The ‘Rules’ of Evidence

In Massachusetts, Lawyers Must Scramble For Authority Because The Rules Are ‘There Are No Rules’

Published: 1:00 am Mon, April 26, 1999

By MEGHAN S. LASKA Massachusetts Lawyers Weekly

You have successfully logged in.“On what grounds do you object to the evidence?”In many courts, the answer to this question involves a simple recitation of a memorized rule.But not in Massachusetts.In this state there is a dearth of definitive evidentiary standards, leading to the counterintuitive — yet established — practice of citing to proposed rules of evidence that were first drafted in 1980, rules that were formally rejected long ago.Lawyers also pick and choose among lengthy treatises such as “Liacos on Evidence,” caselaw, statutes and sometimes the Federal Rules of Evidence.Scott J. Tucker of Boston says “it really depends on the judge who you appear in front of. Some give significant deference to the proposed rules of evidence to the extent that they track the federal rules” and others strictly follow state cases and statutes.Attorneys observe that this unpredictability stems from a 1982 Supreme Judicial Court decision in which the court chose to maintain a common law system of evidence in Massachusetts instead of enacting proposed rules of evidence.That determination has won Massachusetts the distinction of being the only state in New England (and one of the few in the country) not to have adopted rules of evidence — which is a point of contention for many trial lawyers.“It is an understatement to say that working under an uncodified system is a difficult situation for lawyers in Massachusetts,” notes Mark S. Brodin, co-author of the 6th and 7th editions of “Liacos On Evidence” and a professor at Boston College Law School.Why do lawyers crave a rule-based system? Consistency is one reason.“Rules would certainly give us more uniformity in decisions — and more uniformity gives you more predictability, which would enhance the efficient operation of the system,” says Tucker.But over the past 17 years, no one has taken up the cause and the momentum to enact the proposed rules of evidence seems to have fallen by the wayside.However, if an SJC committee were to undertake this cause again today, most lawyers say that they would jump on board.“We need guidelines that we can rely on because we are operating off the cuff now,” says Douglas K. Sheff of Boston.

A ‘Time Of Momentum’

By the 1970s, a nationwide trend towards modelling state practice and procedure rules on federal standards seemed to have hit Massachusetts.Marc G. Perlin, a professor at Suffolk University Law School and currently the associate dean, recalls that this wave began with the adoption of rules of civil procedure and continued with the rules of criminal and appellate procedure.With that kind of momentum in place, “it wasn’t surprising that there was a movement to look at the federal rules of evidence,” Perlin says.Alice E. Richmond of Boston, a former president of the Massachusetts Bar Association, remembers the general consensus among practitioners at the time.“Most lawyers felt that it would be helpful to have some sort of place where all of the Massachusetts evidence rules could be found because they were — and are — scattered helter-skelter between the rules of the court, statutes passed by the Legislature and caselaw,” she says.So in 1976, the Commissioners on the Uniform State Laws and the presidents of the Massachusetts and Boston bar associations asked the SJC to appoint an advisory committee to consider whether the commonwealth should adopt rules of evidence, according to SJC administrator Robert S. Bloom.And that committee — which was chaired by A. David Mazzone (now a U.S. District Court judge) and John E. Fenton Jr. (then a Land Court judge) — along with dozens of other members of the bench and bar began the long process of studying federal and state evidence law.“We worked like hell for years on the proposed rules,” recalls advisory committee member Steven N. Subrin, a professor of law at Northeastern University.He notes that the group started with the premise that it would be a good idea to follow the federal rules and make changes only where good reason existed for a deviation.“We spent hours arguing about whether it was better to do it the Massachusetts way or the federal way,” remembers Richmond, who contributed comments on the proposed rules. “There are very few things that I did that took up more of my time than this project.”In the end, Subrin estimates that the committee copied 80 to 90 percent of the federal rules with the main divergences falling within the proposed section on presumptions as well as a few provisions regarding criminal practice.In 1980, the committee sent the proposed rules to the SJC, which invited comments from the bar and heard oral arguments on Sept. 9, 1982.Richmond says that by the time the final proposed rules were submitted, their adoption seemed to be a “sure thing.”So when the SJC rejected the proposed rules, it came as quite a shock to those lawyers and judges who had worked so tirelessly on the project.“Everyone thought they would pass and then it just exploded — but I don’t know who pulled the grenade pin. I have come to understand that it is a great Massachusetts tradition that things just disappear and you have no idea whose fingerprints are on it,” says Richmond.However, the SJC did issue a two-page explanation for its decision. (See sidebar.)According to the memorandum, the proposed rules were rejected because:

  • they would have required the Legislature to repeal, revise or modify many statutes dealing with evidence;
  • several of the proposed rules departed from the federal rules of evidence;
  • the federal rules of evidence had not led to uniformity and were not suited to the needs of modern trial practice; and
  • evidence rules would restrict the development of common law.

But some skeptics point to the existence of “Liacos on Evidence” — the “Bible” of Massachusetts evidence law, written by then-SJC Justice Paul J. Liacos — as one possible explanation for the rejection.They suggest that royalties could have been at stake, providing a motivation for Liacos, who shortly thereafter became the SJC’s chief justice, to stonewall any rule-based system.Liacos was unavailable for comment, but Subrin for one dismisses the notion that an impending edition of the treatise could have been the sole reason behind the decision.“The inference I drew was that the most enthusiastic supporters of the project either died or left the bench and so the enthusiasm waned,” says Subrin.

‘Uncharted Waters’

In the years following the SJC’s decision not to adopt the proposed rules, the momentum for evidence rules appears to have virtually disappeared.“That seemed to have been the end of any attempt to codify the proposed rules of evidence,” says Bloom, who notes that no SJC committees have since taken up the cause.But when Lawyers Weekly asked whether rules should be promulgated, almost every attorney answered with a resounding “Yes.”“If someone wanted to propose rules again, I would absolutely be in favor of it because the lack of uniformity as to how judges determine evidence law has led to a great deal of uncertainty for lawyers,” says Richmond.She explains that, as more judges wait to hear evidence at trial instead of determining admissibility beforehand, it is often difficult to prepare a case.“You don’t know if the judge will adopt ipso facto the federal rules because he or she is comfortable with them or … if they will carefully follow Massachusetts law. You aren’t exactly sure where the boundaries of the law are,” she says.Thomas M. Hoopes of Boston observes that adopting a set of evidence rules would also be more efficient, as attorneys wouldn’t have to “pick and choose” from so many cases, statutes and treatises on evidence to determine the law in Massachusetts.“When my law school evidence professor was asked if we really had to know all of this stuff, the professor responded that we should imagine doing surgery without knowing all of the veins and arteries,” recalls Hoopes.But he slyly notes that there are a limited number of veins and arteries, whereas Massachusetts evidence law contains much more to memorize.“Liacos on Evidence,” Hoopes notes, “runs 914 pages long, not counting the supplement, whereas my ‘Little Red Book’ on federal evidence fits in my pocket and I can read it within an hour.”Perhaps reinforcing attorneys’ preference for rules of evidence over a common law system is the notion that many of the reasons the SJC cited for rejecting the rules have not held water.Noting the SJC’s concern that the federal rules were less well adapted to the needs of modern trial practice than current Massachusetts law, Subrin counters that the federal rules are “sufficiently flexible.”Hoopes agrees.The federal and proposed Massachusetts rules would provide for more growth, as they include language allowing for adjustments based on the circumstances, he says.Hoopes adds that “the SJC was concerned about making too rapid of an adjustment given their view that things worked pretty well at the time and if they took the rules piecemeal, it would be a better way to test them.”However, he notes that such testing has not occurred over the past 17 years.“From time to time they have made additions to the law, but, generally speaking, an overhaul of the current evidence rules to bring them into conformity with the proposed rules hasn’t happened,” says Hoopes.Tucker adds that another problem with the current system is that it often provides insufficient or “really old” state court decisions.“By allowing us to use all of the federal caselaw [interpreting the rules of evidence], you allow lawyers and judges to cite more cases which are much closer to being on point if not directly on point,” he says.Tucker cites the area of subsequent remedial measures as an example of where attorneys must “piece together” arguments from old state caselaw, treatises and a Massachusetts Practice series.Sheff agrees, noting that another problem area concerns declarations of deceased persons.“There needs to be more clarification there,” he says. “There is a two-prong test involving first-hand knowledge and good faith, but what is required to show good faith seems to be an area where we need more caselaw as well.”And perhaps causing the most confusion for Massachusetts lawyers is the status of the law regarding expert witnesses.“There is the [1993] federal case of Daubert [v. Merrell Dow Pharmaceuticals, Inc.], and the state equivalent is [the SJC’s 1994 decision], [Commonwealth v.] Lanigan. We are running on a quasi-parallel track here, and there may be good public policy argument for doing it that way but if there isn’t why not get on board with the federal law?” asks Tucker.He notes that if the federal rules were adopted, lawyers could use all of the federal caselaw that came down after Daubert to help clarify the issue with different fact patterns.“But if you go with the state caselaw, then you can use Daubert only to the extent that it is in line with the state law; to the extent that it is different, then you are in uncharted waters,” he says.Sheff agrees that law is needed in this area, however he stresses that it would be better for Massachusetts to adopt a rule distinct from the federal caselaw.“There seems to be efforts to make it more difficult to proffer expert testimony and Daubert is an example of that and Massachusetts should have the good sense not to further restrict the proper presentation of expert testimony,” he says.And the common law has also left a few gaps in the area of privileges, according to Hoopes.Pointing to the law on husband and wife disqualification, he explains that while the proposed evidence rules included grand jury proceedings, the common law fails to cover this area.“That is a foolish absence and there are a number of other smaller and bigger things that the proposed rules covered that the current law does not,” he says.Of course, enacting evidence rules won’t fill in all of the gray areas that arise during litigation, but most attorneys agree that a codified system would be a marked improvement over the common law, which is “inefficient” and often leaves attorneys “at sea.”

‘Picking And Choosing’

If given a choice, most attorneys agree that they would prefer an evidence system which utilizes an updated version of the 1980 Massachusetts proposed rules.The proposed rules are adaptable to modern-day trial needs and would lead to the greatest uniformity between state and federal practice, lawyers say.Hoopes notes that “in a federal courtroom, the jury tends to hear more information. There tends to be more flexibility in dealing with particular situations … where the state law is more rigid.”Tucker says that he is also a proponent of the federal system.“Absent some particular quirk that someone has a problem with, it seems logical to adopt the federal rules, which eliminates the issue of a case being decided in federal court versus state court and having that affect the outcome,” he says.Mazzone points out that the Federal Rules of Evidence are “straightforward” and do not depart “dramatically” from Massachusetts evidence law.“There is no system that exists with glaring differences and lawyers in this community ought not have to refer to different rule books when preparing cases,” he says.And law professors add that having more uniformity between federal and state court would be helpful for newer attorneys who are usually only taught the federal rules in law school.“The current system is particularly difficult for beginning lawyers who have to rely on either ‘Liacos on Evidence’ or someone else’s treatise and not really having the comfort, albeit a sometimes false comfort, of being able to cite specific rules,” notes Brodin.However, many practitioners say that the state rules should follow the example of the older proposed rules which contained some divergences from the federal law.R.J. Cinquegrana of Boston cites areas such as prior bad acts and privileges as examples of where state law has developed quite differently from federal law and where there are arguments for retaining the common law — at least from criminal defense lawyers’ perspective.“Federal Rule 404(b) is interpreted quite liberally so prior acts are often admitted,” he says. “But in state court, prior bad acts evidence is much more strictly limited.”But regardless of which particular rules attorneys say they support, there doesn’t appear to be any driving force out there to form a committee to study and propose new evidence laws.“If someone else wants to take the time to change the rules, we’ll adapt to them, but for now we will just complain because no one pays us to think about these issues,” notes Tucker.Richmond agrees that evidence rules have a fairly low priority level at the moment.“Most people practicing are so overwhelmed by other things that are wrong with the system, such as delays and endless discovery, that I’m not sure this gets high on anyone’s list,” she says.