Mass. G. Evid. § 607

History

Note This section is derived from G. L. c. 233, § 23, and Walter v. Bonito, 367 Mass. 117, 121–123 (1975). In Walter, the Supreme Judicial Court recognized that Labrie v. Midwood, 273 Mass. 578, 581–582 (1931), held that G. L. c. 233, § 22 (party’s right to call and cross-examine adverse witness) does not override G. L. c. 233, § 23. See also Mass. R. Civ. P. 43(b). It is not a violation of this principle to permit a witness to testify about a prior criminal conviction in direct examination. Commonwealth v. Daley, 439 Mass. 558, 563 (2003). A party who calls a witness may elicit the witness’s criminal record “to avoid having the jury draw the inference that the party calling the witness had misled or deceived the jury as to the background of the witness.” Commonwealth v. Blodgett, 377 Mass. 494, 502 (1979). See Commonwealth v. DePina, 476 Mass. 614, 631 (2017) (eliciting testimony on direct examination that witness was not honest with police due to fear of cooperating was not vouching, but was proper in anticipation of impeachment on cross-examination). “[A] party cannot rely on this statutory right [G. L. c. 233, § 23] to call a witness whom he knows beforehand will offer no testimony relevant to an issue at trial solely for the purpose of impeaching that witness with prior inconsistent statements that would otherwise be inadmissible.” Commonwealth v. McAfee, 430 Mass. 483, 489–490 (1999). See Commonwealth v. Pires, 97 Mass. App. Ct. 480, 484–485 (2020). When impeaching one’s own witness through a prior inconsistent statement, the proponent must bring the statement to the attention of the witness with sufficient circumstances to alert the witness to the particular occasion the prior statement was made and allow the witness an opportunity to explain the statement. See Section 613, Prior Statements of Witnesses, Limited Admissibility. Subsequent to impeachment, questions concerning a witness’s fear in testifying are not per se improper on redirect examination. Commonwealth v. Mitchell, 89 Mass. App. Ct. 13, 27–28 (2016), citing Commonwealth v. Auguste, 418 Mass. 643, 647 (1994). This Guide includes specific sections dealing with impeachment by evidence of character (Sections 608 and 609), impeachment by prior inconsistent statements (Section 613), impeachment by reference to bias or prejudice (Section 611[b]), and evidence of religious beliefs (Section 610). Other methods of impeachment—e.g., improper motive, impairment of testimonial faculties, and contradiction—remain available and fall within the scope of Sections 102, Purpose and Construction; 410, Pleas, Offers of Pleas, and Related Statements; 403, Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons; and 611, Mode and Order of Examining Witnesses and Presenting Evidence.