 Mass. 138, 139 (1929); cases collected in Hughes, Massachusetts Evidence, 240-242 (1961). Note that if the evidence is excluded on cross-examination, the offer of proof need not be made. Stevens v. William S. Howe Co., 275 Mass. 398, 402 (1931).

Rule 43(d), dealing with oaths, is basically the same as G.L. c. 233, §§ 15 to 19.

Rule 43(e) is supported by Super.Ct. Rule 46, although the latter does not specifically allow the introduction of oral testimony or depositions.

Rule 43(f), dealing with interpreters, follows Federal Rule 43(f). Massachusetts appears not to have had any settled practice on this question.

Rule 43(g) which does not appear in the Federal Rules, is taken virtually verbatim from Super.Ct. Rule 51, and embodies long-settled Massachusetts courtroom etiquette.