Mass. R. Evid. 1109

As amended through May 7, 2024

Section 1109 - View

(a)Availability.

(1) Upon motion in civil and criminal cases, the court has discretion to allow the jury, accompanied by the judge, or, in a matter tried without a jury, the judge to take a view of the premises or place in question or any property matter or thing relative to the case.

(2) In a limited class of civil cases, a party has the right, upon request, to a view.

(b)Conduct. Counsel may point out the essential features of the place or thing that is the subject of the view, but no comment or discussion is permitted. No witnesses are heard. Jurors are not permitted to ask questions. The presence of the defendant in a criminal case is left to the judge's discretion.

(c)Status. Observations made by the jury or by the judge on a view may be used by the finder of fact in making a decision.

(d) Costs. In a civil case, the expenses of taking a view shall be paid by the party who makes the motion or in accordance with an agreement between or among some or all of the parties, and may be taxed as costs if the party or parties who advanced them prevails. In a criminal case, the expenses of taking a view shall be paid by the Commonwealth.

Mass. Guid. Evid. 1109

Subsection (a)(1). This subsection is derived from Commonwealth v. Gedzium, 259 Mass. 453, 462 (1927); Madden v. Boston Elevated Ry. Co., 284 Mass. 490, 493-494 (1933); Commonwealth v. Gomes, 459 Mass. 194, 201-202 (2011); and G. L. c. 234A, § 69A. In the administrative context, the judge or fact finder also may have the right to conduct a view. See, e.g., G. L. c. 152, § 2 (Authority of the Division of Industrial Accidents to "make all necessary inspections and investigations relating to causes of injuries for which compensation may be claimed ....").

The court has the discretion to take a view any time after the jury is sworn. See Yore v. City of Newton, 194 Mass. 250, 253 (1907) (court permitted jury to take a view after deliberations had begun).

The court may exercise its discretion to deny a motion for a view when visiting a particular location would not fairly represent the way it appeared or the conditions that existed at the time of the events that are the subject of the trial. See Commonwealth v. Cataldo, 423 Mass. 318, 327 n.8 (1996). However, even though the appearance of premises or a thing has changed, if the premises or thing in its altered condition would be helpful to the jury in understanding the evidence the court has discretion to permit a view. See Commonwealth v. Welansky, 316 Mass. 383, 401-402 (1944) (there was no error in permitting the jury to take a view of a nightclub after a fire had severely damaged it and caused the death of numerous persons who were trapped inside). The court may deny a motion for a view because it will not contribute to the jury's understanding of the evidence at trial. See Commonwealth v. Cambell, 378 Mass. 680, 704-705, cert. denied, 488 U.S. 847 (1979).

Subsection (a)(2). This subsection is derived from G. L. c. 80, § 9 (betterment assessments); G. L. c. 79, § 22 (eminent domain); and G. L. c. 253, § 7 (mill flowage).

Subsection (b). This subsection is derived from Commonwealth v. Dascalakis, 246 Mass. 12, 29-30 (1923). "Generally, an impropriety occurring on a view may be cured by cautionary instructions." Commonwealth v. Cresta, 3 Mass. App. Ct. 560, 562 (1975), citing Commonwealth v. Madeiros, 255 Mass. 304, 313 (1926).

The defendant has no right to be present at a view; the judge has discretion to impose reasonable restrictions on the defendant's presence and conduct. Commonwealth v. Corliss, 470 Mass. 443, 448 (2015). "A defendant is not entitled of right to confer with his counsel during a view." Commonwealth v. Gagliardi, 29 Mass. App. Ct. 225, 237 (1990).

Subsection (c). The chief purpose of a view is to enable the jury to better understand the testimony. Commonwealth v. Curry, 368 Mass. 195, 197-198 (1975). Although a view is not evidence in a strict and technical sense, the trier of fact may consider what is seen on a view in reaching a verdict. Id. ; Berlandi v. Commonwealth, 314 Mass. 424, 451 (1943). See also Commonwealth v. Perryman, 55 Mass. App. Ct. 187, 193 n.1 (2002) (a view is analogous to a courtroom demonstration or the use of a chalk). When a judge is the trier of fact, the judge may consider a view in making findings of fact. Talmo v. Zoning Bd. of Appeals of Framingham, 93 Mass. App. Ct. 626, 629 n.5 (2018).

Subsection (d). This subsection is derived from G. L. c. 234A, § 69A.